in which the locus in quo was a private way; and it was endeavoured, but without success, to establish this right of traversing the adjoining land, upon the plea of necessity. Lord Ellenborough, in delivering the judgment of the Court, said, "The question intended to be agitated upon this record is, whether, in the case of a private way, the grantee may break out and go extra viam if it be impassable, as in the case of a public way. As to that, I consider Taylor v. Whitehead has settled the distinction, that the right of going on the adjoining land extends not to private as well as public ways. And there may be many reasons, in the case of highways, why the public should have an outlet; because it is for the public good that a passage should be afforded to the subjects at all times. But the same necessity does not exist in the case of a private right. Whoever will look to Serjeant Williams's note to Pomfret v. Rycroft (a), will find both the law upon the subject, and the manner of pleading a way of necessity, very accurately detailed. It is a thing founded in grant, and the grantor of a private way does not grant a liberty to break out of it at random, over the whole surface of his close. It is established law, that the grantee of a private road cannot break out of it."

(a) 1 Saund. 323, note 6.

become impassable, or even dangerous to be travelled over, or incommodious, the public have a right to go upon the adjacent ground; and it makes no difference whether it be sown with grain, or not (a).

And indeed it hath been holden, that if there be an highway in an open field, and the people have used, time out of mind, when the way was bad, to go by outlets on the land adjoining, such outlets are parcel of the way; for the king's subjects ought to have a good passage, and the good passage is the way, and not only the beaten track; from whence it follows, that if such outlets be sown with corn, and the beaten track be foundrous, the king's subjects may justify going upon the corn (b).

And in one case it was held, that where a man incloseth, and doth not make a good way, (as in such a case he is bound to do by reason of the inclosure) it is lawful for passengers to make gaps in his hedges to avoid the ill way; so that they do not go further into his inclosed grounds, than is needful for avoiding the bad way. This, it may be observed, was the case of a footpath (c).

But this privilege of going over the adjoining land, if the way be impassable or foundrous is confined to highways; and the grantee of a private way cannot take advantage of any such liberty. This was decided by the case of Taylor v. Whitehead (d). And that decision is confirmed by the late case of Bullard v. Harrison (e);

in which the locus in quo was a private way; and it was endeavoured, but without success, to establish this right of traversing the adjoining land, upon the plea of necessity. Lord Ellenborough, in delivering the judgment of the Court, said, "The question intended to be agitated upon this record is, whether, in the case of a private way, the grantee may break out and go extra viam if it be impassable, as in the case of a public way. As to that, I consider Taylor v. Whitehead has settled the distinction, that the right of going on the adjoining land extends not to private as well as public ways. And there may be many reasons, in the case of highways, why the public should have an outlet; because it is for the public good that a passage should be afforded to the subjects at all times. But the same necessity does not exist in the case of a private right. Whoever will look to Serjeant Williams's note to Pomfret v. Rycroft (a), will find both the law upon the subject, and the manner of pleading a way of necessity, very accurately detailed. It is a thing founded in grant, and the grantor of a private way does not grant a liberty to break out of it at random, over the whole surface of his close. It is established law, that the grantee of a private road cannot break out of it."

(a) 1 Saund. 323, note 6.

CHAPTER III.

HOW A HIGHWAY MAY ORIGINATE.

A HIGHWAY, as has been shewn, is that which is open to be traversed by all the king's subjects. This right of passage depends, usually, upon possession: and whenever the possession has become general, the public are at liberty, by law, to avail themselves of the way, without any specific grant from the owner of the soil. It is reasonable that public rights should be more easily acquired, than such as belong only to individuals; and that the same documentary evidence should not be necessary to their support. The publicity, which must always attend the usage of any privilege by the people at large, renders needless those rules as to writings and investiture, which have been established to make certain and to free from fraud the transfer of private property. Yet even with regard to such property, adverse possession, for a prescribed length of time, is a legal bar to outstanding claims, if they remain so long unprosecuted. It is not, then, unjust that the public shall, after a still shorter period of unmolested enjoyment, become absolutely fixed in the possession of their privileges, in consequence of the greater notoriety of their proceedings.

And it should seem, that this uninterrupted possession is the only mode, at the common law, by which the public can acquire a right of way. For though it is stated in some of the books, that a way may originate by licence

whether an entirely new way could ever be created by such a proceeding. This writ appears to be calculated only for the purpose of changing and diverting highways; and can hardly be applicable to the acquisition of a right of way, where there is no previously existing one to be given in exchange for it. What party is there to sue out the writ? or what return can be made to it? Instead of being able to certify that no loss would ensue the proposed measure, the fact is, that it must be injurious to the property over which the way is to pass, and ought to be so stated on the return. On the other hand, it must be a clear gain to the public, and would not require so complicated a procedure to prove it.

We may conclude, therefore, that the title to all highways must be derived from one or the other of the two following sources:-1st, From custom, usage, or possession, as above described: or 2dly, From that all-powerful instrument, an Act of Parliament.

FIRST.-The principal mode of acquiring a public right of way is by uncontested possession. The public, as a body, have no purchasing power; even a parish is unable to become a party to a contract, and can, therefore, enter into no agreement as to the sale of a right of way: and even if such were not the case, they are possessed of no funds, which, under the common law, could be applied to such a purchase. Hence the motive for the cession of a right of way by the owner of the soil, must be supposed to proceed from himself, and not from the public: and that which is, in point of fact, acquired by adverse possession, is considered by the law as emanating from the bounty and free-will of the proprietor; although it