June 3, 1848.

Reg. v. CHORLEY.(a)

Indictment for obstructing public footway-Extinguishment of private

carriage-way by public user-Evidence. Upon an indictment for obstructing a public footway, it appeared that, before

that public footway existed, the defendant's ancestors had been entitled to a carriage-way over the locus in quo; but on the part of the crown it was contended that the public user, inconsistentt with the assertion of the private easement, had determined it. The learned judge told the jury that no interruption by the public for less than twenty years would destroy the private

right. Held, that that proposition, if presented to the jury as a rule of law or a con

clusive presumption of fact, was erroneous, and a misdirection. The period of time is only material as one element from which the grantee's attention to retain or abandon his easement may be inferred; and the sufficiency or insufficiency of the period in any particular case must depend upon all the

accompanying circumstances. The defendant claimed a way for horses and carriages to certain premises

occupied by him, and situated on one side of the lane over which the way was claimed; and as evidence of that right, he produced two old leases of premises situate on the opposite side of the same lane, which leases were granted by persons under whom he claimed and purported to convey with the premises a way to them down the lane for carriage and horses. No

distinct act of user under these leases was proved. Held, that they were admissible in evidence for the purpose of showing that the

persons under whom the defendant claimed, being owners of property on both sides of the lane, had assumed to grant a right of way as owners of the lane, or as owners of the property leased to lease with it a right of way derived from some other source ; but that they were inadmissible as evidence of reputation, or for the purpose of proving the right of way claimed by the

defendant. The court granted a new trial, although the verdict was for the defendant. INDICTMENT for obstructing a public footway by driving 1 carts and horses over and along it.

Plea, Not guilty. Obstructing At the trial, which took place at Taunton, before Platt, B.,

way during the Spring Assizes of 1847, a verdict was found for the -Evidence.

defendant. În the following term, a rule nisi for a new trial was obtained on the ground of misdirection, and the improper reception

(a) Reported by A. BITTLESTON, Esq., Barrister-at-Law.




of evidence; against which, during the sittings after the following . REG. Michaelmas term (Nov. 27, 1847),

CHORLEY. Crowder, Q. C., showed cause.

Kinglake, Serjt., and Fitzherbert, contra.—The following cases Obstructing were cited : Moore v. Rawson (3 B. & C. 332); Lawrence v. Obee public.

o Obee public footway

-Evidence. (3 Camp. 514); R. v. Bliss (7 Ad. & Ell. 550).

Our. adv. vult.

JUDGMENT. LORD DENMAN, C.J.-In the case of Rey. v. Chorley, an indictment for obstructing a public footway by driving carts and horses : Plea, Not guilty ; verdict for the defendant:-A new trial was moved for on two grounds : misdirection of the learned judge, and the improper reception of two ancient leases in evidence. It appeared that the lane in question was so narrow, that when a cart or waggon passed through it there was not room for the foot passengers on both sides, nor indeed could one pass conveniently without apprehension and danger on one side. Some old witnesses spoke to the constant user of it by foot passengers, and to the existence of posts at one end, with a turnstile in the centre of it, which must effectually have prevented its being used by carts. These posts and stile, however, had disappeared for a great many years, how many was left in uncertainty, but some witnesses carried it back for fifty years, and there was uncertain evidence of their renewal at Judgment. a later date. The defendant, however, did not dispute that there was still a public footway, nor did it appear on the evidence that at any time the existence of the user had been discontinued, but the defendant contended that he was entitled to a private carriage way to his premises, which were some way down the lane on one side, and that the public right had been acquired subsequently, and was subservient to his private right. It must be taken, we believe, that the jury did not give credit to the evidence for the crown of the very early public user before the commencement of a private user was shown; for if that had been believed, it is obvious that no private right could have been acquired, which was in derogation of it, except in some mode not pretended in the case before us; and no complaint is made that this part of the evidence was not properly submitted to the jury. But, assuming that the evidence of private user preceded the public, it is complained that the judge misdirected the jury in telling them that nothing short of twenty years user by the public in a way inconsistent with the private user could destroy that right; and we are to consider whether he was warranted in that direction. We must assume that the jury have found the private right once well commenced, and as the public footway was admitted on the part of the defendant, qualified only to the extent of his private right, the question in the cause really was the continuing existence of that private right, or, to put it in other words, whether that right, once well commenced, had been in any way released, abandoned, or destroyed. The mode in which the prosecutor contended that the right must


REG. be taken to have come to an end was, by the public user, and ob

struction, inconsistent, as it was said, with the assertion of the

private easement; and this gave occasion to the ruling which is Obstructing complained of. The learned judge appears to have told the jury public footway. that no interruption by the public for a shorter period than twenty

years would destroy the right. If this were laid down as a rule of law, or even as a conclusive presumption of fact, we think in the former case it was erroneous, and in the latter would be likely to mislead the jury as turning their attention to a definite period of time as the ground for decision, when time might in truth be wholly immaterial, or only in part material. If, on the other hand, the learned judge had done no more than remark, that if a mere ceasing to use the private way, or a mere acquiescence in the interruption by the public were relied on, it would be prudent in them not to rely on such mere cesser, or acquiescence, unless shown for twenty years, we think such a remark could not have been quarrelled with, and certainly would have been no misdirection. We gather, however, from the learned judge's report, that it was so stated to the jury, that they could scarcely fail of understanding it in the former sense, as something by which they were to be definitely bound, and therefore think there ought to be a new trial. The learned judge appears to have proceeded on the ground that,

as twenty years' user in the absence of any express grant would Judgment. have been necessary for the acquisition of the right, so twenty

years cesser of the use in the absence of any express release was necessary for its loss. But we apprehend, that, as an express release of the easement would destroy it at any moment, so the cesser of use, coupled with any act, clearly indicative of an intention to abandon the right, would have the same effect, without any reference to time. For example, this being a right of way to the defendant's malthouse, and the mode of user by driving carts and waggons to an entrance from the lane into the malthouse yard, if the defendant had removed his malthouse, turned the premises to some other use, and walled up the entrance, and then for any considerable period of time acquiesced in the uprestrained use, by the public, we conceive the easement would have been clearly gone. It is not so much the duration of the cesser as the nature of the act done by the grantee of the easement, or of the adverse act acquiesced in by him, and the intention in him which either the one or the other indicates, which are material for the consideration of the jury. The period of time is only material, as one element, from which the grantee's intention to retain or abandon his easement, may be inferred against him; and what period may be insufficient in any particular case must depend on all the accompanying circumstances. This is the principle on which the judgments of all the members of this court proceeded in Moore v. Rawson, and which was adopted in Liggins v. Inge (7 Bing. 682, 692.) It is true that those were cases between two indi. viduals, and not between the public and one individual, but that can make no difference; because, assuming the defendant's


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to have been the prior right, his was the dominant tenement; the lane was the servient tenement; the owner of this last then

CHOKLKY. could not dedicate absolutely to the public so long as it remained subject to the prior right, he could give nothing but what he Obstructing himself had, a right of user, not inconsistent with the defendant's publics easement. The question, therefore, whether the owner has effectually made an absolute dedication to the public, necessarily involves this, has the defendant released the right which he enjoyed ? And in the present case, though time would be very material, yet the nature both of the obstruction at one end by posts, of the user by the public, and the amount of acquiescence by the defendant were also so material, that the attention of the jury should have been pointedly drawn to them. Their conclusion might very possibly have been the same, but, in the uncertainty, we think the present verdict has not been satisfactorily arrived at. It may be right also to express our opinion on the point of evidence, as it may be again presented to the judge on a second trial. The leases received after objection were, the first of the date of 1674, by which one Joseph Whitham purported to grant for ninety-nine years, determinable on three lives, certain premises with a way to them down this lane for carriages and horses; and the second, of 1691, by which one Joseph Whitham purported to grant for a similar term the same parcels with the same way. No enjoyment, or acts of user were proved distinctly referable to Judgment. either lease ; but it seemed agreed that the premises leased were not those occupied by the defendant, but some on the opposite side of the lane; and evidence was given from the court rolls to show that the defendant's premises were formerly the property of the Whithams, and that defendant's title came from them. The inference, then, to be drawn from the deeds was, that those under whom the defendant claimed were the owners of property on both sides of the lane, and that in making a lease of property on one side they had assumed either to exercise an act of ownership over the lane, and to grant a right of way along it to a certain point, or that, as owners of the property leased, they had a right of way to it, derived from some other source, which they leased with it. And, considering the antiquity of the documents, and that no objection was made to the custody from which they came, we think they were admissible for the purposes of drawing these inferences without proof of any distinct act of enjoyment under them. The question, however, will be whether they were admissible to prove the right of way in question. Now they purported to show, either that the Whithams were not grantees of an easement, but lords of the soil, and, as such, grantors of an easement upon it to the occupier of another tenement, and that only for a term, or that, having in themselves the right of way appurtenant to the tenement leased, they had granted that with the tenement to the lessee. In either alternative they did not go to prove the right on which defendant stood during the trial. Nor could they be receivable as evidence of reputation, for, if they proved anything it was the fact of a dis.

theyment, similar to, by whicis lane for three in purporte first or cond

Reg. tinct grant. Therefore, without saying that a state of things might

not arise, nor a purpose be suggested, in and for which, on a second CHORLEY.

trial, these deeds might be receivable, it is enough to say that we Obstructing think they were improperly received for the purpose for which they public footway. were tendered on the last occasion. The rule, therefore, for a new trial will be absolute.

Rule absolute.


January 20.






Assault-Consent of infant.
On an indictment for a common assault, the following verdict was

returned :-"Guilty ; the child being an assenting party, but that, from

her tender years, she did not know what she was about.Held, that the defendant ought to have been acquitted. THE following case was reserved from the Surrey Quarter 1 Sessions for January, 1849 :

CASE. “At the General Quarter Sessions of the peace of our Sovereign Lady the Queen, holden at St. Mary, Newington, in and for the said. county of Surrey, on Tuesday, the second day of January, 1849, George Read, late of the parish of Wimbledon, in the county of Surrey, Ralph Read, late of the same place, and John Barlow, late of the same place, aged respectively thirteen, twelve, and eleven years, were charged in the same indictment with a common assault on Elizabeth Ellen Searle, a girl of nine years of age.

“It was proved at the trial that the four parties went into a hay-loft, when each of the three boys had connection with the girl, and penetration was effected in each case. When the boys first began to take liberties, the girl showed some unwillingness; but eventually she ceased to offer any opposition, and apparently assented.

“The verdict of the jury was guilty, the child being an assenting party, but that from her tender years she did not know what she was about.

“ The question reserved for the opinion of the court is, whether, under the peculiar circumstances of the case, the girl being of

(a) Reported by B. C. ROBINSON, Esq., Barrister-at-Lay.

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