March 18, 1899.
THE ESTATES GAZETTE
438
the highways from one centre of population to another in the district were in all cases much nearer and more convenient than by the alleged public footpaths.
Sir Edward Clarke, in opening the case for the defendants, said these paths were of no use to the public at large. The evidence of a dozen who might have passed was as nothing to that of one or two who might have been stopped. The interference by tlxe owner would destroy the inference to be drawn from the casual and unnoticed passer-by. This had been repeated, not annually, but very frequently since 1845. Of this he had abundant testimony. There had been notice boards at Holm-rook, at Kirklands, and one at Irton. All the wastes of the manor had been dealt with by the enclosure award of 1813. Burrough’s tenement had been enfranchised. Therefore there must be judgment for the defendants against him. The so-called roadside waste was the defendants’ fee simple which they had purchased. The alleged road from Stockbridge past the church to the hall was in several places described in the reference to the Ordnance map as occupation road. He did not use this as conclusive evidence, but as some evidence of reputation. According to the tithe map of 1840 parts of this road and also Parsonage Lonning were titheable. The road out at Cook’s־gate was made an occupation road by the enclosure award. The road from Holmrook to the church had been diverted by the owners several times without going to the justices. A gate had been constantly locked at Parsonage farms and one by the walled garden near Irton Hall on weekdays, but not on Sundays. One of the alleged paths !by ׳the hall had had no exit for 40 years.
The defendants gave evidence in support of the opening, and Sir Edward Clarke summed up the case.
Mr. Shee remarked in answer that the witnesses were all landowners or friends and connections of those interested in land. To stop up these paths would deprive the children of a road to the school by the church. Stockbridge was clearly public, because from an entry in the Vestry-book of 1698 it had been repaired by the parish. This was conclusive. The leases of 1771 showed this road had an exit near Irton Hall.
The learned Judge summed up, and the jury found that the road out by Cook’s-gate was a private road. As to the other paths claimed it was impossible for them to agree.
The learned Judge thereupon discharged them.
Sir Edward Clarke asked for judgment against Burrough, which was granted.
The trial lasted 14 days.
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green. At the time the road was made up and until the underwood got so thick, the road was regularly used in the way he had described.
By Mr. Hall: Metal w-as :put on the road every year since he had been in the parish. The feed belonged to the Pevensey Town Trust.
Mr. S. Gearing, of Westham, blacksmith and wheelwright, said that 40 years ago the enclosed land was brushwood, and cattle used to stray in it. Trees had been allowed to gro-w on the ground for the last 20 years. As parish constable for 15 years, he had removed gipsies from this very ground. He had frequently driven along the road, and on meeting another cart he drew on to the greensward.
Mr. 1Stephen Waters, of Polegate, said his father was tenant of Otham Court Farm, which abutted on the ground enclosed by the plaintiff. The bramble and underwood was cut away from the side of the road from time to time, and to within 20 years ago no trees were allowed to grow. He had seen cattle grazing on the piece of land enclosed. His father was a constable for Pevensey, and he remembered him ordering gipsies off the land now enclosed.
Cross-examined : He cut the wood on the side of the road himself during his father’s tenancy of the farm, and burnt it afterwards.
Mr. George Heed, retired police sergeant, said he had known this lane for 22 years. He had seen men at work on the road and throw the sidings ¡on to the mound, and had also seen the underwood cut from time to time.
John Willoughby, a roadman, gave corroborative evidence.
This concluded the evidence.
The jury returned a verdict for the plaintiff.
With regard !to the Milton Hide, a declaration was entered to the effect that the public were entitled to a highway 20ft. wide from the outside of the grip.
General costs of the action were given the plaintiff, the council to have the costs on the Milton Hide part of the case.
CARLISLE ASSIZES.
March 9.
(Before Mr. Justice Day and a Special Jury.)
A FOOTPATH DISPUTE.
THE RURAL DISTRICT COUNCIL OF BOOTLE AND ANOTHER V. BROCKLEBANK AND ANOTHER.
In this case Mr. Shee, Q. C., and Mr. Shepherd Little appeared for the plaintiffs; and Sir Edward Clarke, Q.C., M.P., Mr. Pickford, Q.C., Mr. L. Sanderson, and Mr. J. Sharpe appeared on behalf of the defendants.
The plaintiffs were the Rural District Council of Bootle, and Joseph Burrough, suing on behalf of himself and all other the tenants of the manors of Irton and San ton, and the defendants were Mr. Thomas Brocklebanlc and Sir Thomas Brocklebank. Mr. Thomas Brockle-bank is owner of Irton Hall and ■lire ancient demesne thereunto belonging, the farm of Aikbank, and lord of the adjoining !manors of Irton and Santon. Sir Thomas Brocklebank is owner of two places of residence, Greenlands, situate in the manor of Santon, and Kirklands, situate in the manor of Irton. The district council became plaintiffs under section 26, subsections 1 and 3, of the Local Government Act of 1894 (56 and 57 Viet., c. 73), which were set out in the report above referred to. The action was to obtain a declaration that certain footpaths were public highways and to prevent the enclosure of a small triangular piece of land alleged to be roadside waste, and, in the alternative, parcel of the waste of the manor. The rights of way claimed were over the lands of the defendants, and also over the lands of Colonel Lutwidge and Lord Muncaster.
It was contended by the plaintiffs that one of the rights of way from Blackbeck on the highway from Holmrook to Whitehaven, southwards by way of Stockbridge to Irton Church and thence eastwards to Irton Hall was an ancient pack-horse road.
A large number of old and infirm witnesses had been examined on commission, and their depositions were read in Court. The evidence for the most part was directed to prove continuous user as of right by residents or persons who had previously resided in the district. There was some evidence as to user by strangers and tourists. Two leases, dated 1768 and 1761, whereby the defendants’ predecessors in title demised certain lands in the neighbourhood of Irton Hall, were put in ■for the purpose of fixing a road therein described as a highway with reference to the position of a certain wooden posted hedge. The contention was that ibis highway was the ancient pack road, and that this is now represented by the present footpath from Irton Church towards the hall.
The cross-examination tended to show that a number of the witnesses used the paths as tenants or employees of the estate, when they had business on the estate, or that they used them for church purposes. Mr. Pickering, an engineer called by the plaintiffs, having taken certain measurements on the Ordnance plans at the request of Sir Edward Clarke, proved that
remembered when it was made up 11 years ago. It was very narrow' and soft before that time and there was very little traffic. All that was done before 11 years ago was the placing of a little beach on the lane. So long as he had known it there had always been this belt of trees and underwood. He had never known the road, wider than now, and had never known i׳t betteT kept. He had never known the parochial authorities■ claim this belt of land. He had never known the belt of underwood used for traffic.
Evidence of a similar nature was given by several other witnesses.
Mr. Dickens, Q.O., for -the defence, said his case was that this highway was not restricted to the metalled part at all, but included the greensward at present covered with underwood, up to the old: hedge in the bank to the cld ditch. The defendants were not endeavouring to widen the road nor to put Mr. Gwynne to any further inconvenience than he was before. By erecting the fence Mr. Gwynne had inconvenienced the public, because, according to the showing of the other side, the road was only lift■■ or 12ft. wide, and in the ordinary course of one carriage passing another, the public required facilities for drawing to the side of the road to enable vehicles to pass, which could not be done now. The inconvenience to the public was much greater, and it was idle for Mr. Gwynne to say that the fence was erected to protect him against his tenant, because he had only to order him to cease the cutting for that injunction to: he obeyed. He didn’t require a fence in order to effect that, and they had to look to see with what object the fence was erected. The fact that there were tress and undergrowth was not sufficient to rebut the presumption that this was once a highway, and they must bear in mind the proposition that once a highway always a highway. There was no evidence to rebut the suggestion that this was once a highway from hedge to hedge. The other side were bound to admit the existence of the ditch and of the old hedge, and lie urged that the highway had been used as such from hedge to hedge for many years. The fence could be of no convenience to Mr. Gwynne, and restricted the use of the road to the public. He had put the wattled fence in a place where he had no right to put it, and he had not satisfied the burden that fell upon him of proving that he had the light of placing the fence there.
Mr. Frederick Plowman, surveyor, of Hastings, said on February 20 he inspected Shep-ham-lane, and prepared the three sections of the lane produced, showing the levels of the lane and adjoining land. He would say from one hedge to the other, the whole of the earth had been removed to form a road- The land between the metalling and the ditch was in some places above the level of the road, caused, it ■seemed to him, by road scrapings and small pieces of beach. From the centre of the road to the end it dropped 13fi. 8in. In the ditch on Mr. Gwynne’s ■side of ■the road, there was a depth in one case of 16in. of dirt.
Cross-examined: The ditch did not run in a straight line. The descent of the road was one in 12. He thought ■the road was originally dug out, but there was no sign, of anything having been deposited by the side of the road.
Mr. H. Card, consulting surveyor to the County Council of East Sussex, said he agreed with the plans produced. The ditches were not quite parallel with the road; some had ■fallen in, but comparatively they were almost in a straight line. He saw road scrapings, bits of chalk, and beach in the mounds, and when he came to the virgin clay that was found to be on a level with the road.
Mr. Hall: How wide do you think a public road should be?—Thirty feet.
Mr. Samuel Marchant, farm bailiff, of West-ham, said he was 66 years of age, and had known the land enclosed by the wattled hedge since 1840. About 1860 the trees were not !on the enclosed land as now, and the gipsies used to encamp there. His father had two cows which used to run on this land, and he paid 5s. for the first cow and 10s. for the second for the right of grazing there to the parish of Pevensey or :Westham. When he was a boy people used to walk over the ground in dispute. He had seen cattle driven over it, and could be so driven now if it was cut down in a proper way.
By Mr. Hall: The road had been metalled in winter for the last 40 years.
Mr. Hall: You heard a gentleman in Court this morning say that nothing was put on this road before Colonel Taylor metalled it 11 years ago
Witness: Yes; I heard it, but I didn’t■ ■:׳ike it in.
Mr. Henry Chappie, farmer, said he had known this road since 1856. He was farm bailiff for the late Colonel Taylor for many years. He had seen cattle driven over the ground in dispute, and there was no difficulty in driving them there. He had so driven hundreds of beasts and was never interfered with by anyone. When lie first knew it, people frequently walked over the ground where the underwood was now. When vehicles passed each other, they were obliged to go on the
but the other matter would be strenuously contested up to the !hilt.
Mr. R. H. Powell, recalled, said he had been over the ground, and had seen the bank referred to by Mr. Dickens in cross-examination. He saw no reason for suggesting that that bank was ever the border of the highway. It must have been many years ago ■if it was so.
Mr. James Woodhams, F.S.I., of Hastings, said he had inspected Shepham-lane, and agreed with the measurements given by the last ־witness. The land adjoining Shepham-lane belonged to the Duke of Devonshire, and the undergrowth on the side of the road had recently been cut. Approximately the trees on the belt of wood ,in the lane would be 30 years of age. The stumps would probably be 30 years older. He was of the opinion chat some of the trees were grown from seedlings, which would indicate great antiquity. Within his recollection the road was now in much the same condition as when he first saw it. From recollection, he believed the ditch was higher than the road.
Mr. W. F. Ingram, F.S.I., of Lewes and Brighton, said he had been to see Shepham-lane. Except for traffic to Glenleigh it led to nowhere in particular. The trees on the belt were probably over 30 years of age. On one stump he had counted 61 rings, which indicated 61 years. He would think there were others quite as old; it was a fairly average one. The soil between the metalled road and the alleged old hedge showed no indication of the levelling of the top loam for the purpose of making a highway. He ■saw no difference between the soil there and that on the top of the bank.
Cross-examined : With the water tables there was ample accommodation for draining the road without the ditch.
Mr. IS evill Gwynne, son of the plaintiff, said he was 31 years of age, and remembered the belt of wood for 20 years. He had used it rabitting, and had dug ferret holes. He had never found indications of metalling, and he had seen the underwood much thicker than now. Since he had known the belt it would be impossible to use it for the purposes of traffic. He had no knowledge oi the local authorities having exercised jurisdiction over this.
By Mr. Dickens: He had seen people once or twice on the grass picking flowers, and he had turned them out. That would be six tu seven years ago.
Mr. J. E. A. Gwynne, the plaintiff, was then called. He said he was the resident owner ol Folkington Manor, and had lived in the neighbourhood 23 years. He had been steadily purchasing land in the district, and owned several thousand acres. The manor of Otham Court, Farm was purchased by him in 1876. He had the deeds, and had never offered the slightest objection to producing them at his house. When he purchased the land there was a belt of underwood with trees. No public or private person had ever suggested to him that this particular belt of wood belonged to the highway. He had let the land containing this belt to Mr. Langford, reserving the possession of undergrowth and trees to himself. In 1898, he learned that his tenant was cutting the wood, and Mr. Waller, his steward, ordered the cutting to ■cease at once, and ordered the existing fence to be erected, which was ■in a direct line with the old fence. When he purchased the property the line was more distinct than now. Encroachments had been made in many places all round. The first intimation he ever had that the fence was an encroachment was a letter dated April 28, containing a■ notice to abate the alleged nuisance thereby created. The underwood when he bought it was probably of five or six years’ growth. He consulted his solicitor in the matter, and correspondence with the rural district council ensued. He was most anxious to avoid litigation in this matter.
Mr. Dickens : Since you purchased this land in 1877 have you ever done anything to protect it from the public ?—It was protected from the public.
Mr. Dickens:: Nothing has been done to it?
-—I can’t tell what my tenants have done.
His Lordship : Did vou do anvthing yourself?—No.
Mr. Dickens : You say the undergrowth was five or six years old when you purchased it ?— Yes.
Mr. R. A. Waller, bailiff :to Mr. Gwynne, said he remembered the underwood being cut down by Longford in 1898. He gave instructions for it to be stopped, and ordered him to erect the wattle fence, which was exactly over the line where the underwood had been cut down.
Mr. Huggett, brickmaker, of Rolegate, deposed to having dug at the place in dispute. Underneath the loam was virgin brickmaking soil. He found no indication of the land having at any time been levelled down towards the road for the purpose of making it a highway.
By Mr. Dickens: At a depth of nearly tin. lie came across beach in small quantities.
Mr. Henry Hall, of Diddons Farm, Polegate, said he was a farmer, and was 54 years of age. He had known Shepham-lane all his life, and