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AUGUST 13, 1892. EYRE v. NEW FOREST HIGHWAY BOARD.

[Introduction]

This was a motion for a new trial on the ground of misdirection. The point raised was as to the right of a highway board to “metal or gravel” ways across common or waste lands, so as to make them into hard roads or high-ways. The plaintiff was the owner of lands in Hampshire, in the district of the New Forest, Including a portion of the waste lands of the manor of Tadenham, over which there was a public right of way, but the way being a track or pathway, no repairs had been done on the locus in quo, which was green, before 1866. The highway board proposed to “metal” it so as to make it into a hard road, and for that purpose had put gravel upon it, to test their rights. The plaintiff thereupon brought his action. The way was across the common and had been long used, but had never been metalled or made a road.

The case was tried before Wills, J., and a jury, at the Winchester assizes. Upon the question whether there was a right of way, at the close of the case on both sides, the point was taken that there was only a limited dedication to the public - limited by the actual user - user of the way as it had been used before. Under the learned judge’s direction the jury found for the defendant board. The summing-up of the learned judge was on this motion characterised by the Court of Appeal as “copious and clear and a complete exposition of the law on the subject” (infra), and was in the following terms:-WILLS, J.- The principal question which arises in this case is one pre-eminently for you; and I am very glad that you had an advantage which it was impossible to give to me, so as to put me upon an equal footing with yourselves in dealing with the evidence, namely, that of having seen the place in question, which is an enormous advantage in any question of this kind. I, on the other hand, have at present an advantage over you which I will attempt to explain as much as possible, namely, I think I have from long experience a thorough familiarity with the principles and maxims and propositions of law which are applicable to the case, and which are not always perfectly easy to grasp, but without an accurate knowledge of which no one can possibly deal properly with a case of this description. Now, the action is brought for the act of the defendant highway board, in depositing gravel where you saw it, and the spot on which it is deposited undoubtedly belongs to the plaintiff, and, therefore, unless there is a justification for their doing so he is entitled to your verdict, because they have committed a trespass in that case.

[The case to be decided:-]

Therefore, the question for you is whether that justification which is alleged exists, and the justification which they allege is this: they say “this is a highway which we had a right, and which we had the duty, of repairing.” “Right” and “duty” are correlative and co-extensive terms in this matter, and they say “it was in the exercise of that right and that duty, that we put this gravel for the purpose of repairing this road.”

[Origin of highways]

All highways, all rights of passage over the property of Individuals, have their actual or presumed origin, although it is not often the origin in point of fact, in a dedication by the owner of the soil, that is to say, he either says in so many words, or he so conducts himself as to lead the public to infer that he meant to say: “I am willing that the public should have this right of passage.”

[Once a highway…, and need to accept the road]

If a man has actually conceded that right of passage to the public it is irrevocable, and that is expressed by the maxim with which we are all familiar, I suppose, “once a highway, always a highway.” Up till the year 1835, when the Highway Act which is the foundation of our present system, was passed, if there was a dedication of a road to the public by the owner either expressed by deed, as occasionally happens, or inferred from public user for such a time as to any tribunal who judges the case will appear sufficient to found that inference, if the proper inference was that he had said or so conducted himself as to imply that he had granted that right of passage to the public; and the public had on their part accepted it and used the road, from that moment there was not only the right of passage on the part of the public,

[If pre 1835 … liability to maintain, past maintenance is immaterial]

but there was the liability to repair on the part of the parish; and antecedent to the act of 1835, wherever you found the right of passage by the public so that you were satisfied it was a highway, it was absolutely immaterial for the purpose of settling whether it was a highway or not, whether it ever had been repaired or not. Repairs by the parish were always an important piece of evidence when the question of highway or no highway came under consideration; but once establish that there was the right of passage given to the public, accepted by the public and used by the public, it followed as a matter of course, that, although no gravel or no work had been done, from that moment the liability on the part of the Parish existed.

A great many old highways in country places are highways, which from the time they were first used, have never had a spadeful of gravel thrown upon them, or a shilling’s worth of repairs done to them at any spot. Therefore, down to the year 1835, if you establish there was the right of way on the part of the public, the liability to repair follows; and it attached, and it attaches, for all time; and it was immaterial, it is immaterial, if the public way antecedent to 1835 is made out to your satisfaction, whether repairs were ever done upon the road or not. The question, whether repairs were or were not done to it is a piece of evidence which would help you in arriving at a just conclusion as to whether there was or was not a highway. But it is no more than that, and if there was a right of way on the part of the public over the place in question antecedent to 1835, then the liability to repair and the right to repair have attached to the present defendants.

[Maintenance was a burthen to parish]

If there was not such a right of way prior to 1835 no such right and no such duty has attached because it having been found in many parts of the country that this liability pressed heavily upon parishes in respect to roads which were not of great public importance, and that the population was increasing and people were laying out building land and laying out streets in great numbers, threatening to throw additional burthens upon the public, or upon the parish as it was then, it was thought wise to put some limitation upon that;

[no right or duty to maintain on streets laid out after 1835]

and now since 1835 you may have a way which is an undoubted public way, because the owner has dedicated it to the public, and they have used it, and it has become in that way a public highway, which people have a right to go backwards and forwards along, and yet there may be no right to repair it, and no duty to repair it upon anybody. Inasmuch as, in this case, the defendants cannot justify what they have done merely by reason of the existence of a right of passage on the part of the public, which has been the shape which nine out of ten actions of this kind take; inasmuch as they cannot justify it, simply because there is a right since 1835 on the part of the public to pass, but they want the additional element in their defence that the public are bound to repair, and, therefore, have a right to repair, and inasmuch as the formalities which were required by the act of 1835, namely, the consent of the vestry, and an application to quarter sessions, and the satisfying of the magistrates that the road had been put into complete and satisfactory repair before the parish were asked to take it over, nothing of that sort having been done, the defendants cannot succeed here unless they make out that, antecedent to 1835, there was a public right, of passage over this spot in question. If they do make that out, then the right to repair attaches. If they do not make it out, the right of repair does not attach, and, therefore, whether they get or lose the verdict must depend upon whether you are of opinion that the public had a right of way and passage over the spot in question before the year 1835.

[A challenge to use may be negated by continued use:-]

… you have a person in ownership for the time being of Tinker’s Lane, who did not wish the public to pass, and who would have stopped, and wished to stop, their passage if he could. If so, and if the impression left upon your mind by the bulk of the evidence that you have heard, is that notwithstanding his objection to it, he was not able to stop it, and that the thing went on, surely it is a strong ground for supposing that there really was a right acquired by the public before that time which he could not interfere with.

[Reason for a road, to travel from one place to another or for the picturesque]

… It seems that there is a turnpike road, or a high road, on one side of Cadnam Common; on the other side, there is that road that leads to the disputed portion, and beyond that if you pass over that disputed portion, you come to Tinker’s Lane which leads apparently to a number of places. It seems to connect itself with the high road to Salisbury, and with other more important centres, and I should rather gather from what I have heard that there are more important centres of population in the opposite direction. You have heard what Mr. Bucknill says about there being that better and shorter road by which to go. All that appears to me on the evidence is that, for some reason or other, whether it was that they liked the picturesque (which is not very likely), or whether it is that it is really shorter; there were a certain portion of the people from first to last who wished to go that way. It is by the continual passage of people who wish to go along a particular spot that evidence of there being a high road is created; and taking the high roads in the country, a great deal more than half of them have no better origin and rest upon no more definite foundation than that.

[A highway must have two definite ends, no right to stray can be aquired]

It is perfectly true that it is a necessary element in the legal definition of a highway that it must lead from one definite place to some other definite place, and that you cannot have a public right to indefinitely stray over a common for instance. It is a very common notion that such a right can be acquired. When an owner of property in the exercise of his undoubted proprietary rights wishes to put an end to a kind of unlimited straying over his property which in times past has been harmless, but which, from increase of population or one thing or another, has become very detrimental - when he puts up fences and so on, you have a party of people who assemble in great numbers with swords and axes, and cut down what he has done, and assert their rights in that way, and it very often happens that they imagine that they can set up and establish a right of indefinitely straying over a place to walk upon. There is no such right as that known to the law. Therefore, there mast be a definite terminus, and a more or less definite direction; indeed, there must be a definite direction, subject to this which makes me say what I do.

[Right to deviate]

Where the right of passage exists on the part of the public, and where the road over a common or an unenclosed space or anything of that kind which would naturally be taken, is foundrous or is allowed to become foundrous, the public have a right, and it is a principle which is to be found in all our law books, and it is one which has been exercised from the earliest times down to the latest of doing that which would be otherwise trespassing beyond the bounds of what I may call the legitimate highway, the straight direction across in which they ought to go, if things were all right for them; and they have a right to deviate right or left in order to get along upon those parts that are less foundrous, as the old law books say, parts which are less muddy and dilapidated. If there is a right of pass from Kew Lake Lane, which is a public highway, through the gate into Tinker’s Lane, it is absolutely certain I should think, with a greensward such as that appears to have been in the earlier times and practically down to the present time, that there will be a quantity of deviation. We hear that it is a very boggy and wet sort of place, a place very apt to get out of order, and, therefore, there is perfectly certain to be something of that kind. It is true that nobody can establish a right to have a sort of fan as Mr. Bucknill put it, but it may be that the fanlike expansion of the tracts is really, under such circumstances as that, only a legitimate exercise of the right of getting out of the foundrous part of the road, and going upon sound ground which may not be in the proper line. At the gate, and if there be a highway up to that gate there is no possibility of deviating because everybody has got to pass through that gate. On the other side there is a physical possibility of deviating.

[What is the point of a cul-de-sac?]

… Now there comes what is, in my mind, a very important general consideration here. There is a considerable body of evidence that Tinker’s Lane is at all events now a public highway. Mr. Bucknill is right in saying that will not do for the defendants; they must have a highway before 1835, and what the evidence upon that point is, I will just shortly give you presently. But supposing you think Tinker’s Lane is a public highway, what would be the meaning in a country place like that of a highway which ends in a cul de sac, and ends at a gate on to a common?

Such things exist in large towns. In Leeds, which is a place where I have done a good deal of my hardest forensic work, there were scores of streets which ended with dead walls and which were repaired by the public. These are all gone now, but I recollect it perfectly well; but who ever found such a thing in a country district like this, where one of the public, if there were any public who wanted to use it at all, would drive up to that gate for the purpose of driving back again? I have known it successfully established in a beautiful walk leading to a cliff end or a place on the seashore.

I tried a case at Haverfordwest a short time ago, where such a thing as that was established to the satisfaction of everybody except the people who lost. But what do you find each a thing for in this part of the world? I cannot conceive it. It is a just observation that if you think Tinker’s Lane was a public highway, an old and ancient public highway, why should it be so unless it leads across that common to some of these places beyond? I cannot conceive myself how that could be a public highway, or to what purpose it could be dedicated or in what way it could be used so as to become a public highway, unless it was to pass over from that side of the country to this side of the country. Therefore, it seems to me, after all said and done, that the evidence with regard to this little piece across the green cannot be severed from the other; and it is comparatively of little importance, because if I were a juror, and were satisfied in my own mind that Tinker’s Lane was really a public highway up to that gate, I do not know, but I think, it would take a great deal to persuade me that it was possible that that state of things should co-exist with no public way across the little piece of green.

[Tendency of Evidence of repairs by parish - for use by the public?]

Therefore, it seems to me, it is a very important question whether this Tinker’s Lane up to the gate is a public way, and with regard to that I have to tell you, speaking in general, what the evidence is, but there are just one or two specific things to which I should like to call your attention. There is evidence that repairs were done which the tendency of the evidence is to connect with the parish, and which it is sought to connect with the Parish through a portion of the road which lies between the now Home Farm and the gate; that is at the very end of this road this way. If these repairs were really done, one cannot quite understand for what purpose they were done except for the use of the public. There is evidence which carries back these repairs to before 1835 and before 1832. However, the evidence of repairs is not touched by the date in 1832 -- nothing to do with it. Repair by the parish is always, if it is made out, a strong indication of the public right. It is a burden accepted by the parish which would not be accepted unless there was a public way.

[If diverted the old way, if found, still exists]

… On the other hand there is evidence, which the plaintiff necessarily and legitimately reliys upon, that Tinker’s Lane was twice altered by the landowner. Of course, especially since 1835 (and this was since 1835), he had no right to obliterate the old road although he substituted a new one for it without an order of sessions and the strict legal result would be, that the old obliterated way would still remain if you could find out where it lay.

[Parish content for another to maintain, even if altered]

No one would want to be bothered with any such question as that; but it is a thing which is more likely to have been done without objection. On the other hand, so long as the plaintiff and his predecessors cared to relieve the parish from the burthen of repairing these roads, you may depend upon it that the parish were not likely to be discontented with that state of things; and it is admitted, and it is rather made a part of his case, that from the time when he did effect that diversion he did more to the road, and it may very well be, that the people were very glad to let sleeping dogs lie. So long as the thing was in better order than it had formerly been nobody would say anything about it.

[Conclusion]

The Court (Lord ESHER, BOWEN, L. J., and A. L. SMITH, L.J.) - The point now urged was not taken at the trial until the case on both sides was closed, and, therefore, it cannot be taken now. The question at the trial was whether there was a right of way at all, not as to a limited right of way or a limited dedication. The summing up was copious and clear, and a complete exposition of the law on the subject; it was a clear and correct direction to the jury on all the points raised. At the close of the case, the point as to a limited dedication was taken; and now this court is asked to grant a new trial upon it. That ought not to be done.

Motion refused

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17 04-02-12