Barraclough and Others against Johnson and Another
| Jurisdiction | England & Wales |
| Court | Court of the Queen's Bench |
| Judgment Date | 20 April 1838 |
| Date | 20 April 1838 |
English Reports Citation: 112 E.R. 773
IN THE COURT OF QUEEN'S BENCH
S. C. 3 N. P. 233; 1 W. W. & H. 162; 7 L. J. Q. B. 172; 2 Jur. 839. Principle adopted, Simpson v. Attorney-General, [1904] A. C. 494. Referred to, Mercer v. Denne, [1905] 2 Ch. 550.
barraclough and others against johnson and another. Friday, April 20th, 1838. On an issue whether or not certain land, in a district repairing its own roads, was a common highway, it is admissible evidence of reputation, (though slight,) that the inhabitants held a public meeting to consider of repairing such way, and that several of them, since dead, signed a paper on that occasion, stating that the land was not a public highway ; there being at the time no litigation on the subject. In determining whether or not a way has been dedicated to the public, the proprietor's intention must be considered. If it appear only that he has suffered a continual user, that may prove a dedication ; but such proof may be rebutted by evidence of acts shewing that he contemplated only a license resumable in a particular event. Thus, where the owner of land agreed with an iron company, atid with the inhabitants of a hamlet repairing its own roads, that a way over his land, in such hamlet, should be open to carriages, that the company should pay him 5s. a year and find cinder to repair the way, and that the inhabitants of the hamlet should lead and lay down the cinder, and the way was thereupon left open to all persons passing with carriages for nineteen years, at the end of which time, a dispute arising, the passage was interrupted, and the interruption acquiesced in for five years : Held, that the evidence shewed no dedication, but a license only, resumable on breach of the agreement. [S. C. 3 N. & P. 233 ; 1 W. W. & H. 162 ; 7 L. J. Q. B. 172 ; 2 Jur. 839. Principle adopted, Simpson v. Attorney-General, [1904] A. C. 494. Referred to, Mercer v. Denne, [1905] 2 Ch. 550.] Declaration (February 1838) in trespass for breaking and entering plaintiffs close, &c. Pleas: 1. Not guilty. 2. That, before and at the times when, &c., there was and of right ought to have been a certain common and public highway into, through, over and along the said close in which, &c., for all the liege subjects, &e., on foot and with cattle and carriages at all times of the year, &c. : justification under such right of way. Verification. Replication to this plea, traversing the right of way as pleaded. Issue on the traverse. On the trial before Patteson J. at the York Spring Assizes, 1838, it appeared that the alleged road, called the Green Gate Lane, lay in the hamlet of Mortomley, [100] which repairs its own highways. A witness for the plaintiffs proved that, forty years ago, a public meeting of the inhabitants of Mortomley was held, and a document there signed by the witness, and by twelve others of the inhabitants present, who were since dead : this writing was tendered as evidence of reputation, and objected to, but admitted by the learned Judge. It purported to be made by the inhabitants (a) The provisions in stat. 7 W. 4 & 1 Viet. c. 26, ss. 20, 9...
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Walsh v Sligo County Council
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...is the case at Lincoln's Inn." 14 This suggests that what matters is the impression given to members of the public. Likewise in Barraclough v Johnson (1838) 8 Ad & E 99, 105, Littledale J said: "A man may say that he does not mean to dedicate a way to the public, and yet, if he had allowed ......
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R (Godmanchester Town Council) v Environment Secretary; R (Drain) v Environment Secretary
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