RIES TO REAL PROPERTY. CHAP. IV. in general Case, not Trespass, though there are exceptions. (t) II. & III. INJU- The Injuries are in general termed Disturbances, as of the right to ancient lights, pews, commons, ways, watercourses, advowsons, freewarrens, fisheries; (u) or Subtractions, as of rents-service and tolls by refusing to pay the same. (v) The injuries to ancient lights by obstruction and the remedies have already been considered. (a) Remedies for injuries to ancient lights. (x) 2. Remedies for 3. Remedies for injuries to COMMON.(e) 2. With respect to Pews, as the party entitled to the use thereof has not in legal contemplation the exclusive possession, but merely a right to sit therein to hear divine service, he cannot support trespass for a mere exclusion, though he might for personal violence; (y) and the proper remedy is an action on the case, (y) and a faculty granting a pew to a man, but not annexing it to some messuage, will not enable him to maintain an action at law for disturbance, and his only remedy in that case is in the Ecclesiastical Court. (2) It has been held however that thirty years' uninterrupted possession and use of a pew would primâ facie enable a party to sue a stranger at law, (a) though it was considered that such presumptive title might be rebutted by proof that the pew had no existence thirty years ago; (a) and it has been held that as the declaration for disturbance of seats in a pew must state the pew as appurtenant to a messuage in the parish, and that otherwise a bare possession of the pew for sixty years or more is not a sufficient title to maintain an action on the case for disturbing the plaintiff in the possession thereof, but he must prove a prescriptive right or a faculty. (b) But those decisions were before the rule was established, that mere priority of possession shall be sufficient against a stranger who cannot show a better title, (c) and before the recent statute 2 & 3 Wm. 4, c. 70. (d) 3. The injuries to a right of Common of pasture are various; as by inclosing the waste over which the right of common exists, building thereon, planting trees, overstocking with rabbits, by either of which sufficiency of common is not left, or (t) Ante, 203 to 229. (u) See in general, 3 Bla. C. 236. (y) 1 T. R. 430; 5 B. & Ald. 361; 8 (a) Rogers v. Brand, 1 T. R. 431; Griffith v. Matthew, 5 T. R. 296; 2 Saund. 175, n. 2. (b) Stokes v. Booth, 1 T. R. 428. (c) Ante, 274, 275. (d) Ante, 285, 286. (e) As to the right, see ante, 210 to () Mainwaring v. Giles, 5 B. & Ald. 356; 2 Saund. 175, e., n. 2. 214. II. & III. INJU RIES TO REAL by any person taking off the common manure dropped thereon, CHAP. IV. and thereby impoverishing the pasture, or by a stranger's turning on cattle, or by the lord or a commoner surcharging and turning on more than a proper quantity of cattle, or improper cattle, or by driving off the commoner's cattle, or by turning on diseased cattle. The remedies for a commoner are either for prevention or for compensation, and some for punishment; as respects the preventive remedies, it should seem that if it be apprehended that the owner of the waste is about to inclose or build and not leave sufficiency of common, a Court of Equity would restrain the injury by injunction, at least until the sufficiency of common has been tried. (f) If a waste or common be surrounded by a fence placed upon the common, so that a person having right of common cannot turn on his cattle, he may justify prostrating such fence and opening a way for his cattle before he actually attempts to turn on, and he may even prostrate a large piece of the fence upon the common and much more than would be necessary for the convenient ingress and egress of commonable cattle, because in this case the whole fence being upon the common and injuring the pasture, a commoner might abate the whole ; (g) and the exercise of such right to abate may be much more convenient than that the commoners should be compelled to bring an action for every obstruction, because when the fences are thrown down, the assertion of right may be decided in one action; (h) besides, the right of a single commoner might perhaps be questionable, whereas if several commoners concur in the abatement, they may all defend on the title of each, and if the right of one be established, though the others fail, a general defence would succeed. But if the fence were not upon the common but on other land, the commoner must then only open a sufficient way through the same. (1) And in all these cases the commoners act at the peril of the lord's having a right to approve, leaving sufficiency of common, and any excess or unnecessary damages would subject the commoner to an action; (i) and we have seen that a commoner cannot sue for an inclosure made with his consent, although most licenses are revokable. (j) If the lord insist on his right to place and con (f) Quare, 2 Vern. 301, 356; Chit. Eq. Dig. 219, 220. (g) Arlett v. Ellis, 7 Bar. & Cres. 346, 362; 9 Id. 684; 2 Mood. C. N. P. 65; 6 T. R. 487; Com. Dig. Common, H.; 3 Chit.Pl. 5 ed. 1110; so a gate, wall, &c. may be abated, 1 Saund. 353, b., n. 2. (i) 1 Saund. 353, b., n. 2. (j) 1 Car. & P. 141; ante, 338, note (d). CHAP. IV. II. & III. INJU RIES TO REAL PROPERTY. tinue the fences, he may by bill restrain the commoners from prostrating the same, and obtain an issue for trial of the right; (k) and the right of the owner of the soil, whether the lord of the manor or waste, to approve and inclose, leaving sufficiency of common, is recognised and qualified by the statute of Merton and of Westminster. (1) A commoner cannot justify the prostration of trees, (m) nor the letting off water from a new pond made by the lord, (n) nor the killing rabbits surcharging the common. (o) Before the abatement it would be prudent (although not absolutely necessary) first to request the owner of the waste to remove the fence. (p) A commoner may also legally drive off the cattle of a stranger who has no right of common, or he may distrain the same, (q) though not the cattle of another commoner,(r) unless where the right of common is limited to a fixed number, in which case the excess might be distrained ; (s) but commoners are advised not to proceed by distress, but rather to proceed by action on the case; (t) and he might file a bill in equity to prevent what might become a permanent injury to his right of common. A commoner may always support an action on the case against the lord or any other person for inclosing or building, so as to occasion an insufficiency of pasturage, or for any disturbance of his right; (u) as by planting trees upon the waste whereby the pasturage has sensibly diminished, or for surcharging with rabbits, (x) or against any person for carrying off manure dropped on the common, however small the damage. (y) If the lord of a manor wantonly and unnecessarily exercise his manorial rights to the injury of persons entitled to common of pasture, he is liable to such action on the case.(z) If the commoner's cattle be chased off or hunted upon the common, then he has the election to sue in trespass or in case, and sometimes the former, in order to raise the question on the (k) 2 Vern. 301, 356; Chit. Eq. Dig. (1) 20 Hen. 3, c. 4; 13 Ed. 1, st. 1, c. (p) See observation in Earl Lonsdale v. II. & III. INJU RIES TO REAL pleadings, will be preferable. (a) The injury by depasturing CHAP. IV. forests, commons, and open fields with sheep or lambs infected with scab or mange is specially provided against, (b) and other PROPERTY. acts regulate the cultivation and improvement of common arable fields, wastes, and commons; (c) and the general inclosure act contains provisions very extensive in their operation. (d) 4. Injuries to ways are either by obstructions independently 4. Remedies for injuries to of contract, or founded on express contract, or the same may be WAY.(e) by neglect to repair the way. The obstruction to a private or public way may in general be prevented by removing the impediment, but which must, at least in the case of a private way, be effected in a careful manner, so as not to unnecessarily injure the materials; (f) though in the abatement of a nuisance to a public way no such precaution is supposed to be necessary.(g) Case is the proper form of action for an obstruction of a private way, whether the defendant had or not expressly covenanted for the enjoyment, though an action on the contract would be sustainable, (h) though in the latter case it might be incorrect to aver that the right of way was by reason of possession when it was independent of such possession, (i) and even a reversioner may sue in case for an apparent permanent obstruction to a private way. (k) Case is also the proper remedy for a material obstruction of a public way, if the plaintiff has sustained particular and material damage. (1) In general the party entitled to the use of a private way is bound to repair it as far as respects his own enjoyment, and he cannot then traverse the adjoining land; (m) but in some cases the owner of the land over which a private way passes is bound to repair the same, (n) and in that case the suffering the way to be much out of repair constitutes another injury, for which case may be supported. The proceedings for injuries to public ways will be considered amongst public injuries.(v). (a) 1 Chit. Pl. 5 ed. 162. (b) 38 Geo. 3, c. 65. 13 Geo. 3, c. 81; Whiteman v. King, 2 H. Bla. 4. (d) 41 Geo. 3, c. 109; 1 & 2 Geo. 4, c. 23; and notes to Chit. Col. Stat. 163 to 176. (e) As to the rights to private ways, ante, 214; and see 1 Tho. Co. Lit. 642, 644. (f) See pleas justifying removals of obstructions, 3 Chit. Pl. 5 ed. 1116 to 1129. Bar. & Cres. 273. (i) 4 East, 107; 6 Id. 438; 15 Id. 108; 3 Taunt. 24; 5 Bar. & Cres. 221. (k) 4 Burr. 2141; 2 Chit. Pl. 5 ed. 810, a. (1) Ante, 11, n. (h); see Willes, 71; 3 Mau. & S. 472; 4 Id. 101; 16 East, 196; 2 Bing. 263; 1 Tho. Co. Lit. 642. (m) Taylor v. Whitehead, Doug. 745; 4 Mau. & S. 387. (n) Rider v. Smith, 3 T. R. 766; 1 Saund. 322, a., n. 3; 1 Tho. Co. Lit. 235, note D. 1. (0) 2 Saund, 113, n. 1; 172, a., n. 1; Ld. Raym. 1096; 3 T. R. 766, CHAP. IV. II. & III. INJU PROPERTY 5. Remedies 5. Injuries to mere WATERCOURSES are usually nuisances by RIES TO REAL obstructing the course of the water or by an undue addition to or subtraction from the force of the water, or by poisoning or injuring the same. (q) The remedies are either preventive or for compensation or punishment. To prevent a wrongful continuance of an obstruction made by a person on his own land, the party thereby injured may legally enter and abate the nuisance, (q) and a Court of Equity would interfere by injunction to prevent any serious injury to a watercourse. (r) for injuries to WATERCOURSES. (p) 6. Remedies for injuries by disturbance of patronage in an ADVOWSON. If the party interested in a watercourse were also owner of the soil or banks thereof, then the remedies would be ejectment or trespass, according to the nature of the right and the time of enjoyment and injury; (s) but if he had only the use of the water, or the injury were not immediate, then the remedy should be an action on the case. (s) Trespass however lies for entering a several fishery and taking fish therefrom. (t) 6. Injuries to the right of Advowson (which we have seen is the right to present a clerk to the Bishop of the diocese in order that he may be instituted to a church) is the disturbance of and refusal to give effect to that right. (u) The proper remedy for this injury is an action of quare impedit, in which, if the patron succeed, he recovers two years' value of the church, if the turn of presentation has been lost by the resistance. (x) We shall consider this remedy more fully hereafter. 7. Remedies for 7. We have stated many of the remedies relating to Tithe injuries to the right to TITHES. When considering the right. (y) The remedies are either for injuries to the tithe-owner or to the occupier of the land. If the right of the Tithe-Owner to the tithe of a parish be disputed he may try his right in ejectment; (~) or by suit in equity, upon which an issue may be directed to try the right, if still disputed. If there be a Modus, then also a suit in equity or in the Exchequer will be proper; but if only a particular parishioner dispute the right and neglect to set out predial tithe in kind, (excepting of agistment,) then he may be sued in debt upon the statute, for not duly setting out tithe in kind, and for treble the value, (a) but in which no costs (p) See the rights considered ante, 189 to 193, 197, 198, 200, 215, 224. (q) 2 Smith's R. 9. (r) Ante, 191, 192. (s) Ante, 189, 190. (t) Ante, 224. (u) Ante, 215 to 218. (y) Ante, 218 to 221. (z) Ante, 218; 32 H. 8, c.7, s. 7; Cro. Car. 301; Ld. Raym. 789; 2 Saund. 304, n. 12; when not, 2 Roll. 309; 3 Bla. 88. (a) 2 & 3 Ed. 6, c. 13, s. 1; 8 East, 178; 3 Anstr.763; Moore, 915; 2 Chit. Pl. 5 ed. 496, and note. |