England and Wales Court of Appeal (Civil Division) Decisions

“All streets, being or which at any time become highways repairable by the inhabitants at large within any urban district, and the pavements stones and other materials thereof, and all buildings implements and other things provided for the purposes thereof, shall vest in and be under the control of the urban authority.”

“Any person who without the consent of the urban authority wilfully displaces or takes up or who injures the pavement stones materials fences or posts of or the trees in any such street shall be liable to a penalty not exceeding five pounds, and to a further penalty not exceeding five shillings for every square foot of pavement stones or other materials so displaced taken up or injured; he shall also be liable in the case of any injury to trees to pay to the local authority such amount of compensation as the Court may award.”

“The Minister of Transport (hereinafter referred to as the Minister) and any county council or other highway authority shall have power to cause trees or shrubs to be planted and grass margins to be laid out in any highway maintainable by him or them respectively; and to erect and maintain guards or fences and otherwise to do anything expedient for the maintenance or protection of such trees, shrubs and grass margins.”

“No such tree, shrub, grass margin, guard or fence shall be placed, laid out or allowed to remain in such a situation as to hinder the reasonable use of the highway by any person entitled to the use thereof, or so as to be a nuisance or injurious to the owner or occupier of any land or premises adjacent to the highway.”

“If damage is caused to the property of any person by anything done in exercise of the powers conferred by this section, that person shall, unless the damage was caused or contributed to by his negligence, be entitled to recover compensation therefor from the Minister, county council or other highway authority by whom the powers were exercised.”

“(1) Subject to the provisions of this section, a highway authority may, in a highway maintainable at the public expense by them, plant trees and shrubs and lay out grass verges, and may erect and maintain guards or fences and otherwise do anything expedient for the maintenance or protection of trees, shrubs and grass verges planted or laid out, whether or not by them, in such a highway.”

“(6) No tree, shrub, grass verge, guard or fence shall be planted, laid out or erected under this section, or, if planted, laid out or erected under this section, allowed to remain, in such a situation as to hinder the reasonable use of the highway by any person entitled to use it, or so as to be a nuisance or injurious to the owner or occupier of premises adjacent to the highway.”

“(7) If damage is caused to the property of any person by anything done in exercise of the powers conferred by this section, that person is entitled, subject to subsection (8) below, to recover compensation for it from the authority or parish or community council by whom the powers were exercised.”

“If a person, without lawful authority or excuse..

“property shall be treated for the purposes of this Act as belonging to any person:-

(a) having the custody or control of it;

(b) having in it any proprietary rights or interest.”

“The right of the public is to have the whole width of the road preserved free from obstructions, and is not confined to that part which was used as via trita."

“We can give no other meaning to the words “vest in”, except to say that it gives the property. It has been suggested that this meaning is so wide that it would give to the local board cellars which may be under the street, or houses that may be built over the street; or indeed, mines, however deep lying under the street. But when we have decided that the words “vest in,” mean to give a property in, a further question would be in what does it give the property? That must depend upon the subject to which those words relate, and that is not land, but street; the section does not say that the land “shall vest in,” but that “the street shall vest in.” I think that the case of Brumfitt v. Roberts (1) is a guide in construing the section. The words of the private Act in that case were, that the fee simple of the pew should be vested in the subscribers or proprietors; the Court held that those words did not vest the land over which the pew was. So here, the words of this section vest the property in the street; and the street does not include the houses by the side of the street; it includes the space between the houses which is used as the footway and the roadway. “Street” means more than the surface, it means the whole surface and so much of the depth as is or can be used, not unfairly, for the ordinary purposes of a street. It comprises a depth which enables the urban authority to do that which is done in every street, namely, to raise the street and to lay down sewers; for, at the present day, there can be no street in a town without sewers, and also for the purpose of laying down gas and water- pipes. “Street,” therefore, in my opinion, includes the surface and so much of the depth as may be not unfairly used, as streets are used. It does not include such a depth as would carry with it the right to mines, neither would “street” include any buildings which happen to be built over the land, because that is not a part of the street within the meaning of such an Act as this. If the enactment gives the local board that property in so much of the land, it gives them the absolute property in everything growing on the surface of the land. The legislature have, because the right of owners to the soil in a “street” is of so little value, intentionally taken away that right and have given it to the extent I have mentioned to the local board.” (My underlining).

“ Therefore, on the true construction of this Act of Parliament, the meaning to be given to the words “vest in” must be “passed to and vested in” the local board; it is sufficient in the present case to say that the street and the surface vested in the local board some property in the soil for the purpose for which it was to be used, and in my opinion I must hold that the “street” is a material thing, and that under this clause it vests in the local board.”

“And on account of the reasonableness of such an interpretation I am disposed to hold that this “street” vests without any property in the freehold of the soil. The word “vest” may have two meanings; it may mean that a man acquires the property usque ad coelum and to the centre of the earth, but I do not think that to be the meaning here. One construction of the word “vest” here is that it gives the property in the soil, the freehold, the surface, and all above and below it; but that would be such a monstrous thing to say to be necessary for the proper control of the streets by the local board, that I cannot suppose it to mean such a thing. Suppose the soil of the freehold passes, and consequently it carries the right to the land to an indefinite extent upwards, and to the centre of the earth below the surface: I cannot make up my mind to say that is the meaning of the word “vest” in S.149.”

“But the inconvenience and injustice of holding that the word “vest” would have that effect prevents my putting that construction upon it. What then is the meaning of the word “vest” in this section? The legislature might have used the expression “transferred” or “conveyed,” but they have used the word “vest.” The meaning I should like to put upon it is, that the street vests in the local board qua street; not that any soil or any right to the soil or surface vests, but that it vests qua street. I find some difficulty in giving it a meaning, and I do not know how far it adds to the words, “shall be under the control of.” The meaning I put upon the word “vest” is, the space and the street itself, so far as it is ordinarily used in the way that streets are used, shall vest in the local board. I will refer to a few instances in support of this construction. The streets vest; the pavement, the stones, and other materials vest; all buildings vest which would seem to mean railways, and building implements which are chattels, and other things “vest” in the local authority. This Act also provides that the urban authority shall cause all streets to be levelled, paved, metalled, flagged, channelled, altered and repaired as occasion may require; they may cause the soil of any such street to be raised, lowered or altered as they may think fit, and may place and keep in repair fences and posts for the safety of foot passengers; any person who without the consent of the urban authority wilfully displaces, or takes up, or injures the pavement stones, materials, fences or posts, or the trees of such street shall be liable to a penalty not exceeding 5L, and to a further penalty not exceeding 5s, for any square foot of pavement stones or other material so displaced and injured; he shall also be liable in case of injury to the trees to pay to the local authority such amount of compensation as the Court may award. Does that mean that the local board have a property in the tree and in the soil. I doubt very much whether that ought to be the construction put upon that enactment, but if it is, it goes a long way to show that the local board had such a property as they claim in this herbage. Even if it does not, if it will not apply to the tree which although surrounded by the street could be said in one sense to be no part of it, for the public had no right to pass over where the tree stood; and if it does not apply to a tree now in existence, but only to the trees the local board may plant or become otherwise entitled to, why even then it would show that they must have some property in the soil and its produce; that would assist the contention in favour of the plaintiff.”

“The argument is that these trees, in the circumstances which I have stated and as I find them to be, are part of the “street,” they are things provided for the purposes of the street, the trees are planted and stand as trees in a street, an amenity of the street, possibly, as marking off the footway from the carriageway, a convenience and a protection to the public; and the argument is that under that section they vest in and are under the control of the urban authority. It is pointed out that, if the trees are injured, compensation for the injury is to be paid by the local authority: that would suggest that the property in the trees would be in the local authority. It is pointed out further that a penalty is put upon persons who without the consent of the local authority wilfully displace the trees; that would seem to imply that displacing the trees with the consent or by arrangement with the urban authority would not be an offence, which again fits in with the suggestion that the effect of this section is to place the control and, in some sense or other, the property in the trees in the local authority. In my view that is the effect of the section as regards such trees as those with which I am here dealing. In my view, for all the purposes of exercising the rights of the highway authority, these trees are to be treated as the highway authority’s trees, and if they think it convenient to remove them it is proper that they should remove them. I am not called upon in this action to decide to whom the timber would belong when the trees were removed."