A STRANGE TALE OF STONEHENGE
Given that the summer solstice is fast
approaching, it provides the excuse to regale those interested in highway law
with a tale which comes close to being very strange.
It has to do with culs de sac[1], ancient monuments, the “vulgar public” and too much Latin.
It has to do with culs de sac[1], ancient monuments, the “vulgar public” and too much Latin.
Lord Eversley’s book “Commons, Forests and Footpaths The Story of the Battle During the Last
Forty-Five Years for Public Rights Over the Commons, Forests and Footpaths of
England and Wales” (Cassell & Co.) was published in 1910. He was the president of the, then, Commons
Preservation Society (which later became the Open Spaces Society by merger). In part, the book explains the background to
the fencing around Stonehenge and the legal battle which then ensued over it.
As a broad generality, it is fair to say that it
is difficult to show that a cul de sac is a highway. The problem being, of course, that it is not
a through route. The conventional wisdom
is that a highway is a route which connects two separate points. The conceptual basis for this conventional
wisdom is somewhat unclear and not necessarily logical; but the best that a
lawyer can do is to point to decided case-law and leave it at that, at least
for the moment.
One of the leading cases was Attorney General
v. Antrobus (1905).[2] This had to do with the erection of fencing
around Stonehenge in 1901. The then
owner of Stonehenge and surrounding lands was Sir Edmund Antrobus. In 1901 it was feared that the establishment
of a military camp on Salisbury Plain might lead to damage being done to the
monument. Whether this was a fortuitous
occurrence is unclear; however, Antrobus then proceeded to fence around the
monument. A hut was erected at the
entrance to the lands thus enclosed and an entrance fee of one Shilling a head
was charged to visitors.
Objection was taken by a number of people
including the Durrington Parish Council and the Commons Preservation Society[3] . The Plaintiffs argued that the fences were
obstructing public rights of way up to and around the monument. After much discussion with Antrobus, the Plaintiffs
obtained the consent of the Attorney General to a ‘relator action’ calling for the removal of the fences.[4] The case came before Mr. Justice
Farwell. A fair reading of his judgment
might lead some to wonder at his approach to the case, particularly when one
has regard to Lord Eversley’s account of it.
The judgment was predicated, in the main, on the
basis that the tracks leading to and from Stonehenge were culs de sac and, as
such, could not normally be highways.[5]
Somewhat unusually, the judgment was accompanied by a plan showing the monument
and the disputed inter-connected tracks.
None of those tracks were, in terms of geometry, a cul de sac. Not only this, but the judge's own evaluation
of the evidence indicates that those resorting to the monument did not always
go to it and then return by the same tracks.
This notion of a cul de sac appears to have arisen from the fact that many
people were using the tracks to visit the monument as some form of
attraction.
The judgment proceeded on the basis that it was
incumbent upon the Plaintiffs to show that the asserted public rights of way
had arisen against the owners by way of long user. This aspect of the argument then turned upon
whether or not the public had acquired rights against the owners of the land in
question.[6] Having reviewed the
evidence, Farwell J. dismissed the claim.
The Plaintiffs did not have a sanguine view of Farwell
J.’s approach
to the case. First, they were not
impressed by his evaluation of witness evidence. The Plaintiffs produced 15 witnesses with
respect to the disputed track from Salisbury to Durrington. They were mostly carters who gave evidence as
to the user of the track for 50 years back with, according to Lord Eversley,
remarkable clearness and evident truthfulness.
They were in no way personally interested. Lord Eversley said that this evidence
was set aside by the judge on the ground of that they were persons not likely
to be stopped on the way along the track by the tenants of the land through
which it passed, or that they were untrustworthy in the sense that they were “illiterate, obviously exaggerating and
inaccurate”. Lord Eversley said
that, by way of contrast, he accepted, against their cumulative evidence, the
testimony of a single farmer, who was a tenant for a few recent years of part
of the land on the route of the track. He
testified he had never seen persons use the track, except one, and after seeing
him five or six times stopped him.[7]
Lord Eversley had this to say about Mr. Justice
Farwell:
“It appeared to present itself to him as one in
which the owner of the Monument had been compelled, is a matter duty, to erect
the fence for its protection. He assumed
that damage had already been done to it, though there was no evidence to this
effect, and as this was not an issue in the case, the relators[8]
could not tender evidence to show that the stones had in no way been
injured. He appeared to regard with equanimity
the exclusion from the Monument to the great bulk of the public. He was evidently under the impression that
the vulgar populace had, by their destructive propensities, disqualified
themselves as visitors to a place of antiquarian interest. He quoted the well-known [9] lines of Horace as to the deteriorating habits of succeeding generations
of men. He seemed to be inspired by
another equally well known line of the same poet “Odi profanum vulgus et arceo”
which may be freely translated “Let us fence out the hateful vulgar public.”
Indeed, the judgement ends on a somewhat odd
note, where Farwell J. refers to an article by Sir Norman Lockyer who said:
“The real destructive agent has been man himself;
savages could not have played more havoc with the monument than the English who
have visited it at different times for different purposes. I feel no confidence that the majority of
tourists have improved, nay, rather, “Aetas parentum pejor avis tulit nos
nequiores”.[10]
Thus we have two perspectives, both suitably underpinned by portentous Latin homilies.
No doubt Mr. Justice Farwell would argue that his judgement was well
founded. On the other hand, the Plaintiffs
would argue that he was in some way biased.
Stonehenge is a place of many mysteries and this case appears that this
is one of them.
[1]
The exact plural of the expression is
something of a debating point. As I once
said to a planning inspector, you are either a ‘culs de sac’ person or a ‘cul
de sacs’ person.
[2]
[1905] 2 Ch 188
[3]
For the purposes of this essay called
collectively the “Plaintiffs”.
[4]
In those days, a member of the public
did not have legal standing to issue such proceedings in his own name and had
to persuade the Attorney General to lend his name to the action.
[5]
There was a debate about whether the
public could have prescriptive right to wander at large, but the Plaintiffs’ case
clearly turned on the use of defined tracks for access and egress.
[6]
However, Stonehenge existed long
before Antrobus and his ancestors had acquired any proprietary interest in it,
even if the latter were Neolithic hunter-gathers with territorial ambitions.
[7]
The usual cross-examination of such a
witness is to ask whether he looked at the track for 24 hours a day all year
round ! Absence of evidence is not
evidence of absence.
[8]
i.e the Plaintiffs
[9]
Sir Edward Marshall Hall KC once
defended an Irish labourer. When asked by the judge, "Is your client not familiar with the maxim res ipsa loquitur?” He replied, "My lord, on the remote hillside in County Donegal where my client hails
from, they talk of little else."
[10]
More of the well known Horace ! Loosely translated “”The Age of our fathers, worse than that of their fathers, has bred us
even worse than them”. Perhaps Horace Rumpole is more edifying here: “ Even judges are human. Not many people know
that.”
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