Casamajor v Strode
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1834 |
| Date | 01 January 1834 |
| Court | High Court of Chancery |
English Reports Citation: 47 E.R. 150
LORD BROUGHAM
S. C. Coop. t. Brough. 510; 5 Sim. 87; 2 My. & K. 706; 39 E. R. 1114.
[418] casamajor v. strode. [1834.] [S. C. Coop. t. Brough. 510; 5 Sim. 87 ; 2 My. & K. 706 ; 39 E. R. 1114.] Construction of an Inclosure Act and award under the same as regarded allotments in respect of a right of warren. A purchaser of a portion of the estates of the late William Strode, Esquire, which were sold under the decree of the Court, excepted to the Master's report approving of the title, on the ground that the premises formed part of allotments under an Inclosure Act, which appeared from the award to have been made in respect of a right of warren, for the extinguishment of which, if the same was extinguished, the Act gave no power to grant compensation. The exception was overruled by the Vice-Chancellor, and this was an appeal from His Honor's decision. The passages of the Act arid of the award upon which the question turned are sufficiently stated in the judgment. For the exception, Sir E. Sugden, Mr. Teed, and Mr. Jemmett. Mr. Pepys, Mr. Knight, Mr. Hodgson, and Mr. Hovenden, in support of the Master's report. The Chancellor was assisted by Lord Chief Justice Tindal, arid the Right Honourable Mr. Justice Bosanquet. Feb. 13, 1834. lord chancellor. The question is, whether a good title can be made to Lot No. 25, part of the Northaw estates, late belonging to William Strode, Esq., with reference to the power of the Commissioners under the Northaw Inclosure Act, passed in the 43d year of Geo. 3, and to the form of the Commissioners' award. It appears by the recitals of that Act, that there was within the said parish a tract of waste land and common containing about 2150 acres, and that Mr. Strode as lord of the manor was seised of or entitled to the soil and royalties within the [419] same, and as lay rector of the parish was entitled to all tithes, both great and small, arising within the same ; and claimed right of common in respect of the soil and royalties on the waste land and common ; and that there were within the manor and parish several messuages, tenements, lofts, homesteads, and old inclosed lands, the proprietors of which claimed to be entitled to a right of common upon the tract of waste land and common. After these recitals it is enacted, amongst other things, that the Commissioners thereby appointed should, after deducting such parts of the waste land and common as they might think proper1 to set out for the public highways, roads and drains, set out and award to Mr. Strode, his heirs and assigns, as a compensation for the soil of the waste land and common, as lord of the manor, one full 18th part (quantity and quality considered) of all the residue of the waste land and common over and above and exclusive of such share and allotment of the waste land and common, or the residue thereof, as was thereinafter directed to be allotted to him irr lieu of his right of common therein; and also should award to Mr. Strode, his heirs and assigns, as a compensation for the impropriate tithes due and payable to him as aforesaid, one eighth part of the residue of the waste land and common over, above, and exclusive of such share or allotment as last aforesaid, in exoneration of all the waste land and common then intended to be inclosed from all tithes, both great and small, for ever thereafter; and after making such deductions as afore-[420]-saicl, and after such parts of the whole residue of the waste land and common should have been set out and allotted to Mr. Strode in manner aforesaid, the Commissioners were required to divide all the residue of the waste land and common amongst Mr. Strode arrd the several other persons having any right of common upon such waste land and common, in proportion to their respective claims, fec. The Act then contains a proviso, that nothing therein contained should preju- COOP. THROUGH. 1. CASAMAJOR V. STBODE 151 dice Mr, Stroda's right or title as lord of the manor to the seignory and royalties belonging ta the manor, but that he, his heirs and assigns, should hold and enjoy all courts, perquisites and profits of courts, rents, waifs, estrays, mines, minerals and quarries, and all royalties, jurisdictions, matters and things to the manor belonging or appertaining, in as ample a manner as he or they might have done if that Act had not been made. Now the Commissioners, by their award, dated the 29th August 1806, made four distinct allotments to Mr. Strode, in respect of four distinct rights or claims of his. First, they allot to him and his heirs a piece of freehold land, containing 102 acres, entirely surrounding the warrener's house and garden, which they declare to be in compensation for all his right, title, and interest iu the said warren. Secondly, they make an allotment to him of 81 acres, 3 roods, 38 perches, which they declare to be a full compensation for all his right and interest in and to the soil of the common and waste ground in the parish of Northaw. [421] Thirdly, they allot to him, as lay rector, a piece of freehold land, containing 67 acres, 1 rood, 37 perches, and 104 acres, 2 roods, 15 perches, making together 172 acres, 12 perches, therein described, which they declare to be a full compensation to him for all his impropriate tithes within the parish. And fourthly, they divide, set out, and allot to the said William Strode and the other proprietors respectively, all the residue of the lands and grounds directed to be inclosed, which they declare to be a compensation for their several and respective rights of common and other their rights and interests therein; and after describing particularly the different allotments marie to the said William Strode, they declare them to be in full compensation to him " for all his right, title, and interest in and to all the lands and grounds within the said parish of Northaw, directed to be divided and inclosed." No question can arise in this case as to the allotments secondly, thirdly, and lastly above made; for there can be no doubt that the Commissioners had the right to give, and that they have accordingly given to Mr. Strode allotments for his right of soil, as lord of the manor; for his impropriate tithes, as lay rector; and for his rights of common and other rights in respect of his lands within the parish. But the question is, whether the Commissioners had any authority to make the first allotment to him for and in lieu of his right, title, and interest to or in...
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