Obstruction of footpath–Whether lane a public highway–Statements in conveyances of property bounded on one side by lane held not to be conclusive–Points on rights-of-way granted or not granted in conveyance of nearby properties also held inconclusive–Absence of evidence of user of lane by through traffic ‘noticeable’–Lane not made out to be a public highway, obstruction charges correctly dismissed
This was an
appeal by Mr Christopher Myles Hall, director of the Council for the Protection
of Rural England, against the dismissal by justices sitting at Watlington,
Oxfordshire, of three informations preferred by him under the Highways Act 1959
alleging that the respondents, H B Howlett & Partners Ltd, of Great
Holcombe Farm, Watlington, and Mr Adrian Nixey and Mr Reginald Nixey, both of
Langley Hall Farm, Watlington, unlawfully obstructed with fencing Holcombe
Lane, Watlington, being a public highway.
Mr P J
Crawford (instructed by Blyth, Dutton, Robins, Hay, agents for Marshall &
Galpin, of Oxford) appeared for the appellant, and Mr N B Primost (instructed
by Cole & Cole, of Oxford, and Parrott & Coales, of Aylesbury)
represented the respondents.
Giving
judgment, LORD WIDGERY said: This is an appeal by case stated by justices for
the county of Oxford in respect of their adjudication as a magistrates’ court
at Watlington, when they dismissed three informations laid by the present
appellant against the present respondents, each information alleging that the
respondent in question did without lawful authority or excuse wilfully obstruct
the free passage along a lane known as Holcombe Lane, which lane was alleged by
the prosecutor to be a public road, the form of the obstruction being by barbed
wire, posts and the like. There was, as I understand it, never any question but
that the lane in question had been obstructed to the extent alleged, and the
issue below, and indeed the issue in this court, was really restricted to the
question of whether the lane was a public highway, proof of which of course was
an essential feature of this charge. I have some sympathy, I confess, with the
appellant in this case. It is evident that it is a matter of consequence to
him; the industry and trouble taken with regard to presenting the case below is
self-testimony to that, and one can well understand that, having had a hearing
on that scale before the magistrates, and this being the only court to which an
appeal can lie, it would be understandable enough if a layman expected a review
in this court to be rather more comprehensive than it can be. The fact is, as
is well known to lawyers, that the only appeal in this court can lie on a point
of law, and Parliament seems deliberately to have left many of these vexed
questions of fact to justices, possibly because of their local knowledge and
relying upon commonsense. In order to succeed in these proceedings, the
appellant has got to show either that the magistrates followed some wrong
principle, or that they reached a conclusion of fact for which there was no
evidence, or that they reached a conclusion which was perverse, or to put it
another way, one which no reasonable bench could reach on the material before
them, and it is obvious that that is a heavy burden which the appellant
necessarily assumes in this court, and for reasons which I shall give in
greater detail in a moment I certainly have come to the conclusion that that
onus has not been discharged.
The road in
question, conveniently called Holcombe Lane, is of a length of about one mile
and a half, and it begins in the village of Newington at a point near the Stag
public house. It takes a loop to the north and east, passing and no doubt
serving Great Holcombe Farm, and perhaps a number of buildings in the vicinity.
It then turns south and east and takes that general direction until it comes to
Little Holcombe Farm. Proceeding on beyond there it turns again south east and
comes on what is indisputably a main public highway. But Mr Crawford, on behalf
of the appellant, says that it does not stop at the main public highway but
continues beyond, where there is a further path continuing in a south-easterly
direction. As I say, there is no dispute that the obstructions complained of
were created by the respective respondents, and it is perhaps worth noting that
of those obstructions the first, second and third took place in a part of the
lane north and west of Little Holcombe Farm. The fourth obstruction took place
quite close to Little Holcombe Farm. The relevance of that is this: it came as
a great surprise to each member of the court to find that when this matter was
investigated before the justices no one put before the justices any information
based upon the definitive map prepared under the National Parks and Access to
the Countryside Act 1949. We have been told in this court that the definitive
map does not show a public way through Holcombe
south of Holcombe Lane, running (generally speaking) in a southerly and
easterly direction, and linking up with Holcombe Lane some few hundred yards to
the west of Little Holcombe Farm. Thereafter, the footpath defined on the
definitive map follows the line of Holcombe Lane down to the main road to which
I have referred. Accordingly, if and so far as the contents of the definitive
map were relevant in this case–and as they were not before the justices I
hesitate to comment upon them–three of the obstructions would have taken place
in that part of Holcombe Lane not included on the definitive map, but the
fourth would have been on that later length of the lane. The fourth obstruction
left a stile for pedestrians and therefore presumably was not an obstruction of
the footpath. I think, as I have said, that we should not be affected by
matters which were not before the justices, but I think it really is necessary
to say that the failure to assert, as I understand it, any footpath over the
rest of Holcombe Lane during the inquiries under the Act of 1949 is to say the
least a difficulty for those who allege that there was here evidence upon which
dedication of a public highway could be inferred.
The appellant
below produced a number of old documents and also called a number of witnesses
as to actual user, and I must deal briefly with these two broad heads under
which this evidence called resolved itself. We were shown first of all, as were
the magistrates, a large number of maps going back to the end of the 18th
century, which demonstrate that there was a road of some kind, probably along
the line of Holcombe Lane, from those days. The justices received certain
expert evidence which was called to enable them to interpret whether the road
was at that time a public highway or not, but it seems that the justices were
not able to regard that information as being in any sense conclusive, and we
have not been asked to look at it again. Accordingly, the maps as such
demonstrate only that there was a road and they do not, I think, provide any
significant assistance on the question before us, namely whether that road was
or was not a public highway. In addition to the maps, we have been shown a
number of miscellaneous documents, many of them documents of title, upon which
reliance of some kind or another is made. In particular, there is at the
northern and western end of Holcombe Lane a property known as Cobshall Cottage,
and we have been shown two deeds of conveyance affecting Cobshall Cottage. The
first, which is dated December 23 1879, in the parcels describing Cobshall
Cottage used this phrase: ‘All those two cottages or tenements formerly one
cottage or tenement with the gardens outbuildings and appurtenances to the same
respectively belonging situate and being at Holcombe in the Parish of Newington
in the County of Oxford formerly in the occupation of,’ and then names are
given, and the description follows that the property thereby conveyed is
‘bounded on the east by a public lane.’
Now the relevance of that information, as tortuously expressed from the
deed, is that the lane in question must be part of Holcombe Lane, albeit at its
almost extreme northern and western end, and as Mr Crawford rightly says, there
is in that document an indication that Holcombe Lane was reputed to be at all
events a public lane. The same point is repeated in a further indenture dealing
with the same property on October 2 1905, where the parcels have been slightly
varied and the point to which I am now referring is made in these words:
‘bounded towards the east or front by a public lane called Holcombe Lane.’ Again the point is thus seen that the draftsman
thought that Holcombe Lane was a public way at that time.
I do not for a
moment seek to disparage the value of such entries, but of course one has to
give each document of this kind the weight which its own circumstances justify,
and if Holcombe Lane was not a public lane at that time all that it means is
that one draftsman has introduced an error in the terms of the conveyance. It
has some value; its weight is a matter ultimately for the tribunal of fact.
Another point which was made, although not persisted in, by Mr Crawford was
that in the case of Cobshall Cottage the only access to an undisputed public
way was down Holcombe Lane, and he said that the absence of any grant of a
right-of-way over that section of Holcombe Lane is again indicative of the fact
that everybody thought this was public and therefore no such grant was
required. I am totally unimpressed by that argument. The overwhelming
probability was that this cottage would already have had some right over
Holcombe Lane, and if that was the case there was no need for the conveyance to
provide for it afresh. A similar comment is made in respect of Starveall
Cottage which is situated somewhat to the south of Holcombe Lane and much
further east than the property to which I have just referred. In order to
obtain access to Starveall Cottage it is necessary to go down a track from the
cottage to Holcombe Lane and then to find one’s way out via Holcombe Lane
itself. We have been shown a conveyance of Starveall Cottage which contains an
express grant of a right-of-way from the cottage to Holcombe Lane but no
express grant of a right-of-way thereafter. This, says Mr Crawford, is
indicative that there is a public right-of-way in Holcombe Lane and this is why
no further grant is required. Again, it seems to me a much simpler explanation
that no private right was necessary initially when the cottage and the
surrounding land was in single ownership, and the occupier could walk over his
own land to Holcombe Lane, but when the property was sold the occupier of Starveall
Cottage did require such a right, and accordingly it was granted to him. I can
find no substance and weight to be attached to those documents, so far as this
matter is concerned.
Then we were
shown what on any view must be an important matter, namely an inclosure award,
and this is, as inclosure awards go, somewhat difficult to interpret, because
it contains a great deal of unpunctuated English, but under the side-note
‘Private Roads’ the inclosure award makes provision for the laying out of ‘one other
private carriage road and driftway of the like breadth of twenty feet leading
out of the Chalgrove Road at the west end of Chalgrove Lane in a south-west
direction,’ and further details are appended. We were told yesterday that that
description is related to Holcombe Lane, in other words, that which is being
described is Holcombe Lane. If that is so, and it is not disputed, I find that
this is a point of great significance, because when inclosures were made the
prime purpose was to set out new boundaries, boundaries which had not existed,
and I should have thought that if the commissioners set out a new private road
in an inclosure award it is almost conclusive that the commissioners did not
think that there was already a public highway there, because there is no basis
to establish and lay out a new private road over existing public highway. I
think this is a point of considerable weight to go into the scales when those
scales are operated by the tribunal of fact concerned with this matter.
Then we were
referred to one or two incidental references to Holcombe Lane which appeared in
public documents during the last century. The first one to which I would wish
to refer is a board minute of the Watlington highways board on June 3 1868.
This minute has a side-note ‘Holcombe Lane,’ and obviously referring to that
side-note the minute reads: ‘Mr Hamp Haywarden Newington stated Mr Shrubb of
Holcombe had complained of the state of Holcombe Lane. Mr Hamp was informed by
the chairman of the board that Mr Shrubb should make his complaint in writing
in order that the matter might be formally before the board.’ So one sees the record there of Mr Hamp
complaining of lack of repair, and the comment is fairly made that it is unlikely
that he would be complaining of lack of repair except on
dealt with inconclusively on June 3 1868, and was deferred to the next meeting
of the board of July 1 1868. Against the side-note ‘Holcombe Lane’ we find: ‘Mr
Hamp having failed to make his complaint in writing as suggested by the
chairman at the last meeting the matter was allowed to drop.’ So really no conclusion was reached at all,
except that Mr Hamp for good reason or ill seems to have been trying to obtain
a statement of fact that the road was a public road, but the inconclusive
nature of the inquiry seems to me to make it impossible to attach very much
weight to that. There is another similar reference to trees obstructing
Holcombe Lane. This is an annual meeting of the parish held in Newington called
on March 30 1915, and the minutes disclose that ‘Mr Belcher complained of a
fallen tree across Little Holcombe Lane and proposed that the clerk be
instructed to write to the owner and ask him to remove it. This was seconded by
Mr Moores and carried unanimously.’
Again it may be only a straw in the wind, but it seems to indicate that
somebody thought that some part of Holcombe Lane was public, but it may well be
for all we know, and for all the justices knew, that that part to which
reference was made as the carriageway was the part of the lane which is not now
disputed to be public highway by virtue of the Act of 1949. I hope Mr Crawford
and those instructing him will not think that an inadequate review of the
effect of the documentary evidence. In its result, it seems to me to show very
little weight one side or the other. It may be that the justices could have
been influenced for or against the appellant by these documents, but I cannot
believe that they would have been heavily influenced either way because of the
nature of the documents on which I have already commented.
Then the
second class of evidence relied upon by the appellant below was the evidence of
user, and a number of witnesses were called to say what had been happening in
the way of access to and user of this road. Unfortunately, because it adds to
the appellant’s difficulties, the road has on any view become heavily overgrown
in the last 20 or 30 years and clearly has not been used in that sort of period
to the extent to which it may have been used 100 years ago when it was of
normal carriage width, but we have nevertheless had the advantage of the
justices’ clerk’s notes of evidence, evidence given by witnesses as to user. Of
course, it would be a great disadvantage to us if we had to try the issue of
fact in this case, because we did not see the witnesses. It would equally be a
great disadvantage because we have not got a verbatim transcript, only a good
summary note taken by, I think, the clerk to the justices. But we have not got
to try the issue of fact, and as I have already endeavoured to explain, one
must only look at the general weight of the evidence given before the justices
to see whether it could be said that their decision was perverse or otherwise
open to inquiry by us. Here again, I must attempt a summary of the evidence,
because it would be intolerable to go through it all, and unprofitable as well.
Most of the evidence as to use called below seems, from the notes, to have been
use by local people, for their private affairs. One witness went courting in
Holcombe Lane; motor cyclists had used it for a scramble; someone had gone
there looking for stray sheep; the hunt had gone down there; and other people
had gone down there as a pleasant recreational walk from their home in or
around the village. All that is a matter upon which an inference of dedication
can be drawn, but what strikes me as being noticeably absent from the evidence
called in this case is evidence of user of the lane as a through lane. This may
be because it has been overgrown at the relevant time, and has not been used as
a through lane, but since the inquiry before the justices was whether the
evidence justified an inference that the public highway had been dedicated, the
fact that there was noticeably little evidence of user as a through way by
members of the public seems to me to weaken to a very considerable degree the
extent to which this evidence might have importance attached to it. I do not
for a moment suggest that proof of user as a through way is vital to the
inference of a public highway, but the effect of it is bound to be more
impressive, and in its absence here I do not get the impression, looking at the
matter before us, that the evidence of actual user was particularly impressive.
Having come to
that conclusion, both on the documents and on the oral evidence, there is only,
I fear, one conclusion in this case, that is, that one cannot possibly say that
the justices’ decision was perverse or that this was a decision which no
reasonable bench might have reached. Whether we would have come to the same
conclusion is another matter, but I find it impossible to say that the case for
the appellant is made out, and I would accordingly dismiss this appeal.
BRIDGE J: I
agree.
EVELEIGH J: I
agree.
The appeal
was dismissed with costs.
