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guilty of committing a nuisance at common law; and the fact that the jury find that a sufficient space for the public use remained unobstructed, will not afford any justification, unless the act is done by legislative permission.1

The case is of so much importance that we have ventured to insert the leading opinion on the final hearing in full bench.

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Crompton, J. "The defendants were indicted for erecting their posts on a high road, so as to obstruct the public in the use thereof, and we determined before giving judgment to hear the case of Regina v. Train, thinking it possible that the same question might there arise, or that something, at all events, throwing light upon it might be elicited during its progress. Having heard that case, there is nothing to prevent our giving judgment without further delay. My brother Martin laid down two propositions, and the question is, whether either of them constitutes a misdirection. The first of these propositions was as follows: 'In the case of an ordinary highway, although it may be of a varying and unequal width, running between fences, one on each side, the right of passage or way prima facie, and, unless there be evidence to the contrary, extends to the whole space between the fences; and the public are entitled to the use of the entire of it as the highway, and are not confined to the part which may be metalled or kept in order for the more convenient use of carriages and foot passengers.' Now, this seems to us a very proper direction. It is urged by Mr. O'Malley that this ruling is not applicable to a place where there is a considerable portion of greensward on either side of the metalled road, which either the owner of the adjoining freehold or the lord of the manor would be entitled, if he thought proper, to enclose. This is the first of two objections taken on behalf of the defendants. But it seems to me that my brother Martin carefully guards against that. He says, that prima facie the space between the fences is to be taken as the highway; and this seems to be in accordance with the judgment of Lord Tenterden, C. J., in Rex v. Wright, 3 B. & Ad. 681, where he says: 'I am strongly of opinion, when I see a space of fifty or sixty feet through which a road passes, between enclosures set out under an act of Parliament, that, unless the contrary be shown, the public are entitled to the whole of that space, though, perhaps, from economy, the whole may never have been kept in repair.' The same principle is involved in the decision in Williams v. Wilcox, and my brother Martin seems to have laid down the law in unison with these cases. He says, that prima facie, and in absence of evidence to the contrary, the public are entitled to the right of passage over the whole, and are not confined to that part which is metalled for the better convenience of travellers and traffic.' Mr. O'Malley was unable, when invited, to say to what definite portion of the road, metalled or otherwise, he held the public to be entitled. He, however, contended that the posts might have been erected on what was in fact no part of the highway, such as a rock, or something of that kind, which might occupy part of the space between the fences, but over or across which no road could possibly exist. But this would not be a part of the highway any more than a house similarly placed, built before the dedication of the road. We think, therefore, on the first point, the direction of the learned judge was correct, and that the right of the public extends over the entire highway.

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*SECTION VI.

Duty in regard to substituted Works.

1. Bound to repair bridge substituted for ford, | 3. The extent of this duty as applied to or to carry highway over railway. bridge and approaches.

2. The same rule has been applied to drains,

substituted for others.

§ 110. 1. Where a public company, as a navigation company, under the powers conferred by the legislature, destroyed a ford

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"The second proposition laid down by the learned judge is a wider one, and it remains to be seen whether it amounts to a misdirection. It is, that a permanent obstruction erected on a highway, placed there without lawful authority, which renders the way less commodious than before to the public, is an unlawful act, and a public nuisance at common law; and that if the jury believed that the defendants placed, for the purposes of profit to themselves, posts, with the * object and intention of keeping them permanently there, in order to make a telegraphic communication between distant places, and did permanently keep them there, and the posts were of such size and dimensions and solidity as to obstruct and prevent the passage of carriages, and horses, or foot passengers upon the parts of the highway where they stood, the jury ought to find the defendants guilty upon this indictment; and that the circumstance that the posts were not placed upon the hard or metalled part of the highway, or upon a footpath artificially formed upon it, or that the jury might think that sufficient space for the public traffic remained, are immaterial circumstances as regards the legal right, and do not affect the right of the crown to the verdict.' This appears to us also to be substantially a proper direction, inasmuch as the real question is, whether there was a practical, as distinguished by myself in Regina v. Russell, from a mathematical nuisance. My brother Martin appears distinctly to have raised that point, by saying that the posts must not be of such size, dimensions, and solidity as to obstruct and prevent the passage of carriages, and horses, and foot passengers at all. In Regina v. Russell, the jury found there was no practical obstruction; but where there is a practical obstruction on a highway, by which the public are prevented from using it, that is a nuisance according to all definitions of the word, and it makes no difference whether or not enough be still left unobstructed for the use of the public; or whether the obstruction is placed on that part of the road which is neither metalled nor repaired for the purpose of traffic. In Rex v. Wright, Lord Tenterden laid it down that the public are entitled to the entire space on either side of the highway, as he says, for the benefit of air and sun. We must take it now that the jury found the defendants guilty upon these facts, and that the posts were of such size and solidity as to create an obstruction, and amount to a nuisance. It was further objected by Mr. O'Malley that certain of the posts appeared actually to have stood upon parts of the road which were inaccessible to travellers; but supposing this to be

and substituted a bridge, it was held, that they were liable to keep the bridge in repair. So, too, where such company cut through a highway, rendering a bridge necessary to carry the highway over the cut, the company are bound to keep such bridge in repair.2

2. So, where a navigation company had power to use a public drain, by substituting another, or others, it was held that the company were bound to keep in repair the substituted drains, as well as to make them.3

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3. Under the English statute, where the company carried the highway, by means of a bridge, over the railway, it is bound to maintain the bridge; and all the approaches thereto in repair, and such repair includes not only the structure of the bridge, and the approaches, but the metalling of the road on both.5 But this will not include the road beyond where it may properly be regarded as forming an approach to the bridge. And the same rule obtains here. In White v. Quincy, it was held the duty of the company as to repair extended to the whole structure, which they had found it necessary to build to effect their purpose; even where it extended beyond the boundaries of the location of their line.

the case, it would be no use to the company to have these few isolated posts left standing at different spots along the line of road; and if they wished to keep them, they should have contended at the trial that some of these posts did not come within the rule laid down by the learned judge. We think, therefore, that with respect to these few posts, which may possibly have excepted from the rule, it would be useless to grant a rule."

1 Rex v. Inhabitants of Kent, 13 East, 220; Rex v. Inhabitants of Lindsey, 14 East, 317.

2 Rex v. Kerrison, 3 M. & Sel. 526. This duty may be enforced by indictment. Regina v. Ely, 19 L. J. (M. C.) 223. And the same obligation rests upon the assignees of the company. Penn. Railw. Co. v. Duquesne Borough, 46 Penn. St. 223.

Priestly v. Foulds, 2 Railw. C. 422; 2 Man. & Gr. 175.

4 8 and 9 Vict. c. 20.

5 Newcastle, &c. Turnpike Co. v. North Staf. Railw. 5 H. &. N. 160.

6 W. & L. Railw. v. Kearney, 12 Ir. Com. L. 224; Fosberry v. Waterford & Limerick Railw., 13 Ir. Com. Law, 494; London & North Western Railw. Co. v. Skerton, 5 B. & S. 559.

797 Mass. 430. See also Titcomb v. Fitchburg Railw., 12 Allen, 254.

*SECTION VII.

Construction of Charter in regard to Nature of Works, and Mode of Construction.

§ 111. There are some cases in regard to the construction of railway works, and their requisite dimensions, which have come under the consideration of the courts, and where the decisions. are of little precedent, for other cases, not altogether analogous, and on that account not deserving an extended analysis, but which nevertheless we scarcely feel justified in wholly omitting here.1

1 Attorney-General v. London & Southampton Railw., 9 Sim. 78; s. c. 1 Railw. C. 302. This case is in regard to the width of a road under a railway bridge. Manchester & Leeds Railw. v. Reg. (in error), 3 Q. B. 528; s. c. 3 Railw. C. 633. The footpaths are not to be regarded as any part of the requisite width of the bridge. Reg. v. Rigby, 14 Q. B. 687; s. c. 6 Railw. C. 479; Reg. v. London & Birmingham Railw., 1 Railw. C. 317. This is a case in regard to the width of a bridge over a highway. Reg. v. Birmingham & Gloucester Railw., 2 Q. B. 47; 2 Railw. C. 694, which is a case in regard to the width of the approaches to a bridge across a railway. Reg. v. Eastern Counties Railw., 2 Q. B. 347, 569; s. c. 3 Railw. C. 22, as to the right to lower a street, in order to obtain the requisite height under a bridge, notwithstanding the provisions of the local paving act. Reg. v. Sharpe, 3 Railw. C. 33, as to the right to erect a bridge at a different angle from the former road. Where a special act required a company to strengthen a bridge described in the act, held that they might, nevertheless, pull down the old bridge and build a new one. Wood v. North Staffordshire Railw., 1 McNagh. & G. 278; Rex v. Morris, 1 B. & Ad. 441, as to making a railway on a turnpike road. A turnpike road, having power to take tolls upon any way leading out of their road, may demand tolls of passengers crossing their road upon a railway granted subsequently. Rowe v. Shilson, 4 B. & Ad. 726.

Where a railway company, in the course of construction, turned a stream of water, which by their charter they might do, restoring it to its former state, as near as practicable, and the new channel was properly guarded, as far as could be perceived, at the time of turning it, it was held, that the company were not obliged thereafter to watch the operation of the water and take precautions to prevent its encroaching upon the adjoining lands. Norris v. Vt. C. Railw., 28 Vt. 99. See also Fitchburg Railw. v. Grand Junction Railw. & Depot Co., 4 Allen, 198, where a question in regard to apportioning the expense of a work done by the plaintiff, for the mutual benefit of the parties, in conformity with statutory provisions, is considered, and numerous exceptions on the part of the defendant are overruled by the court. The most important of these exceptions, and which the court regarded as no sufficient ground of defence, are: that the

*SECTION VIII.

Terms of Contract. - Money Penalties.- Excuse for Non-
Performance.

1. Contracts for construction assume unusual forms.

2. Estimates made by engineer.

3. Money penalties, liquidated damages. Full performance.

4. Excuses for non-performance.

5. Penalty not incurred, unless upon strictest construction.

6, 7. Contractor not entitled to any thing for part-performance.

n. 2. Proper construction of the terms used in

8.

these contracts.

Contract for additional compensation must be strictly performed.

§ 112. 1. As the time within which such works are to be accomplished is often limited in the act, and as the manner in which the work is done, is of the greatest possible importance to the public safety, the law sanctions contracts for such undertakings, in forms not only unusual, but which might not be strictly binding perhaps in the case of ordinary contracts. For instance, it is not uncommon for the contract to impose penalties upon the contractor for slight deviations from the terms of agreement, and to secure to the company the absolute right to put an end to the contract, whenever they or their engineer are dissatisfied with the mode in which the work is done, or the progress made in it.

2. And it is almost universal, in these contracts in this country, to refer the quality and quantity of the work done, and the consequent amount of payments, to be made from time to time, to the absolute determination of an engineer employed by the company.1

3. The penalties which these contracts provide, either absolutely, commissioner appointed under the statute, in supervising the work and apportioning the cost, conducted with partiality towards the plaintiff, and under their undue influence; and that the value of the defendant's property and franchise was diminished by the work, and those of the plaintiff increased thereby.

Ranger v. Great Western Railw., 13 Sim. 368; 1 Railw. C. 1; s. c., 5 Ho. Lds. 72; 3 id. 298; ante, § 105. And where the contract refers the umpirage to the company's engineer, by name, "if and so long as he shall continue the company's principal engineer," it was held that the reference was not terminated by the amalgamation of this company with another, the same engineer being continued on the old line, but not as the principal engineer of the amalgamated company. Wansbeck Railw. in re. Law Rep. 1 C. P. 269.

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