The Earl of Cardigan against Armitage
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1823 |
| Date | 01 January 1823 |
| Court | Court of the King's Bench |
English Reports Citation: 107 E.R. 356
IN THE COURT OF KING'S BENCH.
S. C. 3 D. & R. 414. Discussed, Proud v. Bates, 1865, 34 L. J. Ch. 411. Approved, Hamilton v. Graham, 1871, L. R. 2 H. L. Sc. 173. Applied, Savill v. Bethell, [1902] 2 Ch. 538.
[197] the earl of cardigan against armitage. 1823. A. being seised in fee of the manor of F. and the demesne lands thereof, and of all the coal-mines lying under the manor, enfeoffed C. D. of and in certain closes, except and always reserved to the feoffor, his heirs, and assigns, all tithes of corn and grain, and also except and always reserved out of the said feoffment unto the feoffor and his heirs, all the coals in all or any of the said lands and premises, together with free (a)1 Hex v. Morton, Andrews, 276. Hex v. Great Broughtm, 5 Burr. 2700. (a)2 The same case is reported in Keble, 274, 498, 514, under the name of Bex v. Inhabitants of Yarnton ; the report of it there is but little more intelligible than that given in 1 Sid, But it is not stated there that the defendants were the inhabitants of a hundred ; on the contrary, in p. 498, it appears that the issue was, " that the defendants ought not to repair," which was argued to be contrary to law, " the lands being laid to be in their own parish :" and in 514, it is said, that the proceeding was an issue tried by consent. 2 B. & C. 198. THE EARL OF CARDIGAN V. ARMITAGE 357 liberty for them, the said feoffor and his heirs, and his and their assigns and servants, at all times thereafter, during the _time that he^thefeoffor^and^ his heirs sbjuldjeontinue owners_and proErietors_ial.the demejMjajidj_afJ7~to^ink and dig pits, or otherwise to sough and get coals in all and every the lands and premises, and to sell and carry away the same with carts and carriages, or otherwise to dispose of the same coals at his and their free will and pleasure ; he, the said feoffor, and his heirs, paying to the feoffee, his heirs, and assigns, such satisfaction for the damages as two neighbours, indifferently chosen by the feoifee and feoffor, their heirs, and assigns, should from time to time award. The heirs of the feoffor having for a valuable consideration conveyed to a purchaser in fee the manor of F. and its demesne lands, with its appurtenances, and all the coal-mines under (amongst others) the lands in question, &e., it was held that the coals were, by the exception, reserved to the feoffor in fee, and therefore that they passed to the purchaser; and, also, that the latter was entitled, under the express liberty - reserved, to enter upon the land, to dig pits, and get the coals, so long as he remained owner of the demesne lands. Semble, that the express liberty is not restrictive of that which would be, implied by law to get the coals, and that the purchaser would be entitled to an incidental right to get them coextensive with his estate. [S. C. 3 D. & E. 414. Discussed, Proud v. Bates, 1865, 34 L. J. Ch. 411. Approved, Hamilton v. Graham, 1871, L. E. 2 H. L. Sc. 173. Applied, Savill v. Bethett, [1902] 2 Ch. 538.] Trespass for breaking and entering three closes of the plaintiff, and digging pits and raising coal. Pleas, first, as to all the trespasses, that the said several closes from time whereof, &c., had been parcel of the manor of Farnley, and that Sir Thomas Danby was seised of the said manor and the demesne lands thereof, with the appurtenances, and all coal mines, &c. lying under the said manor, in fee; and that he, on the 16th January, 1649, enfeoffed the then Earl of Sussex of, among other premises, the said three several closes in the declaration mentioned, (except and always reserved unto the said Sir Thomas, his heirs, and assigns, all tithes of corn and grain arising, happening, coming, or accruing within the said several messuages and farms aforesaid, and within every and any part or parcel thereof, and also except and always reserved out of the said feoffment unto the said Sir Thomas and his heirs all the coals in all or any of the said lands, woods, grounds, and [198] premises, together with free liberty for them, the said Sir Thomas and his heirs, and his and their assigns and servants, from time to time, and at all times thereafter during the time that the said Sir Thomas and his heirs should continue owners and proprietors of the demesne lands of Farnley, to sink and dig pits, or otherwise'to sough and get coals in all and every the said lands, woods, grounds, and premises, and to sell and carry away the same with carts and carriages, or otherwise to dispose of the same coals at his and their wills and pleasures ; he the said Sir T. Danby and his heirs, from time to time, giving and paying unto the said earl, his heirs, arid assigns, such sufficient satisfaction for all such damages as he the said earl and his heirs should from time to time sustain by reason of the digging, sinking of pits, soughing, getting, and carrying away the said coals, in all or any of the said lands, woods, grounds, and premises, as two gentlemen, neighbours thereunto, being indifferently chosen by the said earl and the said Sir Thomas, their heirs, and assigns, should from time to time order, award, and think fit to be given and paid) ; to hold the said premises unto the earl, his heirs, and assigns, for ever. By virtue of which said feoffment the said earl became seised of the said last-mentioned premises, and, amongst other lands, of the said several closes, in which, &c., in his demesne as of fee, the said Sir Thomas continuing owner and proprietor, and seised of and in the demesne lands of the manor of Farnley, and entitled to the coals in all or any of the same premises so aliened as aforesaid, together with such liberty as thereinbefore mentioned. The plea then mentioned the death of Sir Thomas Danby on the 8th August, 1660, and that the manor and the demesne [199] lands, with the appurtenances, after several mesne descents, (which were particularly set forth,) vested in one "W. Danby, who, by lease and release, A.D. 1800, in consideration of a certain sum of money, conveyed the manor and lordship of Farnley and its demesne lands, with its rights, members, arid appurtenances, and all the coal-mines in or under, amongst other lands, the said three several closes in which, 358 THE EARL OF CARDIGAN V. ARMITAGE 2B. &C.200. &e., to James Armitage in fee; who thereby became seised in fee of the manor, and owner and proprietor of the demesne lands, and entitled to the coals so excepted as aforesaid, together with the liberty thereinbefore mentioned. The plea then stated that James Armitage died intestate, and that the defendant, as his eldest son and heir at law, became seised in fee of the manor, and owner and proprietor of the demesne lands, and entitled to the coals, &c., together with free liberty for him and his servants to sink and dig pits, or otherwise to sough and get coals and culm in the said closes in which, &c., and to sell and carry away the same at his free-will and pleasure, paying unto the plaintiff such sufficient satisfaction for damage, &c., as two gentlemen, neighbours, indifferently chosen, should award. The plea then justified the breaking and entering the said several closes in which, &c., for the purpose of sinking and digging pits, &c.; and averred that the defendant was willing to make such satisfaction for the damage sustained by reason of the supposed trespasses, as two gentlemen, &c...
To continue reading
Request your trial
- Wilson Syndicate Conveyance, Re, Wilson v Shorrock
-
Anderson v Cleland
...Ir. Ch. R. 504. (1) In the Court of Appeal, before The Lord Chancellor, and Lords Justices Holmes and Cherry. (2) [1894] 2 Q. B. 836. (3) 2 B & C. 197. (4) 2 Macq. H. L. (5) 2 C. P. D. 239. (6) [1896] A. C. 558. (1) 11 Q. B. 688. (2) 6 Ch. D. 264. (3) 1 Douglas 748. (4) 1 Saund 320 f. (1 Wm......
-
The Durham and Sunderland Railway Company, Thomas Emerson Forster, and Joseph Forster, against Walker
...100, chap. 5; Com. Dig. Fait (E, 8), citing Lojfreld's case (10 Rep. 106 a, 106 b. (arguendo)); The Earl of Cardigan v. Armitage (2 B. & C. 197, 207); Sullen v. Denning (5 B. & C. 842, 847). [Parke B. The timber trees there were properly matter of exception. The question is, what is properl......
-
William Hilton against The Right Honourable Granville, Earl Granville
...& M. 89. (a)a 3 M. & W. 220. See Acton v. Blundell, 12 M. & W. 324, 352. 5Q-B.7U. HILTON V. EART, GKANVILLE 1419 Cardigan v. Armitage (2 B. & C. 197). It will be contended that tbe supposed prescription, in the third plea, amounts really to a custom, and should have been pleaded accordingly......