Sury v Albon Pigot and three other Defendants

JurisdictionEngland & Wales
Judgment Date01 January 1682
Date01 January 1682
CourtCourt of the King's Bench

English Reports Citation: 79 E.R. 1263

King's Bench Division

Sury
and
Albon Pigot and three other Defendants

See Angus v. Dalton, 1877-81, 3 Q. B. D. 105; 6 App. Cas. 740.

[166] the same term in the same court, intr. hill. 1 car. rot. 124. sury versus albon pigot and three other defendants. [See Angus v. Dalton, 1877-81, 3 Q. B. D. 105; 6 App. Gas. 740.] Whether unity of possession in several lands, shall destroy a water-course. In an action upon the case for stopping his water-course, the plaintiff declares that 14 Octob. 32 Jac. he was possessed of the Rectory of M. in Barkshire, of which a curtilage was parcel, aiid that in this curtilage is arid hath been time out of mind a watering-place, for the watering of the cattel of the plaintiff and others, and for other necessary uses, and that a certain water-course had time out of mind flowed from Mildford Stream to this curtilage, and that this water filled the said pond; and further that the defendant well knowing this, and intending to dam up the said watering-course built a stone-wall thereupon whereby the water-course was stopt up, to the plaintiffs damage of 201. and this was laid with a continuando. The defendant pleaded that 3 EL 8. the said H. 8. was seised of the mannor of, &c. and of the said rectory in his demesn as of fee, and of a certain piece of land called the Hop-yard, lying between the said watering-place and the said stream, and by his letters patents granted this to William Box and his heirs, by vertue whereof he was seised : Francis Searles entred upon him and was seised, and enfeoffed Pigot, 20 Jac. by virtue whereof he was seised, &c. and the three other justifie as servants to Pigot, that they the said day and year filled up the said water-course, as it was lawful for them to do: and that this is the same trespass, &c. The plaintiff demurs. And the question is, whether the unity of possession of all in H. 8. hath extinguished the water-course. And by Dorrell for the plaintiff, if it were of a common, it is clear, that it is destroyed, because common ought to be in another man's land, but not in our case, for if one prescribe to have warren, if he purchase the land yet he shall have warren, 11 H. 7. 25. there are two houses, and the one prescribe that the other shall mend the gutter, and afterwards they come to the hands of one man, and then he alien one of them, this unity shall destroy the mending of the gutter. Bard for the defendant, that the unity hath destroyed the custom, 21 E. 3. 2. A way is but an easment, yet by the purchase of the land the way is extinguished, and also the watering-course is not only an easement, but a profit, or preuder ; and he cited Dyer 295. in case of an inclosure, that the inclosure is extinguished, but there is made a quare, and he cited 38 Eliz. in C. B. an opinion, that by purchase of a close the inclosure is extinguished ; a fortiori here because it is a profit: and for the case of 11 H. 7. it is by the custom of London, but there is no custom in our case, 1264 SUBY V. PIGOT, ETC. JOPHAM, 167. and the case of a warren is not like to our ease, because a man may have warren in his own soil ò and in Michaelmas term next the case was argued again by Barkesdale for the plaintiff, that the unity of possession in H. 8. had not extinguished the watercourse, and that the terminus ad quern, and the medium also being in one, had not extinguished nor destroyed it. And 1 Co. lib. 4. 26. benedida eat expositio quando res redimitur a destructions; the law will not destroy things, but the law will sometimes suffer a fiction (which is nothing in remm natura) ut res magis vahat. I confess that profit apprender as common, or rent is extinguished by unity of possession for common it appeareth in 4 E. 3. and Co. lib. 4. Terringham's case: and for rent it appeareth in 4 H. 4. 7. and in 21 E. 3. 2. it appeareth that a way is extinguished by unity of possession, 3 H. 6. 31. Brook Nusance 11. for it is repugnant for a man to have a way upon his own land: but I conceive that our case differs from [167] the case of a way, and that for this reason; where the thing hath a being and existence, notwithstanding the unity there it is not destroyed by the unity, bub the water-course hath a being notwithstanding the unity, ergo, &c. I will prove the major proposition by these cases, 35 H. 6. 55, 56. Where a warren is not extinct by the feoffment of the land, for I may hawk and hunt in my own land as in another man's, so the warren hath existence, notwithstanding the unity, Dyer 326. Where the Queen was seised of Whaddon Chase, and the Lord Gray was lieutenant there in fee, and he and his ancestors and their keepers had by prescription used to hunt waudring deer in the demesns of the manner of S. adjoyning as in purlieus: the manner of S. comes into the Queens hands, who grants this to Fortescue in fee, with free warren within the demesns, &c. it was holden that the unity doth not extinguish the purlieu, Dyer 295. Two closes adjoyn, the one by prescription is bound to a fence, the owner of one purchase the other, and suffer the hedges to decay, and dies, leaving two daughters his heirs, who make partition : qucere whether the prescription for the inclosure be revived ; true it is that it is made a qucere, but he saith, see the like ease, 11 H. 7. 27. of a gutter which proves our case, as I will shew afterwards. For the minor proposition that the watering hath being, notwithstanding the said unity, I will prove it by 12 H. 7. 4. A prcecipe quod reddat of land aqua co-opert' Mich. 6 Jac. CJiallenm- and Mowe's case. An ejectione Jinnee, was brought of a watering-course, and...

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