High Peak News
16 March 1889
the whaley bridge right of way case
london & north-western railway company v. morten
trial and verdict
At the Derby Spring Assizes, on Thursday, the case of The London and North-Western Railway Company v. Mr Adam Morten was heard before Mr Justice Stephen and a special jury. The action had been entered in the High Court of Justice and had been returned for trial at this Court. Mr J.C. Lawrence, Q.C., M.P., and Mr Graham, Q.C., instructed by Messrs Bennett, Boycott, and Orme of Chapel-en-le-Frith and Buxton, were for the defendant, and Mr Dugdale, with Mr Sharman, acted for the plaintiffs.
statement of claim
The statement of claim was set forth as follows:
(1) The plaintiffs were on the 7th day of January, 1889, and still are the owners and in possession of the land and lines of the railway known as the Cromford and High Peak Railway, in the County of Derby.
(2) There is a level crossing leading over the said railway and land to the premises in the occupation of the Goyt Mill Co. (hereinafter called the first level crossing), and there is another level crossing leading over the said railway and land to the premises in the occupation of the Buxton Lime Co. (hereinafter called the second level crossing).
(3) Upon various occasions prior to the 7th day of January 1888, the defendant had wrongfully entered and passed over the said land and railway to the plaintiffs’ between the first and second level crossings.
(4) On the 7th day of January 1888, the defendant wrongfully entered and passed over the plaintiff’s said land between the first and second level crossings, and the plaintiffs thereupon, by their servant and agent, warned the defendant against continuing the said wrongful act, but the defendant, notwithstanding such warning, repeated the said wrongful act upon the same day, and threatens and intends to continue to enter and pass over the plaintiffs’ said land in the manner aforesaid.
The plaintiffs claim:
(1) Damages for the wrongful acts complained of.
(2) An injunction restraining the defendant, his servants and agents from a continuance and repetition of the said wrongful act.
(1) The plaintiffs say that they join issue with the defendant upon his defence save in so far as the same consists of admissions.
(2) The plaintiffs further say that the land and railway which the defendant wrongfully entered and passed over as alleged in paragraphs (3) and (6) of the statement of claim is land which was acquired by the plaintiffs and their predecessors in title for the general use in purposes of a railway, and for no other purposes, and was at the time of the said trespass and still is used for such purposes and as common and public highway as alleged in the defence or at all can subsist over the said land and railway.
the defence
The defendant says:
(1) That long before and at the time of the alleged trespass there was, and of right ought to be and still is, a common and public highway on and over the land referred to in paragraph 1 of the statement of claim, for all persons to go and return on foot at all times of the year at their free-will and pleasure, and the alleged trespasses were a use by the defendant of the said highway.
Mr Lawrence Q.C., M.P., said the facts were briefly these:
In 1825 a railway was laid from the canal possessed by the Manchester, Sheffield, and Lincolnshire Railway Company to a canal some 30 miles away. Plans were put in showing the crossings and positions of the streets and buildings.
The line was constructed in 1830.
In 1862 that line was leased to the plaintiffs in this case, and in 1877 there was an amalgamation, and the tramway became the property of the London and North-Western Company.
There was a path across the line leading to a number of houses on the west side, and going to a well in a wood. This well was used because it never failed. After describing the path he said no efforts had been taken to put an end to this alleged trespassing. He might say the road had been used for hundreds of years. People had crossed the line, and there was nothing to prevent them. There was no other place to get the water. Latterly an attempt had been made by the plaintiffs to prevent the use of the road, and the defendant was chosen as the representative of the parishioners.
If the railway were being made now the company would have to put in a road in the place of the one in dispute. Since the rich company had taken possession of the line a change had been brought about. They seemed to think they had the right to put up a notice, and stop the path for ever. Some notices were put up, but whatever was intended, they did not have the effect of preventing people from going and using the path. Powerful navvies were got together for the purpose of catching little children in the village that ran on the line. The public was never stopped. He would call before them people who had used the road for very many years. The people of Whaley Bridge still insisted upon using the tramway. He had to succeed in showing this path had been used for years, and the public having a right, did not feel disposed to relinquish it.
Witnesses were then called:
Charles Wesley Johnson, architect and surveyor, Whaley Bridge, said he had made plans of the locality. Starting from the north was the terminus of the Manchester and Lincolnshire Canal. This canal went to Cromford, about 30 miles and was then connected with another waterway. There was a bridge over the river, and ran into the old turnpike road to Manchester and Chapel-en-le-Frith. One branch of this road went to Bugsworth and the other to some printworks. Passing from this path along the tramway there was an incline, one in thirteen. Before arriving at the top of the incline there were two footpaths. People could either cross the line, and get into the street, or turn along the line. He had resided in the district all his life. The Wood well was celebrated for its supply when other sources had failed. The line was open to it. Another crossing was the old coach road to Chapel-en-le-Frith. Towards Cromford the line was crossed by a bridge which was not high enough for a railway engine to get under. Witness had lived there all his life, and could say locomotives had never been used in his day.
Adam Morton said: “I live at Whaley Bridge, and am a manufacturer. I know these crossings. My works are close to the river Goyt. I have lived on the place 18 years the last time. In 1858 I lived there. I have been in the habit of using the crossing over the bridge, and have used the incline for 30 years. I have seen other people use it every day for this period. Until lately I have not been warned from using the railway. I have not heard of anyone else being stopped. On the 7th of January I was stopped by Inspector Gould, who said to me, “You are a traveller upon this line.” I replied “Yes, like other people.” I did not knock him down.”
Cross-examined: “The Inspector did not tell me I had no right to go there. I told him if the Company wanted to summon anyone to summon me, and not poor people. The action was brought against me to try the case of the right of road. My memory goes back to 1861. I did not see notices posted as far as I can recollect. I can remember this particular spot 30 years ago. There are notice boards now, put up recently. I don’t know that they replaced others. I do not recollect when the present Company took to the line. Attempts have been made to stop the line. I don’t know Cooper and Booth, who have been convicted by the Wirksworth Justices.”
John Bonsall said: “I am 74 years of age, and live at Parwich. I have known this place all my life. This line was opened in 1830. I know the country the line passes over, and there was a footpath at the time to Bugsworth, Silkhill, and Byng. I know the Wood well where the water comes from. There is no water fit to eat but that. (Laughter.) As a boy I led a horse backwards and forwards, and the path was used whilst the line was being made. When I got a little bigger I went courting. (Laughter.) The lady lived near Morten’s mill, and I resided some distance away. We used to walk about this road sometimes (Laughter.) This road has always been used, as I have heard my wife’s father talk of it. Pack-horses stayed there all night, hence we get “We-lay,” or Whaley. When the line was opened at first horses dragged the trucks. There are notice boards up now, I think. When I did travel it frequently there were none. There were only 19 houses in Whaley when I was a lad. I have seen within the last fortnight people on the line. Workpeople have used the road, and I have seen great droves of them come up. (Laughter) A child was killed on one occasion. With that exception I have heard of no accident.”
Cross-examined: “There was almost a riot in 1877 when the company wanted to stop the line.”
Mr Sleigh, Whaley Bridge, had lived there about 15 years. In and near Whaley Bridge he had lived all his life. He was 73 years of age. He had traveled on the Wood well Road from his young days. There were no gates or fences at the crossing. Had seen whole droves of people come from the works up the incline.
Cross-examined: “I recollect notice boards being put up about nine years ago”.
Martha Ward, a widow, 78 years of age, said she lived near Whaley Bridge. She was born there, and remembered the place before the railway was made. There was a footpath where the line ran now, which led to the Bings Farm, which was occupied by her grandfather. She often used the road or path. She remembered the railway being opened. The path was not stopped. She did not recollect packhorses at all. As the population increased, the path was more frequented. The road to the Wood well was used largely.
In cross-examination the witness answered one or two questions, and then declined to further answer Mr Dugdale.
Mary Hayes said she was 80 years old in June. She lived near Whaley Bridge. Had resided at Horwich End for 50 years. She remembered the path before the railway was made, and had to use it to go and see her relatives. She always used the path, and had done since the line was constructed. She had fetched water from the Wood well for years. After 1836 she passed on the line.
Cross examined: Never saw horses or carriages on the path. She did not use the turnpike road much, but did so occasionally.
Rebecca Southern said she was 77 years of age. She remembered the line being made. She went to the Wesleyan School, and passed along a footpath which was now occupied by the railway. She had never been stopped. She had been on the line when wagons had passed.
Mr Abel Wain, farmer, 73 years of age, said he had resided at Silkhill Farm 49 years. Going to the Smithy, he should use the line, which was called the old road. He had used the railway 49 years.
Cross-examined: By hearsay he had heard of people being warned.
Mr Jonathan Proctor, blacksmith, 72 years of age, recollected the railway being open. There was a footpath before the line was open. The railway destroyed the path, but people used it as they had done before the line was made. Notice about trespassing had only been put up for 10 or 12 years. He did not know of anyone being stopped. He had worked at the mill for 1sd. 6d. per week. (Laughter) He used the railway to go to work.
George Lomas, farmer, 69 years of age, recollected the line being made. He had worked for the company and nearly all the time was employed between the two crossings. People used to walk up and down it. Anyone who wanted to go did. He had never received instructions to stop people. The officers of the company had been present when persons were on the line, and no orders were given to prevent them using it. He had no book of rules before the London and North-Western Company took the line.
Colonel Hall, Horwich Hall, said he had used the footpath between his house and the works, of which he was a director. He had known the line since 1843, and had used it as a public way to the village. Other people had used it for fetching water. Had never been stopped or interfered with.
Cross-examined: Had not been warned by the company’s servants.
James Shirt, Fairfield, chairman of the Fairfield Local Board, said he was 67 years old. He had lived at Whaley Bridge many years. Had used the path frequently, and drove up and down it on horseback. He had never been stopped. Never saw any notice boards there.
John Kirk, 68 years of age, had lived at Whaley Bridge all his life. He had used the line constantly, and until recently had not heard anything about the dispute to the right of the road.
Cross-examined: He had heard tell of the servants stopping people, but could not remember dates.
William Morten, 68 years of age, had travelled the line all his life, and had not been interfered with.
Charles Bottoms, engineer, Whaley Bridge, deposed that he had travelled for 50 years along the line, and had seen plenty of others.
Cross-examined: No more notice was taken of the notice boards than the force that was used.
Mr George Wild, farmer, had used the road for about fifty years, and had never been stopped.
John Hawley corroborated, and this concluded the case for the defendant.
Mr Dugdale opened the case for the company with out making any comment.
He at once called:
William Barton Worthington, divisional engineer to the London and North Western Railway Company, said this district came under his supervision. He described the gradients, and gave his opinion that it was not safe that the path should be used. It was not safe for persons to pass between the lines when there were waggons on the road.
No questions were asked by Mr Lawrence or Mr Graham.
Peter Gould, Whaley Bridge, permanent way inspector, gave evidence, and said he recollected notice boards being up in 1861. There were boards up previously which looked old, and the words were “Persons trespassing will be prosecuted.” In 1869 cast iron notices were put in their place. In 1875 these were replaced with others. The present boards were put up in 1886-87. In 1869 he remembered warning a man named Turner. He was on this incline at the time. Watchmen were placed along the line now and again. He was made responsible for stopping the path. In October 1878-9, the line was watched again, and stopped for 24 hours. People were turned back. In 1887 another attempt was made during July, but people insisted on going through. On another occasion 150 men were employed in 1887, but hundreds of people forced their way.
His Lordship said he could not see what these stoppages had to do with the case.
Cross-examined: There had only been one prosecution. Children had been turned back when going to school. Still the road was used every day. People were prosecuted in other districts for going on the line.
William Brocklehurst, of Whaley Bridge, had seen notices at crossings.
This concluded the case for the plaintiff.
Mr Dugdale submitted that it had been proved there was danger in allowing the line to be used whilst waggons were passing each other. Therefore in using the line it would be inconsistent for the people to be subject to insecurity.
His Lordship here suggested that he must either reserve his judgment or give it after questions had been put to the jury. The opinion of the jury would have to be taken on the question of usage.
Mr Dugdale: “What are the questions your Lordship consider essential?”
His Lordship intimated that he could not give this information until the counsel had closed their arguments.
Mr Dugdale, assuming points submitted to the jury were decided against him, said he should have to argue the case. It was a serious matter for the railway company.
His Lordship: “Suppose the jury should find that from 1815, or for many, many years the public have had a right of way upon this line? There has been such usage and it can only be stopped by Act of Parliament.”
Mr Dugdale said the case might be taken to a higher court, as it was most important to the railway company.
His Lordship: “You can go as far as you like. I want the jury to determine the amount of usage there was, and the need of it.”
Mr Lawrence submitted three points for consideration of the jury : “Is it a public path which existed before the line was made; if not, have the railway company dedicated a path to the public, and is the user inconsistent with the user of the railway, either as it exists or may be used by Act of Parliament?”
His Lordship: “I think these questions will about satisfy Mr Dugdale.”
Mr Dugdale said some very important questions of law were involved, and to a certain extent the safety of the public. In order to save themselves going 100 yards further, the public contended they could use the tramway, but he hoped the jury would consider their safety, take a broad view of the case, and give a verdict for the company.
Mr Lawrence made a very humorous speech in reply to Mr Dugdale. “Were they going to take away public rights which existed before the railway was made?” He felt he had an unanswerable case, and asked the jury to distinguish between what was proved and what was suggested. If they believed the witnesses it was no use the company attempting to answer the case.
His Lordship addressed the jury at length, and said the most important question they had to consider was the first one submitted by Mr Lawrence, whether there was a public path before the railway was made. He was inclined to think that was the great point in the case. If there was a path when the railway was open then that path existed now. When once a public road was obtained it remained until taken away by special means, and another would have to be substituted. There was a way of deviating a path by application to Quarter Sessions and going through certain formalities. By this means a road could be diverted. In his opinion, believing the witnesses’ statement, there was this path long before the line or tramway was constructed. But the questions could not be limited to that one alone. Speaking as a general rule, if there had been uninterrupted usage of a place for 20 years as matter of right by persons a public way was constituted. For more than 20 years this had been a public road. That was in evidence and had not been refuted. There had been many witnesses of various ages, the youngest being Colonel Hall. They all agreed to the long use of the road. The one witness had spoken about his predecessors having told him the road was used by packhorses. The point about the well was important, as showing the long existence of the road. If the people used the road for a sufficient number of years the railway company had no right to interfere with it. Any amounts of notice boards were posted, but they were not posted until 1860 or 1861. It was not wise for the company to take measures to stop the road where the public had the right to go, or where they commonly thought they had the right to go. To bring more than 100 navvies together and set them to prevent anyone from passing was a curious proceeding. It made the people extremely angry by interfering with what they believed to be their rights. Very unpleasant results had been raised by this course. He did not think such a powerful corporation as the London and North-Western Railway Company would have done such a thing which might have led to a riot.
Mr Dugdale thought further questions than that of the right of road ought to be submitted. He did not think so, but he was agreeable to that course being taken. The other questions did not really require answering if there was a right of way. He would say this was almost unexampled as a right of way dispute. All the evidence had been on one side. Mr Dugdale did not call a single person who came to say that they had visited the place and they did not know that such a footpath existed as had been spoken of. They did not even say there was not an accommodation road for the farmers. The whole evidence was in favour of the right of road. There was none against it. On the other hand the London and North-Western Railway Company had not dedicated the road to the public, and the notice boards showed they had not. Again no one had been summoned for trespassing, which was a very important fact, because the plaintiffs would be doing wrong.
The jury considered their verdict. They did not leave the box, and in a few minutes found, on the questions put to them, that there was a public path before the railway was made.
Mr Lawrence asked for a decision on the third question.
His Lordship directed the jury to consider the point, and, after a few moments, they found that the existence of the road was not inconsistent with the user of the railway as it existed, but they found it might be if the railway was used under the Act to the full extent.
This, of course, constituted a verdict for the defendant.
His lordship reserved judgement until he had considered some legal points.