Collen, Appellant; Ellis, Respondent

• Jurisdiction: Ireland
• Judgment Date: 07 June 1893
• Date: 07 June 1893
• Court: Exchequer Division (Ireland)

Ex. Div.

Before ANDREWS and MURPHY, JJ.

COLLEN,

APPELLANT;

ELLIS,

RESPONDENT

The Queen (Rothschild) v. United Kingdom Electric Telegraph Company 31 L. J. (N. S.) M. C. 166.

The Queen v. Young & White 52 L. J. (N. S.) M. C. 55.

M'Kee v. M'GrathUNK 30 L. R. Ir. 41.

M'Quillon v. Crommellin Iron Ore CompanyDLTR 26 Ir. L. T. R. 15.

Easton v. The Richmond Highway BoardELR L. R. 7 Q. B. 75.

Public highway — Obstruction — 14 & 15 Vict. c. 92. (Summary Jurisdiction), sect. 9 (3); sect. 13 (3) — Barbed wire fence — Question of title — Justices — Jurisdiction.

Vot. XXXII.] Q. B. & EX. DIVISIONS. 491 pastural holding not excluded from the Land Acts, whether now Land ann. or a century hence, or at any future time, the grantee, if bona fide, 1893 in occupation, and if the rent were a full agricultural rent, would ALEXANDER, Grantor ; be entitled forthwith to institute proceedings to have the rent re- MACEY, deemed ; but a lessee holding under a lease made at any time after Grantee. the 22nd August, 1881, would have no such right. Bewley, J. Where the words of a statute, if taken literally, would manifestly be inconsistent with the purpose and policy of the enactment, or would lead to absurdity, a construction may be put on them which will control and modify the generality of the language used. (See cases cited in Maxwell on Statutes, pp. 174, et seq.) Beading the present statute as part of a code conferring special benefits on tenants whose tenancies existed at the date of the passing of the Land Act of 1881, I have no doubt that the fee-farm grant of the 3rd April, 1885, is outside the'operation of the Redemption of Rent Act. Solicitors for J. S. Alexander : H. Wallace si Co. Solicitor for F. C. Macky : R. A. Wilson. D. MSC. M. COLLEN, APPELLANT ; ELLIS, RESPONDENT (1). Ex. Div. Public highway-Obstruction-14 (S 15 Viet. c. 92 (Summary Jurisdiction), 1893. -- sect. 9 (3) ; sect. 13 (3)--Barbed wire fence-Question of title-Justices- June 7. ne 5, 7 Jurisdiction. Along a foothpath on one side of a public road was a grass mound, on the top of which was a quick-set hedge. This mound abutted on the footpath, and sloped up to the said hedge, and the public were in the habit of sitting on and using the portion of the mound sloping from the worn edge of the footÂpath up to and as far as the said hedge. The hedge was out, and the defenÂdant, who was the owner of the land on the other side, without the consent of the county surveyor, or the authority of any presentment, erected on the mound a barbed wire fence, about 2 feet distant from the worn edge of the footÂpath, and extending about 600 yards alongside of it. On a summons brought by the county surveyor, under the provisions of 14 & 15 Viet. c. 92, sect. 9, (1) Before ANDREWS and MURPHY, JJ. LAW REPORTS (IRELAND). [L. R. 1. sub-sect. 3, and sect. 13, sub-sect. 3, evidence was given that by reason of the erection of the barbed wire fence, the public could no longer use the said mound, and that the said fence was calculated to obstruct and endanger the free passage of persons along the highway. On behalf of the defendant eviÂdence was given that the mound was part of his land, and also that it was an ancient fence. The Justices having dismissed the complaint, on the ground that a question of title was involved :- Held (on a case stated), that no question of title was relevant, and that by their determination the Justices had declined jurisdiction ; that the erection of the barbed wire fence was, on the facts proved, an alteration of the fence of the public.road, and an offence within-the meaning of sect. 9, sub-sect. 3; and, semble also that such erection was an obstruction to the free passage of persons on the highway, and an offence within the meaning of sect. 13, sub-sect. 3. All the space between two fences on a highway is part of the highway. CASE STATED by Justices, pursuant to 20 & 21 Viet. c. 43 : At a Petty Sessions, holden in and for the Petty Sessions District of Balbriggan, county of Dublin, on the 27th DecemÂber, 1892, the respondent (Ellis) was charged on summons for that he did obstruct a certain highway, to wit, the road from Balbriggan to Drogheda, at or near Tankardstown, in the said district and county, by erecting thereon a certain barbed wire fence, and altering the fences of said public highway, without the consent of the county surveyor or authority of any presentment, and that the said defendant erected on said highway a barbed wire fence which is dangerous to the public safety. On the application of the solicitor for the complainant (Colien), the said summons was amended so as to read as follows, " that the defenÂdant did unlawfully, wilfully, or by negligence or misbehaviour, prevent and interrupt the free passage of persons on a certain public road or highway, to,.wit, the public road from Balbriggan to Drogheda, at or near Tankardstown in said district, by erecting thereon a certain barbed wire fence," and that he " altered the fence of said public road or highway without the consent of the county surveyor or the authority of any presentment." For the prosecution, the complainant, who is district surveyor for the county of Dublin, and in whose district Tankardstown is situate, was examined, and stated that in the month of October, 1892, the defendant altered the fence at Tankardstown, along the left side of the road leading from Balbriggan, by erecting a XXXII.] Q. B. & EX. DIVISIONS. 493 barbed wire fence along said road. Before the fence was erected .Ex. Div. there was a roadway metalled, 18 feet wide ; on the left side, 1893. going to Drogheda, there was a pathway 5 feet 6 inches wide ; COLLEN Y'. then a low mound, with a very flat slope to the road, and a very ELLIs• vertical slope on the other side. The side of the bank next the field is faced with a dry rubble wall ; between it and the field there is a wide open gripe about 8 feet 6 inches deep ; and on the field side of the mound there is a hedge of quicks, almost continuous. The defendant erected three lines of barbed wire from the main entrance gate, extending about 600 feet in length alongside the road. He had no authority from complainant or any presentment to erect the barbed wire fence. Portion of the grass beside the gravelled footpath is practically level, and is practically a path and part of the pathway proper, and is so used by the public. The mound belonged to the public. The wire fence is calculated to obstruct persons who might walk on the grassy margin, and is dangerous, in certain circumstances, to persons passing along. If a person slipped it would be dangerous. There is danger of ladies' dresses catching in the wire when walking along the grassy margin ; it is also dangerous to children. The erection of the wire fence is an alteration of the existing fence ; and persons cannot sit on the mound since its...