1. As we understand the facts, it would appear that land which belonged to and formed part of the old public road and adjoined the plaintiff's premises has been sold by the Municipality to the defendant, hut that a. sufficient portion of land remains in use as the public road, and the defendant has appropriated to his own exclusive use that portion which he has purchased and which lies between the plaintiff's premises and the present public road, and by so doing the plaintiff avers that defendant has interfered with his right of way and prevented approach as of old on his part from his premises to what now constitutes the public road. The plaintiff asks that a passage three yards wide be opened across the purchased land to the public road for his use; he also seeks to have a drain opened which defendant has closed. The Court of first Instance decreed the opening of the drain, and dismissed the rest of the claim, and the lower Appellate Court has affirmed this decision. The Subordinate Judge has found that the land purchased by the defendant was a public thoroughfare, but has held that plaintiff has no right to relief in respect of maintenance of his right of way, apparently on the ground that he could obtain access to the public road by making a detour, and that any inconvenience to him would he trifling compared with the loss to the defendant who has purchased the land at a high price. This judgment proceeds on erroneous grounds. If the land purchased from the Municipality was part of a public thoroughfare, and the defendant by his purchase obstructs its use, the plaintiff can sue for relief, if he can show that he has been individually injured by the defendant's act. In the present case there is no doubt that such injury has been shown, if the plaintiff's allegations are true that he has no longer the direct access to the present public road which he had before, and that the act of the defendant has caused the closing of an established drain, and it would he no ground for denying him relief that he may by making a detour to get access to the road, or that to give him relief will interfere with the benefit which defendant anticipated from his purchase.
2. The questions for decision are whether the land bought by defendant was part of a public thoroughfare; whether the title obtained by the defendant under the Municipality's right to sell was one which gave him the land free from any liability or responsibility to the plaintiff on account of previous user of it; and whether plaintiff has suffered the injuries alleged by the defendant's act so as to give him a right of action and a claim to the relief now sought.
3. It will be necessary that the Municipality be properly represented in the suit as defendant, and we remand the case under Section 354 of Act VIII of 1859 that this may be done and the above issues tried and decided; when the lower Appellate Court will return the case with its finding to this Court, and seven days will be allowed for objections to he preferred to the finding.
4. On the return of the Subordinate Judge's finding, the Court delivered the following