Delivered the 27th day of April 1904 by FARRER & Co. of 66 Lincoln’s Inn
Fields in the County of Middlesex Solicitors for the Defendant.
* * * * *
This case commenced in the High Court of Justice, Chancery Division, on
Tuesday, March 28th, and continued on the 29th and 30th. Again on the
4th, 5th, 6th, and 11th and 12th of April. Mr. Justice Farwell delivered
his considered judgment on the 19th, concluding as follows:—
“I hold, therefore, that the access to the circle was incident only to
the permission to visit and inspect the stones, and was, therefore,
permissive only, and, further that the tracks to the circle are not
thoroughfares, but lead only to the circle, where the public have no
right without permission, and, therefore, are not public ways. The
action accordingly fails, and ought never to have been brought. It is
plain that the vicinity of the camp and the consequent increase of
visitors compelled the defendant to protect the stones if they were to be
preserved; and he has done nothing more than is necessary for such
protection. I desire to give the relators credit for wishing only to
preserve this unique relic of a former age for the benefit of the public,
but I fail to appreciate their method of attaining this. The first claim
to dispossess the defendant of his property is simply extravagant, so
much so that, although not technically abandoned, no serious argument was
addressed to me in support of it. The rest of the claim—for rights of
way over the network of tracks shown on the plaintiffs’ plan—if
successful would defeat the relators’ object. If these ways were left
unfenced and heavy traffic passed through the circle, there would be
great risk of injury, and even without such traffic there is great risk
from the increased numbers of passers-by. As Sir Norman Lockyer (whose
interesting application of the Orientation theory to Stonehenge has
recently appeared) says in one of his articles:—‘The real destructive
agent has been man himself—savages could not have played more havoc with
the monument than the English who have visited it at different times for
different purposes.’ I feel no confidence that the majority of tourists
have improved, nay, rather,—‘Aetas parentum, pejor avis, tulit Nos
nequiores.’ It is only fair to the defendant to say that he is not
acting capriciously but on expert advice for the preservation of the
stones. If, on the other hand, the roads are all fenced off, the general
appearance would be ruined, and no human being would be in any way the
better. It is not immaterial to remark that this is not the action of
the District or the County Council to preserve rights of way, but is
brought on the relation of strangers on the score of the public interest
in Stonehenge. The action is dismissed with costs.”
Mr. Warmington:—“My Lord, there is only one matter with regard to costs I
think, and that is the question of the Commission. {52} My Lord, those
were reserved, and they will be costs in the action.”
Mr. Justice Farwell:—“Yes. I may say this—it sometimes saves trouble,
and it is not unusual, I have done it before, and I think I may say it
now—that this is a case in which the taxing master should allow three
counsel.”
Mr. Warmington:—“If your Lordship pleases. I was instructed to apply;
but according to the practice it is done after taxation.”
Mr. Justice Farwell:—“I know it is. But I have done it before. You see
the matter is now fresh in my recollection, and a summons to vary might
come before other Judges.”
Mr. Warmington:—“If your Lordship pleases.”