stead of it, without first suing out a writ of ad quod damnum. And the Court held, that he could not let down the ferry and put up a bridge without licence and an ad quod damnum. So in Hind v. Mansfield (a), the defendant was fined £200 for diverting part of the River Thames, by which he weakened the current of the river, to carry barges, &c. towards London, and other houses of the King upon that river; and such a thing cannot be done without an ad quod damnum, because that river is an highway. In Ex parte Armitage and others (b), Lord Hardwicke says, "In all cases of writ of ad quod damnum, whether to change an old way for a new one, or to alter the condition of a way, the new way, or way so altered, must be, to all intents and purposes, as beneficial to the King and subjects as the old way was before." In that case a writ of ad quod damnum had been obtained "to lay down timber, wood, and other materials for a waggon-way," on an already existing way. And, for the want of an equivalent to the public, the writ was quashed upon motion before the Lord Chancellor. But the finding under a writ of ad quod damnum favorable to those at whose instance it has issued, is traversable; it is not conclusive in their favor; it is not a bar to an indictment for a nuisance. The jury by whom such an indictment is to be tried, have a right to exercise their own judgment upon the matter, and may find that to be a public nuisance, which, under this writ, may have been found not to be to the prejudice of his Majesty's subjects (a). (a) Noy, 103; and see the Case of the Isle of Ely, 10 Rep. 141, where it seems to be held, that the Commissioners of Sewers of a public river; and see per This process by writ of ad quod damnum is, at the present day, almost disused; and has given place to the form of proceeding ordered by the Statutes 13 Geo. 3. c. 78, and 55 Geo. 3. c. 68, which will afterwards be detailed. I shall only mention, with regard to the old proceeding, that the writ of ad quod damnum is an original writ, issuing out of and returnable into Chancery, directing the sheriff to inquire by a jury, whether such change will be detrimental to the public: which inquisition, being a proceeding only ex parte, is, as has been already observed, in its own nature traversable; and heretofore the party grieved might be heard against it before the Chancellor. But now by the 3d section of Stat. 55 Geo. 3. c. 68, Any person or persons injured or aggrieved by the inclosure of any road or highway by virtue of any inquisition, taken upon any writ of ad quod damnum, may make his or their complaint thereof by appeal to the justices of the peace at the said Quarter Sessions (b), upon giving ten days' notice in writing of such appeal to the surveyor of the highways of the parish, township, or place, wherein such highway, bridleway, or footway shall be situated; and also affixing such notice to the door of the church or chapel of such parish, township, or place; and the said Court of Quarter Sessions is thereby authorized and empowered to hear and finally determine such appeal. (a) See 6 B. & C. 600, per Ld. Tenterden, C. J. in the case of Rex v. Russell. shall be holden within the limit where the highway, so inclosed, shall lie. In the case of Rex v. The Justices of Essex (a), it was decided, that upon an appeal against the inclosure of a highway by virtue of a writ of ad quod damnum, it is incumbent upon the party to give the notices required by this 3d section; and that a notice to the party interested is not alone sufficient. Lord Ellenborough, C. J. said " I cannot engender or innoculate my mind with any doubt on this subject. The 3d clause of 55 Geo. 3. c. 68, specifically combines together the two cases of roads stopped up by order of magistrates, and by virtue of a writ of ad quod damnum, and requires in both cases the same notices to be given." The said Sessions. In the above case, Lord Ellenborough, C. J. said, "The 'said Quarter Sessions,' refer to the Quarter Sessions, meeting at a particular place, and having jurisdiction within the limits where the highway stopped up may happen to lie;" and per Bayley, J. "The words 'said Sessions' only refer to the Sessions for the county in which the road stopped up is situate." It should seem, that the notices required by the 2d section of the above Act, cannot apply to the proceeding by writ of ad quod damnum, and therefore that the limitation of time within which any appeal may be lodged against an inquisition under that proceeding, remains unaltered. Therefore, the appeal must be made at the Sessions next after the inquisition taken and entered and recorded (a). And where an appeal was delayed until the next Sessions after the inclosure made by virtue of an inquisition upon writ of ad quod damnum, it was considered to be too late (b). After the change of the road is accomplished, under this proceeding, and the new road is made and put into proper order, the parishioners are liable to its repair, as they previously were with regard to the old way. But if the new road lie in another parish from that in which the other was situate, then the person who sued out the writ must keep it in repair (c). A highway may be changed by the act of God. Therefore, it hath been holden, that if a water, which has been an ancient highway, by degrees change its course, and go over different ground from that whereon it used to run, yet the highway continues in the new channel, in the same manner as in the old (d). In Com. Dig. Chimin. (A. 1.) it is said, "A navigable river is in the nature of a highway, and if the water alters its course, the way alters; per Thorp, 22 Ass. 93." This case cited by Comyn is mentioned by Holroyd, J. in the case of Rer v. Mountague (e), where it is thus stated -" et nota, Thorpe, J. saith, if a water be a high street, which water by its own force changes its course upon another soil, yet it shall have there the same high street as it had before in its ancient course, so that the lord of the soil (a) Provided there be sufficient time to give the requisite notices-if not, then at the sncceeding Sessions. See 13 Geo. 3. c. 78. s. 19. Bucks, 2 M. & S. 230. (d) See Cro. Car. 267.-1 Roll, Abr. 390; and Hawk, P. C. c.76. 5.4. cannot disturb the new course," which is not merely the dictum of Thorp, J. but he states it to have been so held in the case of Nottingham. In the above mentioned case of Rez v. Mountague, it was held that a public right of navigation in a river or creek may be extinguished by natural causes, such as the recess of the sea, or an accumulation of mud, &c. In allusion to the case then before the Court, Bayley, J. said, "Most probably the rights of the public, if they ever had any, arose from the flux and reflux of the tides of the sea, so as to make the channel navigable. If then the sea retreated, or the channel silted up, so as to be no longer navigable, why should not the public rights cease? If they arose from natural causes, why should not natural causes also put an end to them?" SECTION II. As to the diversion and extinction of highways under Acts of Parliament. Besides the methods already stated, ways are sometimes changed or stopped up, and new ones created by Turnpike Acts, Inclosure Acts, or other Acts of Parliament, containing specific enactments for such purposes. But such ways may or may not be public, according to the provisions of the particular Acts. And it has been decided, that where a road was set out by commissioners under an Inclosure Act as a private road, for the use of the inhabitants of nine parishes, directing the inhabitants of six of those parishes to keep it in repair, the number of persons using or repairing it would not make |