Hue v Whiteley
| Jurisdiction | England & Wales |
| Court | Chancery Division |
| Year | 1929 |
| Date | 1929 |
Right of Way - Evidence of User - User to pass from Highway to Highway - Motive in using Way irrelevant - Evidence of continuous User - Inference of Dedication.
Evidence of long public user, as of right, of a pathway or roadway for the purpose of passing from one public place to another, is not the less ground for inferring dedication because recreation may have been the sole motive of such user.
H. and W. were neighbouring freeholders, and the sites of their properties originally formed part of the D. estate. The property of H. was originally let on a long lease in 1878 to one G., together with a right of way over a rough road, of the nature of a timber road, leading up from the London Road towards the property and past the property to Box Hill. In 1916 H. acquired the freehold of the property, and took a conveyance of the roadway in 1924. W., without the consent of H., opened a small gate for pedestrians in the boundary fence. In the action H. clammed a declaration that he was the freeholder of the said roadway and an injunction to restrain W. from trespassing thereon. Evidence was given of public user between Box Hill and the London Road for purposes of pleasure:—
Held, that the evidence of public user led to a presumption that the land had been dedicated, and that the motive of such user was irrelevant.
WITNESS ACTION.
In 1877, one Henry Peto Grissell built, at Mickleham, Surrey, on land which was at the time part of the Deepdene or Hope Estate, a house then intended to be called “Box Hill House,” and called at the time of this action “Pinehurst.” In consideration of his building the house, the Hope Estate granted to him a lease of the site for ninety-nine years, together with a right of way over a certain cartway. This cartway had been in use, for well over fifty years before Grissell built the house, for the purpose of bringing down timber which had been felled on Box Hill; and in parts — especially in the lower part, where it joined the main road — it was very steep. It continued west in a straight line from a point near “Pinehurst” along the outside of the boundary fence of a house called “Juniper Hall,” occupied at the time of this action by one McAndrew. The land to the south of the fence of “Juniper Hall” — including the cartway — belonged to the Hope Estate and was undeveloped. About the year 1828 the building, which, at the time of this action, was the lodge occupied by the plaintiff's gardener, was built for the Mickleham Coal Charity; and the timber track ran between this building and the boundary fence of “Juniper Hall,” appearing on a map of 1848 as a private road.
Grissell did not make up the track, as he generally used a road known as the zigzag road for the purpose of driving to and from “Pinehurst.” But at a spot where a mishap once occurred, he placed a gate which came to be known as the Target Gate.
Some time later a Mrs. Chaplin built on the site adjacent to “Pinehurst” a house called “Bencomb,” and, at the same time, together with it, erected the boundary fence. Mrs. Chaplin sold “Bencomb” to a Mrs. Forbes, who, in turn, sold it to one Arthur Cox Pale, and...
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...[1994] 2 I.L.R.M. 420. Herrington v. British Railways Board [1972] A.C. 877; [1972] 2 W.L.R. 537; [1972] 1 All E.R. 749. Hue v. Whiteley [1929] 1 Ch. 440; [1928] All E.R. 308. Jaques v. Secretary of State for the Environment[1995] J.P.L. 1031; [1994] N.C. 79. Jones v. Bates [1938] 2 All E.R......
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... ... In this connection it is helpful to contrast Attorney-General v. Antrobus , F43 cited above, with Lock v Abercester Ltd. F44 and Hue v. Whiteley , F45 in which Tomlin J., after referring to Antrobus , F46 stressed that in that case “the only user proved was that of the public crossing land, in order to get to a place where they had no right to be, and there to visit a monument over which there was no public right,” and said: ... ...
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