1873

CUBITT

v.

LADY

MAXSE.

I am of opinion that the rule to enter a verdict for the defendant must be discharged. The defendant, having, to justify her acts, pleaded the existence of a common and public highway, was bound to prove that the locus in quo was a common highway. User by CAROLINE the public was expressly negatived by the finding of the jury. At all events, no user by the public was proved. If there was no user to sustain the plea, the defendant was driven to establish the existence of a common highway by virtue of the Act of Parliament. That was an Act passed in 1802, for inclosing that part of Effingham Upper Common which lay in the manor of Effingham East Court. It appears that a commissioner was appointed under the Act, who, by his award made in 1808, and a map accompanying it, set out a road of the width of 40 feet from a place called Pickett's Hole Corner, to a place called Rider's Corner, including the locus in quo: and, if the mere act of the commissioner in so setting it out by his award did constitute that road a public highway, the defendant would have made out her third plea. But it appears to me that that alone does not constitute a highway within the meaning of the local Act, read by the light of the General Inclosure Act, 41 Geo. 3, c. 109. The commissioner is to ascertain and set out the line of the intended roads under the local Act, and, that being done, a surveyor is to be appointed, who is to form and complete the road. Until that has been done, no liability to repair the road is cast upon the parish. The object of the general Act was that the roads set out should not be highways repairable by the parish until they had been formed and completed under the direction of the surveyor. Assuming that to be so, it is said that it may still have been the intention of the legislature that a road so set out should be a highway, though the parish might be under no liability to repair it. I do not assent to that argument. I take the intention of the legislature to have been, that the moment a way was ascertained to be a highway, it became repairable by the parish as at common law: and, when the Act of Parliament says that the road shall not be repairable by the parish until certain preliminaries are gone through, it appears to me that it was not intended that it should be a highway until all these were done. There being, then, no ground for the claim of a highway by user amounting to a dedication to the public, and, in the view I take as

1873

to the construction of the Act, no intention on the part of the legislature that the road set out should become a public highway until it was completely formed, in accordance with ss. 8 and 9 of CAROLINE the 41 Geo. 3, c. 109, I think this rule should be discharged.

CUBITT

บ.

LADY

MAXSE.

BRETT, J. The substantial question raised at the trial and upon the motion was, whether the Lord Chief Justice was not bound to direct the jury that the plea was proved, that is, that the 40-foot road set out under the award of the commissioner was a common and public highway. The facts are these:-In 1802 an Act was passed for inclosing a certain portion of Effingham Common; and it must be presumed that everything was done to entitle the commissioner to make an award. He did make an award in 1808, and by that award and the accompanying map he set out a road which was to be a highway, and which was properly set out by metes and bounds on the land, and fenced. But there was no evidence that anything more was done to the road,—no evidence that it was ever completed or even formed more than by setting it out by metes and bounds, and fencing it. Then there was abundant upon the evidence to justify the finding of the jury that the road was never taken to as a public highway. Upon that state of facts, the question is whether the Lord Chief Justice was bound to hold as matter of law that the road in question was a public highway. According to the authorities collected in the notes to Dovaston v. Payne (1), it seems that there are two ways by which a highway may be created. One is by dedication. "Except," it is said, "where this is done by the express enactment of the legislature, it derives its existence from a dedication to the public by the owner of the land over which the highway extends of a right of passage over it; and this dedication, though it be not made in express terms, as it indeed seldom is, may and will be presumed from an uninterrupted use by the public of the right of way claimed." That a mere dedication by the owner of the soil will not create a highway is clear. Blackburn, J., in delivering the judgment of the Court of Queen's Bench in Fisher v. Prowse (2), says: "It is of course not obligatory on the owner of land to dedicate the use of it as a high

(1) 2 Sm. L. C. C. 6th ed. at p. 140.

(2) 2 B. & S. 770, at p. 780; 31 L. J. (Q.B.) 212.

1873

CUBITT

v.

LADY

MAXSE.

way to the public. It is equally clear that it is not compulsory on the public to accept the use of a way when offered to them." Acceptance by the public is ordinarily proved by user by the public; and user by the public is also evidence of dedication by CAROLINE the owner. Both dedication by the owner and user by the public must concur to create a road otherwise than by statute. The other way in which a road may be created, is by statute. In the notes in 2 Smith's Leading Cases, 6th ed. at p. 144, it is said: "It has been already remarked that a highway is sometimes created by Act of Parliament passed for that purpose. The provisions of such an Act must be strictly followed, or the creation will not take place." That seems to me to shew that, in order to prove a public way created by Act of Parliament, it is necessary to shew that the provisions of the Act have been strictly followed. The cases cited in support of the proposition are, Rex v. Cumberworth (1) and Rex v. Edge Lane. (2) In those cases the Act of Parliament authorized the making of a road, in the one from A. to C., in the other from A. to B. with a branch road to C., and it was held that the road did not become a highway repairable by the parish until the entire road and branch were completely formed. In the lastmentioned case the Court relied very much on the remarks made by Lord Eldon in Blakemore v. Glamorganshire Canal Navigation. (3) "When," says that learned judge, "I look upon these Acts of Parliament, I regard them all in the light of contracts made by the legislature on behalf of every person interested in anything to be done under them; and I have no hesitation in asserting that, unless that principle is applied in construing statutes of this description, they become instruments of greater oppression than anything in the whole system of administration under our constitution." The persons here interested are the local public, whose interest it is that the road should be completed strictly in accordance with the Act of Parliament before it is put upon them as a highway. Applying that here, the commissioner, acting under the local Act and the general Act, was bound to carry out the enactments in s. 8 of the General Inclosure Act before the road could become a public highway, or any liability could be (2) 4 Ad. & E. 723.

(1) 3 B. & Ad. 108; 4 Ad. & E. 731.

(3) 1 My, & K. 162.

1873

CUBITT

v.

LADY CAROLINE MAXSE.

cast upon the parish to repair it. That is all that it is necessary for
us to decide here. The language of s. 9 would seem to confirm this
view; for, it treats the road as set out and mapped as an intended
road. Where, therefore, the intended road has never been taken
to by the public, before it can be considered as a common and
public highway it must have been completely formed in the
manner prescribed by the Act. It may be that, if the public take
to a road before it is completed, they cannot afterwards on account
of its incompleteness say it is not a highway. That might give
rise to a very different question, but one which does not arise here.
Let us see if the cases cited by Mr. Biron are inconsistent with
this view. The case he mainly relied on was Turner v. Ringwood
Highway Board. (1) But, looking at the facts of that case, it will
be found not to be opposed to our present decision.
It was
admitted that there was at one time a created road; and there
was nothing inconsistent with the supposition that the road had
been completely formed; and there had been a user by the public:
but it was contended that, inasmuch as only a portion of the width
of the road had been metalled, the residue on either side being
covered with heath and furze, the rights of the public were limited
to the via trita, and might be considered as waived or extinguished
as to the remaining portion by non-user. But Vice-Chancellor
James, referring to the case of Reg. v. United Kingdom Electric
Telegraph Co. (2), said that, whatever were the rights of the public
over the way in 1811, when it was first set out, those were the
rights of the public in 1868, when the acts complained of were
done. The fact which makes that case applicable here is, that the
road, such as it was, had been once completed and used; and the
dictum of Byles, J., in Dawes v. Hawkins (3) might well apply to
such a case. With respect to the case of Rex v. Lyon (4), the road
there had been recognised as public in an Act of Parliament, and
had always been used as a public way. My decision is based upon
this, that the alleged road was merely a road set out by the com-
missioner under the local Inclosure Act, but not completely formed,
and not used by the public, and therefore, according to the cases

(1) Law Rep. 9 Eq. 418.
(2) 31 L. J. (M.C.) 166.

(3) 8 C. B. (N.S.) 848; 29 L. J. (C.P.) 343.

(4) 5 D. & R. 497.

cited in the notes to Dovaston v. Payne (1), never became a public highway. The defendant, therefore, having failed to prove a compliance with the provisions of the General Inclosure Act, has failed to prove her third plea.

GROVE, J. I am of the same opinion. It is contended on the part of the defendant, as matter of law, that the setting out by the commissioner on a map or plan annexed to his award of a road, and the staking out of the line of such intended road upon the land, without any other act done or any evidence of user by the public, makes it at once and for all time a public highway, even though it were not traversable at all. That proposition would require very strong words in an Act of Parliament to sustain it. If the special Act and the award are to be considered as a bargain with the public, it seems singular that the public should be bound where the persons with whom they are supposed to contract have not complied with the conditions of the bargain on their part, and so the public do not get the thing they contracted for. The word "roads" in s. 9 of the General Inclosure Act cannot mean anything different from the "intended roads" mentioned in s. 8, which are to be "formed, completed, and repaired" before the parish can be compelled to take to them. Mr. Biron was driven to contend that there might be a highway before the statute which was not repairable by the parish: but Com. Dig. Chimin (A. 4) shews that once a highway it is always repairable by the parish. This view is very much supported by the case of Rex v. Sheffield (2), which decides that, if the inhabitants of a township bound by prescription to repair the roads within the township be expressly exempted by the provisions of a road Act from the charge of repairing new roads to be made within the township, that charge must necessarily fall upon the rest of the parish. Ashhurst, J., delivering the judgment of the Court, says: "It is an incontrovertible position, that, by the general law of the land, the parish at large is primâ facie bound to repair all highways lying within it, unless by prescription they can throw the onus on particular persons by reason of their tenure; but, when that is the case, it is by way of exception to the general rule." That establishes to my mind that, (2) 2 T. R. 106.

(1) 2 Sm. L. C. 6th ed. P. 140.

1873

CUBITT

v.

LADY CAROLINE MAXSE.