Stone buttress built on private land next to highway – Long history of public use as viewing platform over picturesque valley – Whether such use capable of amounting to implied dedication and acceptance of public highway – Owners’ opposition upheld
The claimant owners’ house in Knaresborough, Yorkshire, was set in expansive gardens. Part of the garden was bounded by an adopted road, from which it ran downhill towards the river Nidd. The roadway, which had been
shown as a public highway since the early 19th century, abutted immediately on to the garden, there being no land serving as a verge. In or about 1890, a semi-circular stone buttress was built, by persons unknown, on the garden side of the highway boundary. The surface of the buttress, which lay approximately 2.5ft below the level of the road and between 7 and 8ft above the surrounding garden, served as a platform for a bench, thus providing means for enjoying the view towards the river. The claimants, who had bought the house in 1982, took proceedings against the defendant highway authorities in response to a claim by a local action group that the public had a perpetual right to use the facility afforded by the buttress. The defendants contended: (i) that the buttress formed part of the highway; alternatively (ii) that the means of access to the bench had itself been dedicated and accepted as a public highway. It fell to be determined by way of preliminary issue whether the top of the buttress was capable, as a matter of law, of being dedicated as a highway or part of a highway. For that purpose, it was assumed, inter alia, that there had been a long history of public use and that the bench had been maintained by the local authority between 1950 and 1974.
Held: Judgment in favour of the owners.
1. In the absence of a verge, and having regard to the date that the buttress was built, there was nothing to support the claim that the buttress formed part of the highway as originally dedicated.
2. To be capable of dedication and acceptance, an alleged highway had to consist of a right of passage exercisable along a defined route, and, where implied dedication was relied upon, had to lead, as a general rule, to a destination to which the public was entitled to go. Since the right to use the bench could not subsist as a public right, its use was necessarily permissive. Likewise, the use of the platform could only have been permissive as it was inseparably linked to the use of the bench. There could be no public right in the nature of a ius spatiandi, that is a right merely to wander on private land: Attorney-General v Antrobus [1905] 2 Ch 188 applied; William-Ellis v Cobb [1935] 1 KB 310 considered.
Earnest Scamell (instructed by Plant Gold & Co) appeared for the claimants; Ruth Stockley (instructed by the solicitor to Harrogate Borough Council) appeared for the defendants.
Alan Cooklin, barrister
