Dawes v Hawkins

JurisdictionEngland & Wales
Judgment Date06 July 1860
Date06 July 1860
CourtCourt of Common Pleas

English Reports Citation: 141 E.R. 1399

IN THE COURT OF COMMON PLEAS AND THE EXCHEQUER CHAMBER

Dawes
and
Hawkins

S. C. 29 L. J. C. P. 343; 4 L. T. 288; 7 Jur. N. S. 262. Referred to, Cubitt v. Marse, 1873, L. R. 8 C. P. 716. Applied, Neill v. Byrne, 1878, 2 L. R. Ir. 289. Dictum applied, Piggott v. Goldstraw, 1901, 84 L. T. 96. Discussed, Smith v. Wilson, [1903] 2 I. R. 63.

[848] dawes -e. hawkins. July 6th, 1860, [S. G. 29 L. J. C. P. 34.') ; 4 L. T. 288 ; 7 Jur. N. S. 262. Referred to, CubM v. Marse, 1873, L. R. 8 C. P. 716. Applied, Nctil v. Byrne, 1878, 2 L. R. Ir. 289. Dictum applied, Piggott v. Goldstraw, 1901, 84 L. T. 96. Discussed, Smith v. Wilum, [1903] 2 I. E. 63.] There canjbe no dedication of a way to the public for a limited time, certain or uncertain : if dedicated at all, it must be dedicated in perpetuity. Neither can the public, by non-user, release their rights. - An antieut highway over a common or down was, without authority or interference from the owner of the soil, diverted by an adjoining proprietor, who substituted for it a new road, which was used by the public for more than twenty years. After the lapse of that period, the original road was re-opened to the public, and the then owner of the soil over which the substituted road passed built a wall and planted trees across the road which had been so substituted. - In an action against the defendant for pulling down the wall and cutting down the trees: - Held, by Erie, 0. J., and Byles, J., - dissentiente, Williams, ,/., - that the above facts afforded no reasonable evidence of a dedication of the substituted road to the public, - the public user thereof being referable to the right of the public to deviate on to the adjoining land whenever the owner of the soil illegally stops u highway, or suffers it to become foundrous. This was an action of trespass for breaking and entering certain land of the plaintiff, situate in the parish of VVhitvvell, in the Isle of Wight, and near to a certain house and premises of the defendant called " The Hermitage," and pulling down, prostrating, and destroying a wall of the plaintiff, and cutting down, damaging, 1400 DAWES V. HAWKINS 8 C. 6. (N. S.) 849. and destroying the trees of the plaintiff then growing and being in and upon the said land. The defendant pleaded,-first, not guilty,-secondly, that the land was not the plaintiffs land,-thirdly, that, before and at the said time when, &c., there was and of right ought to have been a certain common and public highway into, over, and along the said land of the plaintiff in which, &c., for all the liege subjects of our Lady the Queen to go, return, pass, and re-pass on foot and with horses and other cattle, at all times of the day, at their free will and pleasure; wherefore the defendant, being a liege subject of our Lady the Queen, and having occasion to use the said way, did, at the said time when, &c., enter into and upon the said land of the plaintiff, and along the said highway, then using the same as he lawfully might for the cause aforesaid ; and because the said wall in the declaration mentioned had been wrongfully erected and was then standing in and across the said highway, and obstructed the same, and because the said trees were planted in and upon, and were then aud there preventing the convenient use of, the said highway, the [849] defendant, in order to remove the said obstructions and to be enabled to pass and re-pass along the said highway, did necessarily pull down the said wall, and also remove the said trees from the said highway, doing no unnecessary damage thereby, &c.,-fourthly, a similar plea, alleging a right of way, aud due notice given of removing the obstructions. Issue thereon. The cause was tried before Martin, B., at the last Spring Assizes at Winchester. The facts which appeared in evidence were as follows:-There had from all time been a highway from Whitwell to Chalc, in the Isle of Wight, passing over what was formerly a common or down belonging originally to Sir Richard Worsley, and afterwards to Baroness de Villars. About the year 1809 or 1810, one Michael Hoy, who was possessed of an adjoining property called the Hermitage, inclosed a part of the common, including a portion of the old road, by putting up a bank and planting trees across it, and setting out a new road : and the road as so diverted continued to be used by the public as the highway from Whitwell to Chale down to about the year 1828, no one appearing to have made any objection. In the year 1832, the Hermitage became the property of one Barlow Hoy, who made still further incroachments, forming a new road, which new road was used and adopted as a substitution for the old road from that time down to the year 1857. In 1844, the plaintiff purchased certain land from the Baroness de Villars adjoining Michael Hoy's inclosure: aud the trustees of Barlow Hoy at the same time purchased from the Baroness the land which had been so iucloaed by Michael Hoy. In 1857, the defendant bought the Hermitage from the representatives of Barlow Hoy. The old road through this portion of the land, including the inclosure made...

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15 cases
  • Edward Walsh and Another v County Council for County of Sligo
    • Ireland
    • Supreme Court
    • 11 November 2013
    ...Balfe Ltd (Unrep, Costello J, 3/1/1995); Falcon v Famous Players Film Co [1926] 2 KB 474; Smith v Wilson [1903] IR 45; Dawes v Hawkins (1860) 8 CB (NS) 848; London Transport Board v Moscrop [1942] AC 332; Hue v Whiteley [1929] 1 Ch 440 and Jones v Bates [1938] 2 All ER 237 considered - Appe......
  • Walsh v Sligo County Council
    • Ireland
    • High Court
    • 20 December 2010
    ...[1992] S.C. 357; [1992] S.L.T. 1035. Davies v. Stephens (1836) 7 Car. & P. 570; 173 E.R. 251. Dawes v. Hawkins (1860) 8 CB (N.S.) 848; 141 E.R. 1399; (1860) 25 J.P. 502. Director of Public Prosecutions v. Jones [1999] 2 A.C. 240; [1999] 2 W.L.R. 625; [1999] 2 All E.R. 257. Deeble v. Linehan......
  • R (Smith) v The Land Registry
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 10 March 2010
    ...Haigh v West [1893] 2 QB 19, Seddon v Smith (1877) LT 168, St Ives Corporation v Wadsworth [1908] Knight's Local Government Reports 306, Dawes v Hawkins (1860) 8 CPB 348. He noted that, although a highway could be extinguished in the ways I have mentioned, there was no reference to extincti......
  • R v Secretary of State for the Environment, ex parte Burrows
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 23 November 1989
    ...the non-exercise of rights of passage; saving only when this arises from natural causes such as inroads of the sea or landslips: see Dawes v. Hawkins (1860) 8 C.B.N.S.848. Apart from the old procedure by way of writ ad quod damnum, in order to extinguish or even vary a right, intervention b......
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8 books & journal articles
  • Table of Cases
    • United Kingdom
    • Wildy Simmonds & Hill Public Rights of Way: The Essential Law Contents
    • 30 August 2019
    ...Cas 740, 50 LJQB 689, 44 LT 844, HL 19 Dart v Ely [2000] EWCA Civ 259, [2000] NPC 103, [2000] All ER (D) 1387, CA 44 Dawes v Hawkins (1860) 8 CB (NS) 848, 25 JP 502, 29 LJCP 343, Ct of Common Pleas 10, 18, 26 De Ponthieu v Pennyfeather (1814) 5 Taunt 634, 1 Marsh 261, 128 ER 839, Ct of Comm......
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    • Wildy Simmonds & Hill Public Rights of Way: The Essential Law Contents
    • 30 August 2019
    ...brought into question the onus is on the landowner to show he had no intention to dedicate). 24 CROWA 2000, s 58(2). 25 Dawes v Hawkins (1860) 8 CB NS 848. 26 Attorney General v Horner (1885) 11 App Cas 66. 27 R v Mellor (1830) 1 Lew CC 158; Cubitt v Maxse (1873) LR 8 CP 704. 28 Secretary o......
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    • United Kingdom
    • Wildy Simmonds & Hill Restrictions on the Use of Land Part III. Public rights of way
    • 30 August 2016
    ...Note that the right to deviate in respect of temporary obstruction has been held even for a period of 50 years. See Dawes v Hawkins (1860) 141 ER 1399. See also R (Gloucester Country Council) v Secretary of State for the Environment, Transport and the Regions (2001) 82 P & CR 15 at [57], pe......
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    • Wildy Simmonds & Hill Restrictions on the Use of Land Preliminary Sections
    • 30 August 2016
    ...v Williams (1851) 16 QB 546, 17 ER 988, KBD 14 Davies’ Application, Re (1971) 25 P & CR 115, [1972] JPL 329, LT 325, 328 Dawes (1860) 8 CB (NS) 848 171, 195 Dawes v Adela Estates Ltd (1970) 216 EG 1406 34 Dawes v Hawkins (1860) 8 CB (NS) 848, 141 ER 1399 142, 143, 148, 167, 212 De Ponth......
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