§ Order of the Day for the House to be put into Committee read.
§ Moved, That the House do now resolve itself into Committee.—(Lord Buck-master.)
§ House in Committee accordingly:
§ [The EARL OF ONSLOW in the Chair.]
§ Clause 1:
§ Public use of way for twenty years conclusive that way is a public highway.
§ 1.—(1) Where a way leading from one public place to another upon or over any land has been actually enjoyed by the public as of right and without interruption for a full period of twenty years, such way shall be deemed to have been dedicated as a highway unless there is sufficient evidence that there was no intention during that period to dedicate such way, or unless during such period of twenty years there 12 was not at any time any person in possession of such land, including access to the sea, capable of dedicating such way.
§ (2) Where any 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 highway unless there is sufficient evidence that there was no intention during that period to dedicate such way.
§ (3) A notice by the owner of the land over which any such way passes inconsistent with the dedication of the way as a highway, placed before or after and maintained after the commencement of this Act in such a manner as to be visible to those using the way, shall, in the absence of proof of a contrary intention, be sufficient evidence to negative the intention to dedicate such way as a highway, and where a notice has been placed in the manner provided in this subsection and is subsequently torn down or defaced, notice in writing by the owner of the land to the council of the county and of the borough or urban or rural district council in which the way is situate that the way is not dedicated to the public shall, in the absence of proof of a contrary intention, be sufficient evidence to negative the intention of the owner of the land to dedicate such way as a highway.
§ (5) Each of the respective periods of years mentioned in this section shall be deemed and taken to be a period at any time before the commencement of proceedings including arbitrations to test the right of the public to use a way.
§ (6) Any court or other tribunal shall, before determining (a) whether a way upon or over any land has or has not been dedicated as a highway, or (b) the date upon which such dedication, if any, took place, take into consideration any map, plan or history of the locality or other relevant document that is tendered in evidence, and such weight shall be given thereto as the court or tribunal consider justified by the circumstances, including the antiquity of the tendered document, the status of the person or persons by whom it was made or compiled, its purpose, and the custody in which it has been kept and from which it is produced.
§ (8) This section shall not apply to land for the time being belonging to the council of any county or any borough (including a. metropolitan borough) or urban or rural district.
§ LORD BUCKMASTER moved, in subsection (1), to leave out "leading from one public place to another." The noble Lord said: This Amendment needs for its explanation a short recital of the circum- 13 stances in which the proof of highways stands at the present time. The Bill is designed simply for one purpose, to limit the period of time over which acts have to be proved and from which dedication of a highway can be assumed. As your Lordships know, private rights of way are proved by user and public rights of way are proved by dedication. Dedication is established by acts of user but they are of a different character to those that affect private rights of way. In all cases it is dedication that you have to find and the object of this Bill is to secure that the period of time over which you have to look for acts of dedication should in ordinary cases be twenty years or, where an estate is settled, forty years. There are subsidiary provisions with which I need not trouble your Lordships because I discussed them on Second Reading, although to a rather scanty House.
I do not think that people have quite realised that the object of this Bill is to leave the law as to what is a highway absolutely untouched. It is only to limit the period of time during which acts can be put in evidence to show that the dedication has taken place. If you come across conditions, as you sometimes do, where a track cannot be a highway because it does not lead from one public place to another, that will still be the same if you make it clear in the Bill, as the Amendments I move seek to do. The words I seek to leave out are words introduced by someone who, having heard that a highway runs from a public place to a public place, thought it necessary to introduce them. The words as a definition are wholly wrong. If you go down Oxford Street, there is Stratford Place, which does not lead from one public place to another public place, and there is Clanrickarde Gardens. I could mention numbers of well-known streets which are indisputably highways but which do not run from one public place to another. The fact that a track does lead from a public place to another public place is, of course, a vital factor in many cases. But, if you leave these words in, in attempting to define the law as it stands at the present moment you will simply confuse it. My object in this Bill is to keep the law relating to highways untouched, but simply in the interests of the landowner and the public to limit the period of time during which proof will be permitted.14
Page 1, lines 6 and 7, leave out ("leading from one public place to another").—(Lord Buckmaster.)
§ LORD BANBURY OF SOUTHAM
I have an Amendment down on this question and it might save time if the noble Lord, Lord Buckmaster, would accept it instead of his own. This was a Private Member's Bill introduced in another place and the words that Lord Buckmaster desires to leave out were put in with the consent of the member who was in charge of the Bill. I am prepared to meet Lord Buckmaster as far as this. If he leaves out those words, I propose to insert the following:not being of such a character that user thereof by the public could not give rise at Common Law to any presumption of dedication.The effect of Lord Buckmaster's Amendment might be this. A person has a private lane leading only to two or three houses and gives permission to people to use that lane. If they use it for twenty years, then, under Lord Buckmaster's Amendment, the public could acquire a right to do so. Take an even stronger case. If an owner of a park or garden were to allow the Public free access along its drive and take no steps by putting up notices or shutting his gates occasionally, the clause apparently might operate to turn his drive into a, public highway.
Again, take the case of a cul-de-sac or mews down which the public are allowed to wander occasionally. At present such freedom does not give rise to the presumption that the owner has intended to dedicate the cul-de-sac to the public unless it has been repaired or lighted by the local authority at the expense of the public. Another case is where one owner has two or three fields and another owner has two or three fields and a farmhouse and the two or three fields of the first owner are between the public highway and the farm of the second owner. The first owner has kindly allowed the workmen of the second owner to go across his fields instead of going some little way round. Unless my Amendment is inserted, Lord Buck-master's Amendment would make a public highway of the farm belonging to the man who has allowed people to walk across his fields, not to go to a public highway but to someone else's farm.
15 That would become a great nuisance. I hope, therefore, that the noble Lord, Lord Buckmaster, will accept my Amendment.
§ LORD DYNEVOR
As my noble friend Lord Banbury said, if these words are taken out, the landowner who has permitted persons to walk or drive in a park or on any private property would be liable to find that they had established public rights of way. These words were inserted in the Committee stage in another place to prevent that injustice being done, and therefore I hope your Lordships will not allow this Amendment.
§ LORD BUCKMASTER
I am placed in a difficult position because my noble friend Lord Banbury says: "Accept my words and the Amendment becomes intelligible," while the noble Lord, Lord Dynevor, asks unreservedly that my Amendment should be rejected. The right plan would be to take the three Amendments on the Paper together and then we should know where we are. With your Lordships' permission let me say a word about them. I suggest meeting the whole of those difficulties—and I am satisfied that I do so—by the introduction of the three words "as a highway" after "enjoyed." It has got to be enjoyed as a highway. It is often a matter of reproach to lawyers that they use twenty words where two will do, a reproach which is not wholly baseless. On this occasion I have, at least, the advantage of being able to retort that the noble Lord has used four lines for the exact equivalent of three words. I think his four lines have been badly prepared. The law with which he supports them is so deplorable that, if my legal feelings could be shocked, I should have been aghast to hear such propositions enunciated as propositions of law. But it does not matter. The noble Lord is satisfied with these words. I have no paternal feeling of affection for my own, and I am quite prepared that my offspring should be sacrificed on the altar of a good understanding about these clauses.
§ LORD BANBURY OF SOUTHAM
I beg to move, in subsection (1), to insert, instead of "leading from one public place to another," the words "not being of such a character that user thereof by the public could not give rise at Common Law to any presumption of dedication."
Page 1, line 6, insert the said words.—(Lord Banbury of Southam.)
§ LORD DYNEVOR moved, in subsection (1), after "full period of twenty years," to insert "after the date of the passing of this Act." The noble Lord said: I should like first of all to express my regret that I was not able to be present in your Lordships' House when the Second Reading debate was on. I was away in the country fulfilling engagements I had made some time before, otherwise I should certainly have had something to say on this Bill during Second Reading. This Bill upsets the existing law on rights of way, especially where land is in settlement. People have been allowed where land is in settlement to walk in many places, because the owner knew that he had no power to dedicate, but all this is altered by the Bill and the public may lose heavily. Landowners may have property in more than one county, and they may not have taken the trouble to find out where people have been walking, because the land is in settlement, but they must now find out with very great care where the public have walked in the past.
§ In the Bill, as I read it, a claim that the land is in settlement cannot be made in Clause 1, subsection (2), but it can be made under Clause 1, subsection (1). Suppose there has been a settlement for one hundred years, and during that period there has not been any one in possession of the land capable of dedicating such a way under subsection (2), if somebody comes forward and says he has enjoyed the way for forty years, although it was in settlement all the time, a right of way will be proved, although under subsection (1), if the claim is for a period of twenty years and the land was in settlement, then the claim would fall to the ground. Therefore, I came to the conclusion that the best way of dealing with this Bill is not to allow it to be retrospective, and the twenty years mentioned in subsection (1) and the forty 17 years mentioned in subsection (2) should all commence from the passing of the Act. This will give time to the landowners to see that their old rights are not abolished. I beg to move.
Page 1, line 9, after ("years") insert ("after the date of the passing of this Act").—(Lord Dynevor.)
§ LORD BUCKMASTER
The two Amendments of the noble Lord who has just sat down undoubtedly hang together. He seems to have considered every argument in their support and has only overlooked one thing and that is the pitiful brevity of human life. If his Amendments were passed the result would be that this Bill would begin to come into operation so far as settled land is concerned at the expiration of forty years, a time when I imagine all those whom I am addressing will have gone down the broad way that all may equally tread, and will be no longer interested in these concerns. What is the reason of it? I have pointed out already that this Bill does not affect the character of the user in the least degree. It still is just as essential to prove that the user was as it was before. Nor does it make twenty years necessarily the time. It cannot be more, but at this moment, as your Lordships know, you can dedicate a highway in a week. The dedication is the evidence of intention which is assumed from acts, and acts uninterrupted for twenty years are, if the man is the owner in fee simple of the land, assumed to be the equivalent of a dedication by the owner of that right.
If the land is in settlement great difficulties have arisen hitherto, because, although a highway may unquestionably have been used as a highway, I think may even have been repaired by the local authority, yet none the less, if the land happened to be in settlement, and the person was the tenant in tail, or the tenant for life, as the law says dedication cannot be assumed in those cases. It is not dedicated. This Bill is to put an end to that, I trust your Lordships will think, most unreasonable position. Although the noble Lord said he was anxious to have heard the Bill read a section time, may I point out that in 1913—nineteen years ago—a Bill in this form with a few of the Amendments put in by the Com- 18 mons not only passed your Lordships' House but was referred by your Lordships to a Select Committee, presided over by a distinguished lawyer, who reported in favour of this Bill, and there was no opposition. Nineteen years have gone by and the noble Lord says, that is nothing; add another forty years, what does it matter? Let us go on and on, until at last when nobody cares much, at a moment when it may be that all these rights will vanish, you then may be able to establish your night in this way.
I submit to your Lordships that that is a most irrational thing. This Bill is really a pure question of evidence which is desirable in a Court of Law. It is not, as is assumed by the noble Lord, merely in the interests of the public. It is in the interest of the landowner as well, and in several ways. The noble Lord says he was not here for the Second Reading. I regretted his absence. There was a case not long ago in which owing to the unrestricted ambit of the evidence, which you can spread over any length of time, the case lasted an interminable period, and was decided against the landowner, who had to pay £16,000 in costs. If there is one thing that at this hour is a grave reproach to our administration of the law it is the intolerable and protracted length of legal proceedings. It is of the utmost consequence that they should be made as brief as is compatible with hearing everything that has to be said and for deciding the real issue. This Bill is designed to secure and to effect that object. It is to prevent you from wandering for ever into the past. It is to limit this period of time. Twenty, forty years are abundant. Further, this Bill expressly provides that you can stop the user at this moment by exhibiting a notice to show that it is no longer to be enjoyed as a right. If the landowner was entitled to put up the notice that would defeat the whole right. It is open to your Lordships to take one of two courses. You can accept this Bill as your Lordships' House accepted it before the War, of you can reject it. But to accept the Bill and to introduce this Amendment is, I submit, to take a course which is really incompatible with the sober consideration of your Lordships' House.
§ LORD MOUNT TEMPLE
I do not think the noble and learned Lord, Lord Buckmaster, has quite answered the point 19 which I understand was raised by the noble Lord, Lord Dynevor. I apprehend that as far as the Bill concerns land which is in freehold—or whatever is the legal term—there is no objection to its provisions, and I personally see no objection at all to what is going to happen except what is likely to happen in the case of settled land. As I understand the Bill—and if I do not understand it you must excuse me because I am not a lawyer—if a tenant for life, relying upon the practical impossibility of a right of way being established over his property, had neglected before this Bill becomes law to stop people using the footpath across his estate, then if they could prove that user it would become a public right of way. That seems to me to be very unfair to the owner of settled estates. He relied before this Bill was passed on the practical impossibility of the right of way being established, and you now come along and say: "Oh well, we will do away with that practical impossibility and we will enable the right of way to be established." I quite see the point of the noble and learned Lord that you do not want to wait forty years for the simplification of the law in the case of settled estates, but it does seem to me that some Amendment might be proposed either by him or by Lord Dynevor to safeguard the position of the owner of estates who, in the past, relied upon the law preventing a right of way being established and now finds that safeguard swept away by this Bill.
§ VISCOUNT BERTIE OF THAME
The noble and learned Lord, Lord Buckmaster, says that all that a landowner has to do now is to put up a notice. But nineteen years and eleven months or more may have run, and this Bill may not have been brought to his notice. Yet if he does not immediately put up a notice he is done.
§ THE MARQUESS OF SALISBURY
Some of us in this quarter of the House have been anxiously waiting for the noble Lord, Lord Buckmaster, to answer the question put by the noble Lord, Lord Mount Temple. We want to know whether in point of fact when a landowner has allowed a pathway to be used across his park for twenty years, the estate being settled, the fact that he was good natured in that way can be now used to his damage. The moment the 20 noble and learned Lord's Bill passes into law he finds he has granted a right of way, although he did not know he was doing it, because his land was settled and he thought he was protected. Very likely the noble and learned Lord has a complete answer to that, but if he has not I think it is incumbent upon him to propose some Amendment to meet Lord Dynevor's point.
§ LORD BUCKMASTER
The noble Marquess says twenty years, but in the case of settled laud it is forty years.
§ LORD BUCKMASTER
I appreciate the readiness of the noble Marquess to accept the difference, but I ask your Lordships to think for a moment of the position. For forty years this right of way has been used as a right—remember that is the whole point—and used in circumstances from which the law assumes dedication. After forty years the right of the public is to be defeated merely because the land happens to be in settlement. It seems to me that the wrong done the other way is far greater. There has been nothing to prevent the person in possession under settlement from putting up a notice.
§ LORD BUCKMASTER
If he does not want his action to be treated as an act of dedication it is wise to put up a notice.
§ LORD BUCKMASTER
I do not wish to waste time and I do not wish to reargue the matter. If your Lordships think the Amendment should be accepted I tell you frankly there is an end to the Bill and the labour expended on it and the labour of your Lordships' House nineteen years ago is all wasted. But there it is, it cannot be helped. If your Lordships think the Amendment should be inserted it must be done. I only want to make plain what would be the position.
§ THE MARQUESS OF SALISBURY
The noble and learned Lord mistakes me. I have no desire to kill the Bill. If the Amendment of the noble Lord, Lord 21 Dynevor, goes too far then it must not be inserted; but when my noble friend makes a point which seems to appeal to the sense of justice in your Lordships' House, and when my noble friend Lord Mount Temple puts a question to the noble and learned Lord, then I think that unless he can find an answer to it it is incumbent on him to promise to consider whether he can meet the point in some way. The case I am putting is of a park across which a pathway has been used for many years. The park has been all that time settled land. The pathway has been a convenience to the neighbours of the owner of the park and they have used it. He has not been called upon to put up any notice. He knew his land was settled. Why should he put up a notice? Then suddenly the noble and learned Lord comes along and passes this Bill, and the morning after the Royal Assent has been given the owner suddenly finds that this convenience which he had allowed all these years is to be brought up against him, that power has gone from him and that it has become a right of way. That is inequitable, and I am sure that the noble and learned Lord, who is a most just man, will see that it is inequitable. If he will say that he agrees that it is inequitable and that he will do his best to find words to protect the owner in such a case, then I have nothing more to say.
§ LORD MOYNE
It seems to me that it ought to be possible to find a compromise between these two points of view. I think that no one wants to hang up the effectiveness of this Bill for forty years, if that would be the result of the Amendment, but at the same time there is a great deal in what my noble friend Lord Dynevor has said. People who have allowed public access to settled land should have time to take remedies against their good nature being made into a legal right against them. Could we not get over the difficulty by the noble Lord withdrawing his Amendment and substituting "prior to January 1, 1940" or any other date which might seem reasonable to your Lordships. If that date were accepted it would give an owner about eight years to look round.
§ LORD BUCKMASTER
The noble Marquess has done me the compliment of saying that I try to be just. So I do, 22 but I must say that this particular grievance strikes me as a rather artificial one. It assumes a case where a tenant for life has for thirty-nine years and eleven months before the passing of this Bill into the law permitted people to use a right of way as a right of way—because it must be done as a right. Then he finds that thereby he has dedicated it. The Bill does not come into operation until 1933. That gives six months during which he can put up the notices which are provided for by subsection (3). After all, you must remember that people with settled estates are people who have lawyers. Those lawyers are fully alive to this Bill and will tell them at once if they are in that position that they ought to put up notices. Beyond that I do not see how we can proceed if you desire this Bill at all.
LORD BALFOUR OF BURLEIGH
With very great respect to the noble Marquess, Lord Salisbury, I do not feel, as a landowner accustomed to having people walking across my land, that this is a grievance so far as the landowner is concerned. I understand the technicality about settled estates, though I confess I really do not quite know what that means apart from freehold; but when I found people beginning to walk across my land, or if it had been going on for a number of years, I should take good case to put up a notice. If anyone who owns land allows the public common user and if the public walk across his land for thirty or forty years, he has no one but himself to thank if it becomes a right of way.
§ LORD AMULREE
May I suggest to the noble and learned Lord that the proposal which has been made should meet the circumstances of the case? It has been pointed out that the Act is to come into operation on January 1, 1933. If that were postponed to January 1, 1934, it would give everyone ample notice. It seems to me that it would be a simple way out of the difficulty and would not create the apprehensions that were put forward.
§ LORD DANESFORT
I think the suggestion just made would meet the difficulty. The noble and learned Lord says the Bill would not come into operation until the 1st January of next year. That leaves rather a short time to put up notices and so on. If you gave a year 23 and a half, as suggested, that really ought to get over all possible injustice, because the moment the Bill is passed any agent who is worth anything will inform the owner and he can take steps to put up notices to protect his rights.
§ LORD BUCKMASTER
The difficulty about these auctions is always to know whether the auctioneer can deliver the goods. If I understand what has been suggested to be the opinion of the House and that the noble Lord will withdraw his Amendment I should be prepared to accept the suggestion, but it is no use my saying I will accept it with this Amendment in front of us and the probability that there may be a Division upon it. If I understand that the noble Lord who moved the Amendment is prepared to substitute a provision that the Bill shall come into operation on the 1st January, 1934, I would accept it.
§ THE MARQUESS OF BATH
I should like to support the suggestion that the Bill should be postponed until 1934. I understand that the noble and learned Lord is prepared to agree to that suggestion if my noble friend withdraws and I gather that in that case the goods would be delivered. But I suppose we cannot tell till we come to the last clause of the Bill, when the matter would be corrected.
§ LORD DYNEVOR
I have no idea what the effect of this suggestion is or how it is to come in here. Even if some Amendment be put in relating to 1934, what about subsection (2)? I would suggest that we take your Lordships' opinion on this question and then, if Lord Buckmaster likes to make some other suggestion on Report, we could consider it, but I should like to take the opinion of the House.
§ THE MARQUESS OF SALISBURY
I am rather sorry for the concluding observation of Lord Dynevor. I am not prepared to vote for his Amendment as it stands. I far prefer an Amendment such as that which has been suggested by Lord Amulree and the noble Marquess, Lord Bath. I would venture to hope that your Lordships will not be called upon to divide on the present Amendment because I do not think many of us could support it. On the other hand, I feel certain that if Lord Buckmaster will express himself willing to consider an 24 Amendment postponing the date, we will take care that he will have the opportunity of doing so by putting one down ourselves on the Report stage.
§ LORD BUCKMASTER
I was proposing that this Amendment should be withdrawn merely to move in Clause 5 that there shall be substituted 1934 for 1933. If you look at Clause 5 you will see that it will only require the alteration of one figure.
§ LORD DYNEVOR
After what has been said by the noble Marquess, Lord Salisbury, I cannot go to a Division, but I hope that on Report something satisfactory will be settled.
§ LORD BUCKMASTER
The noble Lord seems to have misunderstood me. I have said that if this Amendment be withdrawn I will move now that there be introduced into the Bill 1934 instead of 1933 and that, I understood, was suggested by Lord Amulree and supported by the two noble Marquesses. That is what I propose to do.
§ THE MARQUESS OF SALISBURY
That is so, but of course the House is at liberty to consider the whole question on Report.
§ Amendment, by leave, withdrawn.
§ LORD BUCKMASTER moved, in subsection (1) to leave out "including access to the sea." The noble and learned Lord said: I have been wholly unable to understand what these words mean. I have asked many to explain them and have got no explanation. Unless some one of your Lordships here is more gifted and can explain them I suggest they had better be left out.
Page 1, lines 14 and 15, leave out ("including access to the sea").—(Lord Backmaster.)
§ LORD AMULREE
I think in justice to the Committee it should be said that these words, as far as I read the clause, have been misplaced. They should have come in after the words "any land"—"from one public place to another upon or over any land." I agree they should be struck out.
LORD AMULREE had given Notice of an Amendment to leave out subsection (2) and insert:
(2) Where a way upon or over any land has been used by the public openly as of right and for the full period of forty years, no presumption as to the dedication of that way as a highway, which would arise if an intention to dedicate that way were established or could be inferred by the court, shall fail by reason only that it is shown that there was not at any time during that period any person capable of making an effective dedication of that way.
§ The noble Lord said: I do not propose to move this Amendment. There have been so many alterations in subsection (1) that I do not know that it would now fit in. Accordingly I do not move now and perhaps may be allowed at a later stage to bring it up again.
§ LORD DYNEVOR moved, in subsection (3), to leave out "in the absence of proof of a contrary intention." The noble Lord said: Subsection (3) says that a notice by the owner of the land, whether placed before or after, shall be sufficient evidence to negative the intention to dedicate such way. Then there appear the words "in the absence of proof of a contrary intention." I think those words are unnecessary. If the owner of the land puts up a notice that he does not wish the way to become a right of way, that should be sufficient.
Page 1 line 25, leave out ("in the absence of proof of a contrary intention"). —(Lord Dynevor.)
§ LORD BUCKMASTER
The difficulty is this. The noble Lord assumes that the putting up of a notice is complete and conclusive and final evidence that there is no dedication. It is evidence, unless you can show by other means that there was a dedication. Suppose there had been an effective dedication, then the putting up of such a notice ought not to destroy that dedication. If you are to have Courts of Justice to try these points, it should be possible to consider proof of a contrary intention.
§ Amendment, by leave, withdrawn.
LORD STRACHIE moved, after subsection (3), to insert:
( ) (a) The owner of any land shall be at liberty to deposit at any time after the commencement of this Act with the council of the county and with the council of the borough, urban district or rural district in which the said land is situate—
(b) In any case in which a deposit under paragraph (a) of this subsection has been made, statutory declarations made by the owner aforesaid or by his successors in title and lodged by him or them with the councils aforesaid at any time prior to the expiration of six years horn the date of such deposit or prior to the expiration of six years from the date on which any previous declarations were lodged under this paragraph to the effect that no additional ways (other than any specifically indicated in such declaration) over the lands delineated on the said map have been dedicated to the public since the date of such deposit or since the date of the lodgment of such previous declarations (as the case may be) shall in the absence of proof of a contrary intention be sufficient evidence to negative the intention of the owner or his successors in title to dedicate any such additional ways as highways.
§ The noble Lord said: This Amendment is rather a long one, but I think it pretty clearly explains its object. It seems to me that both the public and the landowners would benefit by such a provision. There are very many landowners who have no objection to members of the public reasonably using short cuts and other paths across their property, provided they do no damage and acquire no rights. Under the present law they are bound to stop persons for fear of rights being acquired. I had an experience of my own not long ago. The postmaster applied for leave for a postman to go through one of my principal coverts and take a short cut. I was, of course, only too glad to accede to the request, but I was warned that it would be necessary for me to have a declaration in writing from the postmaster at Bristol, in which this area was, that no right of way should be acquired. I was told that if I had not got that declaration the mere fact of giving facilities to the Post Office would establish a right of way through this wood. That might be very objectionable in many cases.
§ The Bill deals with this point to a limited extent by providing for the placing of notices negativing the intention to dedicate. It is, however, impossible, particularly in rough heath land, where access by the public is least objected to, to place notices at every track or possible track crossing it. In any event the provision of such notices will greatly deface 27 the countryside. My Amendment, I venture to suggest, would get rid of that difficulty entirely. This Amendment is entirely optional on the part of the landowner and the local authority. Without the Amendment it would be necessary to put up these notices, which may very often be thrown down. I venture to think this would be an improvement of the Bill, and I hope the noble Viscount will accept it. It could do no harm to the Bill and I think would rather strengthen it.
Page 2, line 10, at end, insert the said new subsection.—(Lord Strachie.)
§ LORD BUCKMASTER
One difficulty which I see about this Amendment—I do not say it is an insuperable one—is that this deposit is only to operate one way. It is not a deposit which is to establish existing rights of way, but simply to show that after that date no additional rights shall be obtained. I am not going to occupy your Lordships' time in discussing the Amendment in detail. I do not think it is going to do much good but on the other hand it does not seem to me it is going to do much harm.
§ LORD BUCKMASTER moved, in subsection (5), to leave out "at any time" and insert "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 by notice as aforesaid or otherwise." The noble and learned Lord said: The critical date is when the right of way is called in question, and not when the writ is issued. It is when the act arose which gave rise to the quarrel which the writ is issued to settle.
Page 2, line 20, leave out ("at any time") and insert the said words.—(Lord Buckmaster.)
§ LORD AMULREE moved to leave out subsection (6). The noble Lord said: I propose to leave out this subsection, which deals with evidence as to maps and ancient documents, and such matters, for the purpose of transferring it to a section by itself. On a reasonable construction of Clause 1 of the Bill, including subsection (6) as it now stands, it might be 28 said that all this evidence referring to maps, public documents, and so forth, would relate to a right of way which had been claimed as a Highway under this clause. It seems to me that this very valuable provision should be free from any restriction of that kind, and that it would be more appropriate if subsection (6) were placed as a new section by itself, later in the Bill. It is purely a matter of procedure, but it seems reasonable and would remove any doubt as to whether the subsection is confined to particular rights of way.
Page 2, line 23, leave out subsection (6).—(Lord Amulree.)
§ LORD BUCKMASTER
This is a pure matter of arithmetic. I do not in the least mind whether it is a subsection or an independent clause. If you like to make it into an independent clause by all means do. It cannot affect the Bill.
§ LORD HANWORTH
May I ask what the purpose of the clause is? Any Court or tribunal before determining the facts does take into account the evidence which is relevant, and it often happens that it takes account of maps and so on. I always object to any clause which appears to focus attention on such a matter to the exclusion of something else. I can recall recent cases in which maps and relevant documents all had to be carefully examined, and the Court had tendered to it a good deal of evidence which had not been previously discovered. I should have said subsection (6) is a bad subsection altogether, because it indicates something which the tribunal has to do which would be followed in the ordinary course, and I object to having a particular direction. I very much prefer to leave it to depend upon the relevant evidence.
§ LORD BUCKMASTER
I think the noble and learned Lord has misunderstood the purpose of this subsection. At the present moment, it is perfectly true, if you are going to decide questions relating to the highways, maps which are properly admissible in evidence are of the greatest value, but there are a large number of maps which would be of the greatest value if you could look at them which are excluded by the rigid rules of evidence. That is the whole trouble. One of the most valuable of all maps, the tithe apportionment map, is not admissible in evidence for this purpose. This Bill does 29 not provide that those maps should prove anything, but that they may be considered; at the present moment they may not. And when the noble and learned Lord says this is directing the Courts to do what they already do, I respectfully suggest it is enabling the Court to do what now they cannot. And in cases of this kind it is frightfully hard if you are going to exclude a certain set of maps, instead of doing what you ought to do—look at every map which is authentic, give it its proper weight; do not say it is conclusive, but consider it. And that is what this provision is intended to effect.
THE LORD CHAIRMAN
I think that Lord Buckmaster's next Amendment and those of Lord Amulree and Lord Strachie are all cognate, and perhaps it would be convenient to your Lordships to take the discussion on all three together.
§ LORD BUCKMASTER moved to leave out subsection (8). The noble and learned Lord said: There is no conceivable reason why, if this Bill is to pass at all, the land belonging to a county council or borough council or an urban district council should not be included in it. If the point be to shorten and simplify and consolidate legal evidence, why in the world should not it be so shortened and simplified and consolidated against the local authority, just as it is against anybody else? I have the greatest respect for local authorities, but I think sometimes they suffer from hyper-sensitiveness and they think they ought to be exempt from the ordinary rules of law that affect other mortals, and I can see no reason why.
Page 2, line 40, leave out subsection (8).— (Lord Buckmaster.)
LORD AMULREE had on the Paper an Amendment to leave out subsection (8) and insert:
(8) This section shall not apply to any land for the time being belonging to any local authority, joint board, company, body or person authorised to supply water by any Act of Parliament or Order having the force of an Act of Parliament and held by them for the purposes of their water undertaking.
§ The noble Lord said: The subsection I propose to insert in place of subsection (8) is one dealing with land belong- 30 ing to water authorities, the gathering grounds of local authorities which are water authorities, the gathering grounds of bodies which happen to be joint boards, or the gathering grounds of a water company's joint property. This is a matter of public health, and therefore the local authorities generally throughout the country are vitally interested in it. The object of the Amendment, therefore, is to prevent a public right of way from being acquired under the Bill by user over the land of the water authority, and this relates chiefly to the gathering grounds surrounding a reservoir.
§ The local authorities and water companies have been compelled to go far afield for their water supplies. The Corporation of Birmingham have their waterworks in the mountains of Wales, Liverpool also obtains its water supply from Wales, Manchester from the Lakes, and Leeds and Harrogate from the Yorkshire moors. Many other local authorities and water companies have their gathering grounds in remote places. They not only require land for the reservoirs, but in order to purify the water they require to purchase large tracts of land so that they can not only get the water supply but, as far as possible, obtain it in a pure state. So far as may be consistent with the interests of public health the general public are permitted a reasonable amount of access to these gathering grounds. It is greatly feared, however, that if in these and similar cases the operation of the Bill were not excluded, the public might obtain a right of way across these gathering grounds, and might use that right to such an extent as seriously to menace the purity of the water supply. If a footway across the gathering ground became under the Bill a public highway, it may be said it would be no particular danger to persons actually using the footpath, but the danger would be there. The existence of a public footpath would probably encourage picnic parties, and the risk of pollution arising from parties picnicking is very serious.
§ I know that in many cases there are public roads across the gathering grounds of the water authorities I also know that those public roads are a source of grave anxiety to the medical officers of health of those authorities; and the water 31 authority itself is put to great expense in maintaining and protecting the water from any impurity. In recent years, acting on medical advice, water companies are taking greater care to preserve their gathering grounds from public trespass, and in certain cases no land in the vicinity of a reservoir is being let for grazing purposes. It is therefore important that water undertakers should be protected under the Bill. Happily there are not many instances in this country where the public water supply of a town has been polluted, but, in instances where the water has been polluted and an epidemic has ensued, the epidemic has been of a grave character giving rise to claims for compensation against the water authority.
§ It may be said that subsection (7) gives certain protection to a statutory body or corporation from dedicating a way across their land which is incompatible with the purpose for which it is used. That, in the opinion of the advisers of the Association of Municipal Corporations, affords no adequate protection. The Association of Municipal Corporations are interested in this matter from a twofold point of view: first, as water authorities; and secondly, as guardians of public health. There is no authority, so far as I know, for the definite statement that a corporation in possession of land for its water supply would be incapable of dedicating a way over such land on the ground that it would be incompatible with the purpose for which it is held. In any case it has been laid down by the Courts that whether the use of the land is or is not incompatible with the purposes for which it is held is a question of fact. The municipal corporations have been advised that subsection (7) affords no adequate protection. It would only give a probable protection, which could only be ascertained after long and costly litigation. On these two grounds, the necessity of protecting the purity of water and the interest of public health and because subsection (7) gives no adequate protection, I propose to move this Amendment.
§ LORD MOUNT TEMPLE
I am informed that this Amendment is quite unnecessary as subsection (7) was framed by Lord Alverstone, Lord Chief Justice, in 1913 to prevent these water companies dedicating these rights of way. 32 I submit that it adequately protects the authorities concerned and that such an Amendment is quite unnecessary.
§ LORD STRACHIE
I do not propose to oppose the Amendment, but I regret that my noble friend Lord Buckmaster wants to leave out the whole subsection. It seems to me that some protection of local authority is needed in this matter and I should propose to add at the end of Lord Amulree's Amendment an Amendment in the following terms: "or to any joint board or joint committee duly constituted in pursuance of any Act of Parliament upon which such councils or any of them are represented." My object is to protect the county councils in this matter because it would be very undesirable indeed that, where a county council has a lunatic asylum with a large tract of land of many hundreds of acres worked as a farm by lunatics who are sane enough, the public should acquire a right of way over that farm. I hope that the noble Lord will accept my Amendment.
THE LORD CHAIRMAN
Does the noble Lord propose to move his Amendment as an Amendment to Lord Amulree's Amendment to come in at the end after the word "undertaking"?
THE DUKE OF BUCCLEUCH
I hope that the noble Lord will not accept these Amendments because, if he accepts either, he might as well scrap the Bill. There are these large areas but, in spite of what Lord Amulree says, if people walk across them it does not cause pollution. If it does, those of us who live in these areas must be in a bad way. I have had experience of these districts and I have never heard that it caused pollution. If these Amendments are accepted, the whole Bill will be destroyed and I hope that my noble friend will not accept them.
§ LORD BUCKMASTER
I find myself in this difficulty over these Amendments, the difficulty of the lady who went to hear a Highland preacher and, on being asked what she thought of him, said that the whole trumpets of wrath were all blowing together. I have to deal with all these Amendments together. The first Amendment is plain. It says that there shall be an exception to this Bill in favour of local authorities. I have not heard a single word to suggest any reason 33 why there should be. When you remember that this Bill expressly provides that they should be at liberty to hinder the acquisition of a right of way by putting up a board and that the public authority can do so at the public expense, I cannot see why there should be an exception in their favour. That is my reply to the proposal to leave out the subsection.
As to the water boards and water companies, I am in a state of bewilderment. They sent me the Amendments. I looked at them and I said I could not undertake them. They seem to have sent to Lord Amulree, who undertook them, a long discourse about their water rights. What have they got to do with the Bill? Let me point out one fact of enormous importance in connection with a highway. The exercise of permission to wander from place to place never can prove a highway. It is the whole point and essence of a highway that it must run in a track from a spot to a spot. If you can wander and prove your right to wander, you have instantly destroyed your right to the highway. The noble Lord, Lord Amulree, suggested that you could acquire highways by wandering with polluted boots over the whole watershed of the places whence these worthy local authorities derive their water supply. If you wander for ever it cannot be so, and to introduce this exception in the clause, which suggests that it can be so, is a most mischievous thing to do.
The same argument applies to the Amendment of my noble friend Lord Strachie. If there be people who are in the habit of wandering across a lunatic asylum when the lunatics are at large and if they did it long enough, after forty years you might assume dedication. But these bodies would be in the same position as a person who had a private lunatic asylum and a public asylum can put up notices like any one else. This attempt to make these exceptions in favour of local authorities and local boards who manage our affairs has, so far as I know, no precedent in law and no foundation in justice.
§ LORD AMULREE
I would like to correct one or two of the misstatements of the noble Lord, Lord Buckmaster. He suggested that I said that a person might acquire a right by wandering over land. I said nothing of the kind. I said that, if people wandered over the water way, 34 there was a danger to public health, and I repeat it. With regard to the statement of the noble Lord, Lord Mount Temple, that subsection (7) gives adequate protection, I endeavoured to point out that it gives no adequate protection whatever. Further, whether it was protection or not, it has been laid down by the Courts, and is clearly decided law, that whether a particular dedication of way was incompatible was a question of fact, and that fact could only be determined by a jury in a Court of Law. That means in all these cases you must have litigation. I suggest to your Lordships that we should allow this proposal to stand; it will do no harm. If local water authorities are protected under subsection (7), then subsection (8) will not affect the matter. It will make them secure. Municipal corporations have been advised by responsible lawyers that they would need this protection. I submit in those circumstances the new subsection ought to be accepted.
§ Amendment moved—
Page 2, line 40, insert:
("(8) This section shall not apply to any land for the time being belonging to any local authority, joint board, company, body or person authorised to supply water by any Act of Parliament or Order having the force of an Act of Parliament and held by them for the purposes of their water undertaking.")—(Lord Amulree.)
§ On Question, Amendment negatived.
§ Clause 1, as amended, agreed to.
§ Clause 2
§ (2) Where a way has become a highway under this Act the owner of the land over which the way passes shall not be subject to any liability for the maintenance or repair of such way, or in respect of anything arising from neglect to maintain or repair the same, which he would not have been subject to if this Act had not been passed.
§ (3) Nothing in this Act shall be construed as having the effect of imposing on the council of any county, county borough, or district, or any other highway authority, any liability for the repair of any road which they would not have been liable to repair if this Act had not been passed.
§ LORD BUCKMASTER moved to leave out subsections (2) and (3). The noble and learned Lord said: The explanation is this. Somebody has thought of doing something in this Bill to guard local authorities against the liability for main- 35 tenance of a highway. I cannot understand why anybody should think that the mere establishment of a way as a highway put the local authority under any liability to maintain it. If you think so, it is absurd. Supposing a man chooses to dedicate a pathway across a swamp and dedicates it to the public, as he is at liberty to do: there is no liability on the local authority to repair it, or to drain the swamp, or put down metal. They confuse two things here. They confuse the liability of the local authority to maintain and keep in repair roads they have taken over and a highway which they have not taken over. I can see no reason whatever for subsections (2) and (3) being put in, because nothing in this Bill would have created any such liability. It certainly does not expressly do it, and it could not by any possibility create it by implication. If you think for a moment it is fantastic to suggest that when you have merely limited a period of time during which tradition is to operate the result of that is to create a liability to repair. These two subsections, I submit, are quite senseless and ought to be left out.
Page 3, line 11, leave out subsections (2) and (3).—(Lord Buckmaster.)
§ LORD MOUNT TEMPLE
I am in entire sympathy with the noble and learned Lord as to subsection (3). I can quite appreciate that you are not placing any liability on the council of any county, county borough or district, or other highway authority, for the repair of any road which they would not be liable for if this Bill were not passed. But in regard to subsection (2), am I right in assuming that at present, if a right of way is established over some one's land, that the landowner thereafter becomes liable for the repair of that right of way, even though it is done against his wishes?
§ LORD BUCKMASTER
I am wholly unaware of such a law. I would point out that, whatever the law may be, it is not affected by this Bill.
§ LORD MOUNT TEMPLE
I think it is. I have had an experience myself. Let us assume that a right of way is created either by dedication or by negligence, or by anything else, then the owner of the land has a liability not only to maintain the pathway but to maintain any bridges there may be where the right of way has 36 been asserted. Personally I have always thought that extremely unfair on the landowner. It may well be that the right of way has been established, but if a right of way is established it has always seemed to me that the people who use that right of way should be the people, through their local council, to keep that right of way in repair, and not the unfortunate landowner who, through his negligence or other cause, has had a right of way made over his land. What I wanted from the noble and learned Lord was some guidance if he would give it to me. As this Bill makes it easier for the public to establish rights of way, will the rights of way which will be established in future be maintained by the landowner or by someone else?
§ THE MARQUESS OF SALISBURY
Perhaps the noble and learned Lord will allow me to elucidate this point. I know of a case where there was a right of way, and the right of way became a track, and even something in the nature of a road, but it got into great disrepair, and the local authority wrote to the landowner and said in effect "You will either repair this track or we shall go over your land. We will tell the public to go over your land on the other side of the track, because they have a right of passage, and, therefore, if you cannot keep the roadway in good repair they have a right to go anywhere else they like in order to get through." I admit that the landowner resisted that contention, but there did not appear to be any means of ascertaining what the law upon this subject really was. I confess there certainly does appear to be some doubt whether, once a right is established, the landowner may not be compelled to keep it in good order, otherwise carts and other things may go through his fields.
§ LORD BUCKMASTER
The noble Marquess has propounded an interesting legal conundrum. I think the local authority or the lawyer was right. There is no obligation on the landlord to maintain the road that crosses his land that has been dedicated to the public, but if there is a way dedicated to the public across his land and the public cannot go that way they can go to either side of it. That is as old as William the Conqueror. This Bill does not apply to that at all. This clause is to suggest that the acquisition of a highway is to create no liability. I 37 would point out to the noble Lords who are interested in large estates it is a most undesirable clause in their interests, because it suggests that an ordinary highway, when it has been dedicated, is a highway which the landlord is liable to repair, and proposes that this highway, established by this evidence, shall not be so liable to repair, and that, therefore, the general highway is. In the interests of those who have vast estates—it does not interest me—I would suggest that what I am proposing to do is to help them and not to hinder them, and that these subsections ought to be left out.
§ Clause 2, as amended, agreed to.
§ LORD AMULREE moved, after Clause 2, to insert:—
§ Provision as to evidence.
§ "3. Any court or other tribunal shall, before determining (a) whether a way upon or over any land has or has not been dedicated as a highway, or (b) the date upon which such dedication, if any, took place, take into consideration any map, plan or history of the locality or other relevant document that is tendered in evidence, and such weight shall be given thereto as the court or tribunal consider justified by the circumstances, including the antiquity of the tendered document, the status of the person or persons by whom it was made or compiled, its purpose, and the custody in which it has been kept and from which it is produced."
§ The noble Lord said: The Amendment which I propose is the reinsertion in the Bill of subsection (6) which was taken out of Clause 1. I propose that it should be reinserted in the Bill as a separate clause.
After Clause 2 insert the said new clause. —(Lord Amulree.)
§ Clause 3 agreed to.
§ Clause 4:
§ Extent of Act.
§ 4. This Act shall not apply to Scotland.
§ LORD BUCKMASTER moved to insert at the end of the clause "or Northern Ireland." The noble and learned Lord said: This Amendment is simply to add Northern Ireland, which ought to have been in before.
Page 3, line 37, at end insert ("or Northern Ireland").—(Lord Buckmaster.)
§ Clause 4, as amended, agreed to.38
§ Clause 5:
§ Commencement of Act.
§ 5. This Act shall come into operation on the first day of January, nineteen hundred and thirty-three.
§ LORD BUCKMASTER moved to leave out "nineteen hundred and thirty-three" and insert "nineteen hundred and thirty-four." The noble and learned Lord said: The reason for this Amendment has already been given. I beg to move.
Page 3, line 39, leave out ("nineteen hundred and thirty-three") and insert ("nineteen hundred and thirty-four").(Lord Buckmaster.)
§ Clause 5, as amended, agreed to.
§ Remaining clause agreed to.