England and Wales High Court (Chancery Division) Decisions

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
NORWICH DISTRICT REGISTRY

		Norwich District Registry
		12th January 2004

1. The issue for determination in this case is whether a length of country lane in the Parish of Little Dunham ( near Castle Acre in North West Norfolk) about half a mile in length and known variously as part of Palgrave Rd., Chalk Lane, Double Lane or Piggery Lane is a public highway or a private estate road/accommodation way. The Claimant ,the County Council sues in pursuance of its statutory duty to take proper proceedings to uphold a public highway. The defendant Mr Jeremy Mason is the landowner through whose land the road runs and he has erected gates ( which he has threatened to close) quite deliberately so as to bring this dispute ( which has festered on and off since 1957) to a conclusion. In view of the many names which the road is known by ( and the confusion that some of them cause) I shall refer to it simply as "The Road" .

Geography

2. It will be helpful to start with the following description of the area and the relevant features. The general area is a stretch of country bounded on the south by the A47 Swaffham—Dereham—Norwich road and on the North west by the Swaffham—Fakenham road the A1065. Swaffham is the nearest town of any size and is a little under 3 miles from The Road. The nearest substantial settlement is the well known historic village of Castle Acre which lies about one and a half miles from The Road but on the far side of the A1065. Just west of Castle Acre and actually on the main road itself is the hamlet of Newton. A minor road, the Newton-Sporle road runs a little east of due south for something like 3 miles to the village of Sporle and then on from Sporle to the A47.
3. The Newton-Sporle road (NSR) may be thought of, for our purposes, as the main axis of the local road system. Another minor road runs south east from Castle Acre across the A1065.It then makes an oblique T junction with a road, now ,but not always, private to the west and public to the east which joins Little Palgrave Hall ("the Hall"), the home of Mr Mason and his predecessors, to a cross roads on NSR ("the crossroads"). I will call the section of road from Castle Acre the "Castle Acre spur" and the short section of public road " the Pink Road" for reasons which will become apparent.
4. Eastward from the crossroads runs The Road .The westerly section is straight ( very nearly E-W) passing Mr Mason's substantial turkey sheds on its southern side. There is then a kink where it passes through a double tree plantation and it continues on, not quite straight and now a little to the north of east to a junction ("the junction"). At the junction there is an undoubtedly public road. A short section of it runs north and then bends west. Just after the bend at a spot known as Wells's Green ( a small open area where, according to the evidence, gypsies camped in the past) there is a further junction. As the roads now are ,a green lane takes off NNW to the public road which runs just south of east from Newton to Little Dunham. The actual road runs west for a short space and then becomes another green lane "Ruckold's Lane" ( there are and historically have been minor variants of the name) which runs not quite parallel to the The Road and a few hundred yards to the north of it. It joins the NSR roughly 440 yards north of the cross roads and continues over the far side eventually to join the Castle Acre spur.
5. Returning now to the junction. Eastwards there is a road, undoubtedly a public road and having the physical appearance of being a continuation of The Road which first after about 100 yards passes ( lying to the north) a group of agricultural buildings of various ages—probably, on map and other evidence-- going back to the 18^th century and which once included cottages. This is called Field Barn and belongs to Mr Mason .It then proceeds a little south of east into a road system lying on the north hand side of the village of Little Dunham . Just before it enters Little Dunham it is joined from the north by a further public lane from Great Dunham. This lane is undoubtedly known as Palgrave Road ( and has a street sign to prove it.) According to some of the witnesses the entire stretch including not only this piece of road but also the road from there to the junction and onwards along The Road is all known as "Palgrave Road". It is right to say that this view is not shared by all, it emerged at quite a late stage and came as a surprise to many of those professionally involved.
6. I should mention two further aspects of the geography. (i) About a mile or less south by east of the cross roads is a further cross roads where the Elephant and Castle pub once was (I will call this cross roads "the Elephant").Across the Elephant passes a road which has its origins at the A1065 passes through Great Palgrave and then past the Elephant into the centre of Little Dunham.—the north western end of this route is marked on modern maps as part of the Peddars Way path and is therefore presumably an ancient track (ii) At one time there was a railway line from Swaffham to Dereham ( and presumably onwards to Norwich) which passed between Sporle and the Elephant and then through the northern section of Little Dunham. Evidence of one particular map would suggest construction about 1848. I was told that it fell victim to the Beeching closures, I suppose, some time in the 1960s. It remains a substantial physical feature, being embanked for much of the Little Dunham stretch.

Ownership

7. The relevant lands, the Hall and its appurtenances and the farmlands through which The Road passes have only had two groups of owners at the relevant dates ;

(a) the Dusgate family appear to have owned the Hall and other lands in Little Palgrave from before 1796 ( it was suggested in argument and may well be right that they substantially owned the parish of Little Palgrave) and after some initial argument it became plain on the evidence that as a result of the Little Dunham Inclosure Award of 1796 ("the Award") the then current Dusgate, Abraham, received as his third allotment under the Award a substantial tract of land through which The Road passed—its precise bounds are debatable but do not matter for present purposes. Thereafter the Dusgate family continued to own these lands and others ( whether under settlements or as successive freeholders does not appear) until the death of the last of the Dusgates (Richard) in 1919 and the subsequent sale by his trustees which was completed on 3^rd April 1920. Like many similar families they had suffered a tragic and critical loss when the heir died as a prisoner of war in the First World War.

(b) the purchasers were the Mason family. The original conveyance was to family trustees but in 1928 the estate was conveyed outright to Geoffrey Mason (GM) who was then aged 25. GM was a vigorous and powerful personality ( "a large man in every way" his grandson Mr Mason recalled).He greatly enlarged the family holdings and played a critical part in the history of The Road . He died in the 1970s and his successors, his son and grandson reduced the size of the family holdings but retained all those lands which are of relevance to this case.

The known history of The Road and its neighbours

8. The earliest evidence of the physical arrangements prior to enclosure is contained in a well known commercial map of Norfolk called Faden's Map which was published in 1797 but was the product of surveys carried out in the immediately preceding years ( Faden was a publisher and the work was partly done by a surveyor called Milne who published his own version of the map in 1803.) Faden's map shows the area on the very eve of inclosure. It shows the following relevant features ( which one can therefore reasonably assume physically existed at that date)

(i) Ruckolds Lane ( there called by an obviously related name) along its present route ( I pause to say that it is believed this lane may be very ancient)

(ii) The northern section of NSR is shown. But at what are now the crossroads it comes to the northern edge of the old Sporle Common and no road is delineated south of that point.

(iii) The Pink Road is not shown, but the Castle Acre spur is shown as continuing past the Hall and down to the Elephant where it appears to join and become the southern section of NSR

(iv) Wells's Green is shown together with the green lane to the north of it

(v) Buildings are shown on the approximate site of Fields Barn

(vi) A track is shown following the line of the eastern third or so of The Road. It is shown as entering the common not far short of where the double plantation stands and the northern side of the common follows more or less the configuration of what is now the northern edge of The Road. No track however is shown beyond the edge of the common.

(vii) The road to the east of the Elephant is similar to that which exists today. To the west there are marked differences

(viii) The relevant part of what is now the A1065 exists

9. The enabling Act for the Little Dunham Inclosure was passed in 1794. As was common in such legislation it was provided that the commissioners had power to set out roads and declare that they were public or private. Importantly it made the further provision that ( I paraphrase) the award would completely supersede the existing rights in respect of roads in the affected area, thus any ancient highways not (or to the extent not) set out as highways in the award would simply cease to be. This has the advantage for the present inquiry that although the physical arrangements as shown in Faden in the period just before the award are valuable to the extent of showing what was there and what was not, this inquiry can confidently begin at the Award so far as rights are concerned, it being irrelevant whether a particular road was or was not a highway prior to the Award. The Award is determinative of what roads in the area were highways as of 1796 when the Award was made.
10. In 1796 the Award was duly made. No map survives that accompanied it ( if any ever did which I rather doubt). The roads and allotments were described in considerable detail ,but very much in accordance with current conveyancing practice—e.g. "lying to the west of the lands occupied by AB"—which makes it not always easy to interpret. The combined efforts of the experts have identified most of the roads. At one time the view was taken that The Road was "private road No 1" in the award but I am satisfied ( as is everybody else) that this is not correct and in my judgement it is plain that The Road was not one of the roads allotted. Such of The Road as existed therefore ceased to have any public or private status.
11. The experts have plotted the public roads as they believe them to be ( and as I would accept) on to a modern map. On that basis it is plain that under the award

(i) That part of Ruckolds Lane to the east of the NSR was allotted as public as 6^th Public Rd (PR) ( thus continuing what may well always have been its status) and ran along the north western edge of the Little Dunham parish boundary. Its continuation west of the NSR was outside the parish and the Award.

(ii) The part of the NSR to the north of Sporle Common i.e. north of the crossroads was allotted as public (7^th PR). There is doubt about the status ( or existence) at this date of the part of the NSR south of that point and north of the parish south western boundary.

(iii) The lane to the east of Field Barn was public ( 5^th PR)

12. As I have already briefly said The Road passed entirely through lands awarded to Abraham Dusgate . There was never an inclosure award in respect of the parish of Little Palgrave ( in the immediate area of the crossroads the Parish boundary is NSR).Why this was nobody knows but an educated guess might suggest that the parish mostly belonged to the Dusgates ( there appears from the maps then and now to have been little habitation apart from the Hall ) and they could do what they liked.
13. In 1806 there was a further inclosure award for Sporle Parish. This plainly laid out that portion of NSR within that parish .
14. In 1824 the first Ordnance Survey (OS) map appeared for the area. Throughout its long history the OS has had a reputation of accuracy and excellence,(see generally as to the legal and evidential significance of OS maps Sauvain—cited below—para 2-71 ). It has one major, self-imposed, limitation; it portrays physical features, but it expresses no opinion on public or private rights—though no doubt it is obvious what a blue line labelled "M1" must mean. It shows for the first time clearly the existence of The Road following exactly its present track ( including the kink by the double plantation which it also shows). It also and importantly shows one major change from the days of Faden, which is that southern continuation of the Castle Acre spur beyond the latitude of the Hall has disappeared. Instead it terminates at a point which must be at or near the present entrance to what is now the private road to the Hall and a new road ( the Pink Road—so called because it is coloured pink on a plan prepared by the Council) runs from there almost directly E-W to the crossroads where it meets NSR directly opposite the western end of The Road . The road to the Hall appears to have been public and was only stopped up by an order in 1997.
15. Accordingly it must follow that

(i) in the period of 1794-1824 the public road system to the west of the crossroads was radically altered. Much of it would have been or probably have been on Dusgate land. It seems to me there is a distinct likelihood that somebody took the decision to regard NSR as the main artery in which case the southern end of the Castle Acre spur would have been regarded as a road too many (especially for the parish maintaining it) .I will come back to evaluate all this later. Plainly all the roads concerned must have been public ones and therefore there should have been stopping up orders and formal dedication of the Pink Road ( there was no enclosure award to assist). But there is no evidence of what actually happened despite everyone's best researches.

(ii) In the same period the Dusgates laid out The Road. There is no evidence of dedication. If the Road was purely an estate road for the convenience of the Dusgate lands no formality of any kind would be needed in those pre town and country planning days , the Dusgates had absolute ownership and could do what they liked.

16. These circumstances are of serious importance to the issue as to whether The Road was at its creation intended to be a public road. I will need to come back to it in due course, but the essential question is whether (i) as part of the overall realignment of the public roads in the area—Mr Shaw the Councils' officer makes much of this –the opportunity was taken to create a new public road (The Road) linking the road from the Dunhams to Wells's Green directly to the crossroads so as to integrate the road system or (ii) the Dusgates simply intended to have an estate road from Field Barn to the Hall for agricultural convenience , the most obvious terminus being opposite the Pink Road which led to the drive to the Hall.
17. Two years after the OS map another well known Norfolk Map, Bryant's Map was published .It was not quite so good a piece of work as the OS map, showing as it did The Road ( with double plantation) virtually straight which it almost certainly never was at any time. But of much more significance it shows The Road coloured ( along with many of its neighbours) as a "good cross or driving road". "Driving" in this context means driving cattle, so that physically the map maker considered that it was to a standard ( which would usually include substantial verges for grazing) suitable for the movement of herds of cattle. Ruckold's lane ( which appears on the map as "Rockless Lane") is shown to a lesser standard as a "lane and Bridleway" much as it is today. It is submitted by the Council that this is strong evidence of the public character of The Road at that date. I shall return to an evaluation of this later on.
18. In 1836 the celebrated Highways Act of 1835 came into force. Its practical significance was the abolition of the universal rule that a highway was repairable at public expense. New roads thereafter were dealt with differently. The significance here is that any "pre 1836" Highway would have been repairable at the expense of the parish ( in the case of The Road ,Little Dunham) and remained so until much later local government changes, while any public road dedicated later would not.
19. In 1839 the Tithe Map was prepared for the parish and showed The Road as a physical feature. I will come later to the significance of tithe maps.
20. In the 1840s the railway appears to have been constructed. One matter of possible of possible significance should be noted. Where the railway passes through Little Dunham village a lane called School Lane passes northwards from the Elephant/Little Dunham Road to and under the railway. It was a private road under the Award. But it seems plain from a plan produced in stopping up proceedings in 1848 that it was by then regarded as a public road. Nobody knows how this happened. Research has not yielded anything of value relating to the coming of the railway.
21. Nothing further of significance is recorded or known until the sale by the last of the Dusgates to the Masons in 1919/20. The sale was by auction on 15^th July 1919. It seems to have been leisurely in its journey to completion. On 11^th December Mr Large a Swaffham solicitor who acted for the purchaser delivered his requisitions. The vendor's solicitor replied on the 22^nd .In answer to requisition 30 asking whether the roads and footpaths "abutting on or intersecting" the property had been "taken over on behalf of the public", the vendor replied " we are uncertain, Enquiry should be made of the local authority in each parish." I shall need to come back to this but it may be noted (i) that this was a general inquiry not limited to this road (ii) it was really two inquiries in one i.e. (a) were the roads public and (b) if they were had they been adopted/were the local authority responsible for repair ?
22. A minute of the relevant local authority Mitford & Launditch RDC of 23^rd February 1920 records that Mr Large had written to them on 7^th February in respect of what is plainly The Road "suggesting that the Council take this piece of road over" .In answer to the request the Council resolved that they were not willing to take it over. The purchase was completed on 3^rd April 1920
23. A number of factual matters arise in connexion with this episode some at least of which are probably convenient to determine now while leaving its significance and effect for later. It may just be noted in passing that conveyancing was very different in those days. Today the title ( usually registered) is frequently investigated pre contract and between contract and completion there is little left to do. In earlier times (and as I indeed remember it 40 years ago) although even then pre contract inquiries were usual the real work on the title was done after exchange ( an auction purchase is the equivalent of exchange of contracts) and once the "muniments of title" had been inspected by the purchaser's solicitor that solicitor's duty was to raise by way of requisition all the matters in respect of the title as to which he was not clear or not satisfied.

I find

(a) The inquiry that Mr Large made of the Council is to my mind plainly part of the inquiries made in the course of pre-conveyance requisitions and which the answer to the requisition recommended that he make. The requisition might have been better drafted but I think may have been quite a usual form

(b) The actual form of requisition might suggest on one view that Mr Large accepted that all the roads were public . But if he did make such an assumption it is of little significance without more because he was the purchaser's solicitor making inquiries from a position of initial ignorance

(c) It may be noted ( as a little bit of evidence) that the vendor's solicitor did not immediately say "The Road is private", which had he known that fact he surely would. This is perhaps tempered by the fact that he was acting for trustees and that Richard Dusgate who would have been the man to know, as the occupier of the land, if anyone did, had by then died.

(d) The assumption must be , by the time the letter was written to the Council first that the deeds and any other documents supplied did not show sufficiently the status of the roads and secondly as it seems to me that Mr Large's local authority inquiries had gone as far as they could in respect of all other roads than The Road because his request was limited to The Road.

(e) The form of request is curious. What it most obviously suggests to me is that nothing emerged as the result of the inquiries that showed that this road was publicly repairable. Making ,as Mr Large may have done, the assumption that it was a public road there was therefore nothing to show that it was pre 1836 ( we now know it can be reasonably taken to have been constructed pre 1836) and likewise nothing to show that, if post 1836, it had ever been adopted. The way out of the impasse was to invite the Council to adopt, which they refused to do.

(f) What the council did not do was to reply by saying "you don't need this, this is a pre 1836 Highway."

(g) What Mr Large did not do ( so far as is known) was to make an inquiry in restricted terms as to whether this was a public road. Nobody can say for certain what reply he would have received ( or from whom).

24. In the conveyance of the Dusgate land to the Mason trustees there is a repugnancy between the plan and the parcels. I will say at once that in my judgement it is clear that The Road ( or if it is a highway its subsoil) forms part of the lands conveyed. I will give my reasons later in this judgement.
25. The evidence of the physical state of The Road at this period is limited. There seems however reason to suppose ( not least because of Bryant's map) that it was as it is now a narrow track with broad verges edged by hedges and where appropriate ditched. There is a body of evidence to which I will return that until Geoffrey Mason made The Road up in the late 1930s the track itself was simply a muddy track, whose surface presumably would have reflected the use that was made of it ( hooves and cartwheels).
26. In the 1920s arrangements for the administration of highways began to change.

(a).the RDC appointed two surveyors, Mr Smith for the Eastern District and Mr Debenham for the Western ( which included Little Dunham)

(b) In 1929 County Councils became the Highway Authorities for all highways in succession to RDCs under s 30 of LGA 1929. So here the RDC handed over maintenance responsibility to County ( although actually continuing some maintenance at County's request).

27. In the late summer and autumn of 1929 lists of scheduled and unscheduled roads from the various districts were prepared and sent to County. The Western District surveyor did two separate lists, one of each category, the unscheduled roads for his district being listed on 8^th October 1929. Subsequently a "Handover" plan was prepared. It was supposed to be based on the schedules signed off by the surveyors for the districts,
28. The list of unscheduled roads for the Western district did not contain The Road which if that document was reliable and stood alone would indicate that it was not repairable at public expense. However the Handover map of 1930 did show The Road as maintainable at public expense. Incidentally it showed Ruckold's Lane as, it would look, a bridleway and also excluded the drive to the Hall. There is on the face of it a clear conflict between the list and the map and it is suggested on behalf of Mr Mason that the map be disregarded.
29. It may be remembered that it was in 1928 that Geoffrey Mason came into his inheritance and became the owner of the Hall and the Dusgate lands. Until the 1970s he was very much the man in charge. Mr GE Blowers who gave evidence before me was born in 1928 the son of the man who ran the Elephant and Castle pub but who also worked for GM as a stockman and chargehand. He says he remembers quite a lot of what happened in the mid/late1930s when he would have been 7 to 10 or so and spent, he says, a lot of his spare time with his father. His evidence (which I shall have to evaluate in due course) is to the effect that

(1) some time in the mid 1930s GM decided to make up the road which at that time Mr Blowers recalls as a deep rutted muddy track.

(2) GM decided to use chalk lumps ( he had a chalk pit further up the NSR). He was warned by Mr Blowers senior that this needed to be covered or it would go to mush. He disregarded the advice and to mush it duly went.

(3) So GM tried again. Probably the following year. He surfaced the whole road ( that is the track as opposed to the verges) with hardcore and shingle and had it compacted. From that time onwards the evidence is that The Road has always had some form of hard surface.

(4) At that time ( says Mr Blowers) GM carried on a piggery business at Fields Barn which ran for several years from the late 30s until the middle of World War II. ( for that reason some call The Road "Piggery Lane") Mr Blowers believed that the reason for improving The Road was to make better access to the piggery.

30. .It is Mr Mason 's recollection that his grandfather was supposed to have approached the local authority to see if it would contribute half the cost of making up The Road but they refused . Thereafter GM's attitude is said to have been that as he had made The Road up it was his road. It is from this time onwards that there is a body of evidence that asserts that GM adopted a protective and exclusionary attitude to The Road : that he erected notices and turned people away. This evidence is controversial.
31. Living memories upon which the Council extensively drew probably go back not much further than the 1920s .The Council called a small body of witnesses ( the oldest to give "live" evidence, Mrs Rout, was a vigorous and clear minded lady of 82 or so) and relied on the written evidence of many more. Their evidence comes ( to an extent anyway) into conflict with that of Mr Blowers and Mr Mason's evidence of what he would have heard within his family. In broad outline Mr Blowers and others on behalf of Mr Mason say that the road was a muddy track before the improvements of the late 1930s and there was very little in the way of public use ( it has to be borne in mind says Mr Mason that a lot of the people involved would have worked for his family).Once GM had done the road up it is asserted that he adopted a policy of erecting notices and turning people back ( at least when he was there).The witnesses for the Council speak of public use including vehicles going back into at least the 1920s, they describe the surface in the 1930s in some cases differently to Mr Blowers, though I do not think anybody doubts that GM did, essentially, the work that he did. There is considerable controversy about whether there were notices .In more recent times the Council's witnesses suggest a pattern of regular and possibly fairly heavy use by members of the public. All of these controversies require to be investigated and determined.
32. In 1938 there was an unemployment relief scheme mooted. The idea ( a plan was drawn and survives) being that there should be improvements along the NSR with provision for a visibility splay at the end of The Road. Some play was made with that on the basis that the splay could not have been implemented if The Road was private. But in my judgement this is a very slight indicator because it does not seems as if the plan ever got, quite literally, off the drawing board.
33. After World War II GM tarmacked The Road which has ever since been a "black top" road indistinguishable from other small country roads. Mr Mason believes this was as late as the late 1950s, others are uncertain as to precisely when, one witness Mrs Moulton believes it may have been done in two stages. It is Mr David Mason's ( uncle of Mr Mason) recollection that in 1955/6 GM used tree trunks to block The Road for a period to discourage people from using it.
34. 1957 is an important year. It is the year when for statutory purposes to which I will come the status of the road is " called into question". The Divisional Surveyor Mr Keatley was baffled by the fact that The Road is shown ( presumably by reference to the Handover Map) as a public highway but GM is maintaining it . ( It is possible, but no more than a guess that this may have been prompted by the tarring activities).He made some investigations and interviewed GM. There came a time when he wrote to GM asserting that The Road was public and indicating that the Council intended to carry out "some minor remedial work" on The Road . Nothing was ever done and the most obvious conclusion is that this was a tactical threat. GM's response was that he owned The Road, that any repairs would be very welcome but would not alter its status. On 17^th December Mr Keatley interviewed three senior men from the area ( including a Mr Debenham who may been the Western Division surveyor at the time of Handover) all of whom thought The Road was private. ( I will refer to them as "the old roadmen") In 1958 the investigation ended inconclusively but with grave doubt felt by the County Surveyor as to the status of The Road .
35. There was a further eruption of activity in the mid 1960s. First the Highways Act 1959 had led to the Council preparing a list of highways repairable at public expense and the County Road map prepared accordingly showed The Road to be a publicly maintainable road. Then in 1964 it looks as if GM had been active because there was a complaint to Sporle PC that he was turning away trade vans. This prompted another investigation. This turned up evidence of the 1957 interview with the old road men and the consequent belief that the Council had never done any maintenance to The Road. I pause to say that one thing that on the evidence is almost certainly right is this—there is no official evidence that any maintenance of any kind ( even the most basic) was ever done by the Council or its predecessors.
36. User forms were sent to the Parish Council for completion and returned to the Council. In November 1965 the Clerk to the RDC decided to take no further action.
37. However the issue refused to die. There was further discussion ( by reference to GM's having erected notices some time earlier) . More questionnaires were sent out and returned. In 1973 and 1974 there statements in the PC minutes to the effect that it had been established that The Road was a right of way—the basis is not clear.
38. In 1975 not long before GM died ( he died in 1977) turkey sheds were erected to the south of The Road where indeed they still stand. The controversy rumbled on through the 1970s and in 1978 more evidence forms were sent out, including one completed by Mr Bayfield the former village baker. In 1979 the view was taken that there was insufficient evidence and the Little Dunham PC minutes for 25^th June 1979 recorded the matter as closed.
39. In 1985 the estate passed to Mr Mason. By 1990 he appears to have erected private road signs. As a result correspondence began which was in the event the start of a slow 12 year run up to the present proceedings. In October 2001 Mr Mason erected gates across the road though he did not and has not locked them. The purpose seems to have been two fold

(i) to provoke proceedings to determine the matter once and for all and (ii) to deter turkey thieves, who arrive with vans and remove quantities of turkeys.

40. In 1999 there was a vigorous programme of collecting user forms from long standing inhabitants, led energetically in Sporle by Mrs Palmer,who gave evidence before me, and her sister and brother in law. At length in September of last year these proceedings were issued in which the appropriate declaratory relief was sought.
41. I should just say at this point, it is relevant to the issues that much effort has been put into this case by all concerned so as to present to the court in a clear and comprehensible form all possible matters which could be of assistance and, although I have to be critical of one area affecting the preparation of the evidence the case has been conducted in a sensible and good humoured way appropriate to settling a long standing dispute of local public importance, indeed the parties have agreed that, regardless of result, there should be no order as to costs. I am aware that there have been attempts to settle but I am not surprised that in a dispute of this kind, especially where the options are rather limited, it is has not been possible to do so.

Social Historical background.

42. In his submissions Mr Fetherstonhaugh reminded me on a number of occasions of the importance of remembering the historical context and not to assume that all would always have been as it is in 2003. There was not of course a lot of direct evidence about any of this, but I think it is appropriate for the Court to take a certain amount of judicial notice of the way in which life proceeded in places such as this in the appropriate periods, so long as one can be reasonably sure from historical and literary sources that one's understanding would be accurate. Thus in particular I would have regard to the following;

1. Until well into the 20^th century many of the local population would have worked on the land and quite probably many would have worked for the larger local farmers such as first the Dusgates and later the Masons

2. The motor car before 1914 was, although mass production was just beginning, primarily still a rich man's toy and well through the 1930s and beyond the second World War was , though decreasingly so,a minority possession.

3. For a long period less well off people in the countryside would probably have travelled principally on foot (people were accustomed to walking much longer distances than most people do today) and horseback and wheeled vehicles were for the minority. The bicycle would be likely to be a growing feature of country life from the early 20^th century onwards (by the 1920s at the latest they were being mass-produced).

4. This part of Norfolk, although only a few miles from a market town would have been fairly remote (it seems so even today) .It was off the main roads and I do not get the impression that the railway had much of an impact on local life. Tourists and other visitors would be unlikely ( at least until the inter war years and probably later) to venture any closer than the well known ruins at Castle Acre. One would expect the arrival of a stranger to be an event.

5. A good deal of local "shopping" trade, bread in particular, was probably done by the medium of bakers and the like travelling round in vans. The supermarket would have been unknown.

6. It is actually very difficult to put oneself in the position of the people who would have been using the road even half a century ago. Today ( at least when I visited the site and the neighbouring roads on a November morning ) there was hardly a human being, outside our party, to be seen, and hardly a vehicle either. In the days when more people walked and more people worked on the land (especially pre mechanisation) it may have looked rather different.

7. A point that I floated with Counsel and which seems to me one should at least have in mind is the possibility that in villages where the landowners/large farmers were people who had been there for generations and would have known the inhabitants personally ( and employed many of them) the interrelation between them as to access to property would perhaps not have been on a strictly "trespassers will be prosecuted" basis. On the one hand (one witness's evidence was very definite about this) if a road was marked private you didn't go down there thus you wouldn't (had it been marked private) have gone down the drive to the Hall unless you had business there. But otherwise I would expect there may have been a level of toleration rather different to what happens today when "incomers" buy large properties and put up notices. In the course of preparing this judgement I am comforted to see that I am not alone and indeed supported by High Court authority at a much earlier date. This kind of point occurred to Neville J in 1910 in Trafford v St Faith ...a case which I shall be referring to in detail later on a different point).

The Legal framework

43. Authority for the propositions set out below may be found in Sauvain's Highway Law ( second edn) chapter 2 and the authorities there cited unless a more specific citation is stated).References to paragraph numbers are to Sauvain.
44. A highway is strictly speaking created by the landowner dedicating a way to the use of the public and the public ( or nowadays the Highway authority on their behalf) accepting that dedication. In the formal sense this is done by written instrument or some other clear evidence of the express intention of the landowner but the common law has long admitted of the reality that many roads have been used and accepted as highways for long periods when there is no documentary evidence at all and probably never was.
45. Therefore the common law has long held that (i) dedication may be implied from evidence of user by the public and acquiescence in that user by the landowner (ii) acceptance is invariably to be implied from evidence of public use of the way. (2-21) As to (i) the user by the public has to be " as of right" ( similar to the user required in private rights of way) that is neither forcible nor secret nor permissive. (2-46) "Acquiescence" in this context does not have its familiar equitable meaning ( equity has little to do with this subject) but means rather that the owner knows (or at least is likely to know) and does not object.

Thus the process through which the Court has to go is to balance the extent and quality of user and documentary and map evidence that indicates the public nature of the way against any conduct of the owner for the time being to see whether there has been a consistent and successful attempt to ensure that no public right in fact has arisen.

46. Highways Act (HA) 1980 s 32 gives guidance as to how to use map and other documentary evidence .In doing so the particular questions affecting weight are ( to paraphrase) the antiquity of the document the status of the person who complied it and the custody in which it has been kept and from which it has been produced .( Just as to the last point, very many of the documents I have seen have come from County Archives where they appear to have been kept for many years. The real point here is not the authenticity of the documents as such, rather what, fairly read, they show). It is of course matter of importance in looking at any document to see whether the maker was or was not concerned with status ( as opposed to existence or character) of the way.
47. Detailed legal considerations apply to particular types of map and plan and I will comment on these in the places where they arise ( see generally 2-67 ff.)
48. In cases such as this ( and many others) where the facts surrounding the creation are not clear what the court has to look at is the nature and quality of the public user. In many cases the evidence to establish public acceptance will be in effect the same evidence as that relied on as showing an intention to dedicate .(2-33). A number of specific points to which Sauvain draws attention may be of relevance to this case.

(a) (2-35) Where a way may have begun as an occupation way ( a possibility here) the question arises whether the public user thereafter is sufficient to establish a public right. Thus

(b) where the landowner's actions are consistent with the grant of a mere permission no highway will have been created.

(c) An important warning was given by Neville J ( consistent with the citation from a judgement of his that I gave in paragraph 42.7) in Holloway v Egham 1908 72 JP 433 that there will inevitably be a certain amount of user by persons other than the owner or occupiers of property within the estate e.g. officials and tradesmen.

(d) Proof of actual knowledge of the owner is of great significance to the question of acquiescence. The court may come to the conclusion that the user is such that the owner must have known (2-37).

(e) The degree of user needed will vary with the road. Thus a modest amount of user in a remote rural area may well suffice when it would not have done so in urban surroundings ( 2-38—end)

49. At Common law there is no minimum or specific period of user which gives rise to the presumption. It is all a question of fact and degree. The longer and heavier the user the better the chance of setting up the presumption. To take an extreme case, if all documents relating to the M25 were to perish in some disaster, a day's traffic census would support the presumption heavily enough. However there is an additional and useful statutory formula under HA 1980 s 31(1) which provides ( paraphrased) that after actual enjoyment by the public as of right and without interruption for a full period of 20 years the way is presumptively deemed to have been dedicated unless there is sufficient evidence of no intention to dedicate during that period. (see discussion at 2-39).The relevant period has necessarily to be a period prior to the status of the way being called in question. In this case it is common ground that it was called in question by Mr Keatley's investigations in 1957 and GM's response. If therefore, irrespective of what the pre 1937 evidence suggests or does not suggest there has been 20 years user as of right 1937-57 the presumption arises. Pre 1937 user may still be relevant ( as Mr Shadarevian for the Council submits) as indicative of the likely scope and character of post 1937 use—this is a question of evidence rather than legal principle.
50. The following points are of particular significance in relation to s 31

(a) Enjoyment has not only to be as of right but without interruption ( see discussion at 2-47). Interruption is the actual physical stopping of the enjoyment as opposed to mere challenge.

(b ) Evidence of the intention of the landowner is specifically required to rebut the presumption . To do this effectively evidence is required of acts of the landowner sufficient to show the public at large that he has no intention to dedicate. Ultimately ( para 2-53) it is a question of fact. Such intention does not have to be evidenced through the whole of the 20 year period it is sufficient if it is only for part of it see Ex P Billson 1999QB 374.

(c) 2-53 n also discusses the provision for notices in s. 31. Put shortly a notice erected in such manner as to be visible to persons using the way and maintained thereafter is in the absence of further contrary intention sufficient to rebut the presumption. Where the notice is torn down ( a common occurrence) the owner does not have to put it back up again provided he gives notice to the Council ( not done here on any view of the facts)

51. Recent authorities have established that an easement ( or a highway) cannot be acquired by conduct which at the time of that conduct was prohibited by public statute. The section which is presently s 34 of RTA 1988 ( but which goes back in various forms to RTA 1930 ) prohibits the driving of a motor vehicle without lawful authority on land which is not part of a highway or any other road to which the public has access. See R v Planning Inspectorate ex p Howell ( unrep 15.6.00—CA) and earlier cases there cited. There are as I see it two important questions

(a) (Howell para 20) the point will only arise if I am satisfied that there was no dedication prior to 1930

(b) consideration of the point involves consideration as to whether The Road was at the relevant dates a road to which the public had access. I will consider and develop this issue in the place where it arises.

Expert Evidence.

52. Highway cases, especially those such as this one where the interpretation of ancient material is part of the process, frequently involve the calling of expert evidence. Mr Mason called Mrs Sue Rumfitt who is a known expert in this field. She was, as one would expect, moderate and detached in her views and gave the court considerable assistance. Not all her opinions turned out ( following cross examination) to be quite as soundly based as she had thought, but she made proper and sensible concessions. The Claimant called Mr John Shaw a senior official of its planning and transportation department and who has had the principal official involvement in this case since 1995.Mr Shaw was in a difficult position with which I have some sympathy. He plainly has great knowledge and expertise in this field, he also probably knew more about this case than anyone else. But in truth he was nearer being the "client" than the expert. It would seem ( though I was not told this in terms) that the decision was taken for him to make a witness statement rather than an expert's report with all the required declarations and that decision was probably a wise one. Technically I think I have to regard him as a witness of fact, though in this particular field where what is involved is the identification and presentation of historical material the line between the informed researcher and the expert can often be very thin and in many areas may not greatly matter. Nevertheless he was treated as if he was an expert from the point of view of a joint meeting and an attempt to produce an agreed report and in the event, and very helpfully he and Mrs Rumfitt were able to agree on many matters (or their disagreement was not of critical significance). When at various parts of this judgement I refer to "the experts" I mean Mr Shaw and Mrs Rumfitt, despite Mr Shaw's strict status.
53. However in one respect Mr Shaw's evidence was quite seriously unsatisfactory and, had he truly been an expert witness, would have brought down criticism upon him. Under pressure in cross examination he on many occasions assumed the mantle of the advocate. sometimes ,I thought, refusing to accept the obvious. It meant I could not be confident of the strength of quite a number of his assertions and I must approach at least some areas of his evidence with caution.

The Creation of the Road in both the Physical and Legal sense.

(a) What if anything existed physically immediately prior to Inclosure ?

54. A word about the significance of Inclosure awards is appropriate at this point. Thus

(a) In the case of new roads created by the award it is necessary to see if they were ever laid out and accepted

(b) The omission of a path from the Inclosure Map does not necessarily mean that it did not exist/did not carry public rights.

( see Sauvain 2-68)

The only evidence is (i) Faden's map and whatever inferences one can draw (ii) ( retrospectively) from the Award (iii) from the known physical condition of the area at that date.

55. .Faden shows the various items which I set out in paragraph 8 and in particular the following

(a) a track following so far as one can see the same line as the eastern end of The Road and terminating in the north eastern end of Sporle Common possibly in the area now occupied by the double plantation.

(b) The NSR down to the north side of the Common, but not shown crossing the Common

(c) The Castle Acre spur running right across the Common down to the Elephant.

(d) The Hall without any track connecting to anything and adjacent to what may be a small extension of the common or possibly woodland.

I pause to say that on examination ( I saw it at the site inspection) the Hall is quite plainly a house of the 18^th Century or a little earlier and it is a reasonable inference that it is the building shown as existing in Faden.

56. The Road is not mentioned in the award at all. If it existed physically (beyond the part shown by Faden) at the date of the Award and the intention was that the Dusgates would ( following the Award) adopt it as an accommodation road either already existing or ( if did not then exist) create it as such then the Award would need to show nothing . This would be so because an accommodation road would be over land which the Dusgates owned and no third party rights would be created. So the silence of the Award about The Road proves nothing beyond the acknowledged fact that the Award extinguished all existing third party rights ( public or private) and created no new ones. So far as the Award is concerned The Road may have existed then or may have been created later ( fairly obviously incorporating the eastern section which existed.)
57. The interesting feature of the Award ( upon which Mr Mason focuses) is Public Road 7 (NSR in its northern section) which is described as (i) " being the present road" and (ii) "is the road leading from Newton to Sporle". As a matter of ordinary language one would readily interpret that as meaning that at the date of the award there was a road from Newton to Sporle and that it followed this route. Yet Faden shows a road from Newton existing very close to this time and to the later route of NSR which apparently stops at the common.
58. Reliance is placed by Mrs Rumfitt for Mr Mason on CNT v Gallagher 2002 EWHC 2668 Neuberger J) for the proposition that it would not necessarily have been the draftsman's practice to depict a road or track where it crosses a common. On the evidence before him in that case the judge accepted such a possibility. The case is not authority for any universal view beyond that, as the judge himself made clear and caution must plainly be applied to it. Plainly though it can happen.
59. Mrs Rumfitt had to accept and did that Faden depicted other roads (notably the Castle Acre Spur) which did cross the common though she did point out that there was a possible example in Faden of a road ( at Fransham Parva) which existed but was not depicted crossing the common.
60. Mrs Rumfitt in cross examination expressed a strong view that it was not appropriate to assume the absence of a right of passage between Field Barn and the Hall because nothing was shown on Faden. As Mr Fetherstonhaugh submitted (and I would accept) there is good reason for this existing in some form. The probability is that the Hall was even then the dominant local farm (on the map it is the obvious contender) and Field Barn an obvious contender for a centre of operations out in the fields. It would be logical for there to have been a form of access between the two roughly at least on the line of The Road (the eastern end already existed and otherwise the line of The Road is the most direct route).
61. Mr Shaw in cross examination accepted the existence of the Hall and that there must have been a drive of some sort to it but Faden did not show it . He suggested that this was because it would have benefited the owner of the Hall only. This might be so but there is no basis of any kind for saying (even by inference) that Faden adopted such a methodology ( after all a stranger intending to visit the Hall and buying the map would have benefited by knowing on to which road the entrance ran).
62. It is impossible on this material to reach certainty about anything but some things do seem to me to be the more probable inferences, approaching the matters as I must with a degree of caution. I find that the following are the probabilities

(a) There was some degree of practical access between Fields Barn and the Hall, passing along the eastern end of The Road and thence over the Common. It may or may not have been a laid out road, probably not.

(b) The NSR continued over the common in the direction of Sporle. In particular I say this because (i) I regard the words used in the Award as a strong indication of an existing road along the entire route (ii) it seems improbable that there would have been a road ( largely for the benefit of Newton) running to Sporle common and then stopping , when the common was not Newton's common.

(c) That Faden is not definitively accurate on all points or even always totally consistent( though having said that, he is largely ,though not completely, reliable.)

(b).First definite evidence of the road.

63. I have already set out much of this in paragraphs 14 and 17, but briefly to repeat. Two maps , very close together in date, show The Road as unarguably existing. The first OS map of 1824 shows it to all practical purposes as it exists today ( later and probably better based versions of the OS do not really differ). Bryant's map of 1826 ( probably surveyed at much the same time as the OS) shows what is undoubtedly The Road but less accurately, omitting the "kink" which both on the basis of Faden and the OS is a historical feature and is still there now.
64. The key to Bryant's map shows The Road as a "good cross or driving road". I will return to the legal significance of this later. The obvious physical inference is that what existed at that date is a track with broad verges suitable for driving cattle very similar ( except as to the surface of the actual way) to what is there now. It is to be noted that Ruckolds Lane ( which was a public road under the award and, as I have said, is probably ancient) was depicted as a "lane or bridle way" again much as it is now.
65. At this stage I would find the following

(a) ( on the basis of my earlier finding) the probability is that The Road existed in 1794 in the sense of being an established access and as definable road in its eastern section, but not laid out west of the double plantation.

(b) Some time between 1794 and 1824 The Road was laid out much as it now is ( surface apart) .

(c) Although for much of the proceedings it was in dispute it is common ground ( rightly as I think—I would so find anyway) that the whole of The Road runs over part of the 3^rd Dusgate allotment and (as I have said, whatever the precise boundaries of that allotment may be), the prima facie inference is that it was laid out by the Dusgates over their own land.

(c).The re-alignment of the roads

66. I have set out much of the factual basis of this in paragraphs 14-16.

It is plain both from the OS and Bryant that in this intervening period the road alignment was altered in respect of the Castle Acre spur and the Pink Road. As I understand the Council's case what Mr Shaw seeks to say is that in this period of 30 years (1794-1824) there is a major re-alignment of the public road network ( he describes it as "overall major re-structuring") involving at least the following

(i) the creation of a new road from the north end of the common to Sporle where there had been no public road before (ie the south end of NSR)

(iii) the stopping up of the Castle Acre spur south of the Hall

(iv) the creation of the Pink Road

(v) the construction of The Road on its present alignment .

67. The contrasting view as put forward by Mrs Rumfitt is that The Road was constructed ( whether entirely new or replacing a form of existing access) as an accommodation road by the Dusgates and on their land so as to link their holdings and in particular provide a route from the Hall to Field Barn. She accepts as of course she must that the other re-structuring in fact took place except that as far as (i) above is concerned she takes the view that NSR was always there in some shape or form thought it may have been re-aligned at the Sporle end as a result of the Sporle Inclosure award of 1806. She expresses the view that such re-alignment as did take place took place before the date of the Sporle award ( 1806)
68. Mr Shaw says that he is unable to say when ( but by 1824) the re-alignment took place . However the argument was strongly advanced in submission by Mr Shadarevian that on the basis that no route was shown south of the edge of the Common on Faden and that the Sporle award only referred to a road to be laid out ( as opposed to an existing road) that the realignment must have taken place after 1806 but before 1824 . Mrs Rumfitt points out that the fact that the Sporle award refers to a road to be laid out is not conclusive because there may well have been an existing road ( indeed as I find the probability is that there was) but the route was to be re-sited.
69. I am not convinced that it is crucial to say that either everything happened before the Sporle award or everything happened after it. I think the significance of Mr Shadarevian's point is that if there was no southern end of NSR before the Sporle award then the likelihood is greater that everything was done together. But I am not even sure that is right.
70. .In my judgement the best one can make of this fragmentary material thus far is this.

(a) The probability is that the southern section of NSR existed in 1794 but that it may well have been re-routed following the Sporle award.

(b) If, as I incline to think the opportunity was taken at or about 1806 to re-route the southern section of NSR the most likely reason was to tie it in with the stopping up of the spur and the creation of the Pink Road, the practical point being ( from the point of view of the inhabitants at large of Little Palgrave and Sporle) to reduce the amount of road you needed to get from Sporle to Newton and Castle Acre ( see para 15(i)), or to have to pay for it.

(c) To my mind the whole focus of the re-alignment was likely to be on this particular group of roads.

(d) Mr Shaw argues very strongly but without in my judgement much supporting material for a much wider road re-alignment—at one stage in his cross examination he was talking in very broad terms upon a kind of general expansion of drove roads. It could be true but I see no material to support it, it is simply theory.

(e) I incline to think that there is a danger of being misled through seeing things as they are now. Today if you drive from Great Dunham along the various pieces of road which people sometimes call ( en bloc) Palgrave Road , all now "black top" you have the impression of one continuous and more or less homogenous road from Great Dunham to the cross roads. But this would have looked rather different in 1806-24. Probably none of the roads was surfaced and almost certainly ( for reasons I will come to) The Road was a "soft road" if nothing else was ( in cross examination Mr Shaw accepted that the probability is that it was a churned up cart track).Its condition is likely to have been then no better than Ruckold's Lane would have been then and still is and at certain seasons it might well have been worse. If you were going to Newton or Castle Acre from either of the Dunhams , Ruckold's Lane ( a public way on any view) was there to be used, as probably it always had been. Today you would not use it because it is unsurfaced and The Road is surfaced.

(f) Furthermore there is a danger of looking at the road alignment at the crossroads and regarding the crossroads as crucial to the "overall major re-structuring" argued for by Mr Shaw. One needs to go back a bit. As matters stood following the Little Dunham award the pattern of public roads ( if one accepts the existence of NSR along its whole length) was (i) two roads running very close together from Sporle northwards ,one NSR and the other the spur (ii) Ruckold's Lane connecting Little Dunham with the undoubted portion of NSR and then on to the spur ( its precise status in the latter portion is not known for certain) (iii) Great Dunham having a direct road to Newton ( one has to assume the public road here was much as today—certainly supported by Faden) or having a similar use of Ruckold's Lane to that in (ii).

(g) The major alteration to this pattern was the stopping up of the spur and the creation of the pink road. The overall effect of this was to create one road north from Sporle ( where there may well have been two) which in effect forks at the junction with the Pink road (i.e. the crossroads) .That is as I think the true significance of the crossroads . There is to my mind absent other evidence no obvious reason for a public road to the east of the cross roads, cf. such importance to the west where the Pink Road is an integral part of the new system. Both Dunhams are perfectly well accessed by what is there already ( in 1806-24) without the obvious need for a new public road.

(h) The eastern arm of the crossroads has to my mind a much greater significance in accommodation/private road terms. Mr Fetherstonhaugh places great emphasis on the straight line between Field Barn and the Hall and I think he is right to do so. If in 1806 you are Mr Dusgate and you want to get from Field Barn to the Hall with a herd of cows you would most naturally start with the old ( no longer public) track from Field Barn to the Common and then take the straightest line you could to the Hall, given that it is all your land and you can put a road where you like, why not a straight line? Again it obviously makes sense to line it up with the cross roads where the new Pink Road joins NSR and which itself is in a direct line to the Hall drive as it has now become.

(i) Mr Shaw took 3 points in particular as supporting his realignment theory (A) The Road would have provided a utility that had previously not existed, i.e. a good cross or driving road ( as shown in Bryant's map) compared with the western section of Ruckold's Lane. But the lack of facility at that time ( not long after the Award) is just as indicative if not more so that there was no public need. (B) this is part of the introduction of a wide network of public roads in the same time frame. I have really dealt with this in what I have said above (C) it is far more likely ( his words) that this was to satisfy a public need rather than to satisfy the private needs of the Dusgates ( above) but he gives no reasons and his assertions in cross examination rather took on the character of "if I say it three times it is true".

71. Accordingly thus far I find ( absent any other material)

(a) There is no compelling reason for concluding that The Road formed part of a re-alignment of public roads.

(b) There are good private/accommodation road reasons for The Road being where it is and doing what it does. There are no similar public road reasons.

(c) There is reason to think that the people involved in constructing the new roads in this period constructed them, whether with public or private considerations in mind to align with one another when it was sensible to do so. But that does not make it all private or all public. It is perhaps important to remember that this would have been very much a local affair, involving parish authorities and the same local landowners would have had a voice in both public and private road construction.

(d) Thus far I would conclude that there is nothing in this area of the evidence that points significantly to The Road being constructed as a public road, and considerable pointers against.

(d)The legal and practical significance of Bryant's map.

72. .This map it will be recalled designated The Road in common with most but not all of the local public roads as a "good cross or driving road. The Claimant says that this is good evidence of the public notoriety of the road by 1826 . Mr Shaw goes on to say that within the same time frame the road re-structuring ( see above) took place and therefore Bryant and the road re-structuring point can be used to support one another. I have of course already expressed a contrary view on the road restructuring point so I am left with the question whether Bryant on its own is good and helpful evidence of reputation.
73. The point rests to an extent on a reported case Trafford v St Faith's 1910 74 JP 297 a decision of Neville J. In that case he said (p298) this

I think [in this map--Bryant] we have some evidence of reputation inasmuch as it is indicated on that map by the sign that we are told is meant to indicate a good cross or driving road .That the map is some evidence of reputation is I think obvious because although the person who was responsible for drawing the map may not have been an inhabitant …he must have had such information as he possessed with regard to [character of the roads] from persons in the vicinity and therefore I think that is a little bit of evidence to indicate that as early as 1826 this road was considered to be a public road.

I have the impression that this case may be regarded as quite an important comment on Bryant and probably relied on a good deal in this county and I am concerned that there may be some danger of this case being relied on as regards Bryant for more than it really says. So it is appropriate to say a little about what it appears to say and what it does not say.

74. (a) The Judge made the assumption that "good cross or driving road" meant a public road. I do not read the judgement as determining that as a matter of law it must do so. It is not clear to me from the report why he accepted that "good cross or driving road" was evidence of reputation of public status. The judgement gives no evidential basis. Whether it was in evidence, something stated at the bar or common ground, one has no idea. There is no legal basis for this designation necessarily meaning public status of which I have been made aware. I think the best interpretation is that it is description of a quality of road most commonly held by public roads rather than private ones and that it is therefore ( absent other evidence) some evidence of reputation as a public road.

(b) nothing in the arguments of Counsel was directed to this

(c) There appears to have been no expert evidence on Bryant;s methodology or indeed on anything else. The Judge drew the inference which he was fully entitled to draw that a map maker would consult the local inhabitants

(d). The essence of this part of the decision was the admissibility and potentially the weight of this piece of evidence. It goes no further than this. In fact if one reads it carefully the relevant passage really deals with whether the map could be evidence of reputation , i.e. was it based on statements by people who might know ( admissibility, a more live issue in 1910 than it always is today) and he says nothing whatever about weight.

(e)It would be most unwise ever to rely on this decision as saying that Bryant is something on which great weight should be put as to status or anything else. The significance of the result was that Bryant was consistent with everything else.

75. It is not plain on the basis of his key or map that Bryant was on the face of it consistently and directly concerned with the status of all roads on his map or , if he was, that he consistently got it right. Obviously his category of "Turnpike and Mail Roads" must be concerned with status because that is inherent in the description ( as would a modern OS have that effect in referring to motorways) and in places he refers in terms to a road as "private road" by labelling it. But as Mrs Rumfitt pointed out ( and Mr Shaw did not challenge) there are a number of places on this sheet of Bryant where it can be demonstrated that his system is not any way consistently determinative in showing whether a road is public or private, in particular there are roads known to be private which are not designated as such, although some others are.
76. Mrs Rumfitt gave expert evidence about Bryant's methodology (something which Neville J of course did not, on the face of the report, have). She pointed out that it is not actually known how Bryant's surveyors worked , what instructions they were given or whether the results were checked. This does not of course invalidate Neville J's inference though it may qualify it, i.e. one is entitled to work on the basis that the map is admissible because the surveyors will have made inquiries, but there is no evidence as to how effective those inquiries would have been and therefore the weight of the evidence may be affected by other factors which can be determined on the evidence.
77. The issue as it developed became whether Bryant was concerned (as Mrs Rumfitt put it ) with "capability or status", i.e. is he talking about whether a road is public or private or simply with its surface quality. The following seem to me to be the material points

(a) To an extent on the face of the map itself ( see above para 74 (a)) he does attempt to deal with status. Thus he designates turnpikes and perhaps more significantly he marks private roads where he appears to have the information—but not, on the evidence, all private roads. Marking roads as "lanes & bridleways" under a common designation in fact confuses the two. Bridleway normally connotes status, Lane is really quality. I form the impression that Bryant was seeking to try to do what I was told the OS originally considered but abandoned , i.e. doing both ,but it is plain from those areas where he can be shown to be inaccurate that this was every bit as difficult a task as the OS found it to be and I would not be able to hold he was in general a good guide to status even if that was what he was trying to do in each case.

(b) "Good cross or driving road" is as I have said not a technical legal term. On its face as a matter of language it refers to capability. It is the answer to the question which the surveyor asks himself , "what is the road I am looking at capable of bearing ?" So if it has broad verges or is a broad road ( or both) you can use it for driving, if it is a narrow lane, you cannot.

(c) Plainly as I have already said a "driving road" is a capability most often at that time seen in public roads. If one can offer a modern parallel, the key to a modern OS disclaims any accurate statement of status, but the higher up the key you go the more probable it becomes that the road is going to be a public one.

(d) While Mr Shaw accepted in evidence that the Bryant surveyor would have known the two connecting roads were public and that The Road at the time was a churned up cattle track he refused to accept the corollary that if he went to look at the time he would have seen a well trodden cattle track between two public roads and drawn the reasonable conclusion that it should be described as it was. I agree with Mr Fetherstonhaugh that this refusal is not easily to be explained or accepted, based as it is on the, I agree, improbable supposition that the surveyor would have taken the trouble (presumably in every case) to research the parish records—even assuming they existed, which nobody knows.

(e) In any event Bryant's depiction of the road is very poor. He is the only surveyor/mapmaker over a long period who gets it completely wrong. Even Faden gets the one existing part right, much as it is today. Bryant makes it a straight line along its length which plainly it never was ( see the consistent OS maps from that time forward)

78. I reach the following conclusions about Bryant's map

(a) The actual label applied to the road by Bryant is one more appropriate to capability though it can lead ( all other things apart) to inferences about status.

(b) Bryant does in places appear to deal with status. But except (possibly) where he identifies a road as a turnpike or explicitly as a private road, he is not be taken as reliable or necessarily always making a comment about status.

(c) The label he applies to The Road is most obviously to be regarded as directed to its physical appearance at the time. However it is prima facie at least a description consistent with and (absent other indicators) a little piece of evidence in support of public rights.

(d) ( see earlier conclusions) the appearance of the road can be more readily accounted for by the proposition that it was constructed for the convenience of the Dusgate holdings.

What I do firmly conclude as a result of this is that by itself Bryant's map is anything but a firm indicator and not too much reliance should be placed on it.

(e) The tithe map and apportionment of 1839.

79. It is common ground

(i). That these documents show The Road grouped together with others in the acreage of public roads

(ii) That the Commissioners' duty did not involve identifying the status of roads

(iii). That the Map is a second class map—conclusive on titheability but not anything else.

80. As a matter of legal principle

(a) (Sauvain 2-72) tithe maps are admissible to show the existence of the road but are not evidence of the status there recorded however

(b) On recent authority ( Trevelyan v S of S The Times March 22.2000 and Maltbridge v S of S 1998 EGCS 134 ) it has been held that if the evidence shows that the cartographer did in fact treat public and private roads differently then such evidence ought to be admissible to show the existence/non existence of public rights. It is a matter of weight and degree in each case. In fact the Judge in the latter case went on to remind himself that because of the purpose of the tithe map the information could not be regarded as conclusive.

81. The Council contends that I ought to have regard to the tithe map, not of course conclusively but as evidence of The Road's notoriety at the time . Further , the argument develops such inconsistencies as there are on the map do not serve to undermine that conclusion. It is also pointed out that School Lane ( awarded as private by the inclosure award but shown as public in the diversion map of 1848—possibly connected with the coming of the railway) is shown as public, lending credibility to the commissioners treatment of roads shown to be public. Mr Fetherstonhaugh invites me only to go so far as to say that it is possible to draw the conclusion that the road was perceived to be public but it is no more than tentative and of insufficient weight to discharge the burden of proof. A number of detailed matters are urged in support of this.
82. I do not myself see very much difference between the two submissions. In my judgement it must be plain, having regard to the authorities that I should find that responsible people (who incidentally seem to have been right about School Lane) took note of apparent notoriety that The Road was public even though this was not their primary function. But beyond that I cannot go, I have no idea what their material was or why they thought it, or whether they were any better than Bryant. But it is a relevant piece of evidence to put into the balance.

(f)The probability of dedication

83. It is of importance, as Mr Fetherstonhaugh reminds me that in trying to reach a conclusion as to whether The Road was dedicated one should look at the circumstances that would have controlled both the intention to dedicate ( by the Dusgates) and the intention to accept the dedication ( by the Parish), bearing in mind as one must that the most likely date for any dedication is before 1826 ( Bryant) and therefore that acceptance would have been on the basis of reparability by the inhabitants of Little Dunham.
84. A critical point made by Mrs Rumfitt in her evidence was that the obvious moment to dedicate was the Inclosure award itself. If Abraham Dusgate had wanted to achieve this object then it could ( and I expect would) have been achieved. But it was not done. So the obvious inference was that it was not necessary to award The Road as public. Why then in the ensuing 30 years should the Dusgates change their minds as regards re-alignment to the east of the crossroads? This involves the proposition that the Dusgates having turned the opportunity down and laid out The Road entirely on their own land then decided that it should be used by the public, in circumstances where, for reasons I have given, there was no particular public need. The only ground really advanced in favour of this is Mr Shaw's "major realignment" argument, which I have already dismissed for reasons there given. If one does not accept that, then I think it is inevitable that one concludes that the most likely function of The Road was ( as described) to service the agricultural estate of the Dusgates.
85. . There is a similarly strong argument against acceptance of dedication. Mrs Rumfitt put it succinctly in cross examination : if this is a public road, it falls into Little Dunham and would have been used largely by the landowner of Little Palgrave. And Little Dunham would have had to pay. Mrs Rumfitt further pointed out that, contrary to what one might now think, liability for maintenance of a soft road in the early 19^th Century was not a light matter ( see the reasons she gave in cross examination). Why, one asks, absent Mr Shaw's realignment theory , should Little Dunham take on this liability and so, in effect subsidise the squire of Little Palgrave?
86. Both these factors seem to me strongly to suggest that ( absent other convincing material) it is highly unlikely that this dedication would have been offered or accepted.

(g)The cumulative effect of the evidence as regards the 19^th Century

87. For the sake of completeness before reviewing the evidence this far I remind myself that there is no evidence either way of user in the 19^th century nor of any acts of maintenance by the Parish or its statutory successors.
88. There is no evidence after the Tithe Map and before the 20^th Century of any significance . Effectively the relevant events (other than anything that can be extrapolated backwards from events in the 20^th Century) come to an end at that point.
89. I also remind myself that it is for the Council to prove that The Road is a public road. The only evidential support for this proposition (absent the matters in para 94/5) is

(a) Bryant

(b) The Tithe Map etc

(c) Mr Shaw's realignment theory.

90. Of these I regard the realignment theory as affecting The Road for reasons which I have given as without any real evidential basis . Bryant is of very limited strength and the Tithe Map although it is some evidence ( and possibly better evidence than Bryant) does no more than show notoriety at one date and cannot be of great weight ( given what it is). As against these there are strong inferences (i) as to the most probable use of The Road—private and (ii) against the likelihood of dedication, especially given as I remind myself that this road cannot have been a public road immediately following the Award so that one has necessarily to seek dedication post Award. In my judgement if one were to look at the case on the basis of the 19^th century evidence there is nothing like enough to prove that the road was public and indeed one would draw the inference the other way and if the case stopped short there I would hold that this was on a quite strong balance of probabilities created and maintained as an accommodation way.

20^th Century events

91. As a preliminary it must be remembered that there is no evidence of anything relevant before the sale by the Dusgates in 1919. The only witness who was of an age even to remember the Dusgates ( she would have been aged 6) was Mrs Waller who in fact does not refer to that period and whose evidence for reasons I will come to is not acceptable anyway. Whatever had happened by then has either to be gleaned from the documents or inferred from anything one can find on the oral evidence to have happened in the succeeding years. By this time ( see para 42 ) the occasional motor car or lorry or even country bus would have been appearing on the roads and quite possibly a substantial number of people would ( increasingly) have had bicycles. Presumably the railway was still running but, as I have said, it plays no real part in this story.

(a)The requisitions on the Mason purchase.

92. I have dealt with much of the factual issues already in paragraph 23.The conclusion that I would reach is necessarily limited and is this

(a) There was nothing amounting to an assertion by the local authority that The Road was public. Had their records disclosed both that it was public and pre 1836 one would have expected them to have said in reply to inquiries, or at the latest when Mr Large wrote asking them to take over. It is of course conceivable that their information at that date suggested dedication at some later date, in which case all they needed to do was to refuse to adopt without disclosing the status of the road ( it would however be unlikely because of the probability that Mr Large had already made an inquiry). There is not however anything really to support this beyond the theoretical.

(b) It must be a serious probability that the authority simply did not know what the position was and were not prepared to increase their responsibilities.

(c) The vendors' reply to the requisition showed that they were not prepared to commit themselves to any positive assertion about The Road .

(d) Accordingly this piece of evidence goes far enough to show that there is nothing in 1920 that positively supports the Council in saying that the road was public at that date, but it is of little strength in rebutting a positive case made on other material. I think I can leave it there.

(b)Did the Masons buy the soil of The Road at all ?

93. This point was not pursued very strongly. It rests on the fact that the conveyance plan ( ostensibly by way of limitation) excludes the roads ( all of them, not just The Road ) from the land coloured as conveyed. However it is plain from the parcels clause that The Road is conveyed. In my judgement on ordinary principles the conflict ought to be resolved by holding, as I do that the parcels clause (plainly intended as a careful description of the land) prevails over the plan.
94. I accept (there is no real argument about it) the Council's proposition that a conveyance of The Road ( on the face of it the entirety and not merely the subsoil) cannot without more be an indication of the private status of the road.

(c) The Handover

95. This area of the case is highly controversial. I have already set out the brief facts in paragraphs 29 & 30. I now need to go into more detail.
96. . How it was done was as follows ( I quote verbatim from the agreed facts)

(a) The District Surveyors of all the RDCs in the county collated all the information in their possession regarding the maintenance of roads in their respective areas .

(b) These District surveyors prepared a schedule listing road lengths within parishes each road length having a reference number that referred to a map. It is not known what map was used.

(c) The County Surveyor's drawing office used the schedule and the associated map to produce the "Handover Map"".

97. The surviving material for this RDC ( Mitford and Launditch) is limited .One can now however be satisfied at least of the following

(a) the 1920 resolution ( above) showed plainly that The Road was not maintained or going to be maintained by the Council

(b) There is no material in the intervening years which suggests a change of heart—much less a resolution. Nor is there any evidence of actual maintenance—if anything the reverse.

(c) The two road schedules signed off by Mr Debenham ( Western Division surveyor) on their face do not include The Road .

(d) The map, which would have accompanied the schedules, has not survived.

(e) The Handover map includes The Road.

98. . The question inevitably arises whether one prefers the schedules to the Handover map or vice versa. The two competing versions are

(i) Mr Shaw . He says that parts of the schedule are simply missing, i.e. either we do not have the complete schedule that was prepared or Mr Debenham did not include all that he should have done. There is certainly no doubt (and no argument) that there are groups of road numberings that do not appear in the schedule.

(ii) Mrs Rumfitt. She puts forward as the obvious explanation that there were roads in the Division which were not subject to the Handover, the most obvious of which would have been county roads .

99. I prefer Mrs Rumfitt's view and I do so particularly for these reasons

(a). Mr Debenham's paper work (unlike that of his colleague in the Eastern Division, who gave an impression of chaos) had all the appearance of being accurate and meticulous.

(b) His schedules were quite obviously (as a matter of examination of the documents) made as complete documents—there is no realistic possibility of a "missing page". They carefully distinguished scheduled and unscheduled roads and put them in separate schedules.

(c) Mr Shaw's suggestion therefore arises not because there is anything wrong with the documents as documents or that there is any suggestion of poor work by Mr Debenham but because sequential groups of numbered roads ( which everyone agrees would have been numbered by reference to the –now missing—plan ) are missing from the schedule

(d) Mrs Rumfitt's view is that all roads in the District are likely to have been numbered ( to ensure nothing was missed) but that the county roads would then not be subject to the Handover.

(e) Given, as it seems to me, that one ought to regard Mr Debenham's work as making administrative sense rather than administrative nonsense (d) is an obvious and probable reason for him doing it the way he did.

(f) As Mr Fetherstonhaugh says the point would if anything be strengthened if this Mr Debenham was the same one as referred to in the next paragraph . As appears below I do not think I can be sufficiently satisfied that he was, but the point is strong enough without it.

100. In addition there is the following evidence

(a) Interviews with RDC employees—the old roadmen— ( including a Mr Debenham) in 1957 when the status of The Road was called in question stating unequivocally that they did not maintain The Road –it was private. This Mr Debenham was at various stages of the case widely thought to be the man who did the Handover schedules in 1929 ( 28 years earlier but he would well still be alive). It is now suggested that he is not the same man—there are variations in the job description and the surname is not uncommon in East Anglia and I do not think I can safely conclude they were the same person though they may well have been.

(b) I do not accept Mr Shaw's view that the evidence of these people as to status would have had no value. If anyone was in a position to know at least how as a practical matter the highway authority dealt with a road, these would be the people to know, it was on them that responsibility ultimately rested.

(c) Just to repeat something already mentioned there is no evidence that any public authority did any work at all on this road ever, or indeed any hard evidence that anybody else did before GM began his own operations in the later 1930s.

(d) It is probably relevant to this part of the evidence to recall that some time in the 1930s (para 30) GM is recalled as asking the Council for help in making up The Road and being turned down. This piece of evidence of course cuts several ways, it clearly suggests that GM himself might have thought the road was public ( I will return later the possible significance of this), equally it suggests that at this date ( post the Handover map) the authority may have thought it was not public ( in line with the recollection of the roadmen themselves).

101. Putting this evidence as best one can it seems to me that the anomaly is the Handover map itself. All the remaining material points ( some admittedly more strongly than others—the strongest are Mr Debenham's schedules) to the authority not regarding this road as public and, it follows that the Handover map ( a document prepared from other and more primary sources) is simply an error and not truly expressive of The Road having a notoriety at this date of being a public road.

(d)The condition of the road and the story of its upkeep

102. I have touched on some of this already but it is probably best to take it as one subject. (a)It is now common ground that The Road in the 19^th century would have been a muddy and (depending on weather and season) rutted cart track between wide verges and fences . One must remember a "driving road" is for driving beasts not vehicles, and beasts are not worried about ruts. (b) There is no evidence that anybody ( authority or landowner) ever did anything to it by way of maintenance, much less making up, before the events of the later 1930s.(c) The written evidence of Mr Syer ( born 1918) who worked for the Masons and helped in the 1930s operations was that until the 1930s the road was "just a muddy cart track". (d)Another Mason employee Mr Gamble (d.o.b1930) recollects that even after the initial surfacing with rubble it was deeply rutted and not easy to use. It is important to record this because it may not entirely accord with some of the user evidence.
103. After GM was rebuffed by the Council and some time in the early/mid 1930s ( the dates are inexact) the evidence is that he started off by trying to re-surface with lumps of chalk. I have already briefly referred to this. Mr Blowers ( d.o.b 1928 ) was a little boy at the time and his father who doubled being stockman and chargehand with the licence of the Elephant pub was the man in charge of laying the chalk. Mr Blowers senior warned GM to cover it up or there would be trouble when the frost came. GM who had, it appears a local reputation for "pig headedness" thought he knew better. The frost came, the chalk turned to mush and I expect there were a lot of laughs at GM's expense round the local pubs. It is just the sort of thing that people remember and I have no difficulty in accepting Mr Blowers' evidence about this.
104. .Mr Blowers remembers the improved re-surfacing which followed the next year which he puts at 1936 or 1937.Mr Syer was actually involved in the work but puts no more precise date on it. It consisted of tipping and laying hardcore and shingle and then ( Mr Syer's description suggests using hoggin ( a form of gravel) gravel and sand presumably as the actual surface.)
105. .Mr Mason's recollection ( presumably on what he was told, his date of birth is 1960) is that for the next 15 years or so –taking us therefore up to 1950 + --nothing much altered except for patching up with similar materials when needed. The big change is said to be in the post war period when the surface was changed to tar—the reason it is said is the need for access to cereal crops by large agricultural machinery. From then onwards The Road has been maintained by the Mason family as a tar road being re-tarred and chipped every 5 or 6 years. In overall appearance it looks exactly like the public roads in the area. As I have said earlier the date for this is not exact, it could be a little earlier than the late 1950s which is Mr Mason's believed date.
106. There is no clear evidence of what happened to the surfaces of the neighbouring roads and at what dates. Probably they were progressively surfaced from the 1920s onwards. Notably Ruckold's Lane and the lane north from Wells Green have never been touched. They remain green lanes as they would have been in the 1790s.I was driven over Ruckold's Lane ( east section) in the course of the site inspection and the surface although green appears firm.
107. .Mrs Moulton ( a defendant's witness) recollects being told by her husband that the original resurfacing ( post the chalk) was done during World War II to help provide a surface for trucks bringing in members of the Women's Land Army and Italian prisoners of War .She remembers the surface consisting at least in part of stones set in tarmac and that this material was laid in two strips. So far as any such conflict or apparent conflict matters my conclusion is that the probability is as follows

(a) In my judgement all the evidence of the original surfacing and its probable date is reasonably firm and consistent and to be relied on, particularly as regards date because of the circumstantial evidence that men involved in it were men who later went off to the war.

(b) If the surfacing had anything to do with Italian prisoners it could not ( for historical reasons) have happened before 1941, which makes it irreconcilable with (a) as does the actual description of the work itself

(c) I think the probability is that something of the kind that they recollect was done during the war which nobody but the Moultons now remember and which may well not have been very enduring . It is plainly in line with the sort of thing that, nationally, was taking place. It is possible also that it links in some way to Mrs Moulton's recollection that the tarmacking was done in different stages for different stretches of The Road.

(e) User evidence.

108. .By way of preliminary

(a) There is no direct evidence whatever of user in respect of any period beyond presently living memories. The best that can be done is to invite inferences that what people remember happening since ( approximately) 1920 or so had followed a similar pattern in earlier times.

(b) Such evidence might have been available when the road first came into question in 1957.At that time people were still alive (speaking nationally at least) whose memories might go back to the 1880s (by way of example Lord Goddard, born in the late 1870s was then still Lord Chief Justice).

(c) Use by bicycle would have been a distinct possibility at any time within presently living memory.

(d) References to use by motor cars in the earlier part of the period may need to be looked at critically, the motor car was not then anything like as common as it became after the Second World War. Further references to use of cars in wartime must be subject to the overall comment that pleasure motoring at that period was severely curtailed because of petrol rationing.

(e) I remind myself of my earlier comment ( pace also Neville J) that one must look carefully at a case where the user is by local people over what is really a neighbour's land as to the degree to which that shows acquiescence in the acquisition of a public right. And of course the more so where the users are employees of the landowner ( or members of their families) where questions of implied permission may arise. It is unrealistic to suppose (i) that a landowner will stop the child of one of his farmworkers (ii) that by letting the child pass he intends to dedicate to the public at large.

(f) At the same time I remind myself that this sort of thing may also cut a different way, that the amount of use one would expect of a public way in rural Norfolk would be far less than one would expect in the Marylebone Road.

(a) I heard a comparatively small amount of "live" evidence of user though some of it (and on both sides) quite impressive. Given the age of many potential deponents ( one or two indeed had died) there was a substantial amount of evidence given by witness statement, statutory declaration or user form .

(b) It is common place in this sort of case for a good deal of material to emerge by way of user forms. Mrs Palmer and her brother in law Mr Gathercole played a prominent and energetic part in getting people to fill them in. Such a process is always a difficult one because the person distributing the forms often has a degree of personal enthusiasm for their cause and Mrs Palmer strongly supports this road as being public. Ideally a serious degree of intellectual rigour needs to be adopted to get the most fair and accurate results . Inevitably she was cross examined and commented on by Mr Fetherstonhaugh along these sort of lines. But it seems to me that she did nothing she ought not to have done and, within the necessary bounds that these sort of forms are never completely satisfactory if collected by the sort of people ( non lawyers) who are actually likely to be collecting them, especially as regards matters of precision. I ought not to regard them as in any way suspect ,though simply because of what they are I should be cautious how far to go with them. They raise one particular problem to which I will return later.

(c) A more problematical issue was raised by the statutory declarations annexed to Mr Shaw's statement. I do not want to dwell unduly on these as I am quite satisfied ( and have already said so) that the people involved acted in complete good faith. But unfortunately there were serious flaws in the way in which this evidence was collected and the way in which they were described and commended in the body of the statement was unsustainable. In two cases the source material (the tapes) was transcribed and also played in court. It was plain that the way in which the declarations had been put together was quite seriously flawed. In the case of Mr Seaman an important matter ( Mr Seaman's belief he had seen a Council maintenance man involved with The Road ) which might well cast doubt on Mr Seaman's accuracy of recollection was omitted and in the case of Mrs Waller it became sadly apparent ( and is now accepted by Mr Shadarevian ) that her declaration was just too seriously flawed to be relied on ( in particular because it was far from clear that she had got the correct road and indeed it seemed likely she had not and was actually referring to Ruckolds Lane ). With these warnings I plainly ought not to regard the other statutory declarations as having the strength which Mr Shaw attributed to them ( unless I can be reassured, which in the case of Mrs Rout I largely am) though I certainly do not dismiss them. They call for a little detailed comment later.

110. It is probably best to start with some of the evidence of Mr Mason's witnesses since it is they who speak to the original re-surfacing of the road and its state prior to that . I have already set out some of it in para 104ff. Whether I accept what they say ( or to the extent that I do) has an impact on my view of the "user" evidence.

Mr Shadarevian not un-naturally points out that all this evidence comes from people who worked for the Mason family and is not supported by the evidence of members of the public. I have two comments on this (i) Nobody suggested that these witnesses were telling untruths or had come to court simply to support Mr Mason . I see no reason why I should not accept the one live witness Mr Blowers, as a witness of truth ( within obvious qualifications as to complete accuracy) or that I should regard the written evidence of Mr Syer or Mr Gamble as other than truthfully given –subject of course to the qualification that it has not been cross examined.(ii) these witnesses were people who either in the course of their own work or ( in the case of Mr Blowers) via a parent who worked on and was concerned with the road itself had a close knowledge of The Road as part of their working lives and might be expected to remember things that casual ( even regular) users might not. In particular they are more likely to be able to put a date to events.

111. In summary what I get from these witnesses is the following

(a) Before the first and failed attempt to surface The Road ( about 1935-6) the surface was soft, muddy and rutted.

(b) The first attempt at surfacing was the use of chalk where Mr Blowers senior was sceptical and turned out to be right.

(c) The second attempt (probably 1937-8 or so) was a concentrated effort involving the use of hardcore and gravel. It was tipped on to the surface from tipper lorries and Mr Syer ( a young farm labourer at the time) was involved in the physical work.

(d) After that work was done the surface of the road became a hard surface ( though Mr Gamble did not think it was particularly good until it was tarmaced at the end of the war).

(e) After the end of the war certainly by the late 1950s and possibly earlier (whether initially in whole or in part) tarmac was used and the road became a "black top" road indistinguishable from its neighbours

I see no reason why I should not accept this evidence, which seems to me to be credible and probable and which is not seriously or effectively challenged.

112. I pause to emphasise one point arising from this piece of evidence. The historical pattern seems to me to be this

(a) before the 1937/8 surfacing The Road may well have been in a worse state than Ruckold's Lane ( which has always been unsurfaced and gives the impression today of being able to take motor vehicles). I have regard to Mr Shadarevian's fair point that one cannot say that it was a good route, though I incline to the view that at this period it was certainly no worse than The Road and may have been a little better. There is no firm evidence as to the state of the remainder of "Palgrave Rd" (to use that expression in its most extended form) but that road was repairable by the Council and presumably from time to time repaired.

(b) after the first re-surfacing The Road was probably in rather a better state than Ruckold's Lane but one cannot say whether it was better or worse than "Palgrave Rd"

(c) It is probable ( as I find from Mrs Moulton's evidence to which I referred above ) that there was an intermediate stage during the war when some further work was done.

(d) After the completion of the tarmac the probability is that The Road was much as it is now, completely indistinguishable from "Palgrave Rd" and the other public roads in the area and a far better choice of route than Ruckold's Lane. You cannot by looking on the ground easily tell where the undoubtedly public road ends and The Road begins.

113. This gives a context to a more controversial piece of evidence (Joyce Syer ) that the patterns of use still did not change for some time after the first re-surfacing being confined to Tradesmen and those connected with the Masons and (Mr Syer ) " after the [first] work was completed a lot of people thought they could use it [ this led to the erection of signs]" and from there to a submission by Mr Fetherstonhaugh that the change really came about after the tarmacking.
114. With those matters in mind I come first to comment on the user forms. They do suffer from one major problem. On the forms ( the designs vary) there is generally a space to define the road that is being talked about. In very many cases what the deponent has written is ( variously) "Little Dunham to Palgrave" " Little Dunham/Dunham to Sporle" and other similar designations. It will be apparent at once that in the case of some of these one cannot be certain that The Road is even included in the general description ( Dunham to Sporle is best achieved via the Elephant) and much of the road from Little Dunham to Palgrave is unarguably public so one cannot be certain whether they are talking about the whole stretch including The Road, or some part. It is most likely the former and in some cases ( e.g. when there are references to notices) the matter becomes clearer as one reads, but one simply cannot tell in every case. So one has to start on the basis that cross-examination might have revealed some critical disparities.
115. A very helpful analysis of the forms was produced by the Council. Reference can if need be, be made to it. By way of short summary

(i) There is a group of a dozen or so people who refer to use by foot and bicycle ( bicycle is almost as prevalent as foot) prior to 1930.In the same period there are four references to use by car , two to horse trap and one to cart (plus a baby—Mrs Tyrrell herself –in a pram)

(ii) There are then a larger group who speak of user starting between 1930 and 1937. In this period motor vehicles start to feature much more heavily.

(iii) Mr Shadarevian's summary which I accept is there are 33 forms in all for pre 1937 , three claiming use by trap or cart , 1 by horse,22 by bicycle and 17 by motor vehicle . In addition ( as to pre 1937 user) he identifies pre 1920 user from Mrs Rout's oral evidence and two evidence forms.

(iv) The remainder ( a substantial number) start in 1937 or later with a substantial number starting after 1957.

116. I go next to the statutory declarations. Two ( Seaman and Waller) I have already referred to. Four, Rout Gathercole, Moulton, Palmer made witness statements and gave oral evidence. There remain five:

Green. He suffers from the common potential defect of treating the larger version of Palgrave Road as all one road, though it does become clear that he is speaking of The Road .He speaks of cycling it as a boy in the 1930s ( possibly starting 1935-6) but believes it was a tarred surface when he cycled it ( which on nobody else's evidence would be right that early on). The statement is not valueless but could have been improved and clarified by better interviewing.

Howlett; She gets the right piece of road, but is dealing with children on bicycles in the 1940s and 50s

Large; (born 1932) he is rather more useful about notices/lack of them than about what happened when. However he does talk of cycling from the late 1930s onwards as well as, presumably later use by horse and car. What he does say is that the surface was rough but much the same all the way through, which may suggest that the initial re-surfacing brought The Road up to the standard of its immediate neighbour and also suggests that Mr Large is talking about the period 1937-47 or so.( This evidence is not quite in line with that of Mr David Mason, Mr Mason's uncle who remembers as a boy driving cattle along The Road before the tarmac and thought it was actually rather better than its neighbours)

Mrs Tyrrell. She was born in 1917 and speaks of going along The Road at the age of 3 in her pram. There are a number of reasons why such evidence-untested (e.g. does one really remember where one's pram was pushed), ought not to be accepted. It is a pity she could not give oral evidence because her evidence was potentially interesting ( though possibly not for the Council). She was an example of a phenomenon to which I have drawn attention. Her father was the Masons' horse team man—a senior employee. For family reasons ( probably schooling) she actually lived with her grandmother in Little Dunham but her mother lived ( it would appear anyway) in one of the cottages that used to be at Field Barn—so on Mason land. She appears to have done a good deal of walking along The Road in the 1920s. Simply on this material I would have thought she was somebody, daughter of an employee, mother living on the Mason land, on whose user one could place no reliance at all for an implied dedication.

Wright. He was born in 1922 and used The Road 1939-1960.He worked on the roads during the war and believed ( on no particular grounds other than appearance ) that The Road was public. I note that his evidence is at variance with the note of the meeting of the " old roadmen" who had a different view.

It will appear from this review that the statutory declarations are not all without use, but having regard to how the interviewing of the others was carried out need to be regarded with some caution, not least because of some of the internal problems that they show. What cannot be said for any of them is that without variation they are ( as Mr Shaw claimed for them) "coherent clear and consistent".

117. I now turn to the Claimant's live witnesses and it is probably most helpful to start with the best witness who on any view was Mrs Rout. She was a vigorous, charming elderly lady with a well preserved memory who gave her evidence with bravura. Her date of birth was 1919 so when I heard her she was just short of 84.She has lived in Dunham all her life. She says that down to 1990 she had used The Road all her life .When she was a little girl ( so 1920s) she went along it with her grandfather in his pony and trap. Her father walked it too She describes walking along it in her childhood and youth ( so the inter war period) and her sister ( date of birth 1917 ? ) used to go courting there ??late 1930s .They used to cycle along it from ? 1933 .She remembered also the older generation of the Moulton family (shepherd to GM) going along by bike to shop in Little Dunham. She got married in 1942 and when her husband was on leave from the RAF they would sometimes go down there by car. She and her husband used to picnic there , she described picnicking there in more modern times when a cycle rally went past. She described the road as a "good hard road" which might have had a bit of grass in the centre. Later on she said there was no mud, just a good hard surface , there had been holes filled up with gravel and after the war it was tarred all over. She says that she and everyone she knew believed the road to be public. Her late husband used to go that way when driving his horsebox but he knew GM and asked permission first. She said her husband had been on the parish council for 40 odd years , he had tried very hard to get some enthusiasm from the members to take up the issue of the road but was not able to do so ( one might wonder, given the rest of this evidence, about his own enthusiasm).
118. This evidence is impressive, but there are at some qualifications that need to be made

(a) most pertinent I think, is her recollection of the surface. The overwhelming probability on the evidence as I have found is that before GM got to work in 1937 + this was a muddy rutted cart track ( on the evidence of the people who might be expected to know it best) and this would suggest that her recollection starts being accurate rather later than she now thinks, probably not until 1937-8 at the earliest and might take in some of Mrs Moulton's wartime recollection. Further it suggests that she started to cycle there no earlier than that period—cycling along a rutted soft road ,although possible is a very different experience, to doing it on a good hard track and might be expected to be remembered.

(b) In the light of this I would be a little hesitant about the strength of her recollection of her grandfather and his pony and trap/whether she has certainly got the right road/how often it happened.

(c) As emerged from her evidence, her husband (as his user form indicated) thought The Road was private and indeed had asked GM's permission. So the experience and belief in the Rout household was not all one way.

But when all is said and done she was an excellent witness.

119. Mrs Moulton to whom I have already briefly referred was another good witness. Her husband, Tom (date of birth 1923) was born in a Mason farm cottage and worked for the Masons until after 1945. Her vehicular use was ( as Mr Fetherstonhaugh rightly commented) only a few times each year and fairly late on at that. Her husband had bad eyesight and did not drive. But she did walk the road regularly and cycle it (every two-weeks she said). An important qualification was that she was personally known to the Masons ( as "Tom's wife") being the wife of a former employee, which laid the foundation of an argument on permission. Indeed it would be hard to see how use by any member of the Moulton family ( who had long standing links to the Masons) could readily be said to support the inference of an intention to dedicate to the public.
120. Mr Gathercole was one of those who regarded the road all the way down from Great Palgrave to the cross roads as one "Palgrave Rd". His father, now long dead, had been an agricultural contractor who did work for the Masons—when he was a boy GM used to address him as "Sonny". They/he enjoyed good relations with the Mason family.( another basis for an argument that user might have been permissive)
121. Mrs Palmer ( date of birth 1934) remembers the late 1930s and in particular the period after February 1940 when her family moved to Little Dunham. Her recollection from that time on is of regular use by her mother (pony and trap) and sisters and herself ( foot, cycle, car) as a method of getting, in particular , to the Castle Acre area. They all thought it was public, her parents were law abiding people who would not have consciously taken the family down a private road. But as Mr Fetherstonhaugh observed much of her conviction that the road is public really stemmed from the OS map which actually says no such thing.

(f) The statutory position as regards user with motor vehicles.

122. I have already briefly referred to the legal position. User with motor vehicles after 1930 cannot be relied on to establish a highway unless it took place on a "road to which the public has access". I emphasise that the section refers to motor vehicles and not to anything else that has wheels.

The relevant points are as I see them, these

(a) The essential point is that evidence of "illegal" user is to be excluded. So if the point is well made I have to look at user without having regard to user by motor vehicles. I can still look at use by "non motor" vehicles.

(b) In order to establish that the user was illegal it has to be shown that The Road was not a road to which the public had access

(c) Whether a road is a road to which the public have access is tested thus (i) that the public in general have access to it (ii) such access is not achieved by overcoming a physical barrier and (iii) access is by the tolerance of the owner. See Deacon v AT 1976 RTR 244 (DC)

123. Mr Fetherstonhaugh says this is not a road to which the public had access because until it was improved at the first re-surfacing in c 1937 the road was impassable to vehicular traffic. He points out that walking is not enough, the road must be used as a road. He points to an interesting piece of evidence in the user form of Mr Kilvert Minor-Adams ( chairman of Little Dunham PC to whom I shall return later) that according to an officer of the Council it was impassable to motors before the 1937 improvement: this evidence is well in line with the evidence of the condition of the road at that date already given by others. There is a certain amount of evidence to suggest that people went down it in carts and on bicycles but the evidence of use by cars prior to that date is fairly slender and in the light of this piece of evidence, I would find that any use by cars was rare to non-existent for these reasons . In my judgement Mr Fetherstonehaugh satisfies me that for Road Traffic Act purposes The Road was not at the relevant date a road to which the public had access. The factual finding is of course of wider significance.
124. However in my judgement this is not the end of the point. Evidence of motor vehicular use has therefore to be excluded but not the use of other wheeled vehicles ( the RTA is only concerned with motorised vehicles). It is observable from the analysis of the user forms that there was said to be just as much bicycle use as use by motors and motor cycles. It is not altogether surprising that this is so, given that this is a country district and one is dealing with the days when many people did not have cars but went about their business ( work shopping etc) on bicycles

Conclusion as to user

125. .In my judgement the clue to what happened is contained in the part of Mr Syer's evidence to which I referred, viz that a change came about once GM had improved the surface of the road. Mr Fetherstonehaugh invites me to say that this only happened after the installation of the tarmac after the war. For my part I think there is too much material that suggests user from 1937 or so onwards ( even limiting the vehicular use to bicycles and the odd horse drawn vehicle) not to give it sufficient weight to establish user; the position is of course stronger if I were wrong in my conclusion as to motor vehicles and they should be included too. I would be satisfied on the balance of probabilities that there was substantial public user in the period approximately 1937 to 1957 with an increased element in the last 10 years or so after the laying of the tarmac, but of a sufficient degree throughout to raise a case of user by the public as of right. This would give a scant 20 years for the purpose of s 31 but is of course by no means the end of the story. The corollary to this is that if, as I think this change came about in 1937 or thereabouts there is no room for Mr Shadarevian's proposition that one can infer that earlier user was of the same kind and degree.
126. I am not however satisfied about anything prior to the improvement of the surface in what I find to be 1937. I say this especially for the following reasons

(a) Although Mrs Rout is far and away the best witness her evidence about the surface makes it impossible to be satisfied that her recollection of any user pre 1937 is soundly based.

(b) There is no other live evidence, otherwise it is documents ( principally user forms) which it is impossible to test and about which there must be doubts.

(c) Mrs Waller's evidence which otherwise might have been very valuable has to be completely discounted.

(d) The pre 1937 and particularly pre 1930 material is fairly fragmentary and there must be a strong possibility that people like Mrs Tyrell and the Moultons—who might be regarded as having tacit permission-- form a substantial part of the user.

(e) Mr Syer's evidence that there was a significant change in 1937 is entirely credible and indeed what one would expect. Prior to the improvement there would have been little inducement to go as a matter of regular access ( including especially vehicles) along The Road . For much of the year it must have been a difficult route for pedestrians and cycles ( though a cycle could probably pick its way through more easily than a car) and on balance one would have expected people to prefer Ruckold's lane. Once the surface improved the obvious thing to happen, as I believe it did, was for the public increasingly to take the best route which is what over time The Road became until, after the tarmac was installed, it was widely believed ( probably largely on evidence of appearance) to be a public road and always to have been one. This I have little doubt goes a long way to explain people's perceptions today, although historically it is in my judgement incorrect. See also the point made in the last sentence of para 134.

Given that s 31 is prima facie satisfied can Mr Mason show that there was no intention to dedicate?

(a) Geoffrey Mason's beliefs.

127. A point upon which Mr Shadarevian lighted was that if, as the story was, GM hoped to have some help from the Council in making up the road in the 1930s he cannot have believed that there were no public rights. Mr Shadarevian cross examined on the basis that GM was an honourable man and would not have been trying dishonestly to obtain something to which he was not entitled.. I accept all of that but I cannot see that it really goes very far to answer any of the relevant questions. Thus

(i) Such evidence as there is suggests that nobody knew for certain what the status was. The inquiries of Mr Large (solicitor) in 1920 had not produced, so far as we know, anything more than that the RDC would not take it over.

(ii) It is at least to be doubted whether GM knew much about Highway Law (or inquired).

(iii) Once the Council had refused him he adopted ( entirely off his own bat so far as I can see) the legally unsustainable view that as he had made the road up it was his.

(iv) The inquiry I actually have to conduct is whether GM intended to dedicate the road to public use.

(v) On my findings the actual position was that at the time the work was done the road was in fact GM's road, not for the reasons he thought but for the reasons I have found. Given that at that point he believed the position was ( for the wrong reason) what it actually was, his previous reasons are of no relevance to whether thereafter he intended to dedicate the road to the public.

(b) GM's intention to dedicate.

128. Having heard the evidence that I have about GM and his periodic utterances about The Road I would have no doubt that had one asked him over a drink or in the bosom of his family whether he intended to dedicate The Road to the public the answer would have been emphatically in the negative. But while that is a start in evidential terms ( in that at least any action attributed to him might be consistent with his known subjective view) it will not do on its own. I have already briefly set out the law. The intention not to dedicate has to be made manifest to the public who use the road. So if GM had sat and brooded in the Hall and never done anything about it, the law might well presume that he had an intention to dedicate which subjectively he never had at all. The inquiry that proceeds therefore is whether he, by one means or another, did enough.

(c) Interruption.

129. Interruption is primarily a question of substantive law, i.e. as to whether the public actually used the way without interruption. But it also as it seems to me is part and parcel of the inquiry whether the owner negatives an intention to dedicate. Two matters arise

(i) there was evidence that from time to time GM erected hurdles to block off The Road and did so to enable cattle to graze the verges. In my judgement this is a transient operation whose plain purpose is a temporary agricultural one and could not reasonably be regarded either as an interruption or any expression of intention/lack of intention.

(ii) David Mason, GM's son and Mr Mason's uncle gave evidence .In about 1955/6 he says that GM blocked The Road off near the double plantation as " some people kept trying to use it" .He cut down some trees and laid them over the road to cause maximum inconvenience ( at least to vehicles—it is not very clear what they did for pedestrians ) But it only lasted a few weeks, after which it transpired that it was inconvenient to farming operations and so the trunks were moved. I find difficulty in holding that this essentially short lived operation ought to be regarded as a substantial interruption though no doubt it can be taken into account as part of the evidence of GM's actions.

(iii) There is also evidence (and agreement as to this) that on occasions (probably only a few) agricultural machinery was placed across The Road. I would take a similar view of that as under (ii) above.

(d) What other steps did GM take ?

130. There is no evidence whatever of GM taking any steps before the initial re-surfacing to stop people using The Road .This is consistent with the view to which I have come that (i) the use of the road prior to then was so far as one can tell probably light, given its condition (ii) there is a strong likelihood that many of the people using The Road were connected with people who worked for the Masons or other local people to whom no objection was taken (iii) it was the re-surfacing and, over the ensuing years the advantage taken of it by members of the public that led GM both to assert ownership and to assert it overtly
131. Both Mr Mason and his uncle state plainly ( though Mr Mason himself can only say what others told him as to the relevant period—he was not born until 1960) that GM was accustomed to stop people who were not farm workers or on farm business and tell them not to use The Road. Mr Mason speaks graphically ( as a child he was embarrassed) as to GM's forceful approach in later years ( after the relevant period) and invited me to infer that such is the way he always behaved. Mr Gamble ( who worked for the Masons from 1943 when he was 13) had instructions to inform anyone in a vehicle that it was a private road. His recollection is that GM did not seem to mind pedestrians though even then on occasions he would sometimes tell them it was a private road.
132. . The evidence from outside the Mason family and workers is mixed. Mrs Rout is quite clear, she knew GM, so did her husband. She said, " we never saw anyone who told us we shouldn't be there." Mrs Moulton was, it will be recalled, the wife of a former employee whom the Masons knew as "Tom's wife". She remembers meeting GM and/or his son Peter when they would stop and have a chat. She was never challenged. The only challenge was in recent times when Mr Mason challenged her but did not persist when he found out who she was.
133. .In a useful table annexed to paragraph 103 of his closing submissions Mr Fetherstonhaugh identified a substantial number of references in the evidence to people being stopped and on occasions of vehicles being turned back ( or attempted to be turned back). They are clearly identified and it is pointless simply to repeat them in this judgement. Interestingly many of these references are in the user forms themselves. Many of the dates are unspecified (and probably cannot be specified now) though a respectable number are identified as pre 1957. The picture that they and the family evidence build up is of consistent conduct by GM over a long period of years ( probably until his death in 1977 and starting in the late 1930s ). I would hold without difficulty that his conduct was regular and consistent and conduct in years post 1957 can fairly be prayed in aid to show both what he did and that it was something that he did as a matter of habit.
134. I am not in the least surprised that not everybody who gave evidence remembers being stopped. Non-exhaustively it seems to me that the reasons would be these

(a) he would be most unlikely to stop people like the Moulton family whom he knew ( though V L Moulton speaks of GM holding his bicycle broadside on to show displeasure at public use—it is not clear whether this conduct was actually aimed at Mr Moulton or generally), or other people who had a connection with or worked on the Mason land. See generally my comments above also on how far people like GM would necessarily display a "trespassers will be prosecuted" attitude to neighbours.

(b) Although there are one or two references to the baker being stopped he may well not in general have tried to stop people like the postman who might be calling at the Hall or elsewhere on the land

(c) Physically he simply could not be there all the time. He was a prosperous farmer with ( so Mr Mason told me) very large land holdings. His business would take him here there and everywhere in the locality. This was one small part of his property about which he had a bit of a "bee in his bonnet", I would conclude that when he was around he took appropriate action, and when he was not he did not.

135. As a matter of law ( see above para 50) what there has to be is some act or acts by the owner sufficient to show the public at large that there is no intention to dedicate. Such acts do not have to be continuous over the period. It seems to me that if as I find GM established a pattern of objecting when he was reasonably able to that would be good enough.

Notices.

136. Notices are relevant in two ways (i) as a discrete means under the statute of showing effectively a lack of intention to dedicate and (ii) as part of a pattern of conduct to be taken with other factors and leading to the same result.
137. It is useful to have in mind (and consider further) at this point the statutory provision (Sauvain para 2-53). It breaks down into two situations

(a) where a notice is put up and thereafter maintained ( i.e. kept up)

(b) Where a notice is erected and pulled down. Where that happens the owner has a choice (i) he can keep putting the notice back up and come under (a) (ii) he can take the view that this is a lost cause and give notice to the Council. If he does this he is, in effect, treated thereafter as if he had kept putting the notice up.

138. Two other points need to be had in mind

(a) to be effective the notice has to be visible to persons using the way and be inconsistent with dedication ( expressions like "private road" are the most obvious)

(b) it has to be "maintained". I was not referred to any authority as to what "maintained" might be thought to mean. To mind it is a common sense test, the notice has to be kept up, but if it is pulled down and then re-erected within a reasonable time it continues to be maintained. If it is only re-erected from time to time and there are appreciable gaps then I would have thought it was not "maintained".

139. . Having set out the legal preliminaries I come to the evidence.

(a) Mr Shadarevian submits that the only relevant evidence of signs is this

Bayfield—1930-40, saw signs at various times

Lakey—1954-63 saw a sign at some time

Syer—some time in the 1930s not long after the chalk work

Gamble—after the re-surfacing in the 1940s and pulled down

Kilvert-Minor-Adams (running he says contrary to everyone else's account) signs virtually all the time.

(Mr.) Gathercole . Saw signs in the period 1946-57 but it lay against the hedge ( one might perhaps infer it had been pulled down.)

(b) 13 or so other people, he says, saw signs but cannot recollect when.

(c).Mr Fetherstonhaugh at paragraph 98 of his closing submissions set out another of his useful tables. Again I do not propose to set it out in full but it is very comprehensive and there to be seen. In addition to the people named by Mr Shadarevian he identifies a further 18 people who at one time or another saw signs (one of them –Woods—said there were no signs before 1957 but signs after). It is correct to say that they are not tightly confined within the relevant period and therefore they are capable of meaning that they only saw signs outside the relevant period but the periods of which they speak certainly start in the relevant period , to that extent they are consistent with the others and the inference can be drawn that a proportion of them at least are consistent with others who speak more clearly of the relevant period and support them. I accept that they are not simply to be disregarded as Mr Shadarevian suggests.

140. I focus particularly on the following;

Kilvert-Minor-Adams to whom I referred earlier. He is now dead. He was a substantial local farmer and at one time ( as I have mentioned) Chairman of Little Dunham Parish Council. The suggestion, somewhat darkly made on behalf of the Council, appears to be that, for this reason, (presumably) he should be regarded as a supporter of the Masons and therefore not accepted. I see no reason why I should draw any such inference. Of course ( like many of the other "paper" witnesses) he was not here for cross examination and I accept that his evidence is much more comprehensive than that of others and out of line with the general pattern. I accept that the evidence ,for this reason, should be looked at with caution but not rejected.

Mr Gathercole ( who gave oral evidence) and Mrs Gathercole ( who did not) are both strong supporters of the Council's position. But they are clearly honest and dispassionate witnesses. He referred particularly to two matters (i) in 1946 he saw a dilapidated "private sign" lying against the hedge at the Palgrave end—he brought it to his father's attention and got the reply "that doesn't mean a thing, this is a public road" (ii) there were rumours in 1957 that the County Council were taking action " to prevent the erection of the illegal signs" from which surely one infers that the signs had been there to be objected to. She ( in her user form) said " there have been unsigned Private Rd signs in various states of repair which have disappeared from time to time over the years.

Mr Hunter (a lengthman) who covered the period 1922-1949 is recorded as saying "at one time there was a sign saying private road. The probability must be that he was covering the period after about 1937, as signs prior to that would seem unlikely.

Mr Gamble's full ( written) evidence on the point said this "I can recall there was at least one private road sign at point B (Wells's Green end) during the 1940s .I believe that signs went up towards the end of the war. At one stage the signs were chalked on a piece of wood .The signs were pulled down several times but they were usually put back up".

Mr Rout in his user form recalled no notices but said that the road was used "by courtesy of Mr Mason"

141. It is plain from the user forms that a substantial number of people had no recollection of notices and from the evidence of Mrs Rout ( a truthful and on the whole reliable witness) that she had never noticed any notices, though she accepted that she would have taken no notice if she had. Mrs Moulton had only seen them in recent years.
142. In my judgement it is impossible to ignore the substantial body of evidence that for part at least of the relevant period notices were erected and were plainly visible. The people who did not recall them may well have passed when no notice was up or simply not recollected them ( or bothered to notice them) if they were. It is difficult however to say with certainty that they were there all the time though the combination of the evidence of Mr Gathercole and Mr Gamble strongly supports the proposition that they were there in the post war period and from time to time pulled down and re-erected, and I so find.
143. I do not think I can hold that for the strict purposes of the statute the notices were always "maintained", the likelihood I think is that there were gaps. But in my judgement they were a significant and important phenomenon which for the period that they were up would have made GM's position plain to anyone who cared to read. They are as I think an important factor in the overall inquiry whether GM sufficiently asserted his position to the public.

Conclusion as to whether GM sufficiently manifested an intention not to dedicate.

144. As I have already indicated

(a) If one takes interruption ( by logs and occasional agricultural machinery) on its own, I do not think the case is strong enough to hold that there was a sufficiently serious interruption to prevent 20 years' enjoyment.

(b) Although there is factually quite a strong case on notices I cannot go so far as to say that the notices were sufficiently "maintained" so as to prove the statutory requirement.

145. However if one takes those matters in para 144 together with the clear evidence ( as I see it) of GM over a long period of years warning off people from using the road ( especially but not exclusively vehicular users) I come to the clear conclusion that he made it as clear as he reasonably could ( short of an efficient notice regime) to the public that this road was his, was private and he intended it should stay that way. To my mind that is an obvious manifestation of an intention not to dedicate. Accordingly the prima facie case under s 31 which Mr Shadarevian established is rebutted.

Summary of conclusions

146

1. I am satisfied that there is no acceptable evidence that The Road was either established as a highway or subsequently dedicated. One the balance of probabilities it was established as an accommodation way and so remained.

2. There are three pieces of evidence which may be thought to be aberrant .The first is Bryant's map which for reasons I have given I do not think is of the assistance that at first sight it might have been. The second is the Tithe map which I think may actually be slightly better than Bryant's map but is no more than supportive and there is little else for it to support. The last is the Handover Map which has all the signs of being an error. Indeed I accept Mr Fetherstonhaugh's submission that the Handover Map is the cause of much of the trouble and caused the Council to take a wrong view.

3. There is no user evidence prior to about 1937 ( when the road was first re-surfaced) to show that The Road had become a highway by presumed dedication either by common law or statute.

4. The user evidence after 1937 ( even if limited to bicycles) is sufficient to show a prima facie case of 20 years' user for s 31 purposes.

5. This is however rebutted by my finding that GM did not intend to dedicate and made his position sufficiently and overtly clear to the public at large

6. It follows that I propose to declare in terms that The Road is the property of Mr Mason absolutely and is not subject to any public rights. I will hear Counsel on the precise form of declaration.

Afterword

146. Inevitably cases of this kind engender strong feelings. members of the public rightly are concerned to protect public rights of way and not see them denied or destroyed. Likewise farmers and other landowners who have interests which are entitled to protection are concerned to limit intrusion on to their property. If this case shows nothing else it shows the difficulties which arise ( whichever side you are on) when the more ancient and primary evidence has in part at least disappeared into history and the modern evidence is not always easy to interpret without that historical context being complete. Inevitably such cases can be finely balanced.
147. It remains for me to express my particular gratitude to Counsel for the parties and all those instructing them for the skilled presentation and preparation of this case which has made my personal task a great deal easier than it might have been.

Judge Roger Cooke
(Handed down at the Central London Civil Justice Centre)
12^th January 2004.