Odger's English Common Law

PUBLIC RIGHTS OF PASSAGE. 249
The stall was of a permanent character, having. gas and water laid on to it
from the mains, and being assessed to the rates at £32. There was suffi-
cient room for the passage of traffic up and down the street on either side
of the stall. On an indictment of the defendant for a nuisance in thereby
obstructing the highway, the jury found that the coffee-stall was an
obstruction, but that it did not appreciably interfere with the traffic in the
street, and it was held that the findings did not justify the entry of a
verdict of guilty.
The owner of land, over which a public footpath lies, has the right to
maintain existing stiles or swing gates across it, provided they are of a
reasonable kind and are such that the public are not debarred from the use
of the footway. Bat it will be the duty of the district council to see that
the use by the public of a footpath is not hindered by the erection of stiles
or gates, which are substantially less convenient than those which existed
there in the past. It is the duty of the district council to prevent
encroachment ; and for this purpose they should institute or defend any
legal proceedings and generally take such steps as they deem expedient. 1
Again, it is a misdemeanour at common law, punishable on
indictment or information with fine and imprisonment, for
any person who is bound in law to repair a highway to omit
to do so ; for such omission passively obstructs the public in
their use of the road. It is necessary, therefore, in the first
place to inquire who are the persons on whom such a liability
re3ts.
At common law it is the duty of the inhabitants of each
parish to maintain and repair all highways within it. There
is no escape from this liability. No contract will free the
parishioners from it. It may be suspended, if for any reason
the burden can be shifted on to others ; but it revives as soon
as the liability of those others ceases. 2 And in spite of all
the changes introduced by the various Local Government
Acts, if a " highway repairable by the inhabitants at large "
be out of repair, it is still open to any person aggrieved to
indict the inhabitants of the parish, though in certain cases
a highway authority may be indicted in respect of the non-
repair of a highway. 8
The duty of repairing a public highway mayJin some
instances fall on a private person, e.g., if he owns the land
1 Local Government Act, 1894 (56 & 57 Vict. c. 73), s. 26 ; and see Louth
U. D. C. v. West (1896), 60 J. P. 600.
2 R. v. Oxfordshire (1825), 4 B. i C. 194.
3 See s. 10 of the Highways and Locomotives (Amendment) Act, 1878 (41 & 42
Vict. c. 77).