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again argued before the same Judges with the addition of Mr. Justice
Denman and that judgment had been reserved.
Judgment was given on May 18th, 1889, wThen it appeared that
the Lord Chief Justice Mas still against the contention of the
Vestry, but the other two Judges being agreed in its favour judgment
was given accordingly. As this decision settles for the present
what has long been a disputed point of building law, and forms therefore
au interesting precedent, the very lucid judgment of r. Justice
Hawkins is here given at length:—
The facts of this case are simple enough. The Respondent was the lessee under
the late Metropolitan Board of Works of some plots of building land abutting on to
the east side of Upper Street, Islington, which is a street of greater width than
30 feet, and which, having been widened and improved by the Metropolitan Board of
"Works under the powers vested in that body by the Metropolitan Streets Improvements
Act, was, on the 21st January, 1888, both as regards the roadway and
pavements, thrown open to the public, and handed over to the Appellants, the
Vestry of St. Mary, Islington, for the purposes of control.
Upon these plots of land the Respondent, after the street was so thrown open,
constructed certain buildings intended for houses or shops, the plans of which,
though submitted to and approved by the Metropolitan Boai'd of Works in its
character as Lessor, received no approval from the Board acting in its official capacity.
Against the fronts of these buildings the Respondent erected stone pilasters
forming parts of shop fronts, the bases of which rest and encroach upon and into the
public footway each to the extent of 6 inches, and to the extent of 18 inches in
width along the street, rendering the footway inconvenient and incommodious to
passengers passing along it.
Under Section 72 of 37 George III., Chapter 29, the General Paving (Metropolis)
Act, 1817 (commonly called Michael Angelo Taylor's Act), the Appellants required
the Respondent to remove the said pilasters, and, in default of his complying with
such request, they instituted proceedings before Mr. Barstow, one of the police magistrates
of the Metropolis, to enforce the penalties imposed by the last-mentioned Act
in respect of such default.
Before the magistrate the Respondent contended that he was justified in making
the encroachments complained of under Section 26 of the Metropolitan Building Act,
1855, aud the learned magistrate held that he was so justified, notwithstanding the
fact that they encroached upon, and interfered with, the public footway.
The question raised by this case is whether that decision was right in point of law
Snch being the only question reserved for our opinion, and being of opinion tint
the magistrate was wrong, I will proceed to state my reasons for coming to that
conclusion.
Prima facie, a public footway as the footway encroached upon was by the case
found to be, cannot legally be interfered with by any person to the prejudice of th