Dewhirst v Wrigley
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1834 |
| Date | 01 January 1834 |
| Court | Court of the King's Bench |
English Reports Citation: 47 E.R. 529
IN THE KING'S BENCH.
[329] dewhirst v. wbjgley. In the King's Bench. 1834. Action for obstruction of a watercourse to which Plaintiffs alleged themselves to be entitled by reason of their possession of a mill. An agreement for such watercourse made twenty-eight years before with those under whom Plaintiffs claimed being given in evidence by the Defendants, it should nevertheless be left to the jury to presume whether a grant has not been executed. The action was in case for the wrong sustained. The declaration stated that the Plaintiffs before and at the time of the committing of the grievances by the said Defendants thereinafter next mentioned, were and from thence thitherto had been and still were lawfully possessed of a certain mill situate, &c., and by reason thereof, before and at the time of the committing of the said grievances thereinafter mentioned, of right ought to have had and enjoyed, and still of right ought to have and enjoy, the benefit and advantage of the water of a certain stream or watercourse, which during all that time of right ought to have run and flowed, and until the obstruction and diversion thereof thereinafter mentioned of right had run and flowed, and still of right ought to run and flow, from the aforesaid brook unto the said mill of the said Plaintiffs for the supplying the same with water for the working and more beneficial use and enjoyment thereof, &c. The plea was the general issue, not guilty. April 16. Motion for new trial. Mr. Pollock Barstow had no conveyance of the legal estate in The Holme Close until November 1805. Consequently the agreement of October 1805, even if under seal, would only have operated as a covenant. He could not at that period have executed a grant of this easement-for nothing more is claimed, there is no question as to any interest in the soil-yet it is obvious that a grant was intended, and a grant not to Watkinson only, but his heirs and assigns. Watkinson, and after his bankruptcy his assignees, might have filed a bill in equity against Barstow or his devisees for a specific performance of this agreement. After the lapse of more than twenty-eight years it ought to be presumed that this agreement [330] has been perfected by a grant. In Wright v. Howard, 1 Simons & Stuart, 190, 203, Sir John Leach says, that the term of twenty years' uninterrupted enjoy- 530 DEWHIRST V. WRIGLEY C. P. COOPER 331. ment of a right liko this is now...
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