437
THE ESTATES GAZETTE
March 18, 1899.
to infringe his client’s rights in any way. He contended that the plaintiff had absolute right to place the fence where it was erected, and the defendant council had no right to dig trenches in• Milton-lane in the manner which he described.
Mr. R. H. Powell, surveyor and estate agent, of Lewes, said he had under his management some 50,000 acres of land in •this county. He had viewed Shepham-lane, and the *dan produced was prepared under his instructions. The strip of land on the west side of the road, all the way along, was covered with brushwood and trees. The entrance of the land from Westham-road for about 300 yards belonged to the Duke of Devonshire, and that was also covered land with brushwood between the road and the ditch. The Duke had recently been cutting brushwood along the road. The width of the metal portion of the road was 10ft., and it was on either side, close to Diddon’s Wood, that the underwood had been cut. The northern and western sides of Shepham-lane belonged to the plaintiff. At one point the metalled road was 7ft. 6in. wide, and! near here the road, plus the water table, was 12ft. wide. For a considerable distance the belt or wood was standing. The undergrowth in the wood was very thick, and taking the oak trees as a rule, he would think they were about 30 years old. The width of the road varied, and he formed the opinion that the wood was of many years’ standing. There was an irregular ditch in the middle of the belt. By the growth of the underwood there was nothing, to show but that the belt had always existed. He did not think the highway ever extended to the grip. Trees continued on the belt more or less the whole length of the lane. The distance of the underwood and scrub which had been cut was under 2C0 yards. He had taken measurements of the road, the average width between ihe water tables being 10ft. He had examined the condition of the soil beyond the water tables in the wood claimed by the plaintiff. He dug below the level of the road, and after a little mould they came to Sussex clay. There were no signs of metalling, although in one or two places they came across a little beach, which he had no doubt was thrown up when the water tables were cleared. Witness was asked if the fence encroached on the highway.
Mr. Dickens: That is one of •the most important points the jury have to decide.
His Lordship : That is so.
Witness was then examined with respect to Milton Hide. There were some gate posts and a gate at the! northern entrance, the width being 10ft. The road was a, little wider on the Hide, the average width from hedge to hedge of the read being 12ft. There were natural water tables on either side. Nearly three quarters of an acre of pasturage would be lost if 3ft. on either side of the road were taken away, but if the council took the portion beyond the water table which they claimed it would be a loss of a further •three-quarters of an acre. He had trenches cut from the road edge to the grip recently made by defendants, and inspected the soil beneath. The turf had never been metalled.
His Lordship : Well, I suppose not. What do you say to the other part of the question 1 has it been used?
Witness : I should say not. Continuing, he said he tested the soil where no grip had been cut and the earth was of just the same condition. There were natural depressions on the side of ׳the road which served the purpose of water tables. The width of the road from the Dicker entrance was 12ft., and the gate 9ft. 5in. As far as the traffic on the Hide was concerned, he would consider the road amply wide enough.
Mr. Powell was cross-examined at length, and at the conclusion of his evidence, the learned Judge, at the invitation of the counsel, said he would be pleased to view the scene of the places in dispute, and with the object of giving his Lordship and the jury an opportunity of viewing the roads and hedges in question for themselves during the afternoon, the Court adjourned.
Upon the resumption of the hearing, Mr. Marshall Hall said he now understood from Mr. Muir that what was really claimed was 20ft. of the road, including the grip.
His Lordship: Let us have a perfect understanding—20ft. outside or inside the grip ?
Mr. Hall: Twenty feet outside.
His Lordship : Including the grip ?
. Mr. Hall: Including the grip. Under the circumstances he would accept a declaration on that part of the case without prejudice to any question of costs that the road through the Hide, from gate to gate, should be 20ft. wide all through.
His Lordship : That cannot do anyone anv harm.
Mr. Hall said that would protect Mr. Gwynne, because on the left■ side of the load was another piece of rising ground, and he felt that if the new piece was given and 3ft. and 18in. beyond the grip was added to the metalled load, that people would next be driving on this grass, and that as years went on another 3ft. •on each side would be added to the highway. He would, therefore, accept a declaration as he had intimated, without prejudice to costs,
amounts to evidence of dedication. Several old witnesses made statements which, •!part from cross-examination and apart from rebutting evidence, might have satisfied me on this point; but, without imputing to them any intention to deceive, I find myself quite unable to place reliance upon what they said. Lest it should be thought that the point has been overlooked, I may mention that I think it is proved that while a railway was in course of construction in 1837 •and 1838 some navvies who lodged at or near to what is now Crookham Church made their way straight across the allotments to the canal bridge without regard to banks or ditches or anything else. But this was not in assertion of a right of way, and it cannot afford satisfactory evidence, •or indeed any evidence, of a dedication of a defined path. In the third place, I think there is no satisfactory evidence of dedication since 1878. In the fourth place, there is ample evidence of obstruction and interruption during •almost the whole period from 1834. The various allotments were divided by banks and ditches, which were obstructions. Belts of trees were planted nearly, if not quite, 30 years ago right across the line" of the alleged path in such a manner as to render it impossible to use the path except, in the words of the witnesses, by “dodging” the •trees. A gate provided with lock and key was 14 years ago placed across the alleged path, and I am satisfied that this gate was, if not constantly, yet habitually, kept locked. Mr. Chinnock, having purchased in 1892 an additional piece of land near the bridge, soon afterwards built a lodge right over the end of the alleged path near the bridge, so that it became henceforward physically impossible to use !the nath. It is	to׳ be	observed •that during
all this1 period! not a single complaint seems to have been made by anyone cn the ground of the obstruction of a public way. Moreover, it has been proved to my satisfaction that, although occasionally some persons may have passed over parts or even over the whole of the alleged path without permission, such instances have been rare. I believe the testimony of Mr. Galsworthy and Mr. Chinnock and of the employees of Mr. Chinnock when they state that they have not seen people exercising the alleged right, and, further, that on the very few occasions when they have seen anyone, the person so seen has been ordered off. I may add that the path which was •abandoned at the !Bar was probably more frequently used in !recent years than the path which is now alone claimed. Upon the whole, I am satisfied that )the defendants have not established the existence of any public right of way from the Award-road to the Reading-road-bridge, and I therefore grant a declaration as asked, with a consequential injunction. The defendants must pay the costs of the actions. There will be a similar judgment in each of the three actions.
LEWES ASSIZES.
February 24.
(Before Mr. Justice Betjce and a Special Jury.)
A HAILSHAM EIGHT OF WAY CASE.
GWYNNE V. THE HAILSHAM BUBAL DISTBICT COUNCIL.
This was a case of considerable interest, being an action brought by Mr. J. E. A. Gwynne, lord of the manor of Folkington and Milton, who claimed that he׳ was entitled to certain property adjoining an ancient- highway called Shepham-lane, Otham, near Hailsham, and appealed for an injunction to restrain the defendants’ from pulling down a fence. He also alleged that defendants’ had widened a road at Milton Hide, and in so doing had encroached on some of his property. The defendant council put all the plaintiff’s case in issue and asserted .hat the property claimed really formed part of the highway.
Mr. Marshall Hall, Q.O., with whom were Mr. Lewis Coward and Mr. R. E. Moore (in structed by Messrs. Champion and Co., Bast bourne), appeared׳ for the plaintiff; while the defendants were represented by Mr. H. F. Dickens, Q.C., and Mr. R. D. Muir (acting under the instructions of Messrs. Davenport, Jones and Glenister, of Hastings).
Mr. Marshall Hall, Q.C., in opening, said the case was one of very considerable importance as affecting his client, because, although the actual amount of damage in this particular case might not be a very serious one, it was a question of the thin end of the wedge coming in, and his client was determined to contest it. Having reviewed the facts of the case in an exhaustive speech, he said the only question for the jury to decide would be whether the land was the freehold of the plaintiff or not, and if, as he submitted, it was, the district council had no authority to remove the fence erected by the plaintiff in the manner they had done. The road, he said, had never beer, dedicated to or claimed by the public for the purposes of a highway, and if they were of the opinion that Mr. Gwynne purchased the land free from any right the only question for them would be to say that this was no part of the highway, and that the defendants had no more rights over it than the public, in which event the learned Judge would enjoin them not
the defendants, their officers, servants, agents, and workmen from trespassing in exercise of the alleged right of way claimed by them. The defendants, in exercise of the statutory powers conferred upon them by section 26 of the Local Government Act, 1894, sought to protect this alleged public right of way.
Mr. Warmington, Q.C., Mr. T. T. Methold, and Mr. J. Eldon Bankes were for the plaintiff, Mr. F. G. Chinnock, and also the other plaintiffs ; and Mr. Dickens, Q.C., Mr. Eve, Q.C., and Mr. Stewart Smith were for the defendant council.
A number of witnesses were examined, and the hearing has occupied a large portion of his Lordship’s judicial time. At the conclusion of the arguments judgment was reserved.
Mr. Justice Cozens-Hardy delivered judgment as follows:—“The question before me is reduced to this, whether there is or is not a public right of way from a road known as the Award-road, through the land of the plaintiffs Phillips and Figgess, on to the land of the plaintiff Chinnock, into the high road leading from Reading to Farnham at a point close to the foot of a bridge over the canal. Another alleged public path was claimed in the pleadings, but it was abandoned at the Bar. The title and possession of the plaintiffs being admitted, the burden of proof rests upon the defendants. It is conceded by counsel for the defendants that the three actions must stand or fall together, inasmuch as a public right involves a passage from one highway to another, and unless the public right can be established over the whole course of the path from the Award-road to the Reading and Farnham road, the defendants must fail. I shall, therefore, treat the three actions as one. The land in question was enclosed under an Enclosure Act passed in the year 1829. The award was made in February, 1834, and the plaintiffs are owners of land allotted under the award. Prior to 1834 the land was part of a large tract of open common covered with heather across which there were a number of tracks. It is not directly material to consider whether prior to 1834 there was any public footpath substantially in the line of that now claimed, for it is plain that by the award any such public footpath or right of way over the enclosures now belonging to the plaintiffs was absolutely extinguished, but indirectly this may be of importance, as it has been argued that a public path, although destroyed by the award, may naturally be re-established by continued user. The defendants, therefore, are obliged to rely upon a dedication to the public at a date subsequent to February 10, 1834. Moreover, it. appears that from July, 1840, until October, 1878, the property now belonging to the plaintiff Phillips was in settlement, so that there was no person competent to dedicate to the public. In my view it makes no difference that this extends only to a portion of the alleged public path, and, indeed, this was not seriously disputed by the defendants. The result is that the defendants are compelled to rely upon a dedication to the public between February 10, 1834, and July, 1840, or upon one subsequent to October 20, 1878, and the question which I have to decide is whether the defendants have established any such dedicaticn. So far as the law of the case is concerned, I do not think it can be better stated than it was by Mr. Baron Parke in “ Poole v. Huskisson ” (11 M. and W., 830), viz. : “In order to constitute a valid declaration to the public of a highway by the owner of the soil, it is clearly settled that there must be an intention to dedicate—there must be an animus dedicandi of which the user by the public is evidence and no more, and a single act of interruption by the owner is of much more weight upon a question of intention than many acts of enjoyment.” To this I may add that, in my judgment, user by the public over land belonging to a nonresident owner is less cogent evidence of dedication than where the user is necessarily brought to his personal notice, and, further, that the weight to be attached to user must depend somewhat upon the nature of the land itself, whether it is cultivated land or rough and unproductive land. A great mass of evidence has been adduced on both sides. I do not think any useful purpose would be served by commenting in detail upon the statements of many of the witnesses, but the following are the conclusions at which I have arrived after having seen the witnesses and carefully observed then-demeanour in the box. In the first place, I do not think it is proved that there was before 1834 any public path from the Reading-road bridge to what is now the Award-road in the line of the alleged footpath claimed in this action. That individuals occasionally passed over this unenclosed land from the neighbourhood now known as Crookham Church across a bridge over the canal feeder towards the bridge on the Reading־road, and thence over another piece of common to Fleet, is, I think, extremely probable, but X do not think there was anv defined path such as is required to establish a public right of way. But, however, that may be, the award extinguished any such right. In the second place, I am not satisfied that in the interval between 1834 and 1840 there was such user by ׳the public of the path now claimed as
graphed by a local artist. A first-class saloon was again provided for the London contingent, and the company, which included Mr. James F. Field (London), Past-President; Mr. James Catling (Cambridge), and Mr. W. Roland Peck (London), Vice-presidents; Mr. W. Bennett Rogers, Mr. Allen Drew, and Mr. J. H. Townsend Green (London), members of the council ; Mr. Elsom (High Wycombe), Mr. E. Hugh Henry (Clapham), Mr. H. F. Joyce (Messrs. Joyce and Hall), Mr. E. A. Butler (Messrs. Slade and Butler), and the secretary, Mr. Charles Harris, reached St. Pancras about six o’clock.
The annual general meeting of the members will be held at the rooms of the Institute in London, on Thursday, May 11, at 2.30 n.m., on which day the council and members will dine together, as usual.
l£0al ÿrnmùmgs.
HIGH COURT OF JUSTICE. CHANCERY DIVISION. March 9.
(Before Mr. Justice Byrne.)
LANDLORD AND TENANT : INCIDENCE OF STRUC-TDEAl EEPAIES: METROPOLITAN MANAGE-
!VfTÜWT1 A n׳TC!
This was a special case stated on an originating summons taken out to decide a question as to the true construction of the terms of a lease. The question was one of a kind which of late years has often arisen between landlords 3nd tenants. The defendant was tenant to the plaintiffs, under a lease of 7, 14, or 21 years made in the year 1895, of a certain residence known as Berkeley House, Clapham. The lease, which contained a clause specifying that the rent should be paid clear of all deductions except property tax, also contained a covenant by the tenant “ to pay and discharge all taxes, rates, duties, and assessments whatsoever which now are or hereafter may become payable for or in respect of the said premises, or any part thereof, whether Parliamentary, parochial, or otherwise (except landlord’s property tax).” In November, 1897, the vestry served on the premises a notice under section 85 of the Metropolis Management Act, 1855, requiring the owners to make certain structural alterations in the system of drainage. It was agreed between the parties that the work should be done by the plaintiffs without prejudice to their right (if any) under the covenant to throw the liability for its cost upon the defendant The cost incurred was about £150 Mr. Levett, Q.C., and Mr. Gatey, for the plaintiffs, contended that the expenses in question were covered by the word “ duties.” They cited “Brett v. Rogers” (1897 1 Q.B., 525); “Budd v. Marshall” (5 C.P.D., 481); “Sweet v. Seager” (2 C.B., N.S., 119); and “Thompson v. Lapworth” (L.R. 3, O.P., 149).
Mr. Edgar Foa, for the defendant, whilst admitting that tenants had never yet, in any reported decision, escaped liability when the covenant contained the word “duties,” contended that that word in the present covenant, being qualified by the addition of the words, “payable for or in respect of the premises,” must mean sums due or money payments, and could not mean acts or obligations, and that it was not consequently a word of indemnity. The tenant was therefore not liable. He relied on “ Tidswell v. Whitworth” (L.R. 2 C.P., 326).	V
Mr. Justice Byrne, in giving judgment for the plaintiffs, said he could not distinguish the case from “ Brett v. Rogers.” He called attention to the clause providing that the rent should be paid clear of all deductions, and said that special words had been used to protect the landlord in the attainment of that object. The 96th section of t ho Metropolis Management Act, 1862, provided that obligations of the kind now in question might be transferred from the landlord to the tenant by special agreement, and he said he could not help being struck by the resemblance between the words of the present covenant and those by which the legislature had said in that section that that transfer might be made. In his opinion the tenant had in effect covenanted to indemnify his landlords against payments of the nature of those imposed upon them by the order of the vestry in the present case.
March 10.
(Before Mr. Justice Cozens-Hardy.) EIGHT OF WAY CASE.
CHINNOCK V. BUBAL DISTBICT COUNCIL OF HARTLEY \MNTNEY; FIGGESS V. THE SAME; PHILLIPS V THE SAME.
The plaintiffs in these three actions, bein״ landowners in the parish of Crookham, in the county of Southampton, sought a declaration that, an alleged public right of way over their land did not exist and an injunction to restrain