A way of necessity is limited by the necessity out of which it has arisen. If the party to whom such a way is impliedly granted, or by whom it is impliedly reserved, becomes entitled to some other access to his land, equally direct, the way of necessity is one.
The particular rights of the grantee of a private way continue to exist notwithstanding the owner of the land may have dedicated it to the public as a high-way. The grantee cannot throw the burden of repairing the way upon the grantor, unless by the terms of the grant, evidenced by the deed or by user, the grantor has engaged to enable the grantee to use the way.
If the occupier of the land over which a private way passes, or any other person, obstruct the way, the party entitled to the way may remove the obstruction, and he may also bring an action on the case, or, in some cases, an action of covenant against the obstructor. On the other hand, if the occupier of the Land resisting the claim of a right of way, bring an action of trespass against the person exercising the alleged right, the defendant may plead in justification a title founded upon prescription, grant, reservation, or statute.
IL Between private ways and public ways stand what may bo called quasi public ways, which partake of the qualities of both, but differ in some respects from each. • By some writers these are classed among private, by others, among public ways ; they seem more properly to constitute a distinct intermediate class. Such are ways which the Inhabitants of a town, itc., have immemorially used from their town, &e., to a church or market. A right of this description cannot, in modern times, be created. It cannot be the subject of a grant, inas much as inhabitants, as such, are not at this day capable of taking any interest by grant ; nor can it, like a public way, be created by dedica tion. as a dedication of a way can only be to tho public at large. Such a right therefore can exist only as tho consequence of an ancient custom.
Ill. A highway is created where the owner of the soil has, by express words or by some act done or forborne, declared his inten tion that the public shall have tho use of a way over such soil. The dedication of a way to the public may be by writing or by words ; so that it may be inferred from the acts of the party, as the throwing down of fences, or from mere tacit acquiescence where the acquiescing party is in possession of the land, and therefore has the means, if dis posed so to do, of preventing the use of the way. In all cases, how ever, it is necessary that the party dedicating should have a sufficient interest in the land to warrant such dedication. If be has a less estate than a fee-simple, his dedication will not bind tho reversioner.
But it would also appear that the owner of such a limited estate could not even dedicate a highway to the public for the limited period of his interest in the soil, and that his attempted dedication, however distinctly and formally made, would amount to nothing more than a licence revocable at pleasure.
When there is no express dedication, the presumption of an inten tion to dedicate, arising out of the conduct of the party, may be rebutted ; as by showing that when the public were first admitted a bar or a chain was occasionally placed across the road, whereby passen gers might, at times, be excluded; although it should also appear that the bar, &c., had long been omitted to be used, or that it had been suffered to fall into decay, or had been actually broken down, and that no attempt had afterwards been made to restore it.
A highway is frequently created by statute, principally under in closure acts.
Whatever may have been the origin of a highway, it cannot, at com mon law, be destroyed or altered, except after an inquisition taken upon a writ of ad quod damnuns.
By the common law the burden of maintaining highways is thrown upon the occupiers of Lands and tenements within the parish, or rather within the township in which the way is situated. But particular persons may be bound to repair a highway. This special liability may exist by reason of enclosure (rations coarctationis), against parties who have enclosed the sides, or one side of the road, and have thereby lessened the facilities for breaking out into the adjoining Lands where necessary ; or by reason of the possession of lands (ratione Imam term sea), which have by some means become chargeable with the burden. In the case of a corporation aggregate, a liability to repair may also be established by prescription only, or ancient usage, enclosure or tenure.
Any obstruction or other nuisance in a highway may be abated or removed by any person who chooses to undertake the task. The wrong-doer may also be proceeded against by indictment as for a misdemeanor ; but ho is not liable to an action, as he is in the case of nuisance to a private or to a quasi-public way, except in respect of special damage.
The regulation of highways has frequently been made the subject of legislative interference. The general statute now in force is the 6th and Gth Will. IV. c. GO.
In the case of a way over water, either private, quasi-public, or public, if the course of the water alter by sudden or gradual change, the way is continued over the new course. Every navigable river, arm of the sea, or creek, is a highway for ships and boats. [Riven.]