There was a public highway, a footpath from Sheepcote Rectory to the village of Bothal, in Northumberland. However, as a result of stopping up orders properly made by the local quarter sessions in respect of other highways, there ceased to be any access to the footpath from a highway, or any other land to which the public had access. That the earlier stopping up orders had left this isolated footpath appears to have been an error: if a stopping up order had been sought in respect of this footpath also, it seems inevitable that it would have been granted. However, it was not sought. The evidence was that the defendants had no permission from any adjacent landowners to be on their land; so that they could only access the footpath by trespassing on the adjacent land to get to it. The defendants, accused of trespass, relied upon the common law maxim, ‘Once a highway, always a highway’. They submitted that the public footpath could only be extinguished by a stopping up order or other device provided by statute.
Held: The court discharged the rule: ‘A way ceases to be a ‘public highway’ where the access to it at either end has become impossible by reason of ways leading to it having been legally stopped up.’
Lord Coleridge CJ said: ‘It is necessary, therefore, to determine whether or not [the footpath] remains a highway. I am of opinion that it does not. Its character of a public highway is altogether gone.’
Denman J said that despite the dictum, ‘Once a highway, always a highway’: ‘I think we are compelled to hold that this is a case where that which formerly was a highway, but which, though it has been not been stopped by statutory process, has, by reason of legal acts at either end of it, ceased to be a place which the Queen’s subjects can have access, loses its character of a highway.’
Lindley J agreed, adding: ‘[The plaintiff’s] argument amounts in substance to this, that there cannot be a public highway public access to which has lawfully been stopped at either end. I agree to that.’
Judges:
Lord Coleridge CJ, Denman and Lindley JJ
Citations:
(1875-76) LR 1 CPD 329
Jurisdiction:
England and Wales
Cited by:
Cited – Great Central Railway Company v Balby-with-Hexthorpe Urban District Council 1912
The court was asked to settle the status of various sections of a highway. One issue was whether the extinguishment of public rights of way over one section (the yellow section) resulted in the extinguishment of such rights in another section (the . .
Cited – Kotegaonkar v Secretary of State for Environment, Food and Rural Affairs and Another Admn 19-Jul-2012
The court was asked: ‘can a way which is not connected to another public highway, or to some other point to which the public have a right of access, itself be a public highway?’ A path had been registered over part of te claimant’s land, but with no . .
Lists of cited by and citing cases may be incomplete.
Land
Updated: 09 May 2022; Ref: scu.591421