Dawes v Hawkins
| Jurisdiction | England & Wales |
| Judgment Date | 06 July 1860 |
| Date | 06 July 1860 |
| Court | Court of Common Pleas |
English Reports Citation: 141 E.R. 1399
IN THE COURT OF COMMON PLEAS AND THE EXCHEQUER CHAMBER
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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