De la Warr (Earl) v Miles
| Jurisdiction | England & Wales |
| Year | 1880 |
| Date | 1880 |
| Court | Court of Appeal |
Common - “Common Pasturage and Herbage” - Jus secandi vel falcandi - Common of Estovers - Prescription - Profit à prendre in alieno sole - 2 & 3 Will. 4, c. 71, s. 1.
Previous to the disafforestation and grant of A. Forest in 1677, the Crown was absolute owner of the soil of the forest and possessed of all the rights belonging to such ownership including vert and venison. The tenants of the adjoining manors had customary rights of common of pasture, herbage, and pannage, but the Court Rolls and other documents contained no evidence of any customary right in the commoners to cut and carry away from the forest brakes, fern, and litter, except by permission of the forest officers, and afforded negative evidence that no such right was ever claimed or lawfully exercised.
In a suit instituted in 1691, for the purpose of determining how much of the forest might properly be inclosed having regard to the rights of common, the commoners by their answers claimed rights of pasturage, and pannage for swine and, as to such of them as had houses, certain quantities of fuel wood for their houses, but made no claim in respect of any other estovers. By the decree made in 1693, after allotting to the owners for inclosure and improvement portions of the forest within which the commoners were to be excluded and debarred from any common of pasture, herbage, or pannage, the residue of the forest (containing 6400 acres) was allotted to remain open and uninclosed, “and the said defendants, their heirs, tenants, and assigns, and all other persons having right of common in the said forest according to their respective interests therein, shall from time to time have and take the sole common pasturage and herbage of all and every the lands allotted and left for common as aforesaid” — the owners, their heirs and assigns, tenants and farmers, being for ever excluded “from having or claiming any common of pasture or herbage upon or in the said lands so left for common as aforesaid.”
In an action brought by the owner of the inheritance in 1878 to restrain one of the commoners from cutting and carrying away brakes, fern, and litter from the 6400 acres, for use upon the copyhold tenement in respect of which he had his right of common, the defendant claimed this right as one of the commoners entitled to the benefit of the decree of 1693, and also alternatively by prescription in respect of his particular tenement:—
Held, by Bacon, V.C., and by the Court of Appeal, 1. That upon the construction of the decree of 1693, by which the respective rights of the lord and the commoners were defined and determined, the right of the commoners over the 6400 acres was limited to common of pasturage and herbage, and did not include the right to cut and carry away the brakes, fern, heather, and litter growing therein.
2. That the existence at the date of that decree of any special custom authorizing the commoners to cut and carry away brakes, &c., and litter in that which had been a royal forest, had not been established, and was negatived by the absence of any claim to such a custom by the commoners in the suit in which that decree was made.
3. That evidence of usage subsequent to the date of the decree of 1693 could not affect the construction of that decree, which in its terms was clear and unambiguous.
Held, by Bacon, V.C., that the alternative claim to the alleged right by prescription in respect of the particular tenement being a claim of a profit à prendre in alieno sole could not be sustained.
Held, on appeal, that as the Defendant and his predecessors in title were shewn to have claimed to take, and to have actually taken, as of right and without any permission from the lord, litter from the 6400 acres for the use of the tenement for upwards of sixty years immediately before the action, they had, under the
In order to establish a right under the Prescription Act, it is only necessary to shew that the benefit claimed has been actually enjoyed by the claimant for the requisite period as of right and not by permission, and that the right claimed is one which could have a legal origin by custom, prescription, or grant, and it is immaterial on what ground the claimant rested his alleged right to enjoy it.
THIS was an action by Lord De la Warr, as lord of the manor of Duddleswell and owner of a portion of the soil of Ashdown Forest, in Sussex, subject to rights of common therein, the extent of which was the question in dispute, to try the right asserted by the commoners to cut and carry away brakes, fern, heather, and litter in the forest for the use of their tenements.
Ashdown Forest, also known as Lancaster Great Park, comprised about 13,991 acres in Sussex, between Tunbridge Wells and East
Grinstead, of which the kings and queens of England were seised in right of their Duchy of Lancaster, except during the period of the Commonwealth. The forest was disafforested by letters of patent of King Charles II., and by him granted in 1677 to the Earl of Dorset and others (through whom, under an uninterrupted series of life tenancies, the Plaintiff, Earl De la Warr, claimed title) by the description of “All that parcel of land called Ashdown Forest or Lancaster Great Park with the appurtenances, and all honours, manors, lands, tenements, and hereditaments, parcel thereof, in the county of Sussex, and all the walks, lodges, and enclosed grounds within the said forest and park, and the soil thereof parcel of the said Duchy situate in the parishes of Maresfield, East Grinstead, Hartfield, Withyham, and Buxted, or any of them, or elsewhere in the said county of Sussex, and all that the manor of Duddleswell, and all that the honour of Aquila being parcel or reputed parcel of the said forest or park, and all woods and underwoods, timber trees and other trees whatsoever growing or being within the said forest,” together with other hereditaments, rights, and privileges to the same premises respectively belonging.
In 1691 the Earl of Dorset and the other persons claiming to be owners of the forest under King Charles II.'s grant filed a bill of complaint in the Duchy Court of Chancery against John Nuneham, John Day, and 142 other persons, who claimed rights of common of pasture and of estovers over the forest, praying that they (the plaintiffs) might be quieted in the enjoyment of what they had enclosed, and might go on in enclosing and improving and be quieted therein by injunction, and that multiplicity of suits might be stayed and prevented, and that the defendants might set forth their claims and right of common; and that in case it should appear that they (the defendants) ought to have common in the forest, they might shew why the improvement thereof should not be proceeded with, they having proportionable satisfaction set out to them in recompense for their interest therein by Commissioners in that behalf to be appointed by the Court.
To this bill the defendants filed joint and several answers, and thereby they claimed to be entitled to common of pasture or herbage over the same tract of land for all their commonable cattle levant and couchant and swine bred upon their respective tenements all the year except for six weeks between Michaelmas Day and St. Martin's Day and (as to such of the defendants as had houses) to be entitled to common of estovers consisting of the right to have two loads of fuel in every year to burn for fuel in each of their houses then erected on their tenements respectively, and they proceeded to say “that they do not claim any other right or title of or into the forest or chase of Ashdown, other than for common of pasture and estovers according to the aforesaid custom.” John Day, through whom the defendant to this action, Bernard Hale, derived his title, in his separate answer claimed to be seised of a freehold messuage and lands parcel of the manor of Tarring Peverell and of freehold lands holden of the manor of Maresfield, and of a copyhold tenement consisting of a messuage with forty acres of land called Suntings holden of the manor of Maresfield, and of certain other hereditaments outside the same manor in respect of which he claimed the right of common of pasture. And by the answer of G. Nevill, another of the defendants, in addition to the claim of common of pasture together with herbage, “liberty to dig and take in the said forest or park marle, earth, lome, sand, stone, brakes, fern, heath, and bushes, for the manuring, improving, maintaining, and mending the said premises and fences thereof” was also claimed.
By a decree made in December, 1691, Commissioners were appointed to set and lay out for the defendants sufficient common according to their respective rights and in convenient places; and it appearing to the Court that there was no wood ever esteemed or allowed for estovers but birch willow and alder only, it was ordered that the plaintiffs be at liberty to cut down and fell any sort of woods in the said forest, except only birch willow and alder, being the sorts of wood usually allowed the said defendants for estovers.
The commission thus ordered was executed, and the Commissioners, by their return, certified that they had agreed that 6400 acres of the forest would be sufficient common of pasture and herbage for the commoners and others claiming common on the forest, “so as the commoners enjoy the sole pasturage thereof, and the plaintiffs, owners and proprietors of the soil, be excluded from all right of pasturage either for sheep, horses, or other beasts, or any other cattle whatsoever therein.”...
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