Highway — Area of land used for storage of chippings — Ownership claimed by frontager — Evidence of land as part of highway since 1799 — Whether existence of public footpath across land confirms land as privately owned — Whether sufficient evidence to show land is part of highway — Appeal by frontager dismissed
The appellant owns property adjoining a triangle of land at the side of a public highway at Wilstone Green, near Tring. The triangle, ownership of which is claimed by the appellant, is used by the second respondents, Hertfordshire County Council, for the storage of chippings in connection with their responsibilities as the local highway authority. The appellant’s claim for an injunction to restrain the respondents from entering the triangle was dismissed by His Honour Judge Goldstone in the Watford County Court (January 12 1990). The county council’s counterclaim, for an order requiring the appellant to remove a fence and barricade from the triangle on the basis that the land was part of the public highway, was upheld.
The appellant appealed contending, inter alia, that a footpath, no 43 on the definitive map, crossed the triangle; by section 32 of the National Parks and Access to the Countryside Act 1949 a footpath other than one at the side of a public road can only run over private land and accordingly the triangle cannot be a public highway. Further, that the evidence showed the land was used for storage purposes and was not used as a highway.
Held The appeal was dismissed.
The evidence before the court below showed the triangle as part of the public highway since 1799. The existence of footpath no 43 was irrelevant; section 32 of the 1949 Act has been repealed. Land could be part of the public highway even if it was not maintained as such and metalled. Whether the land is part of the public highway is a question of fact. On the evidence before him the trial judge was entitled to have reached the decision he did.
The appellant, Mrs Mavis Foy, who was made a third party in the proceedings below, appeared in person; and Robin Campbell (instructed by Pickworths, of St Albans, for the solicitor to Hertfordshire County Council) appeared for the second respondents. The plaintiff, Toneye Foy, who had commenced the proceedings, was declared a vexatious litigant on October 26 1985. The first respondents, the Dacorum Borough Council, did not appear and were not represented.
