were no doubt erected for the use of the public, but not with any intention of dedication. Lastly, the pier is not a highway leading to the sea-there is a lighthouse and a platform and railings at the end. What is claimed by the public is a mere jus spatiandi, which is unknown to English law. The plea of a lost grant is a mere invention of the pleader.

Robson, Q.C. (Sir E. Clarke, Q.C. and C. James with him) for the defendants.-What we claim is a right of way, not unqualified, but subject to the performance by the commissioners of their necessary functions. It is suggested by the other side that there cannot be a dedication of a structure of this sort-a structure made under

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statutory powers. Two cases are decisive in my favour on that point. The first is Grand Junction Canal Company v. Petty (59 L. T. Rep 464, 767; 21 Q. B. Div. 273), the headnote of which reads: Land acquired by a company under an Act of Parliament for the purposes of their undertaking as specified by such Act may be dedicated by them as a public highway, if such use by the public be not incompatible with the objects prescribed by the Act"-following Rex v. Leake (5 B. & Ad. 469), where it was held that a right of way over a drain age embankment was not inconsistent with the rights of the drainage commissioners. The second case is Greenwich District Board v. Maudslay (23 L. T. Rep. 121; L. Rep 5 Q B. 397), the headnote to which runs: "There is nothing inconsistent with the purposes of a sea or river wall or embankment, erected to protect neighbouring lands, in a right of way along the surface; and the same evidence of user will raise a presumption of a dedication of a right of way by the owner of the soil in the case of such an embankment as in any other case of uninterrupted and open user by the public." In his judgment in that case Cockburn, C.J. lays it down that if the Commissioners of Sewers-the public body corresponding to the commissioners in this case-had found it necessary for the maintenance of the sea wall, or for any other public purposes for which they were formed, to obstruct the right of way, the fact that they possess that power so as to obstruct that right was not inconsistent with the right itself. Consequently in this case the storm gates are not inconsistent with the right claimed by the public, but are, as a matter of fact, an instance in which that right is being protected. [PHILLIMORE, J.-The only effect of the pier being an artificial structure is that it would take a great deal more to prove dedi ation.] The same remark would apply to interruptions as well, and greater qualifications may be expected on the right of way. Then it is contended that this pier cannot be regarded as a highway, because it leads nowhere, because it does not go from one point to another, and that consequently a right of way along it cannot be dedicated or acquired by user. My answer to that is, first, that the pier leads from the town to the greatest of all bighways, the sea-the steps leading down to the sea prove that, and there is no structural interruption to access to the steps; and, secondly, that a pleasure promenade can be acquired by user to the end of the pier and back again (see the dicta of Wills, J. in Eyre v. New Forest Highway Board, 56 J. P. 517). [PHILLIMORE, J. referred to Bailey v. Jamieson (34 L. T. Rep. 62; 1 C. P. Div. 329).] At any rate, there is

no authority against the proposition that you may have a right of way merely for purposes of recreation and pleasure. There is no case which says that the same user which, when adopted for purposes of business, gives a right, does not give an equal right when adopted for purposes of pleasure. The law cannot draw a distinction unless it looks into the motives of the user, and that the law refuses to do. The user is the sole question. [PHILLIMORE, J. referred to Harrison v. Duke of Rutland (68 L. T. Rep. 35; (1893) 1 Q. B. 146).] Passing and repassing along a highway without any particular terminus, but merely for the purpose of recreation, cannot be differentiated in principle from the ordinary user. Lastly, on the facts, the obstructions were not properly brought to th notice of the people of South Shields (see the judgment of Lord Kenyon in Daniel v. North, 11 East); an occasional barrier is not sufficient when the public have been in the habit, as here, of freely using the pier for over twenty years.

Asquith, Q.C., for the plaintiffs, in reply.From the legal point of view, three questions arise in this case: (1) Has the user been precarious or of right? (2) Assuming that the evidence shows that there has been a user, not precarious, but as of right, has it been a user of the pier as a highway? (3) If, although a user under a claim of right, it has been a user of the pier, not as a highway, but for other purposes, such as recreation, has it been such a user as to give rise to any legal right? As to the first question, Parke, B. says in Poole v. Huskinson (11 M. & W. 830): "In order to constitute a valid dedication to the public of a highway by the owner of the soil, it is clearly settled that there must be an intention to dedicate, there must be an animus dedicandi, of which the user by the public is evidence and no more; and a single act of interruption by the owner is of much more weight, upon a question of intention, than many acts of enjoyment." Both in Rex v. Leake (sup.) and in Greenwich Board of Works v. Maudslay (sup.) the court drew the inference, from the fact that the Drainage Commissioners had for such a length of time not found it necessary to interrupt the public enjoyment, that the performance of their statutory duties could not be incompatible with the maintenance of the status quo. But in this case it would be perfectly competent for the Tyne Commissioners to alter at any time the nature and even the position of their pier. Mercer v. Woodgate (21 L. T. Rep. 458; L. Rep. 5 Q. B. 26) is no doubt an authority that a right of way may be dedicated subject to the right of resumption on the part of the owner which the ploughing up of the footpath involves, but in that case the right of way was never really suspended-the public could always walk over the part that was ploughed up. There is no case in which, when it has been shown that there was, as h-re, a r-current exclusion of the public, user has been he d to give rise to the inference of dedica tion. I submit that it is impossible for the public to acquire by user over a structure of this kind rights so extensive that they may interfere with the performance by the commissioners of the very purposes for which they were constituted, and for which the structure was erected. The user must be taken to be wholly permissive. As to the second and third questions, there are none of the necessary legal ingredients here of a right of way.


The user shown is only a user for the purposes of recreation. This point was discussed with reference to the user of a river in Bourke v. Davis (62 L. T. Rep. 34; 44 Ch. Div. 110), where Kay, J. held that a right of recreation by custom upon the land of another cannot exist as a right in the public generally, but must be confined to the inhabitants of a particular district. Here, as the pier is quite modern, no such custom can be proved. Robinson v. Cowpen Local Board (62 L. J. 619, Q. B.) is also analogous, where Bruce, J. declined to find a grant by an owner to the public of a right of walking all over the surface of his land. The result of the cases is that there can be no dedication to the public generally merely for purposes of recreation-that can only arise from express grant. Lastly, the point that the interruptions and obstructions were not properly brought to the notice of the people of South Shields is immaterial-the sole question is intention.

PHILLIMORE, J. began his judgment with a reference to the nature of the two actions, and continued :-Now, the history of the case may be shortly dealt with. The Tyne Commission was established by statute in 1850, and among the constituents of that commission were three representatives of the corporation of South Shields. By the Act of 1852 they were enabled to establish piers on the north and south sides at the end of the river Tyne, and, by a conveyance from the Dean and Chapter of Durham in 1854, the Tyne Commission acquired a considerable number of acres of ground, partly of rough ground adjacent to the shore, and partly foreshore between high-water mark and low-water mark, in which the dean and chapter have or claim the freehold-sufficient on which to build this pier and to make a yard for the purposes of their local railway. The progress of the pier was slow, especially in the first year, and it was not finished till 1891, the lighthouse at the end not being finished till 1895. Now, the nature of the structure, so far as I understand it, is this: It is or was a raised road starting level with the soil where it adjoined the land and rising above the surrounding land, as the land falls away or slopes towards the sea, and finally it runs out as a great embankment into the sea itself. Probably there has always been a difference in the level of the soil on the north and south sides of the pier, but at any rate since the pier has been erected there has been a great accretion of soil on both sides, and especially upon the south side, which has made the levels very different from what they were at first. I understand from the evidence that, first beginning probably at nothing, it very soon bad on the north side a drop of two or three feet. That drop became greater till it was a wall nine or ten feet high, preventing by its own height anybody getting upon the pier from the adjacent sand on the north side. There is no rail or parapet on the north side, as I understand, till we get to the part where the pier itself runs into the sea, where a rail was provided in later years for the protection of persons lawfully using the pier. On the north side there are various steps leading to the sea, and there is a floating landing stage. On the south side, where the land is higher, there is a fencing starting from the landward end till the road reaches what is called the railway yard, which is apparently an open yard in which there

are a certain number of shops or structures and two lines of rails, where the rail running across the face of the sea diverges so as to go up the pier; and where those rails run there is a considerable open space over which the public can walk, and in fact have walked, from the sand on to the pier, and from the pier on to the sand. Then we come on that side to a place where what is called a bathing platform has been made-a Causeway which is now almost silted up. Then we come to the Life Brigade House, then to a small break-about two feet-in the parapet, and then to a continuous parapet on the south side, except where it is broken by two sets of steps, the set furthest seaward leading to a urinal and closet, and not to the sea. Across this pier there are two permanent sets of gates-the storm gates nearest the land and the seaward or outer gates, which have been moved from time to time to their present position, which they assumed in 1896. Primarily the pier is a breakwater. It was not constructed to be a landing quay or to be a promenade. [His Lordship then described the circumstances which led to the present litigation, and continued:] Now, it is said on behalf of the corporation of South Shields and of the individual members of that corporation, who appear as defendants in this action, and as relators in the cross-action, and whom I will speak of in future as the corporation, because they represent the public in their general capacity-it is said by them that this pier has been dedicated for its whole length by the commissioners as a highway for members of the public seeking to pass and repass from the land to the end of the pier, and from the land to the various steps leading to the sea, and on to the sea itself; and it is further claimed that the pier has been dedicated for other purposes, viz., purposes of fishing and bathing and recreation, either by a dedication or by a lost grant. [His Lordship then enumerated the instances of dedication which were relied on.] Now, I had better deal next with the law upon this question, and I first propose to deal with the plea of the pleader in the Chancery action of a lost grant. Now, not forgetting the decision of the House of Lords in Goodman v. Mayor of Saltash (48 L. T. Rep. 239; 7 App. Cas. 633), I intend to adopt and follow the course of reasoning which Sir G. Jessel adopted in the second report of the case of Chilton v. Corporation of London (38 L. T. Rep. 498; 7 Ch. Div. 735), where he comments on à Crown lost grant in Willingale v. Maitland (L. Rep. 3 Eq. 103). In cases of modern memory, and in cases relating to public offices where a record is or ought to be strictly preserved, it would be ridiculous as a matter of fact, unless one is driven to it as a matter of law, to fiud such a lost grant. I am satisfied there was no such grant, and I further think that such a grant could not have been made, because I think such a grant would have been ultra vires on the part of the Tyne Commissioners, and would have been interfering with the public rights, for which they existed, and for which they levied rates. It would be unduly tying their hands, and I decline to find that there is any such lost grant. But possibly all the rights claimed, and I think almost certainly many of them, can be claimed without a grani as a matter of dedication. I am inclined to think that dedication to the public is not restricted to the commonest form of dedication, which is that


of a road over the soil as a highway. I have mentioned in the course of the argument, and I now mention again, that very remarkable dedication by which, until we come to modern statutes, the freehold of the soil of churches and consecrated graveyards was conceived to pass out of the original landlord, where, it is difficult to sayin some cases to the parson, and in some cases to a corporate body such as the dean and chapter. I would mention only one thing more with regard to that dedication, that it is constantly attended with qualifications and reservations, as to which we get many examples in the curious cases as to the rights in what are called lesser chancels, or side aisles. I go further. I have had very often, having been for some years the chairman of a parish council, to consider the title to, or right of user of, roadside ponds, and the view I have long formed, and shall hold till otherwise corrected, is that at any rate, although the soil of these ponds probably belongs to the lord of the manor or to the adjacent landowner, there is a dedication of the right of using these ponds, not to the parishioners only, but to the whole of the public -a dedication which can only be supported in a few other cases besides rights of way which can be dedicated by the owner of the soil. And the same thing applies to springs-though there may be some question of the right of the parishioners or of the public in that case-and the natual basins of springs. I therefore, for the purposes of this case, am prepared to assume that an owner may dedicate his land for use by the public for bathing and for fishing, and, if it be not a highway, for purposes of walking to a point and back againfor example, walking to a prospect, which is an instance taken by Wills, J. in the case which has been referred to. Anyhow there may be a dedication of a highway to a point which is such a point as a church, as in the Whitby case, or to the sea, or to a river. The unreported decision which I have referred to, in the Southampton case twice tried at Winchester, and the Medmenham case are the authorities for these latter propositions. Again, I accept the defendants' argument, that you can have a right of way over an artificial structure. The cases of Grand Junction Canal v. Petty (sup.), Greenwich Board v. Maudslay (sup.), and Rex v. Leake (sup.) all go to that point, even though that artificial structure is made under statutory powers and by a public body. But when I have said that, I must make these two or three observations. First of all, if there can be in law such a dedication as I have suggested for other purposes than that of a highway, it is rather difficult to prove, and would require very conclusive evidence. Again, if the highway claimed is over something built out of public funds, it requires considerable evidence to prove that there has been dedication, and still more evidence to prove that there has been a dedication if there is the remotest chance of the highway interfering at all with the primary use of the structure; and, further, as between the two possible views, the one that there has been a dedication by an owner of his land for such purposes as bathing, fishing, and recreation, and the other view that the whole thing has been permissive, there is a strong probabilty that the user is permissive rather than of right. In fact, to put it shortly, the very largeness of the defendants' claim militates exceedingly against its

being proved. They would be in a safer and an easier position, if they were claiming merely a right of way to go to the end of the pier or to the last gates and back again, than they are now in, claiming, as they do, the right to sit upon the pier, to observe, in crowds, races from it at regattas and galas, to fish and bathe from it, and so on. There is one other qualification-if it is a dedication, it is admitted that it is a dedication subject to a great number of qualifications and limitations. Such a qualification as the repair of a highway is, of course, always understood with every highway, but here the matter must go further. There must be repair, not merely of the part over which the highway is claimed, but repair of the lighthouse and various other ancillary structures, and, if the highway is not to the end, repair of that part of the pier which is beyond the highway. Again, here it is obvious that for many purposes in connection with shipwrecks and other matters, the whole of the highway must be stopped to the public, and the commissioners have also the power of running their trucks along it-all of which are great interferences with the public right. In fact, when I have said all these things, it comes to this, that there may be such a dedication from my point of view, if I am right in law, as the principal defendants contend for, but, if so, this is a case the like of which in all its various qualities has never been found in the books. Now I want to say a few words with regard to the specific instances of dedication. With regard to the promenade, no doubt it has been very largely used by the people of South Shields, and has been extended with the knowledge that the people would use it, and with the intention that they should use it; but the original purpose of the promenade, I am satisfied, was not for the purpose of a promenade, but because it was considered as the best mode of constructing the pier, and to enable the commissioners' own servants to get more easily from one end of the pier to the other. With regard to the conveniences, the urinal and the seats, they stand on the same footing. They are no doubt very strong examples of the extent to which the user is contemplated by the commissioners, but, if one comes to the conclusion that the whole user is by permission, it is only a further example, so to speak, of generosity, that the landlord not merely allows the public to stand and walk upon his land, but gives them certain assistance when they come to do it. When one thinks of the great number of estates which are open to the public on certain days of the week, and remembers that they are constantly accompanied by all sorts of provisions to facilitate picnicking by the public, one is not surprised that the landowner should go so far as the Tyne Commissioners appear to have gone in this case. for the storm gates and rails, I agree with Mr. Asquith that, at any rate with regard to the storm gates, it is almost a grotesque inversion of the facts to regard those acts as evidences of dedication to the public. Storm gates are put up there to prevent the public from entering for a considerable portion of the time. I will deal with them a moment later when I deal with the obstructions. The rails are no doubt useful to the public; but they were clearly asked for by, and put up for the sake of, the Life Brigade and those exercising operations in saving life. The steps and user of




the steps have been very much insisted on. Well, it is obvious that some steps are wanted to enable the commissioners' servants to land, and it is further obvious that steps must be there for purposes of common humanity. I recollect no pier, and I have seen many, which had not some means by which boats in danger of sinking, or people who were found in the sea swimming by some accident, would not find an impenetrable wall which they could not ascend. All such piers have some place of access by which people can be saved. With regard to the primary purpose of this pier, to prevent shipwreck and to save ships coming into the Tyne from the tempestuous character of the North Sea in many months of the year, it would be only reasonable that there should be a considerable number of steps along this great range of pier. No doubt they have been very largely used, and permitted to be very largely used, by boats of all kinds, and I will only say with regard to that, that the user by the South Shields pleasure boats is, I think. perfectly consistent with the fact that there has been no dedication to the public. Now, apart from these matters, the bathing, which, I suppose, implies some amount of dressing and undressing upon the steps, is clearly not a use of the highway. It can be supported, if at all, only on the ground that there is a much wider dedication. Sitting, not for the purpose of resting in the course of a walk, but sitting for the purpose of watching galas and regattas, instructed as I am by the decision of the Court of Appeal in Harrison v. Duke of Rutland (sup.), I must consider to be an act of trespass, if this is a highway and nothing The spying by pilots, again, is not the use of a highway, and, moreover, with regard to that, it is a spying upon the far end of the pier-the seaward side of the pier gates, which, for reasons I will give by-and-by, I am very positive is not a highway. With regard to the bathing, I have made my remark on it; but I may observe that the commissioners exercised one act of control, for they restricted it within certain hours which, if it is a general user, they would be unable to do. Now, these being the acts of user relied on, I come to consider the plaintiffs' case and the cases of obstruction; and, as I have intimated already in the course of the argument, I do not desire to lay much stress on the interruption on the occasion of Mr. Gladstone's visit in 1862, or of the Medical Association's visit in more recent years. Nor do I think any weight can be laid on the de facto obstruction in the case of moving the mammoth crane. I do not think much can be drawn from any of those incidents; but I regard the Boyton incident, which was in 1875, in a very different light. There was a public claim beforehand to bar the pier against free admission, intimated by placards, and leading, according to one witness for the defence, to some grumbling among the inhabitants of South Shields, which was enforced, to what extent I do not know. It is very likely a good many people, it being a new thing, were let through the barrier; but I have no doubt that there was a barrier, and I have no doubt that a great many people, or some people, were asked to pay and did pay, and that in that way a fund was raised to remunerate to some extent Capt. Boyton for his exhibition. It appears that, besides paying himself a quit rent or acknowlegment of 10s. to the commissioners,

he was charged with a sum of upwards of 4l. for the cost of the erection of the barrier. Where that barrier was I do not profess to say; but I have come to the conclusion that it was somewhere landward of the then position of the seaward gates, the seaward gates then standing in their 1872 position, and the portion of the pier landward of those gates was inclosed and cut off from the public, and the public, or a great number of them, were required to pay a shilling for permission to pass through. That is a very strong assertion of right, and it is made all the stronger by the fact that the commisioners did not consider, in the first instance, whether or not they would make it, and of course it is made in one sense stronger by the fact that the commission contained three representatives of South Shields on their body. And, regarding it quite separately, it has this very curious effect, that nobody can think after that act that the commissioners desired to make any dedication subsequently-the dedication must be before that time unless there is some very great change in the minds of the commissioners. Now, at that time the 1872 gates clearly barred any access except by permission, and a permission not easily granted, beyond this position. It is therefore impossible, in my mind, to suppose that there can be any dedication of any part of the pier seaward of the position where the 1872 gates were-that is, the position which they then occupied when Capt Boyton's exhibition took place in 1875. Now, the next matter is the storm gates, which were applied for by the Life Brigade in 1876, supported by the Board of Trade in 1877, ordered as I understand it in 1881, and not in fact put up till after a further calamity in the year 1886. I regard these storm gates as a very distinct act of control over the pier. If they had been closed only when the Life Brigade were about to operate or were operating with regard to saving life, or when there was immediate prospect of a wreck, it is possible, having in view the provisions of the Merchant Shipping Act, that the right to close them even across a highway might have been supported; but it is now past question that they have been closed many and many a time when there has been no wreck and no immediate prospect of a wreck, and closed for as long as two if not three days together. It is said that that was done as a protection to the public. No private individual has a right to protect the public against themselves. If the public have a highway and choose to walk along it, a man who bars that highway because he thinks that the public will walk along it at night and fall into a ditch by the side of it, or down a precipice, may do a very kind and benevolent act, but he is doing an illegal act which subjects him, at any rate if sufficiently permanent, to an injunction. I can see that these storm gates, locked as they were, would have been a legitimate subject of indictment, unless there were either special authority to lock them, or unless the commissioners were acting with regard to their own property, which was theirs unqualified in any way. The ou er gates I must deal with now, though I have more than once referred to them already. They had until 1896 a notice upon them that the public were not allowed to pass; but in 1892 Mr. Scott, who was called as a witness here for the d-fendants, applied for permission to pass through them where they are now; and in July 1893


the corporation asked for permission for their inhabitants and they were refused. The present arrangements did not come into force until Jan. 1896, and now there is a notice on the gates that they are open from sunrise to sunset; but the resolution that they should be open was distinctly passed by the commissioners reserving their rights and during their pleasure. As I have said more than once, I cannot conceive that a right of way beyond these storm gates can be enforced, and, that being the case, all but the using of the ultimate landing stage disappears altogether. So far for these obstructions. Now I come to the barriers which have been put up from time to time. It may be that, as one sees now, it would have been desirable that these barriers should have been closed longer, or at more frequent intervals, or possibly with public notice that they were going to be closed. It is very likely if that had been done that this litigation would have been avoided; but I cannot regard them otherwise than as a distinct assertion by the commissioners of their right to stop up the whole place, and only admit people at their pleasure. In 1879 a considerable number of people certainly came to the gates and certainly were turned back-not a great number, because it was in December, and a great number of people did not use the pier then, and because the 1879 barrier was a good way seaward up the pier, and therefore not in a position where it would obstruct the bathers or obstruct people using the bathing platform on the landward side of the Life Brigade House, though probably it was put in a position where it would obstruct people using the first steps on the south side to the sea. I have no doubt it was a barrier put up by the responsible servants and officers of the commissioners, and ratified, if not ordered, by the commissioners themselves. With regard to this, as with regard to all the other matters, I do not forget that the people most interested are the people of South Shields, and the South Shields people have three representatives on the commission. In 1891 there was another barrier, but it is more difficult to say where that barrier was. It is clear, however, that it was eastward, and some distance eastward, of the Life Brigade House. [His Lordship then discussed the evidence as to the position of the barrier.] As regards that barrier, it was certainly brought to the attention of a considerable number of people, amongst others Mr. Councillor Stainton and Mr. Nicholson. Now, my view of Mr. Nicholson's evidence is that, on the whole, it makes for the plaintiffs rather than the defendants. He goes down with a friend who wanted to see the pier ; he unexpectedly found a barrier; he found him. self alone with his friend, there being no crowd of the public, and he found one policeman. He said to the policeman: "I know all the commissioners; you have no business to stop this way; here is my card, and I am going along it." He took down the top board, the policeman standing by, and he went to the end and came back and found the top board put up again; he took it down again and walked off. Then he heard nothing more about it. On the other hand, he did not speak about it. He made no brag of what he had done. No doubt the policeman ought in his duty to his employers to have submitted Mr. Nicholson's card to his superior officer, and have told the story; but I come to the conclusion that he did

neither the one nor the other. If Mr. Nicholson had gone about the town and claimed as the village Hampden to have withstood the tyrant on behalf of the public, it would have been a very difficult matter. But in the state in which the matter rests, I take it as conclusive evidence that there was a barrier, and that at any rate nobody crossed it except Mr. Nicholson, and Mr. Nicholson only crossed it because he was a great person, or because his courage overpowered the resistance of one policeman In 1896 we get a very striking fact. Mr. Stainton, who had been there in 1891 and made an inquiry and was told that the barrier was put up to preserve the rights of the commissioners, came again and was told the same story, and, connecting the two together, he went away. Alderman Scott came and asked, and was told the barrier was to preserve the right, and be went away. Those two gentlemen, Councillor Stainton and Alderman Scott, held their peace about this matter apparently from 1896 till it was obvious that things were coming to a crisis. That those gentlemen in that position, and discharging public functions, held their peace and did not communicate things of that kind makes me come to the conclusion that the inhabitants of South Shields are people whom it is difficult to fix with notice. The commissioners did what they could, and they did enough at any rate, or what would occur to most reasonable people as enough, in barring these places for twenty-four hours. I think it was quite enough to assert their rights as against the inhabitants of South Shields and the public at large to this pier. The result therefore comes, so far, to this, that there has been an obstruction and there has been a strong obstruction, negativing the right of way, if that obstruction has not been too late. Well, I see no reason why I should presume that at any time there has been anything approaching to a dedication of the pier from the Life Brigade House seaward. Certainly there was no such dedication in my opinion before the year 1875, and in the years 1875, 1879, and 1891, let alone the year 1896, there were very distinct indications of obstruction negativing the right. At one time the claim of the public at large and the inhabitants of South Shields is put as if they had a right to walk over the pier on to the sands promiscuously wherever the level of the pier was level with the sands. In my opinion the language of the Lords Justices in the case of the Wimbledon and Putney Conservators v. Dixon (33 L. T. Rep. 679; 1 Ch. Div. 362) approving, with some qualification, the still stronger language of Sir G. Jessel in the court below, the language of Wills, J. in Eyre v. New Forest Highway Board (sup.), and of Bruce, J. in Robinson v. Cowpen Local Board (sup.), all point to this, that such a licence to stray is one which, if it can exist in law at all, as to which there is very great difficulty, requires such a case to prove it as that it practically can never be proved. Therefore I have had from first to last a strong feeling that that part of the claim of the inhabitants to walk off and on this pier wherever it is level with the sands is a claim which cannot stand upon examination in a court of justice. It is for that reason, amongst others, that I called the attention of Sir E. Clarke particularly to that destruction of the side barrier in the year 1897, when the final barrier to test the question was put up and knocked down again. Assuming that the

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