Stonehenge Fences - The Case Law

House of Lords - Director of Public Prosecutions v. Jones and Another (On Appeal from a Divisional Court of the Queen's Bench Division)

Attorney-General v. Antrobus [1905] 2 Ch. 188

(Lord Antrobus was the owner of Stonehenge and had fenced it off and started charging for entry)

 ...The owner of the land had enclosed the monument by fencing on the view that this was necessary for its protection. The Attorney-General wished to remove the fencing in order to keep the place open so that the public could visit it. The action failed, because there could be no public right of way to the monument acquired by mere user or by the fact that the public had been in the habit of visiting it. At p. 198 Farwell J. said that the jus spatiandi--the right to walk about or to promenade--was not known to our law as a possible subject-matter of prescription. At p. 206 he said that the public had no jus spatiandi or manendi--the right to stay or remain--within the circle. In In re Ellenborough Park [1956] Ch. 131, in which it was held that the jus spatiandi, in regard to a right to use a pleasure park, could be acquired by grant as an easement, Lord Evershed M.R. observed at p. 163 that Farwell J.'s rejection of it may have been derived in part from its similar rejection by the law of Rome, and that there was no other judicial authority for adopting the Roman view in this respect into English law. But as to the matter of public right he went on at p. 184 to say this:

"There is no doubt, in our judgment, but that Attorney-General v. Antrobus was rightly decided; for no such right can be granted (otherwise than by Statute) to the public at large to wander at will over an undefined open space, nor can the public acquire such a right by prescription."

Although the use of these Latin words may seem out of date in present circumstances, they serve nevertheless as a valuable reminder of the place which the right to assemble must occupy in the context of the law relating to real property. Easements and public rights to land which are acquired by user or by dedication are limited rights, as against the occupier or owner of the land which is affected by them. They are granted or acquired for a particular purpose only, and they are not to be confused with the use of the land for other purposes. Thus a right of way or passage is entirely different from a right to walk about or a right to remain in one place. The law recognises that a right of way or passage may be acquired by user or by dedication. But it takes a different view of the right to walk about or to remain in one place. These are not rights which the public can acquire by user or by dedication. If rights of this kind can be acquired at all they can be acquired only by express grant. So they cannot be included among the rights of access which the public can enjoy as of right without the consent of the landowner.