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street which is not a thoroughfare being a public highway, was, that the public at large could not well be said to be in the use of such a street(a). And Mr. Justice Best on [*]the same occasion, after stating generally that a road for the accommodation of particular persons only is not a public road, added, he could therefore see no reason why the inhabitants in a street not a thoroughfare, might not put up a fence at the end of it, and exclude the public(b).
The several judicial dicta on either side of this question have thus been brought together, that the reader may for himself determine to which the greater importance is due. But if dedication be, as it is imagined, a question of intention, superior weight appears
from that consideration to attach to the dicta which negative the public right. It may be added, that as well in Woodyer v. Hadden, as in Wood v. Veal, the authority of the Rugby Charity case was either depreciated or in express terms denied. Indeed, the former of these cases may be thought to amount almost to a decision, that in a street which is not a thoroughfare the public have no absolute interest.
To rebut the presumption of a dedication, evidence may be given that the public user began during the existence of a lease or other particular estate, since it is clear that the owner of the fee is the only person who is competent to make an effectual dedication(c). And
(a) 5 Barn. and Ald. 456, in Wood v. Veal, 5 Barn. and Ald. Wood v. Veal.
454. See also, Harper v. Charles (6) 5 Barn. and Ald. 457. worth, 4 Barn, and Cress. 574. (c) Rex v. Hudson, Stra. 909 ;
to this it cannot be objected to the reversioner, that for twenty years or more he has been aware of the general custom; for his knowledge by no means expresses his assent, and it rested solely with the tenant [*]in possession to allow or prevent the premises from being so used(a).
Another ground which would in all probability repel the presumption, is legal disability in the proprietor of the soil, as from infancy, coverture, absence beyond sea, &c. ; in which cases, the usage may fairly be attributed to united encroachment and misapprehension.
The putting up of a gate, bar, or chain, or any other like significant act manifesting intention in the land owner to confine the use of the road to particular individuals, will also negative a claim by the public. And it is not necessary for this purpose, that the gate or bar should be constantly shut, or the chain be drawn across the way, so as always to intercept the progress
passengers. It is enough if that be done occasionally. Thus, “the Duke of Bedford preserves his right in Southampton-street, Covent-garden, by a bar placed across the street, which being shut at pleasure, shows the limited right of the public”(6). It has also been decided, that if a gate or bar erected to prevent a thoroughfare be afterwards knocked down or forcibly removed, and the land-owner takes no further step to exclude the public for several
years, yet such apparent acquiescence will not support the
(a) Wood v. Veal, supra.
(6) Per Lord Kenyon, 11 East, 376, n.
allegation of a relinquishment; the opposite intention, so plainly demonstrated at first, furnishes a decisive answer to the claim of the public(a).
[*]In delivering judgment in the case of Hillary v. Waller(b), Lord Erskine, after noticing that the right to incorporeal hereditaments might be lost by long non-user, asserted that the same principle applied more strongly to the case of public roads. He had heard, he said, a contrary doctrine, and the reason given was that there could not be the same presumption of a surrender. And that might be so, he proceeded, if the right were vested in the public by matter of record, for then the right would appear, while the surrender would not. But if it did not rest upon matter of record, and the public had not enjoyed, it was surely in such case proper to be left to the jury to presume, and was indeed almost conclusive, not that the right had been surrendered, but that it had never existed ; and for this special reason, that one man might surrender, or for many reasons might not enjoy his right, but the probability was, as to the public, that some instance of enjoyment would be shown, The case was much stronger than that of a private road, where, for many years there has been no enjoyment; for here what one man might relinquish, another man might be disposed to assert.
These observations are undoubtedly weighty. But it should seem, that Lord Erskine must not be understood as intending to affirm, that the same length of
(a) Roberts v. Karr, 1 Camp. Ib. 263, n. 262, n.; Lethbridge v. Winter, (b) See 12 Ves. 265,
disuse, which raises the presumption of the surrender of a private right of way, will prove destructive of a [*]public right. The cases, in this particular, certainly are not parallel. Twenty years may justly enough be held to bind parties whose private rights only are affected; but the public have an interest in the suppression of nuisances, and therefore power to suppress them, though of much longer standing (a). And accordingly, in a late case, where there had been possession for twenty years of water in a public navigable river at a certain height, which river had not been used for the purpose of navigation for more than twenty years, it was held that such length of possession by no means conclusively established the claimant's title, and that, therefore, upon the river being afterwards widened and deepened for use, whereby the level of the water was lowered, the party was without remedy (6). In like manner, although a several and exclusive right of fishery may be prescribed for, yet it has been determined that such right cannot be claimed on the ground of presumption, because the privilege of fishing in arms of the sea and navigable rivers is a privilege common to all people, and does not admit of being abridged otherwise than by proof of a prescriptive title (c).
But it must not be understood from these observations, that the claim to a common right of way is incapable of being repelled by evidence of a long exclusion of the public, though the way may possibly have
(a) See per Lord Ellenborough, and Ald. 662. 7 East, 199.
(6) Carter v. Murcott, 4 Burr. (6) Vooght v. Winch, 2 Barn. 2163.