Coryton and Another v Lithebye

JurisdictionEngland & Wales
CourtCourt of the King's Bench
Judgment Date01 January 1845
Date01 January 1845

English Reports Citation: 85 E.R. 814

COURT OF KING'S BENCH

Coryton & Another
and
Lithebye

Referred to, Ormerod v. Todmorden Mill Company, 1883, 11 Q. B. D. 161.

[112] 20. coryton & another versus lithebye. Paseh. 22 Car. II. Regis, Rot. 331. [Referred to, Ormerod v. Todmorden Mill Company, 1883, 11 Q. B. D. 161.] Same precedent, 1 Mod. Ent, 181. A similar precedent settled by Saunders, Brownl. Rediv. 63, 64, S. P. Herne, 83, 84. Cornwall, to wit.-Be it remembered that heretofore, to wit, in the term of St. Michael last past before our lord the King at Westminster came Sir John Coryton Bart, and Richard Harvey by Richard Goodenough their attorney, and brought here into the Court of our said lord the King then there their certain bill against John Lithebye in the custody of the marshal, &c. of a plea of trespass upon the case, and there are pledges of prosecution, to wit, John Doe and Richard [113] Roe, which said bill follows in these words, to wit: Cornwall, to wit, Sir John Coryton Bart, and Richard Harvey complain of John Lithebye being in the custody of the marshal of the Marshalsea of our lord the King before the King himself, for that whereas one William Findge, on the 20th day of July, in the 9th year of the reign of our Lord Charles the First late King of England, &c. was seised of, and in, two water corn-mills under one roof called Castor Mills, within the manor of Calliland in the county 2 WMS. SAUHD. 113. PASCH. 22 CAR. II. REGIS 815 aforesaid, in his demesne as of fee: and whereas also the said Sir John Coryton, on the 20bh day of April, in the year of our Lord 1651, and continually from thence hitherto hath been, and yet is, seised of two other water corn-mills under one roof called Frogwell Mills, within the said manor, in his demesne as of fee: and whereas also as well the said Sir John Coryton, as the said William Pindge, and all those whose estate they respectively had in the said mills, have from time whereof the memory of man is not to the contrary, separately and respectively from time to time sufficiently repaired and amended the mills aforesaid at their own proper costs and charges, and kept them in repair, for the grinding of the corn and grain, of all the tenants inhabiting within the manor aforesaid, used and spent in their several houses within the manor aforesaid ; and also for the whole time aforesaid have kept and maintained millers to grind such corn and grain ; and in consideration thereof, they the said Sir John Coryton and William Findge, and all those whose estate they respectively had of and in the several mills aforesaid, for the whole time whereof the memory of man is not to the contrary, have ground, and been accustomed to grind, at the mills aforesaid, or one of them,(a) all the corn and grain of all the tenants of the said manor of Calliland inhabiting within the said manor, by them used and spent in their several houses within the said manor, and have had and taken, for the grinding of every bushel of such corn and grain so ground, one gallon from and out of every bushel of the said corn and grain, and so in proportion for a greater or less quantity, for toll for the grinding thereof.(l) And the said William Findge being seised of (a) [Where the owner of the mills, in a manor where a custom similar to that here alleged existed, had pulled down one of the mills, it was held that he had thereby suspended the custom. 2 B. & C. 841, Ridianlson v. CapesJ\ (1) It is not necessary now, in an action for not grinding at the plaintiffs mill, to allege in the declaration, that the plaintiff was seised in fee, or of any other estate, of the mill, it being only matter of inducement; nor is it necessary to lay any title, to the toll, or consideration for it, or any custom or prescription for the defendant, or the inhabitants and resiants within the manor, to grind at the mill, as is done in this pre cedent j but it is holden to be sufficient for the plaintiff to declare generally upon his possession of the mill, by reason whereof he is entitled to the toll and multure of the corn and grain ground at the mill,(6) and that the defendant dwells in such a house, and ought to grind all his corn and grain, spent ground in his house, at the plaintiff's mill: Willes's Rep. 654, Drake v. Wiglesworth: the usual form of the declaration at present being, "For that whereas the said (plaintiff) on the day of , in the year of our Lord , and long before was, and continually from thence hitherto has been, and still is, lawfully possessed of and in a certain water corn-mill with the appurtenances, situate, standing, and being in the parish of , in the said county of H., called Mill, and the said (plaintiff) by reason of his possession thereof,(c) (b) [6 M. & S. 69, Gard v. Callard, accord.'] (c) Although it is sufficient in actions of this nature to declare on the possession, yet if it be alleged that by reason of the possession the plaintiff is entitled, such an allegation is not supported by evidence of a parol licence or agreement by which the defendant permits the exercise of the right in question to the plaintiff, but does not legally grant and annex it to the thing possessed by the plaintiff: the allegation can only be satisfied by evidence of the right being legally appurtenant to the thing possessed either by shewing an existing grant, or long usage from which a grant is presumed. 4 Eaat, 107, Fentiman v. Smith. A licence to be exercised on land may indeed be granted by parol, inasmuch as it conveys no interest in the land; as a licence to stack hay: Palm. 71, Webb v. Paternoster. 2 Rol. Rep. 152, S. C. Poph. 151, S. C. : a licence to occupy a box at the opera: 7 Taunt. 374, Tayler v. Waters. 2 Marsh. 551, S. C.: a licence to put a sky-light over the defendant's area, by which the plaintiffs window is darkened. 8 East, 308, Winter v. Brockwell. See also 4 M. & S. 562, Rex, v. Horndon on the Hill, and 1 Barn. & Cress. 634, Rex v. Hagworthingham. An action will lie for an interruption to the enjoyment under such licence ; and when acted upon, it cannot be countermanded, at least not without putting the plaintiff in the condition in which he was before it was granted. See the above cases. [But 816 COHYTON V. LITHEBYE 2 WMS. 8AUND. 113. his mills called Castor Mills, the said William, on the said 20th day of July, in the said 9th year of the reign of the Lord Charles the First, at Lanceston, in the county aforesaid, demised his mills to the said Eichard Harvey for the term of 99 years, if Samson Harvey, Agrieta Harvey, and Sanson Brent, or either of them, should so long for all the time aforesaid of right had, and still of right ought to have, toll of corn or grain ground in the said mill. And whereas also the said (defendant) for all the time aforesaid hath been, and still is, possessed of and in a certain messuage or dwelling-house with the appurtenances situate, standing, and being in the parish aforesaid, in which said messuage or dwelling-house the said (defendant) during all the time aforesaid there is a most important distinction between a licence to do a thing upon a man's own land, and a licence to do something on the land of the licenser: for in the latter case, in most instances, an easement would, in effect, be granted; which cannot be without deed. Accordingly, if my neighbour licenses me without deed, even for a valuable consideration, to make a drain at my expence in his land, and I make the drain accordingly, he may nevertheless stop it up, if he pleases; for an easement like this cannot be created otherwise than by deed. 5 13. & Cr. 221, Heiclim v. Shippam. 7 I). & E. 783, S. C. 1 Cr. M. & E. 418, Cocker v. Cowper. See also accord, 5 B. & C. 288, Bryan v. Whistler. 2 Mann. & E. 318, S. C. 4 M. & W. 538, Wallis v. Han-ism. If, therefore, the cases above cited of Webb v. Paternoster, and Tayler v. Waters, (see also 1 C. & P. 141, Harvey v. Reynolds) are to be regarded as having decided that a licence without deed, when executed, becomes irrevocable, so as in effect to operate as a grant of an easement to be exercised upon the land of the licenser, arid thus pass an incorporeal hereditament, they seem to be inconsistent with, though not expressly overruled by the cases of Hewlins v. Shippam and Cocker v. Cowper. (See Gale and Whatley an Easements, 18, et seq. 8 M. & W. 488, Williams v. Morris; see also Eex v. Homdon on the Hill, and Bex v. Hagworthingham, ubi supra.) But those cases in no way conflict with that of Winter v. Brockwell above cited ; for that was not the case of the grant of an easement to be exercised upon the grantor's land, but a permission to the grantee to use his own land in a way in which, but for an easement of the plaintiff's, (that of light and air through his window,) such grantee would have had a clear right to use it. Accordingly, in 7 Bing. 682, Liggins v. Inge. 5 M. & P. 712, S. C., where a man who was entitled to a flow of water to his mill had, by parol licence, authorised his neighbours to lower a bank, and erect a weir, on their own land, whereby the water was prevented from flowing to the mill as theretofore, it was held that he conld not afterwards call on them to restore the bank to its ancient height, and to remove the weir; for that such a licence, having been acted upon, cannot be countermanded. Another instance has lately occurred, in which an executed licence was held not countermandable. There goods which were on the plaintiff's land were sold to the defendant: by the conditions of sale, to which the plaintiff was a party, the buyer was to be allowed to enter and take the goods : it was held, that, after the sale, the plaintiff' would not countermand the licence. 11 A. & E. 34, Wood v. Manlei/. 3 P. & D. 5, S. C. In this case, both Tayler v. Waters, and Liggins v. Inge appear to have been recognised, and regarded as proceeding on the principle that a man who, by consenting to certain terms, induces another to do an act, shall not...

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4 cases
  • William Beer v Adam Warren Beer
    • United Kingdom
    • Court of Common Pleas
    • 5 d4 Fevereiro d4 1852
    ...several cases, that, if the cause of action be joint, the action should be joint, though the interest be several: Coryton v. Lithebye, 2 Saund. 115; Martin v. Crompe, 1 Lord Baym. 340, Comb. 474, 1 Salk. 444; Wilkinson v. Hall, 1 N. C. 713, 1 Scott, 675. In the present case, the covenants f......
  • Robins v Robins
    • United Kingdom
    • Court of the King's Bench
    • Invalid date
    ...a particular injury or a particular right, which are the grounds upon which all actions are founded, and to which they must conform. Vid. 2 Saund. 115. 4 Cro. 664. Thia plaintiff had neither a particular right in this way, nor a particular injury. For the stoppage is common to every one as ......
  • Anonymous (1795) 1 Salk 282
    • United Kingdom
    • Court of the King's Bench
    • Invalid date
    ...for goods lost by the driver, unless the master takes a price for the carriage of goods. 1 Mod. 198. 3 Mod. 323. 3 Lev. 258. 1 Danv. 3. 2Saund. 115. 2 Salk. 423, 426, 440, 441, 444, 613, 614. 4 Leon. 123. 248 EVIDENCE 1 SALKKLD, 283. 1 Show. 29. Hob. 206. Palm. 534. 2 Cro. 202. Hutt. 121. S......
  • Joseph Le Fanu, and Edward Bull, - Plaintiffs in Error; Joseph Malcomson and Others, - Defendants in Error
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    • House of Lords
    • 27 d2 Junho d2 1848
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