R v Mathias
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1861 |
| Date | 01 January 1861 |
| Court | High Court |
English Reports Citation: 175 E.R. 1191
QUEEN'S BENCH, COMMON PLEAS AND EXCHEQUER
Referred to, Taylor v. Goodwin,. 4 Q. B. D. 228; R. v. Bartholomew (1908), 1 K. B. 554.
REGINA V. MATHIAS 1191 [570] western f'mcurr (a) Bristol Summer Assizes, 1861, co-ram Byles J regina v. mathias. (The use of a public footway includes that of a perambulator as a usual accompaniment of a large class of foot passengers, if of a size and weight not to inconvenience other passengers, and not to injure the soil. Whether under the circumstances the use of such a vehicle be justifiable is a question of fact for the jury. One of the public has no right to remove an encumbrance to the soil of a highway unless it be also a nuisance to the way. The owner of the soil of a highway may remove anything thereon not justified by the easement though not a nuisance to the way ) [Referred to, Taylor v. Goodwin, 4 Q. B. D. 228 ; R. v. Bartholomew (1908), 1 K. B 554.] Indictment for an assault. Plea : not guilty The prosecutnx pushing before her a perambulator 18 inches wide and 14 pounds weight, in which was an infant child, was passing along a public footway in Clifton, leading from a road into a square, the soil of which was in the defendant The defendant disputing her right to such a use of the way, placed his hands upon her to prevent it, which was the assault complained of The case for the prosecution being closed, Montague Smith for the defendant.-There is no case for the jury This was a footway, and the prosecutrix was going there with a carnage. She was therefore using the property of the defendant in a way she was not authorized to do, and the defendant-was justified in preventing it. There has been always a clear distinction between a right of way on foot and one with horses and cattle, and carriages. The using such a way with a vehicle of any description, as a handcart, wheelbarrow, Bath chair, or perambulator, was unauthorized by the right. It cannot be said that all carriages, not drawn by beasts of burden, might be used on a footway, otherwise a steam-carriage, or one containing a popular member of parliament drawn by enthusiastic constituents, might be so used. The use of a carriage on wheels might interfere with the proper public use of the way The 72nd section of 5 & 6 Will. 4, c. 50, the [571] General Highway Act, favours this part of the argument. Wicket gates and stiles are common on footways, which exclude by their very existence any...
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