Harper against Charlesworth
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1825 |
| Date | 01 January 1825 |
| Court | Court of the King's Bench |
English Reports Citation: 107 E.R. 1174
IN THE COURT OF KING'S BENCH.
S. C. 6 D. & R. 572; L. J. K./ B. O. S. 265. See also 4 L. J. K. B. O. S. 22. Referred to, Attorney-General v. Dakin, 1868-70, L. R. 3 Ex. 298; L. R. 4 H. L. 338; R. v. Bradfield, 1874, L. R. 9 Q. B. 556.
harper against charlesworth. 1825. A. paid a nominal rent to the King for 1000 acres of woodland, the wood being all reserved to the Crown. During four months in the year, A. exercised the privilege of shooting over the land, and by his permission another person took the grass: Held, that the payment of the rent, the exercise of the privilege of shooting, and the taking of the grass was sufficient evidence to shew that A. was in the actual possession of the land, so as .-~ to entitle him to maintain trespass. A. occupied under a parol licence from the \ Crown, and the rent paid by him was much less than one third of the annual '. value of the land: Held, that as A. had no legal conveyance from the Crown by '; matter of record, and as the rent reserved was not one third of the annual value i of the land, as required by the 1st Ann. st. 1, c. 7, s. 5.: he had no legal right to retain possession of the land as against the Crown, but that as he occupied with the permission of the Crown, his possession was sufficient to enable him to maintain trespass against a wrong-doer. Semble, that a person who occupies J__ Crown land under a parol licence is not an intruder. A public footway over ' Crown land was extinguished by an Inclosure Act, but for 20 years after the inclosure took place the public continued to use the way: Held, by Bayley J., that this user was not evidence of a dedication to the public, as it did not appear to have been with the knowledge of the Crown. [S. C. 6 D. & E. 572; 3 L. J. K. B. 0. S. 265. See also 4 L. J. K. B. 0. S. 22. Eeferred to, Attorney-General v. Dakm, 1868-70, L. E. 3 Ex. 298; L. E. 4 H. L. 338 ; B. v. Bradfield, 1874, L. E. 9 Q. B. 556.] Trespass for breaking and entering the plaintiff's close called the Banks, and a certain other close called Allotment No. 15, situate in the parish of Hanbury, in the county of Stafford, and with feet in walking treading down the grass and herbage of the plaintiff, and breaking down part of the hedges and fences of the said closes of the plaintiff, there standing and being. [575] Plea first, not guilty; second, a public right of footway. At the trial before Grarrow B., at the last Spring Assizes for the county of Stafford, the following appeared to be the facts of the case: The close where the trespass was committed was part of an allotment made to His Majesty, by the award of the commissioners under an Act of Parliament passed in 1801, for dividing, allotting, and enclosing the forest or chase of Needwood, in the county of Stafford. The Act recited that the King was seised to himself, his heirs, and successors, of the forest or chase of Needwood, containing about 9400 acres, lying within the honor or lordship of Tutbury, parcel of the estates and possessions of the Duchy of Lancaster, in the county of Stafford, subject to common of pasturage, and other rights therein mentioned; and the commissioners were thereby empowered to set out such public bridle-roads and footways, and private roads and ways, in, over, and upon the saicj forest or chase, as they should think requisite. It then enacted, that after the several public or private roads should have been set out and made, it should not be lawful for any person, either on foot or with horses, cattle, or carriages, to use any other roads or ways, either public or private, over or upon the ancient or new inclosures, or the fores,t or chase, than such as should have been made and set out by the commissioners; which said several roads so to be set out respectively should be set forth in the award of the commissioners, and the same should be final and conclusive upon all persons whomsoever; and that all former roads and ways which should not be set out and appointed as roads and ways through or over the said forest or chase, should be deemed part thereof, and be divided and allotted (a) The ordinary form of the judgment in quare impedit is, that the plaintiff recover his presentation. Mallory's Quare Impedit, p. 86, 87, &c. This would not apply to the second and fourth counts in this case. 4B. &C.576. HARPER V. CHARLESWORTH 1175 accordingly* By another clause, [576] His Majesty, his heirs, and successors were enabled to make and grant leases, under the seal of the Duchy of Lancaster, for any term or number of years, not exceeding 99 years, and so as such leases be in all other respects made and granted agreeable and conformable to the terms and conditions prescribed and directed by the statute 1 Ann. statute 1, c. 7. It was proved that the plaintiff had, ever since the year 1817, paid to His Majesty, for the woodlands of his allotment of Needwood, (the timber being reserved to the King,) a nominal rent of 11. per annum, which was not one third of the annual value. These woodlands comprised about 1000 acres, and included the close where the trespass was committed. It appeared that the game-keeper, the deputy axe-bearer, and the woodward, who had the care of the woods and timber, were paid by the Crown, and the fences were repaired at the expence of the Crown. The plaintiff, who resided principally in London, usually came to Needwood about August, and remained there until November, and during that interval, he and his friends went over the whole of the allotment, including the close in question, for the purpose of shooting game. One Wallace, the woodward, took the grass in the glades by the plaintiffs permission. The award of the commissioners was executed in 1805, and no footpath across the close in question was set out in that award. Before the Enclosure Act there were paths in all directions, and, among others, one over the close where the trespass was committed. In 1806 the whole allotment was fenced all round, and no road or path was left over the close in question, and about fifteen years ago, a notice was affixed at the end of the path, stating that there was no road, and that all persons trespassing would [577] be prosecuted according to law. The trespass was admitted. It was objected by the defendant that the plaintiff had not proved that he had any lawful possession of the land where the trespass was committed, because he had not any grant under the seal of the Duchy of Lancaster, or, assuming that there might be a parol demise of land by the Crown, yet the stat. 1 Ann. stat. 1, c. 7, s. 5, had not been complied with, because the rent reserved was not one third of the annual value of the land. The learned Judge was of opinion, that the plaintiff had sufficient possession to maintain trespass against a wrong-doer, but he reserved leave to the defendant's counsel to move to enter a nonsuit. Evidence was offered on the part of the defendant to shew that a footway over the close in question was actually set out by the surveyor, who made the allotments under the Enclosure Act. The learned Judge was of opinion, that the award of the commissioners was conclusive upon that point, and refused to receive the evidence. The defendant then gave evidence to shew that ever since the time of making the award the footway had been generally used by the public, and it was contended that this proved a dedication of the way to the public. The learned Judge told the jury to find for the defendant, if they were of opinion that the user of the way, since the making of the award, had been with the assent of His Majesty, who was the owner of the soil, otherwise for the plaintiff. The jury having found for the plaintiff, a rule nisi for a nonsuit or a new trial was obtained, in last Easter term, upon two grounds; first, that the plaintiff had not a rightful possession of the land where the trespass was committed, but was a mere intruder on the possession of the Crown, and, therefore, could not maintain trespass; ^and, se-[578]-condly, that there was sufficient evidence to shew a dedication of the way to the public, and, therefore, that the jury ought to have found for the defendant. Jervis, Walton, and Campbell now shewed cause. There was a parol licence...
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