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JUDGMENTS OF THE COURT OF APPEAL,
Consisting of LORD JUSTICE JAMES, LORD JUSTICE BRETT,
and
LORD JUSTICE COTTON,
Referred to in the foregoing Report.
Lincoln's Inn,
January -28th, 1881.
THE VESTRY OF THE HAMLET OF MILE END
OLD TOWN (Defendants) Appellants.
JOHN NICHOLSON, and another (Plaintiffs) Respondents.
Mr. John Pearson, Q.C., Mr. F. W. E. Everitt, and Mr. G. Pitt-Lewis,
for Appellants,
Mr. Glasse, Q.C., Mr. Chester, and Mr. Reid, for Respondents.
Lord Justice James.—(To Counsel of Appellants). I suppose you
do not mean to pull down the rails if you get a decision in your favour
that it is a highway.
Mr. Pearson.—No, my Lord, not if the Garden is kept in a proper
state.
Lord Justice James.—As long as it is kept a Garden ?
Mr. Pearson.—All the Vestrymen said at the trial—and I am sure
I may say as their mouthpiece here—that they desire the thing to be
left, and we desire the thing to be left, and it is only because we are
bound to assert our right to protect the place.
Lord Justice James.—I have done all I posssibly can to induce
the parties to come to some reasonable arrangement. Counsel have
done the same. All those efforts having failed I think that we are
obliged now to determine the matter according to the strict legal rights
of the parties and upon that question of the strict legal rights of the
parties I am bound to say that I am utterly unable to concur with the
Judgment of the Vice-Chancellor. It appears to me that the suit was
altogether occasioned by a most wrongful and unjustifiable intention on
the part of the Plaintiffs to deal with the public highway inconsistently
with the rights of the public, because I agree with the Vice-Chancellor
—and really it has not been contended before us to the contrary—that,
with the exception of the comparatively small space that was enclosed
by the circle, the whole of the space between the houses and the circle
was in fact a public place, a public highway, dedicated to the public,
and over which the public had rights, which it is not competent lor any
authority to give away or to destroy. Well, that being so—that there
was the public highway—the right to the public highway has never been
lost, and in assertion of that right of a highway, the proper representatives
of the public in the district, the Local Board who have now got
the control of the ways, proposed, but not until they were challenged to
it by an act on the part of the Plaintiffs, to assert the right of the public
by taking down so much of the railings as would be necessary for it
was not intended to do more than that—so much of the railings as
would be sufficient to vindicate and to assert their right, giving the
Plaintiffs notice of their intention in order that they might, if they liked,
come into Court for the purpose of trying the right, for that is what I