Dand v Kingscote

JurisdictionEngland & Wales
CourtExchequer
Judgment Date01 January 1840
Date01 January 1840

English Reports Citation: 151 E.R. 370

EXCH. OF PLEAS.

Dand
and
Kingscote

S. C. 2 Railw. Cas. 27; 9 L. J. Ex. 279. Distinguished, Bidder v. North Staffordshire Railway, 1878, 4 Q. B. D. 412. Discussed, Newcomen v. Coulson, 1877, 5 Ch. D. 138: affirmed, 5 Ch. D. 145; Finch v. Great Western Railway, 1879, 5 Ex. D. 262; Earl of Antrim v. Dobbs, 1891, 30 L. R. Ir. 424. Explained, Ingham v. Mackey, [1898] 1 Ir. R. 272. Referred to, Hamilton v. Graham, 1871, L. R. 2 H. L. Sc. 173.

dand v. kingscote. Exch. of Pleas. 1840. - By a deed, dated in 1630, the grantor conveyed in fee farm, land in the manor of A., in the county of Northumberland, " excepting and reserved out of the grant all mines of coals within the fields and territories of A. aforesaid, together with sufficient wayleave and stayleave to and from the said mines, with liberty of sinking and digging pit and pits:" with a covenant by the grantees that they, their heirs and assigns, " should give such accustomed recompense for digging and breaking the ground within A aforesaid, in which any pits should thereafter happen to be sunk and wrought, as formerly had been usually given and allowed there in like cases." - By another deed, of the same date, the same parties conveyed in fee farm, to other persons, lands in the manor of H. (adjoining A.) with a like exception, reservation, and covenant. - Quaere, whether under this reservation of a "sufficient wayleave," the coal owner had now a right to make a railway, for the purpose of carrying the coals from the mines for shipment, with cuttings and embankments, and fenced in io as to exclude the owner of the soil. - Held, however, that the right was not ; confined to such ways as were in use at the time of the grant. - Held, also, that under the reservation of liberty of sinking pits, the right of erecting a steam-engine, and other machinery necessary for draining them, with all proper accessaries, passed as incident thereto. - Held, also, that under the reservation in the ; former deed, the coal-owner could not carry over A. coals got in H., although from part of the same mineral field. - To an action of trespass for breaking the plaintiff's close, and laying a railroad thereon, the defendant justified under the reservation in the above deeds. The plaintiff new assigned to the plea, that the ; trespasses were committed on other and different occasions, and to a greater extent than was necessary, and for other and different purposes, and on other ; parts of the close ; to which there waa judgment by default : - Held, that, on these pleadings, the plaintiff could not dispute that some species of railroad was within the reservation, but that the question was, whether the railroad was constructed in a direction or in a manner authorized by the reservation. [S. C. a Railw. Cas. 27 ; 9 L. J. Ex. 279. Distinguished, Bidder v. North Staffordshire -_ Railway, 1878, 4 Q. B. D. 412. Discussed, Nt-wamien v. Cmdsou, 1877, 5 Ch. U. 1 38 : affirmed, 5 Ch. D. 145 ; Finch v. Great Western Railway, 1879, 5 Ex. D. 262 ; Earl of Antrim v. Dobbs, 1891, 30 L. R. Ir. 424. Explained, Ingham v. Atackey, [1898] 1 Ir. R. 272. Referred to, Hamilton v. Graham, 1871, L. R. 2 H. L. Sc. 173. J This tyas an action of trespass. The declaration contained two counts. The first ; count changed the defendant [175] with breaking and entering a close called Ouddy's i Close, in Ithe township of Amble, in the county of Northumberland, and four other elosea, called Kirton's Moor, Frontfield, Clark's North Moor, and Creswell's Moor, SM. HW. 17. DAND r. KINGSCOTE 371 in the township of Hauxley, in that county, and with making and continuing excavations and embankments, and laying a railroad thereou, and with committing other the trespasses, on foot and with horses, carts, and carriages, therein enumerated. The second count charged the defendant with breaking and entering a close called Clark's South Moor, in the township of Hauxley, in that county, and with committing similar trespasses as are enumerated in the tii'st count, and also with making iti the last-meniioned close pits and ponds, and with erecting houses, cottages, and engines, &c. The defendant pleaded, to the trespasses in the first count, with cattle other than with horses, mares, and geldings; and as to the second count, except as to one pit, one shaft, one engine-house, and one edifice, not guilty ; to which the plaintiff entered a nolle proaequi. Thirdly,(o) the defendant pleaded to the trespasses in Cuddy's Close in Amhle, that Sir W. Hewytt and Thonuis Hewytt, being seised of Cuddy's Close, and other lands in Amble, and of all the veins and seams of coal under all the lands in the township of Amble, on the 2Hrd of November, 1630, by bargain and sale enrolled, granted to Henry Lawson and Henry Horsley, Cuddy's Close and other lands in Amble, in fee, excepting and always reserved thereout all mines of coal within the said close, and also other the fields and territories of Amble aforesaid, together with sufficient wayleave and stayleave to and from the said mines, together with liberty of sinking and digging of pit and pits, for the winning of coal in Amble afore-[176]-said. The defendant then deduced a title to the coals, with the reserved liberty, from Sir William Hewytt and Thomas Hewytt to the Dowager Countoss of Newburgh, and then, as her servant, justified the trespasses in Cuddy's Close, for the purpose of carrying away coals got in Amble. The plaintiff, by his replication, after admitting the seisin, deeds of bargain and sale, and title as deduced, replied de injuria absque residue causa), upon which issue was joined. Fourthly, the defendant pleaded to all the trespasses in all the closes in Hauxley, that ia to say, all the closes in the declaration except Cuddy's Close, that Sir William Hewytt and Thomas Hewytt, being seised in fee of those closes, and other closes and lands in Hauxley, and of all the coals under all the lands in the township of Hauxley, by indenture of bargain and sale enrolled, dated 23rd of November1, 1630, conveyed to Kichard Brown and Thomas Palfrey in fee, those closes and other lands in Hauxley, excepting always and reserved thereout all mines of coal within the same closes, and all other the lands and territories of Hauxley aforesaid, with sufficient wayleave and stayleave to and from the said mines; together with liberty of sinking and digging pit qnd pits for the winning of coal in Hauxley aforesaid. The defendant then deduced the tame title from Sir William Hewytt and Thomas Hewytt to the Countess of New-burgh, and justified sinking a pit and getting coals in Clark's South Moor, and making railroads, &c., for the conveyance of these coals got in Hauxley. The plaintiff did not traverse this plea, but new assigned, as to the trespasses in the 2nd, 3rd, and 4th pleas, that the defendant committed these trespasses on other and different occasions, and ior other and different purposes than those mentioned, and to a greater extent than waa necessary, and in other parts of the closes. The defendant pleaded to the new assignment, that the closes in the declaration were in and parcel of the manor of Amble, [177] and that the late Earl of Newhurgh was seised in fee of the manor, and veins and seams of coal, with liberty for himself and his heirs, seised of the manor, and the veins and seams of coal, of getting coals, and making pits in the lands of other persons, and making convenient and sufficient roads for carrying them away. The plea then stated a, devise thereof to the Countess of Newburgh for life, and the defendant then justified, as her servant, in getting the coals and in carrying them away, under that liberty. The plaintiff, by his replication to this plea, traversed the seisin of the manor, and coals, and liberty, as alleged, whereupon issue was joined ; and also new assigned that the trespasses were committed on other and different occasions, and to a greater extant than was necessary, arid for other and different purposes, arid on other parts of the close; to which last new assignment the defendant allowed judgment to pass by default. A copy of the pleadings accompanies this case, and to which each party is at liberty to refer on the argument, and also to the several deeds and other documents of title set forth in the pleadings. The cause came on for trial at the Northumberland (a) The second plea, which set up a custom of the manor of Arable, became immaterial. ! 372 DAND V. KINGSCOTE 8 M. W. 178. ! Summer Assizes, 1838, before Mr. Baron Alderson, when the 2nd plea to the declaration, and the plea to the first new assignment were abandoned by the defendant, and ; a verdict ;was taken by consent for the plaintiff, the damages to be assessed by an : arbitrator according to the judgment of the Court, subject to the opinion of the Court on the following case :- The plaintiff, before and at the time of the trespass, was and is seised in fee, amongst other lands, of the closes mentioned in the declaration. The closes called Kirton's Moor, Frontfield, Clark's North Moor, Creswell's Moor, and Clark's South Moor, are in the township of Hauxley, and the other close, called Cuddy's Close, is in the township of Amble, in the county of Northumberland. Whilst the plaintiff was in the occupation of the afore-[178]-said closes, about the month of January, 1837, the defendant sunk a pit in the close called Clark's South Moor, to get coals thereout, and erected upon the same close a building of stone, containing a steam-engine of fifty-horse power, for the purpose of drawing off the water, : and raising the coal to the surface. The defendant also made a large pond, five feet in depth and 158 feet in circumference, for supplying the engine with water, arid erected sheds and other works upon the same close. The shaft, engine, pond, and sheds, occupy altogether about two acres and a half of the land of Clark's South Moor. In the summer of 1839, the defendant...

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