Goodtitle, ex dimiss. Chester, v Alker and Elmes
| Jurisdiction | England & Wales |
| Judgment Date | 28 January 1757 |
| Date | 28 January 1757 |
| Court | Court of the King's Bench |
English Reports Citation: 97 E.R. 231
IN THE COURT OF KING'S BENCH
S. C. Bull. 99, cited. Referred to, Harrison v. Rutland [1893], 1 Q. B. 155.
1BORE. 1M. GOODTITLE V. ALKER - goodtttle, ex DiMiss. chester, mrs. AucER and ELMES. Friday, 28th Jan. 1757. An ejectment lies by the owner of the soil, for land over which a highway lies; and a wall or building upon it, may be described in the declaration as land ; but perhaps if a house were built upon it, it ought to be described as such. [S. C. Bull. 99, cited.] Tr. 26, 27 G. 2, Rot. 590. [Referred to, Harrison v. Rutland [1893], 1 Q. B. 155.] This case was first argued on Tuesday the 4th of February 1755, when there were only three Judges Mr. Just. Wright having (two days before) resigned, and Mr. Wilmot (who was appointed to succeed him) not being then called a Serjeant: and it was again argued, and determined on this day, (when Mr. Just. Wilmot was also absent, in the Court of Chancery.) It was a special verdict in ejectment for an acre of land lying in the pariah of St. Philip and Jacob in the county of Gloucester. It finds, as to one piece of land, containing fourteen inches in length, and thirty-three feet in breadth, (parcel of the premises ;) and as to one other piece of land, containing three feet six inches in length, and seven feet in breadth, (other parcel of the premises;) and as to one other piece of land, containing two feet in depth and fourteen feet in length, (other parcel of the premises contained in the declaration ;) that Thomas Chester, Esq. was in 1648 seised in his demesne as of fee, of and in the manor of Barton Regis in the county of Gloucester, with the appurtenances. That the said T. C. Esq. being so seised, certain articles of agreement were, on 24th June 1648, made between the said Thomas Chester and [134] one John Gotley otherwise Dowle, reciting a presentment by the homage, at a court leet of the said manor, bolden 10th of April 1648, "that the said John Gotley alias Dowle, in the new building of a house at Lafford's Gate, had encroached upon the waste of the said Thomas Chester then and yet lord of the said manor, fourteen inches in length and thirty-three feet in breadth, without his house; together with a porch, without the wall adjoining to the said house, of three feet and a half; for the which encroachment, the said John Gotley alias Dowle was by the said jury amerced ; as by the presentment aforesaid, in the rolls of the said court, appeared ;" the said Thomus Chester and John Gotley thereby agreed, not only concerning the said amerciament, (whereof the said Thomas Chester thereby acquitted and discharged the said John Gotley;) but also the said Thomas Chester, for the consideration thereafter mentioned, agreed to permit and suffer the said John Gotley his executors and administrators, to continue the peaceable enjoyment of the said ground and waste encroached, without his disturbance; and also to have liberty to set and place a post in the street, &c. and three other posts, &c. witkout any disturbance or trouble by him the said Thomas Chester, &c. for the term of 100 years from the day of the date of the said articles. In consideration whereof the said J. G. alias D. for him, his heirs, executors, &c. covenanted and agreed to pay to the said T. C. his heirs or assigns, the sura of 6s. 8d. per annum yearly, &c. during the said term : in consideration whereof, the said T. C. granted and agreed to let the said encroachment or encroachments to stand, for and during the said term, without any disturbance, &c. ; so as the said yearly rent or sum of 6s. 8d. be duly paid, &c. And it was further found, that the two first pieces of land particularly mentioned and described in the verdict, are the two several pieces of land mentioned in the said articles to be encroached on by the said John Gotley otherwise Dowle ; and parcel of the waste, and part of the tenement in the declaration mentioned; and were so encroached and taken in by the said J. G. otherwise D. in the building or erecting the messuage or house mentioned in the said articles, some small time before the date of the said articles; and then were lying in and part of the said manor, and were part of a public street and King's highway, called West-Street, in the parish of St. Philip and Jacob in the said county of Gloucester, and leading from the City of London to the City of Bristol. The jury likewise find that the said yearly sum of 6s. 8d. was duly and constantly paid, in pursuance of the said articles, by the defendants and those whose estate they hare, to the said Thomas Chester and the successive lords of the said manor, (his descendants,) during all the said term of 100 years; and from the end thereof, till Lady-Day 1750. [135] Then they find that the defendants Alker and Elmes, sometime in the year 232 GOODTITLE V. ALKER I BURR. 186. of our Lord 1748, erected certain palisadoes before the front of the said house, and thereby took ic and inclosed the third piece of land, above particularly mentioned and described, then lying in and being part of the said manor, and being then other part of the said public street and highway ; and have kept the same so inclosed ever since, to this time: and that that part of the said street where the said encroachments were so made, at the several times of the said encroachments, contained in breadth (including the said encroachments) sixty feet and no more. The jury find Thomas Chester, Esq. the lessor of the plaintiff, to be heir at law to that Thomas Chester, Esq. deceased, who executed the articles; and, as such, to be seised of the said manor with the appurtenances, as the law requires: and that, being so seised, he made the demise to the plaintiff: by virtue of which demise, he entered, &c.; and was ejected, &c. But whether upon the whole matter aforesaid in form aforesaid by the said jurors found, the said G. A. and L. E. are guilty of the said trespass and ejectment, as to the said three pieces or parcels of land, parcel, &c. by them supposed to be done, or not, the said jurors are wholly ignorant, &c. and so the verdict concludes in the ordinary form. The counsel for the plaintiff made two questions ; viz. 1st question-whether an ejectment will lie for these premises as described in the declaration. 2d question-whether the defendants are at liberty to controvert the title of the plaintiff; or are estopped from so doing. First-it may be objected, " that no ejectment will lie of land which is part of the King's highway." But it is plainly and beyond controversy part of the lord's soil; though it is indeed said to be part of the highway. This highway is found to be sixty feet wide. Therefore if enough be left for a public way, the rest belongs to the lord : at least, he is not guilty of a nusance, if he should erect any...
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