Conisborough Right of Way Case – No Jurisdiction at Doncaster

October 1906

Mexborough and Swinton Times October 20, 1906

The Conisborough Right of Way Case
No Jurisdiction at Doncaster

William Barker Wells, weigh clerk; Thomas Henry Harrison, engine driver and Thomas Wall, miner, appeared in answer to a summons issued at the instance of Mr BJ Clarkson, confectioner, Conisborough, for alleged malicious damage to a fence at that place.

Mr William Baddeley prosecuted and Mr A Neil (Sheffield) defended.

Mr Baddeley, stating the case, said he understood his friend would set up a claim of right of way. The question would simply be asked whether the claim was bona fide, and also whether there was really anything in the claim. He thought he should be able to prove that the claim was altogether a groundless one, and if that was so it would be for their Worships to decide as to whether the defendant had the right to do damage.The defendants must give some reason, other than saying t hey had a right to go along the road, which as a matter of fact, was a private one.

In 1856 two Acts of Parliament had been granted, and in pursuance of these awards were made. The first one was to Mr George Dyson Simpson, and stated that the road in question was a private road. He failed to see that the defendants could claim the right to go on road which exactly 50 years ago was decided, in a particular case, to be a private one. There have been numerous prosecutions in that Court against persons doing damage in that place. The road formed a shortcut from some property erected by Mr Ben Wortley to the Cadeby Colliery, the people living in the property did not like the idea of being stopped, and therefore acting upon themselves to break down the fence.

John Hawksworth, assistant overseer of Conisborough, and clerk to the Parish Council, produced two awards made in the year 1856, proclaiming the road to be a private one.

Question by Mr Neil, he admitted the road led to what is known as the North Cliff, the place very much frequented by inhabitants of the locality.

The complainant, Bosdin James Clarkson, said the approach to some of his land was on the private road in question. He had been tenant for nine years. During that time there have been numerous prosecutions about people damaging the fence. The trouble began about four years ago. He instructed one of his men to watch the road. He estimated the damage at 15 shillings. He had known the road for 26 years, and there was then a gate which had some corrugated iron on the top to prevent people climbing over.

Questioned by Mr Neil, he said there was no gap between the gate on the wall through which people could pass, because they kept the space blocked up, he was continually putting up a barricade as it was pulled down. He had been written to about the matter.

Charles Hague said he saw the three defendants and other men on the part of the day in question. They pulled up the post, and tore down the galvanised iron.

Mr George White, estate agent to Mr FJO Montagu, Melton Park said he had known the road for 25 years. At each end a gate had been erected at the instance of Mr Montagu.

Mr Neil, for the defence, contended that the jurisdiction of the Court was taken away by the fact that the defendants laid down a bona fide claim of right of way. The complainant could sue defendants in the County Court for the damage and asked for an injunction. They (the defendant) would be able to meet complainant there, for they had a whole mass of evidence, including that of the oldest inhabitant, that the road had been in use by the public for many years.

The Chairman pointed out that they must have some evidence from defendants that they had a body fide claim of right.

One of the defendants, Wells, depose that he had knowledge of the road for 16 ½ years, and had never known the right of the public to the use of the road disputed, until about two years ago. Then a post had been placed in a gap the side of one of the gates.

Cross-examined by Mr Baddeley, he said the reason for the numerous prosecutions were that when the post was put down near the gate people broke through the edge into the field to get round. A public meeting had been out on the subject, and had been attended by about 200 people. There were people between 50 and 60 years of age, who had known the road, but had never previously known the use of the road disputed. He honestly believed that in helping to remove the post he had been supporting a public right of way.

The defendant Harrison said he had known the road since September 1875 and not frequently used it. He had never been stopped. He was present at the public meeting held on the subject, and was one of the three appointed to assert the public right.

Mr Neil suggested that the charge of wilful damage had been abundantly answered.

William Guest, nearly 87 years of age, said he had known the lane over 60 years. He knew the lane before the enclosure walls were made. He had been used to frequent the road as far back as he could remember.

George Harrison (62), newsagent, Conisborough, said that from his earliest recollection the road in question have been in the habit of going along the lane to the Thick at Denbigh. It was in July, when the post had been put down to stop the way.

The Bench decided that the case did not come within the jurisdiction of the Court, and it was accordingly dismissed.

Mr Neil made an appeal for the allowance of costs, as the complainant unknown person perfectly well that his client had a body fide claim. These, however, were not allowed.