Page images




perty, as far as presumption went, was against him. Non constat but the locus in quo is part of the waste. Admitting the property in the soil still to continue in the person who dedicates a part of his land to public uses as a highway; in the present case it was not to be presumed that the plaintiff had made any such dedication. 1. From the great extent or breadth of the slip of land intervening between the opposite fences. 2. From the absence of all proof of acts of ownership by the plaintiff over the place in question. 3. That, in one part, it adjoined to an acknowledged common.

Hullock, serjeant, and Richardson, contrà.- If the defendant can shew a title in some other person, he rebuts the title of the plaintiff; but, in the absence of such proof, the property must be adjudged to the plaintiff upon the ordinary presumptions of law, which are, that the property of the soil in a highway belongs to the owner of the adjoining land, usque ad filum vie. Now, the defendant has enclosed a part between the plaintiff's close and the highway, and is thereby a trespasser. It is for the defendant to shew property in some

other person.

Bayley, Justice.--It is difficult in many cases to discover the origin of roads. They are sometimes made over waste or common lands, in which case the rights of soil, subject to the public easement, are in the lord of the manor. In other cases they are allotted by the owners of adjoining lands, and then the property in the soil continues in such owners, subject to the rights of general passage.

[merged small][merged small][ocr errors][merged small]

I think the presumption of the private rights of the plaintifl' are negatived by the circumstances of this case; so far at least as to make it incumbent on him to adduce some evidence of property, or act of ownership, from which property may be inferred. In the absence of such evidence, I shall direct the Jury to presume the locus in quo to be common land or waste.


Hullock, serjeant, and Richardson, for the plain


Williams, for the defendant,


NESHAN and Others ». ARMSTRONG and Others.

[ocr errors]

Iu an action

THIS was an action against the Hundred for on the Riot

the destruction of a stable, and two staiths, Act, and upon the 52d G. III. part of a colliery, by a mob, on the 20th of March, the Hundred; 1816. The staiths and stable were in the townHeld, that burping,

ship of Bishop Wearmouth. The stable was pulled though speci. down; and one of the staiths was burnt. As retioned in a spected the stable, the declaration was framed upon clanse of the statute, as dis- the lst Geo. I. st. 2. c. 5. ; the Riot Act. In retinct from a demolishing or gard to the staiths, which are places for the deposit is included in of coals; the counts were framed upon the 52d the latter

Geo. III. c. 130. s. 2. The clause in the latter terms. Q. If a staith, which statute is as follows: “ And be it further enacted, is a place of deposit for that if, after the passing of this Act, any person or coals, is au erection, persons, (following the words of the Riot Act,) engine, within shall unlawfully or with force demolish or pull the meaning of down, &c. any erection and building, or engine, second sec- which shall be employed in the carrying on or tions of the 52d G. 111. c. 130. conducting of any trade or manufactory, or any

branch or department of any trade or manufactory of goods, &c. of any kind or description whatever; or in which any goods, &c. shall be warehoused or deposited, that then, &c.The clause then proceeds to make such demolishing felony, and gives an action against the Hundred by the parties injured to recover damages.

It appeared that there had been an examination of one of the plaintiffs before a magistrate, in compliance with the provision of the 4th section of 1816. the Act, who was the principal manager of the

NESHAM concern.

and Others

v. Richardson, for the defendants, contended, that ArmstronG

and Others. as the object of the act was to detect the offenders, all the plaintiffs should have been examined. The act directs that all persons who claim redress shall be sworn and examined.

BAYLEY, Justice.- I think if the plaintiff, who was examined, was the manager, and the only person actively employed, it is sufficient. I will not stop the case on this objection.

Richardson then objected, 1. That the case did not fall within the 52d Geo. Ill. c. 130. s. 2.; that clause extended only to trades and manufactories, the conductors of which (under the general name of traders and manufacturers) were meant to be protected from the violence of a mob. Warehouses and depositories of goods might require such protection. But, in the present case, the staiths do not fall under the description in the act. They are not erections, buildings, or engines, for the purpose of trade and manufacture. They are parts of a colliery quite distinct from general trade. Neither could the owners of the staiths be called traders in the common use of the word. 2. With respect to the larger staith, it was burned. Burning is not included in the general word demolishing. There is a clause in the act specifically providing redress against burning, which does not mention demolishing




BAYLEY, Justice.--I think burning is included in the general word demolishing,' &c. The act meant to provide against destruction and spoliation; burning is only one of the means. With respect to the objection upon the staith not being within the clause of the act of parliament, I will reserve the point.


Verdict for the plaintiff.

Hullock, serjeant, and Tindall, for the plaintiffs.

Richardson, for defendants.

« PreviousContinue »