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Wherever there is a difference, it is in favor of trespass and against replevin; for in trespass an excuse in a plea is sufficient, but in an avowry a title must be shown. This brings me to the question, Whether the plea on this record be good to a common intent? Now I think that the doctrine of certainty to a common intent will not support it. Certainty in pleading has been stated by Lord Coke, Co. Lit. 303, to be of three sorts, viz., certainty to a common intent, to a certain intent in general, and to a certain intent in every particular. I remember to have heard Mr. Justice Aston treat these distinctions as a jargon of words, without meaning. They have, however, long been made, and ought not altogether to be departed from. Concerning the two last kinds of certainty, it is not necessary to say anything at present. But it should be remembered, that the certain intent in every particular applies only to the case of estoppels, Co. Lit., ibid. By a common intent I understand that when words are used, which will bear a natural sense, and also an artificial one, or one to be made out by argument or inference, the natural sense shall prevail: it is simply a rule of construction and not of addition : common intent cannot add to a sentence words which are omitted. There is also another rule in pleading, which is, that if the meaning of words be equivocal, they shall be taken most strongly against the party pleading them. There can be no doubt that the passing and repasstng on the highway was traversable ; for the question, Whether the plaintiff was a trespasser or not? depends on the fact whether he was passing and repassing and using the road as a highway, or whether his cattle were in the road as trespassers; and that which is the gift of the defence must necessarily be traversable. A most material point therefore is omitted, and I think the plea would be bad on a general demurrer. But here there is a special demurrer, and as the words are equivocal, they are informal.
HEATH, J. The law is as my Brother Williams stated, that if cattle of one man escape into the land of another, it is no excuse that the fences were out of repair, if they were trespassers in the place from whence they came. If it be a close, the owner of the cattle must show an interest or a right to put them there. If it be a way, he must show that he was lawfully using the way; for the property is in the owner of the soil, subject to an easement for the benefit of the public. On this ples it does not appear whether the cattle were passing and repassing, or. whether they were trespassing on the highway; the words_used Are entirely eqnivocal. Rooke, J., of the same opinion.
Judgment for the defendant."
1 “There can be no easement, properly so called, unless there be both a servient and a dominant tenement. There is in this case no dominant tenement whatever. It is true that in the well-known case of Dovaston v. Payme, 2 Sm. L. C. 132, 6th ed. ; 2 H. Bl. 527, Mr. Justice Heath is reported to have said, with regard to a public highway, that the freehold continued in the owner of the adjoining land subject to an easement in favor of the public, and that expression has occasionally been repeated since that time.
BATEMAN v. BLUCK.
[Reported 18 Q. B. 870.) TRESPASS for breaking and entering the close of plaintiff, in the parish of St. Sepulchre, in the county of Middlesex, and pulling down a wall of plaintiff in the said close.
First plea : Not guilty. Issue thereon.
Second plea: That the said close and the said wall were not, nor was either of them, the close or wall of the plaintiff. Issue thereon.
Third plea : That the said parish of St. Sepulchre, before and at the time of the passing of Stat. 57 G. 3, c. xxix., was a part of the metropolis included within the weekly bills of mortality ; and the said close was, before and at the time when &c., a paved public place within the true intent and meaning and subject to the provisions of the said Act, that is to say, a public footway pavement which had been and then was paved, cleansed, and lighted under the authority of the Commissioners acting under Stat. 12 G. 3, c. 68; and that the said close was not at the said time when &c., nor was any part thereof, a turnpike road or any part of any turnpike road; and that, just before the said time when &c., the plaintiff had, contrary to the provisions of the first-mentioned Act, unlawfully laid in and upon the said public footway pavement divers bricks &c., and had therewith formed and constructed in and upon the said pavement the said wall in the declaration mentioned ; and, because, at the said time when &c., the said wall remained on and incumbering the said public pavement, and because the plaintiff then, upon the reasonable request of the defendant, refused to remove the same, the defendant, at the said time when &c., entered upon the said close for the purpose of pulling down the said wall, and removed the bricks and other materials to a small and convenient distance, and there left the same for the use of the plaintiff, doing no unnecessary damage: which are the same alleged trespasses &c.
Replication : That the said close was not, at the time when &c., a paved public place within the true intent and meaning and subject to the provisions of the said first-mentioned Act. Issue thereon.
Fourth plea : That, before and at the said time when &c., there was That, however, is hardly an accurate expression. There can be no such thing, according to our law, or according to the civil law, as what I may term an easement in gross. An easement must be connected with a dominant tenement. In truth, a public road or highway is not an easement, it is a dedication to the public of the occupation of the surface of the land for the purpose of passing and repassing, the public generally taking upon themselves (through the parochial authorities, or otherwise) the obligation of re. pairing it. It is quite clear that that is a very different thing from an ordinary easement, where the occupation remains in the owner of the servient tenement subject to the easement." Per LORD CAIRNS, L. J., in Rangeley v. Midland R. Co., L. R. 3 Ch. 306, 310.
and of right ought to have been, into, through, over, and along the said close, a public and common highway for all the Queen's subjects to go and return, pass and repass, on foot, at all times, at their own will and pleasure; that defendant, before and at the said time when &c., was possessed of a dwelling-house abutting on and having a door opening into the said highway; and, because the plaintiff had wrongfully erected in and upon the said highway the said wall so near to the said door of the defendant as to obstruct the same, so that defendant could not, without prostrating the said wall, pass along the said highway into and from the said house, and because plaintiff, at the time when &c., refused, upon reasonable request of defendant then made to him in that behalf, to remove the said wall, defendant, at the said time when &c., entered upon the said close for the purpose of pulling down, and did pull down, the said wall &c. (justifying as in the third plea).
Replication : That there was not, nor of right ought to have been, into, through, over and along the said close, a public and common highway &c., as in the plea alleged. Issue thereon.
On the trial, before Coleridge, J., at the Middlesex Sittings, after last Easter Term, it appeared that the alleged close was a court opening into a public street in the parish of St. Sepulchre. There was no thoroughfare through the court. It contained fourteen or fifteen houses. The defendant was tenant of one of these houses, which had a door opening into the court, made by a previous tenant. The defendant had been required by the plaintiff to block up the door, which he refused to do; whereupon the plaintiff erected the wall in question and thereby blocked up the door ; upon which the defendant pulled the wall down. The wall was erected on the pavement of the court; and the court had been paved, at the request of the plaintiff, by the Commissioners under Stat. 12 Geo. 3, c. 68, and was lighted under the powers of the same Act. It was objected, for the plaintiff, that the third and fourth pleas were not proved, inasmuch as the court was not a public place within the meaning of Stat. 57 G. 3, c. xxix., and, not being a thoroughfare, could have no highway through it. The learned judge directed a verdict for the plaintiff on the first issue and on so much of the second issue as related to the wall, and for the defendant on the residue of the second issue, and on the third and fourth issues, with leave to move to enter the verdict for the plaintiff on the third and fourth issues.
Knowles, in last Easter Term, obtained a rule nisi according to the leave reserved, and also to enter judgment for the plaintiff Non obstante veredicto on the third issue.
Montague Chambers and Lush, now showed cause.
LORD CAMPBELL, C. J. I am of opinion that the verdict upon the issue on the third plea was properly given for the defendant, inasmuch as the evidence went to show that the locus in quo was a public place within the Statute. But I am also of opinion that, upon this issue, the plaintiff is entitled to judgment Non obstante veredicto, inasmuch as the plea does not allege that the defendant enjoyed any right in the exercise of which it was necessary for him to remove the obstruction. He was bound, according to Dimes v. Petley, 15 Q. B. 276, and the cases there referred to, to show, not only that he had such a right, but that there was no way in which he could exercise it without the re. moval. On the issue raised by the fourth plea, I think the defendant is entitled to a verdict. That plea alleges that there was a public highway through the locus in quo, and that it was impossible for the defendant to pass along the highway without removing the wall. The jury found that there was such public highway; and we are bound to assume that finding to be good, unless, as is contended, there cannot, in law, be a highway through a place which is no thoroughfare. It seems to me that such a doctrine is incorrect. There may or may not be a highway under these circumstances. Take the case of a large square with only one entrance, the owner of which has, for many years, permitted all persons to go into and round it; it would be strange if he could afterwards treat all persons entering it, except the inhabitants, as trespassers. In The Trustees of the Rugby Charity v. Merryweather, 11 East, 375 n. (a.), Lord Kenyon laid down that there might be a highway through a place which was not a thoroughfare, and seems to have left it to the jury whether there was such highway or not. In Woodyer v. Hadden, 5 Taunt. 126, the court did not decide that there could not be a highway under such circumstances, but only that in that particular case there was none; and I do not find anything decided there which is necessarily inconsistent with what was laid down by Lord Kenyon. The fourth plea, therefore, being proved, and being unexceptionable on the face of it, the defendant is entitled to our judgment.
COLERIDGE, J. The third plea being given up, the question is, whether there was a highway through the locus in quo, as alleged in the fourth plea. It was proved that the court in question had one opening only into a public street; that it contained some fifteen houses, belonging to one person, but occupied by different tenants; that it was paved by the Commissioners at the request of the plaintiff, and had always been lighted by the parish. The jury found that there was a public highway through it; and I am of opinion, as I was at the trial, that there was evidence for them, both of a dedication to, and of a user by, the public. The finding, therefore, upon the facts, is satisfactory. But it is 'objected that there cannot, in law, be a highway through a place which is not a thoroughfare, and that, therefore, I was not justified in telling the jury that there might be a highway through the court, and leaving it to them to say, upon the evidence, whether there was or not. I cannot see any such legal impossibility as has been suggested. It is suggested that the way through such a place as this must be assumed to be for the use of the inhabitants only ; but surely it is for the jury to say whether there has or has not been a dedication and user. More or less user may be proved according to the size and character of the place; but the principle does not vary.
ERLE, J. We are to say whether, in law, there can be a highway through a place which is not a thoroughfare. It seems to be clear, from the authorities, that there can ; and I do not see any reason for holding that there should not. Whether, under the particular circumstances of each case, there is a thoroughfare, is a question for the jury. CROMPTON, J., concurred.
Rule absolute for judgment Non obstante
veredicto on the third issue. Rule to enter verdict for plaintiff discharged."
THE QUEEN v. PRATT.
[Reported 4 E. & B. 860.] On appeal against a conviction under Stat. 1 & 2 W. 4, c. 32, $ 30, the Sessions stated a case for the opinion of this court. The case set out the conviction, of which the material part was as follows:
hin) Be it remembered that, on, &c., at, &c., Thomas Pratt, of,
'&c., is convicted before the undersigned, two of Her to wit.
de Majesty's Justices of the Peace in and for the said county, for that the said Thomas Pratt did, on 11th October, A. D. 1854, at, &c., unlawfully commit a certain trespass by being in the day time of the same day upon a certain piece of land in the possession and occupation of George Bowyer, there, then and there in search of game, contrary to the Statute in such case made and provided. And we do adjudge that the said Thomas Pratt shall for the said offence forfeit the sum of £1, &c.
The appeal came on for hearing before the justices assembled at the General Quarter Sessions of the Peace, in and for the county of Berks, on the 2d of January, 1855 ; when, in support of the said conviction, it was proved by the said respondents that the appellant Thomas Pratt, on the 11th of October, 1854, about four o'clock in the afternoon, was on a public highway in the parish of Radley carrying a gun, and accompanied by a dog ; that the appellant waved his hand to the dog, and the dog entered the cover or plantation on one side of the highway (which cover or plantation is in actual possession and occupation of George Bowyer, Esquire); after which a pheasant rose and flew across the aid highway; and the defendant, then being on the said highway, fired at the said pheasant so crossing the said highway twice, but did not kill it. The said highway is a common public road leading from Radley to Sun
1 See accord. People v. Kingmian, 24 N. Y. 559 ; Bartlett v. Bangor, 67 Me. 460. But cf. People v. Jackson, 7 Mich. 432.