Court Case between Hebden Parish Council and George Stobbs
Hebden Right of Way Dispute
County Court Sequel to Damage and Trespass
Verdict for Parish Council
An important action of considerable local interest in which the Hebden Parish Council were the plaintiffs and two Hebden residents named George and ALbert Stobbs the defendants, was heard at the Skipton County Court before His Honour Judge R.W. Turner.
The plaintiffs claimed (1) £2 14s 2d damages for trespass by the defendants upon and injury done by them to a fence on the plaintiff's land on December 24th 1919 and March 3rd 1920; (2) an injunction to restrain the defendants from continuing or repeating the trespass, or injuring the fence on plaintiff's land - Low Green, Hebden - adjoining the west wall of a garden, lately the property of defendants' father, George Stobbs; and (3) a declaration that the whole of the land between Hebden Beck and the west wall of the garden is the property of the plaintiffs; that the defendants are not entitled to a right of way to the garden across Low Green; and that they are not entitled to turn poultry onto Low Green. The plaintiffs were represented by Mr. R.A. Shepherd, barrister, Leeds (instructed by Mr. F.G. Pearson, from the office of Mr. M.R. Knowles, Skipton; and Mr. Walker, Grassington, appeared for the defendants.
Mr. Shepherd explained that Low Green under an award of 1857 became the property of the Churchwardens and overseers of the Parish of Hebden for the purposes of a village green and recreation ground. Under the Local Government Act of 1894, the property was vested in the Parish Council. The defendants occupied a triangular piece of land at Hebden and claimed to be owners of a strip of land between the garden and an adjacent brook, while they also claimed a right of way across the Recreation Ground known as Low Green. The garden was bought by the defendants' father for £17 and covered an areas of 35½ perches. Mr. Shepherd went on to explain that when the Parish Council planted trees on the strip of land and also on other land across the stream, the defendants raised no objections; in fact their father assisted in the work. As to the right of way, he explained that the Parish Council had performed acts of ownership on the Recreation Ground, having, in addition to planting trees, carried out the terms of resolution on November 20th, 1901, agreeing to the construction of a gate-way in the boundary wall, and also to the placing of a gate in the aperture. It was made clear in the course of correspondence, added Mr. Shepherd, that the Parish Council were willing to allow the defendants any reasonable amenities on Low Green so long as they could retain the right, in the interests of the public, to discontinue those amenities when necessary.
Counsel added that the trespass consisted in the defendants allowing poultry to wander into the Recreation Ground, and the claim for damages was in respect of a post and wire fence, which the Council had erected, and which on two occasions the defendants had completely or partially pulled down.
Story of a Ratepayers' Resolution
This statement was borne out by Thomas Probert Perks, barrister, practising at Leeds, and Chairman of the Hebden Parish Council since 1913. He declared that in conversation with defendant's father, the latter had never claimed a right of way across Low Green but expressed the hope that he might obtain one. He produced minutes of the Hebden Parish Council showing that on May 8th, 1901, it was decided to construct a gateway into the Recreation Ground at a point in the fence which defendants now claimed led to their right of way across the ground. On November 20th the same year the Council decided to erect a gate. Witness said a hen-cote owned by defendants stood near the western end of the garden, and its position had been altered to give the poultry easier access to the strip of land. In December of last year the Council erected a post and wire fence on part of the strip and this had been pulled down by George Stobbs on two occasions. It had been re-built at a cost of £2 14s 2.
His Honour: What was the object of the conversation with the defendant's father?-
Witness: There was no object. It was just gossip.
His Honour: These gossip talks don't impress me very much.
In the course of cross-examination by Mr. Walker, His Honour pointed out that if a private right-of-way was being claimed, and certain property was being contested, it was the duty of the Parish Council to protect the public. "That is why", he added, "the Act of 1894 was introduced - to prevent people from grabbing land."
Witness went on to deny that other parties besides the defendants had rights of way over Low Green, although there was a public footpath across the ground to Hebden Mill. He admitted in a reply to Mr. Walker, that the question of bringing the present action had been much discussed in the village, and that the effect of a resolution passed by a ratepayers meeting was that the Parish Council be requested to withdraw the proceedings.
His Honour (to Mr. Walker): Are you going to suggest that these proceedings have not been legally bought?- Mr. Walker: I suggest they are not being bought in the interests of the ratepayers.
Replying further to Mr. Walker, witness admitted that the resolution referred to was carried by 18 votes to one as the result of a careful ballot, and that he was the one who opposed it. He was not satisfied with that expression of public opinion.
His Honour here interposed with the remark that as a matter of law this aspect of the case did not impress him.
Further evidence as to the planting of trees on both sides of the stream by the Parish Council was given by M. Simpson, gardener, of Hebden.
Onus of Proof on Defendant
Mr. Shepherd at this juncture submitted that it was now for the defendants to prove their titles to the strip of land and the right of way.
His Honour agreed, and it was contended by Mr. Walker that the defendants claim to the strip of land in question was based upon an award of 1857 in which the area of Recreation Ground was specifically defined as being 2 acres 2 roods 11 perches in extent. In the absence of affirmative evidence that this area must of necessity include land on both sides of the stream, he held that His Honour must say that only the land to west of the stream (Low Green) must be included. The title to the strip had never been in dispute before these proceedings were commenced, and the strip had always passed as appurtenant to the garden.
In supporting the defendants claim to a right of way on the ground of "long user", Mr. Walker was interrupted by His Honour, who pointed out that according to the title deed before him, the defendant's father did not own the garden before 1901.
Mr. Walker replied that the defendants' predecessors-in-title were the owners long before that date. He asked the Judge to consider the claim also in regard to the position which existed when Low Green was open and common land. It was not feasible to suppose that the defendants' predecessors-in-title in order to reach the garden from their house would have taken an alternative route of 390 yards when they could take the Low Green route of 109 yards.
There was a sharp passage between Mr. Walker and His Honour when the former proceeded to claim, also on the ground of "long user," the right of the defendant to turn their poultry on to the Recreation Ground. Mr. Walker explained that in fact the poultry did not venture over the whole ground, but only on that portion co-existent" with the western wall of the garden.
His Honour: If you are the owners of the strip of land you have the right to turn your poultry on
to it, but you ought to fence it off first. Do you claim the right in respect of the whole of the
Mr. Walker: No. We claim the right to -
His Honour: To generally wander over your neighbour's land, although you don't claim it as user.
Mr. Walker: I won't go on. I can't go with these interruptions.
His Honour: Go on. I shall not say another word unless -
Mr. Walker: It is extremely difficult for me to conduct my case.He went on to submit that even if the defendants had not a right-of-way over the land, they were not exceeding, in their use of it, their rights under the Enclosure Award.
His Honor: If you enter the Recreation Ground to enjoy the scenery, I think a modus vivendi might be found. But you are claiming a right of way.
Mr. Walker: That does not in the least affect the defendants' claim.
A Case of Local Interest
Evidence in support of Mr. Walker's statement was given by Mary Jane Stobbs (the defendants' mother); Jane Wardman; William Robert Brown, farmer; William Bell, blacksmith; John Thomas Brown, clogger; and William Henry Hebden, farmer.
In his reply, Mr. Shepherd said that the strip of land in question belonged to the Parish Council as it was not included in any conveyance of land to the defendants. He was proceeding to discuss the question of right, when His Honour, interposing, suggested that the case was one of local interest, and Mr. Shepherd should call one or two witnesses if they were likely to throw light upon that question.
Replying to Mr. Shepherd, Thomas Francis Hammond declared that as owner of the house occupied by the Stobbs family he had never claimed any rights of way across the Recreation Ground, neither had defendants' father nor John Brown (another one-time occupier of the garden) ever made any similar claim.
His Honour, after a lengthy review of the evidence, said the defendants failed on each of their contentions, and there would be judgment with costs for the plaintiffs in respect of all the claims made.