Harvey v Reynolds
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1825 |
| Date | 01 January 1825 |
| Court | Exchequer |
English Reports Citation: 147 E.R. 858
IN THE COURT OF EXCHEQUER
S. C. 1 Car. & P. 141.
[724] harvey v. reynolds. Saturday, 22J Nov. 1823.-To trespass on the case by a freeholder having right of common, against a Defendant for an encroachment, a plea of leave and licence was held to be supported by evidence that the Plaintiff had permitted a former encroachment by the Defendant, the Plaintiff being then under age; and had since, when of full age, countenanced a further encroachment by: expressing his assent, and requiring an increase of the rent or annual : acknowledgment paid by the Defendant.-Qu. what acts amount to a revocation ; of leave and licence, and what conclude the party giving the licence. : [S. C. 1 Car. & P. HI.] : The Plaintiff in this case had been nonsuited by Mr. Justice Park, before whom the cause was tried, at the laat Assizes for Gloucester; but the learned Judge had given him leave to move to set aside the verdict, and enter a verdict for nominal damages, nTthe Court should be of opinion that the action, as supported by the evidence, could be maintained in point of kw. The action was trespass on the case for encroachment on a common. ;The declaration stated, that the Plaintiff was possessed of a messuage and land; and that, by reason thereof, he was entitled to common of pasture for his commonable cattle upon the common; and that the Defendant built cottages and other buildings thejreon, and thereby inclosed a part of it, and disturbed the Plaintiff in the enjoyment thereof. ; i 'There was'a second count for continuing the disturbance. 'The Defendant pleaded the general issue, and leave and licence. iThe usual rule having been obtained by Jervis on the part of the Plaintiff; [725] Mr.; Baron Hullock read the learned Judge's report of the evidence, and whfcfr passed at the trial. It appeared to have been proved, in substance, on the part 12 BBICE, 726. HA.RVBY 1'. REYNOLDS 859 of the Defendant (the Plaintiff' having established a prima facie case of encroachment, insufficiency of common, &c.) that the Defendant had been suffered to build the erections in question without remonstrance, and that his workmen passed over the Plaintiff's laud with his permission. It appeared, however, that the Plaintiff' was under age at that time. The witness ofi whose testimony the points in the wise arose, proved that he was staward of the manor, and received rents for encroachments ; that, on a perambulation made by him in August, 182'J, with the lord of the manor and the Plaintiff', who was sit that time of age, the}' discovered that the Defendant had added to his encroachment; and he was told that for that reason, instead of the rent of one shilling a year, which he was paying for the first encroachment, he must in future pay 15s. On that occasion reference was made to the freeholders, and particularly to the Plaintiff. The Defendant objecting to pay so large a sum, and it being represented to the freeholders that he was an industrious man, with a large family, they reduced it to IDs., the Plaintiff consenting to auch reduction ; and it was proposed by tho freeholders that the Defendant should bike a lease for 99 years, determinable on three liven. After the perambulation some other encroachments were [726] thrown down. The Plaintiff being applied to know what sort of man the Defendant was, and whether he had any objection to his remaining in the cottage, said that he had not, but that ha must not go on encroaching. Another witness proved, that the Plaintiff had said to the Defendant that he had a pretty place there (speaking of the building), that he was to be allowed to continue in it, and that he ought tr be satisfied to have it on paying tho rent required. The learned Judge concluded his report by stating that ho thought the evidence of those two witnesses...
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...318, S. C. 4 M. & W. 538, Wallis v. Han-ism. If, therefore, the cases above cited of Webb v. Paternoster, and Tayler v. Waters, (see also 1 C. & P. 141, Harvey v. Reynolds) are to be regarded as having decided that a licence without deed, when executed, becomes irrevocable, so as in effect ......
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