Common land — Public highway — Fence to fence presumption — Acts of ownership inconsistent with presumption — Further evidence adduced on appeal — Presumption rebutted by tithe map — Appeal by adjoining landowner dismissed
The plaintiffs are the trustees of Bovingdon Green Manorial Waste Trust and owners of Bovingdon Green, an area of common land in Bovingdon, Herts. Their ownership was confirmed by the chief commons commissioner in 1983. In about 1988 the defendants, the owners of Beech Cottage, Bovingdon, constructed a drive across a grass strip between their front fence and the adjoining public highway; they contended that the grass strip was part of the public highway. In Watford County Court His Honour Judge Stockdale (August 1 1990) upheld the plaintiffs’ claim that the defendants had trespassed on the grass strip deciding that although the presumption that all land between fences adjoining the metalled part of a highway are part of the highway under the fence to fence presumption, that presumption had been rebutted. There was evidence that the plaintiffs had been in possession of the grass strip for a period exceeding 20 years and that no highway rights existed. The defendants appealed.
Held The appeal was dismissed.
Evidence of the tithe map of 1838 was adduced at the appeal; this showed Bovingdon Green but no highway in the area of the grass strip, which was merely part of the common. The fence to Beech Cottage therefore never abutted a highway. By reason of the fence having predated the highway the fence to fence presumption was rebutted and the grass strip is not part of the highway. Per Staughton LJ the acts of ownership relied on by the plaintiffs would anyway have been insufficient to rebut the fence to fence presumption: per contra McCowan LJ.
Offin v Rochford Rural District Council [1906] 1 Ch 342
and Attorney-General v Beynon [1970] Ch 1 applied.
Oliver Albery (instructed by Penningtons) appeared for the appellant defendants; and Russell Harris (instructed by Smeathmans, of Hemel Hempstead) appeared for the respondent plaintiffs.
