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ed as an important feature in the case. It
therefore be confidently laid down, that whenever a public right of way in a road or street is claimed on the ground of a presumptive dedication, it is essential, in order to establish such presumption, that the owner of the soil has for some considerable period submitted to the general usage.
What precise length of time may be considered demonstrative [*]of the land-owner's acquiescence has not yet been determined. In one case(a) six years, and in another before Lord Kenyon(b), where the user begun during the existence of a lease which had since expired, eight years were held sufficient. But these decisions cannot be implicitly relied upon. The incompetency of a lapse of two or three years to afford the presumption of a dedication, has been expressly decided(c); and Lord Kenyon's opinion in the case above referred to has by no means received the general approbation of later Judges(d). If, said the Lord C. J. Mansfield, eight or six years be enough to show a relinquishment to the public, why may not one ? why not half a year? It would then become necessary for every reversioner coming into possession of his estate after a lease, instantly to put up fences all round to prevent dedications(e). However, it seems not improbable, that where, as in the case put by Mr. Justice Chambre, an intention to
(a) See the case alluded to by Wood v. Veal, 5 Barn. and Ald. Lord Kenyon in the note 1:1 East, 454. 376.
(d) See per Heath, J., 5 Taunt. (6) Rugby Charity v. Merry. 140; per Holroyd and Best, Js. weather, 11 East, 376, n.
5 Barn. and Ald. 457. (c) Rex v. Hudson, Stra: 909; (e) See 5 Taunt. 142.
dedicate is plainly and significantly shown from the outset, submission to the public usage for six or eight years, or possibly even for a less period, would preclude the owner of the soil from re-asserting his ancient right.
But, under whatever circumstances a road begins to be publicly used, unmolested enjoyment of it for [*]twenty years, with the knowledge of the owner of the inheritance in possession, will, it should seem, be conclusive evidence of a dedication. It is true, the rule has not pointedly been so laid down : but the general principle being admitted that acquiescence for some period of time will establish the public right, it follows by analogy to decisions concerning private rights of way, that twenty years will operate to establish that of the public. Nor does the circumstance of the street or road not forming a convenient way or passage from one particular point to another,—as by its opening at both ends after a circuit without any other outlet into the same street,—make the case an exception from the general rule(a).' Still less that it was originally intended only for private convenience(b). For the questions are not, what was the original intention, or what is the quantum of benefit derived to the community ?-but what is the intention as ultimately manifested ? and has the public in fact used and enjoyed a right of passage without interruption or not?-It has also been determined, that the circumstance of the estate having been in the hands of a succession of tenants, unless the landlord's ig
(a) Rex v. Lloyd, i Camp. 260. (6) Ibid.
norance of the user be clearly shown, will not excuse his neglect(a).
Nevertheless, to establish a public right of road, it seems not necessary that the dereliction by the owner of the soil be absolute and unqualified. The privilege may be under restrictions in regard both to the time and the manner of using it ; in other words, the right will [*]be exactly commensurate with the actual user(6). Thus it has been held, that a right of passage over a bridge may be confined to the occasion solely of floods(c). And on the same principle, where a street was erected leading out of a highway and terminating at the further extremity on land which was enclosed by a fence, it was held, that the street was not so dedicated to the public, that the owner of the adjacent land on removing his fence, might enter it by the opening thus made, and use it as a common high-road(d).
Whether a cul de sac, or street which is not a tho.
(a) Rex v. Barr, 4 Camp. 16. Parliament for these purposes, I
(6) See Lade v. Shepherd, Stra. suppose this had. Therefore eve1004.
ry thing would have been done, (c) Rex v. Marquis of Buck- which has been done, though ingham, 4 Camp. 189; Rex v. In- there were no idea of a dedicahabitants of Northampton, 2 Mau. tion to the public, and although and Selw. 262.
the plaintiffs had built a wall on (d) Woodyer v. Hadden, 5 their own land before they built the Taunt. 126. In this case the fact first house." The above circumof the street having been lighted, stances, however, in Rex v. Lloyd, paved, cleansed, and publicly i Camp. 260 (in which case to be watched, was urged as proof of its sure the street was a thoroughfare) being abandoned to the public : but were relied on by Lord EllenboMansfield C. J. said, “ As every rough as evidence of a dedication. parish in London has an Act of
roughfare, be a highway, is a point by no means settled. The dicta of Judges who have mentioned the subject are much at variance. Lords Kenyon and Ellenborough and Mr. Justice Chambre, on the one side, are opposed by the Lord Chief Justice Abbott, by Sir James Mansfield C, J., and Heath and Best, Js., on the other. Lord Ellenborough, indeed, seems to have assumed the affirmative of the question without much [*]consideration. It was at Nisi Prius(a), and in a case where the locus in quo was clearly a thoroughfare, though on account of its terminating at both extremities in the same street was little frequented. To an objection on this score against an alleged dedication, he remarked, that to assert a public right could not exist, because a particular place did not lead conveniently from one street to another, would go to extinguish all highways where (as in Queen-square) there was no thoroughfare. But Lord Kenyon appears to have weighed the matter more deliberately; and addressing himself to the point in the Rugby Charity case(6) he said, that as to Lamb's Conduit-street not being a thoroughfare, that fact could make no difference with respect to the relinquishment to the public. “If it were otherwise, in so great a town as London, it would be a trap to make people trespassers.” This sentiment was adopted by Mr. Justice Chambre, who added, that every street was, as a matter of course, laid down for the purpose of being a highway(c).
On the other hand, Mansfield C. J., referring to the
(a) Rex v. Lloyd, 1 Camp. 260, 261.
(6) 11 East, 376, n.
opinions of the two Judges last named, declared his entire disagreement. While a street was open without any prohibitory notice against going there, he thought the simple fact of its being open and inviting persons to enter it would be enough to support a plea of licence. He did not know, that a street obstructed [*]at one end became a public way for all purposes; all that people in such a street could require, would be a right of passing; and, as then advised, he did not know, that persons coming into a square, with horses and carriages to exercise for their recreation, and breaking up the pavement, had a right to do so; or that they would not, after notice, be trespassers(a). A similar view was taken of the subject by Mr. Justice Heath(b). He thought the owner of the soil did not mean to give the public any right over the land beyond a right of passage to the respective houses. The right given was only a right to each house. And as to idle people going there, that could make no difference. The learned Judge, in support of this opinion, cited the following passage from Hawkins' Pleas of the Crown(c). “ A way to a parish church, or to the common fields of a town, or to a private house, or perhaps to a village, and which terminates there, and is for the benefit of the particular inhabitants of such parish, house, or village, only, may be called a private way, but not a highway, because it belongeth not to all the king's subjects, but only to some particular persons, and each of whom, as it seems, may have an action on the case for a nuisance therein.” The reason alleged by Abbot C. J. against a
(a) 5 Taunt. 141, 142, in Woodyer v. Hadden.
(6) Ib. 140.