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BAILEY v. STEPHENS.

COMMON Pleas. 1862.

[Reported 12 C. B. N. S. 91.] The first count of the declaration stated that the defendant, on the 1st of November, 1861, and on divers other days and times between that day and the commencement of the suit, broke and entered a certain close of land of the plaintiff called Short Cliffe Wood, enclosed by a hedge-fence, and bounded on the northwest by other lands of the plaintiff, and on the southeast by lands in the occupation of one James Emery, situate in the parish of Blagdon, in the county of Somerset; and that the defendant then felled, cut down, prostrated, and destroyed two trees of the plaintiff in the said close called Short Cliffe Wood, there then standing and growing, and took and carried away the same and converted and disposed thereof to his own use.

There was also a count for money lent, money paid, money had and received, and money found due upon accounts stated.

The defendants pleaded, — first (to the first count) not guilty ; secondly, that the said close and trees were not respectively the close and trees of the plaintiff.

Third plea, — that at the time of the alleged trespass, William York was seised in his demesne as of fee of and in a certain close called Bloody Field, immediately adjoining the said close of the plaintiff, and that the said William York and all those whose estate he had, and his and their tenants, had from time whereof the memory of man runneth not to the contrary enjoyed the right, at their free will and pleasure, to enter by themselves and their servants upon a part or strip, to wit, a lugfall? of the said close of the plaintiff, adjoining the said close of the said William York, for the purpose of cutting down and carrying away, and to cut down and carry away and convert to his and their own use the trees and wood growing and being on the said strip or lugfall, as to the said close of the said William York appertaining; and that the said William York before the alleged trespass demised the said Bloody Field, with its appurtenances, to James Emery, for a term of years not yet expired, who entered into possession of the same, and was before and at the time of the alleged trespass in possession thereof under the said demise as tenant thereof to the said William York; and that the said trees in the declaration mentioned were growing and being on the said strip or lugfall, and that the alleged trespass was committed by the defendant as the servant and by the authority of the said James Emery, and on his behalf, on the said strip or lugfall, and not elsewhere in the said close of the plaintiff, in the exercise of the said right, and was a user by the said James Emery of the said right.

1 A perch.

Fourth plea, – that the said ames Emery, at the time of the alleged trespass, was possessed of the said land called Bloody Field, immediately adjoining the said close of the plaintiff as aforesaid, and that the occupiers thereof for sixty yea. s hefore this suit enjoyed, as of right, and without interruption, the right to enter at their free will and pleasure, by themselves and their servants, into a part or strip, to wit, a lugfall, of the said close of the plaintiff, next adjoining the said land of the said James Emery, for the purpose of cutting down and carrying away, and to cut down and carry away and convert to their own use, the trees and wood growing and being in the said strip or lugfall, as to the said land of the said James Emery appertaining ; that the said trees in the declaration mentioned were growing and being on the said strip or lugfall; and that the said trespass was committed by the defendant as the servant and by the authority of the said James Emery, and on his behalf, in the said strip or lugfall, and not elsewhere in the said close of the plaintiff, in the exercise of the said last-named right, and was a user by the said James Emery of the said right.

Fifth plea, – that the said James Emery, at the time of the alleged trespass, was possessed of the said land called Bloody Field immediately adjoining the said close of the plaintiff as aforesaid, and that the occupiers thereof for thirty years before this suit enjoyed as of right and without interruption the right to enter at their free will and pleasure, by themselves and their servants, into a part or strip, to wit, a lugTall, of the said close of the plaintiff, next adjoining the said land of the Sald James Emery, for the purpose of cutting down and carrying away, and to cut down and carry away and convert to their own use, the trees and wood growing and being in the said strip or lugfall, as to the said and called Bloody Field appertaining ; that the said trees in the declaration mentioned were growing and being in the said strip or lugfall ; and that the said alleged trespass was committed by the defendant as toe servant and by the authority of the said James Emery, and on his behalf, in the said strip or lugfall, and not elsewhere in the said close of We plaintiff, in the exercise of the last-named right, and as a user by the said James Emery of the said right.

Sixth plea, — that, at the time of the alleged trespass, the said Milliam York was seised in his demesne as of fee of and in the said Close of land called Bloody Field, immediately adjoining the said close of the plaintiff as aforesaid, and long before the time of the alleged trespass, by a deed made between the then owner of the said close now of the plaintiff, and which said owner was then seised thereof in fee, and the then owner of the said land called Bloody Field, who was then seised in fee of the said last-named land, and whose estate therein the said William York at the time of the said alleged trespass had (but Which deed had been lost or destroved by accident), the said then owner of the close now of the plaintiff granted to the said then owner of the said land called Bloody Field, his heirs and assigns, the right Ior himself and themselves, and his and their tenants, occupiers of the said land for the time being, at their free will and pleasure, by themselves and their servants, to enter pon a certain strip of the said close of the plaintiff, next adjoining the said close called Bloody Field, to wit, a lugfall of the said close of the plaintiff, measured from the boundary of the said two closes, for the purpose of cutting down and carrying away, and to cut down, carry away, and convert to his and their own use, the trees and wood growing and being in the said strip or lugfall, as to the said close called Bloody Field appertaining; that the said James Emery was at the time of the alleged trespass tenant to the said William York of the said close called Bloody Field, and as such tenant, and by virtue of the said grant, was entitled to the right, at his free will and pleasure, by himself and his servants, of entering into the said strip or lugfall for the purpose aforesaid, and of cutting down, carrying away, and converting to his own use the trees and wood growing and being in the said strip or lugfall; that the said trees in the declaration mentioned were growing and being in the said strip or lugfall; and that the said trespass was committed by the defendant as the servant and by the authority of the said James Emery, and on his behalf, in the said strip or lugfall, and not elsewhere in the said close of the plaintiff, in the exercise of the said last-named right, and was a user by the said James Emery of the said right.

Seventh plea, to the residue of the declaration, never indebted.

The plaintiff demurred to the third, fourth, fifth, and sixth pleas, the ground of demurrer stated in the margin being, “ that the plea shows no defence to the action, and claims too large a right.” Joinder.

Montague Smith, Q. C. (with whom was Barstov), in support of the demurrer.

Prideaux, contra.

ERLE, C. J. We are much obliged to Mr. Prideaux for the assistance he has afforded us; but, after giving the best attention I could to his able argument, I come to the conclusion that the pleas are bad, and therefore that our judgment must be for the plaintiff. The pleas set up a right in the occupiers of the close of the defendant to go upon the close of the plaintiff and to take all the wood that shall be growing there. It is a claim, therefore, of a right appurtenant to the land of the defendant, to take all the profits of the land of the plaintiff, wholly unconnected with the defendant's land; and to take that as passing with the estate of the defendant. Now, all the diligence and all the learning that Mr. Prideaux has brought to bear upon the matter have failed to enable him to produce any authority for such a right as that which the defendant here claims. The case of Douglas v. Kendal, Cro. Jac. 256, was a prescription for the owner of an estate to take, as appurtenant to that estate, all the thorns that should grow upon the land of the plaintiff, to be used at the house and in the tenement of the defendant; and it falls within a class of cases perfectly well known to the law, that the owner of an estate may claim, as appurtenant to that estate, a profit to be taken in the land of another, to be used upon the

land of the party claiming the profit. But that does not bear upon the present case, because this is a claim by the owners or occupiers of the defendant's close to cut down the trees on the plaintiff's land, and to sell and dispose of them at pleasure, wholly irrespective of the land of the defendant. Mr. Prideaux has further cited the case of Sir Fruncis Burrington, 8 Co. Rep. 136; Liford's Case, 11 Co. Rep. 46 b, and several other cases, which show that the owner of land may grant to a man and bis heirs the right to take, for instance, all the wood or all the grass that shall grow upon the land of the grantor. That would be what we call a grant in gross passing to him and his heirs ; and it may be construed to mean all the land or all the pasture, that is, the surface of the land; or it may be construed to be a profit à prendre, - a profit taken out of the land, and lying in grant. All the cases to which our attention was drawn as supporting the defendant's argument have been cases where the grant is in gross, to a man and his heirs, and not to a man and all who may thereafter occupy a certain close. That class of cases, therefore, can have no bearing on this. The case of Hoskins v. Robins, 2 Wms. Saund. 323, has been much pressed. There, there was a prescription very nearly to the effect of that claimed here; but I think the distinction which I pointed out in the course of the argument was one that is fully justified by our law : It was a claim to have the pasture by one of the customary tenants of a manor against the lord of the manor. There are many rights well known in manors, and capable of being supported, which arise entirely out of, and are dependent upon, the peculiar relation between the lord and the copyholder; but the analogy cannot be borne out between those cases and a case like this. All cases of grants are supposed to pass between the tenant in fee simple of the servient tenement and the tenant in fee simple of the dominant tenement, wholly irrespective of the rights of any other. The case of Stanley v. White, 14 East, 332, and other cases stand upon the reservation of a right, — the reservation of a right (construed to be a reservation of the land itself) in the trees. It is a claim of the land, not a claim, as this is prescribed, of a right as appurtenant to the estate, and yet wholly unconnected with the estate, – a right to take all the growth of a certain kind upon the land. I cannot find any authority for such a claim. The case of Ackroyd V. Smith, 10 C. B. 164, cited for the plaintiff', is strong to show that the owner of the dominant tenement cannot claim, as appurtenant to mat tenement, a profit wholly unconnected with the enjoyment of the right of property in the dominant tenement. I therefore think the calm set up upon the present occasion is not supported by any authority, and that our judgment must be against the defendant.

WILLES, J. I am of the same opinion. With reference to the first piea, which sets up a prescriptive right, it amounts to this, that, before the time of legal memory, some one made a grant to some one else, Whereby the occupiers of the defendant's close for the time being, ad infinitum, were to be entitled to cut all the trees growing in the close

VOL. II.- 2

of which the plaintiff was in possession at the time the trespass was committed. The simple answer to that, is, that it is not an incident which can be annexed by law to the ownership, much less to the occupation, of the land. I wish to guard myself against being supposed to deny that there may be a grant by A. to B. of the right to enter and cut trees in a given close, analogous to that which one has seen in mining setts, of the right to enter and to work mines within a given area, and to take away the minerals there found, - a grant of a right to work and take minerals, unaccompanied by a grant of the mines themselves. I also wish to guard myself against being supposed to say that the interest in either of those grants cannot be assigned over, so that the assignee could not exercise it against the original grantor. It is unnecessary to express any opinion upon that. But, for all these positions, when it may become necessary to decide them, it may be well to refer to the case of Muskett v. Hill, 5 N. C. 694, 7 Scott, 855, where it was held that a license to search for and raise minerals, and also to carry them away and convert them to the licensee's own use, passes an interest which is capable of being assigned. In the judgment in that very important case, which appears to have received great consideration, a passage is cited from Vaughan's Reports (Thomas V. Sorrel, Vaughan, 351), where it is said : “ A dispensation or license properly passeth no interest, nor alters or transfers property in anything, but only makes an action lawful which without it had been unlawful; as, a license to go beyond the seas, to hunt in a man's park, to come into his house, - are only actions which, without license, had been unlawful. But a license to hunt in a man's park, and carry away the deer killed to his own use; to cut down a tree in a man's ground, and to carry it away the next day after to his own use, — are licenses as to the acts of hunting and cutting down, but as to the carrying away the deer killed and tree cut down, they are grants.” And, that such a grant to a man and his assigns carries an interest which is assignable, appears from the cases which are referred to in that judgment. But assuming such grants have been made, I apprehend it is clear they can only be made in gross. They convey an interest to the grantees, which grantees, if they wish to convey, must convey by the ordinary convers ances known to the law; and it is not because the grantee may happen to be the owner of the close at the time at which the grant is made to him, that such a conveyance may be dispensed with in favor of the person who may from time to time thereafter become the owner of the freehold of the close, or take the license of the owner of the freehold in the close. And the reason is a simple one, and it will be found in that class of cases now not often referred to, because the law depends principally upon the Statute of Henry the Eighth. I mean the case of a conveyance by which a certain incident is granted which, though beneficial to the grantee of the land so long as he remains the owner of it, and beneficial in respect of his ownership of the land, can be of no benefit to any other person. And the authorities are to this effect, that at com

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