The Earl of Lonsdale v Rigg
| Jurisdiction | England & Wales |
| Judgment Date | 15 January 1856 |
| Date | 15 January 1856 |
| Court | Exchequer |
English Reports Citation: 156 E.R. 992
IN THE COURTS OF EXCHEQUER AND EXCHEQUER CHAMBER
[854] the earl of loksdale v. rigg. Jan 15, 1856 -Bretherdale Bank is a tract of inclosed pasture land within the manoi of Bretherdale, in the county of Westmoreland. Bretherdale Bank had been from time immemonal subject to eighty customary rights called cattlegates. The plaintiff was lord of the manor of Bretherdale The defendant was seised of certain cattlegates as a customary estate of inheritance. The plaintiff was also the owner of a cattlegate which came to hie predecessor as lord of the manor by seizure quousqae for nonpayment of a fine. Bretherdale Bank is separated from Bretherdale Waste by a fence which the cattlegate owners kept in repair with stones got from Bretherdale Bank and from the adjoining waste. Each cattlegate gave the owner thereof a right of depasturing on Bretherdale Bank a certain number of cattle and sheep from the 26th of May to the 24th of April, but neither cattle nor sheep were allowed to pasture there between the 24th of April and the 26th of May. An alteration had been made in the time of stinting by substituting the 26th of May for the 1st of June, but it did not appear that the lord of the manor had any notice of HEX-665. THE EARL OF LONSDALE V. RIGG 993 the alteration, and the eouit rolls did not contain any mention of stinting. The whole of the cattle and sheep depastured Bretherdale Bank in common A frith-man was appointed by the cattlegate owners, whose duty it was to take caie that Bretherdale Bank was properly stinted, and he was remunerated for his trouble by the cattlegate owners. A cattlegate owner having a house within the manor had also a right to cut peat for consumption in his house. By 46 Geo. 3, c Ixiv, authority was given to the lord of the manor to enfranchise any copyhold or customary messuages, cottages, lands, tenements, or hereditaments, parcel of the manor ; and several cattlegates were enfranchised under this Act but there was no distinction in point of enjoyment between the enfranchised and the customary cattlegates. From time immemorial the cattlegates had been held of the lord of the manor as customary estates of inheritance by payment of fine, certain rents of small amount being payable annually for each cattlegate, and under dues, duties, suits, and services of right accustomed. On the death of a cattlegate owner, the cattlegate descended by custom to the heir at law, who was admitted at the lord's court, when he paid a fine. The cattlegates also passed by cuatomary deed, followed by admittance at the next lord's court, or out of court by the steward of the manor. The deed was brought into court by the alienee, and was presented by the jury or homage. A tine was payable on the admittance, but there was no heriot due on the death of the lord of the manor; the owners of cattlegates might by the custom enforce their admittance by the new lord, on payment of a fine. The lord was entitled to seize quousque for nonpayment of fines. On alienation by a feme covert, the woman was examined apart from her husband. The lords of the manor had always searched for, pursued, and killed grouse and other game on Bretherdale Bank, no other person having claimed to do so, or ever having done so except by their license. Since 1819, the lords of the manor had preserved the game.-In an action of trespass and trover for shooting grouse on Bretherdale Bank without the plaintiff's permission,-Held, per Platt, B., and Martin, B., that, under the preceding facts, the action was maintainable; per Pollock, C. B, and Alderson, B., that it was not. [S. C. 25 L. J. Ex. 73 : affirmed, 1857, 1 H. & N. 923.] This was a special case, stated to decide the right of pursuing and killing grouse and other game over the land called Bretherdale Bank, in the parish of Orton, in the county of Westmoreland. The first count was in trespass for breaking and entering the land of the plaintiff called Bietherdale Bank, and for pursuing, killing, and taking away grouse and other game there. The second count was in trover, for dead grouse of the plaintiff. The third count was in case, for the disturbance of the plaintiffs exclusive right of shooting and killing grouse on Bretherdale Bank. [655J The defendant pleaded, first, to the whole declaration, not guilty. Secondly, to the first count, that the land was not the land of the plaintiff. Thirdly, to the first count, that the land was the close, soil, and freehold of the defendant. Fourthly, to the third count, a traverse of the plaintiff's exclusive right of shooting and killing grouse on Bretherdale Bank Issues thereon. The cause came on for trial at the Summer Assizes for Westmoreland, 1854, when an order of Nisi Pnus was made, under which the following case was stated for the opinion of this Court.- Bretherdale is a manor in the county of Westmoreland, and has been so from time immemorial. Bretherdale Bank is a tract of inclosed pasture land, containing about 508 acres, and is, and from time immemorial has been, within the said manor. WTitbm the manor, and in the neighbourhood, it is usually called stinted pasture, and sometimes common pasture. It adjoins Bretherdale Waste or Common, from which it is divided by a fence. This fence the cattlegate owners maintain among themselves, each owner maintaining and keeping in repair a certain part of the fence in proportion to the number of cattlegates he owns. The fence is never taken down It is repaired with stones got by the cattlegate owners from the Bretherdale Bank, or the Bretherdale Waste or Common, or wherever they ran find them. Every owner of lands within the manor is entitled to common of pasture within Bretherdale Waste or Common. The Earl of Lonsdale is, and for several years has been, lord of the said manor, being seised of tie said manor, with its rights and appurtenances, for the term of his life. Ex. Div. xii.-3-2 994 THE EARL OF LONSDALE V. RIGG U EX. 656. The late Eirl of Lonsdale, the plaintiffs father, was also lord, and seised for hfe of the manor. They derived the estate under the will of James, E-irl of Lonsdale, who was seised of the said manor in fee From time immemorial the said land, called Bretherdale Bank, has been and is subject to eighty customary rights, called cattlegates; of four of which cattlegates the defendant Jonathan Rigg is [656] seised as a customary estate of inheritance, the other eattlegates being vested in about eighteen other persona as customary estates of inheritance. The plaintiff is, and for many years has been, the owner of a cattlegate, which came to his predecessor, as lord of the said manor, by seizure quousque for non-payment of a fine. Of late years he purchased some other cattlegates in addition. A witness, who had been a game watcher for the plaintiff for fourteen years, stated that in his time he had never known the plaintiff interfere with Bretherdale Bank, except as to shooting over it The plaintiff lives at a distance. Each cattlegate confers on the owner thereof the right of depasturing on Bretherdale Bank one head of cattle, that is to say, one cow, one heifer, or one yearling foal, from the 26th of May to the 24th of April in every year, and, in addition, of depasturing from the 10th day of October until the 24th day of April, both inclusive, as many sheep as the cattlegate owner has. A person having a right of common on Bretherdale Waste or Common has not, as such, any right to turn cattle on Bretherdale Bank. From the 24th of April to the 26th of May, neither cattle nor sheep are allowed to pasture on Bretherdale Bank. It was proved by an old witness, that in his recollection an alteration in the time of stinting had been made at a meeting of the owners of cattlegates, by substituting the 26th of May for the 1st of June. There was no evidence that the lord of the manor had notice of any change in the time for stinting. There is nothing about stinting in the court rolls The cattle and sheep turned on by the several owners of the said cattlegates depasture the whole of Bretherdale Bank in common. A person, called the frithman, is from time to time elected by the owners of the cattlegates. His duty is to take care that Bretherdal& Bank is properly stinted and not overstocked ; he has for his trouble the right of depasturing cattle and sheep, as if he was the owner of two cattlegates For four or five years past a herd in addition [6573 nas been appointed by certain of the cattlegate owners by written agreement among themselves, who has been paid by such owner Is. per annum for each cattlegate of which they are owners. The owner of a cattlegate, being also owner of a house within the manor, is also entitled to cut peat on Bretherdale Bank, to be consumed in his house within the manor, but not out of the manor. By an Act of Parliament (46 Geo. 3. c. Ixiv) authority was given to William Viscount Lowther, during his life, and after his decease to the person for the time being seised or entitled to the freehold of certain manors, and amongst others of the manor of Bretherdale, to enfranchise any copyhold or customary messuages, cottages, lands, tenements, or hereditaments, parcel or reputed parcel of the said manors William Viscount Lowther, mentioned in that Act, was afterwards created Earl of Lonsdale, and died in 1844; he was the father of the plaintiff, the present Earl Under the provisions of the said Act several cattlegates have been enfranchised by the said William Viscount Lowther and by the present plaintiff. There was no evidence of any distinction in point of enjoyment between the enfranchised and the customary cattlegates. (A copy of the Act and of one of the deeds of enfranchisement accompanied the case, and were to be referred to as part thereof.(a)) The cattle-[658J-gates from (a) The admittance was as follows :- " Manor of Bretherdale, in the county of Westmoreland.-Be it remembered this 14th day of July...
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