Laws pointed out that the law on dedication of had moved forward, saying: ‘Taking the passage cited from Scott LJ in Jones v Bates as a full and convenient description of the common law, it seemed that the material change effected by the statute of 1932 (and carried through to the Act of 1980) did not merely consist in a shift of the burden of proof. The common law required not only that the claimant to the right should show that the landowner had evinced an intention to dedicate, he had to show actual dedication; and it was precisely because such an event was usually fictitious or imaginary that the common law was unsatisfactory. But under section 31 the landowner had to prove merely that he had no intention to dedicate; certainly, he had to prove it by overt acts, directed (as Lord Denning indicated in Fairey) to the public who use the way in question. Lord Denning contemplated that the traditional means of closing the way for one day in the year would suffice.
The result was, in his view, that under the statute the landowner had a lesser proposition to disprove than under the common law the claimant had to prove. That approach vindicated the plain purpose of the Act of 1932 for the very reason explained by Scott LJ; it expunged from the law the Alice in Wonderland requirement of any actual dedication.’
Judges:
Laws J
Citations:
[1995] JPL 1031
Statutes:
Rights of Way Act 1932, Highways Act 1980 31
Jurisdiction:
England and Wales
Citing:
Cited – Jones v Bates CA 1938
The court considered whether there had been an act by the landowner sufficient to amount to a dedication a path as a public right of way. Scott LJ said that actual dedication was ‘often a pure legal fiction [which] put on the affirmant of the public . .
Cited by:
Cited – Regina v Nicholson and Another, Secretary of State for Environment and others Admn 20-Dec-1996
N objected to the reclassification of a public footpath over his farm as a byway open to all traffic, saying that there had been insufficient evidence to establish a dedication at common law.
Held: N’s appeal failed. ‘A track can become a . .
Lists of cited by and citing cases may be incomplete.
Land
Updated: 04 December 2022; Ref: scu.651703