Carroll v Sheridan & Sheehan

Is a legal case that was heard in the High Court of Ireland. The case was about a right-of-way dispute between Gerard Carroll and James Carroll (plaintiffs) and James Sheridan and Raymond Sheehan (defendants) over a path that traversed the lands of several different landowners, each of whom is part-owner of the soil of the path, and it forms a link between the main Dublin/Dundalk road and a road leading from Dundalk to Blackrock. The plaintiffs claimed a right-of-way over the path, while the defendants denied the existence of such a right. The case was decided in favor of the defendants, and the plaintiffs were ordered to pay the defendants’ costs.

A presumption of abandonment will not lightly be inferred, and must be supported by evidence of conduct or intention adverse to the exercise of the right (O’Hanlon J, Carroll v Sheridan and Sheehan).

The extinguishment of prescriptive rights, not by their nature used incessantly (such as rights of way) will not be inferred by abandonment of the use of the prescriptive right, unless the person entitled has also demonstrated a fixed intention never at any time thereafter to assert the right again or to transmit it to anyone else (Tehidy Minerals Limited v Norman).

Section 4 of the 2021 act specifically confirms that the common-law rules regarding extinguishment apply to all prescriptive rights, and that neither the enactment of section 39 of the 2009 act, nor its subsequent repeal under section 6 of the 2021 act, affect their continued applicability.

In Barraclough v Johnson (1838) 8 Ad & E 99, 105, Littledale J commented that
“A man may say that he does not mean to dedicate a way to the public, and yet, if he had allowed them to pass every day for a length of time, his declaration alone would not be regarded, but it would be for a jury to say whether he had intended to dedicate it or not. The facts may warrant them in believing that the way was dedicated, though he has said that he did not so intend: and, if his intention be insisted upon, it may be answered that he should have shewn it by putting up a gate, or by some other act.”

Harvey V Truro Rural District Council 1903 Joyce J.
‘It is an established maxim that ‘once a highway, always a highway’. The public cannot release their rights. Mere disuse of a highway cannot deprive the public of their rights. Where there has once between a highway, no length of time during which it may not have been used will preclude the public from resuming the exercise of the right to use it if and when they think proper’

Dawes v Hawkins 1860
Is a legal case from 1860 in which a highway had been unlawfully stopped up by the adjoining owner and diverted by another route. It was held that the public had a right to deviate on to the adjoining land. The road was subsequently diverted back to its original route. The case established the legal principle of “once a highway, always a highway”. This principle still holds true, and it remains the case that public highways can only lose this status if a formal ‘stopping-up’ order is applied for and approved by the relevant authority.

Definition of Harrison V. Duke Of Rutland([1893] 1 Q. B. 142).
An improper user of a highway may be a trespass.
The plaintiff considered he had a grudge against the defendant. On several occasions he walked up and down a highway over the moors where the defendant was shooting grouse, waving his umbrella to frighten the birds. The defendant’s servants on one occasion sat on him till the shoot was over. The plaintiff sued the defendant for damages for assault. Held, the plaintiff could not recover as he was a trespasser on the highway

Taylor against Whitehead 1781
Lord Mansfield said
Highways are for the public service and if the usual track is impassable, it is for the general good that people should be entitled to pass into another line’

A public right of way is not a thing but a right, a right for the public to pass and re-pass over a strip of dedicated land and accepted by the public.

Ad Medium Filum
The principle of ad medium filum can provide some clarity where two areas of land are separated by a roadway or water feature.
Roadways
A roadway or track, and which is not publicly owned or privately owned by another, is presumed owned by each adjoining owner to its mid-point.If the above can be shown, the conveyances to the relevant owners are deemed to have included half of the roadway even if not shown on the conveyance plans.

R v Mathias (1861) BylesJ
‘A nuisance to a way is that which prevents the convenient use of the way by passengers’

Seekings V Clarke (1961) Parker LCJ
The Court ruled that “anything which substantially prevents the public from having free access over the whole of the highway which is not purely temporary in nature is an unlawful obstruction”.

Herrick v Kidner and Somerset County Council 2010
This case concerns public access to a footpath in Somerset. The essential issue is the extent to which a member of the public can have removed a gateway the landowners have built across it. The proceedings are in the form of a case stated from the Crown Court. There is no further appeal from this court. Because of that, as Mr Laurence QC for the first respondent put it, this judgment will effectively lay down the law until such time as it is reversed by legislation or another High Court Judge decides that the judgment is plainly wrong. Moreover the judgment, as Mr Laurence QC also put it, will state the law authoritatively not only in relation to this footpath but in all manner of circumstances up and down the country, in both rural and urban areas. The issue clearly deserves the most careful consideration.
Herrick and Other v Kinder and Somerset County Council

Durham CC V Scott (1990)
It was held that gates tied by twine to hedges on either side of the bridleway and held close by a loop of twine barring the entire breath of the bridleway were, notwithstanding that the delay opening the gates was momentary was an obstruction