Campbell against Wilson
| Jurisdiction | England & Wales |
| Judgment Date | 04 February 1803 |
| Date | 04 February 1803 |
| Court | Court of the King's Bench |
English Reports Citation: 102 E.R. 610
IN THE COURT OF KING'S BENCH.
Applied, Lord Rivers v. Adams, 1878, 3 Ex. D. 371. Referred to, Dalton v. Angus, 1881, 6 App. Cas. 813.
campbell 'against wilson. Friday, Feb. 4th, 1803. Where no evidence appeared to shew that a way over another's land had been used by leave or favour, or under a mistake of an award which would not support the right of way claimed, such a user for above 20 years exercised adversely and under a claim of right is sufficient to leave to the jury to presume a grant, which must have been made within 26 years, as all former ways were at that time extinguished by the operation of an Inclosure Act. [Applied, Lord Ewers v. Adams, 1878, 3 Ex. D. 371. Keferred to, Dalton v. Angus, 1881, 6 App. Cas. 813.] In trespass, the declaration charged the defendant with breaking and entering the plaintiff's close called Bryan Grey's Moss Dale, otherwise Dr. Campbell's Moss Dale, in the parish of Warton in the county of Lancaster. The defendant pleaded not guilty as to the force and arms, &c. : and as to the residue he pleaded, 1st, a prescriptive occupation-way from a lane called Storr's Lane over the locus in quo to a moss dale of the defendant's, at all times and with carriages, &c. which prescription was traversed by the replication, and issue taken upon it. 2dly, the defendant pleaded that Bryan Grey was seised in fee of the locus in quo, and that one Joseph Wilson (under whom the defendant made title by devise) was at the same time seised in fee of an adjoining moss dale, and that by deed (lost by time and accident) Bryan Grey, in consideration of a competent sum, granted to Joseph Wilson and his heirs a way from -the said Storr's Lane into, through, and over the locus in quo to Joseph Wilson's last-mentioned moss dale at all times, &c. for the occupation of the same moss dale. The replication traversed the grant, on which issue was taken; and also made a new assignment, to which the defendant pleaded not guilty. [295] At the trial before Chambre J. at Lancaster, the only question arose on the right of way; the plaintiff contending that the defendant's right depended solely upon an award made under an inclosure Act of the 17 Geo. 3, c. 79, and that the way into Storr's Lane allotted to him under that award was over an adjoining piece of ground, formerly belonging to one Whinray, and not over the locus in quo. A printed copy of the Act was given in evidence by the plaintiff, whereby it appeared that certain commissioners were appointed for dividing and inclosing the commons, wastes, and two mosses, within the manor of Yealands in the parish of Warton; and the commissioners were to set out (a) all proper public highways, and also private ways, over the inclosures: and it was provided that after the* making such public and private ways it should not be lawful for any person to use any other public or private ways than such as should be so set out. By another clause (b) the commissioners were required to make an award in writing, specifying the several allotments made, and the public and private ways set out; which award was to be conclusive upon all parties. And by another clause (c), after such award made, all former rights, interests, easements, claims, and demands whatsoever upon any of the said commons, mosses, &c. were for ever barred and extinguished. The award made under the Act, dated 18th of December 1778, and inrolled 12th of January 1775, was then proved, in, which were described five moss dales, (or inclosures out of...
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