HIGHWAY

A highway is a way over which the pub lie at large have a right of pa age, and includes a horse road, or a mere footpath, as well as a carriage road. It was considered formerly that no way which did not lead to a market town was a highway; but it is now settled that any way common to all people, without distinction, is a highway. A public navigable river is also called a highway. The right of the public in a highway is, however, a right of pa age over it, and nothing more. The soil itself, and all the profits upon it, as trees, or underneath it, as mines, minerals, , and also any strips of waste land lying between the highway and the lands adjoining it on either side, belong, in moieties, to the owners of such adjoining lands. But if such strips of waste land be contiguous to or communicate with an open common, they are then taken to be part of the common. A highway may originate from a continual user of land by the public in traversing it without interruption from the owner, or from an expre dedication of it by him to their use. A much shorter period of user will establish a right in the public than a right in any private person to a way; the user in the former case being so open and notorious that the owner of the land may fairly be presumed to have had early notice of it, and to have a ented to it by not opposing it. Accordingly, a public way may be acquired by an enjoyment for live or six years, although twenty years' enjoyment is nece ary in the case of a private way. A highway may also take its origin from statute or from nece ity. A highway originates from nece ity when tho accustomed line of highway is out of repair so as to be Impa able: in which case the public have a right to traverse the adjoining ground, even if it be sown with grain. The duty of keeping highways in repair is cast by the common law upon the occupiers of lands in the parish generally;but particular persons may be liable to repair by prescription or tenure. They may also be liable in respect of enclosure; that is, if a highway he free from fences on either side, and the owner of the adjoining land chooses to fence it off from the highway, he will then be liable in respect of his enclosure, because he has thereby deprived the public of using his land as a way of nece ity, in the event of tho original highway becoming impa able for want of repair. The omi ion to repair on the part of the parish or party liable is an indictable offence, and may be punished accordingly. Various statutes regulate the mode in'which the occupiers in a parish are to contribute labour, carts, and* cattle, for the purpose of repairing highways, and to perform upon them what is therefore called statute duty. Surveyors, also, are annually appointed in furtherance of the same objects. Highways are frequently placed by the legislature under the jurisdiction of trustees; such highways are popularly called "turnpike roads." If sufficient materials for the repair of roads cannot be found on the waste lands of a parish, the surveyors have authority to take them from the lands of any private person ("such lands not being a garden, yard, avenue to a house, lawn, park, paddock, or en closed plantation, or enclosed wood, not exceeding one hundred acres in extent"), on making him satisfaction for the materials taken away and the damage done, to be ascertained by the justices at special se ions. Any expenses incurred by the above proceedings may be reimbursed to the surveyors by an a e ment made upon the occupiers in the parish, un der the authority of two justices [s. 574]