Folkestone Corporation v Brockman

APPEAL from an order of the Court of Appeal reversing an order of the Divisional Court upon a case stated by the justices of the borough of Folkestone under 20 & 21 Vict. c. 43 and 42 & 43 Vict. c. 49.

The appellants, having duly adopted the Private Street Works Act, 1892, pursuant to that Act made a provisional apportionment of expenses to be incurred in executing certain private street works in a portion of a street known as the Lower Sandgate Road lying between the eastern boundary fence of Cliff House and a point 170 yards east of St. Paul's Church Schools, Sandgate. The respondents, who were owners and occupiers of premises situate in this portion of the street, objected to the apportionment on the ground (inter alia) that this portion of the street was a highway repairable by the inhabitants at large.

The justices disallowed the objections, but at the request of the respondents stated a case for the opinion of the King's Bench Division. The facts stated by the special case were as follows:—

The Lower Sandgate Road started from the main highway immediately east of St. Paul's Schools, Sandgate, and continued thence south of the cliff to the highway west of the Bathing Establishment, Folkestone, and was about 7000 feet in length. The whole length of the road was shewn on the ordnance plan annexed to the case and lettered A, B, C, C1, D, E, F, and coloured pink thereon. The part of the road to which the apportionment related was that lying between the points lettered B and D. (Par. 4.)

From the evidence of witnesses called, facts admitted, and documents produced and proved before the justices and from facts and circumstances known to them they found as facts:—

(A) That the road in question was made by and at the expense of Jacob, Earl of Radnor, over and upon his lands, and was completed about Midsummer, 1827.

(B) That previously to the making of such road the whole of the land over which it ran from the base of the cliff southward to the beach was wild, uncultivated, and unenclosed, but that the lands on each side of the road lying between the points C1 and D on plan were leased and probably enclosed in 1827 and 1828.

(C) That the town of Folkestone then lay for the greater part below the cliff and around the harbour and at some distance from the main highway from Hythe through Sandgate to Folkestone and the population consisted mainly of fishermen and seafaring folk.

(D) That there was no evidence before the justices of the existence of any road or footway there prior to 1827 or of any steps having been taken to prevent the public from wandering over the locus in quo prior to the making of the road.

(E) That the main highway from Sandgate to Folkestone passed at the top of the cliff roughly parallel to the road in question at an approximate distance therefrom of 180 to 290 yards and was an ancient and commodious highway.

(F) That immediately upon completion of the road in question in 1827, houses of a residential character were erected along its course from Cliff House (point D on plan) westward to the top of the hill (point C on plan) on building plots leased by Lord Radnor, and that all the available plots on this section of the road were built upon within about fifteen years.

(G) That no houses were erected eastward of Cliff House along the course of the road to Folkestone, and upon the development of Folkestone as a watering place the land east of Cliff House, through which the road ran, was ultimately enclosed and planted with trees and shrubs, and walks made over the same by Lord Radnor for the use and enjoyment of the general public.

(H) That there was no evidence before the justices that the road in question was required for any purpose except the use of the occupiers of the houses erected along its course (by his lordship's lessees), their servants, tradespeople and visitors, for which purpose it was in fact necessary. But there was evidence before them and they found that from the year 1831 the road was to some extent used by inhabitants of Folkestone and Sandgate other than the said lessees, &c., for business and other purposes.

(I) That there was a toll house and gate across the road about 4300 feet east of St. Paul's Schools (point E on plan) at which tolls for horses and vehicular traffic had been levied since a period antecedent to 1836 to the present time.

(J) That spaces were and had been since a period antecedent to 1836 left on either side of the toll gate for foot passengers.

(K) That there was also a bar fixed by the side of the road near Victoria Pier (point F on plan) adapted for closing the road to wheeled traffic, with a footway left clear on either side, but there was no direct evidence when such bar was placed there.

(L) That both at this bar and at the toll house there were notice boards fixing the rate of toll for horse and wheeled traffic, and both boards prohibited the passage of licensed motor cars, cattle and sheep along the road, but did not prohibit the free passage of foot passengers.

(M) That the notice board near Victoria Pier was headed “Private road to Sandgate,” and that at the toll house “Private road” only, and both boards were fixed and maintained by the estate office.

(N) That there was also prior to 1836 a bar fixed at the foot of the hill near the Riviera Road (point B on plan) which the justices found to have been used to close the road on one occasion in 1835, but not so as to prevent the passage of foot passengers.

(O) That the tolls had always been collected at the toll gate only for through wheeled traffic over the road both ways, but carriages had been driven from Sandgate as far as the toll gate and then turned back without payment of toll. The justices had no evidence whether or not Lord Radnor knew of and assented to such acts.

(P) That prior to 1836 the road in question was never kept in proper repair, but was open for foot passengers without interruption and had so continued to the present time.

(Q) That there was no evidence before the justices of any made footpath on the road before 1836, but they found that foot passengers used the whole width of the road and the banks by the sides of the roads (where practicable) at that period without let or hindrance.

(R) That the road in question had always been repaired by Lord Radnor or his lessees, and had never been repaired by the local highway authority.

(S) That the local authority had placed lamps along the road and lighted it, but there was no evidence before the justices to shew that this was done prior to the coming into force of the Public Health Act, 1875.

(T) That there had been no formal dedication of any part of the road as prescribed by s. 23 of the Highway Act, 1835. (Par. 5.)

The appellants (the respondents in the case) produced and proved certain minutes of meetings of the Commissioners of Pavements of the town of Folkestone, acting as such under a local Act, and held on November 17, 1851, and February 18, 1852, respectively, which established the fact that William, Earl of Radnor, as the result of negotiations with the commissioners in 1851, made up at his own cost the section of the road lying between the points lettered A and B on the...