1873 SOWERBY บ. SMITH. For the plaintiff, the cases of Bruce v. Helliwell (1) and Robinson v. Wray (2) were cited; and for the defendant those of Ewart v. Graham (3), affirming the judgment of the Exchequer Chamber (4), which had reversed the judgment of the Court of Exchequer (5), and Lord Leconfield v. Dixon. (6) It is not very easy to reconcile all the decisions; and unfortunately the language of the Act of Parliament in this case differs from that of all the Acts which formed the subject of discussion in the cases already decided. It is not necessary to consider whether, if this had been res integra, the right of the lord to shoot over the wastes of the manor would be included in a reservation such as that contained in the Act now under consideration; for, the case of Ewart v. Graham (3) is a decision of the House of Lords, by which this Court is bound; and, unless this case be distinguishable from that, the defendant is entitled to our judgment. It seems to me that that case is a direct authority that, notwithstanding the enactment that one-twentieth of the wastes should be allotted to the lord in full of all rights as owner of the soil, the reservation clause would preserve to him the territorial right he had, as lord of the manor, of shooting over the wastes, unless the words, "other than and except such common right as could or might be claimed by Miss Walker as owner of the soil and inheritance of the said common or waste grounds," can be read as applying to the exclusive right which the lord, as owner of the soil, had. Both in that case and in the present it seems to me, as pointed out by Coleridge, J., in the Exchequer Chamber (7), and by Wightman, J., in the House of Lords (8), that it was the intention of the legislature to preserve to the lord all the rights of sporting (if any) which he de facto enjoyed before the inclosure, although such rights could not any longer be enjoyed by him in the same character after the ownership of the soil was taken from him. It has been suggested that this view is inconsistent with the language of earlier sections, "except such manorial rights as here (1) 5 H. & N. 609. (2) Law Rep. 1 C. P. 490. (4) 1 H. & N. 550. (6) Law Rep. 2 Ex. 202; in Ex. Ch. Law Rep. 3 Ex. 30. (7) 1 H. & N. at p. 563. (8) 7 H. L. C. at p. 343. (5) 11 Ex. 326. inafter reserved." But I think this short mode of referring to the subsequent reservations may well refer to a right of shooting which the lord enjoyed only because he was lord of the manor and as such owner of the soil of the wastes of the manor. If I am right in this view, it only remains to consider whether the words of the exception to the reservation clause to which I have already alluded, are sufficient to distinguish this case from that of Ewart v. Graham (1); and I am of opinion that they are not. It is difficult to put a technical legal meaning on the words in question but I think that they may be fairly construed as applying to rights which the lord of the manor exercised conjointly with the persons entitled to rights of common, such as the right of turning out cattle and the right to cut turf, although the right in this respect of the lord may not be, legally speaking, a right of common, and may be greater than that of the commoners, as he was not limited in the exercise of the right, provided he left a sufficiency of common for the commoners; and that, they ought not to be construed as applying to rights to which the lord was entitled to the exclusion of all others, such as the right of sporting over the wastes. For instances of a meaning not strictly the legal one being given to similar words, see the cases of Askew v. Wilkinson (2), Lloyd v. Lord Powis (3), and Greathead v. Morley. (4) It has been suggested that these words are to be construed as "rights over the commons." But, in my opinion, this is not their proper construction; and I think we ought not to cut down the operation given to the reservation clause by the House of Lords, by attributing this effect to words of such ambiguous meaning. The case of Bruce v. Helliwell (5) was decided in the year 1860, after the decision of Ewart v. Graham (1); and it was there held that the exclusive right of the lord to kill game on the inclosed lands was taken away but there the Act expressly excepted from the reservation to the lord "such right" (not saying "common") "as might be claimed by him as owner of the soil;" and there were no words, as in this case and in Ewart v. Graham (1), suffi 1873 SOWERBY v. SMITH. (1) 7 H. L. C. 331. (2) 3 B. & Ad. 152. (3) 4 E. & B. 485. (5) 5 H. & N. 609. cient to preserve to the person who was lord of the manor at the time of inclosure the right of shooting, after he ceased to fill the character of owner of the soil of the wastes. In that case, too, the words of the clause which it was contended gave the lord the right to the game applied to lands not within the manor; and, as remarked by Bramwell, B. (1), it could not be contended that the intention was to confer on the lord the right to sport on lands over which he had no such right before; whereas, here, as in Ewart v. Graham (2), the reservation is only over the wastes proposed to be inclosed, over which the lord before the inclosure had the right of sporting. The other case relied on by Mr. Mellor, Robinson v. Wray (3), was decided on an Act of Parliament the language of which is so different from that before us that it has no bearing upon the present case. Neither do I think that Lord Leconfield v. Dixon (4) is an authority bearing on this case. There, the 20th section of the Inclosure Act directed an allotment to the lord in satisfaction of his rights as owner of the soil (except as thereinafter excepted), and the reservation clause reserved all rights except such as were expressly taken away by the Act; and it is therefore, in my opinion, no authority in favour of the present defendant. Under these circumstances, I think that this case falls within the authority of Ewart v. Graham (2), by which we are bound, and that our judgment ought consequently to be for the defendant. But the case is to my mind by no means a clear one, depending as it does on language to which it is very difficult to give a clear or satisfactory meaning; and I need hardly say that the doubts which I cannot but feel as to the soundness of the conclusion at which I have arrived are considerably increased by the fact of my two learned Brothers, for whose opinion I entertain the highest respect, having arrived at a different conclusion. Attorneys for plaintiff: Scott & Co. Judgment for the plaintiff. Attorneys for defendant: Pilgrim & Phillips, for Smith & Hinde. (1) 5 H. & N. at p. 621. (2) 7 H. L. C. 331. (3) Law Rep. 1 C. P. 490. (4) Law Rep. 2 Ex. 202; Ex. Ch. Law Rep. 3 Ex. 30. [IN THE EXCHEQUER CHAMBER.] JOHNSON v. BARNES. Exclusive Right of Pasturage-Immemorial Exercise of a Right-Presumption of legal Origin-Misdescription in ancient Documents. The corporation of a borough had from time immemorial exercised, by actual enjoyment by the free burgesses or by way of receipt of rent or acknowledgment, a right of pasturage for all cattle, sheep, and other commonable animals, levant and couchant within the borough, over lands in the neighbourhood of the borough, during a certain season of the year, and there was no evidence that during such season the owners or occupiers of the lands in question, or any other persons, had exercised the right of pasturage over such lands. The corporation had, from the time of Henry VIII., from time to time exercised the right of releasing for valuable consideration their rights of pasturage over portions of the lands subject thereto, still continuing to exercise their rights over the rest as before, without any resistance thereto upon the ground that the release of the part of the land extinguished the right as to all, which would have been the case with a mere right of common. In the releases and other deeds of conveyance made by the corporation in reference to their rights, they had always been described in terms which would be appropriate to rights of common strictly so called : Held (affirming the decision of the Court below), that according to the principle of law by which a legal origin is, if possible, to be presumed for a long-established practice, it must be presumed that what the corporation was entitled to was "sola vestura," or an exclusive right of pasturage over the lands in question, and not a right of common, which would have been extinguished by a release of part of the land, notwithstanding the description of the right as a right of common in a long series of documents. ERROR from the judgment of the Court of Common Pleas in favour of the defendant upon a special case. (1) The facts sufficiently appear from the report of the case in the Court below, and the judgment of the Court. Joshua Williams, Q.C., (Prentice, Q. C., and Thesiger, with him), for the plaintiff. It is well established law that a right of common is extinguished by a release of part of the land originally subject to it Co. Litt. 122 a. This is equally the case with respect to common in gross as with respect to common appurtenant. The Court below made the presumption that in this case there was a right of common in gross originally created with a power to grant or release any portion of the land. It is submitted that this (1) Law Rep. 7 C. P. 592. VOL. VIII. 2 T 2 1873 June 18. 1873 JOHNSON v. BARNES. is a most violent presumption to make, such a power being wholly inconsistent with the well-known legal incidents of a right of common. [BLACKBURN, J. The real question in the case seems to be, what was the nature of the right which the corporation had. It may be a right of common properly so called, or an exclusive right of pasturage or "sola vestura" in the lands in question. If they had an exclusive right of pasturage on the land during a certain part of the year, a release of part of the land would not extinguish the right.] That must be admitted; but, in all the corporation documents with reference to this right of pasture, the releases and conveyances of it and the constitutions or bye-laws mentioned in the case, it is always spoken of as a right of common. It is confined to cattle levant and couchant within the borough,-a restriction wholly inappropriate to an exclusive right of pasturage. The right which is called sola vestura, or an exclusive right of pasturage, is a very unusual right, and it is submitted that it would be a very strong presumption to make that such a right existed, seeing that in a series of formal documents the right is always spoken of as a right of common. [BLACKBURN, J. If your contention is right, and the first release of a portion of the lands extinguished the right, the exercise of the right of pasturage on the part of the corporation is an usurpation extending over a long series of years. Ought we not, according to the general principles of law, to presume a legal origin, if one be possible, for the right so exercised?] It is true that a legal origin is to be presumed, if possible, in favour of a right which has long been exercised de facto; but, if the facts shew what the nature of the right was in its origin, a longcontinued usurpation in excess of the right cannot alter its nature. It is contended that it sufficiently appears from the documents and facts in this case that this right was, in its origin, a right of common. [He cited Mellor v. Spateman (1); Corbet's Case (2); Shuttleworth v. Le Fleming (3); Attorney-General v. Mathias. (4)] (1) 1 Wms. Saund. 612. (2) 7 Co. 5. (3) 19 C. B. (N.S.) 687; 34 L. J. (C.P.) 309. (4) 4 K. & J. 579; 27 L. J. (Ch.) 761. |