the road could not have been turned through the churchyard without erecting them. Sed per Ashhurst, J. "As no clause is inserted in the Act which throws the onus of repairs on the trustees, we cannot make them liable," And per Buller, J. "What is meant by the road in the Act is the surface over which the subjects have a right to pass." Persons liable by tenure, &c. to repair old road, shall, in proportion, remain liable to new road.-By Statute 4 Geo. 4. c. 95. s. 68, After reciting, That doubts have arisen and may arise, whether any body politic or corporate, or any particular person or persons, liable to repair, by tenure or otherwise, any old turnpike road, or part of such road widened, altered, diverted, or turned, ought to repair or contribute to the repair of the whole or any part or proportion of the new road set out in lieu of the old turnpike road; for obviating such doubts, and preventing disputes about the same, It is enacted, That all and every body politic or corporate, and person and persons, who was, were, or shall be, liable as aforesaid to the repair of any old turnpike road, which has been, since the passing of the said recited Act (a), or shall be, widened, altered, diverted, or turned, shall respectively be and continue in the same manner liable to the repair of such new road, set out in lieu of the old road, or so much thereof as shall be equal to the burthen and expence of repairing such old road, from which he, she, or they shall be exonerated by the widening, altering, diverting, or turning thereof:-And if the several parties interested therein cannot agree, the same shall be viewed by two justices of the peace of the county where such road shall be, and shall be settled, adjusted, and determined by them, in 438 THE DIVERSION, &C. OF TURNPIKE ROADS. such manner as they shall think just and reasonable; and from and after such determination of the justices, the body politic or corporate, and person or persons liable to repair such new road as aforesaid, shall bear all charges of presentments, indictments, and prosecutions for not repairing the same; and if it shall be found more convenient to fix a gross sum, or an annual sum to be paid by any such body politic or corporate, or person or persons, instead of fixing the part or proportion of such new road to be repaired by him, her, or them, the said justices may, with the consent of such person or persons, and also of the trustees of the said road, obtained at a meeting of such trustees, order and direct the same accordingly; and the order and direction of the said justices shall be final and conclusive, and shall continue binding on all bodies politic or corporate, and persons whomsoever (a). (a) See 4 Geo. 4. c. 95. s. 78, (ante, p. 205) whereby the trustees are authorized to contract and agree with any person, for the making, amending, altering, or maintaining the road. CHAPTER VI. AS TO NUISANCES IN HIGHWAYS;-THEIR REMOVAL;AND THE PUNISHMENT OF THE OFFENDERS. I SHALL, in this Chapter, pursue the same arrangement, which has been already adopted with regard to other parts of our subject, and consider the law relating to nuisances in highways: 1st, As it exists under the common law :2dly, As it is regulated by the Highway Acts:-and 3dly, As it is regulated by the Turnpike Acts. SECTION I. As to nuisances at the common law. Both this and the two following Sections will require to be subdivided into two parts: 1st, As to the nature of the nuisances: and 2dly, How the nuisances are to be removed, and the offenders proceeded against. FIRST: What is considered by the common law to be a nuisance in a highway. A public nuisance may be defined to be an offence against the public, either by doing a thing, which tends to the annoyance of all the king's subjects, or by neglecting to do a thing which the common good requires. On the other hand, annoyances to the interest of particular persons are not punishable by a public prosecution as comactions of the parties aggrieved by them (a). And from hence it clearly follows, that no indictment for a nuisance can be good, which lays it to the damage of private persons only (b). In conformity with the above principle, the neglect to repair a highway, by the party who is bound to make such repair, is by law considered to be the subject of a public prosecution as a nuisance, equally with any actual obstruction to the public right of passage. It seems to be clear, that all injuries whatsoever to any highway, as by digging a ditch (c), or making a fence across it, or laying logs of timber along it, or by doing any other act which will render it less commodious to the king's people, are public nuisances at common law (d). And there is no doubt, that it is a nuisance at common law to erect a new gate in a highway (e). Although it may, perhaps, be argued that a gate erected in a highway will be no nuisance, because, if it were, it could not be justified by any prescription, as it is agreed that it may be; but to this it may be answered, that the erecting such a gate is a nuisance, because it interrupts the people in that free and open passage, which they before enjoyed and were fully entitled to; whereas, when such a gate has continued time out of mind, it shall be intended that it was set up at first by consent, on a composition with the owner of the land on the laying out the road, in which (a) 2 Rol. Ab. 83.-1 Hawk. P. C. c. 75. s. 1. and 2. (b) 1 Sid. 209.-1 Hawk. P. C. c. 75. s. 3. Shelderton, 2 Keb. 221, pl. 68. (d) Kitch. 34, 35.-1 Hawk. P. C. c. 76. 8. 144. (e) 1 Hawk. P. C. c. 76. 5. 146. case the people had never any greater freedom of passage than what they still enjoy (a). Also it seemeth clear, that it is 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 (b). A party obstructing a highway cannot plead that the hindrance is only partial, and that the public have sufficient room left to pass along the way, if they have not the same free and full passage as they are entitled to. Therefore it is no excuse for one who layeth logs of timber along a highway, that he laid them only here and there, so that the people might have a passage by windings and turnings through the logs (c). Yet it is said to be no nuisance, for the inhabitants of a town to unlade billets, &c. in the street before their houses, by reason of the necessity of the case, unless they suffer them to continue there an unreasonable time after they are unloaded (d). But if the obstruction in such a case be continued beyond a reasonable time, the party committing it will be liable to an indictment. Thus in the case of Rex v. Russell (e), a waggoner was convicted of a nuisance, for occupying one side of a public street in a city, before his warehouses, in loading and unloading his waggons for several hours at a time, both by night and by day, and (a) See 1 Hawk. P. C. c. 75, 8. 9, and the cases there cited. (b) 1 Hawk. P. C. c. 76, s. 147. And see Stephens r. Hayns, Raym. (c) 2 Rol. Ab. 137, B.-1 Haw. P. C. c. 76, s. 145. (e) 6 East, 427.-And see Bush |