§ Order of the Day for receiving the Report of Amendments, read.
§ Moved, That this Report be now received.—(Lord Eversley.)
§ LORD HYLTONMy Lords, before this stage is taken, I venture to ask the noble Lord in charge of the Bill a question relating to the exact meaning of Clause 2. I apologise at the outset to the noble Lord for not having raised this matter at an earlier stage of the Bill. I can only say I was unavoidably prevented from 1055 being present at an earlier stage. As the noble Lord is very well aware, there are, certainly in the south of England, many hundreds of miles of ancient highways which have been stopped up according to forms of law and orders made at Quarter Sessions in former days, and have not been repaired as highways for periods extending to forty, fifty, and sixty years. At the same time along many of these disused green lanes and stopped-up highways the public have, either legally or illegally, been accustomed to wander. They have used them as footpaths, and it is quite possible that in a great many cases the public might be able to prove that they had not been prevented from exercising rights of passage along these disused highways for the full period of twenty years alluded to in the noble Lord's Bill. In Clause 2 it is stated that where a way upon or over any land has been actually enjoyed by the public without interruption for a full period of twenty years that way shall revert to the position of a highway, and might eventually become repairable at great cost to the public authorities as a highway despite the fact that it had many years ago been legally stopped up as a highway. I venture to ask the noble Lord, therefore, whether he is willing to reconsider the wording of this clause so as to make it perfectly clear that where a footpath has been enjoyed for a full period of twenty years along a disused highway, the rights of footpath only shall be attainable under this Bill, and that the way shall not revert into the condition of a public highway such as is alluded to. If some definite undertaking of that kind is not given I am afraid I shall have to put down an Amendment on Third Reading.
§ LORD EVERSLEYMy Lords, I have before explained to the House that this Bill does not impose any fresh obligation for repair either upon local authorities or upon landowners. It merely supplies a new method of giving proof of the public right of highway, but it in no way affects liability to repair. If a footpath is proved to be a public path under the terms of this Bill no liability whatever will fall upon the local authority or upon the landowner for the repair of the same.
§ LORD HYLTONI see nothing about that in the Bill—that there is to be no liability. I certainly think it ought to be defined before Third Reading.
§ LORD EVERSLEYI am willing to accept the Amendment which will be moved later by the noble Earl, Lord Camperdown, declaring that nothing in the Bill shall impose upon the landowner any liability for maintenance and repair, and I should be prepared to accept an Amendment as regards the highway authority also. But I can assure the noble Lord that it is not necessary to insert any such Amendment, because under the law as it now stands it is perfectly clear that there will be no liability upon a highway authority or a landowner in respect of any new way which comes into existence under this Bill to which they are not liable under the existing law.
§ LORD EVERSLEYYes; it applies to Ireland but not to Scotland. The Irish law, I understand, is precisely the same as the English law in this matter; but the Scottish law differs in some material respects. It was therefore not thought necessary to apply the Bill to Scotland.
§ On Question, Report of Amendments received.
§ Clause 2:
§ Public use of way for twenty years conclusive that way is a public highway.
§ 2. Where a way upon or over any land has been actually enjoyed by the public without interruption for a full period of twenty years, such way shall be deemed to have been dedicated as a public highway unless it shall appear that there is sufficient evidence arising during that period negativing the intention to dedicate such way, or unless during such period of twenty years there was not at any time any person in possession of such land capable of dedicating such way. And, where such way has been enjoyed as aforesaid for a full period of forty years, such way shall be deemed conclusively to have been dedicated as a public highway unless there is sufficient evidence arising during that period negativing the intention to dedicate such way, and, in either of the cases in this section mentioned, a notice by the owner of the land over which such way passes inconsistent with its dedication as a highway, placed and maintained in such a manner as to be visible to those using it, shall, in the absence of any proof of a contrary intention, be sufficient evidence to negative the intention of the person so placing such notice to dedicate such way as a public highway: Provided that, in the case of any land let on lease, the person for the time being entitled to the reversion shall, notwithstanding the existence of any such lease, have the right to cause such notice to be placed and maintained: Provided 1057 that each of the respective periods of years mentioned in this section shall be deemed and taken to be the period next before the time when the right of the public to use a way shall have been brought into question: Provided further that nothing in this section contained shall affect the incapacity of corporations or other bodies or persons in possession of land for public or statutory purposes to dedicate any such way where such way would be incompatible with such public or statutory purposes.
§ LORD EVERSLEYI move, after the word "question" immediately before the proviso at the end of Clause 2, to insert the words "by notice as aforesaid or otherwise." This is merely a drafting Amendment. It does not interfere with the sense of the clause, but it is thought desirable to make the clause a little clearer in the interests of both the landowner and of the public.
§
Amendment moved—
Clause 2, page 2, line 6, after ("question") insert ("by notice as aforesaid or otherwise").—(Lord Eversley.)
§ On Question, Amendment agreed to.
§ Clause 4:
§ Savings for existing law.
§ 4. Nothing in this Act shall operate to prevent the dedication of a way as a public highway being presumed or proved on proof of user for any less period than twenty years or to prevent the dedication of a way as a public highway being presumed or proved under any circumstances under which it can be presumed or proved at the time of the passing of this Act.
THE EARL OF CAMPERDOWNI have an Amendment to Clause 4, to insert a new subsection providing that nothing in this Bill shall impose liability upon landowners for the maintenance or repair of such public highways which they would not have been subject to if this Bill had not been passed. Your Lordships may remember that in the minds of several noble Lords on this side of the House there was doubt as to whether the establishment of a public highway under this Bill might not mean the throwing upon the owner of the duty of repairing it. The noble and learned Viscount on the Woolsack was rather of a contrary opinion; but I suggested that some such Amendment as this should be made in order to make the point perfectly clear. I think that at that time the noble and learned Viscount said he had no objection to it, and, as I understand, the noble Lord in 1058 charge of the Bill has no objection to the Amendment.
§ Amendment moved—
§
Clause 4, page 2, line 21, after ("Act") insert the following new subsection:
(2) Nothing in this Act shall impose upon the owner of land over which a public highway passes any liability for the maintenance or repair of such public highway which he would not have been subject to if this Act had not been passed."—(The Earl of Camperdown.)
§ LORD EVERSLEYI have no objection to the noble Earl's Amendment, although I do not think it necessary. I believe I am right in saying that there are only two ways in which a landowner can possibly become liable for the repair of the footpath. One is if he has always, from time immemorial, repaired it; and the other is if he erects a fence on either side of the footpath so as to prevent the public straying on one side or the other. In that event he becomes liable to repair. At the same time, although I do not see any necessity for the Amendment I have no objection to it if the noble Earl presses it.
§ THE LORD CHANCELLOR (VISCOUNT HALDANE)I have looked into the law on this subject carefully, and the impression which I conveyed to your Lordships at the last stage I find was a correct one. It was decided perfectly clearly by Lord Campbell in the Court of Queen's Bench, when Lord Campbell was Lord Chief Justice, in the case of The Queen and Wilson in 1852, that no liability of any sort or kind attaches to the person who dedicates a highway from the mere fact of dedicating it. The law is quite clear, and I am therefore very loth to anything being put into this Bill that would cast any doubt on the existing law. If your Lordships accepted this Amendment Judges and the public would immediately begin to ask what was the necessity of putting this subsection into the Bill unless there has been some change in the law, which has been settled, as I have already told your Lordships, since the case of The Queen and Wilson. I have looked into the law, as I say, and there is no question about it. It is perfectly clear, and the proposed subsection adds nothing. I therefore ask your Lordships not to accept the Amendment, as it would only have an unsettling tendency and raise doubts as to what the law really is.
§ THE MARQUESS OF SALISBURYI have, of course, the greatest possible diffidence in even asking the noble and learned Viscount a question with regard to an intricate matter of law of this kind, and I should not have done so but for the pregnant observation made just now by the noble Lord in charge of the Bill when he said that nothing could throw liability on the landowner except two contingencies—one, if he had always repaired a particular road; and the other, if he had fenced in a particular road on either side. In these cases apparently a liability would arise on an owner to repair the road. Let us apply these two cases to the present Bill. Assume that a landowner has passing through his park a road which for many years was a private road and would have continued for all time to be a private road had not the public, through negligence to assert ownership on the part of the landowner, been allowed to use the road for the prescribed number of years. No doubt while it continued to be his private road the landowner would have mended it. But it becomes a public right of way; and, applying the criterion of the noble Lord in charge of the Bill, as the landowner has always been in the habit of mending it he would apparently still he liable to mend it hereafter although it had become a public right of way. That liability would be thrown upon him under the conditions stated by the noble Lord in charge of the Bill. So, in the other case, if the landowner fences the road on either side the liability is also thrown upon him. I will take the same case again, if the noble Lord will allow me, of a road crossing the landowner's own park, which he has neglected to maintain his right over and which has become a public right of way. It passes across the park with green on either side of it. He does not want to exclude the public by shutting his park gates, but, the road haying become a public road, he says, "I must put up a fence on each side of it so as to keep my park private." Then, according to the noble Lord, he becomes liable to repair the road. The two very cases which the noble Lord in charge of the Bill cites as throwing an obligation on the landowner appear to me to be pregnant and material to the case we are considering. Of course, it is not a thing that we can carry against the noble and learned Viscount, but I suggest that he should reconsider the matter. If it is the case that if the land- 1060 owner has been in the habit of repairing the road, or if he puts up a fence on either side of the road, then that makes him responsible for repairing it, I think that some words should be put in to protect the landowner. A road which has become a public road ought to be repaired by the public.
§ THE LORD CHANCELLORIt is quite true that there are two ways in which a man who has been the owner of a road which he has opened to the public may be liable. One is when he is liable by prescription, or what is called ratione tenurœ—that is, when he has done it for so long as to raise the presumption that it was done before the time of legal memory, which is from the time of Richard I. There is a doubt as to whether it dates from before he went to the Crusades or after he returned, but that is the only doubt about it. If there is evidence on which a jury can infer, under the direction of a Judge, that it has been done for that time, then it is to be presumed that there was a deed under which the landowner was bound to do it. That is the meaning of being liable ratione tenurœ.
§ THE MARQUESS OF SALISBURYWould that apply to a hitherto private road?
§ THE LORD CHANCELLORIt would apply to any public road of any sort or kind. If a landowner dedicates his right to a road to-day, it is perfectly plain that he cannot be liable under that doctrine at all. That is the first case. I hope I have satisfied the noble Marquess upon that. Then the other case is the case of fencing at the sides. That is known as ratione clausurœ. The meaning of that is this. If anybody owns land over which a highway runs and the land at the sides, and the highway gets into a very bad state, the public have always been allowed to go on to the land at the sides in order to avoid holes and defects in the way. If, then, the landlord, exercises his right to fence in on each side, he has been held bound, by way of compensation for what was the right of the public before to go along the sides, to repair the road if it gets into a bad state. That is the liability to repair ratione clausuœ. That is a general liability on everybody who has a right of way over his land. If the public 1061 right of way is in a very bad state, then the public may stray over his land at the sides, and if the owner fences it he must put back the public right of way into such a condition of repair that the public can go along it without resorting to the power of straying which the owner has taken away.
§ THE MARQUESS OF SALISBURYThen that would apply to this case?
§ THE LORD CHANCELLORIt applies to every case. If anybody creates a highway, he is liable to the obligation if he fences it in, of repairing the way from the point where he has fenced it in. But, my Lords, that is not anything that this Bill is concerned with. It is the general doctrine relating to the highways of the country, and if you make a special exception in the case of highways to which this Bill applies you will always have for the future the question raised as to how the highway originated. This Bill creates no new liability with regard to the dedicating of a highway, nor is there anything in this Bill which in the least extends the nature of the liability.
§ THE MARQUESS OF SALISBURYI was asking the noble and learned Viscount to deal with my case of a road going across an open park, which road, until it became a public right of way, would naturally not be fenced. I want him to apply his argument to that case. If the landowner puts up a fence on its becoming a public right of way he would be liable to repair?
§ THE LORD CHANCELLORThat is so; and that would be so however he dedicates a highway. He must let the public go across it, and, if it gets into a bad condition, he must allow them to go on either side of it. Dedication is always subject to this. You may have gates put across, but they must be left so that it is possible to open them; but if any obstruction is placed upon a public right of way and the public cannot get along, then they have a right to stray on to the land adjoining in order to get round the obstruction. That is peculiar to all highways, and has nothing in particular to do with any way under this Bill. What the noble Marquess really wants is to say that ways which are proved to be ways under this Bill are to be different from other 1062 ways. In the first place, who would be able hereafter to say whether the proof had taken place under this Bill or whether it had taken place under the Common Law? It is often a most difficult question, and the only purpose of this Bill is to afford a new rule of evidence in trials of the question of highway or not highway. I think the noble Earl was quite right to take the point. But, as I say, I have looked very closely into the law to see whether the advice I gave the House at the last stage of this Bill was right, and I find that I was right. There is no doubt about it. But I do not think that the proposed subsection as it appears really touches the point of the noble Marquess. It does touch the point of the noble Earl, who had a doubt as to whether, when you dedicate a way of this kind, you might impose upon yourself some liability. But to draw a distinction between cases to which this Bill applies and cases to which it does not apply does not seem to me to be a thing that is desirable. I hope that your Lordships, therefore, will consider that the Amendment is not necessary.
THE EARL OF CAMPERDOWNBy permission of the House, may I state very shortly my object in moving the Amendment, and what I think it means. This Bill, as I understand it, does give a special interpretation of the manner in which a public way may be created. It says, "Where a way upon or over any land has been actually enjoyed by the public without interruption for a full period of twenty years, such way shall be deemed to have been dedicated." I apprehend that that is an alteration of the present law. If that be so, then, my Lords, what I wished to establish by this Amendment was that this alteration in the law should not create any additional liability upon the owner; and it is in respect of this Bill, and of this Bill only, that I propose my Amendment. I could not quite gather what the noble and learned Viscount on the Woolsack said. I could not gather that he admitted that there was any change made in the law at all by the Bill. If there is no change made in the law by the Bill, then what is the object of the Bill? But if there is only a possibility or probability of a change being made, my Amendment at all events cannot do any harm. It merely says that this Bill shall create no new liability upon the 1063 owner. If there is any doubt at all with regard to the meaning of the Bill—and I must say that, so far as my understanding goes, it seems to me there is some doubt—I cannot see the harm of putting in these words.
§ TEE LORD CHANCELLORIf your Lordships Neill permit me, I will say one word more. The proposed new subsection is not apt to deal with the case which the noble Marquess has put. The Bill deals only with what is virtually a rule of evidence, and the noble Earl's proposed subsection does not really help the matter. "Nothing in this Act," it says, "shall impose any liability"; but the subsection does raise some doubt as to the existing law. It seems to me to throw doubt on the law as settled since the decision in The Queen and Wilson. However, I do not think it is a very serious matter if your Lordships wish to have the clause in; but some day or another it will give great trouble to Judges and lawyers, who will ask, "Why was this clause put in? Parliament must have had some reason for putting it in. It must be intended to indicate that there was some doubt as to the validity of the decision in The Queen and Wilson." Speaking for myself, I am against the proposed subsection because I am against any doubt being thrown on what is well-settled law. But if the House prefer it, they will no doubt vote for the Amendment.
THE EARL OF CAMPERDOWNI have nothing to do with the case put by the noble Marquess just now. All I have to do with is the case which I put. I dare say I am wrong; it is probably my own obtuseness; but it seems to me it would be desirable to put this subsection in. Of course, that is a matter which the House must decide, and I shall not divide if there is any strong feeling the other way.
LORD ZOUCHE OF HARYNGWORTHI venture to lay before your Lordships with very great diffidence, not being a lawyer, what occurs to me with regard to the question of fencing a road, which has been alluded to more than once in this discussion. I apprehend that where an owner sets to work to fence a road which has not previously been fenced, certain consequences follow as to his liability to repair. But my point is that I apprehend that in certain circumstances, if a road 1064 which has hitherto been a private road becomes a public road, the owner of the land through which the road passes may be compelled to fence by the local authorities. I have heard of cases which have arisen in that way, but, as I say, being a layman, I speak with some diffidence on the point.
§ LORD NEWTONI hope the noble Earl, Lord Camperdown, will press his Amendment. The point before us is that Lord Eversley's Bill is going to alter the law, and it is not the smallest satisfaction for us to be told that we are under no liabilities with regard to the existing law as to fencing and maintaining and so on. Lord Eversley tells us that he is going to alter the law. Then the noble and learned Viscount on the Woolsack says that he fears Lord Camperdown's Amendment may give much trouble to future Judges. But if the Judges are to be overworked in dealing with this question, the simple remedy is for Lord Eversley to drop the Bill, and not for my noble friend Lord Camperdown to drop his Amendment, which I hope he will press.
§ LORD SANDERSONI fancy some noble Lords have not quite understood the argument of the noble and learned Viscount on the Woolsack. What I understand him to say is that the Amendment proposed by the noble Earl will not have the effect he wishes.
THE EARL OF CAMPERDOWNNo; the noble and learned Viscount says it would not touch Lord Salisbury's point.
§ LORD SANDERSONThe words of the noble and learned Viscount were that it was not apt. What I understand the noble Earl wishes to put in is a clause to the effect that if a highway is proved to be dedicated in virtue of the provisions of this Bill, it shall not entail on the landowner any duty of repair which would fall upon him under the Common Law as the owner of a highway. That seems to me a different thing from what the Amendment proposed by the noble Earl provides.
§ On Question, Amendment agreed to.
§ Bill to be read 3a on Monday next, and to be printed as amended. (No. 128.)