Skull and Another v Glenister and Others
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1864 |
| Date | 01 January 1864 |
| Court | Court of Common Pleas |
English Reports Citation: 143 E.R. 1055
IN THE COURT OF COMMON PLEAS AND IN THE EXCHEQUER CHAMBER
S. C. 33 L. J. C. P. 185; 9 L. T. 763; 12 W. R. 554. Referred to, Williams v. Jamas, 1867, L. R. 2 C. P. 580. Adopted, Royal v. Yaxley, 1872, 20 W. R. 905. Discussed, Finch v. Great Western Railway Company, 1879, 5 Ex. D. 259; Harris v. Flower, 1904, 74 L. J, Ch. 130.
[81] skull and another v, glbnister and others. 1864. ' [S. C. 33 L. J. C. P. 185; 9 L. T. 763; 12 W. li. 554. Referred to, WiUwms v. Jamas, 1867, L. K. 2 C. P. 580. Adopted, Royal v. Faxley, 1872, 20 VV. B. 905. Discussed, Finch v. Great Western Railway Company, 1879, 5 Ex. D. 259; Harris v. Flower, 1904, 74 L. J, Ch. 130.] A right of way appurtenant to land passes to the tenant by a parol demise of the land, though nothing is said about it at the time of the demise.-A., having a right of way to a close, demised the close to B. The latter, being possessed of an adjoining close, upon which he was erecting certain houses, used the way for carting building materials to A.'s close for the purpose of using them upon his own land:- Held, that it was properly left to the jury to say whether B.'s use of the road was a bona fide exercise of the right of way to A.'s close, or a mere colourable mode of getting to his own hind. This waa an action of trespass. The declaration stated that the defendants, on the 20th of January, 1862, and on divers other days and times between that day and the eomraenoenient of the suit, broke and entered certain land of the plaintiffs, being land covered with water, situate and being in the parish of Chipping Wycombe, in the county of Buckingham, the same being that portion of land covered with the water of a stream running and being underneath a bridge of the plaintiffs lately erected over the said stream, and trespassed upon the said bridge, the same being a bridge connecting the high road from Chipping Wycombe aforesaid to West Wycombe, in the said county, with certain land of the plaintiffs : Arid also that the defendants, on the said 20th of January, 1862, and on divers other days and times between that day and the commencement of the suit, broke and entered certain land of the plaintiffs situate and being in the parish of Chipping Wycombe, in the county of Buckingham, the same being a roadway leading from the bridge in the first count mentioned to certain , other land;of the plaintiffs in the borough of Chipping Wycombe, and county aforesaid, ;and broke! down, prostrated, and destroyed the walls and fences of the plaintiffs; there ! standing £nd being, and cast, deposited, and threw upon the said, land first in thin count above mentioned divers quantities of bricks, 'inoi'tar, earth, stcwe-i, awl niblAnh (a) : Claim, 2001. The defendants pleaded,- first, riot guilty,-secondly, that the plaintiffs were not possessed its alleged,-thirdly, that they committed the several trespasses in [82] the declaration mentioned, and each and every of them, by the leave and licence of the plaintiffs,-fourthly, except as to the breaking down the said walls and fences, and casting and depositing the quantities of bricks, mortar, earth, stones, and rubbish, as in the declaration mentioned that, before the committing of the said several trespasses, the plaintiffs were seised in their demesne as of fee of and in the said bridge and the said several lands in the declaration mentioned, and also of a certain other piece of land norw in the possession of the defendant Daniel (xlenister; and, the plaintiff's being so seised as aforesaid, theretofore, and before the committing of the said several trespasses in the declaration mentioned, to wit, on the 4th of September, 1861, by a certain indenture then made between the said plaintiffs of the one part and one Robert Wheeler 4nd one Thomas Wheeler of the other part, thoy the said plaintiffs did thereby (a) Vide post, p. 92. 1056 SKULL t'. GLENISTER 16 C. B. (N. S.) 83. release and convey unto the said Robert Wheeler and Thomas Wheeler the said piece of land now in the possession of the defendant Daniel Glenister, togdher with a, right of way and passage, ingress, eqress, and regress, with horses, carts, and carriages, or olhendse, upon and over the said bridge, and in, thrfnu/h, and over the several closes in the declaration mentioned, as belonging and appertainmij to the said piece of land now in the jiosnessimt of the defendant, Daniel Gleni4e.r, To have and to hold the same unto the said Robert Wheeler anc} Thomas Wheeler, their heirs and assigns, for ever: That, afterwards, ai)d after the; execution of the said indenture, and before the committing of the said serveral trespasses in the declaration mentioned, they the said Robert Wheeler and Thomas Wheeler did demise and let unto the defendant Daniel Glenister the said piece of land in the said indenture mentioned, to have and to hold the same as tenant thereof from year to year [83] to them the said Robert Wheeler and Thomas Wheeler, and which said tenancy before and at the time of the committing of the said several trespasses in the declaration mentioned was and still remained in full force and effect: That the said Daniel Gleiiister was at the time of the committing of the said several trespasses in the declaration mentioned the assignee of the said Robert Wheeler and Thomas Wheeler of the said piece of land in the said indenture mentioned ; wherefore he the said Daniel Glenister in his own right, and the said defendant Thomas Glenister and John Corby as servants of the said Daniel Glenister, and by bis command, at the said several times when, &c., did pass and repass in, through, and along the said way, from the said piece of land now in the possession of the said Daniel Glenister, upon and over the said bridge, ;md in, through, and along the said lands in the declaration mentioned, to the said piece of land now in the possession of the defendant Daniel Glenister, using the said way there, for the purposes and on the occasions aforesaid, as they lawfully might for the causes aforesaid. The plaintiffs in their replication took and joined issue upon all the pleas; and, as to the fourth plea, new-assigned that the}' sued not only for the causes of action therein admitted, but also for trespasses committed by the defendants in excess of the alleged light, and also in other parts of the said premises, and on other occasions, and for other purposes than those referred to in the plea. As to the several trespasses above newly assigned, the defendants brought into court the sum of 40s., averring that the said sum was enough to satisfy the claim of the plaintiffs in respect to the matter therein pleaded to. To this plea, the plaintiff's replied that the sum paid [84] into court was not enough to satisfy the causes of action in respect of which it had been paid in. Issue. The cause was tried before Wightnuin, J., at the Berkshire .Summer Assizes, 186:2, when the following facts appeared in evidence :-The plaintiffs, being possessed of certain building land situate on the south side of the turnpike road leading from Chipping Wycombe to High Wycombe, but at some distance from the road, and being desirous of opening a communication between their property and the road, agreed with one Meyers (the owner) for the purchase of a strip of the intervening land thirty feet wide, for the purpose of forming thereon a road, the plaintiff's stipulating to make the road and^build a bridge across the stream, and Meyers to build the fence-walls and keep them in repair. In the conveyance, which was dated the (!th of June, 18(iO, the land so purchased was described as " ,1 piece or parcel of land or ground situate, lying, and being in the parish of Chipping Wycombe, in the county of Buckingham, measuring from east to west thirty feet." The words " or thereabouts" had been added, but were erased at the desire of the purchasers before the execution of the deed. The thirty feet had been staked out at the time of the conveyance by Skull, who was then acting as the general agent of Meyers. The road was afterwards made and a bridge built by the plaintiffs, and a wall erected on each side by Skull as such agent for Meyers. On the 4th of September, 1801, the plaintiffs conveyed to Messrs. Wheeler in fee a close adjoining the new road. In this conveyance the subject of the grant was described as " All that plot or parcel oE land situate in the borough of Chipping Wycombe aforesaid having a frontage of forty-one feet to the new road there leading from the turnpike-road to a certain lane [85] called St. John's or Water Lane, and measuring in depth seventy-five feet or thereabouts, bounded on or towards the north by premises belonging to Barnett Meyers, on the west by property belonging to , on the east by the said new road there, and on or towards the south by land still belonging to the said T. Phillips and E. Skull, and which said plot or parcel of land 14 0. B. (M. S.) 86. SKULL V. GLENISTER 1057 intended to be hereby conveyed lately formed part of the meadow ground mentioned and described in and conveyed by the said indenture of the 29th day of September, 1860 (a), and comprised in Lot 1.3 at an auction sale held on the 2nd day of November qow last past, together with a right of way and passage, ingress, egress, and regress, with horses, carts, and carriages, or otherwise, in, through, and over the said new road or way ta and from the turnpike-road leading from High Wycombe to Oxford, to and irom the said lane or highway called St. John's Lane or Water Lane." Shortly afterwards, viz. on the 13th of January, 1862, the defendant Daniel Grlenister obtained a conveyance from Meyers of a piece of building land adjoining Wheelers' cloae, but having no communication with the new road. Being desirons of building on this land, Glenister hired Wheelers' close for the alleged purpose of making it a place of deposit for the building-materials to...
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