Aberchromby v Town Commissioners of Fermoy

JurisdictionIreland
Judgment Date26 February 1900
Date26 February 1900
Docket Number(1898. No. 566.)
CourtCourt of Appeal (Ireland)

ABERCROMBY
and

TOWN COMMISSIONERS OF FERMOY.
(1898. No. 566.)

Appeal.

Easement — Custom — Dedication — Promenade — Right of inhabitants of district — Right of way on foot.

Angus v. DaltonELR 6 App. Cas. 740.

Campbell v. Lang 1 Macqueen, H. of L. 451.

Clifford v. HoareELR L. R. 9 C. P. 362.

Coverdale v. CharltonELRELR 3 Q. B. D. 376; 4 Q. B. D. 104.

Deeble v. LinehanIR 12 Ir. Com. Law Rep. 1.

Dyce v. Hay 1 MacQueen, 305.

Dyce v. Lady James Hay 1 Macqueen, H. of L. 305.

Fitch v. RawlingENR 2 H. Bl. 393.

Goodman v. Mayor of SaltashELR 7 App. Cas. 633.

Poole v. HuskinsonENR 11 M. & W. 827.

The Giants' Causeway Case Not reported. 14th Jan., 1898

The Queen v. Chorley 12 Q. B. 515.

The Vestry of St. Mary, Newington, Appellant; Jacob, RespondentELR L. R. 7 Q. B. 47.

Vestry of Bermondsey v. BrownENR 35 Beav. 226.

Young v. Cuthbertson I Macqueen, H. of L. 455.

302 THE IRISH REPORTS. [1900. Appeal. ABERCROMBY v. TOWN COMMISSIONERS OF 1900. FERMOY (1). Jan. 25, 26, 29. (1898. No. 566.) Feb. 26. Easement—Custom—Dedication—Promenade—Right of inhabitants of distract —Right of way on foot. In an action brought by an owner in fee for a declaration of title to a strip of land on the bank of the River Blackwater, adjoining the town of Fermoy, called " The Barnane Walk," subject to a right of way on foot possessed by the public over the premises, the evidence adduced regarding the character and user of the premises showed that so long as memory went back it had been devoted to the recreation of the inhabitants of the town, by whom it was used as a promenade : Held, that the Town Commissioners of the town had no right to erect a barrier across the entrance to the walk, and that the owner in fee of the land subject to said right of the inhabitants of Fermoy could not encroach on the walk (a) by granting to his tenants of other lands abutting thereon a right to pass over the walk in carriages, unless such grant were subject to the conÂdition that the use of the inhabitants should not be thereby interfered with, or (b) by converting the walk into a public road to be traversed by all kinds of vehicles. Distinction between the right to use a place as a promenade possessed by the inhabitants of a district, and a right of way over a place on foot possessed by the public. APPEAL from the judgment of the Vice-Chancellor given on the trial of an action to establish the title of the plaintiff to that part of the town of Fermoy called Barnane Walk, subject to a right of way for the public over the same, and for an injunction to compel the defendants to remove certain posts and chains erected and placed upon the said lands by the defendants, and that the defendants be restrained by injunction from erecting, or placing, or maintaining on said lands any posts, chains, or other obstruction or barrier. The statement of claim set out the plaintiff's title to certain lands which included the Barnane Walk, and admitted that the (1) Before Lon]) ASHBOITENE, C., FITZ GIBBON, and HOLMES, L.JJ. said piece of land was subject to an easement of a right of way Appeal. for the public over the same. 1900. It averred that the defendants, the Town Commissioners of ABEliCHOMBY Fermoy, were acting under the Towns Improvement (Ireland) Act, 1854, and that some members of that body without any legal or statutable authority broke and entered on the said piece of land and dug holes on either side thereof, and fixed or planted in said holes, posts, or pillars, and stretched across the said piece of ground chains or bars connected with and fastened to the said posts for the purpose of constituting a barrier across the said piece of land, and had kept the same so erected in order to prevent the plaintiff and his tenants on lands abutting on the said piece of land from using the same in such manner as he or they might desire. The plaintiff also averred that by the direction of the Town Commissioners two strong chains were attached to two posts preÂviously fixed in the said walk, and formed an effeetive barrier against the use by the plaintiff, and his tenants, and persons authorised by him of the said piece of land ; that a Mrs. Hodder, a tenant of the plaintiff, of land abutting on Barnane Walk, in the year 1897, contemplated building villa residences on her land which so abutted on Barnane Walk ; that application on her behalf was made to the defendants to have the said barrier removed on the ground that it was a great inconvenience and serious injury to her property ; that the plaintiff had also requested the defenÂdants to remove the said barrier, but that the defendants had declined to remove the same. The statement of claim also contained a series of averments made for the purpose of fixing upon certain of the Fermoy ComÂmissioners, who were named as special defendants, a liability to pay the costs of the action, and concluded with a prayer for a declaration of title and for an injunction as above-mentioned, and also for an order that the special defendants should pay the costs of the action. The defendants put in a defence putting the plaintiff upon proof of his title as alleged in the statement of claim, and saying " that the right of way therein alleged is a right of footway only, and that the public have not the right to pass over the Barnaue 304 THE IRISH REPORTS. [1900. Appeal. Walk with horses, carriages, carts, or cycles, and that the defenÂ1900. dants, as Commissioners of Fermoy, can take any steps necessary ABERCROMBY in the public interest to protect foot passengers in the exclusive V. FERMOY user of the said walk." O TowNMM The defendants also pleaded the following four defences :- C. (a). The defendants say that before living memory the ComÂmissioners of Fermoy have been in occupation of the ground where the alleged trespass was committed, and more than fifty years ago erected thereon a stone wall over which the public passed into or out of the Barnane Walk by high stone steps ; and the defenÂdants aver that the same became and is vested in and passed to them, but the defendants admit that recently they, as the CommisÂsioners of Fermoy, ordered the removal of the said wall tempoÂrarily in order to convenience Her Majesty's forces stationed in Fermoy, when the commanders of certain regiments applied to them for leave, pending the completion of the defendants' waterÂworks, to take water for men and horses from the river Black--water, which flows by the Barnane Walk ; but defendants say that when the military no longer required such water by reason of the completion of the defendants' waterworks, the defendants ordered the re-erection of a barrier or chain across the said walk, so as to prevent rubbish and nuisance being deposited thereon, and to protect its uninterrupted user by foot passengers only, as hereÂtofore. The said barrier was erected at the place where the wall previously stood across the said walk, which is the trespass complained of. (b). In...

To continue reading

Request your trial
5 cases
  • T W Logistics Ltd v Essex County Council and Another
    • United Kingdom
    • Chancery Division
    • 8 February 2017
    ...on such cases as Massey v Boulden [2003] 1 WLR 1792 and Attorney-General v Southampton Corporation [1970] 21 P&CR 281, and Abercromby v Town Commissioners of Fermoy [1900] 1 IR 302. The gist of this argument ran as follows: Since arguably it would be unlawful, on an already registered town ......
  • R v Oxfordshire County Council, ex parte Sunningwell Parish Council
    • United Kingdom
    • House of Lords
    • 24 June 1999
    ...at the time and would have been unlawful for some centuries thereafter: see Mercer v. Denne [1904] 2 Ch. 538-539, 553. In Abercromby v. Town Commissioners of Fermoy [1900] 1 I.R. 302 the Irish Court of Appeal upheld a custom for the inhabitants of Fermoy to use a strip of land along the ri......
  • Murphy v Wicklow County Council
    • Ireland
    • High Court
    • 13 December 1999
    ...2 WLR 625, 1999 2 AER 257 STATE PROPERTY ACT 1954 S11(2) HALSBURYS LAWS OF ENGLAND 4ED PARA 500 ABERCROMBY V TOWN COMMISSIONERS OF FERMOY 1900 1 IR 302 AG V ANTROBUS 1905 2 CH 188 ELLENBOROUGH PARK, IN RE 1956 CH 131 Synopsis Planning Judicial review; locus standi; environmental impact st......
  • Fortin and Others v Delahunty
    • Ireland
    • High Court
    • 15 January 1999
    ...S2 LOCAL GOVT ACT 1925 S25 HALSBURYS LAWS OF ENGLAND 4ED V14 PARA 45 LOCAL GOVT ACT 1953 S2(3) ABERCROMBY V FERMOY TOWN COMMISSIONERS 1900 1 IR 302 MARSHALL V BLACKPOOL CORP 1935 AC 16 STREET LOCAL GOVT (1955) 186 Judgment of Mr. Justice Quirke delivered on the 15th day of January 1999 1 T......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT