TAKING DOWN HIGHWAY FENCE. ll:3 



of the centre of tlie road. Lowm, v. Kay was also a case on the con- 

 struction of the G3rd section of the Highway Act, 13 Geo. III. c. 78, 

 which was repealed by the stat. 5 & 6 ^Yill. IV. c. 50. The language 

 of the 63rd section of the former act, is that if any/^';?fe (taking that as 

 the general word) shall be placed on any highway, the surveyor shall 

 have power to remove it ; and the question at the trial was whether the 

 fence was on the plaintiff's own soil or on the highway, and the jury 

 found that it was on the former. This decided that where the road is 

 not 30 feet wide, the surveyor may not make it so by removing tlie 

 fences on each side, unless the fence be actually upon the highway. In 

 an action by a reversioner against a surveyor of highways, for cutting 

 away a small portion of the soil of a bank or fence adjoining the public 

 road, under the supposed authority of 13 Geo. III. c. 78, s. lo, it was 

 held to be no answer that the fence was thereby in fact improved {Alston 

 V. Scales). The jury had to say whether any part of the plaintiff's fence, 

 which consisted of a bank surmounted by elder buslies, had been cut 

 away. Andjj^r Curiam: "The fence is not, as has been contended, to 

 be confined to the mere bushes, but embraces also the substantial part 

 of the enclosure upon which the hedge was supported. The removal of 

 the smallest portion of the soil must in general be esteemed an injury 

 to the land, because it tends to alter the evidence of title." 



The presumption of law is, that ivaste land adjoining the road be- 

 longs to the owner of the adjoining enclosed land, whether freehold, 

 leasehold, or copyhold [Doe dem. Pring v. Pearseg) ; and in Grove v. 

 West, Gibbs C.J. said, " Primd facie the presumption is that a strip of 

 land lying between a highway and the adjoining close belongs to the 

 owner of the close, as the presumption also is that the highway itself 

 ad medium filum vice does. But the presumption is to be confined to 

 that extent ; for if the narrow strip be contiguous to or communicate 

 with open commons or larger portions of land, the presumption is 

 either done away or considerably narrowed, for the evidence of owner- 

 ship which applies to the larger portions, applies also to the narrow 

 strip which communicates with them." Holrogd J. remarked on tiiis 

 point, in Doe dem. Pring v. Pearseg, " When a grant of land near to a 

 road is made (even when it is enclosed and separated from the land 

 adjoining), it appears to me that the ])rmd facie presumption is that 

 the land on that side of the fence on which the road is, passes likewise 

 with it. Generally speaking, where an enclosure is made, the party 

 making it erects his bank and digs his ditch on his own ground, or on 

 the outside of the bank. The land which constitutes the ditch in point 

 of law is a part of the close, though it be on the outside of the bank. 

 And if something further is done for his own convenience, wh.en that 



