dent, they were liable for that misfeasance; but if they constructed the sewer properly in the first instance and it became defective afterwards they were not bound to repair it; and further, that if the defective state in which the drain was, arose from the operation of the weather, or wear and tear, it having been properly constructed originally, they were not liable. Verdict for defendants:-Held, on motion for a new trial, that as regards (b) there was misdirection. The barrel drain was not only made by the defendants, but the sole control and management of it were by the statute vested in them. By reason of their construction of that drain and their neglect to repair it, whereby, as an indirect but natural consequence the dangerous hole was formed, which was left open and unfenced, they caused a nuisance in the highway for which, whatever their statutory obligation to repair may have been, they were liable to an indictment, and also to an action by the plaintiff, who had sustained direct and particular damage from their breach of duty. Bathurst (Borough) v. Macpherson, 48 L. J., P. C. 61; 4 App. Cas. 256.

A local board, being the highway authority of the district, are not liable for damages caused to a person in consequence of the highway being out of repair where such non-repair is a mere non-feasance. Cowley v. Newmarket Local Board, 62 L. J., Q. B. 65; [1892] A. C. 345; 1 R. 45; 67 L. T. 486; 56 J. P. 805-H. L. (E.) S. P., Pictou Municipality v. Geldert, 63 L. J., P. C. 37; [1893] A. C. 524; 1 R. 447; 69 L. T. 510; 42 W. R. 114-P. C. Sydney Municipal Council v. Bourke, 64 L. J., P. C. 140; [1895] A. C. 433; 11 R. 482; 72 L. T. 605; 59 J. P. 659-P. C.

1

P. C. 1; [1897] A. C. 111; 75 L. T. 633; 61
J. P. 436-H. L. (Sc.)

The appellant sued for an interdict to prevent the respondents from continuing the prac tice of sweeping away the snow from their tramway-rails, and sprinkling salt on the snow in order to melt it in such a way as to cause a nuisance. The court of session refused the note of suspension and interdict on the ground that the local authority, to which was entrusted the duty of seeing that the streets were cleared in such an emergency as a snowstorm, had approved the method adopted by the respondents. The house remitted the case to the second division of the court of session to pronounce decree of interdict. Ib.

Improper User.]-A waggoner, occupying one side of a street in a city, before 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 footpassengers were incommoded by cumbrous goods lying on the ground, on the same side, ready for loading, is indictable for a public nuisance; though there was room for two carriages to pass on the opposite side of the street. Rer v. | Russell, 6 East, 427; 2 Smith, 424; 8 R. R. 506. An indictment lies for keeping stage-coaches in the street beyond a reasonable time necessary for loading and unloading. Rex v. Cross 3 Camp. 224; 13 R. R. 794.

An indictment lies for sawing timber in the public street, though solely done for the purpose of enabling the defendant to get it into his yard. Rex v. Jones, 3 Camp. 230; 13 R. R. 797.

Nor is a board, which has vested in it both the highways and sewers of a district, liable for an An indictment lies for setting a person in the injury caused by the projection of a sewer footway of the public streets in London, to grating beyond the road surface, if the grating is deliver out printed bills of the defendant's ocin proper repair and condition, and the accidentcupation, whereby the footway was greatly is attributable solely to the non-repair of the obstructed. Rex v. Sarmon, 1 Burr. 516. highway. Cowley v. Newmarket Local Board supra, followed. Oliver v. Horsham Local Board, 63 L. J., Q. B. 181; [1894] 1 Q. B. 332; 9 R. 111; 70 L. T. 206; 42 W. R. 161; 58 J. P. 297-C. A.

Nor where the roadway is out of repair owing to the negligence of a company having statutory powers to break up the roadway. Barham v. Ipswich Dock Commissioners, 54 L. T. 23.

Spiked Wall Abutting on Highway.]-Where the evidence shows that an injury might have been caused to a person passing along a highway by a public nuisance existing thereon, a jury is entitled to infer that such injury was the result of the nuisance, and that the plaintiff had not been guilty of contributory negligence. Fenn v. Clare, 64 L. J., Q. B. 238 ; [1895] 1 Q. B. 199; 15 R. 220.

Snow Heaps-Melting with Salt-Approval by Highway Authorities.] Although road authorities are invested with large discretionary powers in regard to the cleaning of streets and the regulation of traffic, and a court of law would decline to interfere with a due exercise of that discretion, they have no power or discretion in the case of a nuisance, which the legislature has not expressly or by necessary implication sanctioned, either to commit it themselves or to authorise its commission by others. Ogston v. Aberdeen District Tramways, 66 L. J.,

An indictment does not lie for obstructing a highway by the holding of a fair or a market, if there has been an uninterrupted custom for twenty years. Rex v. Smith, 4 Esp. 109; 6 R. K. 842. See Rex v. Canfield, 6 Esp. 136.

Causing Crowd to Collect.]-See ante, col. 201.

Steam-roller.]-Where a steam-roller, though lawfully on the highway, constitutes a nuisance, the owners are liable for damage caused thereby though they have not been guilty of any negligence. It is a question for the jury in each case whether a steam-roller was or was not a nuisance on the occasion complained of. Jeffery. v. St. Pancras Vestry, 63 L. J., Q. B. 618; 10 R. 554.

Traction Engine.]-Persons using a traction engine and trucks on a highway may be indicted for a nuisance, if they create a substantial obstruction and occasion delay and inconvenience to the public substantially greater than such as would arise from the use of carts and horses. Reg. v. Chittenden, 15 Cox, C. C. 725; 49 J. P. 503.

Buildings and Fences beyond Prescribed Line.] -Where a statute prohibits the erection of buildings within ten feet of a road, and directs that the footpaths shall be deemed part of the road, a building erected within ten feet of the

footpath is within the prohibition. Rex v. Gregory, 2 N. & M. 478; 5 B. & Ad. 555; 3 L. J., M. C. 25.

Where a statute enacts, that the erection of a building within certain limits shall be deemed "a common nuisance," and also gives a summary remedy by proceedings before magistrates, the offender may be indicted for the nuisance.

Ib.

A chapel was built encroaching on a highway. On an indictment against the owner of the chapel for obstructing the highway, the jury found that the chapel was partly built on the highway, but that there was no appreciable obstruction to the highway. The judge thereupon directed a verdict of not guilty-Held, that the direction was right. Reg. v. Lepille, 15 L. T. 158; 15 W. R. 45.

The omission to enter a consent verbally given by their clerk, and afterwards ratified by the trustees of a public highway, to a private person, to bring forward a fence on to the highway, so as to straighten the road, does not render the act done under such consent unlawful, and such private person cannot afterwards be indicted for encroaching on the public highway in respect of the act so done. Reg v. Burrell, 16 L. T. 572; 15 W. R. 879; 10 Cox, C. C. 462.

If, after a highway exists, anything is newly made so near to it as to be dangerous to those using it, this will be unlawful and a nuisance. Fisher v. Prowse, 2 B. & S. 770; 31 L. J., Q. B. 212; 8 Jur. (N.S.) 1208; 6 L. T. 711.

If an ancient erection, as a house, is suffered to become ruinous, so as to be dangerous, this is also a nuisance. Ib.

Presumption of Dedication.] But where an erection or an excavation, not otherwise unlawful, exists at the time the highway is dedicated, the dedication is made to the public and accepted by the public, subject to the inconvenience. Ib.

reason that they had, since the negotiations commenced, acquired the fee of another part of the road. On the spot of which the defendants thus claimed the fee was the obstruction, the subject of the indictment. Evidence was given that the spot on which the obstruction now was made had been part of an estate settled in strict settlement in 1823 on a tenant for life, with power to grant building leases, and for the trustees of the settlement to sell with the consent of the tenant for life. The first tenant in tail was still at the time of the trial an infant. The tenant for life being called as a witness, said that in 1828 the whole of this property had been sold by his trustees, and he had had nothing to do with it since. The judge left it to the jury to say whether they would infer a dedication in 1829 from whoever was the owner of the fee, and they gave a verdict for the crown-Held, a proper direction, for open user as of right by the public raises a presumptive inference of dedication requiring to be rebutted; and the statement of the defendants, that they acquired the fee in 1853, coupled with the evidence of the tenant for life that he had not had anything to do with it since 1828, was evidence that the fee was in 1829 not subject to the settlement, so that there was nothing to rebut the primâ facie inference of dedication in 1829, arising from the public user as of right in that year. Reg. v. Petrie, 4 El. & Bl. 737; 3 C. L. R. 829; 24 L. J., Q. B. 167; 1 Jur. (N.S.) 752; 3 W. R. 243; 6 Cox, C. C. 512.

In an action for an injury to the wife of the plaintiff through the negligence of the defendant, in leaving a vault or a cellar open on his own premises unfenced, whereby she fell in and was injured, the evidence was that persons were in the habit of going across the spot where the vault was, for the purpose of making a short cut from a street to the main road by avoiding an angle; but that the owner of the premises, as often as he saw them, turned them back :-Held, no evidence of a public way. Stone v. Jackson, 16 C. B. 199.

M. was convicted, under 5 & 6 Will. 4, c. 50, s. 72, for destroying and injuring the surface of a In Building Bridges.]-A bridge built in a highway, by ploughing it up. It appeared that public way, without public utility, is indictable a footway ran through a field of which the defen- as a nuisance, and so it is if built colourably dant was occupier. There was no evidence of the in an imperfect or an inconvenient manner, with existence of this footpath before living memory, a view to throw the onus of rebuilding or repairand no evidence of any limited dedication of the ing it immediately on the county. Rex v. Yorkway to the public. It was proved, however, that shire W. R. JJ., 2 East, 342; 6 R. R. 439. within living memory it had been used as a foot-And see Rex v. Glamorgan, 2 East, 356, n.; 6 R. way by the public, and that M. and the previous R. 450, n. occupiers had, during all that time, ploughed it up in the manner complained of :-Held, that Water Dripping from Bridge on Road.]-A the conviction was wrong, for the proper infer-railway company was the owner of a railway ence from the facts was, that the existence of the right of ploughing up the path had been coeval with the user of the way by the public, and the way must therefore be considered as having been dedicated to and accepted by the public, subject to the inconvenience of being occasionally ploughed up, and there was no legal objection to such a limited dedication of a way. Mercer v. Woodgate, 39 L. J., M. C. 21; L. R. 5 Q. B. 26; 21 L. T. 458; 18 W. R. 116.

Indictment for obstructing a highway. On the trial it appeared that the highway had been laid out as a projected street in 1827, and de facto used as a highway till 1836, when the defendants began to obstruct it, and finally enclosed a portion of the road. The owners of the greater part of the soil brought ejectment, and had agreed to open the road; but finally, in 1853, broke off the negotiations, assigning as their

bridge over a highway. The rain-water collected on the bridge, and, running through the planks, dripped on to the highway and on persons using the highway. The company was summoned, under 18 & 19 Vict. c. 121, s. 12, for allowing a nuisance to exist on their premises, and the justices ordered its abatement:-Held, that the act, being a sanitary act, applied only to such nuisances as were injurious to health; and that, as the nuisance complained of was not injurious to health, the justices were wrong in ordering its abatement. G. W. Ry. v. Bishop, 41 L. J., M. C. 120; L. R. 7 Q. B. 550; 26 L. T. 905; 20 W. R. 969.

Encroachment on Banks.]-An encroachment on the banks of a navigable river is not neces sarily a nuisance; but the jury ought on the facts of the case, to say whether the public are in any way inconvenienced, for if they are not, then it is not a nuisance. Rex v. Shepard, 1 L. J. (0.s.) K. B. 45; 25 R. R. 559.

their power, it should be found necessary to raise, | mation in equity lies to abate it. Att.-Gen, v. sink, or deepen a road, so as to make it impass- Richards, 2 Anstr. 603; 3 R. R. 632. S. P., able or inconvenient, the company should, before Att.-Gen. v. Cleaver, 18 Ves. 211. any such act, cause a sufficient road to be set out And in the river Thames. Att.-Gen. v. as convenient as the road cut through, or as near Johnson, 2 Wils. Ch. 87. thereto as might be. The company having encroached on an old road without making a new one-Held, indictable for a nuisance, and that it was no answer thereto that the state of the earth rendered it impracticable to make a new road. Reg. v. Scott, 2 G. & D. 729; 3 Q. B. 513; 3 Railw. Cas. 187; 11 L. J., Q. B. 254; 6 Jur. 1084. A proprietor of a colliery made a railroad from it to a sea-port town. The railroad was 400 yards long, and was laid upon a turnpike road, which it narrowed so far that in some places there was not a clear space for two carriages to pass. He allowed the public to use his railroad, paying a toll:-Held, that the facility thereby given to the general traffic with the sea-port, and particularly to the conveyance of coals thither, was not such a conveyance as justified the obstruction of the highway. Rex v. Morris, 1 B. & Ad. 441; 9 L. J. (0.s.) K. B. 55.

Tramways.]-By an act of parliament an ancient highway running over land, the property of S., was made turnpike. On each side of the road, after the act, collieries were worked by S., and he had from time to time made railways and tramroads across the highway for the conveyance of the coals to and from the collieries, and to an adjoining navigable river. Subsequently a new turnpike act passed for repairing the same highway. After the passing of this act, S. continued one of the former tramroads and made new rail and tramroads across the highway for the same purpose as before. By a clause in this act, a penalty recoverable on summary conviction was imposed on any person who should make a rail or tramroad upon or across the turnpike road without the consent of the trustees or legal authority, or should continue such rail or tramroad after such consent should be withdrawn. On an indictment against S. for a nuisance in making and continuing one of his railroads after the passing of the last-mentioned act :-Held, that such making and continuing were an indictable nuisance, and that no inference to the contrary could be drawn from the facts of the case, or the words of the last act. Reg. v. Charlesworth, 16 Q. B. 1012; 3 Cox, C. C. 174.

Telegraph Posts.]—A permanent obstruction, such as the posts of a telegraph, erected on a highway and placed there without lawful authority, whereby the way is rendered less commodious to the public than before, is an unlawful act, and amounts to a nuisance; and the circumstance that the posts were not placed upon the repaired and metalled part of the highway, nor upon an artificially-formed footpath, but on the waste on each side of the way, makes no difference, even though a jury might be of opinion that a sufficient space for the public use remained unobstructed. Reg. v. United Kingdom Telegraph Co., 2 B. & S. 647, n.; 3 F. & F. 732; 31 L. J., M. C. 166; 8 Jur. (N.S.) 1153; 6 L. T. 378; 10 W. R. 538; 9 Cox, C. C. 174.

An information will lie to prevent any obstruction of navigation, without reference to the quantity of navigation or the amount of damage. Att.-Gen. v. Lonsdale (Earl), 38 L. J., Ch.335; L. R. 7 Eq. 377; 20 L. T. 64; 17 W. R. 219. Two batts, or heaps of stones, made use of in throwing and landing nets, had been used in the Tweed from time immemorial, and although they were admitted to be nuisances now, yet the court could not pronounce that they were so at the time of the erection, but on the contrary, intimated an opinion that the presumption ought to be that at first they were not nuisances. Rex v. Bell, 1 L. J. (0.s.) K. B. 42.

Loading Staiths.]-Upon the trial of an indictment for a nuisance in a navigable river by erecting staiths there for loading ships with coals, the jury were directed to acquit the defendants if they thought that the abridgment of the right of passage occasioned by the erections 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, and the judge 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 would otherwise be, which was a public benefit:Held, that this direction was proper. Rez v. Russell, 6 B. & C. 566; 9 D. & R. 566 ; 5 L. J. (o.s.) M. C. 80; 30 R. R. 432. Contra Att.-Gen. v. Terry, L. R. 9 Ch. 423; 30 L. T. 215; 22 W. R. 395.

Other Erections.]-Indictment for a nuisance by erecting and continuing piles and planking in a harbour, and thereby obstructing it and rendering it insecure. A special verdict found, that by the defendant's works the harbour was in some extreme cases rendered less secure:Held, that the defendant was not responsible criminally for consequences so slight, uncertain and rare, and that a verdict of not guilty must be entered. Rex v. Tindall, 6 A. & E. 143; 1 N. & P. 719; 6 L. J., M. C. 97.

The judge, on the trial of an indictment for obstructing the navigation of the Menai Straits by erecting a wall, asked the jury whether they thought the erection proved a material nuisance, in which case they were to find a verdict of guilty; but told them that if they thought the nuisance was so slight, rare, and uncertain, that the defendant ought not to be made criminally liable for it, they were to acquit him; and on the jury saying that they considered the erection, " although a nuisance, was not sufficiently so as to render the defendant criminally liable." 5. IN HARBOURS OR NAVIGABLE RIVERS. he directed an acquittal :-Held, that the charge was to be understood as meaning, not that a Purpresture.]-Where a nuisance and pur-party may legally commit a small nuisance, but presture in a harbour are committed, an infor- that an obstruction might be so insignificant as

by the plaintiff as to the mode of executing the works, and suspended their execution. While these negotiations were still going on, and before any works were commenced, the plaintiff filed his bill for an injunction, and obtained special leave to give notice of motion, and served the notice of motion. On the day following the service of the notice of motion, the defendants, in order to avoid litigation, passed a resolution at a vestry, at which the plaintiff was present, that the works should be wholly abandoned. After that the plaintiff brought on his motion :- Held, without going into the question whether there would be any nuisance, that under the circumstances the motion was useless and improper, and it was refused with costs. Woodman v. Robinson, 2 Sim. (N.S.) 204.

Obstruction to Road.]-Where, on the trial of an indictment for driving a carriage along, and thereby obstructing, a public footway through a narrow lane, the question was, whether the defendant's private right of carriage-way, preceding the public user and inconsistent therewith, had been released or abandoned, and the jury was directed, that no interruption by the public for a less period than twenty years could destroy the private right, a new trial, for misdirection, was granted, after verdict for the defendant. Reg. v. Chorley, 12 Q. B. 515; 3 Cox, C. C. 262.

In such a case (no actual interruption for twenty years being proved), it is not so much the duration of the cesser to use the private ease. ment, as the nature of the act done by the grantee of such easement, or of the adverse act acquiesced in by him, and the intention in him, which either the one or the other indicates, that is material for the consideration of the jury. Ib.

into the stream was greatly increased, the population of the town having increased nearly onehalf, and the extent of sewers from 250 yards in 1848, to 10,500 yards in 1855; and besides other evidence of that, it appeared that sheep could no longer be washed there, that the fish were all dead, and that the exhalations were noisome. The plaintiff had been in correspondence with the board on the subject of remedying the nuisance until the 19th September, 1855, which was the date of the last communication in which they held out hopes of doing so. The bill and information were filed on the 15th January, 1856-Held, that the practice, leng previous and up to 1848, of a few houses in the town to drain into the river, afforded no ground for the local board setting up a prescriptive right, and that the local board, as a modern corporation, could claim no prescriptive rights. Att.-Gen. v. Luton Local Board, 2 Jur. (N.S.) 180.

Variation of User.]-From 1832 to 1877 the refuse of a fellmongery, and the washings of dyes used in a coloured rag manufactory, had been discharged into a watercourse, which was an arterial drainage work within the jurisdiction of drainage commissioners. In 1878 the fell mongery was abandoned, and the manufacture of leather boards substituted at the same factory. The pollution caused by the discharge of the refuse of the leather board manufactory was less in degree than that caused by the fellmongery. The drainage commissioners convicted the owners of the leather board factory under a section of a local act of polluting the stream, and this conviction was affirmed on appeal to the quarter sessions :-Held, that the conviction must be confirmed, for even if the factory-owners had a prescriptive right to foul the stream, it was as fellmongers, and not as leather board manufacPrescription.]-A declaration stated that the turers; and that there was no authority for plaintiff was possessed of a term of years in a holding that the variation of the user, although messuage, and that he was disturbed in its enjoy-it cast no increased, but even a less burden on ment by a nuisance. The defendants pleaded the servient tenement, enabled the factorythat they were possessed of their workshops and owners to substitute a business of a totally manufactory (the nuisance complained of) for different kind to that originally carried on by ten years before the plaintiff became possessed them, and at the same time claim to maintain of his term. The plaintiff replied that the term, their original prescriptive right to pollute the of which he held the residue, was created four watercourse, even if such right did exist. Clarke years before they were possessed of their work-v. Somersetshire Drainage Commissioners, 57 shops and manufactory-Held, that the plea L. J., M. C. 96; 59 L. T. 670; 36 W. R. 890. was bad; the defendants should have alleged a user for twenty years. Elliotson v. Feetham, 2 Scott, 174; 2 Bing. (N.C.) 134; 1 Hodges, 259.

To declaration for causing offensive stenches to come over the plaintiff's land, a plea that the defendant occupied premises adjoining those of the plaintiff, and for twenty years next before the commencement of the suit enjoyed of right, and without interruption, the benefit of using a mixen on his own premises, near to premises of the plaintiff, and that thereby stenches necessarily arose, is a bad plea, as he does not state that the stenches had for twenty years passed over the plaintiff's land. Flight v. Thomas, 2 P. & D. 531; 10 A. & E. 590; 7 D. P. C. 741; 8 L. J., Q. B. 337; 3 Jur. 822.

A local board carried the whole drainage of the town into an adjacent river, a small stream which, immediately below the town, flowed for three miles through the plaintiff's lands on both sides. The plaintiff was also seised of a mill upon the stream. The quantity of sewage matter thrown

Where Right Gained as to Part.]-A brick-kiln, sufficiently near a dwelling-house to affect it with smoke, is a nuisance, and the owner's prescriptive right to another kiln, nearer to the house and almost in a line with the kiln complained of, cannot be urged as a reason for not granting an injunction. Bareham v. Hall, 22 L. T. 116.

The owners of certain glass works which were erected in 1845, erected in 1847, and subsequent years down to 1863, seven new furnaces, which largely increased the amount of smoke and vapour which was emitted from their works. An owner of property adjoining the works which he and his predecessors in title had enjoyed long antecedent to the erection of the works, had at considerable expense prepared a portion of his estate for building purposes, but in consequence of the smoke and vapours from the glass works he had been unable to let the land for that purpose. Upon a bill filed in March, 1870, for an injunction to restrain the emission of smoke