Blount v Layard (Note)
| Jurisdiction | England & Wales |
| Date | 1891 |
| Year | 1891 |
| Court | Court of Appeal |
APPEAL by the Plaintiff against the affirmance by a Divisional Court (Hawkins and Grantham, JJ.) of the refusal of Lord Coleridge, C.J., to enter judgment for the Plaintiff.
By his statement of claim the Plaintiff alleged that he was the owner of the Mapledurham estate, in the county of Oxford, comprising several manors, and a several and exclusive fishery in the river Thames, extending over the whole stream of the river between certain specified limits, and thence extending over the half stream of the river on the Oxfordshire side down to another specified point; that the Defendant, on the 14th of November, 1885, fished in the said fishery, and took and carried away fish therefrom to the damage of the Plaintiff. The Plaintiff claimed damages for the trespass, and an injunction to restrain the Defendant from fishing in the future.
By his statement of defence the Defendant alleged that “the Plaintiff was not at the time of the committing of the alleged grievances possessed of the fishery in the statement of claim declared.” The Defendant admitted that at the time and place mentioned he fished in the river, and took and carried away fish therefrom by angling from a punt, but not in any other manner.
At the trial before Lord Coleridge, C.J., with a jury, the Plaintiff gave evidence of his title to the fishery by documents and the exercise of acts of ownership.
On behalf of the Defendant it was elicited by the cross-examination of the Plaintiff's witnesses that the public generally had for many years past been in the habit of fishing in the main stream of the river with rod and line, with the knowledge of the Plaintiff and his predecessors in title, but without any interruption by them, though they had been prevented from doing so in certain parts of the stream.
LORD COLERIDGE, C.J., held that there was evidence for the jury to consider whether the Plaintiff had proved his title, and refused to direct them to find for the Plaintiff. The jury disagreed, and were discharged by consent. The Plaintiff applied to the Divisional Court to enter judgment for him, and this application was refused.
This decision was affirmed by the Divisional Court.
The Plaintiff appealed.
Jelf, Q.C., Jeune, Q.C., and Stuart Moore, for the Appellant.
Philbrick, Q.C., and W. Phipson, for the Defendant.
The following cases were cited:
Neill v. Duke of Devonshire (
LORD ESHER, M.R.:—
The Defendant, as one of the public, and in no other capacity whatever, has been fishing in the main stream of the river Thames at Mapledurham; and he has adduced evidence which shews that, for as long a time as any one can recollect, other people in the same position as himself have fished in the same way at the same place. The Plaintiff claims the exclusive right of fishing in this place, and he has brought this action to establish his right.
The issue raised is not whether the Defendant has a right to fish in the place in question, for he admits that he has none; but he says that the Plaintiff has not proved that he is entitled to interfere with him.
The case being tried before a Judge and a jury, the Judge was of opinion that the evidence had raised a disputed issue of fact which the jury must decide, and he therefore left the question to the jury, whether the Plaintiff had established his title. The jury disagreed, and the result is that, unless something else happens, there must be a new trial.
It is said on behalf of the Plaintiff that the Judge was wrong in holding that there was a dispute of fact to go to the jury, and that no material fact was in dispute. The evidence adduced by the Plaintiff, it is said, was sufficient to maintain his case, and it was really unchallenged by any evidence on the part of the Defendant, and the Judge ought to have directed the jury as a matter of law to find their verdict for the Plaintiff. If there was no evidence upon which any dispute as regards the issue which was being tried could be left to the jury, or if there was no evidence except that which ought not to have been admitted, or if evidence was admitted which could not in the mind of a reasonable man raise any doubt as to the Plaintiff's title, then, in my opinion, it was the duty of the Judge to direct the jury to find for the Plaintiff, and if they disobeyed that direction, their verdict would have been perverse and wrong, and could have been set right by the Court.
It was said that no one asked the Judge to give that direction. All I can say is, that, unless some one misled the Judge into not giving it when he ought to have done so, it is the duty of a Judge, when all the evidence is before him, whether he is asked or not, to accept the responsibility of saying whether there is evidence to go to the jury, and, if there is really no evidence, he does wrong if he allows the case to go to the jury.
And, even if the jury have disagreed upon a question on which the Judge has directed them, yet, if he ought to have directed them in one way, I am strongly inclined to think, though it is not necessary to decide it now, that, the question which he had left to the jury being under those circumstances wholly immaterial, the Court, if it thought the Judge was wrong, could enter the verdict as he ought to have ordered it to be entered.
If then we should be of opinion in the present case that there was no evidence proper to be left to the jury, I do not think the Lord Chief Justice was in any way misled. He acted on his own motion and upon his own conviction of what was right, and, if we should come to the conclusion that he ought not to have left any question to the jury, we could now order the verdict to be entered for the Plaintiff, and give judgment accordingly.
Then arises the question, was there any evidence to go to the jury. I agree with the learned Judge that the paper title of the Plaintiff, unless there was something to impugn it, was irresistible, and it shewed that he was the owner of a several fishery in the whole of the river at the place in question. Many pieces of evidence were given to shew the Plaintiff's ownership of the soil of the river. Whether they were so conclusive that that also was not a question for the jury I am not prepared to say, because I think the answer to the question whether he was or was not the owner of the soil is not decisive of the present case. Mr. Jelf urged us to say that, if the Plaintiff is the owner of the soil of the bed of the river, the water above it and the fish in the water are necessarily his property, and no one can have a right to interfere with them. I think that is a wholly untenable proposition.
The question, therefore is, whether, the Plaintiff's paper title being as strong as it was shewn to be, there was any evidence to challenge it. The evidence adduced for that purpose is of acts of the Defendant and of many other persons who for many years have done what the Defendant has done. It is true that they were doing that which they had no right to do, and no amount of evidence can shew that their doing it, in the capacity in which they did it, was in the exercise of a right in themselves. They might be so acting by the permission of some other person who had the right, that is, as licensees, but a licensee does not act in respect of a right in himself; he acts by the leave of the person who has the right.
Then it is said, that, the Defendant and the other persons who have acted as he has done being...
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