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books of authority is that it is a way lead- Bateman v. Bluck, however, the question ing from one market town or inhabited has been at rest. In that case the plaintiff place to another inhabited place, which is brought an action for trespass for entering common to all the Queen's subjects."3 “A the plaintiff's close and pulling down a wall passage which is open to all the King's | therein. The plea was stated that the subjects," says Smith's Leading Cases. close was a public pavement within the And in “Pratt on Highways,"5 it is laid Metropolitan Paving Act;$ that the plaindown that a highway comprises all por- tiff unlawfully and contrary to the Act tions of land over which every subject of erected therein the said wall, and because the Crown may lawfully pass. This sum- | the wall encumbered the pavement and mary by the leading text-books on the sub plaintiff refused on defendant's request to ject of highways is no doubt wide, but in remove the same, defendant entered and this, as in all the definitions, there exists | pulled it down. It was held, on motion for one common factor, namely, that the way judgment, non obstante veredicto, that the or place, whatever it may be, is open to plea was bad for showing that it was absoall the King's subjects, and not merely to a lutely necessary for defendant, in order to limited or privileged few.
exercise the alleged right of passage, to
remove the wall. And it was further held It is an essential element of a highway
that a public highway may in law exist that it should be open to all members of the public.
over a place which is not a thoroughfare. It, therefore, excludes a way
Lord Campbell, C. J., thus delivered judgover which a right of passage is given by
ment: license or in exercise of a right of ownership or occupation of adjoining land where
"On the issue raised by the fourth plea,
I think the defendant is entitled to a verby an easement over such way is granted
dict. That plea alleges that there was a or possessed. Roads commonly called “oc
public highway through the locus in quo, cupation” roads laid out for the accommo and that it was impossible for the defenddation of the occupiers of adjoining prop ant to pass along the highway without reerties do not come within the definitions. moving the wall. The jury found that this
was such public highway; and we are bound Nor, again, do village greens, parks, or
to assume that finding to be good, unless, fields, over which the inhabitants of a par
as is contended, there cannot in law be a ticular district have by custom or other highway through a place which is no thorwise obtained a right of recreation.
oughfare. It seems to me that such a doc
trine is incorrect. There may or may not Though a way to be a highway must be | be a highway under these circumstances. open to all and sundry it need not be a | Take the case of a large square with only thoroughfare. "If it were otherwise, in one entrance, the owner of which has for such a great town as this (London) it
many years permitted all persons to go into
and round it; it would be strange if he would be a trap to make people trespass
could afterwards treat all persons entering ers.” Só said Lord Kenyon, C. J., in Rug
it, except the inhabitants, as trespassers. by Charity Trustees v. Merryweather. In the Trustees of the Rugby Charity v. The subject, however, has not rested there, Merryweather, Lord Kenyon laid down as subsequently to this pronouncement
that there might be a highway through a
place which was not a thoroughfare, and there was considerable discussion on the
seems to have left it to the jury whether matter and views were expressed contra
there was such highway or not. In Wooddictory to the above. Since the case of yer v. Haddon (1813), 5 Taun 126, the
Court did not decide that there could not but only that in that particular case there Sons under section 72 of the Highway Act, was none; and I do not find anything de 1835, of unlawfully destroying the surface cided there which is necessarily incon
a | be a highway under such circumstances, (3) Bailey v. Jamieson, 1876. 1 C. P. D. 329. (4) 11th Edition, Volume 2, page 164, (5) 16th Edition, at page 1.
(7) 1852, 18 Q. B. 870. (6) 1790, East 375 n.
(8) 57 Geo. 3, cxxix.
of certain highways, the highway: being sistent with what was laid down by Lord
public footpaths in two fields belonging to Kenyon.”
Dennis and Sons, and they had been deThere are three kinds of ways which can
stroyed by being ploughed up. Dennis and be highways and which have been classified Sons sought to justify their action on two by Lord Coke. “There be three kynds of grounds, (1) that the footpath was not a wayes whereof you shall reade in our an highway; and (2) that they had acted uncient bookes—first a footway which is der a notice from the war agricultural excalled iter quod est jus eundi vel ambulandi ecutive committee of Holland County Counhominis; and this is the first way. The sec cil, which required them to plough and ond is a footway and horseway, which is convert into arable the grass land in quescalled actus ab agendo; and this vulgarly is tion so as to provide a good crop for the called pack and prime way, because it is harvest of 1918. The conviction was upboth a footway, which was the first or prime held. But Mr. J. Darling had some doubt way and a pack or drift way also. The whether a footpath could be a highway. third is via aditus, which contains the other | In his judgment he says: “An ordinary two and also a cartway, etc., for this is jus | person would not call a footpath a highcundi, vehendi, et vehiculum et jementum way, and I was at first inclined to think ducendi; and this is twofold, viz., Regia via, that the appellants had committed no ofthe King's highway for all men, et com fense, but the decision in Mercer v. Woodmunis strate, belonging to a city or town or | gate,12 went upon the assumption that a between neighbour and neighbours." footpath was a highway, and therefore the
Justices were right in holding that the apTo designate a footpath as a highway
pellant had infringed the statute.” certainly would appear rather grandilo
The case referred to by Mr. J. Darling quent, but on principle guided by the con
| decided that there may in law be a dedicasiderations and definitions quoted above,
tion to the public of a right-of-way such as there is no reason why it should not be
a footpath across a field subject to the so called. The question, however, has
right of the owner of the soil to plough it been debated more than once. In 1836,
up in due course of husbandry and delete in the case of Davies v. Stephens, 10 it was
all trace of it for the time. This case, apart decided that if in an action for trespass
from assuming a pathway may be a highthe defendant pleads a footway his plea is
way, also deals with the point raised and supported by proof of a carriageway, as
decided in Davis v. Stephens referred to a carriageway always includes a footway.
above, that a way can be dedicated to the A gate being kept across a way is not con
public with a reservation as to the enjoyclusive that it is not a public way, as the
ment thereof. In the year 1869 there was way may have been granted to the public
another case very similar to Mercer v. with a reservation of the right of keeping
Woodgate, namely, Brackenborough y. a gate across it to prevent cattle straying.
Thorseby (1869), 33 J. P. 565. In this The case before Mr. Justice Darling, re
case, during the course of the argument, ferred to at the commencement of this ar
Mellor, J., says: “Surely a footway may ticle, 11 was an appeal from a decision of
be a highway and why should a footway the Justices, who had convicted Dennis and
not be protected as well as a carriageway?"
DONALD MACKAY. (9) Co. Lib. 56a.
Glasgow, Scotland. (10) 7 C. & P. 570. (11) Dennis & Son, Ltd., v. Good.
(12) 1869, L. R. 5 Q. B. 26.
SUFFICIENCY OF SERVICE OF NO- Notice properly served on a tenant is
TICE TO VACATE BY LAND- | binding on a sub-tenant coming in after the LORD.
service of the notice.
By Mail.-In England it has been held
that sending the notice to the tenant by Introductory.—At common law and by
registered mail is sufficient service.5 weight of authority in most states, under
Service of notice by mail, so as to cast statutes relating to the subject, a notice
upon the tenant the risk of receiving it, is by a landlord to a tenant terminating the
not authorized. However, it is held in tenancy need not of necessity be served
Minnesota, that if such mode of service is personally on the tenant. Of course, if
adopted, and the notice is actually received the statute prescribes the manner of serv by the tenant within the required time, it ice, its provisions must be complied with. is sufficient.
As a general rule, any mode of serving | Reading Notice to Tenant.—When the a notice to quit is sufficient, where it can notice is required to be in writing it must be traced to the hands of the party for be delivered; a mere reading of it to the whom it was intended in due time. When- | tenant being insufficient.' ever service upon the party in person is
If the tenant receives the notice after it practicable, it should be the mode adopted;
has been read to him, the service is suffibut in the absence of the tenant, the notice
| cient. This is true although the notice is may and should be served in the manner
addressed to him and another. 8 best calculated to reach him."
Delivery to Person Other Than Tenant. It has been stated in a Missouri case:
-Leaving the notice at the lessee's house, "Service by copy may be liberally viewed
off the demised premises, and calling the for certain purposes. But it is not so
attention of a person, not an agent of the viewed in all cases. One may be presumed
lessee nor a member of his family, to it, to remember that he has indorsed a note,
was held insufficient, unless it were shown and to expect notice about a certain time.
that the lessee actually received the noBut in proceedings to terminate a tenancy
tice. by notice, whilst to require personal serv
Delivery to Wife of Tenant.—By the ice might put it in the power of the ad
weight of authority, it is a sufficient servverse party to make it impnssible to ter
| ice of notice to quit to leave it at the tenminate a tenancy in the absence of some
ant's home on the premises with his wife, statutory provision, the rule as to service
in the absence of the tenant from home; it by copy should be applied with some strict
not being necessary that it should be served ness, and it should appear that there has
personally on him.10 been reasonable diligence, and that the
(4) Schilling v. Holmes, 23 Cal. 227. mode adopted is reasonably likely to give (5) Van Grutten v. Trevenen (1902), 2 K. B. actual notice where there is no appearance
82, 71 L. J. K. B. 544.
(6) Alworth v. Gordon, 81 Minn. 445, 84 N. of attempt on the part of the one to be i W. 454; Prendergast v. Searle, 81 Minn. 291, served to evade notice."?
(7) Langan v. Schlief, 55 Mo. App. 213; JenIf the tenant is personally served, serv
kins v. Jenkins, 63 Ind. 415.
(8) Langan v. Schlief, 55 MO. App. 213. ice may be made on or off the premises. (9) Hodgkins v. Price, 137 Mass. 13.
(10) Doe v. Gray, 2 Houst. (Del.) 135; Bell
v. Bruhn, 30 Ill. App. 300; Blish v. Harlow, 15 (1) Alworth v. Gordon, 81 Minn. 445, 84 N. Gray (Mass.) 316; Clark v. Keliher, 107 Mass. W. 454.
406; Steese v. Johnson, 168 Mass. 17, 46 N. E. (2) DeGiverville v. Stolle, 9 Mo. App. 185. 431; Hazeltine v. Colburn, 31 N. H. 466; Cad
(3) Epstein v. Greer, 78 Ind. 348; Minard v. wallader v. Lovece, 10 Tex. Civ. App. 1, 29 S. W. Burtis, 83 Wis. 267.
84 N. W. 107.
In a Rhode Island case it appeared that explained to the wife when served on her, notice in due form was delivered to the ten- | or that she communicated the fact of its ant's wife during the tenant's absence; that, service or delivered it to her husband, was in accordance with directions of the ten insufficient, unless she was his agent, or the ant's attorney, the wife took the notice to person in possession, within the meaning of inim; and that she did not mention the no the statute.10 tice to her husband, who could not read
In Massachusetts it has been held that or write. It was held that the jury were
service on the wife, on the premises, was justified in finding, as an inference from
good, although the tenant lived at home, the fact of service on the wife, that actual service was made upon the husband.11
was not out of town, but merely away from
the house at the time.17 In justification of the rule that service on the tenant's wife constitutes service on
Delivery to Servant or Employe.—Where him, it has been said:
it appeared that the officer whose duty it "A wife is by reason of her relationship
was to serve the notice, went to the house to her husband the keeper of his house and occupied by the tenant, and, in response to his agent to perform such duties relating to his ringing of the door bell, a woman opened the domicile as are necessary in his ab | a window and asked him what he wanted, sence. Among these may be reasonably
to which he replied that he had a notice included the reception of notices relating to the tenure of the premises. If personal
for the tenant, and she said she would give notice upon the tenant were necessary it it to him, and he then handed her a copy would be a difficult undertaking for a land of the notice, it was held that the jury were lord to terminate a monthly tenancy if the justified in finding that the women was the tenant should wish to avoid service."12
wife or servant of the tenant; the Court Where the wife was the tenant, service further holding that if the woman was of notice on the husband was held to be either servant or wife of the tenant, the good, although the notice was addressed service was good.18 to him.13
A salesman in the tenant's store, during Same-Absence of Tenant.-It seems
| the tenant's temporary absence, is not a very well settled, that where personal serv
proper person on whom to serve notice. ice cannot be effected, in the absence of a
The salesman, although exercising certain statute requiring the service of notice to be made in a specified manner, it is suffi
agency powers, is not deemed to be an
agent of the tenant for this purpose. 19 cient if left with the wife of the tenant.14 So, where the tenant is absent from the
Delivery to Servant of Boarding House state, service of notice on his wife, in this
Where Tenant Resides.-Service of notice instance at his place of business, is suffi
by leaving a copy with a servant of the cient.15
keeper of a boarding house at which the Service of notice on a tenant's wife,
tenant had resided and where his wife yet while he was absent at work, in the ab
remained, is held insufficient in Missouri; sence of a showing that he was out of the
it appearing that by proper inquiry and reacity, or that he could not have been served
sonable diligence the tenant could have without difficulty, or that the notice was
(16) Haumueller v. Ackermann, 150 Mo. App.
(11) Cranston Print Wks. v. Whalen, 27 R. I. 445, 63 Atl. 176, 114 A. S. R. 56, 8 Ann. Cas. 1143.
(12) Cranston Print Wks. v. Whalen. 27 R. I. 445, 63 Atl. 176, 114 A. S. R. 56, 8 Ann. Cas. 1143.
(13) Cook v. Creswell, 44 Md. 581.
(15) Gerhart Realty Co. v. Weiter, 108 Mo. App. 248.
(17) Blish v. Harlow, 15 Gray (Mass.) 316.
(18) Steese v. Johnson, 168 Mass. 17, 46 N. E. 431.
(19) Van Studdiford v. Kohn, 46 Mo. App. 436.
(20) DeGiverville v. Stolle, 9 MO. App. 185. fendants believe by the instigation and pro647; Doe v. Watkins, 7 East 551; Doe v. Crick,
Agent of Tenant.— Notice served on one controlled by statute, and what is sufficient who, as agent of the tenant, has charge and service depends upon the provisions of the management of his business with refer statutes in the state in which notice is given. ence to the tenancy, is sufficient.”
Service of notice on the bailiffs or head This is more especially true if it is im- |
officers of a corporation, has been held by practicable to serve the tenant personally, an English case to be sufficient.28 and it appears that the notice was timely delivered to the tenant by his agent.22
It has been held that service of notice “Person in Possession.”—Some statutes
on its treasurer is good service on the correquire that notice be served on the tenant
poration, both at common law and under or person in possession of the premises.
the statutes of Minnesota.29
C. P. BERRY. Under this provision, possession by a person who merely happens to be on the
St. Louis, Mo. premises, or, for instance, a lodger, is not
(28) Dole v. Woodman, 8 East 228. such possession contemplated by the stat
(29) Lindeke v. Associates Realty Co., 146 Fed. 630, 77 C. C. A. 56.
There are two classes of privileged communications recognized governing the publication of alleged libelous matter, one constituting an absolute privilege, and the other a qualified privilege, and pertinent and relevant statements in pleadings in judicial proceedings are within the first class, and are absolutely privileged; the test being their relevancy and pertinency to the issues involved, regardless of the truth of the statements or of the existence of actual malice.
A notice addressed to the original tenant, and served on the father of the person in possession of the premises, was held to be sufficient compliance with a provi
LIBEL AND SLANDER-PRIVILEGE. sion requiring service by leaving a copy with a person residing on or in posses
MAUNEY v. MILLAR. sion of the premises.24 The mere fact that the wife of the ten.
(Supreme Court of Arkansas. March 8, 1920.) ant paid the rent at the instance of her hus.
219 S. W. 1032. band, does not make her the person in possession for the purpose of receiving such notice.25
Two or More Joint Tenants.—Where there are two or more persons in possession of premises as joint tenants or in common, serving the notice on one of them, on the premises, has been held to be sufficient service as to all.26
MCCULLOCH, C. J. This is an action to reService of notice on the partner of the
cover damages for libel alleged to have been
published by appellee in an answer and crosstenant, on the premises, during the tem
complaint filed by him in a certain action insti. porary absence from the state of the tenant,
tuted by appellants in the chancery court of was held sufficient as to the tenant.27 Pike county to cancel a contract for the lease
Service on Corporation.—The manner of of certain lands to be used in the operation of serving notice on a corporation is largely
a diamond mine. The complaint in the pres.
ent action sets forth all of the pleadings in (21) Prendergast v. Searle, 81 Minn, 291, 84
the proceedings in which the alleged libelous N. W, 107.
matter was published, and the particular mat(22) Ewing v. O'Malley, 108 Mo. App. 117, ter charged to be libelous was set forth as one 82 S. W. 1087.
í of the allegations of appellee's cross-complaint (23) Baragiano v. Villani, 117 Ill. App. 372. (24) Farnain v. Hohman, 90 111. 312.
as follows: (25) Haumueller v. Ackermann. 150 Mo. App.
"On the 13th day of January, 1918, as de141. (26) Grundy v. Martin, 143 Mass. 279, 9 N. E.
curement of the plaintiffs, the plant that had 5 Esp. 196.
been erected for the washing of the diamond(27) Walker v. Sharpe, 103 Mass. 154.
bearing dirt as well as another plant belong