Smith v Wilson

• Jurisdiction: Ireland
• Judgment Date: 24 February 1902
• Date: 29 June 1903
• Docket Number: (1900. No. 1195.)
• Court: King's Bench Division (Ireland)

[1902] 45

CASES

DETERMINED BY

THE KING'S BENCH DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND ON APPEAL THERE FROM IN

THE COURT OF APPEAL,

AND BY

THE COURT FOR CROWN CASES RESERVED.

1903.

[1903] 2 IR 45

(1900. No. 1195.)

Smith

and

Wilson (1).

K. B. Div.

Way — Public right of way — Obstruction — Right of action — Particular damage — Dedication — Dedication of substituted way — Dedication by limited owner (fee-farm grantee).

Between 1844 and 1850 the sub-lessee for a term of years of certain lands, over which there had been in existence prior to 1805 a public right of way, substituted therefor another way, with a bridge and path. In 1874 the sub-lessee surrendered his interest to his immediate landlord, who held under a fee-farm grant dating from 1857. The fee-farm grantee continued in occupation of the lands for two years, when he re-let them to the defendant. During the two years of his occupation the fee-farm grantee acquiesced in the public user of the substituted way, and at the trial the jury found that he had acquiesced in and adopted the dedication to the public of the right of way as so altered.

There was no evidence of dedication of or acquiescence in the substituted way by the owner in fee.

The plaintiff, a small farmer, had been using said way as a means of access from his farm to the public road leading to the market town, about four miles distant. The defendant obstructed the way by removing the bridge and erecting a fence. The plaintiff was thereby forced to take a longer and more circuitous route when going to the market town, which he required to do about once a-week, and was obliged on some occasions to pay for a car.

On new trial motion in an action for obstruction:—

Held, that it was competent to the grantee in a fee-farm grant to dedicate a public right of way, and that, under the circumstances of the case, the acquiescence of the fee-farm grantee in the act of his former tenant amounted to a dedication to the public of the substituted way, binding upon his interest, and all claiming under him, including the defendant.

Held, further (Kenny, J., dissenting), that the evidence was sufficient to sustain the finding of the jury, that the plaintiff had suffered particular damage beyond that which was common to the public at large, and that the verdict for damages found for the plaintiff by the jury at the trial could not be disturbed.

(1) Before Lord O'Brien, L.C.J, and Gibson, Madden, and Kenny, JJ.

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[1902] Smith v. Wilson 46

New Trial Motion.

The action was tried before Mr. Justice Barton and a special jury at the Belfast Summer Assizes, 1901. It was brought by the plaintiff, a small farmer (and by two others who at an early stage discontinued their claims), to recover damages, £100, for the obstruction of a public footpath leading from his farm to the public highway by removing a bridge and erecting a fence and gate, and rendering the way impassable by foot passengers, the plaintiff alleging that by reason of this obstruction he and his servants were compelled to go by a longer route to his market town, and thereby valuable time and work of the plaintiff and his servants were consumed, and the plaintiff was prevented from employing his servants during such excess of time as he otherwise would have done. There was also a claim in respect of a private way, but as to this the learned Judge at the trial directed against the plaintiff. The defence was substantially a denial of the right of way, and a denial of the obstruction.

At the trial the following questions were submitted to the jury, and answered:—

1. Did the defendant obstruct the plaintiff in the use of the way marked A to E on plaintiff's map?—Yes.

2. Had a public right of way for foot passengers been dedicated by the owners of the soil from the point A to the point E on plaintiff's map, passing along the millrace from A to B, and through the premises marked mill premises from? to G and from G to H (a) prior to 1805?— Yes. (b) Prior to 1812?—Yes. (c) Prior to 1844?—Yes.

3. Was the bridge at B and the way from B to G along the wall of the mill premises substituted by Messrs. Davidson between 1844 and 1850 for the former portion of the public way through the mill premises from B to G?—Yes.

4. Did Mr. Justice Harrison acquiesce in and adopt the dedication of the public right of way so altered from A to E?—Yes.

5. Has the plaintiff suffered any damage beyond that which is common to the public at large?—Yes.

Thereupon the jury found for the plaintiff on the public right

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[1902] Smith v. Wilson 47

of way with one shilling damages (1), and judgment was given for the plaintiff upon this count for one shilling damages and costs; and for the defendant on foot of the claim of a private way.

Counsel for the defendant now moved for an order that the verdict and judgment entered for the plaintiff Jeremiah Smith at the trial of the action be set aside, and judgment entered for the defendant with costs, on the ground that there was no evidence that the defendant was guilty of the wrongful acts complained of, and on the ground that on the evidence there was no person competent to dedicate or grant a public footpath over the lands mentioned in the statement of claim, and on the ground that there was no evidence that the said plaintiff suffered any special damage by reason of the alleged obstruction of the said footpath, and that the learned Judge should have so directed, or that a new trial of the action be ordered on the ground that the verdict of the jury was against evidence and the weight of evidence, and that the trial was unsatisfactory.

The facts were shortly these. The fee-simple of the entire of the lands over which the right of way was claimed was vested in Lord O'Neill, who demised one portion of it to Robert Harrison for lives renewable for ever in the year 1805, and another portion of it to the same lessee for lives renewable for ever in the year 1812. The lease of 1812 had been renewed from time to time and still subsisted; the lease of 1805 had been in 1857 converted into a fee-farm grant. In 1844 Robert Harrison sub-demised to A. and J. Davidson for a term of 40 years the portion of the land held by him under the lease of 1805; and, some time between 1844 and 1850, John Davidson, the tenant in possession under the sub-lease of 1844, built a wall across the then existing public right of way (which the jury found had been in existence prior to 1805), thereby closing it to carts and horses, and substituted for the use of foot passengers a bridge and footpath in lieu thereof. On the 2nd May, 1874, the Davidson sub-lease was surrendered to Mr. Justice Harrison (in whom Robert Harrison's interest had become vested), and he remained in occupation of the land until the 1st May, 1876, when he re-let it to the defendant.

(1) It was stated at the Bar that the plaintiff had consented at the trial to the damage being assessed at a nominal figure.

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[1902] Smith v. Wilson 48

The defendant, shortly before action brought, removed the bridge and built a wall across the path, thereby (as the jury found) obstructing the plaintiff's access from his farm to the public high road. Mr. Justice Harrison during the period of his occupation, 1874–1876, had not interfered with the public user of the bridge and footpath; and (as the jury found) had adopted and acquiesced in the dedication of the substituted way (Le. the bridge and footpath) in the place of the public way in existence prior to 1844–50. The O'Neill estates were in settlement since 1841, so that no presumption could be relied upon as against the owner of the fee-simple of any dedication, binding against him, of a right of way in substitution for the way in existence prior to 1805; and the question for argument hereupon arising was substantially whether the acts of Davidson so acquiesced in by Mr. Justice Harrison (the grantee in the fee-farm grant of 1857) amounted in law to a dedication of the substituted way binding upon his interest and upon the defendant, who claimed under him.

In regard to the 5th finding of the jury—that the plaintiff had by reason of the obstruction suffered damage beyond that which was common to the public at large—the evidence given at the trial upon this point was as follows.

The plaintiff Jeremiah Smith stated:—

“Until the bridge was taken down I was always in the habit of using it, and used it constantly—sometimes twice or once a week. I mostly would be going to Ballymena. It is decidedly the best road from my house to Ballymena: better than the Ballygarvy road. I used it because it was a shorter and better way, and always used it walking till the bridge was broken down. Since that time I had to go round by Broughshane. I had to go half-a-mile or three-quarters of a-mile further round the corner of the Broughshane road. The Ballygarvey road is anything but a good road. I labour on my farm, and the extra bit of road would take me longer from my farm. Undoubtedly, I have had to pay for a seat on a car to go to Ballymena since the bridge was broken. … [Cross-examined:] I did not take a car so often (i.e. to go to Ballymena) before the bridge was taken down. The car runs along the Broughshane road. … [Re-examined:] I have been put to more expense by cars than before the bridge was put down.”

Serjeant Dodd, R. F. Harrison, K. C., and M'Ilroy, for the defendant.

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[1902] Smith v. Wilson 49

Hume, K.C., and Gordon, K.C. (R. F. Todd with them), for the plaintiff.

Cur. adv. vult.

Solicitor for defendant: J. K. Currie.

Solicitors for plaintiff: J. & A. Caruth.

Kenny, J.:—

This application on behalf the defendant to change the verdict into one for him is based on three grounds, which I shall subsequently examine separately. The action was brought by three plaintiffs in the month of January, 1900; but by notice of discontinuance, dated...