1. This is an appeal from the Tribunal of Appeal, which on a reference from the Special Collector under the Land AcquisitionAct and the (sick) of Bombay Improvement Act awarded to the claimant Rs. 8, (sick) 4-6 as compensation for a parcel of his land acquired for (sick) Improvement Trust. The reference is case No. 502 of Scheme No. III, and the land in question consists of 212 square yards, with a substantial building upon it. It is situated on the Eastern side of Navroji Hill and abuts on a road or passage, known as Navroji Hill second road, which runs along the top of the scarp forming the Eastern boundary of the hill. Towards the West the slope of the hill is generally downwards ; and Eastwards of Navroji Hill second road is level ground from which the hill has been quarried away. The highest point of the hill was situated on that part of the hill East of Navroji Hill second road which part has, as I have said, since been quarried away.
2. Navroji Hill second road, which I shall hereafter refer to simply as the road, is not included in the present reference, which extends only to the Western border of the road; yet the ownership of this road is the main question with which we are concerned in this appeal. The claimant contends that the road is his property, and upon this contention he mainly grounds his claim to receive compensation on the footing of the valuation of the land in reference not upon a rental basis, but as forming part of one entire quarriable area in conjunction with his neighbouring parcels. For, if the road is the claimant's property it is evident that there is no physical difficulty in continuing quarrying operations from the East to such point westwards on. the falling hill as may mark the limit of profitable quarrying. If, on the other hand, as the respondents contend, the road has been dedicated to the public as a high way, the claimant's only resource is to recommence quarrying from the western foot of the hill, and that admittedly is a far more expensive undertaking.
3. Now the Tribunal on the third, fourth and fifth issues before it has found (a) that the road is a public high way; (b) that consequently it is not quarriable by the claimant ; and (c) that there is no quarriable value for the land in reference, for which a purchaser in the market would pay.
4. Then, without prejudice to any consideration on either side it was agreed before the Tribunal that it should find the value of the land in reference (sick) if it were a portion of one whole quarriable area, (sick) on the assumption that the road was the private property (sick) the claimant and so formed no obstacle to his quarrying (sick) the East. The Tribunal, therefore, proceeded to assess the land on this basis and in so doing applied the principle adopted in The Mayor of Tynemouth v. The Duke of Northumberland (1903) 19 I.L.R. It was urged that since the land had been let out for building purposes to various tenants in perpetuity, the tenants could not quarry, nor could the landlord enter in order to quarry ; but this objection was answered by the Tribunal on the ground that what they had to ascertain was the market value of the land (Section 23, Land Aquisition Act), all separate interest being taken to have combined to render the land available for sale in the market.
5. This view, which was of course in the claimant's favour, followed previous decisions of the Tribunal. Then upon a calculation of the various items making up the value on the quarriable basis, the Tribunal came to the conclusion that the market value on this basis at the time of the declaration was Rs. 8,109. But upon the rental basis the land was found to be worth more than this, namely Rs. 8,546, or Rs. 1,346 in excess of the Collector's award. The claimant was, therefore, offered Rs. 8,546 as compensation for his land, and, being dissatisfied with that sum, he has appealed here.
6. The question for our decision ultimately is whether the claimant is entitled to a larger sum as compensation than the Rs. 8,546 awarded; and this will largely depend upon our determination as to the ownership of the road. It is indeed to this point that the stress of the argument has been directed. In the first place it must be observed that the road is not a cul de sac, but communicates at one end with an important thoroughfare and at the other end with several passages running at right angles to it. It is not a pathway over a desolate hill, but is a defined roadway running between lines of houses in a populous quarter. It is so shown in Dickinson's map which dates back to about 1825, and again in Laughton's map of about 1872. We are of opinion that considerable importance attaches to this situation of the road, and that in this respect the case is at once distinguishable from Attorney-General v. Antrobus  2 Ch. 188, upon which Mr. Inverarity relied for the appellant. Here we have a road open to public access in a populous quarter and affording communication with other roads or ways. It has been urged that, judging from the topography of the site, the road would be less convenient for through communication than the road below it; but even assuming that there is a more convenient road, a point which is not beyond doubt, that circumstance would have no great weight.
7. The first actual mention of the road occurs in Ex. 5, a letter written in April 1888 by the claimant to the Municipal Commissioner on the subject of an arrangement under which the Municipality was to make a road through the claimant's Navroji Hill property upon payment of Rs. 90,000. The letter raises certain questions as to frontages, with which we are not now concerned, and then goes on to announce that the claimant will require the Municipality to keep up the 'communications of the two main roads, viz., the Navroji Hill third road and Navroji Hill Street.' It is common ground that the Navroji Hill third road' of this passage is the road with which we are now dealing, namely, the road known in this case as the Navroji Hill second road; and the point of the citation is that the claimant himself apparently regards this road as of the same character as the Navroji Hill Street, which admittedly is a public street.
8. Leaving for a moment the claimant's own descriptions of the road, and turning to the oral evidence of the witnesses examined, it must be conceded that their depositions are somewhat inconclusive. For the case now made by the claimant is that the actual user of this open road was restricted to his tenants living on the hill, and it is argued that the witnesses do not carry the case beyond this point. It appears to us, however, that that is not quite an accurate statement of the effect of this evidence, though we do not say that the evidence is as clear or as full as one would expect it to be on the assumption that the road has always been a public high way. Krishna Kaghu, who is over eighty years of age and has lived all his life on Kavroji Hill, says at first that only the people on the hill use the road; later on, he adds that he has also seen hawkers using the road on their way to sell vegetables &c;, to the people on the hill. Ramchandra Coopaji, a Marwari shroff, has lived on the hill for thirty years and has always used the road to collect money from his customers. He has, he says, known the road for thirty years. And then comes this important statement: 'no one has ever stopped me from using that road. I have never seen any one stopped.' And the witness is not cross-examined upon this statement. Salla Puma, a dealer in pots, has lived on the hill for forty years and has always used the road. Govind Kushaba, a fruit seller, used the road for twenty-five or thirty years, and no one ever stopped him from using it. He is a tenant living on the hill. This completes the direct evidence except for the testimony of certain enumerators or observers who were posted about the Hill in 1907 ; as this occurred after the present litigation had begun, and the observers were for the most part placed along other roads than the road in dispute, we do not regard their evidence as of much assistance. But the resident witnesses whom we have named above cannot, we think, be so lightly dismissed. It is true that they are residents of the hill, but we do not find in the evidence any warrant for the suggestion that a distinction was drawn by the claimant between residents and any other members of the public. It is in evidence that hawkers were allowed free access, and it is scarcely to be expected that the road would be frequented by persons not having business in the neighbourhood. But to our minds the most important circumstance is the complete absence of evidence to suggest any precarious user, any user by sufferance or toleration. The evidence shows rather that this road, which was physically open to free access by the public, has for over half a century been used open ly and as of right and without interruption by such members of the public as had occasion to use it. Upon this point reference may be made to Maepherson v. Scottish Rights of Way Society (1888) 13 App. Cas. 744 and Mann v. Brodie (1885) 10 App. Cas. 378. It is true that these were Scottish cases, but bearing in mind the difference which Lord Blackburn points out in the English Law (1885) 10 App. Cas. 385, the decisions afford a guide as to the quantity and quality of the evidence which in such cases is required on behalf of the public. Then there is the case of Rex v. Lioyd (1808) 1 Camp. 260 where the defendant was indicted for obstructing, a high way. The place in question was a narrow passage leading circuitously from one part of a street to another. During the argument Lord Ellenborough observed : ' I take it for granted that the defendant means to show habitual interruptions offered to persons attempting to pass through.' Mr. Marryatt for the defendant replied that that was not necessary, for that the passage had been made originally for the convenience of those occupying the houses on either side, and whether or not individuals might bring an action for the obstruction, the public had no right to complain. But this view did not commend itself to Lord Ellenborough, who after remarking that strong evidence of a public right of way was supplied by the fact that the passage was lighted by a public authority, continued in these words: ' If the owner of the soil throws open a passage, and neither marks by any visible distinction that he means to preserve all his rights over it, nor excludes persons from passing through it by positive prohibition, he shall be presumed to have dedicated it to the public. Although the passage in question was originally intended only for private convenience, the public are not now to be excluded from it after being allowed to use it so long without interruption.' This language we find to be literally applicable to the facts of the present case, which is not withdrawn from the operation of the principle by the single circumstance that the road here was not lighted by any public authority.
9. If, then, the case stopped here, we are of opinion that this Court would not be justified in disturbing the decision of the Tribunal. But that decision can, we think, be supported on even stronger ground. We quote the following passage from the cross-examination of the claimant himself : 'I have not stopped any one going along Navroji hill second road, nor attempted to stop any one. I don't know that my predecessors, ever did. I can't say one way or the other whether the public have used the road or not. The public may have used it.'
10. That this is an under-statement of the case in favour of the public, is apparent from the important correspondence which the claimant had with the Municipality three years before this land was proposed for acquisition. This correspondence, which is Ex. O., begins with the Municipal Commissioner's letter of 24th October 1899 announcing his intention to appoint certain places on the Navroji Hill estate for the deposit of refuse and rubbish, and requiring the claimant to cause all rubbish from the roads indicated in a plan to be collected daily and deposited in the places appointed. Among the roads so indicated is the road now in controversy. To this letter the claimant replies through his Solicitors on 25th October as follows: 'The roads' shown on the plan accompanying your notice are as between our client and the Municipality streets within the meaning of that word as defined in the [Municipal] Act, and the public has had a free and uninterrupted right over the same for more than twenty years.' That is a categorical admission of the case which the claimant now contests. It is true that the admission is afterwards withdrawn, but the evidential value of the withdrawal must depend on the circumstances in which it was made. The correspondence proceeded, and the letter of 25th October is formally confirmed by the claimant's Solicitor's letter of 10th November. Then on the 31st March 1900 the Municipal Solicitors re-open the discussion by sending to the claimant a fresh plan with an invitation to say whether the admitted 'streets ' are correctly shown upon it. On 24th April the Municipal Solicitors acknowledge the return of the plain, on which the claimant has now scored off those portions of the streets or roads on Navroji Hill which he claims as his private property. The road in dispute is among the portions scored off. This, then, is the withdrawal of the admission; and the question is, what is the value of it For it must be born in mind that this is not a case where a single statement contains an admission qualified or restricted by other expressions, so that the statement has to be assessed as a whole ; here the admission made in October is, on the claimant's case, formally-contradicted by the marking of the plan six months later There is no way reasonably to reconcile the two statements and we are entitled, or rather obliged, to accept the one and reject the other. We have no hesitation in accepting the admission and rejecting the withdrawal- The admission, made under legal advice, is not to be accounted for on any theory of mistake, and no reasonable explanation is forthcoming as to how it came to be made if it is not correct. The withdrawal has every appearance of being an after-thought, and, as the Municipal Commissioner noticed, is referable to no principle, unless it be the principle of reserving to the claimant as much land westwards as then appeared likely to be capable of profitable quarrying ; for the division is made arbitrarily, and single roads are classed as the claimant's property up to a point and as public property beyond that point. We believe that the admission is true, and we accept it in proof of the respondent's case that the public have had ' a free and uninterrupted right over the road for more than twenty years.'
11. If this conclusion is right, it is in no way shaken by the fact of an occasional levy of fees by the claimant for the use of portions of the road for special purposes, or by the fact that he has quarried away a certain portion of the Eastern half of the road, thus reducing its width. For these acts would amount to nothing more than an encroachment on rights already vested in the public, and the evidence shows that the claimant levied similar fees for, and erected a barrier across, roads which he admits to be public: see Ex. S and the claimant's letter to the Municipality dated 4th March, 1902. Indeed, when the respective positions of the only parties concerned are remembered, such acts are of no significance upon the question of right.
12. For these reasons we agree with the Tribunal's findings that the road is public; that it is not quarriable by the claimant; and that it has no quarriable value for which a purchaser in the market would pay.
13. This serves to dispose of the principal ground taken in the appeal, and the remaining points may be more shortly dealt with. It is suggested that, in any case, when once the declaration issued, the claimant would be entitled to the ownership of the road on the strength of the principle laid down in Rolls v. Vestry of St. George (1880) 14 Ch. D. 785. But that case, which was decided under a particular statute, merely held that the interest of the vestry determined in stopped-up and diverted streets. But the road in question here has neither been stopped-up nor diverted, and is actually excluded from the ambit of the declaration made under Section 6 of the Land Acquisition Act; so that the Case cited cannot assist the claimant. In other respects the points now remaining for consideration involve only questions of valuation and calculation, upon which this Court has adopted the principle that the determination of the Tribunal, being fortified by special knowledge and acquired experience, is not to be disturbed unless it can clearly be shown to be substantially wrong : see Raghunath-das v. Secretary of State (1905) L.R. R. 29 Bom. 514 and the recent case of The Trustees for the Improvement of the Gity of Bombay v. Karsandas Natha : (1908)10BOMLR688 .
14. As to the Tribunal's assessment made on the assumption that the claimant could quarry from the East, the road not being in his way, the point does not strictly arise in view of our finding that the road is a high way. But in deference to the arguments addressed to us, we may say that we have considered the question and are of opinion that the attempt to impeach the Tribunal's decision has not succeeded. The only figures of the Tribunal's calculations which for the purposes of this case Mr. Inverarity has attacked are the amount of so-called 'royalty,'' and the number of brass of rock which a crowbar can win in a day. The Tribunal has fixed the royalty (a term loosely employed to denote the sum which the quarryman will pay for working one crowbar) at Rs. 300 per month, and the number of brass quarriable in a day at 2. The claimant urges that these figures should be respectively Rs. 350 and If. The difference, therefore, though material, is not enormous, and we do not think that the claimant has made out his case. We agree with the Tribunal that the oral evidence on the point is lacking in precision; but taking that evidence for what it is worth, and comparing it with the evidence supplied by the instance given in Ex. Z and the calculations in Ex. 21 (of which Columns 1 to 15 were admitted before the Tribunal to be correct), we are of opinion that 2 brass is as fair and probable a figure as the evidence enables us to reach. The same remarks apply to the decision as to the amount of royalty, and the result is that the Tribunal's valuation on the quarrying basis must be accepted This result, which gives a lower figure than is obtained on the rental basis, is consistent with the fact that, owing mainly to the necessity of buying out the tenants, the claimant has in fact done no quarrying for ten years or more.
15. It follows from these findings that the Tribunal was right in calculating the award of compensation on a rental basis, and, that being so, the amount of the award is not disputed : see para 15 of the memo of appeal. On the other hand, the respondent Trustees admit that their cross-objections need not be considered if it is held that the claimant is not entitled to compensation on the quarrying basis.
16. On these grounds, therefore, both the appeal and the cross-objections must be dismissed with costs.