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1835.

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Norfolk, built on a small piece of land lying between the high road and an old inclosure belonging to Lord Orford, which was inclosed by a person of the name of Lingfood, in the year 1806, mortgaged by him to the father of the lessor of the plaintiff in 1809, and one of the cottages built by him in the year 1806, and the other in 1815. The defendant, who is the lord of the manor, has possessed himself of these cottages, alleging that they were built on the waste of the manor. It is contended, on the part of the lessor of the plaintiff, that the land belonged to the Earl of Orford, being a small slip between the inclosed land of Lord Orford and the highway, on the general presumption that land so situated belongs to the owner of the inclosed land in front of which it is so situated. The cause has been twice tried the first time before Mr. Justice Littledale, when a verdict was found for the lessor of the plaintiff. The court of Common Pleas granted a new trial, on the rejection of evidence. It was tried a second time before Lord Lyndhurst, and a verdict found for the defendant: but a bill of exceptions was tendered to some of the evidence which his lordship received for the defendant. The case in the court of Common Pleas is reported in 7 Bing. 332, and 5 M. & P. 173.

For the purpose of making out the title of the defendant upon the first trial, these facts are reported in Bingham to have been established:-That the road was skirted on both sides by slips of green or waste land from these cottages, for several hundred yards, nearly up to a bridge where the old inclosure converged to the sides of the road, and the greens terminated in a point; that a few yards beyond the bridge the fences of the old inclosures receded again, and the road was again skirted by greens of the same description, which ultimately terminated in a large common; that, with the exception of the piece of land belonging to Lord Orford, between which and the high road the cottages in question were built, the old inclosed

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land on both sides of the road from the cottages in question to within a few yards of the bridge belonged to the defendant. The defendant, in order to support his claim, shewed various acts of ownership exercised by him from time to time on the greens or waste lands by the sides of the road from the cottages in question up to the bridge; and then proposed to shew similar acts of ownership on the greens and wastes beyond the bridge and in various other parts of the manor. The learned judge, however, refused to admit evidence of those acts beyond the bridge, the defendant being no further the owner of the adjoining inclosed lands: and conflicting evidence of acts of ownership over the spot in question by Lord Orford and those under whom the lessor of the plaintiff claimed, being adduced on the part of the latter, a verdict was found for him. The court of Common Pleas were of opinion that the evidence ought to have been received, and granted a new trial.

It is to be observed that the evidence rejected consisted of two parts—first, the acts done on slips of green on the road beyond the bridge, which is the continuation of the road on which the locus in quo was situated-secondly, the acts done in other parts of the manor.

The second trial took place before Lord Lyndhurst; and, upon that occasion, evidence upon both these heads was offered and received, and a bill of exceptions was tendered, which has been argued before Lord Denman, Mr. Justice Littledale, Mr. Baron Parke, Mr. Baron Bolland, Mr. Justice Patteson, Mr. Baron Gurney, and Mr. Justice Williams. The evidence consisted of grants or licenses to inclose, made by the defendant, the lord of the manor, at the manor court, to six different personsto Clarke, Bolton, and Gilbert, where the pieces of ground were described as situate in Long Row Road, which is the road before mentioned as beyond the bridge, and distant two miles from the locus in quo—three other grants, to

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Hunt, Harrison, and Spurden, in which there is no description of their locality; they are merely called waste land, and are situated within the manor. As to all the six, it was in evidence that they were lying between the land of other persons and the highway. It appears from the plan produced at the trial, which has been annexed to the bill of exceptions, that a space of sixty or seventy yards between the cottages in question and the bridge is occupied by houses, which are described as old houses. It is not stated in the evidence reported in this case, as on the first trial, that the road by the sides of which the slips are situated terminated in a large common. The question for our consideration is, whether all these grants of permission to inclose were admissible in evidence. These grants were, we apprehend, the acts of ownership which were offered in evidence on the first trial, and rejected, and for the rejection of which the court of Common Pleas granted the new trial; they being of opinion, as would seem from the report, that all of them ought to have been received. The ground upon which it has been contended by the counsel for the defendant that they are admissible in evidence, is, that there was an unity of ownership and an unity of character between the locus in quo and the several pieces of land which were comprised in those grants. That adjoining to the locus in quo an inclosure had been made by a person of the name of Start, on a slip in front of the defendant's own land, between that and the road, under a grant by the defendant as lord of the manor, that grant reserving a small rent, and the piece being therein called “ Pound Green.” That, in continuity (though not in unbroken contiguity, because the bridge and the old houses intervene) there are slips of green for a very considerable distance, more than two miles, upon various parts of which the lord of the manor has exercised acts of ownership; and that this affords strong presumption that the lord of the manor is the owner of all these slips of land. Further,

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that the three other pieces of land for the inclosure of which grants of licenses were made to Hunt, Harrison, and Spurden, being pieces of waste alleged to be lying between the lands of private individuals and the high road, there is in them an unity of character which will make these acts of ownership receivable in evidence. The judgment of the court of Common Pleas appears to authorize the reception of all these grants in evidence: but the opinion of the court seems to have been given upon the supposition that all the pieces of waste with respect to which evidence was given, lay on the sides of a road or roads terminating in a large common, which, upon this bill of exceptions we cannot assume. Upon the whole of the case, we think that there is a sufficient foundation laid to render the first three of the above-mentioned grants admissible, upon the ground that they are grants of parcels of one and the same waste or common lying on both sides of the road, although the continuity of the waste is interrupted for a short distance by the intervention of the houses by the sides of the road.

It then remains to be considered whether the other three grants, to Hunt, Harrison, and Spurden, were admissible; and we are of opinion that they are not, even conceding that they were grants of parts of the waste lying between a high road and the lands of private persons. All that these three grants shew, is, that, in some parts of this manor, the lord has exercised acts of owner. ship over pieces of land which are denominated waste; but there is no proof whatever where these pieces were situate: they might have been many miles from the spot in question, wholly unconnected with it-parcels of large wastes the soil of which was the undoubted property of the lord of the manor. The only unity of character between these parcels and the spot in dispute, is, that they lie within the same manor, and between private inclosures and a public road: but we think there is not a sufficient

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foundation to let in evidence of acts of ownership over one of such parcels as proof of title to others. If the lord has a right to one piece of waste land, it affords no inference, even the most remote, that he has a right to another in the same manor, although both may be similarly situated with respect to the highway. Assuming that all were originally the property of the same person as lord of the manor, which is all that the fact of their being in the same manor proves, no presumption arises, from his retaining one part in his hands, that he retained another; nor, if in one part of the manor the lord has dedicated a portion of the waste to the use of the public, and granted out the adjoining lands to private individuals, does it by any means follow, or does it raise any probability, that in another part he may not have granted the whole out to private individuals, and they afterwards dedicated part as a public road. But the case is very different with respect to those parcels which from their local situation may be deemed parts of one waste or common; acts of ownership in one part of the same field are evidence of title to the whole: and the like may be said of similar acts over part of one large waste or common.

Upon the whole, therefore, we are of opinion that the bill of exceptions must prevail, and that there must be a venire de novo.

Venire de novo.

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