Folkestone Corporation v Brockman: HL 1914

A public right of way was claimed. It was argued that, in the absence of evidence of facts inconsistent with a dedication of the pathway, the jury were obliged to make such a finding.
Held: The House rejected this submission. User was no more than evidence from which dedication could be inferred. It was open to the jury to ascribe the user to toleration or some other cause.
The presumption of dedication from use by the public is ‘a probable inference from facts proved to the fact in issue, and it follows that in a particular case it is for the judges of fact to determine whether, on the evidence adduced, it can reasonably be drawn’
Lord Dunedin said: ‘User is evidence, and can be no more, of dedication. The expression that user raises a presumption of dedication has its origin in this, that in cases where express dedication is out of the question, no one can see into a man’s mind, and therefore dedication, which can never come into being without intention, can, if it is to be proved at all, only be inferred or presumed from extraneous facts. But that still leaves as matter for inquiry what was the user, and to what did it point. And this must be considered, not after the method of the Horatii and Curiatii, by taking a set of isolated findings, saying that they presumably lead to a certain result, and then proceeding to see if that presumption can be rebutted, but by considering the whole facts, the surroundings which lead to the user, and from all those facts, including the user, coming to the conclusion whether or not the user did infer dedication.’
. . ‘If you know nothing about a road except that you find it is used, then the origin of the road is, so to speak, to be found in the user, and in such cases it is safe to say, whether strictly accurate or not, that the user raises a legal presumption of dedication. That really means no more than this, that the evidence points all one way. Hundreds of highways are in this position. But suppose, on the other hand, you do know the origin of a road. Suppose it is the avenue to a private house, say, from the south. But from that house there leads another avenue to the north which connects with a public road different from that from which the south avenue started. This is not a fancy case. The situation is a common one in many parts of the country. Would the mere fact that people could be found who had gone up the one avenue and down the other-perhaps without actually calling at the house-raise a presumption that the landholder had dedicated his private avenues as highways? The user would be naturally ascribed to good nature and toleration.’
. . And: ‘With deference to the learned judges,. I do not think that is a proper way to approach the question, and its defect, to my mind, consists in regarding ‘user’ as an inflexible term, which, if found to apply, can lead to only one legal result. User is evidence, and can be no more, of dedication. The expression that user raises a presumption of dedication has its origin in this, that in cases where express dedication is out of the question, no-one can see into a man’s mind, and therefore dedication, which can never come into being without intention, can, if it is to be proved at all, only be inferred or presumed from extraneous facts. But that still leaves as matter for enquiry what was the user, and to what did it point. And this must be considered, not after the method of the Horatii and Curiatii, by taking a set of isolated findings, saying that they presumably lead to a certain result, and then proceeding to see if that pre sumption can be rebutted, but by considering the whole facts, the surroundings which lead to the user, and from all those facts, including the user, coming to the conclusion whether or not the user did infer dedication’.
[1914] AC 338
England and Wales
Cited by:
CitedGodmanchester Town Council, Regina (on the Application of) v Secretary of State for the Environment, Food and Rural Affairs HL 20-Jun-2007
The house was asked about whether continuous use of an apparent right of way by the public would create a public right of way after 20 years, and also whether a non overt act by a landowner was sufficient to prove his intention not to dedicate the . .
[2007] UKHL 28, Times 22-Jun-07, [2007] 3 EGLR 119, [2007] NPC 74, [2007] 26 EG 163, [2007] 4 All ER 273, [2007] JPL 1691, [2007] 3 WLR 85, [2008] 1 P and CR 12, [2008] 1 AC 221
CitedFortune and Others v Wiltshire Council and Another CA 20-Mar-2012
The court considered the contnuation of public rights of way against the new system of the ending of certain unrecorded rights.
Held: he appeal failed. ‘As a matter of plain language, section 67(2)(b) does not, in our judgment, require the . .
[2012] EWCA Civ 334, [2013] 1 WLR 808, [2012] 3 All ER 797, [2012] 2 P andCR 11, [2012] WLR(D) 90, [2012] JPL 1092
CitedBrand and Another v Philip Lund (Consultants) Ltd ChD 18-Jul-1989
The plaintiffs objected to the transport of wood from the defendant’s neighbouring land by lorry along an accessway to the plaintiff’s land. They said the defendants had no right of vehicular access. The defendants asserted a public vehicular . .
[1989] EWHC 2 (Ch)

These lists may be incomplete.
Updated: 13 December 2020; Ref: scu.253529