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1816.

WRIGHT

V.

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

HORTON.

Verdict for the plaintiff.

Scarlett and Littledale, for the plaintiff.

Richardson and Williams, for the defendant.

1816.

E

DOE d. SAUNDERS v. COOPER.

JECTMENT for three messuages in Hunslet, in the county of York.-In support of the defendant's title, indentures of lease and release were put in; the lease made between Ralph Saunders 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 Saun ders, 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 releasees therefore has that possession

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1816.

DOE

ข.

COOPER.

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.

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.

DURHAM

ASSISES, 56 GEORGE III.

1816.

TRE

HEADLAM. HEDLEY.

Though the right of the soil in a public highway be-longs to the

RESPASS for breaking and entering a close, which was a piece of land which the defendant had enclosed between the plaintiff's field and a public road.-Plea, not guilty. The plaintiff owner of the

adjoining

was the owner of the close adjoining the locus inses (

no other pro

quo, which was a slip of green sward, across which prietor apthe road extended. The breadth of the road (in- pears) usque ad cluding the green sward) was about sixty or se

filum via; this is only a presumption of

law in his fa

vour, when the

cation of the

shewn by positive evi

dence. And if cunstances in

there are cir

venty yards between the fence of the plaintiff's close and the fence of the occupier of the opposite original dediclose. It was in evidence that this green sward road cannot be had been generally treated as waste land, and as a portion of a neighbouring common, to which, on one extremity, it adjoined. That it had been used as a common for cattle, for a long space of time, bring this by some persons in the next village. There was presumption no evidence that the plaintiff had exercised any act of ownership over it. But he rested his case upon the general presumption of law.

Williams, for the defendant, contended, that the plaintiff could not recover without shewing property in the soil; that the evidence of such

the case which

of property in

question, the plaintiff, who claims such

road in an action of trespass, must give some other evi

dence of property beyond

the mere prepro- law.

sumption of

1816.

HEADLAM

v.

HEDLEY.

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 via. 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.

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