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but to put a condition in it which really made it a simulated submission
to the Court, a submission which would only have postponed this law
suit to a future occasion. Therefore we are driven to decide this matter
according to law. That being so, there cannot be a question that the
whole of this space, except the small round part in the centre, was
dedicated to the public as a highway and accepted by the public as a
highway. The proof of the acceptance of the public was that the
public have used it, and that the surveyors of the highway have taken
it into their hands and acted for the public. It was taken and accepted.
From that moment it became a highway, and there was nobody who
had any authority in any way legally to prevent it from continuing as a
highway. It was a highway, and it is a highway now, according to law.
But then the owners of the property did encroach upon that highway
by making the present square. I think that it is made out that
although they were warned that they were doing it, yet, practically, as
long as they would stand by the stipulations which they themselves had
proposed, namely, that if they were not interrupted in encroaching on
the highway they would make a square and keep it as a square without
building upon it. The Vestry practically acceded to that. That is my
view of it. The Vestry had no right to accede to that, so as to bind
the public, but, nevertheless, they did.
Then it is said that the Vestry have broken away from that
arrangement. It seems to me as clear as possible that the Vestry have
never broken away from that arrangement. It was the Plaintiffs who
broke away from it. The Plaintiffs did publish an intention not to build
themselves, but that is a mere equivocation, but to grant a lease to
people who should build across this square and across that which had
been and was still the highway. They took steps towards carrying out
that intention. It seems to me that they really and practically have
never withdrawn from that intention.
Then what was the Vestry to do? The Vestry must oppose them
in some way on behalf of the public. As I understand the Vice-Chancellor's
judgment, he seems to say that the only way in which they ought to have done it
was by applying for an injunction. It seems to me that there might have been
considerable difficulties in that course. But they had another legal and
proper mode of raising the question, and that was to abate the nuisance.
That was their legal right. There is no equity against their doing it that I
can see ; and, therefore, when it is said that, when they exercised their legal right,
provoked by the Plaintiffs proposing to do that which on their side was utterly
illegal, and because the other side are proposing to do that which, under the
circumstances, is legal and right for them to do, they should be enjoined against
exercising their legal right. I can see no law which can support such a
judgment ; and therefore I agree with my lord that, as we are forced to
give a jndgment, all we can do is to say that there ought to be no
injunction against the Defendants.
Lord Justice Cotton.—Certainly in this case, as, probably, in
many others, it would have been much better for the parties to settle
their differences without calling upon the Court to decide their rights;
but, as all attempts at such settlement have been ineffectual, what the
Court has to do, and the only thing it can do, is to declare the legal
rights of the parties.
Now the question is, " Can the Plaintiff here maintain a decree for
restraining the Defendant from doing what they have asserted their
right to do, that is to say, to take down certain railings in Trafalgar
Square ? The Vice-Chancellor's judgment—and I quite agree with it—