Chap. VI. to alter for the accommodation of the public the level of any street, though such alteration may interfere with the free access of the adjoining owners to their property abutting on the street. Any remedy that the adjoining owners may have except on the ground of unreasonable conduct on the part of the local authority should be by way of compensation under sect. 308 of the Public Health Act, 1875, and not by injunction (x). What is a highway. Modes of creating a highway. SECTION VII.-NUISANCES TO HIGHWAYS. ANOTHER class of cases in which the equitable remedy by injunction is often sought are nuisances to public roads or highways (y). A highway is a road given to the public for passing from one public place to another public place (z), whether it be a carriage way, a footway, or a horse-and-cart way (a). A highway need not necessarily be a thoroughfare (b), nor is it necessary that the terminus of a highway should be itself a public place, if it lead to a public place (c). The sea-shore is not a public highway (d). A highway may be created either by statute or by the dedication to the public by the owner in fee (or in certain cases by a limited owner (e)) of the surface of his land for the purpose of passing and re-passing. In order to prove a public (x) Sellors v. Matlock Board of Health, 14 Q. B. D. 929. (y) Squire v. Campbell, 1 M. & C. (z) Campbell v. Lang, 1 Macq. man v. Maisey, (1900) 1 Q. B. 752 (C. A.). (a) 13 East, 97, per Lord Ellenborough; 2 B. & Ald. 648, per Holroyd, J. (b) Bateman v. Black, 18 Q. B. 870; Young v. Cuthbertson, 1 Macq. 455; Vernon v. Vestry of St. James, 16 C. D. 457; Bourke v. Davis, 44 C. D. 110, 123. (c) Campbell v. Lang, 1 Macq.451. (d) Llandudno Urban Council v. Woods, (1899) 2 Ch. 705. (e) See sect. 16 of Settled Land Act, 1882, and sect. 20 of Settled Estates Act, 1877. way created by Act of Parliament, it is necessary to show that the provisions of the Act have been strictly followed (ƒ). Chap. VI. The dedication by an owner of the surface of his land to Dedication. the use of the public, has not the effect of divesting him of the ownership of the soil, or of vesting the soil in the public, or in the Crown to the use of the public. An owner who dedicates to public use as a highway a portion of his land, parts with no other right than a right of passage to the public over the land so dedicated, and may exercise all other rights of ownership not inconsistent with such dedication. Highways are dedicated prima facie for the purpose of passage only, and the user of a highway for other purposes is a trespass as against the owner of the soil and will be restrained (g). The appropriation made to and adopted by the public, of a part of the street to one kind of passage, and another part to another, does not deprive him at common law of any rights as owner of the land which are not inconsistent with the right of passage by the public. The provision of the Highway and Metropolis Local Management Acts, so far as they apply to roads and streets, are subordinate to the paramount rights reserved by the owner (h). A dedication to be valid must be made by the owner of the fee (i), or by a limited owner under statutory powers (k), and must be made with an intention to dedicate. There can be no dedication, unless there be an intention to dedicate (l); and such intention must be unequivocally proved. But it may be manifested by writing, by declaration, or by acts. The mere acting so as to lead persons into a supposition that a way is dedicated does not amount to a dedication, if there be an agreement which explains the transaction (m). Nor is there a dedication, (f) Cubitt v. Maxse, L. R. 8 C. P. 715. (g) Hickman v. Maisey, (1900) 1 Q. B. 752 (C. A.). (h) Vestry of St. Mary, Newington v. Jacobs, L. R. 7 Q. B. 47; and see Luscombe v. Great Western Railway, (1899) 2 Q. B. p. 316. (i) Wood v. Veal, 5 B. & Ald. 454; Jarvis v. Dean, 3 Bing. 447. (k) See Settled Land Act, 1882, s. 16, and Settled Estates Act, 1877, s. 20. (1) Woodyer v. Hadden, 5 Taunt. 125; Barraclough v. Johnson, 8 A. & E. 99. (m) Ib. Chap. VI. User evidence of intention to dedicate. though there may have been originally an intention to dedicate, If an intention to dedicate can be clearly shown, no particular time is necessary to render the dedication valid. It may be immediate, or as soon as some act is done on the part of the public, or persons claiming an interest in such dedication, denoting their intention of accepting the gift (p). A mere dedication by the owner of the soil will not of itself create a highway. There must also be an acceptance by the public. Dedication by the owner, and user by the public, must concur to create a road otherwise than by statute (q). Where there is a public right of footway across land, and there is some surface land lying along the course of the public footpath, devoted to traffic, even if it be private traffic, then prima facie the owner of the soil must be taken to have dedicated to the public so much of the surface as he has in point of fact devoted to traffic, even though it be private traffic (r). Enjoyment and user of a way by the public is evidence from which an intention to dedicate may be presumed (s). Where the character of the user has left no doubt as to the intention to dedicate by the owner of the land over which the way ran and the assertion of the right on the part of the public, a user of not many years continuance may be sufficient to establish the right (t). The idea of dedication may be rebutted by evidence of acts showing that the owner of the soil (n) Hall v. Corporation of Bootle, 29 W. R. 863. (0) Austerberry v. Corporation of Oldham, 29 C. D. 750. (p) Poole v. Huskisson, 11 M. & W. 826; North London Railway Co. v. Vestry of St. Mary, 21 W. R. 226. (g) Cubitt v. Maxse, L. R. 8 C. P. 715; Mackett v. Herne Bay Commissioners, 37 L. T. 873, W. N. (1876) 242, W. N. (1877) 221. (r) Per Buckley, J., in Att.-Gen. v. Esher, &c., Co., (1901) 2 Ch. 647. (8) Poole v. Huskisson, 11 M. & W. 826; Turner v. Walsh, 6 App. Ca. 642; Mann v. Brodie, 10 App. Ca. 386; Marquis of Stafford v. Coyney, 7 B. & C. 260. (t) Att. - Gen. v. Biphosphated Guano Co., 11 C. D. p. 341. contemplated only a licence revocable in a particular event (u). The erection of a post or gate at the entrance of the way, or other similar acts, will negative the intention to dedicate (x). A single act of interruption by the owner of the fee is of much more weight upon the question than many acts of enjoyment on the part of the public (y). In a case where a highway over a common had, without the authority or interference of the owner of the soil, been diverted by an adjoining proprietor, who substituted for it a new road, which was used by the public for more than twenty years, it was held that there was no dedication of the substituted road, but that the use of it was referable to the right of the public to deviate on to the adjoining land, whenever the owner of the soil stops a highway or suffers it to be foundrous (z). Chap. VI. intention to Enjoyment and user of a way by the public is evidence from User evidence of which the assent of the owner, whoever he is, may be inferred. dedicate. It is sufficient if there might be a person who was competent to make the dedication. It lies upon the party denying the inference from the user to show that there was no person who had the power of dedicating it at the time the dedication is proved to have taken place (a). From evidence of acts of user of a footway by the public, extending over the whole time of living memory, during which, however, the way passed had been under lease, it was held that the jury might presume against the reversioner a dedication of the way by his ancestors to the public at a period of time anterior to the land having first been leased (b). So also where there has been long user (u) Barraclough v. Johnson, 8 A. & E. 99, 104. (x) Roberts v. Carr, 1 Camp. 262n.; Rugby Charity v. Merryweather, 11 East, 376 n.; Mildred v. Weaver, 3 F. & F. 30; Vestry of Bermondsey v. Brown, 1 Eq. 204. (y) Marquis of Stafford v. Coyney, 7 B. & C. 257; Poole v. Huskisson, 11 M. & W. 826; Healey v. Corporation of Butley, 19 Eq. 388. (z) Dawes v. Hawkins, 8 C. B. N. S. 848. (a) Reg. v. Eastmark, 11 Q. B. 877; Reg. v. Petrie, 4 E. & B. 738; Turner v. Walsh, App. Ca. 636. See Vernon v. Vestry of St. Jumes, 16 C. D. 457. (b) Winterbottom v. Earl of Derby, L. R. 2 Exch. 316; cf. Haigh v. West, (1893) 2 Q. B. 19 (C. A.). But a lost grant cannot be presumed where such a grant would be in contravention of a statute, Neaverson v. Peterborough Rural Council, (1902) 1 Ch. 557 (C. A.). Chap. VI. There may be dedication for special uses or a by the public of a footpath across copyhold land, dedication of the path to the public by the lord as well as by the copyholder will be presumed, unless there is evidence to rebut the presumption (c). It is an unsettled question what length of enjoyment of a way is requisite to raise the presumption of dedication (d). The amount of user and enjoyment by the public which is required in order to prove dedication varies according to the nature of the district in which the way is situated; e.g., in a thinly populated and mountainous district slight evidence of user might be sufficient (e). There may be a dedication of land for special uses or for a limited purpose, as for a footway, a horse way, or a drift limited purpose, way (f). A dedication may be made subject to the reserva tion of a private right to some extent interfering with the public one (g). There may in law be a dedication to the public of a right of way, such as a footpath across a field, subject to the right of the owner of the soil to plough it up, in due course of husbandry, and destroy all trace of it for a time (h). But there cannot be a valid dedication to a limited class of persons or part of the public, as to a parish. If there be a dedication at all, it must be in favour of the public (i). or for a limited Nor can there be a dedication to the public for a limited time, certain or uncertain. If there be a dedication at all, it must be perpetual (). but not to a limited class of persons, time. Dedication must be taken to be accepted by the to inconvenience A dedication must be taken to be made to the public and accepted by them, subject to the inconvenience or risk arising from the existing state of things. If there be an erection or excavation existing in the way at the time of the dedication, (c) Powers v. Bathurst, 28 W. R. 390. (d) See Rugby Charity v. Merryweather, 11 E. 375 n.; Jarvis v. Dean, 3 Bing. 447; Woodyer v. Hadden, 5 Taunt. 125. (e) Macpherson v. Scottish Rights of Way Society, 13 A. C. 744. (f) Poole v. Huskisson, 11 M. & W. 830, per Lord Wensleydale. (g) Morant v. Chamberlin, 6 H. & N. 541. (h) Mercer v. Woodgate, L. R. 3 Q. B. 26; Arnold v. Baker, ib. 6 Q. B. 435; Rundle v. Hearle, (1898) 2 Q. B. p. 89. (i) Poole v. Huskisson, 11 M. & W. 830; Vestry of Bermondsey v. Brown, 1 Eq. 204. See Hildreth v. Adamson, 8 C. B. N. S. 587, as to dedication of water in a public fountain. (k) Dawes v. Hawkins, 8 C. B. N. S. 848. |