Lord Justice Chadwick:
1. This is an appeal against an order made on 3 September 1998 by His Honour
Judge Langan QC in the Norwich County Court in proceedings brought by the
appellant, Mrs Margery Hale, against the Norfolk County Council. Permission to
appeal was granted by this Court (Lord Justice Roch and Mr Justice Wilson) on
30 July 1999.
2. Mrs Hale is the owner of property known as "Hviskende Traer" at Tivetshall
St Margaret in Norfolk. The property fronts onto a roadway, known as Green
Lane, in respect of which the respondent Council is the local highway
authority. Mrs Hale occupies a detached single storey dwellinghouse on the
property. The house, which was built in or about 1968, stands some way back
from the roadway, in its own garden. The dispute between Mrs Hale and the
Council concerns that part of her garden, to a depth of 30 feet 6 inches or
thereabouts at its widest point, which is immediately next to the made up
carriageway over Green Lane. That part of the garden is shown coloured blue on
the plan annexed to the particulars of claim and it is convenient to refer to
it as "the blue land".
3. It is common ground that the blue land is in the ownership of Mrs Hale. The
dispute is whether, as the Council contends, the blue land has been dedicated
for use as part of the public highway. The dispute came to a head in April
1992, when Mrs Hale erected several low posts and a chain along the boundary
where the blue land meets the carriageway. The Council served a notice under
section 143 of the Highways Act 1980 requiring her to remove the posts and
chain; and, upon her failing to do so, did so itself. That led to the present
proceedings, in which Mrs Hale claimed a declaration that the blue land does
not form part of the highway, an order requiring the Council to replace the
posts and chain and some boundary stones (which, also, she had placed on the
blue land) and an injunction restraining the Council from entering upon the
blue land. The Council counterclaimed for a declaration that the blue land (or,
in the alternative, so much of the blue land as lay within 36 feet of the
opposite, or far, edge of the carriageway) does form part of the public highway
and for an injunction restraining Mrs Hale from obstructing the blue land (or
such part of it as might be part of the highway) by erecting posts or placing
boundary stones upon it.
4. The action was tried by His Honour Judge Langan QC on 2 and 3 September
1998. Mrs Hale conducted her case in person. At the conclusion of the argument
the judge gave judgment against her. He observed that she seemed to be under a
serious misapprehension as to her rights in law and as to what it was that the
Council were seeking to establish. He dismissed her claims; he declared that
the whole of the blue land formed part of the public highway; he awarded the
Council damages in the sum of £112.82, to reflect the cost of removing the
posts and chain; and he ordered Mrs Hale to pay the Council's costs on scale 2.
Mrs Hale appeals against the whole of that order.
5. The Council's claim to highway rights over the blue land is founded on an
alleged act of dedication by Mrs Hale's predecessor in title, Mr Arthur Wright,
at or about the time that he built the dwellinghouse in which Mrs Hale now
resides. Mr Wright conveyed the property to Mrs Hale and her late husband, Mr
Sidney Hale, in 1970. It is not suggested that anything done by Mr or Mrs Hale
in relation to the blue land could amount to the dedication of that land for
use as part of the public highway.
6. It is necessary to examine, in some detail, the circumstances in which Mr
Wright acquired the property now known as "Hviskende Traer". The property was
conveyed to him as a building plot by the Depwade Rural District Council under
a conveyance dated 3 July 1968. The building plot (Plot 2) was identified by
measurement and by reference to a plan annexed to the conveyance. The
conveyance plan is itself derived from an earlier plan ("the 1967 plan") which
appears on its face to have been prepared in April 1967 by the Engineer and
Surveyor's Department of the District Council. Plot 2 is one of three plots
shown on the plan; the three plots having together an area of 0.625 acres or
thereabouts and being part of OS No.295. The area of the three plots is shown
to be enclosed on the north and east sides by a barbed wire stock fence. The
western boundary, which is shown to be unfenced, abuts the Green Lane
carriageway. The land to the south of the three plots had already been
developed by the erection of local authority housing. The local authority
housing development is set back from the Green Lane by a service road in the
form of a crescent. The service road lies to the east of the Green Lane and
gives access to it. The south western corner of the area comprising the three
plots shown on the 1967 land is formed by the northern end of the service road
at the point where the crescent meets the Green Lane carriageway.
7. The 1967 plan identifies the three plots by measurement. Plot 3 comprises
the eastern portion of the area to be sold off. Plot 1 comprises the north
western portion. Plot 2 (which was to be acquired by Mr Wright) occupies most
of the south western portion; but is separated from the southern boundary
(where the land to be sold off abuts the local authority housing development)
by a 15 foot strip which gives access from the service road to Plot 3. The plan
shows the plots separated by a "post and wire fence 3'0" high", depicted as a
broken line. It is, however, unclear whether, at the time when the 1967 plan
was prepared or at the date of the conveyance of Plot 2 to Mr Wright (July
1968), the inter-plot boundaries were in fact defined by fences or other
physical features on the ground. Paragraph 3 in the schedule to the 1968
conveyance required the purchaser, before commencing to build on the plot, to
erect a three strand post and wire fence on the southern and eastern boundaries
of the land conveyed. It is reasonable to assume, in the context of a sale-off
of building plots evidenced by the 1967 plan, that the conveyances to the
purchasers of Plots 1 and 3 will have contained similar fencing covenants; so
that the inter-plot boundaries which were defined by measurement at the time of
the sales would become defined on the ground as the result of fences to be
erected by the respective purchasers. The only contrary indications are
contained in material which was not, strictly, in evidence before the judge.
Mrs Hale argued, in her closing submissions at trial, that the fences had been
put up by "Edwards" for the District Council before the plots were sold off.
She produced a document containing copies of extracts from the minutes of
Depwade Rural District Council held in the Norfolk Public Records Office. The
minutes record, on 17 October 1966: "Construction A provision of entrances,
fencing to building plots at Tivetshall St Margaret. Edwards J Edwards
Norwich". They record, also, on 14 November 1966: "Sale of Building Plots
Committee Minutes no 7110(A)".
8. The 1967 plan includes two features which are of particular importance in
the context of the present dispute. First, it shows, hatched, a strip 20 feet
in depth along the length of the western boundary and immediately to the east
of the Green Lane carriageway. That strip ("the hatched strip") is described on
the 1967 plan as "claimed by N.C.C. for future c./w. improvements". The hatched
strip extends along the whole of the western boundary of Plot 1; and extends
along so much of the western boundary of Plot 2 as abuts the Green Lane
carriageway - that is to say, along the western boundary of Plot 2 to the point
where that boundary is formed by the service road. Second, the 1967 plan shows
a further broken line extending from the northern boundary of Plot 1 to the
southern boundary of Plot 2, orientated more or less north to south and set
back some 30 feet or more from so much of the western boundary of those two
plots as abuts the Green Lane carriageway. The position of that line (to which,
for convenience, I shall refer as "the broken line") is identified by detailed
measurement. The measurements show the point at which access to Plot 1 from the
Green Lane carriageway is to be obtained over a driveway (with sight lines);
and the point at which access to Plot 2 is to be obtained from the service
road. The position of the broken line on the 1967 plan is such that it is
aligned with (and could be regarded as a continuation of) the line of a hedge
which is shown on the eastern side of that part of the service road which is in
front of the local authority housing development. Again, it is unclear whether,
at the time when the 1967 plan was prepared, that broken line was defined by
any physical feature on the ground. If the plots themselves were not so
defined, it is difficult to think why there should be anything in place on a
line in that position. It is difficult to think of any reason why, before
building had commenced on the area of land to be sold off, there should be a
fence or hedge in that position; and identification of the position of the
broken line by detailed measurement would have been unnecessary if there had
been a physical feature on the ground, given that this was not to be the
boundary of the land sold off.
9. The blue land is that part of Mrs Hale's property (formerly Plot 2) which
lies between the broken line and the western boundary formed by the Green Lane
carriageway and the service road. The effect of the service road is such that
the shape of the blue land can be likened to that of a saucepan - with the base
formed by the Green Lane carriageway and the top by the broken line, and with
the handle pointing down the line of the service road. Part of the blue land -
to a depth of 20 feet from the Green Lane carriageway - is within the hatched
strip shown on the 1967 plan; the remainder - having a depth of 10 feet or more
- lies between the hatched strip and the broken line.
10. Before acquiring Plot 2 Mr Wright had made an application for the
permission to carry out development which he required under the Town and
Country Planning Acts 1962. Permission for the erection of a bungalow and
garage was first granted on 16 October 1967. At or about the same time he was
given notice by Norfolk County Council in form GD 10. The notice was in these
terms:
"Erection of Bungalow at Green Lane, Tivetshall St Margaret
Public Health Act, 1925
Section 30, New Streets Byelaws
With reference to the accompanying Notice of Permission under the Town &
Country Planning Act, 1962, issued by the Depwade Rural District Council acting
as delegate planning authority for the Norfolk County Council, I have to inform
you that the highway on which the land in question abuts has been declared a
New Street under Section 30 of the Public Health Act, 1925, for the purpose of
the application thereto of the County Council's New Street Byelaws.
The road is not now of the width required by the Byelaws and it will be
necessary as soon as building commences for you to give the requisite land to
the highway at a level of 4" above the crown of the carriageway to a distance
of 36 feet from the opposite highway boundary and set back the boundary of your
land accordingly.
Please acknowledge receipt on the form below."
11. There is no evidence that Mr Wright did acknowledge receipt of that form;
but, equally, there is no reason to think that he did not receive it. The
permission granted on 16 October 1967 was subsequently revoked and replaced by
a further permission granted on 14 May 1968. The grant of that latter
permission was expressed to be "subject to due compliance with the byelaws
(local Acts, Orders and Regulations) and general statutory provisions in
force".
12. Section 25 of the Public Health Act 1925, to which reference is made in the
Council's GD 10 notice, was in these terms, so far as material:
"(1) Where it appears to the local authority that the whole or any portion of
an existing highway will be converted into a new street as a consequence of
building operations which have been, or are likely to be, undertaken in the
vicinity, the local authority may by order declare such highway, or such
portion thereof as may be specified in the order, to be a new street for the
purpose of the application thereto of their byelaws with respect to new streets
or of any provision in a local Act with respect to the width of new streets.
. . .
(4) Upon an order under this section coming into operation any person who shall
commence to erect a new building upon land abutting on or adjoining the
highway, or a portion of the highway, by the order declared to be a new
street, shall, in relation to that land, be deemed to be laying out a new
street within the meaning of the byelaws of the local authority with respect
to new streets, or of any provision in a local Act with respect to the width of
new streets."
13. Byelaws with respect to new streets were made by the County Council in July
1933. Byelaw 3 required that:
"Every person who shall lay out for use as a carriage-road a new street
intended to be the principal means of access to any building shall except as
hereinafter provided lay out the street of the width of thirty-six feet at the
least; . . . "
In that context "width" as applied to a new street means "the space intended to
be used as a public way measured at right angles to the direction of the
street" - see byelaw 1. The proviso to byelaw 3 had no application in the case
of an existing highway (such as the Green Lane) which was declared to be a new
street in pursuance of section 30 of the 1925 Act. Byelaw 13 imposed penalties
by way of fine; and byelaw 14 empowered the Council to remove, alter or pull
down any work begun or done in contravention of the byelaws.
14. The 1933 Byelaws, as made, did not extend to the parish of Tivetshall St
Margaret. They were extended to that parish by an addition made in 1937 which
came into operation on 1 January 1938. The Green Lane (there described as an
unclassified road) "from its junction with the Harleston to New Buckenham Road
B1134 south-westwards to the boundary between the parishes of Tivetshall St
Margaret and Tivetshall St Mary" was declared to be a "New Street" for the
purposes of the application thereto of the County Council Byelaws by an order
made by the Council on 4 March 1959. The order was expressed to be made under
section 30 of the Public Health Act 1925.
15. The effect of the 1933 Byelaws and the 1959 order, in conjunction with
section 30(4) of the 1925 Act, was that, on commencing in or about 1968 to
erect a building on Plot 2, Mr Wright was deemed to be laying out a new street;
and was required by byelaw 3 to lay out that street "of the width of thirty-six
feet at the least". It was that, no doubt, which led the relevant officer of
the District Council, when preparing the 1967 plan, to identify the hatched
strip - extending 20 feet back from the near edge of the carriageway - as land
claimed by the County Council for carriageway improvements; the near edge of
the carriageway of this unclassified road being 16 feet or thereabouts from the
far side of the existing highway. And it was that which led the County Council,
when giving the GD 10 notice to Mr Wright, to refer to the need to set back
the boundary of his land to a distance of 36 feet from the far boundary of the
highway.
16. The judge held that the effect of the 1933 Byelaws and the 1959 order, in
conjunction with section 30(4) of the 1925 Act, was that, on or before building
commenced on Plot 2 and without any further act by Mr Wright as owner of that
land or any acceptance by the public, such part of that plot as lay within 36
feet of the far boundary of the highway became annexed to and part of the
highway. He said this, at page 7A-E in the transcript of his judgment:
"The [Council's] first contention is that so much of the blue land as lies
within 36 feet of the opposite highway boundary is subject to the defendant's
highway rights, pursuant to the Council's byelaws and the new streets order. In
view of the history of the matter and, in particular, of the byelaws which I
have recited, I can see absolutely no answer to this contention. . . . Quite
plainly, Green Lane has been constituted as a new street and, quite plainly, a
minimum of 36 feet must lie within the bounds of that new street."
17. In the light of his conclusion that the whole of the blue land had become
subject to public rights of highway as a result of presumed dedication by Mr
Wright, the order which the judge made was not restricted to so much of the
blue land as lies within 36 feet of the far boundary of the highway. The
question whether the judge was correct in the view which he expressed in the
passage to which I have just referred does not arise unless and until this
Court is persuaded that the order which the judge did make should be set aside.
Nevertheless, it is, I think, convenient to consider that question before going
on to examine the basis on which the judge reached the conclusion that the
whole of the blue land was the subject of presumed dedication.
18. It is trite law that a public right of way over land may arise either at
common law, under the doctrine of dedication and acceptance, or by reason of
some statutory provision - see Halsbury's Laws of England, 4th edition, volume
21 "Highways, Streets and Bridges" at paragraph 64. Examples of the creation of
public rights of way under statutory powers may be found in Part III of the
Highways Act 1980. Where a highway is created by statutory powers, no act of
the land owner or user by the public is needed to complete its creation - see
R v The Inhabitants of Leake (1833) 5 Barnewall & Adolphus 469. But
where the statute does no more than authorise the setting out of a public road,
no highway comes into existence (absent adoption by user) until the road has
been set out in substantial conformity with the statutory requirements - see
Cubitt v Lady Caroline Maxse (1873) LR 8 CP 704.
19. The Public Health Act 1925, as its long title recites, was enacted "to
amend the Public Health Acts 1875 to 1907 and the Baths and Washhouses Acts
1846 to 1899 in respect of matters for which provision is commonly made in
local Acts and for other purposes relating to the public health". It would be
surprising, therefore, to find that the Act conferred powers to create public
rights of way over private land. And, to my mind, it is clear that it does not.
Part II of the Act ("Streets and Buildings"), is concerned with matters of
health and safety. Sections 29 to 32 ("New Streets") are directed to ensuring
that new streets (in which are included existing highways which become streets
as a result of building operations on adjoining land) are made up to standards
(including width) which satisfy the need to maintain or improve public health
and safety. In this respect the 1925 Act, and the earlier Public Health Acts
which it replaced, were the successors to the Metropolis Management Acts 1855
and 1862. The mischief at which sections 29 to 32 of the 1925 Act are directed
is the same whether the street is or is not dedicated to the public as a
highway - see St Mary's Islington (Vestry) v Barrett (1874) LR 9
QB 278, at page 285. There is nothing in section 30(4) of the 1925 Act which
requires that a person who is deemed to be laying out a new street because he
is building on land abutting or adjoining an existing highway shall be deemed,
by that fact alone, to have subjected his land to public rights of way. Nor can
that be result be derived from the 1933 Byelaws, which are as applicable to
private streets as they are to streets dedicated and adopted as highways.
20. I accept that, in many cases, it may well be possible to infer, from acts
done by the landowner in the course of laying out a new street in accordance
with existing byelaws, that the owner intends to dedicate the land on which
those acts are done to public use as part of the highway. And it may well be
possible to infer acceptance by the public from user of that land as part of
the highway; for example, where the dedicated land forms a continuation of an
existing verge or walkway next to the carriageway. But the creation of public
rights of way by that means is an example of the operation of the common law
doctrine of dedication and acceptance. It is not an example of the creation of
rights under statutory powers.
21. In my view the judge was wrong to hold that the effect of the 1933 Byelaws
and the 1959 order, in conjunction with section 30(4) of the 1925 Act, was
that, on or before building commenced on Plot 2 and without any further act of
dedication by Mr Wright as owner of that land or any acts from which acceptance
by the public could be implied, such part of that plot as lay within 36 feet of
the far boundary of the highway became annexed to and part of the highway.
22. The question, therefore, in the present case, was whether Mr Wright did
something in relation to plot 2 from which it would be appropriate to infer an
intention to dedicate the whole or some part of the blue land to public use as
part of the highway; and, if so, whether there was evidence of acceptance of
that dedication by the public. The acts upon which the County Council relied
are pleaded in paragraphs 11 and 12 of its defence and counterclaim:
"11. When erecting the bungalow which he later conveyed to the Plaintiff Mr
Wright erected a fence or hedge along the fence line appearing on the plan
deposited with his planning application, being the eastern or longest
side of the area coloured blue on the plan annexed to the Particulars
of Claim and bearing the measurements 47', 9'6" and 11' ("the original
line"). The original line was at all material points a distance in
excess of 36 feet from the opposite side of the carriageway of Green Lane.
12. Further, the Defendant Council contends that:
(a) By establishing a fence line more than 36 feet from the opposite
side of the carriageway Mr Wright intended to and did dedicate the
whole of the area coloured blue on the above plan as part of the
highway;
(b) Since then, and for upwards of 20 years, the area has been used by
the public as of right as a highway."
"The original line" referred to in that pleading is the line shown on the 1967
plan to which I have referred earlier in this judgment as "the broken line". As
I have already indicated it is unclear whether the broken line was a fence line
- in the sense that it was on the line of an existing fence - before plot 2 was
conveyed to Mr Wright; and the better view, as it seems to me, is that it was
not. Further, to describe the broken line as "more than 36 feet from the
opposite side of the carriageway" presents less than a complete picture of the
true position; the true position is that the broken line is at least 46 feet
from the far boundary of the Green Lane - being (as appears from the 1967 plan)
at least ten feet to the east of the hatched strip. So, if Mr Wright intended
to dedicate the whole of the blue land to public use as part of the highway, he
was throwing into the highway some 50% more land than was required by the GD 10
notice served on him by the County Council; and this would have been obvious to
him from the 1967 plan on which the hatched strip had been marked.
23. Mrs Hale accepted that, at the time that she and her late husband purchased
"Hviskende Traer" from Mr Wright, there was a post and wire fence in the
position of the broken line -see paragraph 3 of the witness statement which she
signed on 12 October 1996. She did not accept that that post and wire fence was
erected by Mr Wright. The judge made no finding on that point; but it seems to
me more likely than not that it was. The plan annexed to the conveyance to Mr
Wright is based upon the 1967 plan. The 1968 conveyance contains the covenant
by Mr Wright to erect a three strand wire fence on the on the south and east
boundaries to which I have already referred. It also contains a covenant, in
paragraph 4 of the schedule:
"Not to erect any wall or fence of any kind on the west side of the land
hereby conveyed without first obtaining the consent in writing of the
Vendors".
A covenant in that form would be inapposite if there were already a fence on
the west side of Plot 2: in those circumstances the appropriate restriction
would be against erecting a wall or fence "between the existing fence on the
west side of the land and the Green Lane". The probability, therefore, is that
Mr Wright erected the fence on the west side of plot 2 which, as Mrs Hale
accepts, was there at the time of her purchase; that he did so at or about the
same time as he erected post and wire fences on the east and south sides of
plot 2; and that he did so with the consent of the Depwade Rural District
Council as "the Vendors" under the1968 conveyance.
24. The judge summarised the District Council's submission in the following
passage of his judgment, at page 7G to 8C in the transcript:
"The argument is this; that the fence line was placed where it was in all
probability by reference to highway needs. The balance of the blue land (that
is to say all that lying west of the original fence line) was, therefore, also
dedicated prior to the plaintiff's purchase for highway use. In support of this
argument, the defendant prays in aid the "hedge to hedge" principle as
explained in Attorney General v Beynon [1970] 1 Ch 1, at pages 12 to 13
and 15 by [Goff] J, and the Rural District Council plan from April 1967, to
which I have already referred, and the fact that the alignment of the fence
line provides for visibility at the junction of a loop road leading to certain
houses and for future carriageway widening on Green Lane itself."
In that context "the balance of the blue land" means such part of the blue land
as lies between the broken line and the hatched strip; and the "loop road" is a
reference to the service road or crescent which fronts the pre-existing local
authority housing development.
25. The judge reached the conclusion, as he said "on balance", that the
District Council was right. He held, at page 8D:
". . . the fence line was in all probability placed where it was by reference
to highway needs; that the hedge to hedge principle applies; and that,
accordingly, the whole of the blue land is subject to highway rights".
26. An early statement of what has become known as the "hedge to hedge"
presumption can be found in the proposition left to the jury by Baron Martin in
R v United Kingdom Electric Telegraph Co (1862) 31 LJ (MC) 166, 167:
"In the case of an ordinary highway, although it may be of a varying and
unequal width, running between fences on each side, the right of passage or way
prima facie, unless there be evidence to the contrary extends to the whole
space between the fences, and the public are entitled to the use of the entire
of it as a highway and are not confined to the part which may be metalled or
kept in order for the more convenient use of carriages and foot passengers."
Commenting on that proposition, when the case came before the Court of Queen's
Bench, Mr Justice Crompton (with whom Mr Justice Blackburn agreed) said
this:
"Taken altogether, I think it comes to this, that, prima facie, when you look
at a highway running between fences, unless there is something to shew the
contrary, the public have the right to the whole, and are not confined to the
metalled part of it."
27. In Neeld v Hendon Urban District Council (1899) 81 LT 405 the claim
was to highway rights over a strip of land formerly part of the waste of the
manor, and separated by a ditch from both the metalled highway and a grass
strip beside the metalled highway. Both the Court of Queen's Bench and the
Court of Appeal held that there was ample evidence to rebut any presumption.
But, after consideration of the decision in the United Kingdom Electric
Telegraph case, Mr Justice Channell said this, at page 407:
"The result of that decision seems to me to be that where there is a high road
running between two fences at some distance from the part of the high road that
is actually used, a question of fact arises whether those are the fences or
boundaries of the high road. If that be so, this decision comes to little or
nothing more than that the action of the highway authorities in metalling a
particular part of the road does not limit the rights of the public to that
part. That is a very clear proposition, and it is by no means clear that the
judges [in the United Kingdom Electric Telegraph case] ever intended to
go beyond that point.
. . .
Of course it is a question of degree in each case whether or not there is a
substantial piece of waste, and then comes the question whether the fences
between the inclosed land and the waste were put up with any reference to the
highway or whether they were put where they are for some other reason. I am
inclined to think that in each case that question ought to be decided before
any question of presumption with regard to the space which in fact may be found
to exist between the fences. . . . before considering the question of
presumption, you must first consider whether the fences in existence were put
up in reference to the highway, and are fences or boundaries of the high road
in the sense in which Crompton J used the expression in Reg v United Kingdom
Electric Telegraph Co or whether they are simply boundaries separating the
enclosed land from the waste."
28. The Neeld case went to the Court of Appeal. The Lord Chief Justice,
Lord Russell of Killowen, expressed his agreement with the observations of Mr
Justice Channell, and went on, at page 409:
"It seems to me very difficult to give assent to such a general proposition as
this, that under all conditions where you find a metalled road bordered by
unmetalled margins and beyond the margins by hedges, there is an invariable
presumption that all the space between the hedges is highway. The question
whether such a space is all highway would depend, to a great extent, I think,
on many other circumstances, such, for instance, as the nature of the district
through which the road passes, the width of the margins, the regularity of the
line of hedges, and the levels of the land adjoining the road. These are all
circumstances which should be taken into account before any presumption of law
can arise as to the width of the highway. It seems to me that it is not safe to
say, as a general proposition, without knowing the conditions of each
particular case, that in such a case as I have mentioned all the space between
the hedges is part of the highway."
Lord Justice A L Smith accepted the observation of Mr Justice Crompton in the
United Kingdom Electric Telegraph case as a correct statement of the
law. Lord Justice Vaughan Williams restated the presumption in these terms:
"The presumption is that prima facie, if there is nothing to the contrary, the
public right of way extends over the whole space of ground between the fences
on either side of the road; that is to say that the fences may prima facie be
taken to have been originally put up for the purpose of separating land
dedicated as highway from land not so dedicated. But in the case of the waste
of a manor there is another obvious reason for which fences may be put up,
namely, to separate the adjoining closes from the waste. I therefore doubt if
any presumption can be said to arise in the case of a road going across the
uninclosed waste of a manor."
29. A few years later Mr Justice Warrington had to consider whether to apply
the presumption in Offin v Rochford Rural District Council 
