« PreviousContinue »
dence was on one side, and the verdict went against the evidence. I never thought that a carriage-way necessarily included a drift-war; but I think it is prima facie evidence, and strong presumptive evidence, of the grant of a drift-way. Undoubtedly a person may restrict his grant as he pleases, and wien he has so limited it, the pleadings must be adapted to the particular grant, — which accounts for the variety in the entries. But it rests with the grantor to prove the restriction of the grant, otherwise it must be intended to be of the usual extent. This inconvenience indeed may occur from such a determination, that if the evidence be lost. the grantor may lose the benefit of his restriction, but he may and ought to preserve the evidence of the restriction, and the inconvenience would be of small extent; for I believe the cases are very few where a carriage-way has not been accompanied with this right: there seems to be almost a necessity for including it. The grantee may send back his horses without his carriage. He may draw his carriage with oxen; and the oxen, as well as the horses, must be driven back loose to pasture. There is strong presumptive evidence then of a drift-way. If the burden of the proof lies on the tertenant, it certainly is possible that he may lose the right of restraining the way; but for one case where the evidence has been lost, and would be supplied by this decision, there will be a thousand cases where a restriction will be created that did not exist in the original grant. I fear these rights of way will be very much narrowed, if they are to be confined to such actual use of them as can be proved. The manner of using a way may vary from time to time. I think the proof of driving hogs is an important circumstance, and very strong evidence of a grant of way for cattle. According to the doctrine contended for, it would be necessary to drive every species of cattle in order to preserve the right of passing with that species. If a man had a little field where cows had not usually been pastured, it would be monstrous that he therefore should not drive his cow to it. Suppose any new species of cattle is introduced into the country, shall the grantees of private way's have no passage for them to their lands? Is it to be contended, for instance, that no ancient private way in the kingdom can be used for Spanish sheep? Much of the argument has been built upon these being horned cattle. Many breeds of kine have no horns : may the grantee drive those? As to the argument that the inconvenience of such an use amounts to a nuisance, nothing of that sort appears. The grantee has constantly driven all the carriages and all the cattle that he had. This is a claim by prescription, which imports great antiquity; and it does not appear how wide the way was at the time of the original grant, and how much the houses have encroached on it long since : but those encroachments cannot deprive the grantee of his ancient right of way.
COWLING v. HIGGINSON.
(Reported 4 M. & W. 245.) TRESPASS for breaking and entering a close, called the Birchin Acre, and with divers horses, and the wheels of divers carts, wagons, and other carriages, crushed and damaged the grass of the plaintiff, of great value, to wit, £5, there then also growing and being, and with the feet of the said horses, and with the wheels of the said carts, wagons, and other carriages, tore up; subverted, and damaged the earth and soil of the said close, &c.
Pleas, first, the general issue; secondly, that the defendant, from a period long before and at the said several times when, &c., in the said declaration mentioned, hath been, and then was and still is, in the law. ful possession and the occupier of part of a certain close, called Little Marl Field, near to the said close in which, &c.; and he further saith, that on the north of the said close in which, &c., there was, and during all the time hereinafter mentioned hath been, and at the said several times when, &c., there was and still is, a certain common and public highway leading between a certain place, to wit, Leigh, and a certain other place, to wit, Tildesley, and from each of those places to the other of them, in the county aforesaid ; and the defendant further saith, that he and all the occupiers of the said close in this plea first above mentioned, have actually as of right used and enjoyed, without interruption in respect of such occupation, for the full period of twenty years next preceding the cornmencement of this suit, and of right ought to have so used and enjoyed, and he the said defendant, being such occupier as aforesaid, at the several times when, &c., as of right used and enjoyed, and still of right ought to use and enjoy, the liberty, privilege, benefit, and easement, as often as he or they might have occasion, to go, return, pass, and repass on foot, and with horses, carts, wagons, and carriages, from the said close first above mentioned to the saj highway between Leigh and Tildesley aforesaid and back again, of go. ing and to go from and out of the said close first above mentioned, and to pass and repass on foot, and with horses, carts, wagons, and car. riages, from the said close into and along a certain way leading from the said close first above mentioned to the said close in which, &c., and from thence unto, into, by, through, over, along, and across the said close in which, &c., unto and into a certain other way leading from the said close in which, &c., to the said highway so on the north side of the said close in which, &c., as aforesaid, and so back again from the said highway into the said last-mentioned way, and from thence, unto, into, oy, through, over, along, and across the said close in which, &c., and thence into the said first-mentioned way unto and into the said close first above mentioned, at all reasonable times of the year at his and their free will and pleasure: wherefore the defendants, at the said several times when, &c., the same then being reasonable times for that purpose, having occasion to use the way in this plea mentioned, then went, passed, and repassed on foot, and with the said horses, and with the said carts, wagons, and other carriages, from and out of the said close first above mentioned, into the said first-mentioned way, and thence out, into, by, through, over, along, and across the said close in which, &c., into the said other way as aforesaid, and thence unto and into the said highway so on the north side of the said close in which, &c., and so back again from the said highway into the said other way above mentioned and thence unto, into, by, through, over, along, and across the said close in which, &c., and thence into the said first mentioned way, unto and into the said close first above mentioned, using the said way there for the purpose and on the occasions aforesaid, as he lawfully might for the cause aforesaid, and in so doing the said defendant, with the said horses, and with the wheels of the said carts, wagons, and other carriages, unavoidably a little crushed and damaged the said grass of the plaintiff then growing and being in and upon the said close in which, &c., and with the feet of the said horses, and with the wheels of the said carts, wagons, and other carriages, a little tore up, subverted, and damaged the said earth and soil of the said close, doing no unnecessary damage to the plaintiff or the occupiers aforesaid, which are the said several trespasses in the declaration above mentioned, and whereof the plaintiff hath above thereof complained against him.
The third plea was similar, only stating the user for forty years in-. stead of twenty.
The replication traversed both these pleas.
At the trial before Coleridge, J., at the last Spring Assizes at Liver.. pool, it was admitted that there was a right of way for farming purposes over the locus in quo, to a farm, of one of the fields of which called the Little Marl Field, the defendant was the occupier ; but the plaintiff's counsel contended that there was no right of carting coals, which was the purpose for which the defendant had used the road ; and it was proved by the plaintiff that no coals had been raised under that farm for the last 70 years; that about 70 years ago there had been coal raised there, but that they were carted from the pit along a different road ; that Tildesley, to which the road led, was then a very small village, consisting of merely a few houses ; that there were then other coal-pits nearer than those on the defendant's farm; and that there was a gate across this road, the key of which was kept by a tenant of the plaintiff's ancestor. The defendant's counsel then objected, first, that the issue was, whether there was a right of way for horses, carts, and carriages ; and that since it was admitted that such right existed, the verdict ought to be for the defendant; and that if the plaintiff re
VOL. II. — 16
lied on the defendant's using the road for mining purposes, and that he had no such right, he ought to have new assigned ; and secondly, that a right of road for farming purposes, and with-horses, carts, and cars riages, proved a right for all purposes. The learned judge, after consulting Patteson, J., decided both points in favor of the plaintiff; and the defendant's counsel not claiming to have any question left to the jury, the learned judge directed them to find a verdict for the plaintiff, giving leave to the defendant to move to enter a verdict, it the court should be of a contrary opinion on cither of the points taken. Alesander having, in Easter Term last, obtained a rule accordingly,
Cresswell, Starkie, and Wortley, now showed cause.
LORD ABINGER, C. B. I do not give any opinion upon the effect of the evidence; but I should certainly say that it is not a necessary inference of law, that a way for agricultural purposes is a way for all purposes, but that it is a question for the jury in each particular case, to be determined upon the various facts established in each case. Il a way has been used for several purposes, there may be a ground for inferring that there is a right of way for all purposes, but if the evidence shows a user for one purpose, or for particular purposes only, an inference of a general right would hardly be presumed. I wish to say nothing as to the inference to be drawn by the jury in this particular case, The question is entirely for them to determine on the facts submitted to them. I think there ought to be a new trial on payment of costs.
PARKE, B. I am clearly of opinion that the defendant is not entitled to succeed on the question as to the new assignment. [He then stated the plea.] To make out this plea, it is necessary to show an enjoyment of the way generally as of right, for the period during which the plea states it to have been used; he must have used it for all purposes as of right ; and such user, for all purposes for which it was wanted, would be evidence to go to the jury of a general right. Under a plea of prescription of a way, it was necessary to show a user of it for all purposes time out of mind, according to the usual terms in which such a plea is pleaded. If it is shown that the defendant, and those under whom he claimed, had used the way whenever ther had required it. it is strong evidence to show that they had a general right to use it for all purposes, and from which a jury might infer a general right. In this particular case, I think the user is evidence to go to the jury that the defendant had a right to a way for all purposes for twenty, years. As to the effect of such evidence, it is unnecessarr to offer any ♡ opinion. If the way is confined to a particular purpose, the jury quglit not to extend it; but if it is proved to have been used for a variety of purposes, then they might be warranted in finding a way for all. You must generalize to some extent; and whether in the present case to the extent of establishing a right for agricultural purposes only, is a question for the jury.
Rule absolute for a new trial, on payment of costs.
COLCHESTER v. ROBERTS.
[Reported 4 M. & W.769.] TRESPASS for breaking and entering a certain close of the plaintiff called “The Reddings," situate, &c., and breaking, &c., a gate then standing and being in the said close, and the locks, staples, and hinges with which the same was fastened, and with feet in walking, and also with the wheels of divers carts, wagons, and other carriages, tearing up and subverting the earth and soil of the said close, &c., &c., and then hauling over the said close large quantities, to wit, 100 tons of lime and 100 tons of building materials.
Pleas, first, Not guilty. Secondly, that the defendant, long before and at the several times when, &c., in the said declaration mentioned, was the lawful occupier of a messuage and divers (to wit) three closes of land with the appurtenances respectively, situate in the county aforesaid, and near to the said close of the plaintiff in the declaration mentioned, in which, &c.; and the defendant further says, that be the defendant, and all the occupiers for the time being of the said messuage and closes of the defendant have, and each of them hath had used, and enjoyed as of right, and have and each of them hath been accustomed to have, use, and enjoy as of right, for and during the full period of twenty years next before the commmencement of this suit, a certain way for himself and themselves, and his and their servants, to go, pass, and repass on foot and with horses, mares, geldings, carts, wagons, and other carriages, from and out of a certain common highway in the county aforesaid, towards, unto, into, through, over, and along the said close of the plaintiff in the declaration mentioned, and in which, &c., and from and out of the same towards, unto, and into the said messuage and closes of the defendant, and so from thence back again towards, unto, into, through, over, and along the said close of the plaintiff in the declaration mentioned, and in which, &c., and from and out of the same towards, unto, and into the said common highway, at all times of the year, at the free will and pleasure of the defendant and the said other occupiers for the time being of the said messuage and closes of the defendant, as to the said messuages and closes of the defendant belonging and appertaining : Wherefore the defendant, at the said several times when, &c., being the lawful occupier of his said messuage and closes, and having occasion to use the said way, went, passed, and repassed on foot and with his horses, mares, geldings, carts, wagons, and other carriages in the declaration mentioned, the said carts, wagons, and other car