The power of widening and changing highways was given to justices of the peace, by the 13 Geo. 3, c. 78, and 55 Geo. 3, c. 68, and is continued to them, under certain modifications, by the recent highway act; 5 & 6 Wm. 4, c. 50.

A statute giving authority to make a new course for a navigable river, along which there is a towing-path, will not take away the right of the public to use that path, without express words for that purpose. Tippett's case, 1 Russell, 316.

Proof of the nuisance-what acts amount to.] There is no doubt but that all injuries whatever to any highway, as by digging a ditch, or making a hedge across it, or laying logs of timber on it, or doing any act which will render it less commodious to the public, are nuisances at common law; and it is no excuse that the logs are only laid here and there, so that people may have a passage by winding and turning through them. Hawk. P. C. b. 1, c. 76, s. 144, 145. So erecting a gate across a highway is a nuisance; for it not only interrupts the public in their free and open passage, but it may in time become evidence in favor of the owner of the soil. Id. c. 75, s. 9. It is also a nuisance to suffer the ditches adjoining a highway to be foul, by reason of which the way is impaired; or to suffer the boughs of trees growing near the highway to hang over the road in such a manner as to incommode the passage. Id. c. 76, s. 147; and see 5 & 6 Wm. 4, c. 50. Where a wagoner occupied one side of a public street, in a city before his warehouses, in loading and unloading his wagons, for several hours at a time, by night and by day, having one wagon at least usually standing before his warehouses, so that no wagon could pass on that side; this was held to be a nuisance, although there was room for two carriages to pass on the opposite side. Russell's case, 6 East, 427. So keeping coaches at a stand.in a street, plying for passengers, is a nuisance. Cross's case, 3 Campb. 226. So exhibiting effigies at a window, and thereby attracting a crowd. Carlisle's case, 6 C. and P. 637 (a). Ploughing up a footpath is a nuisance, Griesley's case, 1 Vent. 4; Wellbeloved on Highways, 443, both on the ground of inconvenience to the public, and of injuring the evidence of their title.

The obstruction of a navigable river is likewise a public nuisance; as by diverting part of the water whereby the current is weakened, and made unable to carry vessels of the same burthen as before. Hawk. P. C. b. 1, c. 75, s. 11. But if a vessel sink by accident in a navigable river, the owner is not indictable as for a nuisance in not removing it. Watt's [*517] case, 2 Esp. 675. And where a staith was erected stretching into the river Tyne, and used in shipping coals, whereby the public had a better and cheaper supply of that article, it was held to be no nuisance, diss. Lord Tenterden. Russell's case, 6 B. and C. 566 (b); 9 D. and R. 566. But see Ward's case, post. In Russell's case, it was said, by Mr. Justice Bayley, in his summing up to the jury, that where a great public benefit accrues, from that which occasions the abridgment of the right of passage, that abridgment is not a nuisance, but proper and beneficial; and he directed the jury to find a verdict for the defendants, if they thought the abridgment of the right of passage was for a public purpose, and produced a public benefit, and if it was in a reasonable situation, and if a reasonable space was left for the passage of vessels navigating the

(a) Eng. Com. Law Rep. xxv. 571. (b) Id. xiii. 254.

river Tyne. On a motion for a new trial, the Court of King's Bench, with the exception of Lord Tenterden, held this direction right. Lord Tenterden said, "Admitting there was some public benefit both from the price and the condition of the coals, still I must own that I do not think those points could be properly taken into consideration, in the question raised by this indictment. That question I take properly to have been, whether the navigation and passage of vessels on the public navigable river was injured by these erections." Where the lessee of the Corporation of London, the conservators of the river Thames, erected a wharf between high and low water mark, extending for a considerable space along the river, upon an indictment for a nuisance, it was contended that, as claiming under the corporation, the party had a right to make the wharf. But Abbott, C. J., said, "Will you contend that you have a right to narrow the river Thames, so long as you have space sufficient for the purposes of navigation?" The argument that the wharf was a public benefit, was then advanced; but the Chief Justice said, "Much evidence has been adduced on the part of the defendant, for the purpose of showing that the alteration affords greater facility and convenience for loading and unloading; but the question is not whether any private advantage has resulted from the alterations to any particular individuals, but whether the convenience of the public at large, or of that portion of it which is interested in the navigation of the river Thames, has been effected or diminished by this alteration" (1). Lord Grosvenor's case, 2 Stark. N. P. C. 511 (a). Russell's case has been overruled by a recent decision. On an indictment for a nuisance in a navigable river and common king's highway, called the harbor of C., by erecting an embankment in the water way, the jury found that the embankment was a nuisance, but was counterbalanced by the public benefit arising from the alteration. It was held by the Court of King's Bench, that this finding amounted to a verdict of guilty, and that it is no defence to such an indictment, that although the work be in some degree a hindrance to navigation, it is advantageous, in a greater degree to other uses of the port. Ward's case, 4 A. and E. 384 (b); and see Morris' case, 1 B. and Ad. 441 (c).

Where, on the trial of an indictment for a nuisance by erecting *and continuing piles and planking in a harbor, and thereby ob- [ *518] structing it and rendering it insecure, a special verdict was found, that by the defendant's works the harbor was in some extreme cases rendered less secure; it was held that the defendant was not responsible criminally for consequences so slight, uncertain, and rare, and that a verdict of not guilty must be entered. Tindall's case, 6 A. and E. 143 (d).

Where the crown had no right to obstruct the whole passage of a navigable river, it had no right to erect a weir to obstruct a part, except subject to the rights of the public, and therefore the weir would become illegal upon the rest of the river being so choked, that there could be no passage elsewhere. Wilcox's case, 8 A. and E. 314.

Proof of the nuisance-authorized by an act of parliament.] By an act reciting that a railway between certain points would be of great

(1) Resp. v. Caldwell, 1 Dall, 150. Angell on Tide Waters, c. 8. Commonwealth v. Wright, 3 American Jurist, 185.

(a) Eng. Com. L. Rep. iii. 453. (6) Id. xxxi. 92. (e) Id. xx. 421. (d) Id. xxxiii. 26.

public utility, and would materially assist the agricultural interest and the general traffic of the country, power was given to a company to make such railway according to a plan deposited with the clerk of the peace, from which they were not to deviate more than one hundred yards. By a subsequent act, the company of persons authorized by them, were empowered to use locomotive engines upon the railway. The railway was made parallel and adjacent to an ancient highway, and in some places came within five yards of it. It did not appear whether or not the line could have been made in those instances to pass at a greater distance. The locomotive engines on the railway frightened the horses of persons using the highway as a carriage road. On an indictment against the company for a nuisance, it was held, that this interference with the rights of the public must be taken to have been contemplated and sanctioned by the legislature, since the words of the statute authorizing the use of the engines, were unqualified; and the public benefit derived from the railway, (whether it would have excused the alleged nuisance at common law or not, see Ward's case, ante, p. 517,) showed at least, that there was nothing unreasonable in a clause of an act of parliament giving such unqualified authority. Pease's case, 4 B. and Ad. 30 (a).

Proof of the nuisance-whether justifiable from necessity.] It not unfrequently becomes a question, whether the obstruction complained of is justifiable by reason of the necessity of the case, as when it occurs in the usual and necessary course of the party's lawful business. The defendant, a timber-merchant, occupied a small timber-yard close to the street; and, from the smallness of his premises, he was obliged to deposit the long pieces of timber in the street, and to have them sawed up there before they could be carried into the yard. It was argued that this was necessary for his trade, and that it occasioned no more inconvenience than draymen letting down hogsheads of beer into the cellar of a publican. But Lord Ellenborough said, "If an unreasonable time is occupied in [*519] *the operation of delivering beer from a brewer's dray into the cellar of a publican, this is certainly a nuisance. A cart or wagon may be unloaded at a gateway, but this must be done with promptness. So as to the repairing of a house; the public must submit to the inconvenience occasioned necessarily in repairing the house; but if this inconvenience be prolonged for an unreasonable time, the public have a right to complain, and the party may be indicted for a nuisance. The defendant is not to eke out the inconvenience of his own premises, by taking in the public highway into his timber-yard; and if the street be narrow, he must remove to a more commodious situation for carrying on his business." Jones' case, 3 Campb. 230. So although a person who is rebuilding a house is justified in erecting a hoard in the street, which serves as a protection to the public, yet, if it encroach unnecessarily upon the highway, it is a nuisance (1). See Bush v. Steinman, 1 Bos. and Pul. 407. Russell's case, 6 East, 427, ante, p. 516.

(1) Commonwealth v. Passmore, 1 S. & R. 217.

(a) Eng. Com. L. Rep. xxiv. 17.

NOT REPAIRING HIGHWAYS.

Upon an indictment for not repairing a highway, to which the general issue is pleaded, the prosecutor must prove, Ist, that the way in question is a public highway, (vide ante, p. 511, et seq.) and that it agrees with the description of the way in the indictment, (ante, p. 514,) 2dly, that it is within the parish or other district charged; 3dly, that it is out of repair ; and, 4thly, where the charge is not upon the parish, but against common right, as upon an individual ratione tenure, the liability of the party to make the repairs.

Proof of liability to repair—parish.] Parishes of common right are bound to repair their highways, and by prescription one parish may be bound to repair the way in another parish. Per Holt, C. J., R. v. Ragley, 12 Mod. 409; Hawk. P. C. b. 1, c. 76. No agreement with any person whatever can take off this charge. 1 Ventr. 90. The parish generally, and not the overseers, are liable; and an indictment against the latter was quashed. Dixon's case, 12 Mod. 198. If particular persons are made liable by statute to repair, and become insolvent, the parish again becomes liable. 1 Ld. Raym. 725. And where a township, which has been accustomed to repair its own ways, is exempted by act of parliament from the repair of a certain road, the liability reverts to the parish. R. v. Sheffield, 2 T. R. 106. The parish will remain liable though the duty of repairing may likewise be imposed upon others. Thus where a statute enacted, that the paving of a particular street should be under the care of commissioners, and provided a fund to be applied to that purpose, and another statute, which was passed for paving the streets of the parish, contained a clause that it should not extend to the particular street, it was held that the inhabitants of the parish were not exempted from [ *520 ] their common law liability to keep that street in repair; and that the parish was under the obligation, in the first instance, of seeing that the street was properly repaired, and might seek a remedy over against the commissioners. R. v. St. George, Hanover Square, 3 Campb. 222. So where the trustees of a turnpike-road are required by statute to make the repairs, the parish, or other district, is not exonerated, but is liable to be indicted. In such cases, the tolls, granted by the act, are only an auxiliary and subordinate fund, and the persons whom the public have a right to look to, are the inhabitants of the district, who may apply for relief under the 32d section of the General Turnpike Act. R. v. Netherthong, 2 B. and A. 179; see also R. v. Oxfordshire, 4 B. and C. 194 (a); R. v. Preston, 2 Lew. C. C. 193. Nor can other parties render themselves liable to an indictment for not repairing by agreement. Thus an indictment against the corporation of Liverpool, stating that they were liable to repair a certain highway, by reason of an agreement with the owners of houses alongside of it, was held bad, because the inhabitants of the parish, who are prima facie bound to the repair of all ways within their boundaries, cannot be discharged from their liability by an agreement with others. R. v. Mayor, &c. of Liverpool, 3 East, 86.

(a) Eng. Com. L. Rep. x. 310.

If the repairs are done by a parishioner, under an agreement with the parish, in consideration of his being excused his statute-duty, that is virtually a repair by the parish. Per Ld. Ellenborough, R. v. Wandsworth, 1 B. and Ald. 66.

When, by act of parliament, trustees are authorized to make a road from one point to another, the making of the entire road is a condition precedent to any part of it becoming a highway repairable by the public. An indictment charged a township with the non-repair of a highway; and it appeared in evidence, that the road in question was begun six years before, under a local turnpike act; that the trustees had finished it all but about 300 yards at one end of the line, and one mile at the other, (both out of the township;) fenced what they had made, put up two turnpikegates, and taken toll; that the road was convenient, much used by the public, and leading at each end into old, open, and public highways; but it was held by Hullock, B., that the indictment was premature, the trustees not having finished their road according to the act of parliament, and consequently that it was no public highway. R. v. Hepworth, cited 3 B. and Adol. 110; 1 Lewin, C. C. 160. So where trustees, empowered by act of parliament to make a road from A. to B. (being in length twelve miles,) completed eleven miles and a half of such road, to a point where it intersected a public highway, it was held that the district, in which the part so completed lay, was not bound to repair it. R. v. Cumberworth, 3 B. and Ad. 108 (a); and see R. v. Paddington Vestry, 9 B. and C. 460 (b); R. v. Hatfield, 4 A. and E. 156 (c); R. v. Edge Lane, Id. 223 (d); R. v. Cumberworth, Id. 731 (e).

It was for some time a matter of doubt whether, where an individual [ *521] dedicated a way to the public, and the public used such *way, the parish, in which it was situated, was bound to repair it, without any adoption of it on their part. In the case of R. v. St. Benedict, 4 B. and Ald. 450 (ƒ), an opinion was expressed by Bayley, J., that the parish was not liable; but this doctrine was denied in a late case, and it was held that no distinct act of adoption was necessary, in order to make a parish liable to repair a public road; but that, if the road is public, the parish is of common right bound to repair it. R. v. Leake, 5 B. and Ad. 469 (g); 2 Nev. and M. 583.

Where a parish is situated partly in one county and partly in another, and a highway, lying in one of those parts, is out of repair, the indictment must be against the whole parish, and must be preferred in that county in which the ruinous part lies. R. v. Clifton, 5 T. R. 498. By the 5 & 6 Wm. 4, c. 50, s. 58, where a highway lies in two parishes, justices of the peace are to determine what parts shall be repaired by each, and by s. 59, parishes are bound to repair the part allotted to them. The same proceeding may be adopted in the case of highways repairable by bodies politic or corporate, or private persons, ratione tenura.

Where a question arises as to the road being within the boundaries of the parish, it is sometimes necessary to prove those boundaries, by giving in evidence the award of commissioners appointed to set them out. In such case, it must be shown that the award of the commissioners pursues their authority. By an inclosure act, commissioners were directed to fix

(a) Eng. Com L. Rep. xxiii. 38. (b) Id. xvii. 420. (c) Id. xxxi. 45. (e) Id. 170. (ƒ) Id. vi. 483. (g) Id. xxvii. 107.

(d) Id. 170.

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