And it seems that any of the said ways, which is common to all the king's subjects, whether it leads directly to a market town, or only from town to town, may properly be called a highway, and that any such cartway may be called the king's highway; and that a river common to all men, may also be called a highway; and that nuisances in any of the said ways are punishable by indictment, for otherwise they would not be pu◄ nished at all, inasmuch as it seems to be certain, that it is not punishable by action, because if one man might bring his action in respect of the possibility of the damage which he might receive from it, all other men might do the like, which would introduce a multiplicity of actions. 1 Hawk. c. 76. s. 1.

And it hath been holden, that if there be a highway in an open field, and the people have used, time out of mind, when the ways are bad, to go by outlets on the land adjoining, such outlets are parcel of the way, for the king's subjects ought to have a good passage*, and the good passage is the way, and not the beaten track only; from whence it follows, that if such outlets be sown with corn, and the beaten track be founderous, the king's subjects may justify going upon the corn. 1 Rol. Abr. 390. Comyns's Dig. Tit. Chimin (A 1). Cro. Car. 366. 4 Vin. Abr. 502. 1 Hauk. c. 76. s. 2.

But in regard to private ways there is a difference; for al though they may be rendered impassable, either by want of repair, or by the overflowing of a river; yet it seems that those who have the right of way cannot justify going over the adjoinng land, unless they are entitled to a way generally over the iver; for if the grant be not of a way generally over the and, or the owner be bound, either by prescription or his own greement, to repair, or provide against the overflowing of the and, but of a precise specific way, it authorizes the use of a par icular line only, and does not give a right to go either on the ight or the left. Taylor v. Whitehead, T. 21 Geo. 3. 2 Doug. To. ed. 748.

A way to a parish-church, or to the common fields of a What shall be a own, or perhaps to a village which terminates there, and is for private way. he benefit of the particular inhabitants, of such parish, house or illage only, may be called a private way, but not a highway, ecause it belongeth not to all the king's subjects, but only to ome particular persons, each of which, as it seems, may have n action on the case for a nuisance thereon. 1 Hawk. c. 76. 1.

So a private way may be from a meadow, or close to a street; to an highway; or from one part of a close, across the ground

* For highways are for the public service; and if the usual track is imssable, it is for the general good that people should be entitled to pass in other line. 2 Doug, 647,

VOL. II.

3 B

How claimed.]

+ Called the Church-lane.

By whom to be repaired.

of another, to another part of the same land. Comyns's Dig. Til. Chimin (D1).

And a private way may be claimed by prescription, reservation, or grant, or for necessity. 6 Mod. Rep. 3.

By prescription, as where a man can show no other right the that he, and those under whom he claims, have immemorially used to enjoy it.

And in setting up a right of way, it has been determined in the court of Common Pleas, in the case of Roufe v. Bardin and others, til. 30 Geo. 3, by three judges contrary to the opinion of lord Loughborough ; that in pleading a right of way, from a common public highway leading from Knightsbridge to Earl's Court, in, through, over, and upon a certain close, unto a cer• tain other common highway, leading from London to Fulham: Evidence that the way in dispute led over such close, into a cer tain footway and along that foot way, into the road leading from London to Fulham, was sufficient to support the plea, and that the intermediate spaces, either before the entrance into field, or at the exit out of it, before you reach the terminus ad quem, are immaterial. Term Rep. C. B. 351.

By reservation or grant, as if A grants, that B shall have a way through such a close. Comyns's Dig. Tit. Chinis (D3).

By necessity; as where a man has land surrounded by the Jands of another, in such case he shall have a way through the land of the other, for the necessity. Mod. Cas. 3.

So if a man has title to a wreck, he has a right to have a way over the land of another where the wreck lies, to take it of ne cessity. 6 Mod. Rep. 149.

The grantee of a way has power to amend it as incident to the grant. Godb. 53. 1 Sand. 323.

But if a man grants a way through his close to another, the grantor is not bound to keep it in repair, if it be foundrous, I Sand. 322.

* His lordship, with much sound reasoning, contended that every man has prima facie a right to exclude all others from coming over his land, and Lat justification ought to be set out with due certainty, and notice of the wor claimed over the soil; there may be many ways claimed, and the occupat of the field ought to know which is insisted upon: he may admit one deny the other; he has a right to reply extra viam (that the party went a of the way) which he cannot do unless the way is explained with de finge terminus, where it commences and ends. That in this case, the platf might have admitted the road to the footway; he was deceived by the pl for he knew there was no road over his field, which is directly teruinated a the Fulham road; but whether the defendant was or was not obliged to (** scribe the way so particularly, he had undertaken to do it, and had not diss it truly; a way terminating in the footway called the Church-lave, and a wa terminating in the Fu ham-road are not only distinct, but it is physically at possible they can be the same.

For by common law, those who have the use and benefit of the way ought to repair it. 2 Doug. Svo. ed. 748.

And if the commissioners under an inclosure act set out a privale road for the use of the inhabitants of nine different parishes, directing the inhabitants of six of those parishes to keep it in repair, no indictment can be supported against the latter for not repairing it, for the known rule is that those matters only that con. cern the public are the subject of an indictment, and it being in this case described to be a private road, the court held that it neither concerned the public, nor could be taken to be of a public nature, but merely concerned the individual who had a right to use it, and the circumstance of its having been set out under a public act of parliament did not make it an indictable offence. Rex v. Richards, Tr. 40 Geo. 3. 8 Ter. Rep. 634.

Also if an act for dividing and enclosing certain lands enacts, that the public roads to be set out by the commissioners shall be repaired in such manner as other public roads are by law to be repaired, and that the private roads shall be repaired by such person or persons as they shall award; the commissioners have no authority to impose on the parish at large the burden of re pairing any of the private roads set out in pursuance of the act. -This was decided in the case of the K. v. the inhabitants of Cottingham, Mic. Ter. 35 Geo. 3, under the stat. 6 Geo. 3. c. 78, for dividing and enclosing certain lands in the parish of Cottingham, in the east riding of the county of York, which directed that all the private ways set out by the commissioners should at all times afterwards be repaired" by such person or persons, and in such manner as the commissioners should by "their award direct or appoint.”

66

In this case the commissioners after setting out certain public and private roads, directed that all the roads by them awarded, "WHETHER PUBLIC OR PRIVATE," should be maintained and repaired by such ways and means, and in such manner as the public highways are repaired by the laws of this realm.

BY THE COURT, The clause of the act, which speaking of the private roads, says, they shall be repaired by such person and persons as the commissioners shall direct, cannot be understood to mean any persons, but such as the commissioners thought ought to bear the burden: as to the public roads, the parish would have been bound to repair them, without any direction in the act; but they were not bound to repair private roads; and therefore this power was given to the commissioners, who are to direct by whom the expence of repairing them shall be borne: but when the commissioners directed that the parish at large should repair these private roads, they exceeded the authority vested in them by the act. 6 Term Rep. 20. But if a man be bound,

either by prescription or his own 3 B 2

Remedy,

Obstructions.

To whom the highway and soil belong.

agreement, to repair, he ought; and if the way become impass. able, in such case a passenger may break the fence, and go out of the way, but as near to the same as he possibly can, in order to avoid the bad way. 6 Mod. Rep. 163. 1 Salk. 358. Jones,

296. 2 Doug. 8vo. ed. 745.

But if the owner of the adjoining land be not so bound, no one can justify going over his ground, although the way be rendered impassable. 2 Doug. 8vo. ed. 748.

If a common way to church, vill, or the like, be out of repair, he who ought to repair it may be indicted for it. 6 Mod. Rep. 163.

And if he be convicted upon the indictment, the court will not set the fine till the justices of peace certify that it is well repaired. 6 Mod. Rep. 163.

And if he be fined before the way be repaired, yet a distringas in infinitum, shall afterwards go against the party, till the sheriff certify, that the way is in good repair. 1 Salk. 359. 6 Mod. Rep. 163.

But those who are bound to repair are not obliged to put it in better condition than has been time out of mind, but as it has been usually at the best. 1 Salk. 359.

And if one grants me a way, and afterwards digs trenches in it to my hindrance, I may fill them up again : but if a way which a man has, becomes not passable, or becomes very bad, by the owner of the land tearing it up with his carts, so that the same be filled with water; yet he who has the way cannot dig the ground to let out the water; for he has no interest in the soil. Godb. 52, 53.

But in such case he may have his action upon the case against the wrong doer. Lut. 111. 3 Lev. 266. 1 Vent. 275. 2 Vent.

186.

So if a man hath a private way without a gate, and a gate is hung up, an action lies upon the case; for he has not his way as he had before. Litt. 267.

Or he who has such right of way, may justify the breaking of the gate so erected, through which he could not pass. 3 Lev. 92. 2 Mod. 66. 1 Barrows 266.

Though every highway is said to be the king's, yet this mast be understood so, as that in every highway, the king and his subjects may pass and repass at their pleasure. 1 Rol. Abr. 392. 4 Viner 515.

But the freehold, and all the profits belong to the lord of the soil; or to the owner of the lands on both sides the way. 1 Rol. Abr. 392. 4 Vin. 515.

And so do all the trees upon it, and mines under it, and which may be extremely valuable. 1 Burrows 143.

And the lord or owner of the soil may maintain an action of trespass for digging the ground. I Rol. Abr. 392. 4 Vin. Abr. 515. 2 Strange 1004.

But the lord of a rape within which there are ten hundreds, may prescribe to have all the trees growing within any highway within his rape, though the manor or soil adjoining belongs to another; for usage to take the trees is good badge of ownership. 1 Rol. Abr. 392. 4 Vin. 515.

And in a modern case it is reported, that Ld. Mansfield said, where no person claims the property of the lands on ei ther side of the highway, the presumption is in favour of the lord of the manor; but if the highway goes through the property of others, the presumption is in favour of the owners of the land on each side; but in either case, the presumption only stands till the contrary be proved. Anonymous Cas. M. 13 Geo. 3. Loft's Rep. 358.

And if a man make a street upon his own ground, it is dedication to the public, so far as the public has occasion for it, viz. for a right of passage only; but it is not to be understood as a transfer of the absolute property in the soil: the owner may therefore have his action of trespass for any encroachment on the soil. * Sir John Lane v. Shepherd, H.

8 Geo. 2. 2 Strange 1004.

And the owner of the soil may bring an ejectment for the land, subject, however, to the servitude or easement of a passage over it, as the king's highway. 1 Burrows, 143.

By the common law, an ancient highway cannot be changed How a highway without the king's licence first obtained upon a writ of ad quod at common law. may be changed damnum†, and an inquisition thereon found by a jury that such By ad quod a change will not be prejudicial to the public. 1 Hawk. c. 76. damnum.

s. 3.

In this case the owner of the land contiguous to the street, had laid a bridge over a ditch, and rested one end on the highway.

+ This is an original writ issuing out of Chancery, directed to the sheriff, to enquire by a jury what damage it will be to the king or others. Fits. Nat, Brev. 225 (E),

And when the writ is executed, it is to be returned into Chancery, together with the inquisition taken; and if it thereby appears that there is no harm in inclosing, the crown may grant leave so to do; and in order thereto, the inquisition must find it, ad damnum nullius, and there can be no foundation of inclosing without such return; and though it be found and returned so, yet none can lawfully inclose without licence or grant to inclose the old way; for the authority is not from the inquisition, but from the licence, 7 Mod. Rep. 45..

And it is suid, that if a person change a highway without such authority, be inay stop the new way, whenever he pleases; and it seemeth, that the king's subjects have not such an interest in such new way as will make good a general justification of their going in it as in a common highway; but that in an action of trespass brought by the owner of the land against those who shall go over it, they ought to show especially, by way of excuse, how the old way was obstructed, and the new one set out: also it is said, that the inhabitants are not bound to keep watch in such new way, or to make amends for a robbery therein committed, or to repair it, 1 Hawk, c. 76.