Beach Control Authority v Price

• Jurisdiction: Jamaica
• Judge: Cools-Lartigue, J.
• Judgment Date: 19 December 1960
• Neutral Citation: JM 1960 CA 11
• Court: Court of Appeal (Jamaica)
• Date: 19 December 1960

Court of Appeal

Cools-Lartigue, J.A.; Semper, J.A.; Duffus, J.A.

Beach Control Authority

and

Price

Appearances:

Richard Mahfood for the appellant

David Coore for the respondent

Real property - Right of way - Beach — Right to use of beach “Claim by public or a class of public — The Beach Control Law, 1955 [J] — The Prescription Law, Cap 304 [J] — The Prescription (Amendment) Law, 1955 [J

Cools-Lartigue, J.

1 delivered the judgmentof the court: In this case, the plaintiff-appellant claimed a declaration that a right of way exists across the defendant-respondent'sland at Cocoa Walk leading from the main road to the beach and also that the inhabitants of Drapers and the surrounding districts are entitled to the use of this right of way and the use of the beach. In the alternative the plaintiff-appellantclaimed an order that the public at Drapers and the surrounding districts have a right to usethe beach at Cocoa Walk in the parish of Portland and the roadway leading from the public road at Cold Harbour to gain access thereto.

2 The action was brought under the provisions of s 14 of the Beach Control Law, 1955, No 63 [J], which empowers the Beach Control Authority, upon receipt of a petition from not less than five persons concerned in any dispute with respect to the right to use any beach, or any land, road, track or pathway to gain access to such beach, to lodge a plaint in the appropriate court pursuant to s 8 of the Prescription Law with a view to establishing such right. By consent a signed petition was put in evidence before the learned resident magistrate and the locus standi of the appellant in the action admitted.

3 It was common ground throughout the hearing of the action and, indeed of this appeal, that the appellant's claim is based on s 2 of the Prescription (Amendment) Law, 1955, No 65 [J], which inserts a new section, 3A, in the Prescription Law (Cap 304 of the REVISED LAWS OF JAMAICA).Subsection (1) of that section reads as follows:

‘When any beach has been used by the public or any class of the public for fishing or for purposes incident to fishing, or for bathing or recreation, and any road, track or pathway passing over any land adjoining or adjacent to such beach has been used by the public or any class of the public as a means of access to such beach, without interruption for the full period of twenty years, the public shall, subject to the provisos hereinafter contained, have the absolute and indefeasible right to use such beach, land, road, track or pathway as aforesaid, unless it shall appear that the same was enjoyed by some consent or agreement expressly made or given for that purpose by deed or writing.’

4 A scrutiny of that section discloses that in order to succeed in his claim the appellant must establish continuous user by the public or any class of the public without interruption for the full period of twenty years and s 4 of the Prescription Law makes it clear that this period is twenty years before action brought, that is, before July 1959, when, as agreed, another action in respect of the same dispute was commenced.

5 In his judgment the learned resident magistrate found as a fact that the Cocoa Walk beach was never used by the villagers of Drapers for fishing or for any purpose incident thereto and that finding has not been challenged in this appeal.

6 The only point argued before us was whether there was user by the public or any class of the public of the beach for the purposes of bathing or recreation without interruption for the full period of twenty years before action brought.

7 The learned resident magistrate found the following facts:

• (a) That the villagers of Drapers from at least the year 1926 used the pathway to go to the spring, primarily for the purpose of washing clothes, but also used the stream which runs across the beach to the sea, for the purpose of bathing;

• (b) that from 1926 to 1948 many of the villagers used the beach to go to the sea for the purpose of bathing or recreation;

• (c) that between 1949 and 1954 the use of the stream or spring, pathway and beach ceased except by a few individuals, not exceeding twenty in number altogether, who were given individual and personal permission by the then overseer in charge (Mr Shelley) to use the beach at Cocoa Walk for the purpose of bathing.

8 It is of the finding at (c) above that complaint is made in this appeal by the appellant.

9 The first point argued before us by counsel for the appellant was that in order to establish the right to the beach sought in...