H used a public highway crossing the defendant’s land, to disrupt grouse-shooting upon the defendant’s land. He complained after he had been forcibly restrained by the defendant’s servants from doing so. The defendant justified his actions saying that the plaintiff was a trespasser upon the highway.
Held: Insofar as the plaintiff was upon a highway for purposes other than its use as a highway, he was a trespasser.
Lord Esher MR said: ‘on the ground that the plaintiff was on the highway, the soil of which belonged to the Duke of Rutland, not for the purpose of using it in order to pass and repass, or for any reasonable or usual mode of using the highway as a highway, I think he was a trespasser.’ and ‘Highways are, no doubt, dedicated prima facie for the purpose of passage; but things are done upon them by everybody which are recognised as being rightly done, and as constituting a reasonable and usual mode of using a highway as such. If a person on a highway does not transgress such reasonable and usual mode of using it, I do not think that he will be a trespasser.’
Lopes LJ said: ‘if a person uses the soil of the highway for any purpose other than that in respect of which the dedication was made and the easement acquired, he is a trespasser. The easement acquired by the public is a right to pass and repass at their pleasure for the purpose of legitimate travel, and the use of the soil for any other purpose, whether lawful or unlawful, is an infringement of the rights of the owner of the soil.’
Kay LJ said: ‘the right of the public upon a highway is that of passing and repassing over land the soil of which may be owned by a private person. Using that soil for any other purpose lawful or unlawful is a trespass.’
Judges:
Lord Esher MR, Lopes LJ, Kay LJ
Citations:
[1893] 1 QB 142, (1893) The Times LR 115, [1892] UKLawRpKQB 217
Links:
Jurisdiction:
England and Wales
Citing:
Cited – Regina v Pratt 1855
‘I take it to be clear law that, if a man use the land over which there is a right of way for any purpose, lawful or unlawful, other than that of passing and repassing, he is a trespasser.’ . .
Cited by:
Applied – Hickman v Maisey CA 16-Mar-1900
A racing tout used the public highway which crossed the plaintiff’s property to watch racehorses being trained on the plaintiff’s land. On a particular occasion he walked backwards and forwards on a portion of the highway 15 yards long for a period . .
Applied – Director of Public Prosecutions v Jones and Lloyd HL 4-Mar-1999
21 people protested peacefully on the verge of the A344, next to the perimeter fence at Stonehenge. Some carried banners saying ‘Never Again,’ ‘Stonehenge Campaign 10 years of Criminal Injustice’ and ‘Free Stonehenge.’ The officer in charge . .
Cited – Herrick and Another v Kidner and Another Admn 17-Feb-2010
Psychological Obstruction to Public Footpath
A public footpath crossed the appellants’ land. They constructed a gateway across it which they now accepted had been a significant obstruction of the right of way. The local authority served a notice requiring its removal, including the stone . .
Cited – Jones and Lloyd v Director of Public Prosecutions Admn 23-Jan-1997
The appellants had been peacefully protesting at Stonehenge. They were among others who refused to leave when ordered to do so under an order made by the police officer in charge declaring it to be a trespassory assembly under the 1986 Act. They . .
Cited – City of London v Samede and Others QBD 18-Jan-2012
The claimant sought an order for possession of land outside St Paul’s cathedral occupied by the protestor defendants, consisting of ‘a large number of tents, between 150 and 200 at the time of the hearing, many of them used by protestors, either . .
Cited – Rodgers v Ministry of Transport QBD 20-Feb-1952
A cafe operated by the trunk road. Lorry drivers when pulling off to stop, damaged the verge, along which ran a public footpath. The defendant constructed a lay-by for the lorries, re-routing the footpath around it, purporting tu use powers under . .
Lists of cited by and citing cases may be incomplete.
Land
Updated: 12 May 2022; Ref: scu.192188
