1912 САВАВЕ

v.

WALTON

UPONTHAMES DISTRICT COUNCIL.

this was disputed on behalf of the respondents. The lane also appeared upon three maps of Surrey, one dated 1765, another 1785, and the third 1823. There were also other maps of about the same date in which it was admitted that the lane was not shewn. 16. It was further contended on behalf of the appellant that the proper legal presumption was that the lane was a highway before 1835, or that if it became so since then it had been formally dedicated.

17. The justices overruled both contentions. They found as facts upon the evidence that the road was not a public highway in 1835, and that although now a public highway it is not repairable by the inhabitants at large. They accordingly dismissed the appeal. The questions for the opinion of the Court were:—

1. Whether on the facts as stated the respondents were entitled to rely upon s. 23 of the Highway Act, 1835.

2. Whether the justices were right upon the evidence in finding that the road or lane was not a highway repairable by the inhabitants at large.

Danckwerts, K.C., and Cababé, for the appellant. The question whether a highway at the present day is repairable by the inhabitants at large depends upon two considerations-(1.) whether the way was dedicated to the public before 1835; (2.) if it was not, whether it was a way to which s. 23 of the Highway Act, 1835, applied, and if yea, whether the conditions of that section were satisfied. To take the latter point first. It is admitted that since 1864 the lane has been a highway, but the case finds that there was no evidence to shew how, when, or under what circumstances it became a highway. Under those circumstances s. 23 of the Highway Act has no application. The person upon whom the section imposes the obligation of giving the notices therein mentioned and of making up the road as a condition precedent to putting the burden of repair upon the public is the "person proposing to dedicate such highway" and no one else. If there is no such person the section cannot apply. "This section," said Bacon V.-C. in Healey v. Batley Corporation (1), "has no application to the case of a person who has not

(1) L. R. 19 Eq. 375, at p. 393.

made the road at his own expense, who does not propose to
dedicate the highway to the use of the public, and who does not
intend or undertake to make it or to keep it in repair at his own
expense for twelve months, in order at the end of that period to
throw the future care and expense of the highway on the surveyor
and the general rate." In Reg. v. Thomas (1) a road had been
made by turnpike trustees under an Act which expired in
1848. There was evidence that the road was used by the public
and repaired by the parish after the expiration of the Act, and it
was held that the absence of proof of compliance with the condi-
tions of s. 23 did not prevent its being compulsorily repairable by
the parish, for that the section did not apply to such a case.
Coleridge J. said: "It appears that the Legislature contemplated
the case of a private person making a road for the purpose
of dedicating it, or setting out a private driftway under an
Inclosure Act, and not such a case as this. Neither do the words
of the section embrace such a case. This is not a road made by
any person or body proposing to dedicate it. It was made by
turnpike trustees, who had no power to dedicate it. It was not a
road made so as to bring it within s. 23, but was left to the common
law. I never heard it laid down that all roads were included in the
enactment in s. 23." That case is very like the present. There
as here there was a way which for the first time became a high-
way after 1835 without any intentional dedication, and it was
held to be repairable by the inhabitants at large. In Attorney-
General v. Watford (2) Parker J. took the same view that s. 23 is
not of universal application to all new highways and held that
"it is for the inhabitants to prove that the road in question is a
road to which the section applies." Prima facie every highway
whether old or new is repairable by the inhabitants, and the onus
is upon the local authority to shew that the highway in question.
forms an exception to that rule: per Jelf J., Vyner v. Wirral. (3)
There seems to be a very good reason why s. 23 should be held not
to apply in the absence of intentional dedication. The object of the
section was to prevent the owners of building estates from laying
out roads for the purpose of the development of their property and
(1) 7 E. & B. 399.
(2) [1912] 1 Ch. 417.
(3) (1909) 73 J P. 242.

1912

САВАВЕ

V.

WALTON

UPONTHAMES

DISTRICT

COUNCIL.

then calling upon the public to repair them. As Wills J. said in
Eyre v. New Forest Highway Board (1), "it having been found
that
people were laying out building land and laying out
streets in great numbers threatening to throw additional burdens
upon the public, or upon the parish as it was then, it was thought
wise to put some limitation upon that." But where a road has
become a highway by public user without the landowner's assent
and as the result of his negligence in failing to protect his rights.
from encroachment, there is every reason why the inhabitants
who are the parties benefiting from their encroachment should be
under an obligation to repair the way, and none why that obliga-
tion should be imposed upon the owner of the soil. But even if
s. 23 is to be taken to apply where there has been no intentional
dedication, after a lapse of fifty years, when the witnesses who
could prove the facts are probably dead, it must be presumed that
the formalities of the section were duly complied with: Leigh
Urban Council v. King. (2) That presumption may no doubt be
rebutted, but the fact that the inhabitants have never repaired
the way and that the adjoining owners have done so is not
sufficient to rebut it: Reg. v. Newbold (3); Attorney-General v.
Watford. (4) Secondly, the Court, who by virtue of the pro-
visions of the Judicature Act, 1894 (57 & 58 Vict. c. 16), s. 2,
sub-s. 2, are not bound by the inferences of fact drawn by the
justices, ought to infer from the evidence that the lane became a
highway between 1804 and 1835. The fact that the vendor of
allotment No. 726 in the year 1836 reserved a private right of
way over the locus in quo is not inconsistent with its also being
at that time a public way. There are authorities to the effect
that a public way and a private way may co-exist over the same
spot at the same time.

Sir F. Low, K.C., and W. Mackenzie, for the respondents. What converted the private way which was set out in the inclosure award into a highway was the fact of Alderman Sidney in 1864 opening the new road from the middle of Cottimore Lane leading into Rydens Road, thereby affording direct connection between two highways, the Rydens and Kingston Roads. That was an

(1) (1892) 56 J. P. 517.
(2) [1901] 1 Q. B. 747.

(3) (1869) 17 W. R. 295.
(4) [1912] 1 Ch. 417.

act of intentional dedication. He had bought the whole of the land in the neighbourhood, including allotment 726, for the purpose of converting it into building sites; and as it was from that date that the lane became a highway, he presumably threw it open to the public with the object of developing his building estate. That is just the very class of dedication which, as Wills J. in Eyre v. New Forest Highway Board (1) pointed out, led to the passing of s. 23, and to which that section was especially intended to apply. The Court are entitled to draw the inference that such was the origin of the highway, for the finding of the justices that there was no evidence to shew what the origin was is qualified by the words "save as hereinafter may appear," and from the facts set out it does sufficiently so

appear.

But even if there was no intentional dedication, that is immaterial. The provisions of s. 28 were intended to apply to all ways becoming highways after the passing of that Act, whether the public acquired their rights over them by intentional dedication or mere user. The section deals with two classes of highways, (1.) those intentionally dedicated by the persons at whose expense they were made, and (2.) driftways and horsepaths set out in an award, and it starts by providing that neither class of way, becoming a highway after 1835, shall be repairable by the inhabitants at large. Then it goes on to add a qualification as regards class 1," unless the person body, politic or corporate . . proposing to dedicate" &c. But it adds no corresponding qualification with regard to class 2; therefore new highways of that class are never repairable by the inhabitants at large. If then the section applies, there was no evidence of any compliance with its requirements. It may be that the onus of proof lies in the first instance upon the highway authority, but it may be shifted (per Jelf J., Vyner v. Wirral (2) ), and the finding here that for a period of nearly forty years from 1864 the repairs to the lane were from time to time done by the occupiers of the adjoining land and never by the highway authority was amply sufficient to shift on to the occupiers the onus of proving that it was repairable by the inhabitants at large.

1912

CABABÉ

v. WALTON

UPON

THAMES

DISTRICT
COUNCIL.

1912

CABABÉ

v. WALTON

UPONTHAMES DISTRICT COUNCIL.

LORD ALVERSTONE C.J. The appellant in this case is in my opinion not entitled to succeed. Speaking for myself I think there was abundant evidence upon which the justices could come to the conclusion that Cottimore Lane was not a public highway in 1835. Two maps were put in, dated respectively 1765 and 1785, which shewed a track on the site of Cottimore Lane extending right through from the Kingston Road to Rydens Road. Then the inclosure award of 1804 allotted to one Edward Peppin the allotment numbered 726, which included the site of the portion of Cottimore Lane which is now in question, and also the allotment No. 751 subject to a bridleway and footpath over the portion of the lane in 726 for the use of the occupiers of the Crown Farm. In 1826 the then owners of Nos. 726 and 751 conveyed the former to a purchaser, reserving to themselves a right of way for all purposes, including a right of carriageway, over the portion of the bridleway and footpath situate in 726 as appurtenant to their other land; and on a resale by the purchaser in 1836 a similar reservation of a way for all purposes was made by the vendor. No doubt it is possible for a highway and a private right of way to co-exist over the same spot, but it is unusual, and the reservation of the private way raises a very strong presumption that the way was not a public way at that date. There was some evidence before the justices of the lane having been used as a public way since 1840. But that fact was disputed, and even if it had been conceded it would not have established that the lane was a highway in 1835 in view of the reservation of a private way over the locus in quo in the conveyance of 1836. So things remained down to 1864, about which date the lane admittedly became a highway. I agree with the contention of the appellant that that change in its character is not shewn to have been due to the fact of Alderman Sidney laying out the two new roads that he did. For the only effect of those roads was to add two further connections between the northern portion of the lane and other high roads to the connection which already existed with Rydens Road. And in paragraph 5 there is an admission by the respondents that the said lane now was and had been since the year 1864 a highway used both by foot passengers and vehicles, but save as hereinafter may appear there was no evidence to shew how,