DISTINCTION BETWEEN A PRIVATE AND PUBLIC WAY. 103 



The very foundation of their jurisdiction in the matter depends on this 

 question, and the very first step is to ascertain whether the locus in quo 

 is a highway. They are nob really trying a question as to any title to 

 land; in this case the title to the land was admitted, and the only 

 question was, is the road a highway or not ? That is the very thing 

 which, as to any other individual, the justices are to try, and why not 

 when the person guilty of the alleged nuisance is the owner of the land ? 

 My notion is that if an Act of Parliament gives jurisdiction to justices 

 or other inferior tribunal over a matter connected with land, there must 

 be a special exception to the Act, in order to oust their jurisdiction, 

 where the title comes in question, as in the County Courts and 

 ]\ralicious Trespass Acts. The appellant seeks to oust the magis- 

 trates' jurisdiction, by alleging that the road is not a highway; any 

 other person might set up this defence, and it is a question of user 

 by the public, and is not founded on title, but arises just as much as to 

 any one of the public, as to the particular owner of the land ; and this 

 question of highway is the very question which the Legislature says the 

 justices are to decide" {Williams (appt.) v. Adams). 



Distinction between a private and a public ivaij. — " It appears to me 

 that there is this distinction between a private and a public right of 

 way, that the former is not necessarily, as the latter is, over every iiart 

 of the land, to which people have access, or along which there is the 

 right of way :" per Gochburn C.J. {Hulton v. Hamboro'). 



Duty of surveyor to protect foot-causeways ayainst carriages. — The 24th 

 section of the General Highway Act (5 & 6 Will. IV. c. 50), which 

 requires the parish surveyor to secure horse and foot causeways from 

 being passed over by carriages, applies only to such as are by the side of 

 carriage-ways ,- and therefore such surveyor is not bound by that statute 

 to protect horse and foot-causeways againsc carriages at the extremities 

 of such ways {Ellis (appt.) v. Woodbridye). 



Surveyor of hiyhways not liable for accident caused by nonrqyair of 

 lload. — A surveyor of highways appointed under .5 & (5 Will. IV. c. 

 50, is not liable to an action for damages resulting from an accident 

 caused by the non-repair of the highway, as was substantially decided 

 in error in McKinnon v. Pcnson (9 Ex. 609, and 23 L. J. (N. S.) M. 

 C. 97) {Youny v. Davis). 



Presump)tion of property on soil of private road. — The presumption 

 which prevails in the case of a public highway, that the soil usque ad 

 medium filum vice belongs to the owner of the adjacent land, prevails 

 also in the case of a private way ; provided that there be no other 

 evidence of owncrshi]> to rebut such presumption {Holmes v. Belling 

 Jiam, 29 L. J. C. P. 132). 



