The Great Cave Hill Right of Way Case

How the 'right to roam' in the Belfast Hills was won

August 2009 marks the 150th anniversary of a pioneer rights of way case on Belfast’s landmark Cave Hill. It was a cause célèbre in its day, tried for a full week before Chief Baron Pigot, and of such public interest that the Northern Whig newspaper published an 88-page transcript of the proceedings.

What was at issue? In 1855 an ambitious merchant named Joseph Magill blocked the entry to the traditional path onto the Cave Hill from the Antrim Road and above Gray’s Lane by building the gate lodge to his new mansion, Martlett Towers, across it. Adding insult to injury he enclosed the historic Volunteer Well within his outbuildings.

Magill triggered formidable opposition from the Association for the Protection of Public Rights of Way. Its elite membership included the two MPs for Belfast, the Mayor, and leading merchants. They successfully prosecuted him in 1858, and in 1859 a special court heard his appeal.

Key to the case was evidence within living memory of use of the path and life on the hill. That is why, apart from the importance of the case itself, the record of the evidence is today our most important source for life on the Cave Hill back to the 1780s.

The oldest witness was 89-year-old Nicholas Grimshaw, the senior member of the family which had pioneered cotton manufacture at Whitehouse. He recalled seeing the Volunteer Movement on manouevres at the Volunteer Well in the 1780s, and travelling by the path with his father over the mountain to Glenavy. He and others could recall the use of the path to bring turf down from the mountain to Greencastle.

Witnesses told how the Volunteer Well was an important staging post on the route up the hill for those going for recreational purposes. It was the highest point which could be reached by pony and trap, and the last point with a supply of water. It was here that picnic hampers were unloaded.

The most spectacular recreational use of the path was by the multitudes going to the great Easter Monday fair held ‘since time immemorial’ and right down to 1855 at the ‘tent ground’ immediately below the summit caves. Some gave evidence of how they had erected tents there or worked as carpenters to construct wooden floors for dancing.

A wealth of other evidence was given about the lives of a variety of small tenants and labourers who struggled to make a living on the ‘barren’ ground of the upper hill. Much that is today wooded was then open ground where ‘praties [potatoes] and corn’ were grown, while higher up cattle grazed. There was money to be made from the stony ground itself: across the hill there were a variety of small limestone quarries and associated lime-kilns.

Much of this way of life had already vanished by 1859. As one witness put it, ‘all the people who lived at the top of the hill are gone’. Magill’s neighbour to the North, Valentine Whitla, had already planted woodland on former farm land. But what mattered in the case was the historical record of consistent access.

The main defence witness was Magill’s father-in-law, Andrew Nash, from County Cork, who had married Sarah Orr, ‘the flower of Cave Hill’, after a whirlwind romance in 1817. He had thus married into 188 acres on the hill, including the contested path. Nash could’t deny that access to the hill had been allowed, but argued that it was always subject to his carefully-granted permission.

The defence case began to fall apart when Nash's labourer, Patrick McHale, gave evidence. He had actually lived in a cottage beside the Volunteer Well from 1829-1837. Not only had he not turned people back, his wife did a good trade selling poteen to them, and at the Easter Monday Fair she moved this business up to the bottom cave.

More disasters were to follow. Robert Young, Magill’s own architect, had advised him to leave the path open. The advice was not taken. His neighbour, Valentine Whitla, had maintained a stile in his boundary fence because he could see a public path leading up the hill.

Mr Brewster, the defence counsel, had cleverly pushed prosecution witnesses to claim more than the particular right of way, and rather ‘the right to ramble over the entire Cave Hill’. This enabled a final desperate offensive. The prosecution was ‘not to try a right of way. The case is to establish a public park for Belfast’. Joseph Magill was the wrong target. Instead ‘they should apply to Lord Donegall to dedicate the Deer Park to the inhabitants of the town’. This must have seemed a fanciful proposition in 1859.

It did not deter the jury who found Magill guilty of obstructing a public footway in only 40 minutes. It was a popular verdict celebrated in the local newspapers, and by the people of Greencastle who pillaged Magill’s demesne for firewood.

Magill bore the heavy costs of the case, going bankrupt in 1875. His land was sold in the encumbered estates court in 1882 and purchased by the Shafstebury’s, now extending their new Belfast Castle estate. They did move the path northwards but were careful to do it by private act of parliament. Martlett Towers survived as a tenement for estate workers until it was burnt down by vandals in 1957.

In 1934 the dream of the pioneers of the Rights of Way Association of a ‘right to roam’ all over the Cave Hill came to fruition when the Shafstebury’s gave the Castle estate to the people of Belfast. It remains a special right because elsewhere in Ulster and in the Belfast Hills farmers continue to resist public access to upland areas.

John Gray