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1816.

may ultimately be entitled to qualify; but, at present, he has not the title which the act of parliament requires.

WRIGHT

HORTON.

Verdict for the plaintiff.

Scarlett and Littledale, for the plaintiff.

Richardson and Williams, for the defendant.

1816.

Doe d. SAUNDERS v. COOPER.

EJECTM

lease to A. and

JECTMENT for three messuages in Hunslet, A lease for a

in the county of York.-In support of the year to 4, and defendant's title, indentures of lease and release support a re. were put in; the lease made between Ralph Saun- a third person. ders of the one part, and the defendant and Elizabeth his wife of the other part; and the release made between the said Ralph Saunders of the first part, the defendant and Elizabeth his wife of the second part, and the defendant and William Saunders, of the third part; habendum to the defendant and William Saunders, their heirs and assigns. Upon the trusts, and to the uses therein mentioned.

Raine and C. Milner, for the lessor of the plaintiff, objected, that the bargain and sale for a year, being to the defendant and Elizabeth his wife, and the release to defendant and William Saunders, who took as joint-tenants, the releasees had not a possession upon which the release could operate: and that, if it did not operate as a release, it was void; for it could not take effect as a bargain and sale under the statute; which must be enrolled, and for a valuable consideration.

Scarlett and Wales, contrà.

Mr. Baron Wood.— The bargain and sale vests the possession for a year in defendant and his wife: one of the releaşees therefore has that possession

1816.

Doe

which, under the statute of uses, enables him to accept a release ; and I think that this possession is sufficient to entitle him, and the other releasee, William Saunders, to take a release to them, as joint-tenants under this deed.

Cooper.

Verdict for the defendant.

The point was saved ; but not afterwards moved.

Raine and C. Milner, for the lessor of the plaintiff.

Scarlett, Hardy, and Wailes, for the defendant.

See Spyve v. Topham, 3 East 115.

1818.

DURHAM
ASSISES, 56 GEORGE III.

HEADLAM V. HEDLEY.

TR

owner of the

VRESPASS for breaking and entering a close, Though the which was a piece of land which the defend- right of the

soil in a public ant had enclosed between the plaintifi''s field and highway be.

longs to the a public road.—Plea, not guilty. The plaintiff was the owner of the close adjoining the locus in closes (when

aljoining quo, which was a slip of green sward, across which prietbera prothe road extended. The breadth of the road (in-pearson as per tot cluding the green sward) was about sixty or se- 'is only a preventy yards between the fence of the plaintiff's law iu his fa. close and the fence of the occupier of the opposite original dedi

vour, when the close. It was in evidence that this green sward road canuot be had been generally treated as waste land, and as a

shewn by poportion of a neighbouring common, to which, on dence. And if one extremity, it adjoined. That it had been used cun.Stances in as a common for cattle, for a long space of time, bring this

the case which by some persons in the next village. There was pre

presumption

of property in no evidence that the plaintiff had exercised any question, the act of ownership over it. But he rested his case claims such upon the general presumption of law.

pass, must give

some other eviWilliams, for the defendant, contended, that the dence of proa plaintiff could not recover without shewing pro- ihe were preperty in the soil; that the evidence of such pro- law.

sitive evi.

road in an action of tres

1816.

HEADLAM

HEDLEY.

perty, as far as presumption went, was against bim. Non constut 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 viæ. · 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 somctimes 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.

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