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The Law

RELATING TO

HIGHWAYS.

CHAPTER I.

ON THE NATURE AND QUALITIES
OF A HIGHWAY.

THE object of this Chapter will be to prove that the proper definition of a Highway is, "Any thoroughfare which is open to all the king's subjects;" and, in order to accomplish this end, two points must be established; 1st, That there is no distinction, in this respect, between a carriage road, a horse road, or a mere foot-path, each of which is equally considered by the common law as capable of being a highway; and 2dly, That there can be no highway where there is no thoroughfare.

FIRST.-All ways, whether foot, horse, or carriageways, may be highways.

And here it is worthy of notice, how the original title of the public to passage along a highway must have arisen, in order to see that no distinction, such as that which has been attempted to be drawn between carriage roads and mere foot and horse paths, is deducible from the mode in which the public first acquired their right. It seems evident that a public right of way of every description must, of necessity, have had its source from usage or custom, or, in other words, from prescription alone. We are told that under the feudal system, in the dominions of every lord, a toll was to be paid in passing his bridge, or along his highway, or at his market. Now the same prescription, which would give to the lord his right of toll, would also secure to the public their right of passage: nor could the lord recal from the public the privilege which they had acquired. Some of the books, indeed, assert it as a matter of necessary implication, that a right of way has always originated in proceedings upon writ of ad quod damnum. That writ, however, appears to be applicable only to the purpose of changing the course of an already existing road; and it is difficult to conceive how it could be of use for the creation of a new way. But whether a highway may originate in proceedings upon writ of ad quod damnum, or the right could at first be acquired only by usage and prescription, there appears to be no variance between the case of a carriage road, and one which is confined to foot or horse passengers; and it is hoped that the following pages will shew, that in most respects, indeed in every respect, except where by particular statutory enactments it is otherwise provided, the principles of the law are applicable alike to every kind of public way.

Lord Coke says (a), there are three kinds of ways1st, A foot way, called in Latin iter-2d, A pack and prime way, which is both a horse and foot way, called in Latin actus-3d, A cart way, called in Latin via or aditus, which contains the other two, and also a cart way; and is called via regia if it be common to all men; and communis strata if it belong only to some town or private person. Now, notwithstanding the above distinctions laid down by Lord Coke, it seems that any of the said ways, which is common to all the king's subjects, may properly be called a highway; and therefore, that horse and foot paths, as well as the most comprehensive kind of way, are distinguishable into two classes :-1st, Of public ways or highways; and 2d, Of private ways. And though this is a point which will scarcely be disputed among lawyers, yet the public in general do not seem to be fully aware of it. And the uncertainty in this respect must have been strengthened by the careless wording of the late Highway Acts (a); by the framers of which the true definition of a highway has not been properly attended to. There, as we shall see in the further progress of this treatise, the expressions "Footway" and "Bridle-way" appear to be used almost in contradistinction to that of " Highway"; whereas the latter term being, of itself, sufficient to comprehend all public ways whatsoever, ought to have been allowed its full legal force, instead of being used in the more confined and vulgar meaning of a turnpike or great carriage road. I shall now, therefore, endeavour to shew, from the following authorities, that the term "Highway" is applicable to all public ways for horse and foot passengers.

In the case of Regina v. Saintiff (b) Lord Holt says, that the word "Highway" is the genus of all public ways, as well cart, horse, and foot-ways. And in Madox's case (c), an indictment which was presented against the party for a nuisance committed on a horse-way, was reversed, because it ought to have been stated to be on the

(a) See especially 55th Geo. 3.

c. 68.

(b) 6 Mod. Rep. 255. (c) Cro. Eliz. 63.

Queen's Highway, or the Highway. So a bridge may be a common highway (a). And a river that is common to all the king's subjects, has in several cases been held to be a highway; and it has been determined, that if the course of a river change, that river being a highway, the highway itself is diverted into the new channel (b); a privilege which the law allows of only in the case of public ways: for in regard to private ways, if the path become impassable, the owner of the right of way is not at liberty to pass over the adjoining land; which he might have done, had it been a public way; as we shall see in the course of the following pages.

In Rex v. Inhabitants of Limehouse (c), where a presentment was made at a court leet, for not repairing a certain pair of stairs leading to the Thames, several exceptions were taken to the form and manner of presentment, but the Court would not quash it, because it was for not repairing the Highway: and therefore the proper mode of action had been pursued for enforcing the repair thereof. Thus also in Thrower's case (d) an indictment was laid against the party for stopping up a common footpath. Now the remedy by indictment, or presentment in the Leet, is peculiar to highways, and cannot be had recourse to in the case of a private way, for any obstruction of which the proper proceeding is by action on the case. Nor will either mode of proceeding be permitted in the case to which it is not appropriate (e). And the instances are numerous, in which indictments have been laid for not repairing a highway, where the locus

(a) 2 Ld. Raym. 1174; and see Salk. 359, pl. 8. and 6 Mod. 255. (b) 22 Ass. 93.-Roll. Ab. 390. 1 Ld. Raym. 725. and Rex v. Ham

(c) 2 Show. 455, pl. 412.
(d) 1 Ventr. 208.

(e) See post, and also Regina v. Inhabitants of Cluworth, Salk.

in quo has been a footway. And there are many cases throughout the Reports, in which public footways are pleaded as highways, without any demurrer being ever made to such a mode of pleading. I shall content myself with mentioning one of the latest cases of the kind which I have noticed, and that is the case of Logan v. Burton (a).

From all these decisions it may be pretty clearly deduced, that the term "Highway" extends to all public ways. And this doctrine is fully confirmed by the modern case of Allen v. Ormond (b), in which the plaintiff brought an action against the defendant for obstructing his private right of way over a certain close, "unto and into a certain public king's highway in the parish aforesaid, and so back again." It appeared that this public highway was a footway; and it was objected, that the terminus ad quem described in the pleadings, being a public highway, which is nomen generalissimum and must be taken to be a highway for all purposes, was not proved by evidence of a common footway only. This and other objections being over-ruled at the trial, were again urged upon a motion for a new trial. But The Court said, "They held the terminus ad quem laid to be well enough proved by evidence of a public footway; for it was a public highway for foot passengers; though such a description might be bad upon special demurrer, as not pointing out with sufficient certainty what sort of highway was meant."

And a similar opinion is delivered by Lord Ellenborough, in the case of Rex v. The Inhabitants of the County of Salop(c), where his Lordship observes,

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