(From Supreme Court of New South Wales) The appellant owned land in New South Wales, acquired from the Crown in 1879, over which there was a track. The respondent was sued for trespass when he went upon the track and removed fences running across it installed by the appellant. The respondent argued that he had a right to do so because the track had in fact become a highway by long usage and so there was a right to pass and repass without obstacle. The appellant said that there was no such long usage and in addition, said that by reason of the New South Wales Crown Lands Alienation Act 1861, the Crown had lost the legal power to dedicate highways save under certain conditions, and thus there could be no presumed dedication. The court below directed the jury that it could find that there was presumed dedication by reason of the period of user beginning prior to the commencement of that Act as well as subsequent to it.
Held: The Privy Council agreed. A public right of way arises by reason of a dedication deemed to have been made at the commencement of the 20 year user.
Once a Path has achieved the status of highway by long usage, the Path is to be regarded as having been dedicated as such at the time of its construction.
The Board observed as to the approach to the evidence of dedication: ‘Would not the inchoate right run on to maturity rather than be blocked by the intermediate passing of this Act? This language does not accurately express the presumption which arises from long-continued user. It is not correct to say that the early user establishes an inchoate right capable of being subsequently matured. If the right had been inchoate only in 1861, the argument of the Appellant that it could not have been matured or acquired after 1861, except in the mode prescribed by the Act, would have had great force. The proper way of regarding these cases is to look at the whole of the evidence together, to see whether there has been such a continuous and connected user as is sufficient to raise the presumption of dedication; and the presumption, if it can be made, then is of a complete dedication, coeval with the early user. You refer the whole of the user to a lawful origin rather than to a series of trespasses.’
and: ‘The proper way of regarding these cases is to look at the whole of the evidence together, to see whether there has been such a continuous and connected user as is sufficient to raise the presumption of dedication; and the presumption, if it can be made, then is of a complete dedication, coeval with the early user. You refer the whole of the user to a lawful origin rather than to a series of trespasses. It may be that in this case the evidence of user prior to 1861 was alone sufficient to establish the presumption of dedication; but the strength of that presumption is increased by the subsequent user, and would certainly have been much diminished if the user had been discontinued after 1861. In this case their Lordships have no doubt that, the user being continuous, the direction is right, and if the direction is right, it is not contended that the verdict is wrong.’
Judges:
Sir Barnes Peacock, Sir Montague E Smith, Sir Richard Couch, Sir ohn Mellor
Citations:
(1881) 6 App Cas 636, [1881] UKPC 20
Links:
Jurisdiction:
Australia
Cited by:
Cited – Oxfordshire County Council v Oxford City Council, Catherine Mary Robinson ChD 22-Jan-2004
Land had been registered in part as a common. The council appealed.
Held: The rights pre-existing the Act had not been lost. The presumption against retrospectively disapplying vested rights applied, and the application had properly been made. . .
Cited – Barlow v Wigan Metropolitan Borough Council CA 1-Jun-2020
Presumption of dedication dates back.
The claimant tripped over a tree root raising a path in the park. The court was now asked whether the pathway through a public park, but which was not a public right of way, was maintainable at public expense as a highway governed by the 1980 Act. . .
Cited – Barlow v Wigan Council QBD 19-Jun-2019
Responsibility for personal injury after trip over a tree root on a path in a park owned and maintained by the Council. The Court was now asked whether the public footpath was a highway under the 1980 Act for which the council was responsible for . .
Lists of cited by and citing cases may be incomplete.
Land
Updated: 27 November 2022; Ref: scu.192185