carts, and other carriages, in, through, and along the King's common highway aforesaid, as they ought and were wont and accustomed to do: to the great damage and common nuisance of His Majesty's liege subjects going, returning, passing, repassing, riding, and labouring in, through, and along the King's common highway aforesaid; to the evil example of all others in the like case offending, and against the peace of our Lord the King, his crown and dignity. See 6 Went. 401, 405. 4 Id. 197. Misdemeanor: fine, or imprisonment, or both; and the nuisance to be abated. Evidence. Prove the nuisance, as stated in the indictment. There is no doubt but that erecting a gate across a common highway, is a public nuisance. 1 Hawk. c. 76, s. 146. So is the locking or fastening a gate, already erected there by some other person. And the like, as to all other injuries to a highway, as by digging a ditch or making a hedge across it, or laying logs of timber in it, or by doing any other act by which it is rendered less commodious to the King's subjects. Id. s. 144. Where a carrier, having warehouses in a public street in a city, occupied one side of the street opposite to his warehouses in loading and unloading his waggons, for several hours at a time, both day and night, and having one waggon at least usually standing before his warehouses, so that no carriage could pass on that side of the street, and sometimes even foot passengers were incommoded by cumbrous goods lying on that side ready for loading: this was holden to be a public nuisance, although there was room for two carriages to pass on the opposite side of the street. R. v. Russell, 6 East, 427. So, where the proprietor of stage coaches, running between Greenwich and London, allowed them to stand in the public street at Charing Cross for threequarters of an hour at a time, taking up passengers, receiving parcels, &c. this was holden to be a public nuisance; Lord Ellenborough, C. J. saying, that the King's highway was not to be used as a stable-yard; a stage coach may set down or take up passengers in the street, this being necessary for public convenience; but it must be done in a reasonable time; and private premises must be provided for the coach to stop in during the interval between the end of one journey and the commencement of another. R. v. Cross, 3 Camp. 224. Where the proprietor of a colliery made a railroad from it to a sea-port town; the railroad was 400 yards long, and laid along a turnpike road, which it narrowed so far, that in some places there was not a clear space for two carriages to pass: this was holden to be a public nuisance, although the defendant allowed the public to use his railroad, on payment of a toll. R. v. Sir John Morris, 1 B. & Adolph. 441. Where an Act of Parliament prohibited the erection or continuance of any building within ten feet of a certain road, and declared that the footpaths should be subject to the Act and be part of the road; and it further enacted that if any such building should be erected or continued contrary to the Act, it should be deemed a common nuisance: it was holden that an open shop, having its front built on the foundation of an old wall immediately adjoining the footpath, and connected by a roof with the front of a house, which was more than ten feet from the road, was a building within the meaning of the Act. R. v. Wm. Gregory, 5 B. & Adolph. 555. By a separate clause in the same Act, authority was given to magistrates to convict the proprietor or occupier of such buildings, and to make an order for the removal thereof: the Court held, that, notwithstanding this clause, the party who erected or continued a building, contrary to the Act, might be indicted for the nuisance. Id. So, where the defendant, having a small timber yard in a narrow street, was in the habit of having long pieces of timber laid down in the street, and sawed into shorter lengths, for the purpose of getting them into his yard: this was holden to be a nuisance, Lord Ellenborough, C.J. saying, that the defendant was not to eke out the inconvenience of his premises, by taking in the public highway into his timber yard; if the street were too narrow, he should remove to a more commodious situation for carrying on his business. R. v. Jones, 3 Camp. 230. But where au indictment charged the defendant with having placed a person on the footway of a public street, to deliver out printed bills, the Court upon application quashed it, holding that the matter charged was not the subject of an indictment. R. v. Sarmon, 1 Burr. 516. A public navigable river is a public highway, and any obstruction to it is a public nuisance, in like manner as to a highway on land. See R. v. Lord Grosvenor, 2 Stark. 511. See also as to canals, R. v. Trafford et al. 1 B. & Adolph. 874. But where a vessel sunk by accident or misfortune in a public river, it was holden that the owner was not indictable as for a nuisance, in not removing it. R. v. Watts, 2 Esp. 675. Where upon the trial of an indictment for a nuisance, by erecting staiths upon the river Tyne for the loading of ships with coals, Bayley, J. told the jury that if they thought that the abridgment of the right of passage occasioned by these erectious, was for a public purpose, and produced a public benefit, and if the erections were in a reasonable situation, and a reasonable space was left for the passage of vessels on the river, they should acquit the defendants; and he pointed out to the jury that, by means of the staiths, coals were supplied at a cheaper rate, and in a better condition, than they otherwise could be, which was a public benefit: it was holden by Bayley and Holroyd JJ. (Lord Ten terden, C. J. diss.) that this direction was correct. R. v. Russell been much : Where an indictment for erecting a wall across a road, without charging a continuance of the nuisance, was tried at the sessions, and the defendants found guilty, a mandamus was granted, commanding the justices to give judgment on the indictment; and in their return, they stated that they had passed judgment upon the defendants, and fined them 6d. each it was objected to this return, that the justices should also have ordered the nuisance to be abated; but the Court said, that as the indictment did not charge a continuance of the nuisance, they did not think that the justices ought to have adjudged an abatement of it; for any thing that appeared upon the indictment, the nuisance did not in fact exist at the time the indictment was preferred; but that, at all events, an erroneous judgment was the subject of a writ of error, and could not be made the subject of an objection to a return to a mandamus. R. v. Justices of West Riding of Yorkshire, 7 T. R. 467. 24. Indictment for not Repairing a Highway. in the said parish Same as the last form, ante, p. 211, to the asterisk,* and then thus:] and that a certain part of the said common and ancient King's highway, situate, lying and being in the parish of in the county aforesaid, beginning at and county, and ending at in the parish and county aforesaid, containing in length yards, and in breadth yards, and also a certain other part of the said common and ancient King's highway, situate, lying and being in the said parish and county, beginning at in the said parish and county, and ending at in the parish and county aforesaid, containing in length yards, and in breadth yards, or on the first day of August, in the seventh year of the reign of our Sovereign Lord William the Fourth, by the grace of God of the United Kingdom of Great Britain and Ireland King, defender of the faith, and continually afterwards until the day of the taking of this inquisition, at the parish aforesaid in the county aforesaid, were and yet are very ruinous, miry, deep, broken, and in great decay for want of necessary reparation and amendment of the same, so that the liege subjects of our said Lord the King could not and still cannot go, return, pass, repass, ride, or labour with their horses, coaches, carts, and other carriages, in, through, and along the King's common highway aforesaid, as they ought and were wont and accustomed to do, without great danger of their lives and loss of their goods to the great damage and common nuisance of His Majesty's liege subjects going, returning, passing, repassing, riding, and labour ing in, through, and along the King's common highway aforesaid; to the evil example of all others in the like case offending, and against the peace of our Lord the King, his crown and dignity, See 4 Went. 162, 170, 174, 179. 6 Id. 406. Misdemeanor: fine. As to the manner in which such fine must be levied and applied, see stat. 5 & 6 W. 4, c. 50, s. 96. And as to the power of justices to order an indictment to be preferred for the non-repair of a highway, see Id. s. 95. Evidence. To maintain this indictment, the prosecutor must prove : 1. That the way in question is a public highway. It may be a carriageway, or a footway, or a foot and horseway, (which is also called a "pack and prime way," a "pack and drift way," or "bridle way,") and must be described accordingly in the indictment. It must lead from one town or vill to another, and be free for the passage of all his Majesty's subjects. 1 Hawk. c. 76, s. 1. But a way to a parish church, or to the common fields of a town, or to a private house, or perhaps to a village, which terminates there, and is for the benefit of the particular inhabitants of such parish, house, or village only, may be called a private way, but not a highway, Id., and the non-repair of it cannot be the subject of indictment. So, if it be not a thoroughfare, it is doubted very much whether it can be deemed a highway. See Wood v. Veal, 5 B. & Ald. 454. So, if the owner of the fee, upon his first making a street or road, put a gate or bar across it, or do any other act, publicly indicating that he does not dedicate it to the public, it cannot be deemed a public highway; and, if the gate or bar, &c. be not afterwards kept up for a considerable time, still its having originally been so put up will rebut any mere presumption of its being dedicated to the public. See Lethbridge v. Winter, 1 Camp. 263, n. Roberts v. Carr, Id. 262, n. On the other hand, if the owner of the fee allow the public to pass over a way through it, without hindrance or obstruction, or any other indication of his dissent, it shall be presumed that he dedicates it to the public, and it may be deemed a public highway. R. v. Lloyd, 1 Camp. 260. Lade v. Shepherd, 2 Str. 1004. Jarvis v. Dean, 3 Bing. 447. But no consent by tenants merely will have this effect; and, therefore, where the tenants of houses in a street, allowed it to be used as a public thoroughfare during a term of 99 years, and the owner of the fee at the expiration of the term erected a fence across it, it was holden he might do so, for no person could dedicate a way to the public except the owner of the fee. Wood v. Veal, 5 B. & Ald. 454. and see Harper v. Charlesworth, 4 B. & C. 591. If, however, during the time it is so used by the public, there be a change of tenants, so that the owner of the fee had an opportunity of publicly indicating his dissent to its being so used, and did not: if it appear that he, or even his steward, knew of it, he will be deemed to have dedicated the way to the public; and where in such a case the way was uninterruptedly used for many years by the public, during which there were several changes of tenants, Lord Ellenborough said he should presume that the owner of the fee had notice. R. v. Barr, 4 Camp. 16. And where land was vested in trustees for the purpose of a drainage, and the trustees dedicated part of it, as a way, to the public, who used it uninterruptedly for 25 years: it was holden that as it appeared that the user of the way by the public was not incompatible with the purposes of the drainage, the dedication was valid, and the parish was bound to repair the road. R. v. Leake, 5 B. & Ald. 469. See 5 & 6 W. 4, c. 50, s. 23, infra. It is doubted whether in law there can be a partial dedication of a way to the public, as for instance, for all purposes except the carrying of coals, Marquis of Stafford v. Coyney, 7 B. & C. 257, or the like; if not, such a dedication in fact, would be no dedication at all in law, and the public would be trespassers in using the way in any other manner than that permitted; 1d.; but even if there may be in law such a partial dedication, it should seem that it would not have the effect of throwing the onus of repairing the way upon the parish. The termini, if set out, and the local description of the road in the indictment, must be proved as laid. See Rouse v. Bardon et al. 1 H. Bl, 351. R. v. Gamlingay, 3 T. R. 513. 2. That the part of the highway, which is out of repair, is situate within the parish indicted. This may be proved by witnesses who know the road, and know the boundaries of the parish; old persons who in their youth have perambulated the boundaries, are good witnesses upon this subject. 3. That the parish are bound to repair it. The parish by common right is bound to repair all public highways within it; even where a township, liable to repair a way by prescription, was relieved of its liability by an Act of Parliament, it was holden that the liability thereby necessarily fell upon the parish at large. R. v. Sheffield, 2 T. R. 106. and see R. v. St. George, Hanover Square, 3 Camp. 222. Anon. Ld. Raym. 725. So, if a turnpike road be out of repair, the parish in which it is situate, or the township, if the township be liable by prescription to repair all roads within it, may be indicted for the non-repair of it; for the tolls received upon it are deemed an auxiliary fund merely, and do not relieve the parish, &c. of its liability. R. v. Netherthong, 2 B. & Ald. 179. So, no mere agreement between the parish and other persons, will relieve the former of its common law liability to repair. R. v. Liverpool, 3 East, 86. So that, proving a way to be a public highway, and that it is within |
