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; it was 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; and that he was therefore entitled to an acquittal. (d)

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. (e)

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, the court held that it had become a public highway, and could not be stopped up by by-law 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. (ƒ)

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 road, and convicted in 1870; and the corporation of York then passed a by-law to close it, reciting that there was no further necessity for it, by reason of the road allowance. There

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

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

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

being in the facts above stated sufficient evidence of dedication and acceptance of this road as a highway, the court held that it was a road dividing different townships, over which the county council only had jurisdiction, and that the by-law therefore was illegal. Such a road need not consist of an original allowance, but may be acquired or added to by purchase or dedication. (g)

To justify shutting up a highway under 1. Rev. Stat. (N. B.), c. 66, the return of the commissioners must show, either expressly or by necessary implication, that the road is not required for the convenience of the inhabitants of the parish. (h)

The commissioner of crown lands has no authority to open roads on lands granted by the Crown, and any money expended for such purpose under authority so given, is not public money, within 22 Vic., c. 54, s. 33; and the roads so opened do not, therefore, become public highways under that Act. (i)

A municipal corporation had power to open new roads through any person's lands, under the restrictions in the statute 12 Vic., c. 81, s. 31. (j) But a by-law of a municipal council for the alteration of an old road has been held bad, in not assigning any width to the new road. (k)

At common law, an ancient highway might be changed by writ of ad quod damnum. But this writ only avails so far as the rights of the Crown extend, and only in relation to rights which the Crown may grant. (2)

To allow a public highway to become ruinous and out of repair, is a nuisance indictable at common law. The party on whom the obligation to repair is imposed, whether by common law or otherwise, is indictable for breach of that

(g) Re McBride, 31 U. C. Q. B. 355.

(h) Oulton v. Carter, 4 Allen, 169; as to by-law to close and sell road, see Baker and Corporation of Saltfleet, 31 U. C. Q. B. 386. (i) Reg. v. Hall, 17 U. C. C. P. 282.

(j) Dennis v. Hughes, 8 U. C. Q. B. 444.

(k) Re Smith and Council of Euphemia, 8 U. C. Q. B. 222. (1) Reg. v. Meyers, 3 U. C. C. P. 321, per Macaulay, C. J

obligation, ad commune damnum. (m) Though a statute provides that the proprietors of a road shall not collect any tolls thereon while out of repair, this does not suspend the common law right of indictment in case of non repair. (n) Where a common and public highway is impassable and out of repair, although not from accident, casualty, or emergency, a person using and passing along the highway may go through the adjoining land, going no further from the highway than is necessary, and returning thereto as soon as practicable, and doing no unnecessary damage in that behalf. (0) It would seem to make no difference whether the adjoining land be sown with grain or not. (p)

Road companies owning public highways, and entitled to tolls for the use thereof, are, upon the principles of the common law, liable to an individual lawfully using the road, and guilty of no fault on his part, for a special injury received in consequence of the company permitting the road to be out of repair; and such want of repair is also a public nuisance as respects the public at large, and the company may be liable to an indictment therefor. (g)

Grantees of the Crown of public highways are indictable at the suit of the public for default in repairing such highways, although they are also liable to the Crown for the breach of their covenant to that effect, contained in the patent; and this liability follows and accompanies the transfer of the property, so as to make the purchaser of part, or mortgagee of the residue, also indictable for the same cause, although it has been expressly agreed between grantor and grantee, that the former shall and the latter shall not be bound to repair. To maintain an indictment against the defendant under such circumstances it is not necessary that the government engineer should have first condemned the road by a certificate. (r)

(m) Reg. v. Corporation of Paris, 12 U. C. C. P. 450, per Draper, C. J. (n) Ibid. 445.

(0) Carrick v. Johnston, 26 U. C. Q. B. 65.

(p) Ibid. 68, per Hagarty, J.

(q) MacDonald v. Hamilton and P. D. P. L. Co., 3 U. C. C. P. 402. (r) Reg. v. Mills, 17 U. C. C. P. 654.

A company having been formed under the provisions of the Joint-Stock Road Act in several townships, including the defendants, subsequently mortgaged said road to the counties of Lincoln and Welland, which counties, at a later date, took an absolute conveyance, and passed a by-law, by which they assumed it as a county road. They afterwards passed a bylaw, requiring the respective townships (the defendant's being one of them) through which the road passed to keep the same in repair. On the trial, the defendants were found guilty. On special case left to this court it was held that the road never vested in or became a county road within the meaning of the statute, but as one acquired by the county, as assignees of the road company, and, as such assignees, they held the same, with all the rights and subject to all the duties and obligations which the law imposed upon the said company, which constructed it, and that the county had no power to divest itself of this obligation, and throw the duty of repairing on the defendants. (s)

Where a road ran through the town of Whitby, and was part of a macadamized road, made by the Government, before the 13 & 14 Vic., c. 14, and afterwards transferred to the plaintiffs, it was held that, under this statute, the corporation of the town were clearly bound to keep in repair that portion of it within their limits. (t)

Municipal corporations are, under the R. S. O., c. 174, s. 491, bound to keep all highways in the township in repair. and they have all necessary powers given to them for enabling them to perform that duty. (u) The Con. Stats U. C., c. 49, s. 84, provides that, after any road has been completed, and tolls established thereon, the company shall keep it in repair. (v)

The Des Jardins Canal Co. having been indicted for not keeping in repair the bridge over their canal, where it

(8) Reg. v. The Corporation of Louth, 13 U. C. C. P. 615.

(t) Port Whitby R. Co. v. Corporation Town of Whitby, 18 U. C. Q. B. 40. (u) Colbeck v. Corporation of Brantford, 21 U. C. Q. B. 276.

(v) Caswell v. The St. M. & P. L. J. R. Co., 28 U. C. Q. B. 250, per A. Wilson, J.

crosses the highway, built for them by the Great Western Railway Company, it was held that they, and not the railway company, were bound to keep such bridge in repair; and that evidence of the state of the bridge, a few days before the trial, was admissible, not as proof of that fact, but as confirming the other witnesses, who swore to its. state at the time laid in the indictment, and as showing. such state by inference. (w)

The members of a gas company, having parliamentary powers to open streets, for the purpose of public lighting, but having no similar powers for the purpose of conveying gas to private houses, are liable to be convicted for a nuisance, in obstructing the highway, if they open the streets in order to lay down service pipes from the mains, already laid down by them for public lighting, to the houses of the adjacent inhabitants. An inhabitant who directs such service pipes to be laid down to his house is also similarly liable. (x)

Where a street, which was a public highway, had been once put in good repair, but at the time of the passing of the special Act was out of repair, it was held that the commissioners had no power, under s. 53, 10 & 11 Vic., c. 34, to do the necessary repairs, and charge the expenses on theadjoining occupiers, as the word "theretofore" in that section is not restricted to the time of the passing of the special Act, but is used in its ordinary sense. (y)

Where a highway, fifty feet in width, was set out under the General Inclosure Act, 41 Geo. III., c. 109, but only twenty-five feet were used as actual road, the sides being allowed to grow up with trees, it was held that the right

(w) Reg. v. Des Jardins Canal Co., 27 U. C. Q. B. 374; see as to repair of hundred bridges within the English Highway Act, 1835, Reg. v. Inhab. of Claret and Longbridge, L. R. 1 C. C. R. 237; as to repair of publi buildings, Hawkeshaw v. District Council of Dalhousie, 7 U. C. Q. B. 590; as to repair of roads in parishes, Reg. v. Folville, L. R. 1 Q. B. 213; 35 L. J. (M. C.) 154.

(x) Reg. v. Knight, 7 U. C. L. J. 23.

(y) Reg. v. Great Western R. Co., 5 U. C. L. J. 216.