Cow strays from common on to adjoining highway, wanders down road to a point 300 yards away from common–Cow’s owner liable under section 135, Highways Act 1959 despite the proviso for ‘a part of a highway passing over any common’–Liberal interpretation in Davies v Davies (1974) extends only to those parts of a highway where common and highway coexist
This was a
prosecutor’s appeal against the acquittal by Pontardawe justices in July 1975
of David Morgan, of Ammanford, on an information alleging that a black Angus
cow he owned was found straying on a highway, Graig Road, Gwaun-cae-Gurwen,
West Glamorgan.
D Anthony
Evans (instructed by R H C Rowlands, of Cardiff) appeared for the appellant,
and J Venmore (instructed by Parlett, Kent, agents for Terence Stallard &
Co, of Ystalyfera) represented the respondent.
Giving the
first judgment, WATKINS J said that the cow was straying on Graig Road at 10 pm
on May 3 1975 when it collided with a car. The respondent had grazing rights
over common land near the village of Gwaun-cae-Gurwen, and part of the common
land abutted on to the road. When the cow was hit it had strayed 336 yds along
the road beyond the boundary of the common with the road. The respondent
pleaded the proviso to section 135 (1) of the Highways Act 1959, and the
justices acquitted him. Section 135 (1) created a general offence by which the
owner of horses, cattle, etc, was made responsible if they were found straying
or lying on or at the side of a highway, but a proviso excluded liability in
relation to ‘a part of a highway passing over any common, waste or unenclosed
ground.’ The question for the court was
whether the facts found brought the matter within the proviso to the
subsection. The justices were referred to the case of Davies v Davies
[1974] 3 WLR 607, where Lord Denning MR said:
It would
appear that the highway in this case did not actually pass over the common. It
abutted on to it. The unfenced common went up to the very edge of the highway.
But nevertheless I think the proviso . . . should be given a liberal
construction, so that it applies not only to a part of a highway ‘passing over’
any common but also to a part of the highway immediately adjoining a common.
The difference
in fact between the present case and the case of Davies v Davies
was that the previous case referred to sheep found on a road immediately
adjoining common land, while the cow was found more than 300 yds from where the
road immediately adjoined the common. The justices thought that as in Davies
v Davies a liberal construction of the proviso had been supported, the
fact that a straying animal had passed from common land on to a highway and
wandered off down the road should be accepted as a defence. The appellant
submitted that the words ‘a part of a highway’ in the proviso could, on a
proper construction, only mean that part of a highway immediately adjoining
common land. Counsel for the respondent had contended that a highway could
still abut on or adjoin common land even though for several hundred yards it
was not associated with the common at all. He (his Lordship) had reached the
conclusion that once an animal strayed beyond the point where the common land
and the highway coexisted, the proviso gave no protection to the owner. The
appeal should therefore be allowed.
LORD WIDGERY
and KILNER BROWN J agreed, and the appeal was allowed with costs.
