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IR. LEYSHON'S ACTION AGAINST THE ( PONTYPRIDD LOCAL BOARD. XV f [ SUMMING UP BY THE JUDGE. .4 T- ag FULL REPORT. The recent action brought by Mr D. Leyshon, grocer, Gr aio,agkinat the Pontypridd Local Board, GWI oontinuea to be a matter of great public in- terest, and we append a full report of the sum- ming up of the Judge and the discussion which ensued.—Mr Bowen Rowlands, Q.C., M.P., and Mr Benson (instructed by Messrs Spickett and Sons, solicitors. Pontypridd, were for the plaintiff; and Mr B. F. Williams, Q.C., and Mr Abel Thomas (instracted by Messrs Grover and Grover) ap- peared for the Board. His Lordship said :-Gsntlemen of the Jury, the one question for you is whether this little bit of land called a pavement existing in front of the Pontiff's premises belongs to the plaintiff or to the defendants. If it belongs to the plaintiff he is entitled to your verdict, and if it belongs to the defendants they are entitled to your verdict. In- volved in that question is the question whether he -or those who have gone before him have dedicated it to the public, and made a public right of way over i4 that is to say whether it is a place over -which there is a public right of passage, because if they have then it is part cf the street, and by the 149th Section of the Public Health Act it is vested -in the defendants. Therefore, what the plaintiff has to do is to satisfy you in the first place that this is part of the property which belonged to the father before him and now to himself,and secondly when he has satisfied you of that he is '-Y°nr verdict unless the defendants make ont to your satisfaction that that pavement has been "dedicated to the public as a place of public passage -over which the public are entitled to pass at all times at their own free will. Now, in the first 'place, as to the question of the original ownership And possession I should think you have very little 4oubt. It does seem to me to be made out as -elearly as anything can be possibly made out, un- less you altogether disbelieve the evidence you have heard on the point; indeed, it is all one way, And there is nothing to contradict it. You are not bound to believe what the witnesses tell you, but what we are told is that the plaintiff's father took a lease of the land upon which this house is now "built somewhere about forty years ago, and there are some building er other leases before me dated -7in 1838, the original one of which comprehended -the bulk of this property, and which fronts this •road. That is dated in 1888. It is an oddly ex- fredbed lease, because it professes to demise oildings, and ag far as I can make out there were .110 buildings upon it at that time. It deals at all events with part of the land, and after that lease .had been granted we have it in evidence from two .or three people who seemed to me to be not only decent people, but to tell a very probable story, sand one which I cannot see the slightest ground or thinking unlikely. They say that after this lease had been granted, and when the plaintiff's 'father was going to enclose this property and -build his house they were of course anxious to Ascertain what the boundaries of the property rwom and they say that they found on this line which is now oeoupied by the edge of this pave- ment.the remains of an eld wall. They say that the land above here was in its natural state a great hill of gravel and sand, and that round here there was an old retaining wall built because it had been flipping. It was a sort of land which was very likely to slip, and that it did slip in frosty weather, and so there was this old retaining wall built which separated it from the road, this being a "turnpike road, and this being a parish road, and -at that time this having been originally a turn. pike road, and that having been always a parish -road. At the time at which we are dealing with it the turnpike trust had expired, and this had be- come like other parish roads then, says this Mr Calvert, and he has been attacked very much for saying it. I must say I wish I saw a little more charity among people. I nav« heard that some- times religious persuasion operates very much in .some parts of the country. I can only say that I wish a certain chapter in the epistle to the 4Corintbians was read a little more, especially •where it says that oharity puffereth long and is kind, and thinketh no evil. It seems to me that people when they get into litigation are peculiarly in this part of the oountry apt to attack one another, and to attribute evil motives to one another when there is no reason for it. What more likely a story could Calvert tell. He says, I am •one of the County Board, and there was an ar- rangment come to between us (some of you are business men and have some knowledge as to what takes place under such circumstances, and you will be able to say whether you thick it is likely), the the different members of the Board, to look after the particular bits of road in their own neighbourhood I thought that very reasonable. He says, This being in my district, and the plaintiff's father working under me, I said mind you don't encroach on the road, because if you nip the r.d we shali have to pull your building down. binder those circumstances he says I went with him and we traced the old road and marked it out, and the house was built inside the line. The tnason and some other men who were concerned in -layin,c, out the foundations says the same thing. It seems to me exactly what would be done, be- oause, as the piason said (and I thought he appre- ciated the ways of people very well when he said it), that the man who had got the land and wanted to build, desired to get every inch he oould, and the Surveyor on the other hand wanted every inch he could for the road. As between those two ,that is exactly the state or oircumstanaes under which you would expect the boundary to be accurately ascertained. Therefore, it does look as if that which was act originally included in the original Ve&se was bounded substantially by the edge of the present pavement, but then, says Mr Williams, granted that that is so, that does not prove that the present plaintiff has got it, because that lease was not in existence until 1866. and the present plaintiff did not buy it until 1866, and what he has bought is defined by the conveyance, and there is a line on the conveyance, and in some way or other which I do not understand it is said you are to look at that line and to say that that line means this boundary. I do not see why. Generally speak- ing, people sell what they have got, and if a per- son builds a house nnder a building lease, and then sells that house afterwards, he generally does not leave out the strip of road or ground in front of it, but if he does it is generally expressed in his conveyance, and if he Wishes to reserve that to himself he says so,but as a role he would sell the 'land bounded by say the LlantrisantRoad. Is there anything to show that at that time this had bi -come part of the Llantrisaut Road? I see noth- ing. Then, if you want to asoertain what a man has bought you look to his conveyance. These question3 of boundary are not very accurately laid down on paper by four lines, and what the counsel were proposing to do yesterday morning was about the most profitless work imaginable. It was an endeavour on the one side to make out that there has beea a little too much taken in this direction, and too little in that. That is a pro- cess which I have seen adopted, and have taken part in doing it myself, but l have hardly ever «e.jn muon come out of it, and after all has been aaid aud done you have to look afterwards ta. what has been the user of the property about which there has been a question. Aud what doss that point to. Does it point to its being part of this trail's premises ? or does it point to something else to which he has no right. We have it upon the evidence of every one that he used it from the time he bought it pretty much as he liked by put- ting things on it. It is a very remarkable part of the case for the dfifdndants, and it does show how lightly people speak when the matter is in litiga- tion—ixoept, that gentleman who saya I came round on great occasions wh6n the Town Counoil was occupied in matters of business, aud the way -used to be blocked with carriages, and on those occasions you have seen people there and there. •So other witness has said a word of any user of l this by any member of the publio below this door I way of the shop and these landing steps here, and therefore you have, as far as that is concerned, the user by this man jast as if it was his own I private property, and the only evidence of any iD- terferance by any of the public with that in any way is the evidence of this gentleman, who says that when the street was full and blocked up with carriages he has seen people standing up here. Here again you have the pitching. You have him using this place as a place to put his tierces on, and so on, and you have him putting his goods all along there. Does that look as if it did not belong to him. I realty will not say any more about it. If you thiak that it is made oat that this strip of land belonged to what he bought in 1866 then you know the plaintiff has established the first step in his case. He has not shown that that is his. If it is his, or rather if it was his, by the conveyance, if it was originally his by that conveyance it re- mains his unless he has done something to get rid of it. Therefore, if the defendants want to make out, and they must make it out in order to juatify what they are proposing to do, that it is no longer his, they have got to prove it. If they can prove that the public have acquired rights of way over it, that is to say the right to an uninterrupted passage over it, like any other highway, then it is part of the street, and it vests in them, and then the Act of Parliament under those circumstances has taken it out of the plaintiff and put it into theirs. Then we have to deal with the question now whether they have shown, and it lies on them to show that this his become part of the street in that sense. Any land owner who has got a piece of land may mak-) the public a present of the right to go over it. and people very often do so, and it may be acquired in more ways than one, that right on the part of the public. If he performs an un- equivocal act of dedication to the public that will do, for instance, if he exeoutes a deed by which he says, That is my land, but I give a light to the public in a certain defined place, or in a certain not defined track, to go over it as much as they please," that would make it a public road. That is what is done occasionally but not always. It is much more common that a man says nothing about it. If he intends to dedicate his property as a public way he says nothing about it, but lets people go over it, and if people use it habitually and whenever they like without interruption and without obstacle by him, if they use it substan- tially all if it was a public right of way, why then a Jury may conclude, and under ordinary circum- stances it is the proper thing to conclude that he intended it should be a public way, and that he has dedicated it, but then it is a question of cir- cumstances and degree in every base, and it is very little use pointing to what has been said in another case, and apply it to the particular case, beoause circumstances differ very much. According to circumstances a very much shorter Deriod of time may be sufficient than it would in others, for instance suppose I had a little strip of land a few yards wide which lay between two important thoroughfares, and I laid out something whicK looked exactly like a public road there and threw it open, knowing that everybody would use it, and everybody did use it, and perhaps it saved people going two or three miles round. I should think that a very short period of user by the public there would satisfy a jury that my intention was to dedicate that to the public; bat then it becomes totally different where the circumstances are al- together different, and where the way is of but sluall convenience, and where it is so situated that it is of very little consequence to the public whether they use it or not, where it is, instead of being free and open like, aubject to perpetuate user by him of a character which would make it diffi- cult for the public, or at all events impossible for the public to use it, when he is so using it, surely that is a qualifying circumstance which would lead anyone to say I do not think this is the proper conclusion to draw from it that this was intended to be used as a public way. I think the most reasonable view would be that he was a little easy about people going there who would be pretty sure to trespass if it was convenient to them, and even where it was not convenient to them, and be would perhaps be inclined to put up something which would stop them, and the more reasonable conclu- sion would be that he used it as much atrhe liked, that he intended to keep it himself, and that be did not mind others nsing it if they did not inter- fere with his no-ir. If that is the view that you would take of it you would not say that that is a dedication. It is entirely for you to say, and therefore you must take all the evidence you have heard about the user of this into your considers. tion. and you must say whether you think he has granted to the public in that way, by acquiescing in their uin it, a right to have it, and to hold it for ever against him. If he has, then the Local Board are right, and if he has not then they are wrong. He has not put the tremendous obstacle which is suggested in the way of the improve- ment of Pontypridd. The only result will be that in that case the Local Board must do the same here as anywhere else, that is, if they want a man's land they must pay for it. I do Dot see any such alarming circumatineg in that, and I must say I have no sympathy with people who wilfully throw obstacles in the way of public improve- ments, but on the other hand I have as little sym- pathy with public bodies who want to get private persons' property without paying for it. That i& one of thA views which I am bound to enforce from where 1 sit, that people are not, even if there is a powerful body, and even if it is for the purpose of public improvement, to have their property taken away from them if it is thairs. Cuat id the whole quiBtiin whether it is or not. There seems to be singularly little conflict between the evidence on the one side and on the other, considering the animosity which has been shown in this case. I oannet understand what earthly good it answered to introduce that little attach on the piaintiff about having put more things on the pavement since last July. Evidently it was only brought in because they thought it discreditable to him. I cannot see it, granted that he did so, if he thought that the place was his he might very well sty to himself now that there is a doubt thrown o»er that. which I have always thought to be olear, I must protect myself and the best way in which I can do so is by showing that I mean to claim it as my own. and to keep people off, and yet some of these generous people who are called on the side of the Local Board (members of the Local Board) say that tnoy think it was done for a purpose, that is'^for the purpose of creating evi- dence. I think it is rather hard upon the plaintiff when one sees that when he was getting his own photograph prepared to exhibit in coart to suggest that he did not do it fairly, and that he pat nothing in the way. It was only who a the other photograph was taken that anythirg was shown as being in the way. He showed it just as it was, without attempt- ing to make his photograph tell any part of his case, except so much as could be gathered from a physical inspection. I do think it is a little bit hard to say that if it is true he had a little more us of it since last July, that there is anything discreditable in his doing so. I have tried to keep it out, because [ hate these insinuations which are made, and which a little charity would keep out of every case. Bat, gentlemen' do not let that tell against the Local Board in any way. I will say, however, that it does not diminish the value of the evidence which has been offered by the plaintiff. If they meant to say what Mr Williams Fuggest,-d, namely, that these people from whom you have heard so much as to putting the sacks there, are confounding their impressions daring the lastvonth or two and the impressions they had daring many years, and that they are improving their evideace now by that means, all I can say is that every one shoald have been asked the question. If anything to that effect was put in croaa-examiiiation it was not put as it ought to have been. It was pat so feebly that I do not recollect it at all, and when they called their own witnesses to day they said they could not say they noticed any difference, things were pretty mach the same as they always were. Dropping that, there seems to be singularly little conflict of evidence. It is colonred a bit on the one side and on the other,but after taking a little bit of varnish off the substantial residinm on the one side is the same and it is this- these steps originally were not here—these steps were not made until some twenty years afterwarde-1876 or 1877—the person who built the steps say that that was the time when they were made. Until these steps were made of course there was not much pas- sage, and there was not likely to be much passage, because there was only a heap of gravel or soil up here, and it was not a convenient way down, and I gather froiA something that was said yesterday, though a perusal of the document does not bear out what waa said in court-which was that he purchased a right of way up this passage somewhere about that time. Mr Benson It is in the conveyance. Mr Justice Wills: I was told that it was in one of the leases. Mr Benson: In the conveyance of 1866. Mr Justice Denman Does it refer to it by name ? Mr Benson A right of way in the passage. Mr Justice Wills That looks as if it was not at that time a public passage, because if it was a public passage there would not be any need to put it in. However, it may have related to the further part which was not public, and therefore I will not rest much on that, but the more substantial observation is that these steps which were made in a convenient way down there did net exist until 1866. It is not likely that before that time there would be any very great amount of user. It is very clear that there cannot have been mnch public user down here which would give the public the right at that time to go past the Green Meadow Inn, and all the way down there, or someone would have complained bitterly of those steps being put in the way, because they are a serious impediment to the people going along there. It is a very awkward interruption of a right of way if there was one, and inasmuch as nearly all the evidence given on both sides of the way in which this is used relates to people coming down from Lewis Street and coming through here, I should think that the fact is that until these were built that was not much used at all. What do we learn ? It seems to me that since that time people who came down here—some of them get down here, some, more active, jump straight down there, although I should think that is too far for most of them-some of them take thd road here, and some take the road- there, and some few say that they went beyond here down to this shop. They also say that they have seen other people doing the same. I daresay there was a certain amount of user of it. If you think that is sufficient, taking the other qualify- ing circumstances into your consideration to establish a dedication to the public, you will find it so, but let me point your attention to this—that the evidence of actual user, except as regards people who stood here to look at the carriages that were assembled on the other side, or to get along here (as the case may be) when the road was crowded up, with that exception there is not a single piece of evidence of user below here, and yet the Local Board, you know, claim the whole of it, because they propose to improve the whole; and then as against that evidence of user to the limited extent to which it has been proved you have to set this, that apparently whenever he liked although most often and to the greatest extent on market days, which were Wednesdays, he put sacks of corn out here, he cut up pigs here, and made the other uses of it that you have heard of, and it is con- ceded by the defendants' witnesses as well as by the plaintiff's witnesses that occasionally he had to put tierces of sugar resting on this pitch bit .here, which completely blocked up the path here, and I should think that whenever a sack of corn was put on this two feet three, it must have made the use of this very inconvenient. The plaintiff says more about this than any. one else, that is, as to the extent to which he has used it, and that is natural, because he is an interested witness. I thought he gave his evidence fairly enough. It is entirely for you to say what im- pression he made on you. He is a person who would know more about it than these other people, because they were only noticing from time to time as they were passing what things were standing on particular parts of the premises, and probably very many of them would pay very little heed to them, and if it did not inconvenience them they would not think about it. He says that he had his empties standing there for weeks together sometimes. If there is any truth in that, does that look very much like a public right of way ? Gentlemen, I will not weary you with going through the evidence. What is the outline of it on one side and on the other ? It is true that he has never turned people off, and it is true that he has not been interfered with for obstructing the way, as he certainly did by putting these things upon it, and as the more candid witnesses on the part oj the defen- dants admit. Then it is said (I only mention it in order to caution you against taking an unreasonable or wrong view of the evidence)—it is said that you must not use quite the same standard in judging of the case at Pontypridd as you would elsewhere. Else- where such things as have been put here would make undoubtedly a very formidable case against a dedica- tion. It is for the jury in any other part as well as hdfe to judge how formidable it is. In most parts of the kingdom with which I have bad any experience it would be considered as a very strong piece of evi- dence towards establishing a private road. It is said it ought not to go so far in Pontypridd, and for this reason. It is said that Pontypridd has been a small place where the Local Authority are very indulgent about matters of this kind, and do not interfere. I think it is a fair thing for you to take into your con- sideration, but then I must caution you against making an improper use of what has been done in other parts. We know nothing but the outline. We cannot try every case in which this indulgence on the part of the local authorities has taken place. We cannot try every case-and there is a vast difference between the case where a highway known from time immemorial to be a highway, and where it has always been one, and where people are trying to encroach upon it and make use of it against the public for their own purposes-there is a vast difference between a ease of that sort, and a case where those on whom it lies to make out dedication, have their evidence of dedication by letting the public pass along it, and have it all qualified by this perpetual interruption on the part of the owner you will take that observation for what it is worth. It may explain a laxity on the part of the local Board. It may explain their not interfering, even if they thought they had the right, but it does not remove from the defendants the diffi culty that they have got to make out their case, and it is a very different thing to make out a case by unin- terrupted user, and having te establish a right of way either by that process, or by any other process known to the law. That is a differenthing to consider where a public right of passage is made out by a string of users, all of which is subject to this class of interruption from time to time, and apparently when. ever it suited the plaintiff to make upe of his premises as he wanted to do. Gentlemen, I shall now leave the matter to you. It seems to me that it is a case with which you will have no difficulty in dealing. I do not mean by that to say what your verdict ought to be; but I cannot conceive that you will have any difficulty in maxing up vour minds one way or the other, and I should think that the great probability is tnat long before I had the honour of addressing you, your minds had been made up one way or the other on this question. Will vou kindly consider it, and let me know what your verdict is. The Associate Gentlemen, consider your verdict. The Jury conferred together for a short time. The Associate: Gentlemen, are you agreed ? The Foreman We are. The Associate: How do you find ? The Foreman: For the plaintiff. Mr Justice Wills There is an agreed amount of damage. I am prepared to give judgment for that. Mr Abel Thomas: Before the jury are dismissed there is one thing I wish to call attention to. I hope your Lordship will notice what the statement of claim is. It says for the injury done to the steps alone. Mr Justice Wills: It was agreed yesterday in my room that if the verdict went for the plaintiff the question of right only should be put, to the jury, and that the verdict should be for a very small sum by way of damages. Mr Abel Thomas That IS not what I meant. Your Lordship will see from the statement of claim that what they claim is that we have injured the steps, meaning the only part of the steps going up in the passage. These are admitted to be ours. Upon the jury's finding as it at present stands we shonld have to put those steps back. Mr Justice Wil!s: The steps are publio. Mr Bowen Rowlands: I huve said nothing about it. Mr Justice Wills: What Mr Thomas wants is this —that judgment shall be so entered as not to affect that. Mr Benson As to exclude the steps. Mr Justice Wills: and to preserve the public rights undernpath. Mr Thomas: The verdict of the jury does not affect further than the bottom steps there. Mr Justice Wills No, down to there it is public; Mr Thomas As long an that is duly considered I am content. Mr B. Rowlands: What we say about that is this- that we have a right of way granted to us over those steps. Mr Justice Wills: You have the public right of way now. They have blocked it up and made it impos- sible for us to go down. Mr Benson: From six feet two. Mr Thomas All these steps from there up to here (pointing to plan) have in fact been removed. The steps run half across here. Mr Benson We cannot take a sack up as it is now. Mr Rowlands: That is one of the elements of damage. Mr Thomas: That is why I mentioned it. Mr Justice Wills: That is compensation, and not in the action. Mr Rowlands: It is. Mr Justice Wills: It is part of your case. Mr Rowlands: Yes. Mr Thomas: It is only from a desire that we should have no further dispute about the matter that I men- tion it. Mr Justice Wills: That is a matter for compensa- tion, and you cannot have an injunction to prevent their dealing with that. Mr Rowlands: I follow your lordship entirely. Mr Justice Wills: The other matter will be settled » in the regular way. You have a claim to compensa- tion. Mr Rowlands: If our right of way to our warehouse is interfered with, we shall be paid for it. Before your Lordship rises I wish to avoid a misunderstand- ing. There has been a small sum agreed upon as damages. Mr Jastice Wills: Yes. Mr Rowlands: My friend says that the damages to the step! are technically recovered in this action, and therefore we should be prevented from going for in- jury to our warehouse. Mr Justice Wills: It is, "damages recoverable in this action" are the words, and these damages could not be recoverable in this action, because that does not belong to you. I should think you had better give up your f5 altogether, and take an injunction, and then make out whatever case you can to compen- sation. Mr Benson: Provided that we are not met witn a plea that the damages to the steps claimed in the ac- tion have been decided. Mr Justice Wills: No, they are not recoverable in this action. Mr Thomas: May I take it how your Lordship puts it. Mr Justice Wills If Mr Thomas is willing to admit that you have a right to the steps as your property, you would be very glad to let the matter stand as it is, but you must not say that this f5 which was agreed j on is to cover that. and then say that that is not within the action. Mr Thomas: Pardon me. The only parts that we have removed have been from here to there. No other part has been removed. Mr Justice Wills: All I say is that the zES which has been agreed on has nothing to do with that; that must be understood. Here Mr Francis Williams came into Court. Mr Williams: Your Lordship sees that they claim an injunction as to the steps. Mr Justice Wills: They cannot get it, because that is established to be the public's. They cannot have any damages in respect of that, and therefore they ought to have compensation if they are entitled to it. What you have done is to take away the steps and shove them back, which is more convenient to every- one except the plaintiff, and that is a thing as to which he is entitled to compensation, probably under the Public Health Act. Mr B. F. Williams: Or we can put them back. Mr Justice Wills: All I mean is that it must be understood that this 25 which was agreed on has nothing to do with that. I should say under those circumstances that the plaintiff had better give up his £ 5, and take his injunction, because nothing else has been done. Mr Benson No, nothing else has been done. Mr Jastice Wills: Then there will be judgment for the plaintiff. I will leave it an open verdict for {ilaintiff, with an injunction and no damages, if you ike. It is clearly understood that these proceedings do not stand in the way of your making a claim for compensation in respect of the steps if you can, be- cause they are outside this action. Mr Thomas: And judgment in the action runs to where the bottom step came. Mr Justice Wills: Yes, irom wherf the bottom step was. Mr Rowlands: Hdto can we do that ? Mr Justice Wills: It is an injunction to prevent the defendants interfering with the pavement in front of the plaintiff's premises from tne east end thereof to the west end of the warehouse door. If there should be any difficulty about settling the form of the injunction, you may mention it to me again. Mr Rowlands Yes, my lord, we will let it stand. Then I ask for costs. Mr B. F. Williams: Before we part with the case your Lordship sees that we have succeeded with re- gard to the steps, and the principal things which they put forward in their injunction with regard to the steps. I shonld ask your Lordship to say that we should have the costs with regard to the part as to which we have succeeded. Mr Justice Wills: The costs as to that can be nothing. No single witness has been called as to the stones. Mr B. P. Williams Is that so ? I thought we called some witnesses as to them. Mr Benson: No. Mr Bowen Rowlands: I do not know whether this comes from the Chancery Division. Mr Benson No, it is in the Queen's Bench Division Mr Rowlands: I ask for costs. Mr Justice Wills Yes. Mr Benson: The costs will follow the verdict of the jury. Mr Jastice Wills: Certainly.








Refusing to give up a Ticket…