The Earl of Dunraven against Llewellyn
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1850 |
| Date | 01 January 1850 |
| Court | Exchequer |
English Reports Citation: 117 E.R. 657
IN THE EXCHEQUER CHAMBER.
S. C. 19 L. J. Q. B. 388; 14 Jur. 1089. Distinguished, Warwick v. Queen's College, Oxford, 1870-71, L. R. 10 Eq. 105; L. R. 6 Ch. 725. Observed upon, Evans v. Merthyr Tydfil Urban District Council, [1899] 1 Ch. 241; Heath v. Deane, [1905] 2 Ch. 92.
in the exchequer chamber. (error prom the queen's bench.) the earl of dunraven against llfavellyn. 1850. On an issue, whether close C. was or was not plaintiffs close, the following evidence was rejected. That the close was within the manor of 0. ; and plaintiff, by lease from the lord, was possessed of the manor and all the common and waste lands within the same: that M. was imrnemorially common and waste of and in the manor, and of great extent: that, adjoining to and surrounding M., and within the manor, were and immemorially had been " very many distinct messuages, lands and tenements, severally held of the same manor by several tenants thereof, respectively which said tenants, for the time being, of the said messuages, &e., respectively, had, in respect thereof, severally and respectively, always had, exercised and enjoyed, and been entitled to have," &c., " rights of common for all their commonable cattle in, upon and throughout M. ;" and that, ante litem motam, certain of such tenants, deceased, well acquainted with M. and its neighbourhood, and the manor, and who, " as such tenants," had always had, &c., and been entitled to have, &c,, such rights of common, did, while they were such tenants, arid were in the () Reported by C. Blackburn, Esq. 658 LORD DUNRAVEN V. LLEWELLYN 15 Q. B. 792. exercise, &c., and so entitled, declare that C. was parcel of M., and waste of the manor. On bill of exceptions, stating as above : Held, that the evidence was rightly rejected, for that the rights to which the declarations referred were not of a public nature. But Held, that the evidence was not the less admissible because no evidence bad been offered of actual exercise of the right of common on the locus in quo; and that there was no objection to it on the ground that the parties making the declaration had not competent knowledge, or were interested. There is no general common law right of tenants of a manor to common appen-dant on the waste. [S. C. 19 L. J. Q. B. 388 ; 14 Jur. 1089. Distinguished, Warwick v. Queen's College, Oxford, 1870-71, L. E. 10 Eq. 105; L. R. 6 Ch. 725. Observed upon, Evans v. Merthyr Tydfil Urban District Council, [1899] 1 Ch. 241; Heath v. Deane, [1905] 2 Ch. 92.] Trespass. The first count was for breaking and entering plaintiff's close, called Cefn y Fraieh Rydd, in the parish of Llangeinor in Glamorganshire, and trampling down, &e. [792] Plea 2. That the close in which, &c., at the times when, &c., was not, nor was any part of it, the close of the plaintiff, in manner, &c.: conclusion to the country. Issue thereon. Plea 3. That the close in which, &c., at the several times when, &c., was the close, soil and freehold of the defendant: and justification. Replication, traversing the property. Issue thereon. Other issues of fact were joined on the first count, which are not material to this report. There were also a second count, and a new assignment. To each of these the defendant pleaded (besides other pleas to the second count, not now material) not guilty ; on which issues were joined. On the trial, before Platt B., at the Glamorganshire Summer Assizes, 1849, a verdict was found for the defendant on the issues upon the second and third pleas to the first count, and for the plaintiff on the other issues on that count; and a verdict was also found for the defendant on the issues upon the pleas of not guilty to the second count and the new assignment. A bill of exceptions was filed by the counsel for the plaintiff. The bill of exceptions stated that, to prove the affirmative of the issue on the second plea, in which issue the defendant denied that the close mentioned in the first count of the declaration was, at the said times when, &o., the close'of the plaintiff, and also to prove, &o. (this became immaterial), and also to prove the negative of the several issues respectively joined on the replications to the third (and certain other pleas, severally alleging that the said closes, in which, &c., were the soil and freehold of the several persons therein respectively [793] mentioned, the counsel for the plaintiff gave in evidence that the said closes were situate within a certain ancient manor called the manor of Ogmore, and that our lady the Queen, in right ;of her Duchy of Lancaster, was, before the said several times when, &c., seised in her dpmesne as of fee of the said manor, and of all the common and waste lands within the same ; and that, at the said several times when, &c., the plaintiff was in possession of the said manor and common and waste lands, under and by virtue of a lease of the same thereof made to the plaintiff by our said lady the Queen ; and that, among the commona and wastes of and within the said manor, there then was, and from time immemorial had been, a certain common and waste called Mynydd Llangeinor, being waste of and in the said manor; the same common and waste being of great extent, and of the continuous length of more than three miles, and very nearly four miles, and of the continuous breadth of one mile and three-quarters of a mile in the broadest part thereof; and further, that, adjoining to and surrounding the said common and waate, and within the same manor, were, and immemorially had been, very many distinct messuages, lands and tenements severally held of the same manor by several tenants thereof, respectively, which said tenants, for the time being, of the said messuages, lands and tenements, respectively had, in respect thereof, severally and respectively, always had, exercised and enjoyed, and been entitled to have, exercise and enjoy, rights of common for all their commonable cattle in and upon and throughout the said common and waste of Mynydd Llangeinor; and that the said several 1BQ. B.794. LORD DUNRAVEN V. LLEWELLYN 659 closes in the said counts of the declaration mentioned were also situate [794] within the said manor, and, at the said times when, &c., abutted eastward on lands of the defendant and other persons, and westward on the said common or waste of Mynydd Llangeinor, and were in part divided from the said common or waste by a fordable river or stream called the Nant Moel River, and were uninclosed and uncultivated. And thereupon, to prove, &c. (as before), and for the purpose of shewing that the said closes in which, &c. were parcel of the said common and waste of Mynydd Llangeinor, and also for the purpose of shewing that they were waste of the manor, the counsel for the plaintiff tendered evidence that, before the said times when, &c., and before this or any other suit or any sort of question or controversy had arisen or was contemplated respecting any of the aaid matters to which any of the issues in this cause or any of the declarations tendered in evidence as first after mentioned relate, or respecting the right of the said tenants as aforesaid, or of any of them, to exercise such rights of common as aforesaid upon the said common and waste of Mynydd Llangeinor, or upon any part thereof, certain deceased tenants of certain of the said messuages, lands and tenements, who were well acquainted with the said common and waste and its neighbourhood, and with the said manor and its neighbourhood, and who, as such tenants, had always had, exercised and enjoyed, and been entitled to have, exercise and enjoy, such rights of common as aforesaid on the said common and waste, did, while they were such tenants, and while they were in the exercise of such rights as aforesaid, and were so entitled thereto, declare that the closes, in which, &c,, were parcel of the said common and waste, and were waste of the manor : to [795] which the counsel for the defendant objected that the said evidence, so tendered, was not, and that no portion of it was, admissible for either of the purposes...
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