a public highway under the 22 Vic. c. 54. (a) Where about fifteen years before the finding of the indictment the Township Council had built a bridge on the road, and expended money thereon, and statute labor had been done thereon:-Held, under the authority of s. 313, Con. Stats. U. C., c. 54, it must be deemed a public highway. (b)

A party is punishable for non-performance of statute labour, and under Con. Stat. U. C. c. 55, s. 86, a warrant might have issued to imprison a person for non-performance of statute labour without first summoning him to answer or making a conviction. (c) To save himself from fine a party must when called upon, perform his statute labour within the division of the township in which he resides. (d)

It seems a person who has land in a township, but is not himself resident there, is not liable to be convicted for non-performance of statute labor in the township where the land lies. (e) Where the President and Board of Police at Cobourg, under the Cobourg Police Act issued a warrant for non-performance of statute labour, to imprison for the remainder of the penalty for twelve days absolutely, and not unless the fine and costs should be sooner paid, and after alleging summons, appearance, conviction, and warrant of distress, averred that part of the sum directed to be levied had been made, and that the Plaintiff had no more goods :-Held, that the warrant to imprison was clearly bad, because it was after part of the fine had been paid, and was for an absolute time and not unless fine and costs be sooner paid. (f)

(a) Reg. v. Hall, 17 U. C. C. P. 282, per J. Wilson, J.
(b) Prouse v. Corporation Mariposa, 13 U. C. C. P. 560.

(c) Reg. v. Morris, 21 U. C. Q. B. 392.

(d) Gates v. Devenish, 6 U C. Q. B. 260.

(e) Moore v. Jarron, 9 U. C. Q. B. 233. See (Ont) 32 Vic. c. 36, s. 79-89. f) Trigerson v. Board of Police Cobourg, 6 U. C. Q. B. O. S. 405.

Nuisances to highways are of two classes: positive, as by obstruction, and negative, by want of sufficient reparation.

A railway company by their charter were bound to restore any highway intersected by their track "to its former state, or in a sufficient manner not to impair its usefulness." They constructed their road across a street in the city of Hamilton, which was sixty-six feet wide, and connected the street again by a bridge across the track forty feet two inches in width. Being indicted for a nuisance in thus making the street narrower than before, and the jury having found the facts above mentioned:— Held, that they might with propriety find this to be a sufficient compliance with the Act, and that the Defendants were not necessarily guilty of a nuisance because the bridge was not of equal width with the street crossed. (a)

But where a railway company in passing over a highway, had lowered the highway at the point of intersection, so as to make it inconvenient and dangerous, this was held to be an indictable nuisance. (b)

Where a street ran into a road allowance, but did not cross it, and the Defendants being incorporated under 16 Vic. c. 190 for gravelling the road, so far lowered the level in order to get the grade prescribed by the statute, as to make the approach from this street impassable :—Held, that they were justified in so doing, and not guilty of a nuisance in obstructing the street, or obliged to restore the approach. (c)

A fire lighted by a wheelwright for the purposes of his business, within fifty feet of the centre of the highway, such fire being fed by lifting a lid in the wall on the

(a) Reg. v. G. W. R. Co., 12 U. C. Q. B. 250.

(b) Reg. v. G. T. R. Co., 17 U. C. Q. B. 165.

(c) Reg. v. W. & D. P. & G. R. Co., 18 U. C. Q. B. 49.

outside of the premises, is not a public nuisance within the 5 & 6 Wm. 4, c. 50, s. 72; for to constitute the act an offence within this section it must be shown that some injury is done to the highway, or some danger or annoyance is occasioned to passengers in using it. (a)

When there has been a dedication of a highway to the public, anything afterwards done by the owner interfering with that right of way is a nuisance. (b)

The use of a velocipede on the sidewalk, though no one be near it, may be an obstruction within the provisions of a by-law that no person shall, by any vehicle, encumber or obstruct the sidewalk. (c)

In Reg. v. Fralick, (d) it was held under the facts stated in that case, the defendant, being the lessee of the ordnance department, had no right to obstruct the road leading to the Niagara Falls Ferry, and that he was guilty of an indictable nuisance in so doing. But where an allowance for a road has never been opened as a public highway, the notice and order required by the 9 Vic. c. 8 not being given; an indictment for a nuisance in obstructing it cannot be maintained. (e) In Reg. v. G. W. R. Co. (f) the defendants were indicted for a nuisance in obstructing the streets, but it was held that under the facts stated they were entitled to an acquittal.

Where a waggon is left standing in the highway, the owner cannot exempt himself from liability by shewing that the person injured thereby was drunk at the time of the accident; for it cannot be permitted to a person to place any obstruction that he pleases in the highway, and to consider himself responsible for no injury that may

(a) Stinson v. Browning, L. R. 1 C. P. 321; and see Hadley v. Taylor, ib. 53. (b) Mercer v. Woodgate. L. R. 5 Q. B. 31, per Blackburn, J.

(c) Reg. v. Plummer, 30 U. C. Q. B. 41.

(d; 11 U. C. Q. B. 340.

(e) Reg. v. Purdy, 10 U. C. Q. B. 545. (ƒ) 21 U. C. Q. B. 555.

happen from it, except to persons who are sober and vigilant in looking out for nuisances that they had no reason to expect to find there. (a)

If a road is laid out over land upon which a fence is standing, it is the duty of the Commissioners of Highways to remove the fence, and the owner of the land omitting to do so, is not punishable under the Act 5, Wm. 4, c. 2, s. 16, as for obstructing or encroaching upon a highway. (b)

A conviction for obstructing a highway is bad unless it appears on the face of it that the place was a public highway. (c)

Where a person has sold lots according to a plan in which a lane is laid out in the rear, he cannot afterwards shut up such lane, and the fact that he had previously conveyed portions of the land comprised in the lane would only affect so much as he had thus precluded himself from giving up to the public, and would not entitle him to close up the whole. (d)

C. owned township lot 32, and H. lot 31, adjoining it on the east. In 1856 H. laid out part of 31 with village lots, according to a registered plan, which shewed streets called First, Second, Third and Fourth Streets, etc, running from east to west across the block to the east limit of Lot 32. In 1858 C. laid out the east part of Lot 32 by a plan also registered, by which a street called Augusta Street ran north and south, along the east side of 32, and from it streets ran westerly numbered 1, 2, 3, 4, etc., corresponding to and a continuation of First, Second, Third and Fourth Streets on H's block, Augusta Street only intervening. Village lots had been sold on street 4 in

(a) Ridley v. Lamb, 10 U. C. Q. B. 354.

(b) Ex parte Morrison, 1 Allen, 203; and see Cole v. Maxwell, 3 Allen, 183. (c) Reg. v. Brittain, 2 Kerr. 614.

(d) Reg. v. Boulton, 15 U. C. Q. B. 272.

C's block, but none in Fourth Street on H's land, and the closing of this last named street would not shut out a purchaser of any lot from access to the nearest highway :Held, that under 24 Vic. c. 49 the owner of H.'s block might, by a new survey and plan, close up Fourth Street on his land, for the laying out a street in continuation of it by C. did not make all one street, so as to render the provision in that statute applicable, and the owner of H.'s block having been convicted at the Quarter Sessions of a nuisance for so doing, on application to this Court :Held, that he was entitled to an acquittal. (a)

The placing of a gate across a travelled road after the public have been enjoying it for upwards of twenty years can never have the effect of abolishing a highway. It seems that a gate being kept across a public road is not conclusive to show that the road is not a public one, as the road may have originally been granted to the public, reserving the right of keeping a gate across it to prevent cattle straying. (b)

Where a road was laid out over land by the owners thereof, and was so used by the public without interruption for thirty or forty years :-Held, that it had become a public highway, and could not be stopped up by bylaw of the Municipal Council, particularly at the instance of a purchaser of one of such owners of the land, with knowledge too on his part of the existence of the road. (c)

Where a road had, for more than fifty years, been used as a road between the Townships of York and Vaughan, the original road allowance between the townships being to the north of it, and this road being, in fact, wholly within the Township of York and part of lot 25. The owner of the lot had been indicted for closing up this

(a) Reg. v. Rubidge, 25 U. C. Q. B. 299.

(b) Johnston v. Boyle, 8 U. C. Q. B. 142.

(c) Moore v. Corporation Esquesing, 21 U. C. C. P. 277.