Carlisle Patriot, 11 Mar 1826 - Westmorland Spring Assizes (3)
petra.mi...@doctors.org.uk
Saturday 11 Mar 1826 (p. 4, col. 3-6)
WEST MORLAND SPRING ASSIZES, 1826.
[continued]
BURROW v. HEELIS.—S. J.
This trial has been pending two years, and excited considerable interest.
List of the Jury:—Richard ADDISON, Esq., Richard ATKINSON, Esq., Samuel BARBER, Esq., William COTTON, Esq., Ralph FISHER, Esq., John FORSTER, Esq., James GREENWOOD, Esq., Thomas JACKSON, Esq., H. T. LUTWICH, Esq., John BOAZMAN, Esq., Robert BARKER, Esq., James MOORE, Esq.
Messrs. COURTENAY, PATTESON, and ARMSTRONG for the plaintiff; Messrs. ALDERSON, AGLIONBY, and BLACKBURNE, for the defendant.
This was an action brought against defendant for pulling down a house built by the plaintiff. The declaration consisted of three counts, to which the defendant pleaded not guilty; and obtained leave of Court to plead several special matters: first, that the soil and freehold was the Earl of Thanet's; secondly, public highway; and thirdly, right of common and pasturage.—Mr. PATTESON opened the pleadings.
Mr. COURTENAY stated the case to the Jury. He said that the plaintiff and defendant were the nominees of the Corporation of Appleby and the Earl of Thanet, who were the actual parties in this cause. The spot in dispute itself was little worth, and it was only valuable as a point of right. As to the right of the Corporation, the Jury could have little doubt. The waste indisputably belonged to that body. The learned gentleman would produce to them a charter granted in the 1st year of King John, in 1199; and even that was not an original;* it was a confirmation of a pre-existing charter granted by the King who had a right to grant the soil within the borough. There had also been grants by Henry III., Charles I., and James II. The charter of James ratifies all former grants, and the right of soil goes with it. The King also grants pickage and tollage. The learned gentleman would shew that the Corporation had leased waste lands to various individuals; and they had repaired the roads within the borough. The waste undoubtedly belonged to the Corporation. The Jury would perceive upon the plan that an occupation road road [sic] led past the place in question, and that on each side there are improvements granted to Lord Thanet, and for which he prays an improvement rent to the Corporation. The number of leases granted of waste land are 50—several of which are to Lord Thanet. BURRA purchased the ground in dispute of the Corporation, and set about building it. Mr. HEELIS came with a crowd of men at his heels, and proceeded, vi et armis, to demolish the building. The conduct of Mr. HEELIS and his party shewed that considerable political feeling existed in this part of the country. Oh, says they, the building is a nuisance to the property behind it. They boasted of documents to prove the spot to belong to Lord Thanet. Shew us these documents, says the Mayor of Appleby, and if you can satisfy us that the property belongs to Lord Thanet, we will not go to law—we will give it up. It was quite idle to talk of such documents; and all the rest of their pretensions were equally so. Could the defendant shew an adverse right? No such thing. The place was used by every person who had a mind to put any thing there. The learned counsel then quoted the case of Doe on the demise of the Bishop of London v. MARSHALL. It was an action of ejectment tried before Chief Justice ABBOTT, to recover the possession of certain strips of land in the parish of Hornsey, claimed by the Bishop of London as Lord of the Manor. The defendant was a carpenter holding copyhold premises of the Lord of the Manor; and for fifty years the occupier of these premises had used the strips to place timber on; and in one of them had used a saw-pit. The Attorney-General said that the usage could not convey a title. The Lord Chief Justice said that in country places, it was frequently the case that a carpenter placed his wood on the waste, and sawed it out on strips of land adjoining the road; and if by such acts he could obtain a title, the proprietor would be discouraged from exercising such an indulgence. It was not likely that he would continue such like indulgence if it was to become evidence against him of an absolute right to the soil in the party using it. In this cause, a verdict was given for the plaintiff. What pretence could the defendant set up of an adverse right? It was not confined to one individual; any body used the place: it was a waste. The learned gentleman put in and read the various charters, and the leases granted to different individuals within the borough, for the purpose of shewing that the waste belonged to the Corporation. He then proceeded to call evidence.
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* The original was supposed to have been burnt on an incursion of the Scots in the reign of Henry II.
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James ATKINSON.—I was chamberlain for the Corporation 18 or 19 months ago, and had been in that office twenty years. The place in dispute is situate at the bottom of the wynd; it may be six or seven yards long. There is a public footpath leading past it: I remember it 50 years ago: carpenters who occupied the shop near the place laid wood upon it. The spot in dispute was always laid open, and considered waste ground. The shop I speak of was occupied by Isaac REED, and then Miles STORROW, who is there now. Whilst chamberlain I received the rents of the corporation. The Cloisters were rebuilt by the Corporation; and they were at the expense of the addition to the Town-Hall, repairing shambles, town pump, &c. There is a drain which comes down Doongate and goes past the spot in question; it was covered in by the Corporation. I was surveyor of the highways. The Corporation repair the roads within the borough, and all public buildings for which they receive rents. There is a place called Cold Keld, upon which I rented a skin house formerly of one Willy WILSON; Matthew TODD built one near the place, upon ground granted him by the Corporation: TODD's people paid four shillings rent to the Corporation. It was waste ground before it was built. I collected a rent of Miles STORROW, (who lives near the spot in dispute,) for the front of his house; he paid a penny for the use of the Corporation; Mr. HEELIS paid me Lord Thanet's improvement rents. (The witness here pointed out the property for which Lord Thanet pays improvement rents.) The Clerk of the Peace furnished me with a list to collect by: I collected the rents every year I was in office, and was accountable to the Corporation for what I received.
Cross-examined.—I delivered my accounts to the Town Clerk, who made up the books. Miles STORROW's house fronts into Doongate; there is a projection there and the shop behind the house: there was formerly an old building beyond it; but there is a sawpit now where it stood. The sawpit is used by Isaac REED, and since his time by STORROW. STORROW's house belongs to Lord Thanet; and so does the Garth behind the disputed ground. I do not recollect Jack BAINBRIDGE's whins there, nor the white galloway. I never saw the place railed in; nor do I know of any repairs of the road in front of that place. Capt. NOBLE set a poplar tree in the garth behind. Improvements are both in back and front of houses. Mr. HEELIS pays seventeen shillings improvement rents.
Re-examined.—I do not mean to say that there is a projection in front of Miles STORROW's house; by projection I mean that it fronts into the street. REED and STORROW laid wood partly upon the spot in question and partly beyond it. It was all open; there was no carriage road past it, only a road for driving the cows to water, and a public foot path to the bridge. The drain I spoke of runs past the place, and the sawpit is close to STORROW's shop. I do not remember the sawpit dug.
Charles RUSHTON.—I am son of the present chamberlain. The paper produced I left with Mr. HEELIS by order of my father. It is my father's writing; and the copy which I now produce is my writing. I left the paper with Mr. HEELIS on the 11th of January last.
Thomas BELL.—I was present on the 12th January last, when Mr. HEELIS paid 17s. 5½d.; a list of the articles making that sum was shewn to him and payment demanded of him. The lost produced is the same.
[to be continued]