Russel Wallace : Alfred Russell Wallace (sic)
Sir,--If your correspondent A. B. W. has correctly described the enclosure at Boreham Wood, Herts, there can be no doubt that it is illegal, since the question has been decided by Baron Martin, in the case of "The Queen v. The United Kingdom Electric Telegraph Company," tried at the Bucks Spring Assizes in 1862, where the law as to roadside strips was laid down in the following terms:--"In the case of an ordinary and varying highway, although it may be of unequal width, running between fences, one on each side, the right of passage on such highway, primâ facie, and unless there is evidence to the contrary, extends to the whole space between the fences; the public are entitled to the use of the entire of it as a highway, and are not confined to the part which may be metalled and kept in order for the more convenient use of carriages and foot passengers." This ruling of the judge was appealed against, and a new trial was moved for on the ground of misdirection, but it was refused, and the ruling of Baron Martin affirmed by Cockburn, C. J., Crompton and Blackburn, J. J., in the Court of Exchequer Chamber. (See Best and Smith's Queen's Bench Reports, vol. ii., page 647.)
Attention should be particularly directed to the fact that by this authoritative declaration of the law, confirmed by a court of appeal, all roadside strips "between hedges" are declared to be parts of the highway "primâ facie, and unless there be evidence to the contrary." Whenever such roadside strips are enclosed it rests on the encloser to first prove his right to the land, the primâ facie right being with the public. It is the duty of the Highway Boards, as representing the public, to prevent every such inclosure until the proprietary right of the encloser is proved; but this they rarely or never do, probably because these boards usually consists mainly of landowners and farmers, who almost all look upon such enclosures with favour.
In the current number of the Nineteenth Century Mr. H. R. Grenfell advocates the enclosure of these roadside wastes on the ground that it gives employment to labourers in winter, and provides sites for cottages, gardens, and orchards for the poor; and he terms it an "economic improvement" which the Commons' Preservation Society, Mr. Chamberlain, and Mr. Jesse Collings are trying to prevent by threats of claiming restitution. But he entirely ignores the question of who is the rightful owner of the roadside wastes. The law of the land, as declared by the highest legal authority, says they are primâ facie public property, and therefore the person who encloses and appropriates them is a robber and the possessor of stolen goods. It may fairly be asked why do not the benevolent landlords, who are so anxious to find work for the poor in winter, employ them on land which is legally their own instead of on that which they first steal from the public? Are their estates in such perfect order as to need no improvement? Can gardens and orchards be formed in no other way than by illegally converting public property to private uses? --I am, Sir, your obedient servant,
Alfred R. Wallace.