Legh against Heald
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1830 |
| Date | 01 January 1830 |
| Court | Court of the King's Bench |
English Reports Citation: 109 E.R. 918
IN THE COURT OF KING'S BENCH.
S. C. 9 L. J. K. B. O. S. 98.
legh against heald. 1830. By a lease of a tenement described as containing nineteen acres, save and except all timber trees, wood, underwoods, &c., six acres of the soil, which at the time of the lease were covered with growing wood, are not excepted, but pass to the lessee. [S, C. 9 L. J. K. B. 0. S. 98.] Trespass. The first count of the declaration stated, that the defendant, on, &c., broke and entered a certain close of the plaintiff called Eoach Key, situate, &c., trod down the grass, &e.; and then and there dug up the earth and soil, and made and sank divers quarries, pits, mines, shafts and holes in the said close of the plaintiff there, and from and out of the said quarries, pits, &e. so dug, made, and sunk as afore- 1B.&AD. 623, LEGH V, HEALD 919 said, then and there raised, got, and dug divers large quantities of rock, stone, earth and soil of the plaintiff, and carried them away and disposed thereof to his own use. Pleas not guilty, and accord and satisfaction. At the trial at the Summer Great Sessions for Chester 1829, before Jervis J., it appeared that the Woodend tenement (of which the Roach Key was part) was in the occupation of Higginbothom, a tenant of the plaintiff, under a lease for lives, by which an ancestor of the plaintiff demised the Woodend tenement, containing nineteen acres, " save and except all timber and other [623] trees, wood, underwoods, sand, marl, mines, delfs, and quarries, of what nature or kind soever, then or thereafter growing, found, or being in or upon the said premises, or any part thereof, with free liberty of ingress, egress, and regress to and for the lessor, his heirs and assigns, his and their agents, servants, and workmen, to fell, cut down, dig, sink for lead, and carry away the same at their free will and pleasure." The plaintiff then proved that the Roach Key was at the time of the demise woodland; and it appeared that, without the Roach Key, the Woodend tenement would contain thirteen acres only. Upon this evidence, the learned Judge was of opinion that the Roach Key was included in the lease, and passed to the lessee ; and that the Roach Key being in the occupation of a tenant, and not in that of the plaintiff, he must be confined, in proof, to the trespass for taking stone, &c. in the quarry, and refused to receive evidence of any trespass to the surface. In summing up, the question...
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