Berridge and Another v Ward
| Jurisdiction | England & Wales |
| Judgment Date | 02 February 1861 |
| Date | 02 February 1861 |
| Court | Court of Common Pleas |
English Reports Citation: 142 E.R. 507
IN THE COURT OF COMMON PLEAS AND IN THE EXCHEQUER CHAMBER
S. C. 30 L. J. C. P. 218; 7 Jur. N. S. 876: at Nisi Prius, 2 F. & F. 208. See Crossley v. Lightowler, 1866-67, L. R. 3 Eq. 295; L. R. 2 Ch. 478. Distinguished, Landrock v. Metropolitan District Railway Company, 1886, 2 T. L. R. 533. Applied, Micklethwaite v. Newlay Bridge Company, 1886, 33 Ch. D. 140, 152. Referred to, Central London Railway v. City of London Land Tax Commissioners, [1911] 2 Ch. 480; [1913] A. C. 364.
berjudge and another . ward. Feb. 2nd, 1801. [S. C. 30 L. J. C. P. 2 L8 ; 7 Jur. N. S. 870 : at Nisi Prius, 2 F. & F. 208. See Oroxxky v. Lightmolur, 1806-07, L. R. 3 Eq. 295; L. R. 2 Ch. 478. Distinguished, Lmulrmik v. Metrcywlitan District Railway Uomjtany, 1886, 2 T. L. R. 533. Applied, Mickln-t/twaite v. Newlay Bridye Company, 1886, 33 Ch. D. 140, 152. Referred to, Central London Railway v. City of London Land Tax IJommvuivmers, [1911] 2 Ch. 480; [1913] A. C. 364.] Where a piece of land which adjoins a highway is conveyed by general words, the presumption of law is, that the soil of the highway usque ad medium n'luni passes by the conveyance,-even though reference is made to a plan annexed, the measurement andi colouring of which would exclude it. The first count of the declaration stated that the defendant entered land of the plaintiffs in! the parish of Minster, in the county of Kent, and dug holes therein, and placed thereon large quantities of stones and bricks, &c. '. The second stated that the plaintiffs were possessed of certain land in the parish of Minster, in the county of Kent, and ought of right to have a way over the said land through certain other land into a public highway, and so from thence back again, for themselves and their servants, on foot and with horses, carts, and carriages, a.t all times, at their free will and pleasure; and that the defendant wrongfully placed and kept stones and bricks, and dug holes upon the said laud, and in and upon and across the said way, and thereby the same was obstructed and stopped up, and the plaintiff's were deprived of the use and benefit thereof. The thif-d count claimed the same way as a footway only. [401] The fourth count stated that there was a certain public highway for all the 508 BEREIDGE V. WARD 10 C. B. (N. 8.) 402. Queen's subjects to pass and re-pass, at their pleasure, on foot and with horses, carts, and carriages ; that the plain tilt's were possessed of land abutting on and next adjoining the said highway, and entitled to free egress and ingress to the said highway, and from the same to the said land, and that the said land was of right accessible from the said highway ; and that the defendant wrongfully placed and kept large quantities of stones and bricks upon the said highway in front of the plaintiffs' land, and the plaintiffs were thereby hindered from using their right of egress and ingress and from using the said land in so free a manner, and making ways therefrom into the said highway, and from erecting and building houses upon the same, and thereby the land became inaccessible from the said highway, and became and was deteriorated in value. The defendant pleaded,-first, to the whole of the declaration, not guilty,- secondly, to the first count, that the land was not tho plaintiffs',-thirdly, to the first count, liberum tenemeutum,-fourthly, to the second count, a traverse of the plaintiffs' right of way,-fifthly, a similar plea to the third count,-sixthly, to the last count, a traverse that there was a public highway, or that the plaintiffs were entitled to free egress or ingress from their land to or from the supposed highway to the said land ; nor was the said land, nor of right ought it to have been, accessible from the supposed highway, as alleged. Issue thereon. The cause was tried before Cockburn, C. J., at the last Summer Assizes fur the county of Kent. It appeared that, in 1852, the plaintiff's purchased at a public auction certain land in the parish of Minster, in the Isle of Sheppy, part of a large portion of marsh land formerly the property of the late Sir Ed-[402]-ward Banks. In the conveyance the land so purchased was described as " all those pieces or parcels of freehold land situate, lying, and being in tho parish of Minster, in the Isle of Sheppy, in the county of Kent, near to the town of Sheerness, commonly called or known by the names, and containing the quantities mentioned and set forth in the schedule hereunder written, and the situations, boundaries, and numbers whereof are set forth in the plan thereof drawn on the skin of parchment annexed to these presents," &c.; and "all the pieces of land and hereditaments hereby conveyed, or intended so to be, being on the said plan coloured red, together with all outhouses, edifices, buildings, hedges, ditches, fences, roadways, paths, passages, watercourses, timber and other trees, easements, commons, profits, privileges, commodities, advantages, emoluments, hereditaments, rights, members, and appurtenances whatsoever to the said pieces or parcels of land, gas-works, hereditaments, and premises, or any part thereof, belonging or appertaining." The quantity of land sold to the plaintiffs was lla. 9p. : and the pieces coloured red 011 the plan contained that quantity, exolusive of the road. iThe defendant in 1S56 became ,the purchaser of another portion of the same property, and^claimed to be entitled to the spot in question as part of his purchase. In support of the first and second counts of the declaration, the plaintiffs relied upon the conveyance : and as to the fourth count, they gave the following evidence of user:- Charles Colthorpe, parish clerk of Warden, in the Isle of Sheppy, stated that he had known the road from Banks Town to Scrap's Gate from 1810 ; that he had known butchers' and gardeners' carts go along it; that it was the direct road from Mile Town (Skeerness) to [403] Scrap's Gate, and also from Scrap's Gate to Minster; and that he never heard of any one being prevented. On cross-examination, be stated that he had driven his cart along the road from Mile Town to Minster; that he went to the mill there, and on other business besides; that Square Chalk was then the proprietor of the 100 acres; that he had met him while driving there, but he never prevented him; that ten or twelve years ago, a gate was put up a quarter of a mile from Scrap's Gate towards Sheerness, and is there now : that it was fastened with a chain and padlock to keiep people out; that there is a gate at the Rock House, which may have been up twenty years : that that gate was...
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