HIGH 
then become parcel of the highway; and therefore if 
they are (own with corn, and the tradt founderoits, the 
king’s fubjedls may go upon the corn, i Rol. Abr. 390. 
Cro Car. 366. 1 Hawk. P. C. c. 76. 
Though every highway is faid to be the king’s, yet 
this mult be underftood fo as that in every highway the 
king and his fubjedts may pafs and repafs at their plea- 
fure. But the freehold, and all the profits, as trees. 
See. belong to the lord of the foil, or to the owner of 
the lands on both Tides of the way. Alfo the lord or 
owner of the foil fliall have an adtion of trefpafs for 
digging the ground, without licence or confent firft had 
or obtained. 1 Brownl. 42. Keit'w. 141. 
A11 ancient highway cannot be changed without ah 
inquifition found on a writ of ad quod damnum, that fucli 
change will be no prejudice to the public ; and it Is 
faid, that if one change a highway without fuch autho¬ 
rity, he may flop the new way whenever he pleafes ; 
neither can the king’s fubjedts, in an adtion brought 
againft them for going, over fuch new way, juftify gene¬ 
rally as in a common highway, but ought to fhow 
fpecially, by way of excufe, how the old way was 
obftrudted, and a new ,one fet out; neither are the 
inhabitants bound to keep watch in fuch new way, or 
repair it, or to make amends for a robbery committed 
in it. Yelv. 141. 1 Burr. 465. 1 Hawk.P.C.c. 76. 
An owner of land, over which there is an open road, 
may inclofe it by his own authority ; but he is bound to 
leave fufficient fpace and room for the road, and he is 
obliged to repair it till he throws up the inclofure. 
But, if he alter or.change the road by the legal courl'e 
of a writ of ad quod damnum, he is not obliged to repair 
the new road, unlefs the jury impofe fuch a condition 
on him : for otherwife it ftands juft as it did before, 
even though it was at firft open, and fhould be diredted 
by the jury to be inclofed. And a private adt of par¬ 
liament for inclofmg lands which vefts a power in com- 
miftioners to fet out new roads by their award, is equally 
ftrong as to thefe confequences as a writ, of ad quod 
damnum. See 1 Burr. 456. 
If a parilh is part in one county, and part jn another, 
and the highways in. one county are out of repair, the 
whole parilh fhall contribute to the repair; but there 
may be an agreement between the inhabitants, that the 
one fliall repair one part, and the other the other; and 
fuch agreement is good between themfelves; and for 
breach, the one may have an adtion upon the cafe 
againft the other; but in indidtment they fliall take no 
advantage of thefe agreements, for as to the king they 
are equally liable. 1 Mod. 112. 
But, though the pari/h be obliged of common right 
to repair the highvyays in it, yet it is certain that par¬ 
ticular perfons may be bound to repair the highway, 
by reafon of inclofure or prefeription; as where the 
owner of lands not inclofed, next adjoining to the high¬ 
way, inclofcs his lands on both tides o£-it; in which 
cafe ,he is bound to make a . pe'rfedt good way, and (hall 
not be\excui'ed by making it good as it was before the 
inclofure, if it were then any way defedtive, becaufe by 
the inclofure he takes from the people the liberty of 
going over the lands adjoining to the common track. 
1 Rol. Abr. 390. 1 $id. 464. But wherever a perfon 
makes himfelf liable to repair a highway by reafon of 
inclofure, by throwing of it open again he thereby 
frees himfelf from the burthen of any future reparation. 
2 Saund. 160. 
In a writ of ad quod damnum , and inquifition found 
thereupon, after the perion hath once made the road, 
the parifhioners ought to keep it in repair; becaufe, 
being dilcharged from repairing the old road, no new 
burthen is laid upon them ; their labour is only tranf- 
ferred from one place to another. But, if the new road 
lies in another parifh, the perfon who fued out the writ, 
and Ins heirs, ought to keep it in repair; becaufe, the 
inhabitants of the other parilh gaining no benefit horn 
WAY. 857 
the old road being taken away, it would be impofing a 
new charge upon them, for which they enjoyed no com* 
penfation. 3 Atk. 772. And it feems certain in all thofe 
cafes, whether a private perfon be bound to repair a 
highway by inclofure or prefeription, that the parifh 
cannot take advantage of it on the general iffue, but 
muft plead it fpecially; that therefore, if to an indidt¬ 
ment againft the parifh, for not repairing a highway, 
they plead not-guilty, this fhall be intended only that 
the ways are in repair, but does not go to the right of 
reparation, r Mod. 112. 3 Keb. 301. 
As to private ways. —If one grants a way, and 
afterwards digs trenches in it to my hindrance, I may 
fill them up again. But if a way which a man has, 
becomes not paffable, or becomes very' bad, by the 
owner of the land tearing it up with his carts, fo that 
the fame be filled with water, yet he who has the way 
cannot dig the ground to let out the water, for he lias 
no intereft in the foil. Godb. 52, 3. But in fuch cafe he 
may bring his adtion againft the owner of the land for 
fpoiling the way, or perhaps he may go out of the' way, 
upon the land of the wrong-doer, as near to the bad 
way as lie can. But where a private way is fpoiled by 
thofe who have a right to pafs thereon, and not through 
the default of the owner of the land, it feems that they 
who have the ufe and benefit of the way ought to 
repair it, and not the owner of the foil, unlefs he is 
bound thereto by cuftom or fpecial agreement. 2 Burr. 
382. In an adtion on the cafe for not repairing a private 
road leading, through the defendant’s clofe, it is fuf¬ 
ficient to allege that the defendant as occupier of the 
clofe is bound to repair. 3 Term. Rep. 766. 
It is a public^ nuifance to fuffer the highway to be 
incommoded by reafon of the fotilnefs or overrunning 
of the adjoining ditches ; or by boughs of trees hanging 
over it. So therefore the owner of trees hanging over 
a highway, to the annoyance of travellers, is bound by 
the common-law to lop them; and it is clear that any 
other perfon may lop them, fo far as to avoid the 
nuifance. 8 Hen. VII. 5 a. 1 Hawk. P. C. c. 7 6. But it is 
no nuifance for an inhabitant of a town to unlade billets,. 
&c. in the ftreet before his hoiife, by reafon of the 
neceility of the cafe ; unlefs he fuft'er them to continue 
there an unreafonable time. 2 Rol. Abr. 137. 
A gate eredfed in a highway is a common nuifance, . 
becaufe it interrupts the people in that free and open 
paffage, which they before enjoyed and were lawfully 
intitled to; but, where fuch a gate has continued time 
out of .mind, it fhall t^e intended that it was fet up at 
firft by confent, on a compolition with the owner of the 
land on the laying out the road, in which cafe the peo¬ 
ple had never any right to a freer paffag.e than what' 
they (till enjoy. 1 Hawk. P C. c. 75. If one has a private 
way without a gate, and a gate: is hung up, an adtion 1 
on the cafe lies, for the party hath not his vyay as heo 
had before. Litt. Rep. 267. 
Upon an indictment for not repairing a highway; if • 
the defendant produce a certificate before.trial, that the 
way is repaired, he fhall b.e admitted to a Site : bdt after 
verdidt, the certificate is too late ; for then he muft’ 
have a conjlat to the fheriff, who ought to return that 1 
the way is repaired; becaufe the verdidt, which is a 
record, muft be anfwered by a record. Raym. 215. And 
where the defendants, .indicted fornnot r t pairing a com-- 
mon foot-way, .confefled the .indidhnent, and Tubmitted 
to a fine; it was held, jthirt the matter was not ended by 
their being fihe_d;;but that writs of dijlringas fhall be 
awarded. in infinitum till ithe court of king’s-bench is cer¬ 
tified that the way .is repaired, as it was when it was at 
belt; but the defendants are not bound to put it in 
better repair titan it has been time out of mind. 1 Sail .. 
358. 6fMod. 163. Yet it is no excufe for the inhabitants 
of a parifh, indidted at common-law for not repairing 
the highways, that they have done the work required 
by ftatute ; for the ftatutes are made in aid of the com. 
