William Hilton against The Right Honourable Granville, Earl Granville
| Jurisdiction | England & Wales |
| Judgment Date | 10 February 1845 |
| Date | 10 February 1845 |
| Court | Court of the Queen's Bench |
English Reports Citation: 114 E.R. 1414
IN THE QUEEN'S BENCH
S. C. D. & M. 614; 13 L. J. Q. B. 193; 8 Jur. 311: in Chancery, Cr. & Ph. 283. Discussed, Humphries v. Brogden, 1850, 12 Q. B. 753. Commented on, but held binding, Blackett v. Bradley, 1862, 1 B. & S. 954. Referred to, Taylor v. Shaflo, 1869, 8 B. & S. 251. Dictim held over-ruled, Bucleuch v. Wakefield, 1870, L. R. 4 H. L. 399. Referred to, Hext v. Gill, 1872, L. R. 7 Ch. 716; Buchanan v. Andrews, 1873, L. R. 2 H. L. (Sc.) 297; Hall v. Byron, 1877, 4 Ch. D. 677; Bell v. Love, 1883-84, 10 Q. B. D. 568; 9 App. Cas. 286.
[701] william hilton against the eight honourable granville, earl gran-VILLE. Saturday, February 10th, 1845. To a declaration in case for digging mines near the foundations of plaintiff's dwelling house, without leaving due support, so that the said foundations were injured, and the dwelling house cracked, sank in and was in danger of falling and being destroyed, defendant pleaded, that the dwelling house, from time whereof, &c., was part of the manor of N., and was situate in a township within the said manor; that the Queen was seised in fee of the manor, and of the mines, collieries and seams of coal therein ; and that she and all those whose estate she had, &c., and their tenants and those to whom she or they have granted license to mine, from time whereof, &c., have been used, &c., and of right ought, &c., to work the said mines, collieries, &c., under any messuages, dwelling houses, buildings and lands, parcel of the manor and within the township, and, for the purpose of working the said mines, collieries, &c., to dig and make under ground all such mines, pits, &c., under the said messuages, dwelling houses, buildings and lands, or any part thereof, as might from time to time be expedient and necessary for that purpose, and out of the said mines, &c., to get the coals, &c. and cany away and convert the same, doing no more than necessary for the purpose aforesaid, and paying to the tenants and occupiers of the surface of lands damaged thereby a reasonable compensation, when demanded, for the use of the surface, or any damage occasioned thereto in and about the working of the mines, collieries, &c., but without making compensation in respect of the surface on any other account, and without making compensation for any damage occasioned to any messuages, dwelling houses or other buildings within and part or parcel of the manor by or for the purpose of working the said mines, collieries, &c. Justification, stating that defendant, as lessee and grantee of the Grown, committed the alleged grievances, &e. in exercise of the above right, doing no more than was necessary for the purposes aforesaid. Held, that the prescription was void, as being unreasonable. That a custom, similarly pleaded, was void on the same ground. That the right, if maintainable in itself, might have been pleaded in virtue either of prescription or of custom. And that it might have been claimed as well against copyholders as against tenants of customary freehold. [S. C. D. & M. 614; 13 L. J. Q. B. 193; 8 Jur. 311 : in Chancery, Cr. & Ph. 283. Discussed, Humphries v. Brogden, 1850, 12 Q. B. 753. Commented on, but held binding, Blackett v. Bradley, 1862, 1 B. & S. 954. Referred to, Taylor v. Shafto, 1869, 8 B. & S. 251. Dictum held over-ruled, Bucdeuch v. Wakefidd, 1870, L. R. 4 H. L. 399. Referred to, Hext v. Gill, 1872, L. E. 7 Ch. 71C ; Buchanan v. Andrews, 1873, L. R. 2"H. L. (Sc.)-297; Hall v. Byron, 1877, 4 Ch. D. 677; Bell v. Love, 1883-84, 10 Q. B. D. 568; 9 App. Cas. 286.J Case. The declaration stated that plaintiff, before and at the time of the committing, &c., was, and thence hitherto hath been, and is, lawfully possessed of a (c) See stat. 8 & 9 Viet. c. 109, ss. 15 and 18. 8Q.B.704. HILTON V. EARL GRANV1LLB I4l5 certain messuage or dwelling house with the appurtenances, situate in tba manor of Newcastle under Lyme in the county of Stafford, belonging to and supporting which said messuage or dwelling house, before and at the times aforesaid, there were certain foundations which plaintiff of right had enjoyed and was at the times aforesaid enjoying, and still ought to enjoy, for the support of the said messuage or dwelling house, without hindrance or disturbance. And that, before and at [702] the time of the committing, &c., a certain other messuage or dwelling house with the appurtenances, situate in the manor and county aforesaid, was in the possession and occupation of a certain person, to wit one John Hilton, as tenant thereof to plaintiff, the reversion thereof then and still belonging to plaintiff, and belonging to and supporting which last mentioned messuage or dwelling house, before and at the times aforesaid, there were also certain foundations, which plaintiff for himself and his tenants of the same messuage or dwelling house of right had enjoyed, &c. (as before). Yet defendant, well knowing the premises, but contriving, &c. to injure, &c. the plaintiff, and to undermine the foundations of his said messuages or dwelling houses with the appurtenances, and wholly to destroy the same, while plaintiff was so possessed of the said first mentioned messuage or dwelling house with the appurtenances as aforesaid, and while the said other messuage, &c. with the appurtenances were so in the possession and occupation of the said tenant as such tenant thereof to plaintiff as aforesaid, and while plaintiff was so interested therein as aforesaid, to wit on, &c. and on divers days and times between that day and the commencement of this suit, without the leave or licence of plaintiff, so wrongfully, negligently and improperly, and without leaving any proper or sufficient support in that behalf, worked certain mines under ground near to the said several messuages, &c, with the appurtenances, and got dug for and moved the ores, minerals and other produce of the said mines and substrata there, near to the said several messuages, &c. with the appurtenances, that, by reason of the premises, the said respective foundations of the said several messuages, &c. with the appurtenances then became and were [703] greatly weakened, injured and damaged, undermined and rendered unsafe and unstable and incapable of supporting the said messuages, &c. with the appurtenances as they would otherwise have done; insomuch that, by reason thereof, the said several messuages, &c., with the appurtenances, cracked, sank in, and are in danger of falling down and being wholly destroyed : by means of all which premises the said several messuages, &c. with the appurtenances have become and are of much less value to plaintiff than the same were and otherwise would have been, and plaintiff hath been and is greatly prejudiced, &c. in his reversionary estate and interest of and in the said messuage, &c. with the appurtenances so in the possession and occupation of the said John Hilton as tenant thereof as aforesaid. Pleas 1. Not guilty. Issue thereon. 2. That, at the times when, &c., plaintiff of right had not enjoyed, nor did enjoy, &c., any such foundation, &c., for the support, &c., without hindrance, &c., in manner and form, &e.; conclusion to the country. Issue thereon. 3. As to the alleged grievances, so far as they relate to, or have been occasioned by, the defendant having, without leaving proper and sufficient support in that behalf, worked the said mines under ground near to the said several messuages, &c., and having djig for, got and moved the ores, minerals and other produce, &c. there, near to the said messuages, &c.: that the said messuages, &c, with the appurtenances, in the declaration: mentioned, always have been, and are, situate in the townships of Shulton and7 Hanley, in the county aforesaid, and, at the said several times when, &c., in the declaration mentioned, and from time whereof, &c., and thence hitherto, [704] have been, and still are, within, and part and parcel of, the said manor or lordship of Newcastle under Lyme in the county of Stafford ; and that the said townships during all the time aforesaid have been, and still are, within the said manor or lordship. And that, before the said several times when, &c., and also before and at the time of the making of the indenture in this plea after mentioned, to wit on 12th October, A.D. 1839, our Sovereign Lady Queen Victoria was seised in demesne as of fee, in right of Her said Majesty's Duchy of Lancaster, of and in the said manor or lordship of Newcastle under Lyme, and of and in the collieries, mines, seams and veins of coal, and veins or beds of ironstone and other ores and minerals situate, lying and being within the said manor or lordship; and that Her said Majesty, and all those whose estate she then had of and in the said manor or lordship, and of and in the said 1416 filLTON t . EARL G&ANVILLE 8 Q. B.T08. collieries, mines, &c., for the time being, and her and their tenants and farmers, occupiers of the said collieries, mines, &c., and all those persons respectively to whom from time to time Her said Majesty, or those whose estate she had as aforesaid, have granted licence and liberty to work, search for, win, get and bring up the said collieries, mines, &c., from time whereof, &c., have been used and accustomed of right, and of right ought to have been used and accustomed, and they still of right ought to be used and accustomed, to get, win and work the said collieries, mines, &c., under any messuages or dwelling houses, buildings and lands, part and parcel of the said manor or lordship, and within the townships aforesaid, or either of them, and then and there, for the purpose of getting, winning and working the said collieries, mines, &e., to dig and make under ground all [705] such mines, pits, shafts, holes and levels under the said messuages or dwelling houses, buildings and lands, or any part thereof, as might from time to time be...
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