Sir Lawrence Vaughan Palk, Baronet, against Shinner
| Jurisdiction | England & Wales |
| Judgment Date | 25 May 1852 |
| Date | 25 May 1852 |
| Court | Court of the Queen's Bench |
English Reports Citation: 118 E.R. 215
Queen's Bench Division
S. C. 22 L. J. Q. B. 27; 17 Jur. 372.
sie lawrence vaughan palk, baronet, against shinner. Tuesday, May 25th, 1852. Under stat. 2 & 3 W. 4, c. 71, as. 7, 8, the time during which the servient tenement has been under lease for a term exceeding three years is to be excluded from, the computation of a forty years' enjoyment, but not from the computation of an enjoyment for twenty years. [S. C. 22 L. J. Q. B. 27; 17 Jur. 372.] Case. (Action commenced 1st September 1851.) The declaration stated that one James Soper, before and at the time, &o., was posiessed of a certain messuage, &c., and appurtenances, the reversion of and in the same then and still belonging to plaintiff; that, before and at the time of the committing, &c., the plaintiff, the said J. S., and all tenants and occupiers of the aforesaid meisuags, of right "have had and used, possessed and enjoyed, and still of right ought to have and use, possess and enjoy, a certain way, to wit for himself and themselves, and his and their servants, on foot, and with horses," &c., " and with carts and other carriages, every year and at all times," &c., " at hia and their free will," &c.," from and out of the said messuage or tenement, farm, lands, hereditaments and premises, unto and into, through, over, across and along a certain other close," &c., "and, from and out of the same, unto and into a certain common public highway, to wit," &c., "and from (hence back again," from the said highway, [569] unto, into, &c., the last mentioned close, unto and into the said messuage, &c., "for the more convenient occupation of the same," Breach: that defendant, wrongfully intending to injure plaintiff in his said reversionary estate and interest, &c., heretofore, to wit on 1st June 1851, and whilst the same was so in the possession and occupation of J. Soper, and whilst plaintiff was o interested as aforesaid, injuriously, wrongfully, &c., against the will of plaintiff, greatly and permanently encroached upon, encumbered and obstructed the said way, to wit by placing blocks of stone, &c., and hath so continued such obstruction from thence hitherto, whereby the reversion of plaintiff is greatly and permanently injured and lessened iii value. Pleas: 1. Not guilty. Issue thereon. 2. That plaintiff, at the said time when, &c., did not of right have or use, possess or enjoy the said way, in manner, &c. Issue thereon. On the trial, before Erie J., at the last Devonshire Spring Assizes, the plaintiff proved the interruption, and gave evidence to shew a user of the way for twenty 216 PALK V. SHINNER 18 Q. B. 870. years. It appeared that the land, over which the right of way was claimed, had been demised in 1831 for a term of fourteen yeara, and again, in 1838, by a fresh lease, for a term of eight years, ending in 1846. No resistance had been made to the user at any time during...
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