the owner of the soil is not liable for accidents thereby occasioned. The public must be taken to accept the way, subject to the inconvenience or risk arising from the existing state of things (1).

Chap. VI.
Sect. 7.

way along an

There is nothing inconsistent with the purposes of a sea or Dedication of river wall, or embankment erected to protect neighbouring embankment. lands, in a right of way along the surface; and the same evidence of user will raise a presumption of a dedication of a right of way by the owner of the soil in the case of such an embankment, as in any other case of uninterrupted and open user by the public (m).

easement.

A public road or highway is not an easement properly so Highway not an called (n). The soil of a highway up to the centre of the road Ownership of soil is presumed in law, in the absence of other evidence of of highway ownership, to belong to the owners of the land on each side, subject to the right of passage of the public (). A conveyance of land, bounded by a highway, is always presumed in law to carry the fee up to the centre of the road, as part and parcel of the grant; unless there be enough in the circumstances or enough in the expressions of the instrument to show a contrary intention (p). This presumption applies to streets in a town as well as to highways in the country (q). It seems that if A. owns houses on one side of a street and B. owns houses on the other side, but it turns out that the soil of the highway is not evenly divided between them, A. owning a little more or a little less than half the highway, then when A. conveys his houses describing them as bounded by the

(1) Fisher v. Prowse, 2 B. & S. 780; Robbins v. Jones, 15 C. B. N. S. 221; Rundle v. Hearle, (1898) 2 Q. B. 83.

(m) Greenwich Board of Works v. Maudsley, L. R. 5 Q. B. 397.

(n) Rangely v. Midland Railway C., 3 Ch. 310.

(0) Smith v. Howden, 14 C. B. N. S. 398; Beckett v. Corporation of Leeds, 7 Ch. 421; Mayor, &c., of Tunbridge Wells v. Baird, (1896) A. C. 434; cf. Leigh v. Jack, 5 Ex.

Div. 270 (C. A.)

(p) Berridge v. Ward, 10 C. B. N. S. 400; Micklethwaite v. Newlay Bridge Co., 33 C. D. 145. As to what is sufficient to rebut the presumption, see Pryor v. Petre, (1894) 2 Ch. 11 (C. A.); Mappin v. Liberty & Co., W. N. (1902) 209.

(a) In re White's Charities, (1898) 1 Ch. 659; and see London and North Western Railway Co. v. Westminster Corporation, (1902) 1 Ch. 269.

Chap. VI.

Sect. 7.

Foundrous highway.

Right of access to highway.

highway, that portion of the highway which is vested in A. will by presumption of law, in the absence of circumstances. showing a contrary intention, pass to the purchaser (r).

Strips of waste land between old inclosures and the highway belong primâ facie to the owners of the adjoining inclosures, unless there be something in the circumstances of the case to rebut the presumption (s).

They may carry water in

Being owners of the soil of a highway, the adjacent proprietors have a right to all ordinary remedies for the freehold, and may maintain actions against any person who digs up the soil or cuts down trees growing on the side of the road, or left there for shade or ornament (t). The freehold and all the profits of the soil belong to them. pipes under the highway, and have every use and remedy that is consistent with the right of passage in favour of the public and the provisions of the Highway Acts and police regulations (u). If trees growing by the side of the road are an obstruction to the road, the Highway Authority may order them to be cut (x).

If a highway be foundrous and impassable, a right to go over the adjoining land may exist, where the public have from time immemorial been accustomed to deviate; but where there is a limited dedication of a way, the public have no right to deviate, if the way is out of repair (y).

The right of the owner of property at the side of a highway to have access thereto is a totally different right from the public right of passing and repassing along the highway (z).

(r) (1898) 1 Ch. p. 666, per Romer, J.

(8) Doe v. Pearsey, 7 B. & C. 304; Grose v. West, 7 Taunt. 39; Doe v. Hampson, 4 C. B. 267; Simpson v. Dendy, 8 C. B. N. S. 433; Curtis v. Kesteven County Council, 45 C. D. 504. See Countess of Belmore v. Kent County Council, (1901) 1 Ch. 873.

(t) Frompton v. Tiffin, 2 Jur. 986; Goodson v. Richardson, 9 Ch. 221; Edwards v. Jolliffe, W. N. (1877) 120; Curtis v. Kesteven

County Council, 45 C. D. 504.

(u) 1 Roll. Ab. 392, 2 Inst. 705; Lade v. Shepherd, Str. 1004; Goodtitle v. Alker, 1 Burr. 133; Cunliffe v. Whalley, 13 Beav. 416; Harrison v. Duke of Rutland, (1893) 1 Q. B. p. 155.

(r) Turner v. Ringwood Highway Board, 9 Eq. 418; Unwin v. Hanson, (1891) 2 Q. B. 115 (C. A.).

(y) Arnold v. Holbrook, L. R. S Q. B. 100.

(z) Ante, p. 225.

A towing path is a highway to be used only for horses employed in towing vessels (a). The owner of the land opposite the towing path is owner of the land over which the towing path passes, unless there is evidence to show that the trustees or conservators of the navigation have acquired a right to the soil. He has every right over that land which is his own other than a right to impede the navigation. The duty of the trustees is to keep the towing path in a fit state for the public use as a towing path, and in a proper case they may have an injunction to restrain the owner of the soil from so using it as to interfere with its use by the public for the purposes of the navigation (b).

Chap. VI. Sect. 7. Towing path.

The right of navigation in inland waters or in rivers above Right of navigation. tidewater is simply a right of way. The public who have acquired by user a right of navigation on inland waters have no right of property. They have a right to pass as freely and as safely as they have been wont to do, but unless there is a present interference with that right, or it can be shown that what is done will necessarily produce effects which will interfere with that right, there is no injuria of which they can complain. But when the right of navigation exists a proprietor has no right to execute any works which will interfere or obstruct the navigation or the free use of the towing path along the river for the purpose of navigation (c).

The right of the public to navigate a stream may be created either by prescription, or by dedication of the owner of the soil within time of legal memory (d).

highway.

The withdrawal of a part of a highway from its ordinary use Nuisance to is a nuisance to a highway. It is no answer that the public will be benefited thereby (e). A county council cannot legally sanction the erection of a permanent structure not authorised

(a) Winch V. Conservators of Thames, L. R. 7 C. P. 471.

(b) Lee Conservancy Board V. Button, 12 C. D. 383, 6 App. Ca. 685.

(c) Orr Ewing v. Colquhoun, 2 App. Ca. 846; and see Smith v. Andrews, (1891) 2 Ch. 678, 697.

(d) Caldwell v. Maclaren, 9 App. Ca. 405.

(e) Reg. v. Train, 2 B. & S. 640. See Queen v. Longton Gas Co., 2 El. & El. 660; Corporation of Preston v. Fullwood Local Board, W. N. (1885) 213, 34 W. R. 196.

Chap. VI.
Sect. 7.

Right to abate nuisance.

Right of access to highway.

by the necessities of the public service upon a county road. The Attorney-General, as representing the public, is the proper person to prevent this by injunction (ƒ). The right of the public to use a highway extends to the whole road and not merely to the part used as via trita. The owner of the land has no right to create an obstruction so as to prevent the public from passing over the side of the highway (g). If a part of the highway be inclosed by a private individual, the highway authority may remove the obstruction (h). Any member of the public may abate an obstruction to the highway from which he suffers special damage (i). But it seems that such right of abatement does not exist where the nuisance is one arising from mere non-feasance; e.g., where a bridge has been allowed to fall out of repair (k).

An Urban District Council has power to remove an encroachment upon any highway vested in it by sect. 149 of the Public Health Act, 1875, without first taking proceedings summarily or by indictment against the person alleged to have encroached (1).

The right of a landowner to use a public highway for the purpose of bringing materials for the building or repairing a house on the land must be exercised reasonably. The public must submit to the inconveniences occasioned necessarily in repairing a house. The question in all cases is whether or not the obstruction of the street is greater than was reasonable in point of time and manner, taking into consideration the interests of all parties and without unnecessary inconvenience. If there are several ways of access to land, there is no absolute right to use the land in the most convenient way exclusively

(f) Att.-Gen. v. Mayo County Council, (1902) 1 Ir. R. 13.

(g) Nicoll v. Beaumont, 53 L. J. Ch. 854; and see Att.-Gen. v. Brighton Supply Association, (1900) 1 Ch. 276 (C. A.); Barber v. Penley, (1893) 2 Ch. 447.

(h) Bagshaw v. Brixton Local Board, 1 C. D. 220; Reynolds v. Urban District Council of Presteign,

(1896) 1 Q. B. 604.

(i) Campbell Davys v. Lloyd, (1901) 2 Ch. 523.

(k) Campbell Davysv. Lloyd, (1901) 2 Ch. 518, 523, 327 (C. A.).

(1) Reynolds v. Urban District Council of Presteign, (1896) 1 Q. B. 604; Murray v. Epsom Local Board, (1897) 1 Ch. 35.

without regard to the convenience of neighbouring landowners (m). In a case of doubt or difficulty the right of the occupier of premises abutting on a highway to make a reasonable use of it for the purpose of loading or unloading goods at his premises, must yield to the public right of unobstructed passage along the highway. It is in each case a question of degree whether the exercise of this private right of access to premises, which must of necessity involve some obstruction of the highway, is or is not reasonable, and in determining this question regard must be had to all the facts of the case (n). In a case in which traders carrying on a large business in Brighton, at premises situate in a street the roadway of which was less than 20 feet wide, kept as many as six vans at once during every alternate hour in the daytime loading and unloading goods at their premises, it was held that this was an unreasonable use of the highway, amounting to a public nuisance, the continuance of which must be restrained by injunction (n).

The driving of cattle along a highway is an ordinary use of the highway, and is not actionable. Persons living in houses looking upon a highway, must accept the advantage of having the highway there in return for the inconvenience which may attend upon its existence (0).

No length of time can legalise a public nuisance (p).

Chap. VI.

Sect. 8.

SECTION VIII.-NUISANCES TO FERRIES.

ANOTHER class of cases in which the interference of the Court by injunction is sought are nuisances to a ferry (q). A ferry is a highway for all the King's subjects paying the toll (r). It is a franchise which none can set up without a licence from

(m) Fritz v. Hobson, 14 C. D.

542.

(n) Att.-Gen. v. Brighton, &c., Supply Association, (1900) 1 Ch. 276 (C. A.)

(6) Truman v. London, Brighton, &c., Railway Co., 25 C. D. 428.

(p) Mott v. Shoolbred, 20 Eq. 24. (9) Cory v. Yarmouth and Norwich Railway Co., 3 Ha. 593; Hemphill v. M'Kenna, 3 Dr. & War. 183; Letton v. Goodden, 2 Eq. 123.

(r) North and South Shields Ferry Co. v. Barker, 2 Exch. 149.