Odger's English Common Law

10 PUBLIC RIGHTS.
highway, and not affecting either the metalled road or the footpath by the
side of it, this was held to be a public nuisance because the company had
thus obstructed a small portion of space which the public had a legal right
to use. 1
The person dedicating may confer on the public the right to use the way
as a footway, bridlepath or driftway only, and not as a carriageway. 2 He
may also by contemporaneous acts limit the user of the way to certain
times or seasons {e.g., he may grant the public the right to use his bridge
whenever it is dangerous to cross by the ford). 3 Or he may reserve to
himself the right to periodically plough up the soil of the way. 4 But
though he may thus restrict the user, he may not limit the number of
persons who may use the way {e.g., a dedication to the inhabitants of a
parish or to any other limited portion of the public is void and confers no
right on any one, 5 though such a right may be created by grant or, it is said,
by custom). 6 Nor can a dedication be limited in respect of the duration
of the right; every dedication is necessarily in perpetuity. And, in the
absence of statutory authority, no dedication can be made subject to the
payment of a toll. 7
But the right of the public over a particular "way, when
onc"e acquired, is permanent. The public cannot take by
grant, nor can they grant away, such a public right. It
cannot be lost by abandonment or non-user ; the public
retain the right though they may not have occasion to
exercise it. It may, it is true, be extinguished by Act of
Parliament. And now 8 two justices may, at the instance
of either a district or a parish council, and with the prior
consent ' of both bodies, and after certain formalities and
certain advertisements, 9 stop a highway or divert it from its
accustomed track to a new route. But the only ground on
which a highway can be stopped is that it is unnecessary ; the
only ground on which a highway can be diverted is that the
proposed new way is " nearer or more commodious " than the
existing way ; otherwise the rule is : " Once a highway, always
a highway." The rights of the publip remain in perpetuity.
1 S. v. United Kingdom Telegraph Co. (1862), 3 P. & F. 73.
2 See Sheringham U. D. C. v. Ralsey (19(H), 68 J. P. 395.
3 S. v. Inhabitants of Northampton (1814), 2 M. & S. 262.
* Mercer v. Woodgate (1869), L. R. 6 Q. B. 26 ; Arnold v. Blaker (1871), L. R.
6 Q. B. 433 ; Arnold v. Eolbrooh (1873), L. R. 8 Q. B. 96. Andlsee Gimgell, Ke.
Ltd. v. Stepney Borough Council, [1908] 1 K. B. 115 ; [1909] A. C. 245.
6 Vestry of Bermondsey v. Brown (1865), L. R. 1 Eq. 204.
6 Co..Litt. 66 a, 110 b.
7 Austerberry v. Corporation of Oldham (1885), 29 Ch. D. 750.
8
Ss. 84-92 of the Highway Act, 1835 (5 & 6 Will. IV., c. 50), as
the L. G. Acts, 1888 and 1894.
amended byJ
9 See Odgers on Local Government, 2nd ed., pp. 168, 169.