The great bulk of indictments for nuisance on, in, to or about highways have been against defendants alleged to be liable for repair ratione tenure; but it is observed in Short and Mellor's Crown Office Practice, 2nd ed. (1908), p. 104, n. 4: the effect of s. 25, sub-s. 2, of the Local Government A. 1894 [56-7 V. 73], is practically to supersede indictments for non-repair of highways by persons liable to repair ratione tenure, as it empowers the road authority to repair the highway and to recover the cost from the person primarily liable.' So Encyc. Laws Engl., art. Highways (1907): In former days* the question of liability ratione tenure was generally raised and decided on an indictment; now it is more frequently settled by a proceeding under s. 25 (2) of the L. G. A. 1894.' Again, 'The ancient remedy for non-repair of a highway was an indictment of the inhabitants of the parish liable to repair it, and that remedy is still applicable. Modern statutes, however, have provided other and more summary methods of procedure': Local Government, &c., by (Sir R. S. Wright and) H. Hobhouse, 4th edn. (1914), p. 69.

It had long been recognised that in this class of cases, though they were in form criminal, they were substantially civil (see, for instance, (L.) Lindley, cited p. 246); and on some points accordingly procedure was civil. Thus in Chorley and another, 12 Q. B. 575, 1848, after acquittal, a rule was made absolute for a new trial on a fresh indictment. So, according to Glen on Highways, 2nd edn. (1897), p. 176, Pollock C.B., on a doubt being expressed whether an indictment for non-repair could be referred as the proceeding was in form criminal, is reported to have said that the objection was a mere technical distinction, and that in substance and in truth the proceeding was civil: Wadhurst [Parish of], the Times, 24th March, 1864.' See on this case, Short and Mellor, as above, at 123; Blakemore, 1850, was perhaps not cited in Wadhurst.

When, owing to the limited means of locomotion, the state of the roads was a very grave matter.

Indeed, in Stephens, 1866, the crown could not have succeeded had the proceedings been strictly criminal,' as Mellor J. pointed out, for there was no mens rea, and Field J. spoke of it as 'civil' in Chisholm v. Doulton.

The Evidence A. 1877, by its language clearly indicates that the legislature regarded such trials as essentially civil-and even more by the provision that the defendant is a compellable witness for the prosecution-which would be impossible in a wholly criminal case.

Costs, too, in these cases are to be allowed as in civil proceedings: 8 E. 7, 15, 9 (3)..

This theory or view has been greatly promoted by lapse of time and by the exclusion of such cases from the jurisdiction of the Court of Criminal Appeal (by s. 20 (3) of the C. A. A.) and their being assigned to the civil Court of Appeal. Accordingly it has not been thought worth while to deal in a book on criminal law with a procedure now practically obsolete.*

Common law nuisances] 'There is no doubt but that all injuries whatever to any highway, as by digging a ditch or making a hedge overthwart it, or laying logs of timber in it, or by doing any other act which will render it less commodious to the king's people, are public nuisances at common law. . . . Also it is no excuse for one who layeth such logs... that he laid them only here and there, so that the people might have a passage, by windings and turnings through the logs.' Hawk. P. Ĉ. I. 76 (pl. 1), 144, 145: the harm must not be too trivial: Bartholomew and Russell, 1854, below. So erecting a gate across a highway is a nuisance, for it not only interrupts the public in their free and open passage, but it may in time become evidence in favour of the owner of the soil. Ib. 75, 9. It is also a nuisance to suffer the ditches adjoining to a highway to be foul, by reason whereof it is impaired, or to suffer the boughs of trees growing near the highway to hang over the road in such a manner as thereby to incommode the passage. Ib. 76 (pt. 1), 147; and see 5-6 W. 4, 50, 67; A.-G. v. Waring, 63 J. P. 789, 1899. Cf. Walker v. Horner, 1 Q. B. D. 4; 45 L. J. M. C. 4, 1875. 'There can be no doubt that any contracting or narrowing of a public highway is a nuisance; it is frequently, however, difficult to determine how far in breadth a highway extends, as where it runs across a common, or where there is a hedge only on one side of the way, or where, though there are hedges on both sides, the space between them is much larger than what is necessary for the use of the public; in these cases it would be for a jury to determine how far the road extended.' 1 Russ. Cri. 6th edn. 790; Brownlow v. Tomlinson, 1 M. & Gr. 484, 1840; Wright, 1832;

6

Probably the spectacle will never be seen in our Courts again like that recorded in the Inhabs. of Haughton, E. & B. 503, 1853. In 1787 came J. H. and T. S., two inhabitants of the said township of Haughton, and on behalf of themselves and the rest of the inhabitants submitted to a presentment. So in Mawbey, 6 T. R. 620, 1796, H. Lee and E. Hammond, two inhabitants of the parish of Windlesham, for themselves and the rest of the inhabitants of the said parish, pleaded Not Guilty to,' an indictment. This system of representative defendants was designed to secure the necessary expedition the individuals were liable to pay the whole fine,' contributions to which they might recover at law from others liable: Hawk. P. C. I. 773: Chitty, 3 Cr. L. C. 13 (592): 1825. In Wilts, Inhabs. of, 1 Salk. 389; 6 Mod. 307, 1705, Holt C.J. said: An attachment may go against the inhabitants of the whole county and catch as many as one can of them.'

Authorising Nuisance.

705

London and Birmingham Ry., 1 Railw. C. 317, 1839; The United Kingdom Electric Telegraph Co., 31 L. J. M. C. 166, 1862, whence it seems that, in ordinary cases, where a road runs between fences, not only the part which is maintained as solid road, but the whole space between the fences is to be considered as highway. Now, however, by 27-8 V. 101, 51, any obstruction therein mentioned, which is within fifteen feet of the centre of the highway, may be removed.

Where a waggoner occupied one side of a street, in loading and unloading, for several hours at a time, by night and by day, usually having one waggon at least standing, so that no carriage could pass on that side, this was held to be a nuisance, although there was room for two carriages to pass on the opposite side. Russell, 6 East 427, 1805. So excavations made close to a highway are a nuisance. Barnes v. Ward, 9 C. B. 392, 1850; Hardcastle v. S. Yorkshire Ry., 4 H. & N. 67, 1859; Hounsell v. Smyth, 7 C. B. N. S. 731, 1860; Hadley v. Taylor, L. R. 1 C. P. 53, 1865. So keeping stage-coaches at a stand in a street plying for passengers is a nuisance. Cross, 3 Camp. 226, 1812; Wilkins v. Day, 12 Q. B. D. 110, 1883; Attorney-General v. Brighton and Hove, &c. Association, 1900, 1 Ch. 276. So exhibiting effigies at a window, and thereby attracting a crowd. Carlile, 6 C. & P. 636, 1834; Lewis, Law Times Newspaper, Dec. 17, 1881. Ploughing up a footpath is a nuisance, Griesly, 1 Vent. 4, 1669; Wellbeloved on Highways, 443, both on the ground of inconvenience to the public, and of injuring the evidence of their title by obliterating the route; but there may be a limited dedication of a footpath subject to the right to plough it up. But where the verdict was that a coffee-stall was an obstruction, but that it did not appreciably interfere with the traffic,' the C. for C. C. R. held that this was not the finding of a nuisance: c. q. Bartholomew, 1908, 1 K. B. 554; 77 L. J. K. B. 275; 72 J. P. 79; 21 Cox C. C. 556; 24 T. L. R. 238: C. C. R.

Liability for authorising others—servants] Where some defendants were householders, and one defendant was a company (employed by those householders), established to light the streets of a town with gas, and had, without statutory authority, opened a trench in one of the streets to lay down their mains along the middle, and this had been done under contract with the town commissioners for lighting the streets, who exercised their statutory authority to confer on them the right to dig up the soil, &c. for their purposes, and they also had with all necessary consents dug and broken the soil to supply gas to private houses, and it was admitted that they had used reasonable despatch in laying down the pipes and restoring the road, but during the execution of the works the street was impassable, it was held, that inasmuch as the acts of defendants were in no respect done in the necessary or proper use of the highway, they were guilty of a nuisance, and a householder who had employed them was convicted with them. Longton Gas Company, 29 L. J. M. C. 118; 8 Cox C. C. 317, 1860: Q. B.; cf. Ellis v. Sheffield Gas Consumers' Company, 2 E. & B. 767; 18 Jur. 146, 1853. See also Medley, 1834, and Train, 31 L. J. M. C. 169; 9 Cox C. C. 180, 1862: Q. B.

Rivers, &c.] Where defendant's workmen stacked the refuse of the colliery so as to obstruct a navigable river, it was held that defendant's orders to the contrary and his absence-due to old agefrom personal superintendence did not relieve him from liability.

Stephens, L. R. 1 Q. B. 702; 35 L. J. Q. B. 251; 10 Cox C. C. 340, 1866; see Introduction, above, and Appendix, Agency.

The obstruction of a navigable river is likewise a public nuisance, as by diverting part of the water, whereby the current is weakened, and made unable to carry vessels of the same burthen as before. Hawk. P. C. 1, 75, 11.

The building of a bridge partly in the bed of a navigable river will be a nuisance if it obstruct the navigation, but not otherwise. Betts, 16 Q. B. 1022; 4 Cox C. C. 211, 1850. See also York and North Midland Ry. Co. v. R. (in error), 7 Railw. Cas. 459, 1852. In Russell, 3 E. & B. 942; 23 L. J. M. C. 173, 1854, the jury found that an embankment, although a nuisance, was not sufficiently so to render the defendant criminally liable,' on which the judge directed an acquittal, and the Q. B. held, that the jury must be understood as finding that the obstruction in question was so insignificant as not to constitute a nuisance, and refused to disturb the verdict. But if a vessel sink by accident in a navigable river, the owner is not indictable for not removing it. Watts, 3 Esp. 675, 1798. Where on an indictment for erecting and continuing piles and planking in a harbour, and thereby obstructing it and rendering it insecure, a special verdict was found, that by these works the harbour was in some extreme cases rendered less secure; it was held, that the defendant was not responsible criminally for consequences so slight, uncertain and rare,' and that'not guilty' must be entered. Tindall, 6 A. & E. 143, 1837.

Public benefit] On an indictment for erecting an embankment in a navigable river, viz. the harbour of Cowes, the jury found that the embankment was a nuisance,' but was for the public benefit. It was held by the K. B. that this finding amounted to 'guilty,' and that it is no defence that although the work be in some degree a hindrance to navigation, it is advantageous, in a greater degree, to other uses of the port. Ward, 4 A. & Ě. 384, 1836; see L. Grosvenor, 2 Stark. 511, 1819; Morris, 1 B. & Ad. 441, 1830; Randall, Car. & M. 496, 1842; and Atty.-Gen. v. Terry, L. R. 9 Ch. App. 423; 1873, per Jessel M.R. Where the crown has no right to obstruct the whole passage of a navigable river, it has no right to erect a weir to obstruct a part, except subject to the rights of the public, and therefore the weir would become illegal on the rest of the river being so choked that there could be no passage elsewhere. Williams v. Wilcox, 8 A. & E. 314, 1838. See The United Kingdom Electric Telegraph Co.; Train, above; and this title under Nuisance.

Statutory authority-railways] By an A. reciting that a railway between certain points would be of great public utility, and would materially assist the agricultural interest, &c., power was given to a company to make such railway according to a plan, &c. By a subsequent A. the company or persons authorised by them were empowered to use locomotives. The railway was made parallel and adjacent to an ancient highway, at some points within five yards of it. It did not appear whether or not the line could have there been made at a greater distance. The engines frightened the horses on the highway. On an indictment it was held, that this interference with the rights of the public must be taken to have been contemplated and sanctioned by the legislature, since the words of the statute authorising the use of

the engines were unqualified. Pease, 4 B. & Ad. 30, 1832; Canadian Pacific Ry. Co. v. Roy, 1902, A. C. 220; 71 L. J. P. C. 51.

But where a railway company are authorised by A. to obstruct roads only on conditions which they have not performed, they may be indicted for a nuisance on the old highway. Scott, 3 Q. B. 543, 1842, where Maule J. laid it down that the company were not bound to go to an enormous disproportionate expense to secure absolutely the same convenience as before, if the difference was slight, and left the point to the jury; cf. Bartholomew, &c., above; and see Rigby, 14 Q. B. 687, 1850.

So also where water authorities or others interfere lawfully with the highway, they are bound to see that they do not create a nuisance. White v. Hindley, L. R. 10 Q. B. 219; 44 L. J. Q. B. 114, 1875; Blackmore v. Mile End Old Town, 9 Q. B. D. 451; 51 L. J. Q. B. 496, 1882; Thompson v. Brighton, Mayor of, 1894, 1 Q. B. 332; 63 L. J. Q. B. 181; 58 J. P. 297: C. A. Cf. Longton Gas Co., above, and Hill v. Met. As. Manrs.

Where an A. authorises alterations, they must be made with reasonable care, and a nuisance must not be kept up an unreasonable time; otherwise the contractor is liable to be indicted for obstructing the highway. Burt, 11 Cox C. C. 399, 1870.

Numbers walking abreast] If 'roughs and rowdies annoy respectable people' this way they may be indicted for a nuisance: per Field J., Long, &c., 52 J. P. 630; 59 L. T. 33, 1888.

Necessity] It not unfrequently becomes a question, whether an obstruction is justifiable by the necessity of the case, as when it occurs in the usual and necessary course of any one's lawful business. A timber-merchant occupied a small yard close to the street, and owing to its smallness he was obliged to deposit logs in the street, and to saw up there. L. Ellenborough said, 'If an unreasonable time is occupied in the operation of delivering beer from a brewer's dray into the cellar of a publican, this is certainly a nuisance. A cart or waggon may be unloaded at a gateway, but this must be done with promptness. So of the repairing of a house; the public must submit to the inconvenience occasioned necessarily in repairing the house; but if this inconvenience be prolonged for an unreasonable time, the public have a right to complain, and the party may be indicted for a nuisance. . . He is not to eke out the inconvenience of his own premises by taking the public highway into his timber yard; and if the street be narrow, he must remove to a more commodious situation for carrying on his business.' Jones, 3 Campb. 230, 1812; Fritz v. Hobson, 14 Ch. D. 542; 49 L. J. Ch. 321, 1880. So although a person who is rebuilding a house is justified in erecting a hoarding in the street, which serves as a protection to the public, yet if it encroach unreasonably on the highway, it is a nuisance: per Eyre C.J. in Bush v. Steinman, 1 Bos. & Pul. 404, 1799; and per Cockburn C.J. in Longton Gas Co., above; cf. Russell, 1854. Cf. Hoare v. Kearley, 1 T. L. R. 426, 1885.