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consider that letter to be notice of. Immediately before the bringing
of the action they said, "Well, if you think you are right and we are
wrong, we give you notice. File your Bill for an injunction"—never
meaning as I can make out, to do anything really except to have the
right decided. And the right claimed by the Plaintiffs in that case was
the right which was set up in answer to the Interrogatories. The right
which they were setting up when they sent in plans of their buildings
to the Metropolitan Board of Works was the right to have the thing
treated as private property without respect to the rights of the public.
In my opinion it was not private property. It was property subject to
the public right. That was the right that was to be tried and intended
to be tried from the first as between the Parish and the Plaintiffs.
That right was decided against the Plaintiff. That right that was
decided by the first part of the Judgment of the Vice-Chancellor it
seems to me was decided against the Plaintiff. We are obliged to
decide it the same way. But was there anything that precluded the
Vestry, as a Vestry, from restoring the highway? It is said that they
are bound by some act. They have acquiesced in or done something
which made it inequitable in them to remove the railings. Now, whatever
was done, was done absolutely in disregard of notice. It was this,
when the plans were submitted to the Vestry, the Vestry said, "No, we
cannot allow it; because it is an encroachment on the highway, we
cannot allow it. Possibly it may have been thought that if it was
done by a man at his own risk and at his own expense, taking the risk
of having to be dealt with as a nuisance by anybody else, and if it was
seen that it was a great benefit to the persons that they represented,
the Vestry would not interfere with it. And they did not. They never
would have interfered with it if the matter had been left to be an
enclosed garden of an ornamental character very much to the benefit
and advantage of the houses of which the Plaintiffs are proprietors,
which are, as I understand the houses in the Square itself surrounding
this enclosed space—very much for the benefit of everybody.
I really cannot find, with all deference to what the Vice-Chancellor has said,
anything wrong on the part of the Vestry from first to the last. I am bound to
say that they have made very liberal offers here on behalf of the public,
if the thing could be secured, and 1 think myself the result is that the
Action must be dismissed and dismissed with costs, and the costs of
the Appeal. That being the result, 1 should trust and hope that the
Vestry would not think it their duty—and 1 do not think that they
ought to consider it their duty—to restore it to a highway, which it was
before, and as long as they have got the determination of their right
which would probably prevent any future scheme of building, and as
long as it is kept as an ornamental piece of ground—as it is an enclosed
square—they will not proceed to act upon the right which I have
declared to be theirs—that is to say that it is a highway, and that they
were legally justified in removing the obstruction on the highway for
the assertion of the right.
Lord Justice Brett.—It seems to me that the Court and all the
Counsel on both sides have done everything that they could do to save
the Plaintiffs. The Plaintiffs will not be saved. There was a proposition
that the matter should be left in the hands of the Counsel, and that
they should refer to one member of this Court to say what was right to
be done between the parties. That seems to me to have been the only
proper and reasonable way of dealing with this matter; but it is
declined. That is to say that Mr. Glasse was authorized—and he
could go no further than his authority—to seem as if he acceded to that