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.