M. R. 1870 WARRICK v. QUEEN'S COLLEGE, OXFORD. with one exception, all persons either removed their cattle from the commons, or made terms with the college for continuing them there. The excepted individual was a person named Winn, who set up a title by prescription in respect of an ancient house, and the Defendants did not consider it worth while to incur the expense of a litigation with him. In 1860 and 1861 proceedings were taken by the college against various persons for cutting turf and removing gravel; and the Defendants alleged that such proceedings practically put a stop to the cutting of turf, furze, and heath, and the removal of gravel. The Plaintiffs, however, were able to shew that various persons claiming to be, or to hold under, freeholders, and in particular the Plaintiff Joseph Jacobs, did not acquiesce in the claims of the college, and continued to exercise various of the rights claimed by the bill. Sir Roundell Palmer, Q.C., Mr. Joshua Williams, Q.C., and Mr. W. R. Fisher, for the Plaintiffs : The case of Smith v. Earl Brownlow (1) shews that the suit is properly framed; and we contend that the evidence which we have adduced is sufficient to support our claim. It will probably be contended, on the other side, that the Court Rolls, on which we rely much, shew that the rights of common claimed by the bill belong not to the freeholders of the manor, but to the parishioners of Plumstead, and that a claim to a right of common by parishioners cannot be maintained: Gateward's Case (2). It is admitted that the manor and parish are not now coextensive; but it appears, from documents proved in the cause, that the manor of Plumstead comprised originally the whole of the parishes of Plumstead and East Wickham, and that there were divers submanors held of it. The lords of the manor of Plumstead were formerly the monastery of St. Augustine, Canterbury; and on the dissolution of the monasteries, Henry VIII. granted out the submanors to be held of him in capite; and the tenants of these submanors had, or at least might have had, rights of common over the wastes of the manor of which they were formerly held; and so the persons entitled to rights of common would be the freeholders of lands within the parish, and their tenants, all of whom would be rated to the poor, (1) Law Rep. 9 Eq. 241. (2) 6 Rep. 59, b. and might be properly described as parishioners. The word "parishioner" is a word of flexible meaning, and to be construed according to the subject-matter to which it is applied: Rex v. Mashiter (1); Rex v. Davie (2); Attorney-General v. Forster (3). That the meaning which we attach to it in the Court Rolls is the true one is shewn by the proceedings with respect to the lease granted in 1818; for there the consent of the freeholders was asked and obtained, although part of the rent reserved was to be applied for the benefit of the parish. These proceedings are also important in this respect, that they rebut the defence set up by the college, who say that no one has any right to the commons besides themselves. It will be borne in mind that we do not seek to establish prescriptive rights, but we claim to exercise customary rights whose origin is coeval with that of the manor; and it is for the Defendants to shew that these rights have been abandoned. Mere lapse of time without exercise of the right of common of pasture is not enough. The freeholders may have abstained from exercising their rights for some very good reason-as, for example, that there was no pasture on the common. The origin of common appendant is explained in the following authorities: Comyn's Digest, title "Common," B; Mellor v. Spateman (4); Bennett v. Reeve (5). It may be said that the lands held by the Plaintiffs are not arable lands, and consequently not such as that a right of common could attach to them; but where common of pasture has in fact been enjoyed, it will be presumed that the land in respect of which it has been enjoyed was originally arable land: Tyrringham's Case (6); Carr v. Lambert (7). As to the rights of walking and recreation. A right of roaming over a piece of land, or "servitus spatiandi," is known to the law, and is maintainable: Duncan v. Louch (8); Dyce v. Hay (9). A right of playing lawful sports and games is also maintainable: Abbot v. Weekly (10); Fitch v. Rawling (11); Mounsey v. Ismay (12). (1) 6 A. & E. 153. (2) Ibid. 374. (3) 10 Ves. 335. (7) Law Rep. 1 Ex. 168. (9) 1 Macq. 305. M. R. 1870 WARRICK v. QUEEN'S COLLEGE, Oxford. (4) 1 Wms. Saund. 343. (10) 1 Lev. 176. (5) Willes, 227. (6) 4 Rep. 36 a. (11) 2 H. Bl. 393. M. R. 1870 WARRICK v. QUEEN'S COLLEGE, These authorities shew that the right may be claimed by the inhabitants of a town, or the freemen and citizens of a borough; and if so, why not by the tenants of a manor? Mr. Mellish, Q.C., Mr. Jessel, Q.C., Mr. Lindley, and Mr. Elton, for the Defendants : The bill is founded on a mistaken view of the law. It is assumed that if a man possesses two acres of freehold land within the manor of Plumstead he is entitled to all the rights of common claimed by the bill. But that is not so. Each tenant has such a right of common as was granted to him, and no other. For example, noone can be entitled to common appendant unless he has had arable land granted to him: Tyrringham's Case (1). There is no evidence that any one of the Plaintiffs, or their predecessors in title, has had a grant of any such land. We admit that if a right of common had been exercised in connection with particular lands for a great number of years, there would be a presumption that such lands were ancient arable lands in connection with which a right of common appendant had been granted; but there is no such evidence in this case. The Plaintiffs, indeed, say that they have exercised rights of common; but they do not shew that they have done so as owners of any particular lands. Again, no one can have common of turbary except the owner of a house built before the time of Richard I., or a house substituted for another house built before that time: Luttrel's Case (2); Dunstan v. Tresider (3) [They referred to the authorities cited by Sir W. Follett, in Arlett v. Ellis (4), whose argument on this head they adopted.] Not one of the Plaintiffs proves that he is entitled to such a house. We say then, that a declaration cannot be made that all the tenants of this manor are entitled to rights of common of pasture, turbary, and estovers. The only declaration which could possibly be made would be to the effect, that such of the freehold tenants as possess ancient arable land are entitled to common of pasture; that such of the freehold tenants as possess ancient messuages are entitled to common of turbary, &c. ; but we submit that no such declaration can be made in a suit framed, as this is, on behalf of all the freehold tenants. As to the rights of recreation claimed by the bill, these, where they exist, are personal rights; they may belong, for example, to the inhabitants of a village or district, and may be claimed accordingly. But the claim made by the bill is not on behalf of the Plaintiffs as inhabitants of Plumstead, but as freeholders of the manor, having rights of recreation appurtenant to their tenements held thereof; and it is impossible to adduce any authority whatever to shew that a person quà freehold tenant has ever been held entitled to any such right. It has been said at the Bar that the Plaintiffs claim these rights not quà freeholders, but simply as having them; they cannot, however, change the case they have set up. Further, we say that a suit cannot be maintained by a freehold tenant entitled to a right of common on behalf of himself and all other tenants entitled to such a right. Such a suit can only be maintained where there is the same right in all the persons claiming it. In the case of copyholders, for example, we admit that such a suit can be maintained; and thus the decision in Smith v. Earl Brownlow (1) may be supported, the Plaintiff there having been a copyholder as well as a freeholder, and having filed his bill on behalf of copyholders and freeholders. The only instance of a similar bill on behalf of freeholders only is Powell v. Earl of Powis (2), which was decided on demurrer, the bill containing an averment that the rights of all the tenants were the same as those of the Plaintiff. The tenants in that suit may have been customary freeholders, who are simply copyholders. A right of common cannot be claimed by the freeholders of the manor by virtue of a custom, although the law is otherwise with respect to copyholders. The reason is, that a profit à prendre cannot be taken on another man's land by custom, although it may by prescription: Grimstead v. Marlowe (3); Constable v. Nicholson (4); Attorney-General v. Mathias (5); Willingale v. Maitland (6). Now, a title by prescription is proved by the exercise of a right by a particular individual (1) Law Rep. 9 Eq. 241. (2) 1 Y. & J. 159. (3) 4 T. R. 717. (4) 14 C. B. (N.S.) 230. M. R. 1870 WARRICK V. QUEEN'S COLLEGE, OXFORD. M. R. 1870 WARRICK v. QUEEN'S COLLEGE, OXFORD. and his predecessors; and evidence given in support of such a title in a particular freeholder is no evidence on behalf of any other freeholder, unless there be either a presumption of law that the rights of all freeholders are the same, or it be proved as a matter of fact that they are so. There is no such presumption of law: Gateward's Case (1); Earl of Dunraven v. Llewellyn (2). Nor is there any evidence adduced to shew that the rights of all the freeholders in this manor are in point of fact identical. It has been decided in various cases, such as Mayor of York v. Pilkington (3), that a person claiming a single right against a number of persons, who resist that right under various titles, may file a bill making them all Defendants; but it has never been held that several co-Plaintiffs, with different titles, could join to establish a right against a single Defendant. For example, it was never held that the owners of three farms could join as co-Plaintiffs in establishing moduses, on behalf of their three farms, against the owner of the tithes. Bills on behalf of a class are only allowed in cases of necessity, where a denial of justice would otherwise be the result; but where a single Plaintiff can file a bill, there is no need to resort to such a decree. The right to file a representative bill may be tested in this way: if this bill were dismissed, would any freeholders be bound except the Plaintiffs? Would it not be open to any other freeholder to file another bill to establish the same rights? We say that it would—that you cannot bind an absent man by filing a bill on his behalf. The claim to take gravel and loam is clearly bad. A custom of this sort ought to have some limits, otherwise the freehold might be destroyed: Lady Wilson v. Willes (4); Clayton v. Corby (5). Here the claim is not even confined to taking gravel and loam for agricultural purposes. The Plaintiffs have not proved a title by prescription by giving evidence of immemorial user, nor have they done so under the Prescription Act; for in order to establish a title under that Act, there must be evidence of enjoyment without interruption for thirty years next before the commencement of the suit: 2 & 3 |