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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 lie refused to do; whereupon the plaintiff erected the wall in question and therehy 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 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
plea does not allege that the defendant enjoyed any right in the efercise 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 removal. 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 jary 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 high"ay 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 F. 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 tu
e 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: Berkshire,
Be it remembered that, on, &c., at, &c., Thomas Pratt, of,
&c., is convicted before the undersigned, two of Her to wit.
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 Prait 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. Kingman, 24 N. Y. 559 ; Bartlett v. Bangor, 67 Me. 460. But cf. People v. Jackson, 7 Mich. 432.
hingwell, in the county of Berks; and George Bowyer, Esquire, is the Owner of the land on each side of the highway, and also the lord of the manor. The land on one side of the highway is let by the said George Bowyer to one Stephen Mundy, who occupies it as a yearly tenant; but the said George Bowyer has reserved to himself the right of entering thereon at all times for the purpose of killing game. Upon hearing of the appeal, it was contended, by the appellant's counsel, that the evidence did not support the conviction, inasmuch as the appellant was on the highway at the time of the alleged trespass.
By consent of the parties, and under the order of Mr. Justice Coleridge (the further hearing of the appeal having been adjourned by the said justices), this case is now stated ; and the question on which the opinion of the court is requested is : Whether the said conviction is supported in law by the evidence adduced on the part of the respondents as above set out.
Carrington, in support of the conviction.
LORD CAMPBELL, C. J. I am of opinion that this conviction should be affirmed. Stat. 1 & 2 W. 4, c. 32, $ 30, enacts that, if any person “shall commit any trespass by entering or being, in the day time, upon any land, in search or pursuit of game,” he may be convicted. And then follows a proviso that “ any person charged with any such tres
pass shall be at liberty to prove, by way of defence, any matter which would bave been a defence to an action at law for such trespass.” Such being the enactment, the appellant Pratt is convicted of committing a trespass by being in the day time on land in the occupation of Mr. Bowyer; the facts proved in evidence are stated; and the question is asked of us, whether they support the conviction.
After considering the language of the enactment, I think that the Legislature contemplated that the offender must personally be or enter on the land. Had the words been only " commit any trespass on land in pursuit of game,” I should bave said that sending a dog upon the land was within the meaning of the words ; but when I find the words are, commit
any trespass by entering or being, . . upon any land," I think that the construction of the section is that there must be a personal entering and being on the land. Then comes the question, whether there was evidence to support a conviction for personally being on the land of Mr. Bowyer in search of game; and I think there was. We have the facts stated, that he was upon the highway carrying a gun, and accompanied by a dog ; that he waved his hand to the dog, which entered the adjoining cover ; that a pheasant rose; and he, being on the highway, fired at it, but missed it; that the highway is a public road; and that Mr. Bowyer is owner of the land on both sides, and in actual occupation of the land on one side of the highway. On these facts I think the magistrates were perfectly justified in concluding that Pratt was trespassing on land in the occupation of Mr. Bowyer, in search of game. He was beyond all controversy on land, the soil and freehold of which were in the owner of the adjoining land, that is, Mr. Bowyer. It is true the public had a right of way there ; but, subject to that right, the soil and every right incident to the ownership of the soil was in Mr. Bowrer. The road, therefore, must be considered as Mr. Bowyer's land. Then Pratt, being on that land, was undoubtedly a trespasser if he went there, not in exercise of the right of way, but for the purpose of seeking game, and that only. If he did go there for that purpose only, he committed the offence named in the Act: he trespassed by being on the land in pursuit of game. The evidence of his being there for that purpose is ample. He waved his hand to the dog ; the dog entered the cover and drove out a pheasant; and Pratt fired at it. The magistrates are fully justified in drawing the conclusion that he went there, not as a passenger on the road, but in search of game. Conviction affirmed.
PERLEY v. CHANDLER.
SUPREME JUDICIAL COURT OF MASSACHUSETTS. 1810.
[Reported 6 Mass. 454.) This was an action of trespass for obstructing the plaintif's watercourse in Winthrop, and filling up the same with logs, stones, and earth.
The defendant pleaded that the watercourse mentioned in the plaintiff's declaration was a nuisance in the highway in Winthrop, and that the abatement of that nuisance was the trespass alleged.
To this plea the plaintiff replied in substance, that he was seised of a close of land on each side of the highway, the one close on the north, and the other on the south side; and that he was possessed of a right of conducting water from the close on the north to the close on the south side of the highway, for the purpose of working certain mills belonging to him, and standing on the close last mentioned.
The rejoinder denied the right of the plaintiff to the watercourse, for the purpose mentioned in the replication, and on this right an issue was joined to the country.
Upon the trial of this issue, before Sedgroick, J., at the last October term in this county, it appeared that one John Chandler formerly owned the two closes before mentioned, and that one Sampson Davis purchased the north close, bounded upon the road upon one side, and on the water upon the other side, by deed dated December 5th, 1793, with privileges through Chandler's land to his upper mill-pond or dam, for the purpose of conveying water where Chandler formerly convered it, or in any other place where Davis should think most convenient, and the privilege of digging a ditch into Chandler's mill-stream for the
· The concurring opinions of the other judges are omitted.