Fairey v Southampton County Council
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE DENNING,LORD JUSTICE BIRKETT |
| Judgment Date | 19 June 1956 |
| Judgment citation (vLex) | [1956] EWCA Civ J0619-2 |
| Court | Court of Appeal |
| Date | 19 June 1956 |
[1956] EWCA Civ J0619-2
In The Supreme Court of Judicature.
Court of Appeal
Lord Justice Denning
Lord Justice Birkett and
Lord Justice Parker
Mr. PERCY LAMS, Q.C. and Mr. J.P. WIDGERY (instructed by Messrs. Ashurst, Morris, Crisp & Co.) appeared on behalf of the Appellant.
Mr. J. SCOTT HENDERSON, Q.C. and Mr. M.G. POLSON (instructed by Messrs. Theodore Goddard & Co., Agents for Mr. G. Andrew Wheatley, Winchester) appeared on behalf of the Respondents.
There is a footpath at Bossington in Haspre which is used by the country folk as a way to get to Horsebridge station and Horsebridge village and also as a walk round from Houghton. For 46 years from 1885 to 1931 this footpath was used by members of the public as of right without interruption. Some of the persons so using it were strangers to the locality, but it wasmainly used by local residents. The Case finds that since 1931 the landowner "made no attempt to prevent local residents from using the said path, but if any other member of the public was seen thereon by the landowner. he was told that he had no right to be there". In 1953 the County Council showed the footpath in their map as a footpath over which the public had a right of way. The owner thereupon objected and took the matter to Quarter Sessions. They decided that there was a public right of way along the path. Quarter Sessions said that, if they had been asked to determine to dete the at common law, they would have held that there was no public right of way along the footpath, because they were not satisfied that there was any intention by the owner to dedicate it as a highway: bur Quarter Sessions went on to hold that the public have acquired a right of way under the Rights of way Acts 1932. The owner appealed to the Divisional Court, who decided against hits by a majority. He now appeals to this Court.
The Rights of ray Act, 1932, has introduced a new means by which the public may acquire a right of way, in addition to the old means of die dilution, which, be it noted, is still preserved, see section 3.(2). The new means of acquiring it is by prescription for 20 years. The old common law prescription for a right of way had to run from time immemorial, that is, from the time when Richard coeur de Lion came to the throne in 1189 A.D. The new statutory period of 20 years has no fixed starting point, but only 8 finishing point. The public must have used the way as of right for the period of 20 years next before their right to use it was "brought into question. We have now to consider how the period of 20 years is to be calculated.
The thing to do is to find the finishing point and then count back 20 years. This means that in this case we have to find the time when the right of the public to use the way was first "brought into question by notice as aforesaid or otherwise" within section 1(6) of the Act. Those words are obviously taken from the similar words in section 4 of the Prescription Act, 1832, which was considered by the Court of Common pleas in Cooper v. Hubbock (12 C.B. M.S. at page 468), In that case Mr. Justice Willes said that "in order to have the claim 'brought in question' there must be at least enough in the proceedings to apprise the parties that the claim was advanced, so that there might be an opportunity of litigating it." Applying hose observations to this case, I think that in order for the right of the public to have been "brought into question", the landowner must challenge it by some means sufficient to bring it home to the public that he is challenging their right to use the way, so that they may be apprised of the challenge and have a reasonable opportunity of meeting it. The landowner can challenge their right, for instance, by putting a barrier across the path or putting up a notice forbidding the public to use the path. When he does so, the public may meet the challenge. Some village Hampden may push down the barrier or tear down the notice: the local council may bring an action in the name of the Attorney-General against the landowner in the Courts claiming that there is a public right of way: or no one may do anything, in which case the acquiescence of the public tends to show that they have no right of way.
But whatever the public do, whether they oppose the landowner's action or not, their right in "brought into question" as soon as the landowner puts up a notice or in some other way makes it clear to the public that he is challenging their right to use the way. Applying this test, I ask myself, when did the landowner here make it clear to the public that he was challenging their rightto use the way.
Applying this test, I ask myself, when did the landowner here make it clear to the public that he was challenging their right to use the way? Quarter Sessions held that he did so in 1931 when he objected to the use of the path by persons who were not local residents. We do not know what evidence was before them on that point. If the landowner merely turned back one stranger on an isolated occasion, that would not, I think, be sufficient to make it clear to "the public" that they had no right to use it. He ought at least to make it clear to the villagers of Bossington, Houghton and Horsebridge. They were the members of the public most concerned to assert the right, because they were the persons who used the path. They knew - better than the landowner himself - how long they had used it. They were the persons to tell. It was no good the landowner speaking to a stranger who would know nothing of the public right and would not be concerned to assert it. This view is supported by a case which was decided nearly a hundred years ago - R. v. Broke (1859) 1 F. & F. 514) - about a footpath at Ipswich. Seafaring men proved that they had used the path without interruption for a great many years for the purpose of their calling. The landowner sought to rebut the public right by proving that he had turned back all persons who were not seafaring mn: but it was held that that was not sufficient for the purpose. Chief Baron Pollock said that the user by the seafaring men was a user by the public and that long user by them gave the public a right of way. If the landowner wished to deny the public right, he ought to have made it clear to the seafaring men tint they used it by his leave and not as of right. So here the landowners ought to have made it clear to the villagers. we have no information on this point, but I think we ought to assume that Quarter Sessions had sufficient evidence before them to support their finding. We ought to assume that in 1931 when the landowner turned back strangers, he did it in soopen and notorious a fashion that it was made clear, not only to strangers that they had no right to use the path, but also to local residents that they only used it by tolerance of the owner. If so, he did bring the right into question in 1931 as Quarter Sessions have found.
In this connection I would also mention the finding of Quarter Sessions that in and from 1931 the landowner, by turning off strangers, showed an intention not to dedicate the path as a highway for the use of members of the public at large. This raises the same point. In my opinion a landowner cannot escape the effect of 20 years prescription by saying that, locked in his own mind, he had no intention to dedicate: or by telling a stranger to the locality (who had no reason to dispute it) that he had no intention to dedicate. In order for these to be "sufficient evidence that there was no intention" to dedicate the way, there must be evidence of some overt acts on the part of the landowner such as to show the public at large - the public who used the path, in this case the villagers -that he had no intention to dedicate. He must, in Lord Blackburn's words, take steps to disabuse those persons of any belief that there was a public right. See Mann v. Brodle (10 A.C, at page 386). Such evidence may consist, as in the leading case of Poole v. Hutchinson (1843) 11 M. & W. 827) of notices or a barrier: or the common method of closing the way one day a year. That was not done here: but we must assume the landowner turned off strangers in so open and notorious a fashion that it was clear to everyone that he was asserting that the public had no right to use it. On this footing there was sufficient evidence to show that there was no intention to dedicate.
I think, therefore, that we should accept the findings of Quarter Sessions that the landowner brought the public right into question in 1931 and thereafter showed a sufficient intention not to dedicate the path as a highway. Even so, there is foundto be 20 years user by the public as of right before 1931: and the question is whether that is sufficient to give a staturory right to use the footpath. The difficulty is that the Rights of Way Act, 1932, was not passed until the 12th July, 1932, and did not come into operation until the 1st January,1934. The 20 years user before 1931 took place before the Act was passed. Can the public acquire a right of way by 20 years user before the Act? Is the Act retrospective to that extent?
I must say at once that to my mind this Act of 1932 Is not a procedural Act. It affects the substantive law in the following respects: it creates a new statutory right to a highway by prescription in addition to the old right by dedication. It reverses the burden of proof: for whereas previously the legal burden of proving dedication was on the public who asserted the right ( Folkestoiie v. Brockman, 1914 A.C. 338), now after 20 years user the legal burden is on the landowner to refute it. It gives reversioners a right to Interfere and gives the public a right of way if they do not interfere: whereas previously reversioners had no right to...
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