Blackburne v James Collinge
| Jurisdiction | England & Wales |
| Judgment Date | 06 June 1849 |
| Date | 06 June 1849 |
| Court | Court of Common Pleas |
English Reports Citation: 137 E.R. 372
IN THE COURT OF COMMON PLEAS
S. C 18 L J. C. P.; 13 Jur. 791.
DOE, ON THE SEVERAL DEMISES OF DANIEL BRAMMALL AND THOMAS blackburne v. james collinge. June, 6, 1849. [S. C. 18 L. J. C. P. 305; 13 Jur. 791.] The perpetual curate of a curacy augmented by the governors of Queen Anne's bounty, with the confirmation of the ordinary and immediate patron, granted a lease for years of unopened mines, which had not before been leased; but the patron of the advowson was no party :-Held, that the lease was void at common law, for want of confirmation by such patron paramount; and that it was not set up by the acceptance of rent by the lessor's successor in the curacy,-the only effect of such acceptance of rent being, to create a tenancy from year to year. This was an action of ejectment, brought for the recovery of certain lands situate in the parish of Prestwich-cum-Oldham, in the county of Lancaster. The declaration contained counts on demises laid on the 1st of May, 1841, and 31st of December, 1846. [940] The cause came on for trial at the last summer assises for the southern division of the county of Lancaster, when a verdict was found for the plaintiff, subject to the opinion of the court on the following case :- The lands sought to be recovered in this action, are called the Nether Hey Estate, and are situate in the township of Oldham, in the parish of Prestwich-cum-Oldham, in the southern division of the county of Lancaster, and were, prior to the year 1847, in the diocese of Chester. The chapelry of Shaw is in the patronage of the rector for the time being of the parish of Prestwich-cum-Oldham; and, prior to the year 1847, was within the jurisdiction of the Bishop of Chester, as ordinary. In the year 1718, the chapelry of Shaw was.duly augmented by the Governors of Queen Anne's Bounty; by virtue of which, and by force of the statute made in that behalf, it became a perpetual curacy. By indenture bearing date the 2nd of November, 1724, made between the Eev.. William Assheton, B. D., then being rector of Prestwich-cum-Oldham, of the first part, the Governors of the Bounty of Queen Anne, of the second part, and John Kippax, clerk, then being the curate of Shaw chapel, of the third part,-after reciting the grant of the governors made in 1718-it was witnessed, that, for the consideration therein 7 C. B. 94L DOE V. COLLINGE 373 mentioned, he the said William Assheton, at the nomination of the said governors, granted* bargained, and sold unto the said John Kippax, and his successors, curates of Shaw chapel aforesaid, All that messuage or tenement, with the appurtenances, commonly called or known by the name of Nether Hey, together with the dwelling-houses and parcels of land therein more particularly described (the same being the premises hereinbefore .called the Nether Hey Estate), To hold the said messuages or tenements, lands, and premises, with their appurtenances, unto the [941] said John Kippax, and his successors, curates of Shaw chapel aforesaid, for ever, for a perpetual augmentation of the said chapel. [A copy of that indenture accompanied the case, and either party was to be at liberty to refer to it, as if set out therein.] - The above indenture was in due manner executed by the Governors of Queen Anne's Bounty, by the said "William Assheton. and by the said John Kippax, and was inrolled, within six months, in the court of Chancery. From the time when the estate of Nether Hey was so conveyed as aforesaid, up to the time of the granting the leases hereinafter mentioned, the same has been enjoyed by the curates of the chapelry of Shaw; and, during that time, there have been several incumbents of the rectory of Prestwich-cum-Oldham, and several curates of the chapelry of Shaw. But, at the date of the leases hereinafter mentioned, the Rev. Thomas Blackburne, one of the lessors of the plaintiff, was the incumbent rector of Prestwich-cum-Oldham, and the Eev. James Hordern was the perpetual curate of the chapelry of Shaw. For more than twenty years prior to the granting of the lease hereinafter next mentioned, and during the curacies of Mr. Hordern and his last two predecessors, one Abraham Clegg occupied the Nether Hey Estate, as yearly tenant, paying an annual rent of 501. to the curate of Shaw for the time being. He paid that rent merely for the occupation of the surface. During the time that Abraham Clegg occupied as such tenant, he and Abraham Lees bored in the said estate, to search for coal, but were not successful in finding any; and, prior to the granting of the lease hereinafter next mentioned, no coals had been wrought or gotten under the said estate. But, in or about the [942] year 1833, the defendant commenced working the coals. On the 29th of September, 1830, by an indenture then made between the Eev. James Hordern, therein described, of the one part, and the defendant, therein described, of the other part, it was witnessed, that, for the considerations therein mentioned, he the said James Hordern did demise unto the said James Collinge, his executors, administrators, and assigns, All that messuage or tenement and farm known by the name of Nether Hay, situate as therein described, with the appurtenances; and also all the parcels of land therein described (the same being the premises hereinbefore called the Nether Hey Estate); and also all the mines, veins, beds, and seams of coal and cannel, of all kinds, nature, and quality, lying and being within or under the aforesaid several parcels of land; and also full liberty to and for the said James Collinge, his executors, administrators, and assigns, agents, and servants, to enter into and upon the said lands, from time to time, and at all times during the continuance of the said demise, and to dig, bore, delve, sink, search for, get, and raise the coal, cannel, culm, and slack lying and being in such mines, veins, beds, and seams, and to dig, sink, drive, run, and make any pits, shafts, levels, soughs, trenches, and watercourses in and about the said mines and works; and also to erect, in and upon the said lands, engines, gins, and other machines, smithies, forges, and other buildings, and use all such devices, ways, and means as should be found necessary for draining, raising, and getting, and working the said mines, veins, beds, and seams of coal and cannel; and to place, stack up, and lay such coal, and the earth, rubbish, and soil to be raised out of the pits, upon the said lands; and also to make roads, railroads, pools, reservoirs, canals, and watercourses, in, through, and over the said lands, [943] and to do and perform all things necessary or expedient for taking, conveying, carrying away, and disposing of the said coal and cannel,-To have and to hold the said messuage or tenement and farm, and parcels of land, and to have, hold, use, and enjoy the said mines, veins, beds, and seams of coal and cannel, culm, or slack, liberties, privileges, and powers aforesaid, unto the said James Collinge, his executors, administrators, and assigns, from the day of the date thereof, for the term of fifty years thence next ensuing, and fully to be complete and ended, if he the said James Hordern should so 374. DOE V. COLLINGE 7 C. B. 944. long happen to live and continue incumbent of the curacy of Shaw aforesaid ; Yielding and paying therefore, yearly, during the first two years of the said term, unto the said James Hordern, his executors, administrators, or assigns, the yearly rent or sum of 1501., and yielding and paying, from and immediately after the expiration of the first two years of the said term, yearly and every year during the continuance of the said term, unto the said James Hordern, his executors, administrators, and assigns, the clear annual rent or sum of 2001. [A copy of this indenture also accompanied the case, and either party was in like manner to be at liberty to refer to it.] After the granting of the last-mentioned lease, the said Abraham Clegg continued to occupy the surface of the said Nether Hey Estate, as tenant to the defendant; and, in or about the year 1832, the defendant opened, and has thence hitherto worked, the mines which lie under that estate; and the same are still in the occupation of the...
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