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is, that down to the year 1865, the portion of the Square where these
railings are was a part of the highway; that is to say, that the putting
up of the railings there was a wrong which the public and the Vestry,
as representing the inhabitants, would have a right to prevent. But
the Vice-Chancellor decided—and it has been contended—that the
right of the Vestry has been lost by what has since taken place.
Now I do not here think it necessary to go into the question as to
how far the Vestry could by acquiescence have bound themselves not
to act as they are acting, or how far they might have prejudiced themselves,
if what they acquiesced in had been continued ; but if there was
any acquiescence—(I can hardly see that there was)—it was an acquiescence
in a proposal and plan of those whom the Plaintiffs now
represent—if they were not the same persons—to put these iron railings
up for the purpose of making within it an ornamental garden. And so
long as that state 01 things continued, and was not proposed to be
interferred with, the Defendants did no act inconsistent with what is
called their acquiescence.
But now, shortly before this action was commenced, the Plaintiffs
proposed to give a building lease to a Gentleman who was proposing
to build on part of this which was public highway down to the year
1865. The state of things was altered. If they had acquiesced they
acquiesced in a state of things entirely different from that which the
Plaintiffs were asserting their right to introduce; and, that being so,
acquiescence was gone, and their right at the time of the commencement
of this action must be as it was in the year 1865. They say this
is part of the public highway, as in the opinion of the Vice-Chancellor
(and in our opinion) it was. This is an obstruction, and they claim a
right to remove that obstruction, and in my opinion, as the Vestry are
right in that as it is an obstruction to the highway—the Plaintiffs, the
owners of the property, can not call upon this Court to interfere and
restrain the Vestry from exercising their legal right. Whether the
Vestry, who, of course, have only the good of the parish in view, will,
when their rights are declared, proceed in execution of those rights, to
pull down the railings, is an entirely different question, but one on
which this Court can now give no direction whatever. The Vestry in
what they do, having ascertained their legal rights, must, as I have no
doubt they will, be guided by what they think is for the benefit of the
public and of the parish in which they are placed.
Mr. Pearson.—In the costs will be included the costs of the Motion
for an injunction which there was and which were included in the costs.
Mr. Glasse.—They are costs in the cause, as a matter of course.
Lord Justice James.—We never include anything. We never
give any special direction as to that. You will have your costs below
and here.
Mr. Pearson.—I am not quite sure. It depends upon whether the
motion was reserved for the hearing. I mean that your Lordship means
to give them if necessary. We were ordered to pay them in the Court
below. That is the reason that I ask for them here.
Lord Justice James.—You will have your costs. They will, of
course, include any costs of the injunction.
Mr. Pearson.—Then, my Lord, I do not know whether your Lordship
will give me the costs of the shorthands writer's notes.
Lord Justice James.—That we never do; it requires a very
strong case.
Mr. Glasse.—A very strong case.