By an award under an Inclosure Act passed in 1766 a private road E was set out. In about 1818 road E became a public highway. A local board was formed in 1863 and in 1876 the board let the pasturage upon E to the Plaintiff. He thereupon commenced to depasture the herbage with his cattle. The Defendant interfered with the Plaintiff’s enjoyment of the depasturage. By section 149 of the 1875 Act, the street vested in and was under the control of the local board.
Held: The appeal failed. By virtue of S.149 the property in the soil of E, being a ‘street’ so far vested in the local board that they could demise the right of pasturage thereon to the Plaintiff, who was entitled to maintain the action.
Brett LJ considered the language of S.149 and said: ‘We can give no other meaning to the words ‘vest in’, except to say that it gives the property. It has been suggested that this meaning is so wide that it would give to the local board cellars which may be under the street, or houses that may be built over the street; or indeed, mines, however deep lying under the street. But when we have decided that the words ‘vest in,’ mean to give a property in, a further question would be in what does it give the property? That must depend upon the subject to which those words relate, and that is not land, but street; the section does not say that the land ‘shall vest in,’ but that ‘the street shall vest in.’ I think that the case of Brumfitt v. Roberts is a guide in construing the section. The words of the private Act in that case were, that the fee simple of the pew should be vested in the subscribers or proprietors; the Court held that those words did not vest the land over which the pew was. So here, the words of this section vest the property in the street; and the street does not include the houses by the side of the street; it includes the space between the houses which is used as the footway and the roadway. ‘Street’ means more than the surface, it means the whole surface and so much of the depth as is or can be used, not unfairly, for the ordinary purposes of a street. It comprises a depth which enables the urban authority to do that which is done in every street, namely, to raise the street and to lay down sewers; for, at the present day, there can be no street in a town without sewers, and also for the purpose of laying down gas and water- pipes. ‘Street,’ therefore, in my opinion, includes the surface and so much of the depth as may be not unfairly used, as streets are used. It does not include such a depth as would carry with it the right to mines, neither would ‘street’ include any buildings which happen to be built over the land, because that is not a part of the street within the meaning of such an Act as this. If the enactment gives the local board that property in so much of the land, it gives them the absolute property in everything growing on the surface of the land. The legislature have, because the right of owners to the soil in a ‘street’ is of so little value, intentionally taken away that right and have given it to the extent I have mentioned to the local board.’
Cotton LJ said: ‘Therefore, on the true construction of this Act of Parliament, the meaning to be given to the words ‘vest in’ must be ‘passed to and vested in’ the local board; it is sufficient in the present case to say that the street and the surface vested in the local board some property in the soil for the purpose for which it was to be used, and in my opinion I must hold that the ‘street’ is a material thing, and that under this clause it vests in the local board.’
Bramwell LJ construed s. 149: ‘And on account of the reasonableness of such an interpretation I am disposed to hold that this ‘street’ vests without any property in the freehold of the soil. The word ‘vest’ may have two meanings; it may mean that a man acquires the property usque ad coelum and to the centre of the earth, but I do not think that to be the meaning here. One construction of the word ‘vest’ here is that it gives the property in the soil, the freehold, the surface, and all above and below it; but that would be such a monstrous thing to say to be necessary for the proper control of the streets by the local board, that I cannot suppose it to mean such a thing. Suppose the soil of the freehold passes, and consequently it carries the right to the land to an indefinite extent upwards, and to the centre of the earth below the surface: I cannot make up my mind to say that is the meaning of the word ‘vest’ in S.149.’ . . .
And ‘But the inconvenience and injustice of holding that the word ‘vest’ would have that effect prevents my putting that construction upon it. What then is the meaning of the word ‘vest’ in this section? The legislature might have used the expression ‘transferred’ or ‘conveyed,’ but they have used the word ‘vest.’ The meaning I should like to put upon it is, that the street vests in the local board qua street; not that any soil or any right to the soil or surface vests, but that it vests qua street. I find some difficulty in giving it a meaning, and I do not know how far it adds to the words, ‘shall be under the control of.’ The meaning I put upon the word ‘vest’ is, the space and the street itself, so far as it is ordinarily used in the way that streets are used, shall vest in the local board. I will refer to a few instances in support of this construction. The streets vest; the pavement, the stones, and other materials vest; all buildings vest which would seem to mean railways, and building implements which are chattels, and other things ‘vest’ in the local authority. This Act also provides that the urban authority shall cause all streets to be levelled, paved, metalled, flagged, channelled, altered and repaired as occasion may require; they may cause the soil of any such street to be raised, lowered or altered as they may think fit, and may place and keep in repair fences and posts for the safety of foot passengers; any person who without the consent of the urban authority wilfully displaces, or takes up, or injures the pavement stones, materials, fences or posts, or the trees of such street shall be liable to a penalty not exceeding 5L, and to a further penalty not exceeding 5s, for any square foot of pavement stones or other material so displaced and injured; he shall also be liable in case of injury to the trees to pay to the local authority such amount of compensation as the Court may award. Does that mean that the local board have a property in the tree and in the soil. I doubt very much whether that ought to be the construction put upon that enactment, but if it is, it goes a long way to show that the local board had such a property as they claim in this herbage. Even if it does not, if it will not apply to the tree which although surrounded by the street could be said in one sense to be no part of it, for the public had no right to pass over where the tree stood; and if it does not apply to a tree now in existence, but only to the trees the local board may plant or become otherwise entitled to, why even then it would show that they must have some property in the soil and its produce; that would assist the contention in favour of the plaintiff.’
Bramwell LJ, Brett LJ, Cotton LJ
(1878) 4QBD 104, [1878] UKLawRpKQB 80
Commonlii
Public Health Act 1875 149
England and Wales
Cited by:
Cited – Hurst and Another v Hampshire County Council CA 19-Jun-1997
A Local Authority is liable for any damage to adjacent property caused by the roots of a tree growing on the verge of a public highway.
Held: Pre-adoption trees vest in the highway authority for all purposes. . .
Cited – London Borough of Southwark and Another v Transport for London SC 5-Dec-2018
Question as to the meaning of the GLA Roads and Side Roads (Transfer of Property etc) Order 2000. When the highway was transferred was only the working surfaces, the road surface and the airspace and subsoil necessary for the operation, maintenance . .
Lists of cited by and citing cases may be incomplete.
Land
Updated: 10 December 2021; Ref: scu.650698
