Carlisle Patriot, 11 Mar 1826 - Cumberland Lent Assizes (25)

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

Saturday 11 Mar 1826   (p. 2, col. 6 - p. 3, col. 6; and p. 4, col. 1-3)

 

CUMBERLAND LENT ASSIZES, 1926.

 

NISI PRIUS.

 

BLACKLOCK v. MORLEY.

 

[continued]

 

Mr. COURTENAY.—My friend has made out as slight a case as was ever adduced to stop a public footpath. Every fence he put up, has been pulled down. I have no objection to his opening speech, except the shortness of it: his reason for his brevity was a lure; his real object was to get rid of his adversary's commentary. I shall prove a case very different from one of adverse usage. If an occupier relinquishes his right, the public right may take place instantly. The man who spoke of seeing Mr. MORLEY going over the old land with a cart, would not tell when; his testimony, therefore, on that point must go for nothing. BROWN comes to speak of a conversation. Gentlemen, you are well aware that no species of evidence can be more vague than statements as to conversations between interested parties at remote periods of time, and I am sure you will not permit a right to be taken away upon loose talk of this kind. My client has done all he could to assert his right. When they put up a fence, he pulled it down; and now, when they bring an action, he comes into court to defend it.

 

John EARLE.—I occupied the same kind of land (part of the common allotment) on each side of the same foot-path further on, and I let it a year since: my father, Hugh EARLE, occupied the land before me. In his time it was always used as a foot-path. People were never refused going that way by me till a year or two ago, and then at the instance of Mr. BLACKLOCK. Previously I had seen the defendant and others use it as a common foot-path. Mr. BLACKLOCK threatened me with an action if I would not dyke up the stiles. There were two on my own ground, and one on the ancient land, and all in the same line. I don't know that BLACKLOCK had any other stile on his property than stakes-and-rises: they were awkward to get over, and people complained of them: there were both sods and stones to assist people in getting over.

 

Cross-examined by Mr. ALDERSON.—These stakes-and-rises stood at places where gaps were. I saw Mr. MORLEY go through the croft, with a cart, to occupy my land, which he holds. I know of his going that way before and after August. I claim a road there.

 

Hugh HERD had attempted to block up the path after the common was inclosed, but the fences had always been pulled down.

 

Mr. Baron HULLOCK to Mr. COURTENAY.—Before you speak of breaking down, you should show a previous right, otherwise you commit a trespass.

 

Witness cross-examined by Mr. ALDERSON.—The matter was never disputed till lately by the BLACKLOCKs.

 

Joseph HALL had been in the habit of going along the path from Cumwhitton to Corby for a number of years without interruption.

 

The Rev. E. STANGER, perpetual curate of Wetheral, had known the path 30 years, and had used it as a foot-path the whole time, excepting the last year, and never met with any opposition. It was a regular foot-road: he had seen some thorns in the way.

 

Mr. ALDERSON.—So, Mr. STANGER, you never had the good fortune to have your legs pricked by those thorns?

 

Mr. STANGER.—They were easily removed.

 

The Rev. Gentleman added: The first intimation that I ever had of its not being a public right, was a short time ago. I was going to Cumwhitton to dine with Mr. HUDSON, and I met that Gentleman at the gate at the Cumwhitton-end, where a paper had been put up with the intimation, "No road this way." I observed to Mr. H.—"This is a lying gate, for I came this way."—Mr. ALDERSON: Yes, but the gate did not give you leave!

 

John TURNBULL had known the road since 1802, and had used it many years without being turned back.

 

Mr. ALDERSON.—Who would attempt to turn a bull! You never met any bulls that way, I dare say?

 

Witness did not seem to relish the joke.

 

Wm. ELLIOT had known the path 24 years, and used it regularly when wishing to go that way, (three or four times a year) and was never obstructed. If there were no stiles, there were places made up like stiles: no thorns till the last year.

 

Wm. ELLWOOD had used the road 40 or 50 years ago, and regularly, since the ground was inclosed, several times a week, till within the last four or five years, and never met with interruption, nor had any thing said to him on the subject. He had been with Mr. BLACKLOCK himself, from one end to the other, and had seen Mr. HOWARD's servants go to church that way.

 

Edward ATKINSON had known the path 50 years: was never interrupted.

 

This was the defendant's case.

 

Mr. ALDERSON.—Gentlemen of the Jury: I own that if I addressed you with confidence originally, I am still more confident of your verdict now—nay, I am sure of it, for I don't see that there is any thing in dispute between us. We agree that the public had no right in 1801, and since that, there has not been any consent. In 1819, Mr. MORLEY even agreed, as you have seen, to give up his claim———

 

Mr. Baron HULLOCK.—I will not go any further to-night (Saturday). It is now past four; I shall not sit here all night upon such a question as this.

 

Mr. ALDERSON gave his Lordship one of his most beseeching looks.

 

After a short pause, the Learned Baron said—"You may go on."

 

Mr. ALDERSON continued.—A right cannot be taken from a person by force; if all the parish were to use the road, they could not establish a right, in this case, without my client had consented. Now, what method does Mr. MORLEY take to assert his claim? If he had had a just one, he might have tried the question at the Sessions, by indictment, for stopping up his right, and thus have settled the matter at a fourth part of the expense of this assize trial. From the first we have objected to any right, have set up obstructions, and given notices. We are not obliged to make a fence that no mortal man can break down.

 

Mr. Baron HULLOCK summed up the evidence, with great care, but decidedly in favour of the plaintiff. There must be a verdict for her on the new assignment; that was, the plaintiff [sic] had used one of the fields with a cart; for if he had a right there with a cart, he should have stated it in the pleadings, and his failing to do so, rendered a verdict, in point of law, inevitable. But the main point was the right of road. If the question were, whether there had or had not been a footpath in 1801, then the evidence given for the defendant might apply. On this occasion, however, it must be shewn, not that they have gone over the fields in spite of the occupiers, but that they have done so by acquiescence. If the plaintiff had taken down the fences, instead of putting them up, and had erected stiles, thereby inviting, as it were, the public to use the road, then the question would be at rest in favour of the defendant; but it could not be so decided by going by night or by violence.

 

Verdict for the plaintiff as to the right: damages 1s. Damages 1s. also upon the new assignment. Costs 40s.

 

 

[to be continued]