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Remedies under Conveyancing Act, 1881.

Court will not apply the extraordinary remedies of a receiver or sale, unless the ordinary legal remedies of distress, action or entry are unavailable or insufficient (b). The Court ordered a sale of the glebe lands of an ecclesiastical corporation in satisfaction of a rent charge, which had been charged upon the land for a term of years for the execution of improvements under the statutory powers of the Inclosure Commissioners; the rent charge being secured with powers of entry to take the profits and of distress, but these powers having become useless by reason of the land being unoccupied and profitless, and a receiver being useless for the same reason (c). The Court refused to order a sale of land in satisfaction of arrears of the tithe rent charge, because it is a charge upon the annual profits only and not upon the inheritance (d).

By the Conveyancing Act, 1881, 44 & 45 Vict. c. 41, the remedies for rent charges and other annual sums are given a statutory definition and application. By s. 44 (1), "Where a person is entitled to receive out of any land any annual sum, payable half-yearly or otherwise, whether charged on land or on the income of land, and whether by way of rent charge or otherwise, not being rent incident to a reversion, then, the person entitled to receive the same shall have such remedies for recovering the same as are described in this section."-(2) "If at any time the annual sum is unpaid for twenty-one days, the person entitled may enter into and distrain on the land charged, and dispose according to law of any distress found."-(3) "If at any time the annual sum is unpaid for forty days, then, although no legal demand has been made for payment thereof, the person entitled may enter into possession of,

Beav. 191; 28 L. J. C. 179; Horton
v. Hall, L. R. 17 Eq. 437.

(b) Sollory v. Leaver, L. R. 9 Eq.
22; 40 L. J. C. 398; Kelsey v.
Kelsey, L. R. 17 Eq. 495.

(e) Scottish Widows' Fund v. Craig, L. R. 20 C. D. 208; 51 L. J. C. 363.

(d) Bailey v. Badham, L. R. 30 C. D. 84; 54 L. J. C. 1067; ante, p. 401.

and hold the land charged, and take the income thereof, until thereby or otherwise the annual sum and all arrears. thereof and all costs occasioned by non-payment are fully paid; and such possession when taken shall be without impeachment of waste.”—(4) "In the like case the person entitled, whether taking possession or not, may also by deed demise the land charged, or any part thereof, to a trustee for a term of years, with or without impeachment of waste, on trust, by mortgage, or sale, or demise, to raise and pay the annual sum and all arrears thereof and all costs occasioned by the non-payment."-(5) "This section applies only if and so far as a contrary intention is not expressed in the instrument under which the annual sum arises, and shall have effect subject to the terms of that instrument and to the provisions therein contained."-And (6) "This section applies only where that instrument comes into operation after the commencement of this Act."

Public rights, general and local.

CHAPTER IV.

PUBLIC USES OF LAND.

Section I. Highways.

II. Local customs.

SECTION I. HIGHWAYS.

§ 1. Highways in general-§ 2. Origin and extinction of highways§ 3. Maintenance and repair of highways-§ 4. Remedies relating to highways.

§ 1. HIGHWAYS IN GENERAL.

Public rights-general and local.

Highway-different kinds of highway-cattle way-railway-navig-
able river-towing path.

Public way without thoroughfare-public commons and open spaces.
Ownership of soil of highway-land at sides of highway-inclosing up
to highway-conveyance of land abutting on highway.
Rights of ownership of highway-trespass on highway.
Ownership of highways under statutes-Turnpike Acts-Public Health
Act-Metropolis Local Management Act-compensation for high-
ways taken.

Limits of highway--termini-width-deviation.

Use of highway by public-public meetings-excessive traffic-locomotive engines-tramways-telegraphs.

Special use of highway by adjoining owner-access to and from adjoining tenement-use of highway for service of adjoining tenement-use of public river by riparian owner.

Fencing land adjoining highway-cattle straying through defect of fences-fencing nuisances on adjoining land.

The

The rights in alieno solo above treated belong to a person in a private or corporate capacity, and are rights of property in the strict meaning of the term. rights in alieno solo here treated belong to a person only as one of the public; and they differ from rights of property in having no determinate owner, personal or corporate. They are. common to the public at large, or to a part of the public limited by a certain locality or

description; and they are distinguished accordingly as being general or local. Of the former kind are all public rights of way, highways, bridges, and the like, which are for the use and accommodation of all subjects of the realm. Of the latter kind are privileges of persons within some limited district of using land for purposes of local convenience; such as a right of way to church or market, or a right of enjoying an open space for exercise or recreation. The former kind of public rights are founded upon the general custom of the realm or common law; the latter upon the special custom of the district or lex loci (a). -The public, as such, can acquire no right to take profits in alieno solo (b).

A public way or highway is a right of passage for the Highway. public in general. It resembles an easement in regard to the servient tenement, but differs from an easement in there being no dominant tenement, without which there can be no easement properly so called. But "in truth, a public road or highway is not an easement; it is a dedication to the public of the occupation of the surface of the land for the purpose of passing and repassing, the public generally taking upon themselves (through the parochial authorities or otherwise) the obligation of repairing it. It is clear that that is a very different thing from an ordinary easement, where the occupation remains in the owner of the servient tenement subject to the easement" (c).

way.

It is said "there be three kinds of ways: first, a foot- Different kinds of highway; the second is a footway and horseway, and this vulgarly is called a pack or drift way also; the third, which contains the other two and also a cartway." But ways may further vary according to the limitations of their creation, as either expressed in terms or implied in

(a) Post, p. 549.

・(b) Neill v. Devonshire, L. R. 8 Ap. Ca. 135; post, p. 560.

(c) Cairns, L. J., Rangeley v. Midland Ry., L. R. 3 Ch. 311; 37 L. J. C. 316.

usage "Highway" is the general term for all kinds of public ways, whether carriageway, horseway, or footway; and it serves to describe them all, except where it is material to state the species of way. In the construction of the Highway Acts it is provided that "the word 'highways' shall be understood to mean all roads, bridges (not being county bridges, carriageways, cartways, horseways, bridleways, footways, causeways, churchways, and pavements" (e). In an inclosure Act the word "road" was construed to include a footway (ƒ). The causeways by the sides of high roads are part of the highway, and the surveyor is bound to secure them from

Cattle way. injury by carriages (g).-" In general a public highway is

Railway.

open to cattle, though it may be so unfrequented that no one has seen an instance of their going there; but the presumption would be for cattle as well as carriages, otherwise cattle could not be driven from one part of the kingdom to another" (h). And an adjacent owner cannot complain of the nuisance caused by the ordinary driving of cattle along the highway (). But cattle are lawfully on the highway only for the purpose of passing and repassing (j).

A railway constructed under an Act of Parliament, to be used by the public with waggons and carriages, was held to be "a public highway to be used in a particular mode"; and a company incorporated to make and maintain it was held liable to an indictment for taking up the rails, and to a mandamus to restore them (k).—By the Railway Clauses Act, 8 Vict. c. 20, s. 92, as to railways constructed under that Act, it is expressly provided that "upon

(c) Co. Lit. 56 a; post, p. 503.
(d) Holt, C. J., The Queen v.
Saintiff, 6 Mod. 255; Allen v. Or-
mond, 8 East, 4; Ellenborough,
C.J., The King v. Salop, 13 East, 95.
(e) 5 & 6 Will. 4, c. 50, s. 5.
(f) Logan v. Burton, 5 B. & C.
513.

(g) 5 & 6 Will. 4, c. 50, s. 24;
Ellis v. Woodbridge, 29 L. J. M.

() Mansfield, C. J., Ballard v. Dyson, 1 Taunt. 283.

(i) Truman v. London, Brighton Ry., L. R. 11 Ap. Ca. 45; 55 L. J. C. 354.

(j) Doraston v. Payne, 2 H. Bl. 527; 2 Smith, L. C.

(k) The King v. Severn Ry., 2 B. & Ald. 646. See Rowe v. Shilson, 4 B. & Ad. 726.

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