138 FENCING OFF CANALS. 



dangerous to the persons or cattle of those who passed along the road, 

 if ordinary caution "were employed. Syhratj v. ]Vhiie differed consider- 

 ably in its facts. The plaintiff was possessed of a close, in which there 

 was an unfcnccd shaft, leading to a mine which had been covered up 

 for many years, the top of which gave way under his mare, who fell 

 down and it, was killed. , The defendant denied that the shaft was his, 

 but agreed to pay if a miner's jury of five should find that it was. 

 This finding, coupled with his declaration, was held to be admissible in 

 evidence against him in an action for compensation, and a verdict for 

 £lh being returned for the plaintiff, the Court refused a new trial, and 

 also decided that as the finding of the miner's jury did not on the face 

 of it appear to be an award, it was receivable in evidence without a 

 stamp (1 M. & W. 435). 



Ckoial near jMhJic foot ivay. — Where a canal had been made in land 

 along which ran an ancient footway, and between the canal and footway 

 was a towing-path nine feet wide, and a strip of grass several feet in 

 breadth, and the public were permitted to pass over the whole inter- 

 vening space, which was left unguarded and unlighted, it was held by 

 the Court 6f Queen's Bench that the canal was not so " near to " or 

 " adjoining" the footway as to be a nuisance or to impose on the pro- 

 prietors the duty to fence, light, or protect it ; and that if a person 

 had gone astray and fallen into the canal, the canal company were not 

 liable, under Lord Campbell's Act, to the representative. And per 

 Curiam: "We adopt on this subject the law as laid down in Hoiinsell 

 V. Smyih (7 C.B. N.S. 731), that to throw upon the owner the obliga- 

 tion of fencing an excavation on land adjoining a public road or way, it 

 ought to be shown that the excavation is ' so near thereto as to be 

 dangerous to persons using the road in the line of the road.' In 

 Uardcadlc v. tiouih Yorlcsltire and River Dun Cumjmny (4 H. & N., 

 07), it was laid down that the excavation must be so adjohiing the 

 public way as that a false step might cause a person using the way to 

 fall into the excavation; and it seems but reasonable that in such a case 

 the owner of the land should be liable. But. where, as here, the excava- 

 tion is at some distance from the public way, the case is very diflfereut 

 (Binks adx. v. Soulk Yorlcshirc and River Dun Navigation Gonqxuiij)." 



In Rooth V. Wilson, a horse, the property of the plaintiff's brother, 

 was sent over to the plaintiff one evening, who kept it in his stable for 

 a short time, and turned it out after dark into the close where his cattle 

 usually grazed. On the following morning it was foimd dead in the 

 dffendant's close, having fjillen from the one to the other. The liability 

 to repair was admitted, and the defence was, that the plaintiff (wliose 

 horse it was stated to be in the declaration) had not such a property in 



