Carlisle Patriot, 11 Mar 1826 - Westmorland Spring Assizes (5)

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Saturday 11 Mar 1826   (p. 4, col. 3-6)

 

WEST MORLAND SPRING ASSIZES, 1826.

 

BURROW v. HEELIS.—S. J.

 

[continued]

 

Elizabeth WINDER.—I was servant to Capt. NOBLE: my master swept and cleaned the road opposite to the garth, behind the place in dispute. I have asked the scavengers of the Corporation to clean it and other places about. I always pay them for it. I discharged a man called HUTCHINSON from bringing manure there, and Annas LING too.—Cross-examined: I did not like to have a midden there.

 

Jane LING.—I never asked leave to put ashes upon the spot in dispute. Miles STORROW gave me leave, hearing me say I wanted a place to put them on, but I was discharged by Mrs. WINDER.

 

Robert WHARTON.—I am 72 years of age, and have always known the place in question. I remember Jack BAINBRIDGE's bakehouse and Jack WHARTON's. BAINBRIDGE's stable stood along side of SALKELD's garth. There was a railing to keep the whin together upon the disputed ground. No doubt the new building stands upon the place where the house of BAINBRIDGE stood, and upon the pavement too.

 

Thomas ABBOT.—I have known the place 55 years; and the new building stands where the whins lay, and which the rails inclosed.

 

George WILLIAMS.—I am a land-surveyor, and have just been measuring the distance from the threshold of Jack BAINBRIDGE's house, as pointed out by Miles STORROW, from the new building, which is twelve feet. The plan of the place was made at our office, and is correct.

 

John STORROW.—I am son of Miles STORROW. Mr. ATKINSON, Town Clerk, ordered my father to remove the wood from the low side to the place in dispute.

 

Jos. GRISENTHWAITE.—I was employed by BURROW to build the house, and in digging I took up about a foot of pavement along the place, four or five yards from the saw-pit.

 

Mary BURNET.—I lived servant with Capt. NOBLE, and we laid much on the spot in dispute.

 

The evidence having been gone through,

 

Mr. COURTENAY addressed the Jury, and said it did appear that his learned friend properly understood the dirty work in which he had been engaged. He talked of his not putting questions to WILSON the scavenger: he had put him into the box for his learned friend's convenience, but he had not dared to ask him any question. He could not prove by any acts of usage the right of Lord Thanet to the place in dispute. His learned friend was not conversant in the dirty work in which he had been engaged. He had not dared to ask WILSON any questions. The learned gentleman strongly commented upon the evidence for the defendant. Martha GLOVER, who had the best means of knowing it, said it was at the back of the house of her grandfather; then what became of THOMPSON's evidence, who said that it occupied part of the locus in quo. It was quite clear that he was wrong. Miles STORROW's evidence was also preposterous,—who talked of grass, and the Town clerk directing him in the way in which he shewed the right in the Corporation. His learned friend had proved no adverse usage. Mrs. WINDER was one of the most shuffling witnesses he had ever seen. It might be female modesty, but he did not think it was. She talked of discharging people. Property was occupied subject to the convenience of others, and she had a  right to remove a nuisance—the owner of the soil might be so discharged; but that does not prove an adverse right: the discharge could not operate as it respected right. Mrs. WINDER does not pay improvement rents, but Lord Thanet does for her, for the house which she occupies. She talked of discharging individuals, but these individuals were not acting on the part of the Corporation; and it could not operate as it respected rights. And how could STORROW say where the threshold of BAINBRIDGE's house stood? the place was in ruins when he came there. They had not proved any adverse occupation.

 

His Lordship, summing up, said to the Jury: "If you shall be satisfied that the land is the freehold of Lord Thanet, you will find for the defendant. There is no evidence to support the plea of footway, or of common, or of pasturage—the question is as to freehold. I think it is pretty clear from the evidence as to grants and rents, that every part of the ground lying open in the Borough of Appleby is the soil and freehold of the Corporation. It is not necessary to prove acts of ownership over the whole of the waste; and it appears to me that if there were nothing to rebut the evidence of the plaintiff, your verdict must have been for him. But it is for you to say whether the evidence of the plaintiff would be sufficient; and then you will consider whether the evidence on the part of the defendant is sufficient to satisfy you, that although the locus in quo DID belong to the Corporation, it now belongs to Lord Thanet. If a defendant sets up a right to waste, he must shew by an uninterrupted series of acts of enjoyment that he is entitled to the soil. There is no such evidence, neither in this case is it necessary, if the acts of ownership satisfy your minds that there must have been a conveyance which has been lost. It is not necessary for me to state to you all the leases which have been produced on the part of the Corporation. Much discrepancy appears in the evidence on both sides, as well as to rails as to the local situation of the stable spoken of by the witnesses. Some of them say the rails were put up by George DENT, the owner of the premises now Lord Thanet's; and others say they were put up by BAINBRIDGE to protect his firewood. If they were put up for a temporary purpose, they can hardly deserve the weight which has been attached to them. If you think the soil was in the Corporation, there ought to have been direct, unequivocal acts of ownership by Lord Thanet continued in a series till the present time. It does not appear to me that permitting timber to lie on the spot constitutes any serious act of ownership on the part of Lord Thanet; improvement rents may have been paid by Lord Thanet to the Corporation, and so far the payment is a recognition by his Lordship of the right of the Corporation to the right of the wastes generally. I think too much weight is attached to Jane LING's putting ashes upon the locus in quo. If you shall be satisfied that any part of the new building stands upon the spot where BAINBRIDGE's bakehouse and stable stood, then the plaintiff will appear to have carried his building too far. What could have induced the Town Clerk to tell STORROW to take the timber from the low side to the place in question, unless he thought the Corporation had some right there? It does appear to me somewhat singular that the place in question should be sown with hay seeds, as detailed by Miles STORROW; you will consider the manner in which he gave his evidence, and deal with it as you think fit; and whether Mrs. WINDER discharged those persons from laying ashes and dung upon the locus in quo by authority of any one belonging to Lord Thanet; if not, it could have little weight. It is for you to say whether the plaintiff's evidence, independent of witnesses, establishes a right to the soil of the wastes of the Borough; and whether the place in question is part of the waste; then whether the defendant has made out a right by clear and satisfactory acts of ownership."

 

The Jury retired for a very considerable time, and then returned a verdict for the Defendant on the plea of soil and freehold; and for the Plaintiff on the first, third, and fourth pleas.—The trial lasted eleven hours.

 

The Judge took his seat at nine o'clock on Tuesday morning, and was sitting there at the corresponding hour in the evening.