Clowes v. Beck. ters patent, dated the 36 Hen. 8, and of divers mesne conveyances, the plaintiff, since 1803, became seised in fee of the manor of Caistor Bardolf, and of divers lands, part thereof, and particularly of a large tract of land forming the sea-shore between high and low-water mark, which was not only one of the appurtenances of the manor, but was also comprised in the grant of all the lands and rights of the manor, and of all the inheritance of his majesty King Henry the Eighth, in Castor St. Edmund, Castor St. Trinity, and other parishes therein mentioned, in the county of Norfolk. The plaintiff and his predecessors in title were alleged ever since the grant to have exercised the right of absolute ownership over the lands forming the sea-shore between high and low-water mark; which consisted of stones called shingle or beach, and of sand. Upon this shore the sea had for some time past been making great inroads, in consequence of which the plaintiff, by public notice affixed on the sea-shore, and by written notices served on the surveyors of highways for the parish of Caistor next Great Yarmouth, and by printed notices circulated amongst the parishioners, prohibited the removal of any stones or sand from the land forming the sea-shore within the manor, but notwithstanding, George Beck and Richard Septimus Clowes, the present surveyors of highways in the parish, did, in July 1850, cause large quantities of shingle to be removed and carted away, and applied in the repair of the highways of the parish. The bill then stated that there were banks of sand covered with grass, on the sea-shore, within the manor called "marrums," and that the defendants threatened, and intended to remove large quantities of shingle and sand, the consequence of which would be that the sea would encroach and overflow, absorb and destroy a large quantity of land part of the demesnes of the manor, upon which the mansionhouse stood, and that irreparable injury would be occasioned to the plaintiff and his property. In pursuance of a resolution of vestry, passed on the 21st of February, 1850, from which the plaintiff dissented, some of the parishioners placed on the road leading down to the beach the following notice: "Notice. The parishioners of the parish of Caistor are hereby requested to cart or carry away no stones, sand, gravel, or weeds from any part of the beach to the northward of the Beach Road, but to procure the same only from that part of the beach lying to the southward of the Beach Road, between high-water mark and low-water mark on the same." The bill then charged, that by reason of the plaintiff's ownership of the shingle and sand, and also by reason of the General Highways Act, 5 & 6 Will. 4, c. 50, it was unlawful to remove the shingle and sand, and it prayed for an interim order, and also for a perpetual injunction and decree in the words of the notice of motion. Mr. Roupell and Mr. Terrell, on behalf of the defendants. The inhabitants have always taken stones from the beach, and the surveyors of the highways have also taken them for mending the parish roads, and no claim has ever been set up on behalf of the lord of the Clowes v. Beck. manor. The plaintiff now founds his claim upon the grant, but the grant does not affect the right to the land between high and low-water mark; there are no words to include it—2 Rol. Abr. 184, 185. It is, therefore, vested in the crown, and an immemorial prescriptive right to take stones from the beach is vested in the inhabitants, and also in the surveyors. Assuming, therefore, that the grant did not include the beach, so as to pass it, the plaintiff claims it as appurtenant to the manor; franchises, however, are never included in a grant, without special terms applicable to them. A grant of the wreck of the sea, and of things which belong to the crown by prerogative, will not pass without express mention being made of them-2 Roll. Abr. 194. A grant of waste will not pass royal mines- The case of Alton Woods, 1 Rep. 46, b. Neither will a grant of all mines pass mines of gold or silver-2 Roll. Abr. 195, 4 Com. Dig. 306, (E,) 7. Fines on alienation, also, without license, do not pass by grant, unless mentioned2 Roll. Abr. 193: the beach, also, would not pass as land adjoining17 Vin. Abr. 133, tit. Prerog.' C, pl. 20, 21; express words were necessary to pass it. A right of several fishery gave no right in the soil- The Duke of Somerset v. Fogwell, 5 B. & C. 875; s. c. 8 Dowl. & Ry. 747; 5 Law J. Rep. K. B. 49. The plaintiff also claims the beach as appurtenant to the manor, but it cannot be appurtenant. Franchises, also, become void, if they are conveyed to the crown by a subject. They become re-annexed and extinguished; and liberty to have wreck as appendant to a manor shall be extinct by escheat to the king-17 Vin. Abr. 162, tit. ' Prerog.' X, c, pl. 2, 4, 5, the case of The Abbot of Strata Mercella, 9 Rep. 24, b. The King v. Capper, 5 Price, 217. But whatever grants were made, must be assumed to have returned to the crown, and to have become extinguished, as the manor of Caistor Bardolf came to the crown partly by forfeiture, and partly from being a portion of possessions which reverted to the crown. There was no doubt of an immemorial usage to take the stones and shingle, but the plaintiff had not mentioned it when he obtained the injunction. This was, therefore, a usage which would control the plaintiff's right, and be prescriptive in the inhabitants. The Highways Act, 5 & 6 Will. 4. c. 50, s. 52, also justified the taking the stones from the beach, provided no injury was done; and in this case the stones were deposited in fine weather on a part of the shore, and remained, usually, but a tide, and were lost if not removed. It was said that the beach was formed of stones and sand, and that fifty-five yards had been taken by the sea, but in fact it was no more than fifteen yards; they also said that increased damage would be done to the plaintiff's house, by removing the stones, but it did not appear that stones were taken near the house. The sea advanced and receded upon the coast, and was not affected by the stones or shingle upon the beach. That the grant of wreck of the sea could carry the soil of the coast was questioned in the case of The Brighton Beach, Dickens v. Shaw, Hall's Rights of the Crown, 263. The defendants, therefore, insist that there is no title in the plaintiff to the land between high and low-water mark, and they rely upon their prescriptive right and usage, and also upon the 5 & 6 Will. 4, c. 50. Clowes v. Beck. Mr. Turner and Mr. Craig contra, cited-Calmady v. Row, 6 Com. B. Rep. 861; The Duke of Beaufort v. the Mayor of Swansea, 3 Exch. Rep. 413; Spencer v. The London and Birmingham Railway Company, 8 Sim. 193; s. c. 7 Law J. Rep. (N. s.) Chanc. 281; Sampson v. Smith, 8 Sim. 272; s. c. 7 Law, J. Rep. (N. s.) Chanc. 260; Lockwood v. Wood, 6 Q. B. Rep. 31; s. c. 13 Law J. Rep. (N. s.) Q. B. 365; Blewett v. Tregonning, 3 Ad. & E. 554; s. c. 4 Law J. Rep. (N. s.) K. B. 223, 234; General Highways Act, 2 & 3 Ph. &. M. c. 8. Mr. Roupell replied. The MASTER OF THE ROLLS. In this case the defendants have taken away sand from the shore between high and low-water mark, and by that act have taken away from the plaintiff's house and land protection from the encroachment of the sea, and he has obtained an injunction upon affidavit to restrain them from so doing. The defendants have put in their answer, and now move to dissolve the injunc tion. They state that there is no right in the plaintiff to have that portion of the land which lies between high and low-water mark; but that if any right exists at all, it is a right on the part of the defendants to take stones; and they say they have a right to do it by custom, I think that was inferred from the words of the answer. They also claim a right by prescription, but that does not now seem persisted in; and they say that if they have not the right by custom, they have it under the provisions of the 5 & 6 Will. 4, c. 50. The plaintiff says, "I have clearly a right to the shore between high and low-water mark under a grant of the crown; but whether I have it or not, it is clear that you cannot maintain the claim you have set up; neither can you claim a right to do this under an act of parliament." Then, all these things are legal rights, and nothing else. It is plain, therefore, that the questions must of necessity be decided by a court of law, and that they cannot be decided here. The question for this court is what course it ought to pursue with reference to the injunction now sought to be dissolved? It must in different cases adopt different modes of proceeding. It may not think proper to continue the injunc tion for a day, unless the party consents to bring an action immediately. In other cases where it is continued, the court will say that the party may bring such action as he may be advised. There has been an argument on the effect of the grant; but had I the inclination I could not decide it. These cannot be regarded other than as doubtful questions, which must be decided at law. But what I have to consider is, which party is likely most to suffer by the continuance or the dissolution of the injunction. It appears to me most distinctly that the plaintiff is likely to suffer most materially from the conduct which he desires to restrain the defendants from pursuing. They are taking away the stones and shingle from a part of the coast on which the sea is continually encroaching. The distance is only one hundred yards from his house, and in one year that distance has diminished no less than fifty-five yards, and there are other adjoining parts, where, in the course of some years, there has been a loss of a very Barker v. Birch. considerable quantity of land. There is not before me much distinct evidence of what the effect is likely to be, but we must all see that stones may be taken away at a considerable distance so as to still divert the current in a manner most prejudicial to the estate; but that is not distinctly proved, nor is it within the jurisdiction of this court or within its duty to inquire, where it sees doubt in point of law, and mischief accruing from one party pursuing a course, which may in the highest degree prejudice the other, and does not see any thing of mischief to be incurred from restraining the other party. [Mr. Roupell. The defendants state explicitly that except upon the beach there is no other place where stones can be had for miles.] The MASTER OF THE ROLLS. Upon looking at this case in all its points, I feel bound to prevent mischief to the party likely to suffer most, and I shall, therefore, continue this injunction. I have had very considerable doubts whether I had not ought to compel the parties immediately to bring an action. As far as Mr. Clowes is concerned, I think he should do so; but I am afraid to say that he must do so. I will not, however, allow the existence of this suit to prevent his doing that; I, therefore, give him leave to commence such action as he may be advised for the purpose of establishing his right. The defendants will be entitled to make him go on with the suit, and may bring it to a hearing; and, with respect to the costs of this motion, they must be costs in the cause. [Lowe v. Govett, 3 B. & Ad. 863; s. c. 1 Law J. Rep. (N. s.) K. B. 224; Blundell v. Catterall, 5 B. & Ald. 268; Chad v. Tilsed, 2 Brod. & B. 403; s. c. 5 J. B. Moore, 185; Lopez v. Andrew, 5 Law J. Rep. K. B. 46; s. c. 3 Man. & Ry. 329, n. App. 474.] BARKER V. BIRCH.1 June 14, 1851. Witness, Examination of- Exceptions. Order for the examination of a witness who had been examined in the cause. Interrogatories for the examination of the witness settled by the master, who issued his certificate. Objections to the interrogatories ought to be made upon the depositions being taken, and not by exceptions to the master's report. AN order was made for the examination, in the master's office, of a witness who had been examined in the cause. Interrogatories were carried in before, and settled by, the master, who issued his certificate. To this certificate exceptions were filed, which now came on to be heard. 1 20 Law J. Rep. (N. s.) Chanc. 532. In re Farrant's Trust. Mr. K. Parker and Mr. Webb, for the exceptions, cited Chennel v. Martin. 4 Sim. 340. Mr. S. Smith contended that the exceptions were irregular. KNIGHT BRUCE, V. C. said, that the proper course was to wait until the depositions were taken, and then to object to their being read as evidence. The order must be to overrule the exceptions, without prejudice to the question how far the interrogatories ought to be answered, and how far the answer would be evidence. In re FARRANT'S TRUST.1 July 12, 1851. New Trustees-Term of Years-Reversioner. Demise of lands to trustees for 1000 years on certain trusts. Petition for the appointment of new trustees: Held, that the reversioner ought to be served with the petition. MRS. GARDNER, by a deed dated in 1841, demised certain hereditaments to two trustees, for the term of 1000 years, upon trust to raise a certain sum of money; and directed them to pay the interest to Mrs. Farrant for life, and after her death, to divide the principal among her children at twenty-one years or marriage. There was no power to appoint new trustees. Both trustees died. This was a petition presented, under the Trustee Act 1850, by Mrs. Farrant and her only child for the appointment of new trustees. Mr. Wickens, for the petition. KNIGHT BRUCE, V. C., asked if the reversioner had been served with the petition? Mr. Wickens said that it had not been considered necessary that he should be served. KNIGHT BRUCE, V. C., said that he should decline to make the order, unless with the consent of, or service of the petition on, the reversioner. 120 Law J. Rep. (N. s.) Chanc. 532. |