by rain (); that carts and horses were kept standing an unreasonable time before his business premises, whereby the premises were rendered dark and unwholesome, and the access obstructed, to the loss of customers and material diminution of his business (g). But it is not sufficient for the plaintiff to prove merely that he was delayed, in common with all other persons using the way, by being obliged either to remove the obstruction, or to go by a longer way ().-The action will lie against a landlord who lets premises with a public nuisance, as well as against the lessee who continues the nuisance (i). against surveyor; An action for special damage will lie against the sur- Action veyor of highways, or the highway authority appointed as surveyor of highways by statute, in respect of an actual nuisance or obstruction caused by them, or by persons in their employment. Thus a local board, as surveyor of highways, was held liable for damage sustained by a person falling over a heap of stones placed in the highway by their servants (j).-Local boards may also be liable for against damages caused by the defective and dangerous state of sewers, watercourses, gratings, traps, and any other artificial constructions vested in them in their various capacities, which are placed or left in the highway so as to be a nuisance to the public (k). local board. of nuisance. The same principle applies to the abatement of a nuis- Abatement ance by act of the party. "An individual who is only injured as one of the public can no more proceed to abate than he can bring an action." But "a public nuisance becomes a private one to him who is specially and in some (f) Maynell v. Saltmarsh, 1 Keb. 847. (g) Benjamin v. Storr, L. R. 9 C. P. 400; 43 L. J. C. P. 162; Fritz v. Hobson, L. R. 14 C. D. 542; 49 L. J. C. 321. (h) Winterbotham v. Derby, L. R. 2 Ex. 316; 36 L. J. Ex. 194. (i) Sandford v. Clarke, L. R. 21 Q. B. D. 398. (j) Foreman v. Canterbury, L. R. 6 Q. B. 214; 40 L. J. Q. B. 138. L. (k) White v. Hindley Loc. Board, L. R. 10 Q. B. 219; 44 L. J. Q. B. 114; Blackmore v. Mile End, L. R. 9 Q. B. D. 451; 51 L. J. Q. B. 496; Kent v. Worthing Loc. Board, L. R. 10 Q. B. D. 118; 52 L. J. Q. B. 77; Bathurst v. Macpherson, L. R. 4 Ap. Ca. 256. As to tramways, see Howitt v. Nottingham Tramway Co., L. R. 12 Q. B. D. 16; 53 L. J. Q. B. 21. NN Summary remedies, wilful ob struction. particular way inconvenienced thereby, as in the case of a gate across a highway which prevents a traveller from passing, and which he may therefore throw down” (k). A person can abate an obstruction to a way only when it is necessary for him to use the part of the way that is obstructed; he is not justified in destroying the obstruction, if he can conveniently pass without doing so (7). Summary remedies against nuisances are given by the penalties for Highway Act, 1835, 5 & 6 Will. IV. c. 50:-Sect. 72 imposes a penalty, if any person shall do any of the specified acts of injury, damage, or annoyance upon a highway, which are particularly mentioned therein, or in general terms, "if any person shall in any way wilfully obstruct the free passage of any highway." Omitting to remove an obstruction may be a wilful obstruction within this section; as where a wall fell into the highway and the owner after notice left it there (m). And for a surveyor of highways in repairing a road to leave stones upon it at night insufficiently fenced and lighted was held to be within the section ("). But suffering trees to grow over the adjacent highway was held not to be a wilful obstruction within the section; though it may be matter of indictment (o). A crowd of persons standing upon a highway, or upon any part of a highway, are an obstruction to the free passage; and a person collecting or causing such a crowd may be convicted of a wilful obstruction, and though he was not himself upon the highway (p). A person who being upon private ground adjoining a high (k) Per cur. Mayor of Colchester v. (1) Bateman v. Bluck, 18 Q. B. (m) Gully v. Smith, L. R. 12 Q. B. D. 121; 53 L. J. M. 35. (n) Fearnley v. Ormsby, L. R. 4 C. P. D. 136. (0) Walker v. Horner, L. R. 1 Q. B. D. 4; 45 L. J. M. 34, Cock. burn, C. J., dissentiente. (p) Horner v. Cadman, 55 L. J. M. 110; Back v. Holmes, 57 L. J. M. 37. See ante, p. 495. way collects a crowd upon the highway is guilty of the obstruction caused by it (q). The police or any person may prosecute the offender, notwithstanding there is a vestry or local board having control over the highway (r). The Towns Police Clauses Act, 1847, 10 & 11 Vict. c. 89, which is incorporated in the Public Health Act, 1875, "with respect (inter alia) to obstructions and nuisances in the streets, for the purpose of regulating such matters in urban districts," provides by s. 28 that "every person who in any street, to the obstruction, annoyance, or danger of the residents or passengers, commits any of the following offences shall be liable to a penalty not exceeding forty shillings or may be committed to prison for not exceeding fourteen days." The Act proceeds to enumerate the various offences, and amongst them "by means of any cart, carriage, truck or barrow, or any animal, or other means wilfully causes any obstruction in any public footpath or other public thoroughfare." ment on sides The Highway Act, 1864, 27 & 28 Vict. c. 101, s. 51, Encroachimposes a penalty, "If any person shall encroach by of highway. making any building, or pit, or hedge, ditch or other fence, or by placing any dung, compost, or other material for dressing land, or any rubbish, on the side or sides of any carriage way or cart way within fifteen feet of the centre thereof, or by removing any soil or turf from the side or sides of any carriage way or cart way,-notwithstanding that the whole space of fifteen feet from the centre of such carriage way or cart way has not been maintained with stones or other materials used in forming highways" (s).-The "sides" intended by this enactment are part of the highway, not including any space beyond the actual limits of the highway, though such space may be within fifteen feet of the centre of carriage way. If (g) Back v. Holmes, 57 L. J. M. (s) See the former enactment against encroachment of the Highway Act, 1835, s. 69. 37. () Back v. Holmes, supra. Removal of nuisance. the highway extends beyond, the statute gives the special protection of a penalty against encroachment only to so much as is within fifteen feet of the centre; but if the highway does not extend so far, the statute has no application beyond the width of the highway (†). By the Highway Act, 1835, s. 73, "If any matter or thing whatsoever shall be laid upon any highway so as to be a nuisance, and shall not, after notice given by the surveyor, be forthwith removed, it shall be lawful for the surveyor, by order in writing from any one justice, to clear the said highway by removing the said matter or thing, and to dispose of the same, and to apply the proceeds towards the repairs of the highway"; at the expense of the person who laid the same upon the highway. Upon an application to justices under this section, they have to determine the question whether there is a highway or not; and their jurisdiction is not ousted where the party charged is the owner of the land and denies that there is a highway over it (u). The sections 94, 95, enabling justices, when the liability to repair is denied, to order an indictment, apply only to admitted highways, and if there is a bonâ fide dispute as to the existence of a highway, they have no jurisdiction (e).—It seems that after it has been judicially decided, upon an indictment or other legal proceedings, that there is an obstruction or nuisance upon a highway, the surveyor or highway authority may lawfully remove the nuisance, although no special statutory authority be given for that purpose; and the Court will not restrain them in so doing merely upon that ground (w). A conviction by justices of an encroachment on a highway justifies the surveyor (t) Easton v. Richmond Highway Board, L. R. 7 Q. B. 69; 41 L. J. M. 25. See Lowen v. Kaye, 4 B. & C. 3; and see Tutill v. West Ham, L. R. 8 C. P. 447. As to limits of highway, see ante, p. 493. (u) Williams v. Adams, 2 B. & S. 312; 31 L. J. M. 109. See The Queen v. Young, 52 L. J. M. 55. (v) The Queen v. Farrar, L. R. 1 Q. B. 558; 35 L. J. M. 210. See ante, p. 541. (w) Jessel, M. R., Bagshaw v. Buxton Local Board, L. R. 1 C. D. 220; 45 L. J. C. 260. in removing it, although the conviction may be wrong (x). But if a highway authority order the removal of a nuisance upon their own judgment, without a judicial decision, they do so at their own risk as to the facts of there being a nuisance and upon a highway; nor is the surveyor justified merely by the order of the authority (y). SECTION II. LOCAL CUSTOMS. Local customs-custom and common law-custom and statute law- Usage as evidence of custom-immemorial usage-Prescription Act. Certainty of usage as to place-custom limited to locality-certainty Certainty of usage as to the rights created. Reasonableness of usage-usage against law-reasonable customsusage repugnant to ownership. Customs to take profits of land-claims to profits by custom disallowed -profits subject to tolls or fees-customs of mining. Customs to take profits by presumed Crown grant-no presumption of statute-customs under grant to corporation - customs supported as charitable uses. Customs of manors-customary rights of copyhold tenants-freehold tenants-occupiers. customs. Custom is unwritten local law prevailing by usage in a Local certain district, as a town, or parish, or manor. By custom a local public or class of persons, as the inhabitants of a town or parish, may be entitled to have some use or quasi easement of land: as to have a way over certain land to church or market; or to hold a fair or market at a certain place; or to take water from a spring; or to have a watering place for cattle; or to have an exercise and recreation ground (a). (x) Keane v. Reynolds, 2 E. & B. 748. (y) Mill v. Hawker, L. R. 10 Ex. 92; 44 L. J. Ex. 49. (a) See post, p. 559. |