PRIVATE FOOTPATHS.

New Zealand Times, Volume LXXI, Issue 4301, 9 March 1901, Page 7

PRIVATE FOOTPATHS.

J NOT PUBLIC PLACES, j DR MoARTHUR’S JUDGMENT, | in tho case of Police v. Evelyn Harcourt, a charge of haying ridden a bieyI (,lc on a public footpath, in I which Dr McArthur, S.M., re{eently reserved judgment in order that I ho might consider a point raised by Mr fOllivier for the defence, that a footpath |in a private street was not a public ( place, judgment was delivered yesterday morning. The judgment,-after dismissing a contention by counsel for the defence that a bicycle was not a carriage within the meaning of the Act, continued : I now come- to tho second contention of counsel for the defence, namely, that the footpath in Hawkest.one crescent is not a. public footpath. Tho evidence shows that Hawkestoiie crescent and the adjoining property originally belonged to one owner, who cut his property up into allotments for sale according to a defined plan, on which was shown tho street m question. The street was made and formed by tho original owner as a means of approach to bis own residence and to the properties which he had sold. It was not a thorouglifarc, ami was only 40ft wide, and had never -been taken over by* the City Council. If we look at sections 209 and 210 of the -Municipal Corporations Act, 1900, we shall find that Hawkcstonc crescent i s by definition excluded from the term “ street ” and by definition is included in the term “private street.” By section 209 tho word “.street” moans and includes the whole- of any- land lying within any borough constituted under this Act (whether upon or at any time after Hie coming into operation thereof) that—(l) Immediately before the date of such constitution was a public highway under the control, as such, of any Borough Council, County Council, Road Board, or Town Board ; (2) is laid nut by tho council as a public highway after tho date of snob construction ; (3) for twenty years next before the date of such constitution has actually, and whether legally or not, been maintained and controlled a.s a public highway by any one or more of such local authorities, and used by the public.” It is clear from the above that Hawkcstouo crescent cannot come under tho definition of “street” or “public highway.” It is equally clear that tho said crescent comes under tho definition of a “ private street” as contained in section 209, which reads thus— “Private street moans any roadway laid out, • within a borough constituted under tin? Act, on private property by the owner thereof, but intended for tho use of tho public generally, and includes any Mich roadways as aforesaid that, at" the coming into operation of vhis Act, are laid out within any existing borough retained ami or, this Act.” It only remains to add that section 211 provides that the expressions “street” and “private street ” include every footway belonging thereto, or lying upon the line or within the limits thereof. The information must therefore be dismissed on the ground that Hawkcstonc crescent is not a. public footpath within the meaning of the Police Offences Statute, 1884. Tho other oases of a similar nature were then withdrawn by the police.