Down and Another v Down
| Jurisdiction | England & Wales |
| Judgment Date | 12 February 1817 |
| Date | 12 February 1817 |
| Court | Court of Common Pleas |
English Reports Citation: 129 E.R. 137
IN THE COURT OF COMMON PLEAS, AND OTHER COURTS
S. C. 1 Moore, 80. Approved, Slingsby v. Grainger, 1859, 7 H. L. C. 282. Applied, Hardwick v. Hardwick, 1873, L. r. 16 Eq. 177.
[343] down and another v. down. Feb. 1:2, 1817. [S. C. 1 Moore, 80. Approved, Slingsby v. Grainger, 1859, 7 H. L. C. 282. Applied, -, , Hardwiek v. Hardwiek, 1873, L. E. 16 Eq. 177.] ! ! Devise of my messuage, farm, and lands, called C. farm, situate in or near the parishes ; of D., W.f and T., now on lease tu F., at the yearly rent of 1501, A close in the pariah of D., heretofore arable and parb of C. farm and occupied with it by the lessee thareof, but for thirty-three yaara pa3t sown with acorns, and occupied by C. P. vn.-5* 138 DOWN V. DOWN 7 TAUNT. 3. the owner, and excepted out of two leases of C. farm, one prior, the other posterior to the date of the devise, passes by the devise as parcel of C. farm. This was au action of trespass on the case, for injury to the Plaintiffs' reversion' brought to decide the title of a certain piece of wood land, called William's Spring, situate in the parish of Datchworth, in the county of Hertford, The cause was tried before Lord Ellenborough C. J. at the Hertford summer assizes 181 (i, when a verdict was found for the Plaintiffs, subject to a case. Richard Down, Esquire, deceased, was the father, as well of the Plaintiffs, who were his 3d and 4th sons, as of ihe Defendant, who was his eldest son and heir at law. Richard Down in his life-time was seized in fee of several farms and lands in the several parishes of Stevenage, Datchworth, Welwyn, and Tewyn, in the county of Hertford, and inter alia, of a certain farm called Coltsfoot farm, and also of two pieces of wood land called Howe's Wood and Bull's Wood, adjoining to Coltsfoot farm, which had been old woods from time immemorial, all in the parish of Datchworth. Coltsfoot farm consisted of about 172 acres. William's Spring, the close in question, was part of that farm, and held as such under the same title, and was so described in a map of the aaid farm made previous to the same close being planted with acorns as hereinafter mentioned. There are two ways through it, and the way from one part of Coltsfoot farm to another, is through this close called William's Spring, which immediately adjoins the upper part of it, and abuts on the road adjoining to the lower part of it; and in order to go from the upper to the lower part of the farm persons must go through this close, there being no other way, without going off the farm and by a more circuitous road. William's Spring, the close in question, consists of about seven acres, and it being of Jittle or no value to [344] the then tjnant, on account of the unfitness of the soil for any agricultural purpose, R. Down deceased, about 1783, with the consent of the tenant Pennyfeather, whose widow Mary afterwards intermarried with Field, had the close ploughed up, and sowed it with acorns: it was fenced in to protect it from cattle, (but still leaving the drove-way through it before mentioned,) and was taken by K. Down into his own possession, and so continued to the time of his death, the fences round it being repaired by him from time to time, and the underwood cut in its regular course by him with his other woodlands. Since it has been so planted, 33 years last past, it has never been held by the tenant of Coltsfoot farm. The close in question was, before it was so sown with acorns, separated from Bull's Wood by a ditch and hedge...
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