Greathead v Morley and Others
| Jurisdiction | England & Wales |
| Judgment Date | 11 June 1841 |
| Date | 11 June 1841 |
| Court | Court of Common Pleas |
English Reports Citation: 133 E.R. 1090
IN THE COURT OF COMMON PLEAS
S. C. 3 Scott, N. R. 538; 10 L. J. C. P. 246. Questioned, Ewart v. Graham, 1859, 7 H. L. C. 331. Distinguished, 'Leconfield v. Dixon, 1867, L. R. 2 Ex. 208. Held not overruled, Sowerby v. Smith, 1874, L. R. 9 C. P. 534. Considered, Devonshire v. O'Connor, 1890, 24 Q. B. D. 476.
1090 GREATHEAD V. MORLEY 3 MAN. & a. 139. [139] greathead v. morley and others. June 11, 1841. [S. C. 3 Scott, N. E. 538; 10 L. J. C. P. 246. Questioned, Ewart v. Graham, 1859, 7 H. L. C. 331. Distinguished, 'Leconfield v. Dixon, 1867, L. E. 2 Ex. 208. Held not overruled, Sowerby v. Smith, 1874, L. E. 9 C. P. 534. Considered, Devonshire v. O'Connor, 1890, 24 Q. B. D. 476.] Trespass for breaking and entering the plaintiff's close. Plea: that by a local inclosure act, reciting that A. was lord of the manor of Dale, and, as such, was seised of, the soil of the moor and waste lands, and all the mines, minerals, quarries, and royalties in and under the same, and that A. and divers others were respectively owners of messuages, inclosed lands, and tenements within the manor and parish of Dale, it was enacted, that the moor, and all the wastes within the manor and parish, should be divided, set out, and allotted by certain commissioners; that the commissioners should set out, allot, and award unto A., his heirs or assigns (over and above and exclusive of such shares and allotments, of and in the moor, as should, in pursuance of that act, be allotted to him or them in lieu of his or their rights of common), one eighteenth part, in value, of the said moor and waste lands, in full compensation for his and their right to the soil of the said moor, &c. except as thereinafter was reserved to him; and after setting out certain roads, &c., should set out, divide, and allot the residue of the moor, &c., thereby directed to be divided and allotted, unto and amongst the owners of such antient messuages, &c. in Dale, who, in respect thereof, were entitled to rights of common upon the said commonable lands; which allotments were to be taken by the parties entitled thereto, in full compensation for, their rights of common, and other rights and interests, upon the moor, &c. The plea then set out a clause of the act, empowering the allottees to convey their respective interests, " at any time before the execution of the award of the commissioners ;" and also a proviso that nothing in the act contained, should defeat, lessen, or prejudice the right, title, or interest of A., his heirs and assigns, of, in, and to the seigniory and royalties, incident and belonging to the manor; but that A., his heirs and assigns, and all succeeding lords of the manor, should have, hold, and enjoy all courts, &c., fairs, markets, tolls, stallages, rights, royalties, with free warren, and liberty of hunting, hawking, fishing, and fowling, &c. matters and things, to the manor, or to the lord or to the lords thereof for the time being, incident, belonging, or appertaining, in as full, ample, and beneficial a manner as if that act had not been made.-The plea,-after stating that the commissioners had set out and allotted unto A., his heirs and assigns, (over and above and exclusive of such shares and allotments of and in the said moor, as were, in pursuance of the local act, allotted to him in lieu of his rights of common), one full eighteenth part, in value, of the said moor and waste lands, in full compensation for his right to the soil of the said moor, &c., except as was thereby reserved to him as thereinbefore mentioned,-averred, that the close in which, &c. was allotted to B., "who took possession of and occupied the said close in which, &c., in severalty, under the allotment and division; and that, from the time of such allotment until and at the time, when, &c., the close in which, &c., had been possessed and occupied in severalty by B. and the plaintiff, and those claiming under B., by virtue of the allotment;" and that A. being seised in fee of the manor of Dale, together with the rights, royalties, members, and appurtenances conveyed the same to C., father of D., one of the defendants, to whom the same descended as the son and heir of C.; and justified the entry of D. as lord of the manor,:-and by the others, as his servants, -upon the close, in exercise of a right of hunting and fowling therein.-Held, first, that the plea shewed such an exclusive possession of the close, in the plaintiff, as to entitle him to maintain trespass; and that, consequently, it was immaterial whether or not the legal seisin was still vested in the lord.-Secondly, that the right of sporting over the allotments of the moor or common, was not reserved to the lord by the saving clause in the inclosure act; the object of that clause being, to reserve to the lord all those manerial rights which he possessed before the inclosure, as lord, except the right to the soil; and the power of the lord to sport over a waste within his manor, being, not a licence or liberty, but a mode of enjoyment of his own property. Trespass, for breaking and entering a close of the plaintiff, at Marrick, in the county of York, called Copperthwaite Allotment, and with feet in walking, and [140] 3 MAN. & G. Ml. GEEATHBAD V. MORLEY 1091 with feet of divers horses and dogs, treading down, &c. the grass, corn, &c. of the plaintiff, of great value,.to wit, &c., growing and being in the said close, and going and walking backwards and forwards in and upon and over the said close, and going and returning and passing and repassing in and out of the said close, &c., and with the said horses and dogs, beating, hunting, and searching in the said close, for game, &c. Second plea, that before the first of the several times when, &c. in the declaration mentioned, to wit, on, &c., by a certain act of parliament made in the 52d year of G. 3 (cap. cxxvi.), "for inclosing lands in the manor and parish of Marrick, in the county of York," after reciting that there were within the manor and parish of Marrick, in the north riding of the county of York, a certain moor or common and waste lands, containing, by estimation, four thousand acres or thereabouts, and that W. P. Powlett, Esq. was lord of the said manor of Marrick, and, as such lord, was seised of or entitled to the soil of the said moor or common and [141] waste lands, and to all the mines, minerals, quarries, and royalties in, over, and under the same, and that the said W. P. Powlett, J. P., &c., and divers other persons, were respectively owners and proprietors of messuages, inclosed lands, and tenements within the said manor and parish, some of which were of freehold tenure, and others were held under leases for long terms of years granted by some or one of the ancestors of the said W. P. Powlett, and in respect thereof, or as appendant, appurtenant, or belonging, thereto, they, or their lessees, or tenants were entitled to rights of common in, over, or upon the said moor or common and waste lands, and that an act was passed in the 41 G. 3 (c. 109, the general inclosure act), and that the said moor or common and waste lands in their then state were of little value, and incapable of improvement; but if the same were divided, and specific shares thereof allotted to the several proprietors, according to their several rights and interests, and such allotments were inclosed and held in severalty, such division, allotment, and inclosure would be a great improvement to their estates, but that those beneficial purposes could not be effected without the aid and authority of parliament; it was, by the said first mentioned act of parliament, among other things, enacted that the said moor or common, called Marrick moor, and all the wastes and other commonable lands within the manor and...
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