Abstract
Trespass for breaking his close; the defendant prescribes, that all the inhabitants of the village, time out of memory…had used to dance there at all times of the year at their free will, for their recreation, and so justifies to dance there: issue was on the prescription, and a verdict for the defendant, and to save his costs the plaintiff moved in arrest of judgment, that this prescription to dance in the freehold of another, and spoil his grass, was void, especially as it is laid…at all times of the year, and not at seasonable times; and that ’twas also ill laid in the inhabitants, who although they may prescribe in easements…yet they ought to be easements of necessity, as ways to a church…and not for pleasure only, as this case is. Second, if it be good, it ought to have been laid by way of custom in the town, and not by prescription in the persons…..but by the Court, this is a good custom, and it is necessary for inhabitants to have their recreation.
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- 1.
In plain language, an easement is right to cross (a right of way) or otherwise use someone else’s land for a specified purpose.
- 2.
In this instance, prescription meant the acquisition of an easement by uninterrupted and unhidden use over a long period. Technically, the period entailed continuous and open use of the easement from “time immemorial”, which was fixed in the legal memory of English common law at 1189 i.e., before the reign of Richard I.
- 3.
- 4.
This chapter is informed by a similar, but much more erudite, account of the law’s role contribution to the birth of modern sport by McArdle 2000, Chap. 1.
- 5.
See, for example, R (Beresford) v Sunderland City Council [2003] UKHL 60; [2004] 1 AC 889.
- 6.
For a recent account of “ancient” sport, from Homer to Byzantium, see generally Potter 2011.
- 7.
See Sawer 2010 in an article that draws from sports finance data available at www.sportingintelligence.com.
- 8.
- 9.
For a witty review of how the British “invented” these sports see generally Norridge 2008.
- 10.
Cited by Holt 1990, 268.
- 11.
- 12.
See further Mangan 2011.
- 13.
Quoted by Haley 1978, 119.
- 14.
- 15.
On this “reform of popular culture” see further Burke 2009.
- 16.
It must be noted that the Elias and Dunning’s approach has been criticised for placing too much emphasis on a “violence reduction” rationale in the formalisation of sport at this time. Compare, for instance, Vamplew 2007, 161–171.
- 17.
- 18.
See generally Bailey 1978.
- 19.
Anderson 2006, 265–287.
- 20.
See Radford 2001, 33–98.
- 21.
The provision made it a criminal offence for any person to obstruct the highway by playing at “Football or any other Game on any Part of said Highways, to the Annoyance of Any Passenger or Passengers.”
- 22.
The provision made it an offence to “play at any game to the annoyance of the inhabitants or passengers” and it authorised a constable to take any person committing such an offence into custody without warrant.
- 23.
See further Vorspan 2000, 905–908.
- 24.
Walvin 1975, 50–56.
- 25.
Walvin 1975, 55.
- 26.
Huggins 2004, 15–16.
- 27.
Hunt 1995, 5–29.
- 28.
12 Ric 2 c6, Unlawful Games (1388).
- 29.
17 Edw 4 c3, Unlawful Games (1477).
- 30.
11 Hen 7 c17, Unlawful Games (1495).
- 31.
19 Hen 7 c12, Unlawful Games (1503).
- 32.
3 Hen 8 c3, Unlawful Games (1511).
- 33.
6 Hen 8 c2, Unlawful Games (1514).
- 34.
33 Hen 8 c9, Unlawful Games (1541).
- 35.
Hunt 1995, 19–21.
- 36.
39 Edw 3 c23, Unlawful Games (1365).
- 37.
- 38.
Hignall 2002, 63.
- 39.
Hignall, 64.
- 40.
Lowerson 1995, 143–153.
- 41.
Lowerson 1995, 148.
- 42.
- 43.
Under a strict settlement the immediate “owner” of the estate had very limited means of generating revenue from the land by way of, for example, leasing or mortgaging it or part thereof. This meant that not only did strict settlements concentrate landholding within an ever declining landed elite but it also meant that many estates became financially unviable for lack of investment. The overall economic undesirability of this system resulted in legislative changes such as the Settled Estate Acts of 1856 and 1877, as supplemented by the Settled Land Acts 1882, 1890 and 1925.
- 44.
Baker 2002, 295.
- 45.
See Walvin 1975, 61–62 on the “cricketing” history of founding members of the football league (Derby County FC and Preston North End FC) and both Sheffield clubs.
- 46.
Bath and North East Somerset Council v HM Attorney General and Anor [2002] EWHC 1623 (Ch), para 9.
- 47.
Clareborough and Kirkham 1999, 12–13.
- 48.
See generally Inglis 2005. Leitch designed stands for Arsenal, Manchester United, Chelsea, Everton, Liverpool, Tottenham, Aston Villa, Hearts and Glasgow Rangers.
- 49.
Collins and Vamplew 2002.
- 50.
25 Geo 2 c36, Disorderly Houses (1751).
- 51.
Collins and Vamplew 2002, 5.
- 52.
Vorspan 2000, 935.
- 53.
For an account of the related case law see Vorspan 2000, 935–948.
- 54.
Miers 2004, 239–241 and at Chap. 9.
- 55.
Collins and Vamplew 2002, 10ff.
- 56.
See generally Chalk and Holley 1987.
- 57.
Walvin 1975, 56.
- 58.
In terms of primary research on this point, it is well to note that from its establishment in 1889, the Board of Agriculture undertook annual reports of transactions, proceedings and other statistical data relevant to the Glebe Lands Act 1888 and on other related provisions, which also, indirectly, would have made land available for sporting and recreational purposes. See, for instance, the first of these reports in Board of Agriculture 1890, (5947) xxv 315.
- 59.
- 60.
See Mangan and Hickey 2009 on the “missing men” and their role as school teachers in the spread in popularity of association football at the material time.
- 61.
Walvin 1975, 59.
- 62.
See the Elementary Education Acts 1888, (5485) xxxv 1, 216, recommendation 110.
- 63.
Plans for newly built or fitted elementary schools were obliged, for instance, to provide for a playground. See Education Department’s Code of Regulations, 1891 (6272) lxi 141, schedule IV, building rule 15.
- 64.
Rose 1991, 142–143.
- 65.
See the three volume Report of the Inter-Departmental Committee on Physical Deterioration. 1904 (2175) xxxii 1; (2210) xxxii 145; and (2186) xxxii 655.
- 66.
Walvin 1975, 60.
- 67.
For a review of the working men’s club movement within the context of rational or participative recreationalism see Bailey 1978, Chap. 5.
- 68.
Wigglesworth 1996, 65.
- 69.
See generally Nicholls 1996, 20–65.
- 70.
Lowerson 1995, 125.
- 71.
Henry Shapland Colt (1869–1951), who read law at Cambridge in the later 1880s, was a leading golf architect in the first quarter of the twentieth century. The Oxford Dictionary of National Biography notes that as a designer Colt was aware of the social tensions arising in England from the great expansion of golf as a middle-class game at the time. Although Colt promoted the development of working class clubs, the Oxford DNB notes that “this arrangement did nothing to challenge the social distinctions that were already entrenched in the game”. See http://www.oxforddnb.com/view/article/41096.
- 72.
Colt 1912, 15–16.
- 73.
See Tranter 1998, Chap. 5.
- 74.
Cunningham 1980, 76.
- 75.
Cunningham 1980, 76.
- 76.
What follows has benefitted from Chap. 1 in Kain et al. 2004.
- 77.
Private Enclosure Acts driven by the concerns of local, landed elites became a feature of the legal landscape from the 1750s and become so frequent that, for the sake of parliamentary efficacy, public general Enclosure Acts were thought necessary. The first of these appeared in 1801, another in 1836 with a consolidating provision, later amended, in 1845.
- 78.
For further sources and maps see www.nationalarchives.gov.uk/records/research-guides/enclosure.htm.
- 79.
Kain 2004, 4.
- 80.
Fitch v Rawling and others (1795) 126 ER 614; 2 Hy BL 393.
- 81.
For references to similar case law and principle see Vorspan 2000, 928–929.
- 82.
Dyce v Hay (1852) 1 Macq 305.
- 83.
Dyce v Hay (1852) 1 Macq 305, 309.
- 84.
See, for example, Tyson v Smith (1838) 112 ER 1265; 9 Al & Ed 406, 421.
- 85.
Blundell v Catterall (1821) 106 ER 286; 5 B & Ad 553. In that case, the Court of King’s Bench held that, in the absence of custom or usage or prescriptive right and taking account that the shore in question was vested in an individual, the public had no common law right to bathe in the sea and to pass over the seashore, between the ordinary high and low water marks, for that purpose on foot or with horses or vehicles even where it could be done without creating any nuisance.
- 86.
Lowerson 1995, 148.
- 87.
First Report from the Select Committee on Open Spaces (Metropolis). 1865 (178) viii, 259.
- 88.
Cunningham 1980, 76.
- 89.
Report from the Select Committee on Open Spaces. 1833 (448) xv, 337.
- 90.
Report from the Select Committee on Open Spaces 1833, 18.
- 91.
Report from the Select Committee on Open Spaces 1833, 18.
- 92.
Report from the Select Committee on Open Spaces 1833, 18.
- 93.
Report from the Select Committee on Open Spaces 1833, 66.
- 94.
Report from the Select Committee on Open Spaces 1833, 8.
- 95.
Vorspan 2000, 915.
- 96.
Cunningham 1980, 151.
- 97.
Now called the Open Spaces Society. See further www.oss.org.uk/history.
- 98.
See Malcolmson 1973, 110.
- 99.
Inclosure Act 1845, s30.
- 100.
Note the extensive case law cited by Vorspan 2000, 917–921.
- 101.
Attorney-General v Mayor, Aldermen and Burgesses of the Corporation of Southampton (1858) 65 ER 957, 1 Giff 363.
- 102.
Note the case law collated by Vorspan 2000, 929–935.
- 103.
Warrick v Queen’s College, Oxford (1870) LR 10 Eq 105.
- 104.
- 105.
R v Oxfordshire County Council (Ex p Sunningwell Parish Council) [1999] UKHL 28; [2000] 1 AC 335.
- 106.
Oxfordshire CC v Oxford City Council [2006] UKHL 25; [2006] 2 AC 674.
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Anderson, J. (2013). Abbot v Weekly (1665) 83 ER 357; 1 Lev 176. In: Anderson, J. (eds) Leading Cases in Sports Law. ASSER International Sports Law Series. T.M.C. Asser Press, The Hague, The Netherlands. https://doi.org/10.1007/978-90-6704-909-2_1
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