Carlisle Patriot, 20 Aug 1825 - Cumberland Summer Assizes (23)

[petra.mi...@doctors.org.uk]

Saturday 20 Aug 1825   (p. 3, col. 1-3)

 

CUMBERLAND SUMMER ASSIZES.

  

NISI PRIUS: MR. BARON HULLOCK.

  

GRAHAM, CLERK, v. GRAHAM.

 

[continued]

 

Mr. SCARLETT addressed the Jury for the defendant.—He dared to say that the Jury as well as his Lordship, regretted that they were obliged to spend the greater part of the day on an inquiry respecting a tree, the value of which was only 50s. while the costs of the action would amount to more than twice as many pounds; but Mr. GRAHAM would rather have them (the Jury) decide, who never saw the spot, upon the evidence of parties who contradicted each other, than trust to the eyes of persons who might see it, and would therefore be able to do justice without the fear of error. He had a most complete answer to his learned friend's case, and would come to it with as little delay as possible. In the particular district where the tree grew, contrary to the general rule, the ditch belongs to the person who owns the field in which it is, so that the hedge and ditch are not the property of the same individual. He should prove that this is the custom of the manor of Wetheral. He did not deny the existence of a ditch, nor that the hedge belonged to the plaintiff.—My case is, Mr. SCARLETT continued, that the centre of the tree when a sapling was in the ditch, and as it grew pressed upon the mound; but the ditch is our's. If the tree grew upon the ground of both parties, it belongs to both, and this action cannot be maintained; if it grew upon the ground of the defendant, it belongs to him, and this action cannot be maintained. I shall prove that the jury of the manor gave it as their opinion that the tree is my client's, and upon that opinion he cut it down. This ought to have satisfied the parson, if he were alive to a sense of justice. But he has determined to try the cause, and not to refer it. He comes here, not for the value of the tree, but to punish, to oppress, to endeavour to throw the costs of suit upon our shoulders, and thus gain at least one of his objects.

 

Jeremiah LAWSON called.—I live at Holmewood, in the manor of Wetheral. I have heard the brother of the plaintiff say that all his property was customary, except the Castlegarth. I have also heard several old persons, my uncle, John YOUNG, Tommy WANNOP, and others, say that the ditch, in the manor of Wetheral, belongs to the adjoining land, and has nothing to do with the hedge. I know Evening-close, and have seen the tree since it was cut down. The centre of the stump stands in the ditch, but the hedge not having been properly cast up, the skirt of it happens to be a little further out.

 

By Mr. BROUGHAM.—I know Boontown: there the ditch does not belong to the hedge. I myself have a hedge, with a tree growing in my neighbour's ditch, similar to the one in question, and I told him to cut it down because I considered it to belong to him.

 

John PORTHOUSE had lived at Wetheral 23 years. He spoke to the custom, as to ditch and hedge, like the last witness, on the authority of old persons now deceased, including the plaintiff's father. He went to see the tree, last year, as one of the jury of Wetheral manor, at the desire of the defendant, and examined it thoroughly, as well as another. The centre of the cut tree was perfectly in the ditch—they were clear of that before it was felled. If the hedge had been properly fay'd up, he didn't think any dispute would have taken place at all, so plain would have been the case. The other tree, lower down, was more into the hedge, and the jury decided that it belonged to the plaintiff.

 

Mr. John MACHELL of Low-plains.—I am steward to the Duke of Devonshire and a land surveyor. I was a commissioner under Inglewood Forest inclosure act: Wetheral is in the forest. I have visited the spot where the tree grew. The division between the two fields is a mound; the quicks seem to have been plashed. From the centre of the mound to the centre of the tree, there is a space of 4 ft. 6 inches; and as a surveyor I should have set the tree in the field of the defendant. We generally conceive that three feet nine inches from the centre of the quicks is space enough for a ditch, whereas I found the tree standing at a distance of 4 ft. 6 inches.

 

Cross-examined by Mr. TINDAL.—Suppose a case. If the land outside were open land—

 

Mr. SCARLETT objected to supposed cases. There was no pretence for saying that the land outside this fence was open land.

 

Mr. TINDAL contended that there was good ground, on the evidence of John GRAHAM, for presuming that the defendant's land was of modern inclosure, compared with the plaintiff's.

 

Mr. SCARLETT denied it—he had merely given a vague opinion, founded upon no certain information.

 

Mr. TINDAL went on.—If in open land, outside an ancient inclosure, there were a ditch: would that ditch belong to the hedge or to the land?

 

Mr. MACHELL.—Such a ditch would undoubtedly belong to the hedge.

 

Mr. SCARLETT.—Now "suppose" the reverse.

 

Mr. MACHELL.—Why then the case would be as in the present instance.

 

Mr. SCARLETT.—My client's land is as ancient as any in the parish.

 

 

[to be continued]