HIGHWAY, a public passage for the King's people ; whence it is called the king's highway. It seems that anciently there were but four highways in England which were free and common to all the king's subjects, and through which they might pass without any toll, unless there were a particular consideration for it. All others which we have at this day are sup posed to have been made through the grounds of private persons, on writs of ad guod damnum, &c. which being an injury to the owner of the soil,, it is said they may prescribe for toll without any special consideration.
There are three kinds of ways, a foot a pack and prime way, which is both a horse and foot way, and cart way, which contains the other two. But not withstanding these distinctions, it seems that any one of these ways, which is com mon to all the king's subjects, whether it lead directly to a market town, or only from town to town, may properly be call ed an highway, and that any such cart way may be called the king's highway.— A river, common to all men, may also be called the king's highway ; and that nui sances in any such ways are punishable by indictment ; otherwise they would not be punished at all ; for they are not ac tionable, unless they cause a special dam age to some particular person ; because if such action would lie, a multiplicity of suits would ensue.
If passengers have used, time out of mind, where the roads are bad, to go by outlets on the land adjoining to an high way in an open field, such outlets are par cels of the highway ; and, therefore, if they are sown with corn, and the track is foundrous, the king's subjects may go upon the corn.
Repairing highways. By the common law, the general charge of repairing all high-ways lies on the occupiers of the lands in the parish wherein they are.— But it is said that the tenants of the lands adjoining are bound to scour their ditches.
Particular persons may be burdened with the general charge of repairing an highway in two cases; in respect of an inclosure, or by prescription. As where the owner of lands not inclosed, next ad joining to the highway, incloses his lands on both sides thereof; in which case he is bound to make a perfect good way, and shall not be excused for making it as good as it was at the time of the inclosure, if it were then any way defective ; because, before the enclosure, when the way was bad, the people, for their better passage, went over the fields adjoining out of the common track, a liberty which the iudo sure has deprived them of. Particular
persons may be bound to repair an high. way by prescription. But in all cases, whether a private person be bound to re pair an highway by inclosure or prescrip tion, the parish cannot take the advantage of it on the general issue, but must plead it specially ; and, therefore, if to an indict ment against the parish for not repairing an highway, they plead not guilty, this shall be intended only that the ways are in repair, or that it is not an high. way, but does not go to the right of re paration.
At common law, it is said, that all the country ought to make good the repara tions of an highway, where no particular persons are bound to do it ; by reason the whole county have their ease and passage by the said way.
By the ancient common law, villages are to repair their highways, and may be pun ished for their decay ; and if any do in jury to, or straiten the highway, he is punishable in the King's Bench, or before the justices, of peace in the court leet, &c. Destroying any public turnpike-gate, or the rails or fences thereto belonging, sub jects the offender to hard labour for three months, and to be publicly whipped. 1 Geo. II. c. 19. On conviction at the as sizes, the offender may be transported for seven years. And on a second offence, or on demolishing any turnpike-house, he shall be guilty of felony, and transport ed for seven years. But in both these cases the prosecution must be within six months, and on the convict's returning from transportation he shall suffer death. 5 Geo. II. c. 33.
Every justice of the peace by the sta tute, upon his own view, or on oath made to him by the surveyor, may make pre sentment of roads being out of repair ; and, thereupon, like process shall be is sued as upon indictment. For the re. pairing of highways, there are certain re gulations by statute; and every inhabitant of a parish is bound to perform certaht duties for that purpose.