National Institute of Agricultural Botany Trustees v Cambridge County Council ; Chivers & Sons Ltd v Cambridge County Council
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS |
| Judgment Date | 13 March 1957 |
| Judgment citation (vLex) | [1957] EWCA Civ J0313-1 |
| Date | 13 March 1957 |
| Court | Court of Appeal |
[1957] EWCA Civ J0313-1
In The Supreme Court of Judicature
Court of Appeal
The Master of the Rolls (Lord Evershed),
Lord Justice Morris and
Lord Justice Morris.
Mr. G.D. SQUIBB, Q.C. and Mr. DAVID HIRST (instructed by Messrs. Blyth Dutton 'right & Bennett, Agents for Messrs. King Metters & Harrison) appeared on behalf of Chivers & Sons Ltd., Appellants.
Mr. DAVID HIRST (instructed by Messrs. Blyth Dutton Wright & Bennett, Agents for Messrs. Few & Kester, Cambridge) appeared on behalf of the Trustees of the National Institute of Agricultural Botany Registered, Appellants.
Mr. P. DONALD McINTYRE, Q.C. and Mr. W.H. HUGHES (instructed by Mr. Charles Phythlan, Clerk to the Cambridge County Counoil, appeared on behalf of the Respondents.
: The Judgment which lam about to read is the judgment of the Court.
Pursuant to their duties under the National Parks and Access to the Countryside Act, 1949, the Cambridge County Counoil carried out a survey or lands In their area over which rights of way were alleged to subsist. They prepared a provisional wap and statement whioh they published on the 1st February, 1955. The map showed a path which ran from Cambridge Road to Huntingdon Road on the North-west side of the City of Cambridge. The path lay in part across certain land known as Nos. 293, 235, 234 and 211 on the crdnance Survey Map for the County of Cambridge (1926 edition). That land is owned and occupied by Chivers & Sons Ltd. The path also lay in part across land known as No. 214 on the same Ordnance Survey Map, which land is owned and occupied by the Trustees of the National Institute of Agricultural Botany Registered, The path was described in the provisional statement. It was stated to be 1170 yards in length and to have been created by usage. The "relevant date" mentioned in the provisional statement was the 5th October, 1952. The two landowners named applied to Quarter Sessions pursuant to section 31 (1) (a) of the Aot of 1949 for declarations that at the relevant date mentioned in the provisional statement there was no public right of way over the land. The applications were heard by the Appeal Committee of Quarter Sessions on the 29th and 30th September, 1955, when the parties were represented by Counsel. The Court of Quarter Sessions, finding it proved to their satisfaction that there was at the relevant date a public right of way over the land, refused to make the declarations. The actual conclusion of the Court was "that the Respondents had on the evidence satisfied us that the footpath had been dedicated as a highway at common law at some time before 1899". The landowners, by notice dated the 5th October, 1955,requested the Court of Quarter Sessions to state a ease… It is provided by section 31 (7) of the Aot of 1949 as follows: "Section twenty of the Criminal Justice Act. 1925, (which provides for appeals to the High Court by way of oase stated on a point of law)shall with the necessary modifications apply in relation to applications under this section,"
Section 20 of the Criminal Justice Act, 1925 , is as follows:- by the first part of subsection (1) of that seetion it is stated: "After the determination by a court of quarter sessions of any appeal against a conviotlon by a court of summary Jurisdiction or the sentence imposed on such a convictlon, either party to the proceedings may, if dissatisfied with the determination of the court of quarter sessions as being erroneous in point of law, wake an application ii writing to the court of quarter sessions at any time within seven days after the date of the determination of the appeal to have a case stated for the opinion of the High Court on the point of law." I need not read the final paragraph of the subsection or the other subsectlons of the section which have no relevnc for preesent purposes.
The Court of Quarter Sessions was informed that the point of law on which the landowners (the appellants) wished to have a case stated was whether there was any evidence upon which the Court could find as it did. Cases were accordingly stated THE Orders of Quarter sessions were affirted by the Queen's Bench Division and appeals are now brought to this court.
The question of law actually stated in egch of the cases appears to be somewhat more extensive than was requested. Indeed two questions of law are stated. They are: (1) "whether on the facts as found by us (being the aforesaid facts which were proved or admitted) regarded as a whole we were entitled In law to find that there was at the relevant date a public right of way over the said land and if not what should be done in the premises ".
The stated cases record the facts which were proved or admitted. Subject to considerations which can be later mentioned the facts are of equal singnificnce in the two cases. There is no need to recite them at length. There were certain Inolosure Awards in 1806 and 1840, and their contents, so far as relevant, are set out. Reference in mde to the 1888 and 1903 editions of the Ordnance Survey Maps. There was a very important finding that from the year 1890 until the year 1898 many members of the public used to walk openly and frequently and without interruption over the path and that the path was unobstructed. In 1899 the then predecessor in title of Chivers & Sons Ltd. placed an obstruction across the path at a point approximately half-way along its course. There followed a memorial from 26 inhabitats of the distroit addressed to the Chairman of the Chesteorton Urban District Council (within whose area part of the path was situate) calling attention to what had happende and asserting that the use of the path had been enjoyed by the general pulbic for many years. Meetings of the Chesterton Urban Distriot Council took place and they requested the Impington Parish Council (within whose area another part of the path was situate) to co-operate in opposing the obstruction. The Parish Council declined to do so and the Chesterton Urban District Council took no proceedings to enforce a public right of way over the path. But notwithstanding the obstruction, members of the public used until the year 1916 to walk over the path openly and without interruption. That was done with the knowledge of workmen employed by Chivers & Sons Ltd. or their predecessors in title, Then in the year 1916 Chivers & Sons Ltd. placed barbed wire across the path at the point where the obstruction had been placed in 1899: this barbed wire has since remained and has made it impossible for members of the public to walk along the path.
The first question which arises is whether there was "any evidence" to support the conclusion that the footpath ahd been dedicated as a highway at common law at some time before 1899. Mr. Squibb submitted that there was not.
Before there can be dedication there must be an intention to dedicate on the part of one who is entitile to dedicate. If there is evidence of open and unobstructed user by the public as of right for a period of time that is substential, that is evidence from which it is possible to infer an intention to deidcate.
In ( Pole v. Huskinson 11 M. & W. 827) Baron Parke said (at page 830): "In order to constitute a valid dedication to the public of a highway by the owner of the soil it is clearly ssettled that there must be an intention to deidcate - there must be an animus dedicandi of which the user by the public is evidence and no more; and a single act of interruption by the owner is of much more weight upon a question of intention than many acts of enjoyment."
In ( Folkestone Corporation v. Brockman 1914 A.C. 338), Lord Athinson in his Speech at page 362 said: "The invariable wellestablished practice followe by many of the most able and distinguished judges for many many years has I think been no matter how strong the evidence of user to leave all the evidence to the jury, to ask them to consider it as a whole, and determine whether the owner of the soil intended to deidcate to the public a highway over it. The justices in cases such as the present are, if anything, more absolute and exclusive judges of fact than is the jury in a trial before them."
In his judgment in this Court in ( Williams-Ellis v. Cobb 1935, 1 K.B., 310), Lord Wright, Master of the Rolls, said at page 314: "There cn only be dedication if there is the relevant intention, actual or presumed, of an owner capable in law of dedicating".
In our judgment the facts which were proved or admitted and which are recorded in the stated cases were sufficient to support a conclusion that the footpath had been dedicated as a highway at some time before 1899. If there had been a trial with a jury and if the jury were disposed to accept the facts which the Appeal Committee of Quarter Sessions have found and if the jury were properly directed in law, we consider that they would have been entitle to decide that there had been a dedication. It could not be said that there was no evidence to support such a conclusion.
Mr. Squibb submitted that the Appeal Committee must in some manner have misdirected themselves: he submitted that no tribuanl properly directed would on the facts as found have arrived at the conclusion that there had been a dedication. He referred to passages from the Speeches in ( Edwards v. Bairstow 1955, 3 A.E.E. 48). Lord Simonds at page 53 said: "It is for this reason that I thought it right to set out the whole of the facts as they were found by the commissioners in this case. For, having set them out and having read and re-read them with...
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Working Men's Club & Institute Union Ltd v Swansea Corporation
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