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Attorney-General v Antrobus [1905] 2 Ch 188, ChD

The ability of the public to acquire a public right of way over land acquired through long user

Facts

The case concerned Stonehenge and the public’s right of access to it. The site’s owner had taken steps to protect the monument by enclosing it with fencing. While well intentioned, this had the effect of preventing the public from accessing the monument. The Attorney-General started the action in order to compel the owner to remove the fencing around Stonehenge, with the aim of allowing the public to access site once again.

Issue

The issue in the case was whether the public had acquired a long user in the land leading up to the monument, which could be a public right of way, through the years of accessing the monument before it was fenced off.

Held

The court held that there was no public right of access in this case. It was not possible in law to establish such a right of access through historic user and in this case too, the public’s historic user did not contribute to establish such a right. The public’s habit of visiting a monument cannot, without more, establish a public right of way over the route to that monument.

“Now the cases establish that a public path is prima facie a road that leads from one public place to another public place-or as Holmes LJ suggests in the Giant’s Causeway case there cannot prima facie be a right for the public to go to a place where the public have no right to be. But the existence of a terminus ad quem is not essential to the legal existence of a public road. -But in no case has mere user by the public without more been held sufficient” (Farewel J)


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