The soil of the highway, or rather the right fo the ground beneath the highway, is presumed to be (not, as it is said to be in in the crown, but) in the adjoining owners. Thus, if the land on both sides of a highway belong to the same owner, then the right to the ground beneath the road belongs to him also; and if the land on one side a different owner from the land on the other side, then each is presumed to have the right•to the ground under the highway up to the middle line. This rule is more than a mere theory, for though neither of the adjoining owners can ever inter fere with the passage of the public, who have an absolute right forever to use it for every lawful purpose of transit, yet the adjoining owner has all the rights inci dental to the property which do not interfere with this public right of passage. Thus, if a mine were discovered under the road, the adjoining owner would have the sole right to dig it and keep the contents; all that he would require td'attend to would be, to leave sufficient support to the surface of the road. So, in like manner, where there arc strips of land at the side of the road on which trees or grass grow, these belong solely to the adjoining owner, and the public have no right to their use Another remarkable consequence follows, that if, for example, a gas company or a water company were to presume to take up the highway in order to lay their pipes under the surface, this is not only an indictable nuisance as regards the public, inasmuch as it obstructs the use of the road for the time,being, but it subjects the company to an action of trespass at the suit of the adjacent owner, whose property consists of all that lies under the surface of the highway. Another consequence of the same rule is, that if a person is loitering on a highway, not with the intention of using it qua highway, but for the purpose of poaching at night, the courts have held that he may be punished under the night-poaching act, for trespassing on the land of the adjoining owners in search of game.
The repair of a highway, in general, is a burden which falls upon the occupiers of the lands in the parish. Probably the reason is, that they use those highways most, and somebody or other must keep them in repair. Sometimes, however, the burden of repair is fixed on the owner of the adjoining laud, if it can be proved that he has always, from time immemorial, been in the habit of repairing, it being then presumed there was some good reason for this. The general rule is, however, that the inhabitants of the parish must repair the highways within the parish; and so indelible is this obliga tion, that no agreement they can enter into will relieve them of such a liability. But though bound to repair, they cannot be called on to widen the road. The common remedy, accordingly, when kroad is out of repair, is to indict the parish, when, if guilty, the surveyor will be bound to make, a rate, and pay the expenses.
Owing to the defects of the common. law, which did not sufficiently give power to widen, shut up, and improve highways, so as to keep pace with the wants of the time, a general act of parliament was passed in 1835, called the general highway act, 5 and 6 Will. IV.c. 50, which still regulates the subject. minute details are laid down by this act, but substantially the foregoing principles of the common law still govern the subject, the chief alterations being merely in the machinery by which these principles are carried out. The highways are kept in repair by a highway-rate, levied by the sur veyor, a person annually appointed by the ratepayers in each parish, and who is vested with the control of the surface of the highway to a limited extent for the purpose of keeping it in due order; so that practically each parish manages its own highways—a state of things which the legislature has to some extent remedied by acts of 1862 and 1804, etc., enabling the justices at quarter sessions to form several parishes into one
district, and so enforce more uniformity in the management of the roads. Certtoin specific uses, or rather abuses, of the highway are also made more promptly punishable by the first statute, such as horsemen riding on footpaths, the tethering of cattle on the sides of the highway, playing at games, baiting bulls, lighting fires, firing off squibs, depositing materials, etc., on the highway.
When any party obstructs, or creates a nuisance on the highway, the proper remedy against him is to indict him for the nuisance; or if any individual has been specially injured by his misconduct, such individual may also bring an action against the party who caused the obstruction.
Many highways are called turnpikes, from the fact of their having toll-gates, bars, or turns across them, and are managed by commissioners or trustees. ;his is always done by some local act of parliament. Where a new road is considered to be of great pubic beuefit, the neighboring proprietors obtain an act of parliament to make it, with powers to take compulsorily the requisite land, and to raise money for the purpose of buying witch land, as well as to keep up the road thereafter; and as a. means of paying oft all this expense, to erect a toll-`_ate, and levy a tax or toll on all who use the road. This is the history of all these turnpike-roads, the only way of paying the cost of making them being by levying this toll. Several general acts have also been passed to regulate the management of these turnpikes. Soinetinies the soil of the turupike;road is vested in these trustees. These turnpike-roads were violently opposed at first, the toll being unpopular, but they existed prior to the first general turnpike act, 13 Geo. 11I, c. S4. The present general turnpike act is 3 Geo. IV. c. 126, but other statutes have passed subsequently. In sonic cases, part of the highway-rote is ordered to be applied towards keeping up turnpikes, for the parish is bound to repair these roads as well as genera] highways. Several exemptions from paying toll are created in favor of farmers sending manure, straw, etc., from one part of the farm to another, persons going to or from the parish church, or a funeral, or clergymen going to their church on etc. So persons are exempt who do not pass above 100 yards along the road. All tolls charge able must be stated in a table of tolls set up at the toll-house.
In the law of Scotland, highway is substantially the same, in most respects, as in England; but there are the following differences. It is generally laid down that the right to the soil of the highway is vested in the crown, and not in the adjoining owners, as in England. This theory, however, has been shaken by recent cases, and has been shown to lead to some absurdities. Streets of burghs are said to be held by the magis trates, under the crown, for the public benefit. The general acts on the subject—viz., 1 and 2 Will. IV. c. 43, and 3 and 4 Will. IV. c. 33, were passed for the regulation of highways, which impose various rules, in detail similar to the English highway and turnpike acts. Parish roads are maintained still on the old system of statute labor. Most of the roads are regulated by special acts of parliament, which are to be taken in conjunction with the general acts. When a public-road is obstructed in Scotland, the party is not indictable; but any one of the public may raise an action of declarator, and so establish the right of the public.