Legality
of Crossing the River by the Old Ford 16
May 1868 The Gundagai Times and Tumut, Adelong and Murrumbidgee District |
John Phillips, of the Gundagai Hotel,
was charged with, on the 15th instant, going off a certain turnpike road with
the intent to avoid payment of toll. This case was brought to test the
question as to the right of the lessee of the' Gundagai Bridge to stop
travellers from crossing the river by the ford. He pleaded not guilty. Mr. Perkins,
who appeared for the prosecution, quoted the law as laid down in the Act
relative to the subject, and after some discussion as to whether the case of
a resident offered the best means of testing the matter it was resolved to
proceed with the present case. Edmund Cuthbert Body deposed that he was
authorised to act as agent for the lessee, Mr. E. Body. On the day in question ho saw
defendant start from the Northern township on horseback, ride along the Main
Southern Road, quit it after crossing the first, culvert on the flat, cross
the river, and again join the Main Southern Road on the South side, about 500
yards from the bridge; the toll charged at the bridge for a horseman passing
was 6d., defendant did not pay toll, and, witness considered, desired to
evade doing so; defendant passed down Byron-street, and witness believed
there was no highway over the flat. Mr. Perkins said even if there were
streets leading to the river they there terminated. His worship said there were public
streets all the way according to the map of the township. These had not been cancelled since the
great flood of the Murrumbidgee, and cross streets were public highways. Witness, after looking at the map,
said, in answer to his worship that he could not swear that defendant did not
go along one of the highways. His worship said Byron-street led from
the top of Mount Parnassus down to the river, on each side of the banks of
which there was a reserve for a public recreation ground. The ford there was also an old
established one, and Mr. Franklin had received a communication from the
Attorney-General stating that it might be used, but intimating that Government
was going to stop it. It was questionable whether Government
had the power to do so. After some further discussion his
worship said that to establish the offence it must be proved that defendant
went off a turnpike road into private ground - land on which there was no
highway. Now the flat was covered with roads,
although to the inexperienced eye they might not be discernible, leading to
the river; then there was the public recreation ground, and roads on the
other side. Mr. Perkins contended that the river was as great a barrier as a
wall. His worship thought not when it could
be crossed. As long as there were streets, however obstructed, a man had a
right, if he could, to pass along them, and if a resident could do this, so
could every traveller and bullock-driver in the country. He did not see how it was possible to
take any other view of the case. He considered it a very hard case for
the lessee, who paid a consideration to Government for what he supposed a
monopoly of the thoroughfare for traffic, but he could not at present come to
a different conclusion from the one he had expressed. He would, however, adjourn the further
consideration of the question to give the prosecutors time to adduce further
argument if they could. The case stands adjourned for a week. |