SWINDON POLICE COURT.
Thursday, September 9th 1858
THE GOLDEN LION BRIDGE, NEW SWINDON.
Mr. Kinneir, who appeared on behalf of the complainant, was preferred by Mr. John Toomer, a large coal and timber merchant, of this town, against Mr. Henry Lyde Dunsford, who was the clerk and agent of the Wilts and Berks Canal Company, at Swindon; and that the complaint was that Mr. Dunsford, as such agent, had obstructed the free passage of a bridge passing over the canal, belonging to the Wilts and Berks Company, and running across the street New Swindon, now known as Bridge street. That there was no ill-feeling between the parties to the complaint before them, and that he believed the obstruction complained of had been used by Mr. Dunsford, for the purpose of raising and determining the question as to whether or not the bridge had by use become a highway, to obstruct which was an offense punishable under the General Highway Act. Mr. Kinneir then proceeded to state the history of the bridge, and of the roads on each side of it, and said that the earliest at known as to the road was that by a decree made in the year 1657, it was directed to be set out for the use of the owners and occupiers of the adjacent fields, and to be repaired by them. That the land on which the bridge now stood was purchased by the Canal Company, In the year 1805, and the bridge was built soon afterwards. For the last fifty years the public had passed over the bridge without interruption, and that was a convenient passage for the public from the Old Town of Swindon to several villages near.
The bridge road on each side of the bridge, had been made by public subscription in the year 1845. when it was thrown open to the public, and since which time it had been repaired by the parish at the cost of the highway rate. This road being completed, and the station of the Great Western Railway having been previously made, the traffic over the bridge considerably increased, and the public had used the bridge without the slightest interruption until the month of June, 1857. Mr. Kinneir then drew the attention of the Bench to the great changes which of late years had taken place at New Swindon, pointing out that each of such changes had been the means of adding to the traffic over the bridge, and contended that on the authority of the cases decided and quoted by him on the subject, it was the duty of the Canal Company (had they not intended the public to acquire a right of free passage over the bridge) to have given long since public notice to that effect, or done some other act adverse to the public use. The notice given in June, 1857, was too late, for he public having previously acquired the right, the Company could not then revoke it.
Mr. Kinneir then examined Richard Gilmour. who said-I am a labourer and live at Eastcott; I am 60 years of age the 20th of Nov. next. I have lived always in Swindon, and was born there; I recollect the canal being made; I was four or five years old when I went down with some more children, there was some paper put on sticks when the Canal was being dug. and a man came and laid a stick across my shoulders. I recollect the bridge being put up, and a great number of people used it, amongst others Mr. Sheppard and Mr. Reynolds, and have known people go to Hayden, Rodborne, and that way to Blunsden, and drive cattle to Swindon market; old fashioned farmers used to come that way. I have seen people from Purton that I have known, and I have known people come out of Eastcott lane along Bleet-lane and up the road. Mr. Sheppard occupied a farm which had land on both sides, the canal cut his field off in the middle; we called the upper part the Upper Cow Leaze, and the lower part the Lower Cow Leaze. I lived with Mr. Sheppard and worked for him. I remember the present road being made by subscription; I had left Mr. Sheppard, long before that. I lived with him 17 years before that. I have known butchers carts go that way. I never knew of anyone interrupted at the Bridge, until Mr. Dunsford sent some man, not two years since, to stop me. I told him to go and tell his master that I knew more about the road than he did, that man is now dead. After the subscription everyone used the road. I keep a pony and cart, and draw coal and goods. I used the road 5 or 6 times a day, and was never interrupted until the last year or two.
Cross-examined by Mr. Chubb: I have known butcher's carts go up Rodbourne-lane, and cattle brought to our market, from Mr. Greenaway. of Even Swindon, and Mr. Edmonds's. I have known people come from Old Swindon Road, down Rodbourne-lane, over Bleet-lane, and up over were the bridge is to our market. I have known people come with horses and carts over the Lion Bridge. I have been to the station ever since the Railway Company have been there, five or six times a day since the bridge was built.
Re-examined by Mr. Kinneir: I have known people come from Little Blunsden.
William Read, examined by Mr. Kinneir, said- I am and have been a surveyor of highways for 14 years; 1 am about 40 years of age, and have been here 30 years. Previous to 1840, I knew Eastcott-and, there was a hard road to a point a little beyond the house lately called the Steamer, and after that an open field. On the other side of the the Steamer, a hard road was made to the Whale an Bridge, the road was repaired by the Parish. There always was a public road to the gate near the cottage. On the other side of the Golden Lion Bridge there was a road called Bleet-lane, running from the Christian Malford-road to the Cold Harbour-road. There was a general traffic over the Golden Lion Bridge. When the railway came in 1840, people used to go over the road to Bleet-lane, by Davis's public-house, to the station.
I was summoned by Mr. Strange for the non-repair of Bleet lane. The Bridge was used by the public for years, up to the time the Iron Bridge was opened. There was a vast deal of traffic over Bridge-road, and a meeting was called in 1844, as to making a new road, and a subscription was raised. I assisted Mr. Sheppard in getting up subscriptions -we raised £145 or £146, and I was instructed to make the road; the road was completed in the latter end of 1845. I superintended the making of that road. We carted the whole of the materials required on the station side over the Bridge. We were never obstructed by the Canal Company. The Canal Bridge is about ten or twelve feet, and narrower than the other part of the Canal. There is a hard approach each side-that part has been repaired by me, it is supposed to be part of the Company's property. The traffic has considerably increased to the station. Mr. Edwards and Mr. Sheppard concurred, and both the owners assisted me in plugging out the road. I afterwards applied to the parish for leave to mend the road.
On the 12th Dec., 1845, a meeting was called, and I was authorised to repair the road, (Mr. Read here read the minutes of the vestry), and ever since it has been repaired by the parish and paid out of the highway rates. After that there was a desire to get a better road to the station, and a vestry meeting was called on the 16th December, 1852, (the minutes of this meeting were also read), in pursuance of which a new road was made to the station. The iron bridge and thoroughfare to the station were completed in 1853. The public were never interrupted to my knowledge till last summer, when notice was given by the Canal Company. The road is 30 feet wide, and this is not the first question that has been raised as to this being a highway. I have taken proceedings respecting an encroachment close by this bridge. Joseph Barnes was the defendant for an encroachment; he was convicted. I was one of the committee called respecting the road.
Cross-examined by Mr. Chubb: My use was only occasionally; the road was so bad, I could not use it. The Turnpike road is as good, but there is a toll to pay.
Stephen Hibbard, said: I am in the employ of Mr. Toomer. I have had constant journeys to the station with horses, carts, and carriages, several times a-day. On the 16th of August I was sent by Mr. Toomer; I was coming to Swindon with some coals. I came to the Bridge with a horse and cart, and 5 cwt. of coal. Mr. Dunsford, stood on the bridge holding his horse, he asked me where I was going; I told him. He then forbid me. I asked him why the other cart belonging to Spackman, the carrier, had gone before me? He said that is my business. I asked him to let me go; he said I should not, and I had to turn back. About six months ago was the first time I was stopped. I never before was stopped. Before I was in Mr. Toomer's employ I was waggoner to Edwards and Thompsons since the Iron Bridge was built and then went way.
Mr. Chubb, on behalf of the defendant, relied on the Statute of Limitations, under which, as he said, a public right of way could not be acquired in a less period than twenty years; and he contended further, that as the Canal Company, under their Act of Parliament, were bound in certain events to reconvey the land held by them, to the original owners thereof, it could not have been the intention of the Company that the public should acquire a right of way over the bridge. As the Company had no power to grant such a right, and would be responsible to the original owners were such a right acquired. He then read portions of the Statute of Limitations, and the Canal Act, and cited cases in support of his views. Before calling his evidence, : he said he desired to have the decision of the Bench on the points raised by him.
Mr. Kinneir having been heard in reply to the 3 cases cited by Mr. Chubb, and having quoted other cases supporting his, Mr. Kinneir's view of the case, : and shewing that the question did not depend on the number of years during which there had been an uninterrupted user by the public, but rather on the intention of the Company, and their acquiescence in the public use.
The Magistrates then retired, but shortly afterwards returned, when the Chairman said the Bench would prefer hearing the evidence of the defendant before they gave their opinion on the points of law raised.
Mr. Chubb having, however, consulted with his client, stated that he had now determined on no calling any witnesses.
The Magistrates therefore again retired, and were absent, about a quarter of an hour. On their return, the Chairinan said the Bench were of opinion that the case of the complainant was fully proved and convicted the defendant in the penalty of 1s and costs
SWINDON POLICE COURT.
Thursday, September 9th 1858
THE GOLDEN LION BRIDGE, NEW SWINDON.
Mr. Kinneir, who appeared on behalf of the complainant, was preferred by Mr. John Toomer, a large coal and timber merchant, of this town, against Mr. Henry Lyde Dunsford, who was the clerk and agent of the Wilts and Berks Canal Company, at Swindon; and that the complaint was that Mr. Dunsford, as such agent, had obstructed the free passage of a bridge passing over the canal, belonging to the Wilts and Berks Company, and running across the street New Swindon, now known as Bridge street. That there was no ill-feeling between the parties to the complaint before them, and that he believed the obstruction complained of had been used by Mr. Dunsford, for the purpose of raising and determining the question as to whether or not the bridge had by use become a highway, to obstruct which was an offense punishable under the General Highway Act. Mr. Kinneir then proceeded to state the history of the bridge, and of the roads on each side of it, and said that the earliest at known as to the road was that by a decree made in the year 1657, it was directed to be set out for the use of the owners and occupiers of the adjacent fields, and to be repaired by them. That the land on which the bridge now stood was purchased by the Canal Company, In the year 1805, and the bridge was built soon afterwards. For the last fifty years the public had passed over the bridge without interruption, and that was a convenient passage for the public from the Old Town of Swindon to several villages near.
The bridge road on each side of the bridge, had been made by public subscription in the year 1845. when it was thrown open to the public, and since which time it had been repaired by the parish at the cost of the highway rate. This road being completed, and the station of the Great Western Railway having been previously made, the traffic over the bridge considerably increased, and the public had used the bridge without the slightest interruption until the month of June, 1857. Mr. Kinneir then drew the attention of the Bench to the great changes which of late years had taken place at New Swindon, pointing out that each of such changes had been the means of adding to the traffic over the bridge, and contended that on the authority of the cases decided and quoted by him on the subject, it was the duty of the Canal Company (had they not intended the public to acquire a right of free passage over the bridge) to have given long since public notice to that effect, or done some other act adverse to the public use. The notice given in June, 1857, was too late, for he public having previously acquired the right, the Company could not then revoke it.
Mr. Kinneir then examined Richard Gilmour. who said-I am a labourer and live at Eastcott; I am 60 years of age the 20th of Nov. next. I have lived always in Swindon, and was born there; I recollect the canal being made; I was four or five years old when I went down with some more children, there was some paper put on sticks when the Canal was being dug. and a man came and laid a stick across my shoulders. I recollect the bridge being put up, and a great number of people used it, amongst others Mr. Sheppard and Mr. Reynolds, and have known people go to Hayden, Rodborne, and that way to Blunsden, and drive cattle to Swindon market; old fashioned farmers used to come that way. I have seen people from Purton that I have known, and I have known people come out of Eastcott lane along Bleet-lane and up the road. Mr. Sheppard occupied a farm which had land on both sides, the canal cut his field off in the middle; we called the upper part the Upper Cow Leaze, and the lower part the Lower Cow Leaze. I lived with Mr. Sheppard and worked for him. I remember the present road being made by subscription; I had left Mr. Sheppard, long before that. I lived with him 17 years before that. I have known butchers carts go that way. I never knew of anyone interrupted at the Bridge, until Mr. Dunsford sent some man, not two years since, to stop me. I told him to go and tell his master that I knew more about the road than he did, that man is now dead. After the subscription everyone used the road. I keep a pony and cart, and draw coal and goods. I used the road 5 or 6 times a day, and was never interrupted until the last year or two.
Cross-examined by Mr. Chubb: I have known butcher's carts go up Rodbourne-lane, and cattle brought to our market, from Mr. Greenaway. of Even Swindon, and Mr. Edmonds's. I have known people come from Old Swindon Road, down Rodbourne-lane, over Bleet-lane, and up over were the bridge is to our market. I have known people come with horses and carts over the Lion Bridge. I have been to the station ever since the Railway Company have been there, five or six times a day since the bridge was built.
Re-examined by Mr. Kinneir: I have known people come from Little Blunsden.
William Read, examined by Mr. Kinneir, said- I am and have been a surveyor of highways for 14 years; 1 am about 40 years of age, and have been here 30 years. Previous to 1840, I knew Eastcott-and, there was a hard road to a point a little beyond the house lately called the Steamer, and after that an open field. On the other side of the the Steamer, a hard road was made to the Whale an Bridge, the road was repaired by the Parish. There always was a public road to the gate near the cottage. On the other side of the Golden Lion Bridge there was a road called Bleet-lane, running from the Christian Malford-road to the Cold Harbour-road. There was a general traffic over the Golden Lion Bridge. When the railway came in 1840, people used to go over the road to Bleet-lane, by Davis's public-house, to the station.
I was summoned by Mr. Strange for the non-repair of Bleet lane. The Bridge was used by the public for years, up to the time the Iron Bridge was opened. There was a vast deal of traffic over Bridge-road, and a meeting was called in 1844, as to making a new road, and a subscription was raised. I assisted Mr. Sheppard in getting up subscriptions -we raised £145 or £146, and I was instructed to make the road; the road was completed in the latter end of 1845. I superintended the making of that road. We carted the whole of the materials required on the station side over the Bridge. We were never obstructed by the Canal Company. The Canal Bridge is about ten or twelve feet, and narrower than the other part of the Canal. There is a hard approach each side-that part has been repaired by me, it is supposed to be part of the Company's property. The traffic has considerably increased to the station. Mr. Edwards and Mr. Sheppard concurred, and both the owners assisted me in plugging out the road. I afterwards applied to the parish for leave to mend the road.
On the 12th Dec., 1845, a meeting was called, and I was authorised to repair the road, (Mr. Read here read the minutes of the vestry), and ever since it has been repaired by the parish and paid out of the highway rates. After that there was a desire to get a better road to the station, and a vestry meeting was called on the 16th December, 1852, (the minutes of this meeting were also read), in pursuance of which a new road was made to the station. The iron bridge and thoroughfare to the station were completed in 1853. The public were never interrupted to my knowledge till last summer, when notice was given by the Canal Company. The road is 30 feet wide, and this is not the first question that has been raised as to this being a highway. I have taken proceedings respecting an encroachment close by this bridge. Joseph Barnes was the defendant for an encroachment; he was convicted. I was one of the committee called respecting the road.
Cross-examined by Mr. Chubb: My use was only occasionally; the road was so bad, I could not use it. The Turnpike road is as good, but there is a toll to pay.
Stephen Hibbard, said: I am in the employ of Mr. Toomer. I have had constant journeys to the station with horses, carts, and carriages, several times a-day. On the 16th of August I was sent by Mr. Toomer; I was coming to Swindon with some coals. I came to the Bridge with a horse and cart, and 5 cwt. of coal. Mr. Dunsford, stood on the bridge holding his horse, he asked me where I was going; I told him. He then forbid me. I asked him why the other cart belonging to Spackman, the carrier, had gone before me? He said that is my business. I asked him to let me go; he said I should not, and I had to turn back. About six months ago was the first time I was stopped. I never before was stopped. Before I was in Mr. Toomer's employ I was waggoner to Edwards and Thompsons since the Iron Bridge was built and then went way.
Mr. Chubb, on behalf of the defendant, relied on the Statute of Limitations, under which, as he said, a public right of way could not be acquired in a less period than twenty years; and he contended further, that as the Canal Company, under their Act of Parliament, were bound in certain events to reconvey the land held by them, to the original owners thereof, it could not have been the intention of the Company that the public should acquire a right of way over the bridge. As the Company had no power to grant such a right, and would be responsible to the original owners were such a right acquired. He then read portions of the Statute of Limitations, and the Canal Act, and cited cases in support of his views. Before calling his evidence, : he said he desired to have the decision of the Bench on the points raised by him.
Mr. Kinneir having been heard in reply to the 3 cases cited by Mr. Chubb, and having quoted other cases supporting his, Mr. Kinneir's view of the case, : and shewing that the question did not depend on the number of years during which there had been an uninterrupted user by the public, but rather on the intention of the Company, and their acquiescence in the public use.
The Magistrates then retired, but shortly afterwards returned, when the Chairman said the Bench would prefer hearing the evidence of the defendant before they gave their opinion on the points of law raised.
Mr. Chubb having, however, consulted with his client, stated that he had now determined on no calling any witnesses.
The Magistrates therefore again retired, and were absent, about a quarter of an hour. On their return, the Chairinan said the Bench were of opinion that the case of the complainant was fully proved and convicted the defendant in the penalty of 1s and costs
