Henry Richard, C.J. and Tudball, J.
1. The court below framed an issue in the following terms.
Is the plaintiff the owner and in possession of the lands in suit, or do the lands form part of the road belonging to the Board? If road, then what is its extent.
2. The court below has found on this issue that the place on which the plaintiff alleged that hawkers were accustomed to sit was no part of the road, at least this is what we understand the finding to be. The court seems to have thought that the only part of the road which could be said to be the public road was the part that was actually metalled. In our opinion this is clearly wrong. We are unable from the maps, and from any information either party can give us, to ascertain with any accuracy the places in which the hawkers sit; but in our opinion all the ground, whether metalled or not, over which the public had a right of way, is just as much the public road as the metalled part. The court would be entitled to draw the inference that any land over which the public from time immemorial had been accustomed to travel was a public street or road, and the mere fact that a special part of it was metalled for the greater convenience of the traffic would not render the unmetalled portion on each side any the less a public road or street. With this explanation we refer an issue to the court below, namely, whether or not the land in dispute is part of the public road.
3. The court may take any additional evidence relevant to the above issue that the parties may adduce. On return of the finding the usual ten days will be allowed for filing objections. We direct the court below in returning its finding to send a proper map marking distinctly the lands in dispute and their surroundings. The stand-pipes complained of may also be indicated in this map.
4. We need hardly say that we think it very desirable that the parties should, if possible, settle the question without spending their money in useless litigation.