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On public rights of way here and there

After a protracted stay in the town of Stamford, Lincs, it was a pleasure to return to Cobourg. Interestingly, although Stamford and Cobourg are, with respect to the size of their populations (about 18,000), of equal size, they share some other features or characteristics of community life in common, but not many. For instance, you can walk about Stamford all day and never, or hardly ever, succeed in making eye contact with a passer-by and receive a cordial greeting. Eyes are ever averted. The visitor from North America wonders if that is common throughout the U.K. these days. Do the women of Stamford fear molestation and the men a mugging? It's hard to tell. In the downtown district, I struggled to lift an infant in a push chair up two steps and into a shop. A stranger helpfully held the door open for me.

"You're not a native of this town, are you?" I asked. "No," he replied. "But how did you know?" I didn't say, but he too was a visitor, from Washington, DC, while I admitted in the conversation we struck up to be from Cobourg. In this burg, you can walk from one end of town to the other collecting and offering a "Good day!" or "Hello!" or "How are you?" the whole day through.

Stamford goes back a 1,000 years and was a flourishing, civilized community when the first comers to Cobourg (or New Amherst as it was then) two hundred years ago were hacking away at the timber and bush to build homesteads. At that same time, Stamford has buildings in abundance built of Lincolnshire grey stone that rose from the earth in the 17th and 18th centuries and earlier. This feature makes it a truly ancient town and, therefore, much in demand by film directors. The most recent tv production of Austen's Pride and Prejudice is a case in point while near to Stamford is Burghley House, closed to the public during the filming of The da Vinci Code.
Stamford, Lincs., as seen from the public meadow
© Gordon Darley
In contrast, the only structure that dates Cobourg is Victoria Hall built and opened in 1860. As for film settings, the town has had its share, though one would be hard pressed to name a single production. The contrast is more striking when it comes to public footpaths and rights of way. In this regard, Stamford is a shining example of the established public right to footpaths and other amenities that no statute of the realm can remove. Such is not the case in Cobourg even though the same rights of public usage are supposed to follow English common-law.
Cobourg's public rights of way are as scarce as Stamford's are plentiful. Courtesy of Mr. Henley, the cobbler who once owned premises on King Street, the public enjoys the Henley Arcade. This is the arched passageway that connects King Street with the Covert Street parking lot and gives access to the Cat and the Fiddle, law offices and commercial enterprises on the north side of the parking lot. There might also be the odd public path that connects thoroughfares on the east side of the town, but I know of but one.
Cobourg's Victoria Hall opened in 1860
© John Draper
There was until recently a well-established public footpath in the town core that connected King Street with the municipal parking lot on the south side of the police station (oops! sorry – police services facility). It was closed to public without so much as by your leave following the decision to build an ambitious extension to the PSF. Closure of this public right of way evidently did not warrant discussion. Even if it did nothing appeared in our reputedly observent newspapers. The town engineer closed the lane anyway. The extension is now built, with a brand new choky to hold our local villains and prisoners in transit (what was wrong with the old slammer?). As well, our deserving police have showers, but whether they're individual assigned is not known. The main point of the closure of a public footpath way is that the town council has set a precedent and an example for private property owners to follow.

Come now to the west beach, which stretches from the west breakwater of Cobourg harbour to Factory Creek. As most residents know, the west beach has been established as public property by 200 years of use. At enormous cost ($50,000 plus the inevitable over-run we can expect), the town is constructing a ten feet wide wooden path cycle way on the west beach. If this is not proof enough that the stony beach and wild life area is public property I don't what is. The path will snake over the beach to at least as far as the foot of Ontario Street. Its purpose, one understands, is an added feature to attract tourist dollars. It cannot be for the benefit of Cobourg's residents, those who visit the area would be content to continue using the well-worn public footpath.

This Trojan boardwalk – meaning it harbours a host of troublemakers in the making – will provide a perfect highway for drag-racing cyclists, even motor cyclists when they get wind of it. Watch out then for terrorized elderly pedestrians. The boardwalk will also provide the town's 'police services' a new area to patrol and, no doubt provide a sound basis to increase its operations budget. These matters, however are the least of the worries regarding the west beach. There is much more to it.

Quite apart from being scattered to the four winds like so much cardboard at the first on-shore storm, the boardwalk-cum-cycleway has put the owner's of the west beach lakeside properties in a tizzy. It's a wonder that our local rag's intrepid reporters have as yet failed to register the approaching storm. Is a storm brewing? There could be.

Having some inkling the town was planning to build the structure, one owner of lakeshore property some months ago erected a fence that projected well onto the beach. The owner's intent was to delineate the property while the purpose was to warn the town off the land. The action was understandable. It meant a diversion south towards the shore. The walk will take a thrashing from the first on-shore storm and its section will scatter life sheets of cardboard in a hurricane.

Other property owners took a lead from the original fence builder. Many have constructed their fences and posted dire warnings to beachcombers and visitors alike: PRIVATE PROPERTY  - KEEP OUT, NO TRESPASSING! Fast forward now to mid-afternoon, Sunday, 30 October 2005.

The sky was blue, the weather magnificent for an afternoon's walk. Save for a single party of seven walking at the inland edge of the beach proper, the beach was deserted. Heading towards Factory Creek, the group consisted of two men, their wives, two daughters and a frail, grey-haired matriarch in her late eighties. Heading in the same direction, we at first thought they were a party at prayer when they stopped and bunched together, but no! They had stopped only for one of them to take a photograph, before continuing their stroll.

At the first fence encountered, four of the party climbed over and headed for the creek in a straight line. The others walked around the obstruction to join their companions on the far side. They reached the creek and stayed a while before heading back the way they had come. We were closer to them by this time, within hailing distance, when a figure clad in a track suit emerged from the house adjacent to the creek and approached the party. Being nosey, and hearing the words "...private property...trespassing" I joined the group to hear what and going on.

"Do you have the title deed?" I enquired of the owner. He was a nice enough fellow, early middle age, fresh-faced, clean shaven, well-spoken. "Certainly," he said. "Would you like to see it?" I told him I would, so he obligingly sprinted back to the house to bring the title deed. During his absence my fellow (alleged) trespasser said the owner had first addressed the eldest member of his group to inform her of the trespass. [Unchecked, she might perhaps have done untold damage on the property. This was a serious matter.]

MInutes later the owner returned and, like Prime Minister Neville Chamberlain after his meeting with Herr Hitler in Munich, triumphantly waved a fistful of paper. Here, said he, pointing a the relevant clause, inviting us to read it for ourselves. Sure enough, there it was in black and white. "... and 350 feet, more or less, to the water's edge." But hold on, this was a recently prepared document, not the original title deed. I ignored this small matter for the moment.

Did this mean, I asked, that I could paddle in the water past the property and not be guilty of trespass. Indeed that was so, said he. Or walk on the water as was done in ancient times according to another copied document, but not on the sand with the gentle ripples of the water lapping over my feet? True, very true, said he.

Here my fellow inquirier spoke. "But people have been walking the beach to the creek for the past two hundred years. It's the public's right of way established by law." Not so, said the owner and again flashed the relevant clause before our eyes again in confirmation. The version he held was freshly printed on quarto sized paper. It was so, he assured us. His own father, a lawyer in Peterborough forty miles north of Cobourg, had checked the original document in the registry office before drawing up the deed in his hand. He wanted to be sure of the title before he bought the property, he explained.

He was new in town, an ophthalmologist by calling. He might have had privileges at the new hospital to prove it, but didn't say. He would, however, be pleased to check out my cataracts if I had any or check and macular degeneration should the need arise, but wasn't this getting off the subject, I asked with equal pleasantness. As my fellow trespasser asked – his wife and relations had gone back to their vehicle at the first hint of confrontation – why was he so intent on denying access to a public right of way established under common law over the past two hundred years?

For two reasons, he told us in all reasonableness: one was liability. If someone had an accident, say, cut his or her feet on broken glass – young people drink on the beach at night and smash bottles – he could be held liable. They did lots of other things on the beach at night, I argued, so would he be legally liable for their resulting medical problems, say, such as getting sand in their eyes? My fellow petitioner followed up with another question. What about the 'distressed mariner' law of the sea? he asked. What if a shipwrecked mariner arrived exhausted on his beach? Would he be a trespasser?

The accomodating owner declined to answer both questions and, losing his train of thought, forgot the second reason for excluding the public from his property. The other owners felt the same. But wasn't he being rather mean spirited in his denial. Did he mean to say he'd deny an inoffensive visitor such as myself from walking on the beach? No, he wouldn't, not at all. In fact, he expressly granted me permission orally in the presence of a witness to walk on his property to Factory Creek at any time. I would, but the trouble is I would have one heck of a problem crossing the property of his fellow lakeshore owners with "...350 feet, more or less, to the water's edge." clauses in their deeds of ownership.

The lessons to be taken from this encounter are plain for all who have been paying attention. First, by its decision to tart up the west beach with this wooden boardwalk monstrosity, Cobourg Town Council has set a precedence in denying the townspeople of Cobourg their public rights of way. It has set a bad example to private property owners who want us louts treading their beach fronts. They have drawn a line in the sand. They should be reminded that this is the way wars are started.   

Secondly, this bland and mute acceptance by the people of Cobourg in having their public rights of way taken away is in sharp contrast with what would happen in Stamford, Lincs. There, unwarranted closure of a public footpath would raise the townspeople of that ancient community to a fury. They would join together for common cause at the drop of a hat. We Canadians proudly sing "Oh Canada! We stand on guard for thee", but we never actually do anything. We stand passively on guard, but do nothing about it.

(To be continued)

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