Carlisle Patriot, 20 Aug 1825 - Cumberland Summer Assizes (22)

[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.

 

This cause excited considerable interest, chiefly on account of the folly of litigating about a tree worth not more than 50s. The plaintiff was the Rev. Wm. GRAHAM, the owner of a considerable customary property in the manor of Wetheral; the defendant the possessor of similar property adjoining that of the Rev. plaintiff.

 

Mr. BROUGHAM addressed the Jury in a long dry speech. The tree, he said, was an old oak, and grew in a fence belonging to Mr. GRAHAM, which had originally, most probably, been a ring-fence, and the boundary of what might be considered the anciently-enclosed land. The tree itself was of little value. But if the defendant had a right to claim it, he would have a right to claim many others, more worth, growing in similar situations. He went on to describe the nature of the fence. In the course of time it had sunk down, and become a mound, and with it had sunk the tree towards or partly into a ditch in the defendant's field; but he should be able to prove that it must have been planted on the top of the fence or mound, and that, in fact, it was still more in the fence than in the defendant's ditch, though the other side maintained a contrary position, and made that a pretence for cutting down the tree and carrying it away.

 

Christopher SLATER.—I am the tenant of the property on which the tree in question grew. The field is called Scroggs-hill, and adjoins the defendant's Evening-close. They are separated by a hedge composed of oak trees, hazel, and thorns—a thick, full hedge for the most part of it—and there are several upright trees growing on it. When I have cut the hedge, I found it necessary to take a horse and cart into the defendant's field to carry away the bushes, and never met with interruption. I have seen the tree when standing, and the stool (stump) of it since; it stood near the ditch, but the bulk and body of it were decidedly in the hedge.

 

On his cross-examination by Mr. SCARLETT (who led for the defendant), the witness admitted that there had been a well-defined ditch in the defendant's field, but the hedge had slidden down and partly occupied it.

 

Mr. Baron HULLOCK.—I think it is a pity to waste a whole day about a tree, when the question can be so much better decided by persons on the spot.

 

Mr. BROUGHAM.—I think when you hear my next witness that the thing will be so clearly made out as to render resistance hopeless.

 

Mr. SCARLETT.—And I may say, hear my witnesses and you will certainly be convinced!

 

Mr. Baron HULLOCK.—Go on, then.

 

Cross-examination continued.—The greater part of the tree is not in Evening-close, but I won't say some of the roots are not. It is the custom of the country to go into other people's fields to crop hedges.

 

Thomas GRAHAM.—I have known the ground forty or fifty years—have known my father, then the owner of Scroggs-hill, cut trees and brushwood in the hedge in the same place where the tree in question stood, and was never molested in doing so, though the defendant's father lived near at hand.

 

Mr. SCARLETT.—In order to save time, we admit that the whole of the mound belongs to you; but we deny that the tree grows in the mound.

 

Witness continued.—The mound projected further than the tree, and we cut brush-wood growing beyond, further into Evening-close. There was an ancient ditch, which is perfect at the ends where the plough cannot touch. When I first knew the tree no part of it projected from the mound.

 

Cross-examined.—I am brother to the plaintiff, and have been to see the stool since the tree was cut down.

 

John GRAHAM of Carlisle examined.—I am not related to the plaintiff. I have been in the office of woodwarden to the Dean and Chapter of Carlisle many years. I have looked at the stump of the tree; it is an oblong one, 19 inches one way, and 22 inches the other—17 inches of the diameter in the hedge, and 5 in the ditch. In my judgment, the tree belongs to the persons to whom the hedge belongs, for the principal part is in it.—He thought the defendant's land of more modern inclosure than the plaintiff's, the latter, in his opinion, being what is called a ring-fence.

 

John PEASCOD.—I have been employed as an agent by Mr. GRAHAM and his family. The tree grew in the hedge, one part rather in the ditch.

 

Cross-examined.—Upon my oath I did not at any time admit that the tree that the defendant has cut down was his property. I told him that in my judgment the tree belonged to Mr. GRAHAM, but said if he chose to give up this one to prevent disputes it would perhaps be as well. SLATER, the tenant, is nearly related to Mr. GRAHAM.

 

Jacob CLARK.—I am a landholder in the neighbourhood of these fields, and knew the tree before it was cut down—it grew for the greater part in the hedge. The value of it is 50 or 60s.

 

Thomas HOWE also lives in the neighbourhood, and saw the tree after it was cut—it grew chiefly in the hedge.

 

George STEEL was employed to cut the tree by the defendant, who is his cousin.

 

Cross-examined by Mr. SCARLETT.—The centre of the tree grew in the ditch; and when a sapling the centre of it must have been in the ditch.

 

Wm. STRONG, woodmonger, had seen the tree, and thought the greatest part of it grew in the hedge.

 

Mr. BROUGHAM.—That's my case.

 

 

[to be continued]