Merren & Company v Feurtado

• Jurisdiction: Jamaica
• Judge: (Duffus, P., Lewis and Henriques, JJ.A.)
• Judgment Date: 01 January 1952
• Court: Court of Appeal (Jamaica)
• Date: 01 January 1952

Court of Appeal of Jamaica

(Duffus, P., Lewis and Henriques, JJ.A.)

H.O. MERREN AND COMPANY

and

FEURTADO

H.G. Edwards for the appellants;

R.C. Rattray for the respondent.

Cases cited:

(1) Lagan Navigation Co. v. Lambeg Bleaching, Dyeing & Finishing Co. Ltd., [1927] A.C. 226; [1926] All E.R. Rep. 230, dicta of Lord Atkinson applied.

(2) Mann v. BrodieELR(1885), 10 App. Cas.378, dicta of Lord Blackburn applied.

Legislation construed:

Roads Law (Laws of the Cayman Islands, 1963, cap. 152), s.16:

(1) Whenever it appears to the Administrator that it is expedient to discontinue any road or any portion of any road he shall publish a declaration to that effect . . . and shall specify-

(a) the road or portion of road purposed to be discontinued;

(b) a day from and after which such road or portion of road shall cease to be a public road;

(c) the place where a plan of such road or portion of road can be inspected.

(2) The Administrator shall cause a plan of the road or portion of road proposed to be discontinued to be exhibited to any person who may require to examine it.

Cayman Islands Adminstration of Justice Law (Laws of Jamaica, 1953, cap. 421), s.201: The relevant terms of this section are set out at page 66, lines 36.

Tort-nuisance-public nuisance-nuisance to close public highway other than in accordance with formalities prescribed by Roads Law (cap. 152), s.16-in absence of landowners express dedication, status as public highway inferred from publics open and unrestricted use over substantial period

Tort-nuisance-public nuisance-abatement-individual may abate public nuisance if suffers special injury over that of general public, e.g. lost business following closure of public highway

The appellants brought an action against the respondent in the Grand Court seeking damages for trespass.

The appellants and the respondent were rival storekeepers who both had stores on the same public main road. Part of the road had to be closed in 1932 following hurricane damage and a deviation road was constructed over privately-owned land. When the original road was reopened for public use, half of the deviation road was closed off by the landowners and the other half allowed to remain open.

The appellants, who had a shop on the half remaining open, purchased most of the land with the intention of providing public access to their shop. The road was first maintained by the Government, then by the appellants until 1942 when they removed their shop to a site on the reconstructed main road. Members of the public continued to use the deviation road and those approaching from the north would come to the respondents store before reaching the appellants store at its new site.

In 1951, the appellants obtained permission from the Government to close the deviation road running through their property but they were requested not to do so until the land was actually required for use. Public use of the road continued until 1959 when the appellants erected a fence across it and the respondent cut it down because it prevented direct access to his shop from the north.

The appellants brought the present proceedings against the respondent seeking damages for trespass, the trespass being the destruction of the fence. The Grand Court (Robinson, Ag. J.) gave judgment for the respondent, holding that the road was a public road and the appellants, by erecting the fence across it, had committed a nuisance resulting in special injury to the respondent over and above that suffered by other

members of the public. The respondent was accordingly entitled to abate the nuisance.

On appeal, the appellants submitted that the court was wrong in law in finding that (a) the road was a public road since the proper test was one of dedication and the evidence had established that there was no intention by the landowners at the time the deviation road was constructed to dedicate it as a public highway; (b) it was not correct that closure of the road could only take place following compliance with the Roads Law (cap. 152), s.16 since that Law had only applied to roads constructed after its enactment in 1957; (c) the respondent had failed to prove damage to himself in excess of that suffered by other members of the public since there was no obstruction of the access to his shop and no other evidence to support his defence; and (d) there was no right of abatement of a nuisance on the part of a private citizen in the circumstances existing in this case which the respondent was entitled to exercise.

Held, dismissing the appeal:

(1) It was essentially a question of fact for the court to decide whether land had been dedicated by a landowner and accepted by the public for use as a highway. If the owner did not openly express his intention to dedicate the land, the court would normally draw that inference from the publics open and unobstructed use of it for a substantial period of time, especially if, as in this case, it was established that the owner was aware of the generally-held belief that the land was dedicated and yet took no steps to disabuse the public of that belief. Since the road had been in continuous use by the public for almost 30 years and had become a public highway, the appellants had committed a nuisance by erecting a fence across it (page 61, line 37 page 62, line 29).

(2) Moreover, the formalities for closing a public right of way prescribed by the Roads Law (cap. 152), s.16 were mandatory; none of them had been complied with and there was no merit in the submission that that Law applied only to roads constructed after its enactment since it clearly applied also to all roads in existence at the time (page 63, lines 1122).

(3) The respondent as a private individual could not of his own authority abate the public nuisance caused by the appellants erection of the fence, unless he could prove that he had suffered some special injury over and above that suffered by the rest of the public, such as that he was prevented from exercising his right to pass along the highway. Since there had been no evidence to support the contention that he had lost trade as a result of the appellants closure of the road, he had failed to show that he had a legal right to remove the fence. However, since the appellants had clearly been in the wrong and had not proved any special damage arising from the removal of the fence, the court would exercise its discretion under the Cayman Islands Administration of Justice Law

(Jamaica, cap. 421), s.201 to vary the order for costs but otherwise to affirm the judgment of the Grand Court in favour of the respondent as substantial justice had been done (page 63, lines 3139; page 64, lines 3134; page 65, lines 1931; page 65, line 36 page 66...