public, of a part of the street, to one kind of passage, and another part to another, does not deprive him of any rights, as owner of the land, which are not inconsistent with the right of passage by the public. (e)

In order to constitute a valid dedication to the public of a highway, by the owner of the soil, it is clearly settled that there must be an intention to dedicate, an animus dedicandi, of which the user by the public is evidence, and no more; and a single act of interruption by the owner is of much more weight upon a question of intention than many acts of enjoyment. (ƒ)

Adoption by the public, and acquiescence, at least, if not user, are most material ingredients to constitute a binding dedication. (g)

The intention of the party to dedicate must be clear, and time is considered an essential ingredient. The act or assent of the public must be manifest and complete, and even then a subject cannot, by any spontaneous act of appropriation, impose a highway upon the public. If a highway, the public become bound to repair it, and, consequently, their adoption or assent becomes important. Such adoption and assent, in the case of allowances, are waived by the expenditure of public money in opening or repairing, the performance of statute labor, user, etc.; but, without some evidence of adoption by user, or other manifestation, an allowance for road at common law would continue an allowance only, and not a road in fact. (h) A reservation inconsistent with the legal character of a dedication would be void. (i)

It seems there may be a public highway without its

(e) St. Mary Newington v. Jacobs, L. R. 7 Q. B. 53, per Mellor, J. (f) Mercer v. Woodgate, L. R. 5 Q. B. 32, per Hannen, J.; Hawkins v. Baker, 1 Oldright, 423, per Des Barres, J.; Leary v. Saunders, 1 Oldright, 17.

(g) Rex v. Inhab. St. Benedict, 4 B. & A., 447; 12 Ea. 192; Rex v. Allan, 2 U. C. Q. B. O. S. 100, per Robinson, C. J.

(h) Ibid. 103-4, per Macaulay, C. J.

(i) Arnold v. Blaker, L. R. 6 Q. B. 437, per Kelly, C. B.

being a thoroughfare; at all events, if a highway were stopped at one end so as to cease to be a thoroughfare, it would, in its altered state, continue a highway. The old doctrine that a highway implied a thoroughfare, has been so far modified by more recent decisions that there may be in a square in a great city, lighted and paved at the public expense, which the public, in fact, frequent, passing along its three sides, or to the houses therein situate, a highway in legal contemplation, although it is a cul de sac. (j)

But where such highway is claimed by dedication, the acts or declarations relied on to support it must be clear and unequivocal, with manifest intention to dedicate. There is a difference between a cul de sac in the city and one in the country; much stronger acts being required to establish a public highway by dedication in the latter than in the former. The mere acting so as to lead persons to suppose that a way is dedicated does not amount to a dedication, if there be an agreement which explains the transaction. (k) The question of dedication or no dedication is a question of fact for the jury. (1)

Whether a certain road constitutes a highway or not is generally a mixed question of law and fact, depending much upon circumstances and the peculiar features of each case. (m) The expenditure of public money on a road laid out thirty feet wide can only make it a public highway to that extent, and will not have the effect of extending it to a highway four rods wide. (n) Where a road has been used as a public highway, and the usual statute labor of the locality done upon it from year to year, this will, in the absence of explanation, establish the road as a public high

(j) Hawkins v. Baker, 1 Oldright, 419-24; Rex v. Marquis of Devonshire, 4 A. & E. 713, per Patteson, J.

(k) Ibid. 419; see also Poole v. Huskinson, 11 M. & W. 827; Bateman v. Black, 18 Q. B. 870; 21 L. J. Q. B. 406.

(1) Belford v. Haynes, 7 U. C. Q. B. 464; Reg. v. Gordon, 6 U. C. C. P. 213; Reg. v. G. W. R. Co., 12 U. C. Q. B. 251, per Robinson, C. J. (m) Rex v. Allan, 2 U. C. Q. B. O. S. 102, per Macaulay, J.

(n) Basterach, v. Atkinson, 2 Allen, 439.

way. (0) But where it appeared from the evidence that statute labor had been performed on part of the road in question, but only to a limited extent, and not from time to time, so as to show it was a road "whereon the statute labor hath been usually performed," it was held not sufficient to establish the road as a public highway under the 22 Vic., c. 54. (p) 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, it was considered under the authority of s. 313 Con. Stat. U. C., c. 54, that it must be deemed a public highway. (q)

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

Where a railway company, bound by their charter to restore any highway intersected by their track "to its former state, or in a sufficient manner not to impair its usefulness," constructed their road across a street which was sixty-six feet wide, and connected the street again by a bridge across the track forty feet two inches in width, it was held that the jury 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. (r)

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. (s)

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

(0) Reg. v. Hall, 17 U. C. C. P. 286, per J. Wilson, J.

(p) Ibid. 282, per J. Wilson, J.

(q) Prouse v. Corporation of Mariposa, 13 U. C. C. P. 560. (r) Reg. v. G. W. R. Co., 12 U. C. Q. B. 250.

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

approach from this street impassable, it was held that they were justified in so doing, and not guilty of a nuisance in obstructing the street, or obliged to restore the approach. (t)

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 outside of the premises, is not a public nuisance within the Imp. 5 & 6 Wm. IV., 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. (u)

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. (v)

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. (w)

In Reg. v. Fralick, (x) it was held under the facts stated in that case that 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. (y)

Where a waggon is left standing in the highway, the owner cannot exempt himself from liability by showing that the person injured thereby was drunk at the time of the accident; for it cannot be permitted to a person to place any

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

(u) Stinson v. Browning, L. R. 1 C. P. 321 ; and see Hadley v. Taylor, ibid. 53.

(v) Mercer v. Woodgate, L. R. 5 Q. B. 31; per Blackburn, J.

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

(2) 11 U. C. Q. B. 340.

(y) Reg. v. Purdy, 10 U. C. Q. B. 545; Reg. v. G. W. R. Co., 12 U. C. Q. B. 250.

obstruction that he pleases in the highway, and to consider himself responsible for no injury that may 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. (2)

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. IV., c. 2, s. 16, as for obstructing or encroaching upon a highway. (a)

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

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. (c)

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 showed 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 C.'s block, but none in Fourth

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

(a) Ex parte Morrison, 1 Allen, 203; and see Cole v. Maxwell, 3 Allen,

183.

(b) Reg. v. Brittain, 2 Kerr, 614.

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