Sir Thomas Stanley, Bart, against White

630 - STANLEY V. WHITE 14 EAST, 333. sik thomas stanley, bart, against white. Saturday, June 29th, 1811. To an action of trespass for cutting down and converting trees, which the defendant justified as growing upon his soil and freehold, the plaintiff replied that the trees were his freehold, and not the freehold of the defendant: and this was held to be proved by shewing that they grew on a certain woody belt, 15 feet wide, which surrounded the plaintiffs land, but was undivided by any fences from1 the several closes adjoining, of which it formed part, belonging to different owners; . and that from time to time the plaintiff and his ancestors, at their pleasure, cut down, for their own use, the trees growing within the belt, and that the several owners of the different closes inclosing the belt never felled trees there, though they felled them in other parts of the same closes, and that when they made sale of their estates, the trees in the belt were never valued by their agents, because they were reputed and considered to belong to the plaintiff and his ancestors, in which the several owners acquiesced. The plaintiff declared in trespass against the defendant for cutting down and converting to his own use oak and ash trees of the plaintiff, at the parish of Eastham, in the county of Chester: to which the defendant pleaded not guilty : and, 2dly, that a close of Sower Field, in the same parish, &c. before and at the time when, &c. was and still is the close, soil, and freehold of the defendant; and that the said trees, before and until the said time when, &c. were growing in and upon the said close, and before and until that time were his freehold; wherefore he cut down and converted them, &c. The plaintiff replied to the special plea, that the said trees, before and until the said time when, &c. were the trees and freehold of him the plaintiff, and not the freehold of the defendant, in manner and form as in that plea alleged, and concluded to the country. The cause was sent by mittimus f-rom this Court to be tried by the Court at Chester, and a very special report was afterwards made by the learned Chief Justice of [333] Chester, as well of the course which the cause took, as of the evidence given at the trial. It was stated by the plaintiff's counsel, in his opening, that independent of evidence of ownership directly applicable to the trees in question, it would be proved that the plaintiff's manor was surrounded on all sides by a belt of land extending 15 feet beyond a circular hedge, within which belt, the whole of it being more or less wooded, the trees in question had been cut. That the existence of this belt would be proved by the exercise of right over it on the part of the Stanley family, and by reputation (a). That it would appear that while timber had been from time to time felled by the different owners of the fields into which the belt extended, their cuttings had been always confined to trees growing on such parts of the respective fields as were not within the belt; and that all trees within it had always been left standing by them, though equally fit for cutting when the others were cut: and that when cut within the belt, as they had also been from time to time, it was always by the order and for the use of the Stanley family. The defendant's counsel, not objecting to the evidence opened being given de bene esse, laid in his claim to object in the conclusion to all the evidence of reputation, or of acts of ownership by the Stanley family as to any other part of the belt other than within the defendant's land where the trees in question had been cut, as not applying to the issue to be tried; referring to the rule, that the custom of one manor is not evidence of the custom of any other: nor the custom of tithing in one parish evidence of that of another parish : [334] though he admitted that it would be otherwise in cases where different spots might be connected in respect of some common quality or general rule applicable to all; as in the instances of border-law, and of a general custom of tithing, where the custom laid included, as parts of a larger district, two or more parishes. To this it was intimated from the Bench, that, without deciding upon the...