Northampton Mercury 11 Aug 1838: Pemberton v Hawes: Hawes found not guilty of trespass on River Cam
NORFOLK CIRCUITCAMBRIDGE, TUESDAY, JULY 31.
(Before Mr, Justice Park and a full Special Jury).
PEMBERTON v. HAWES.
This was an action of trespass, for cutting a chain, the property of the plaintiff.
The defendant pleaded that the chain was affixed across and obstructed a certain public and navigable highway called the river Cam, and that the defendant having occasion to pass along the highway in a boat, cut and broke the said chain in order to pass in and upon the same. The plaintiff, in his replication, denied that the river was a common and public navigable river; and that was the issue between the parties.
Messrs. Andrews and Byles appeared for the plaintiff, and Messrs. Kelly, Gunning, and Barker for the defendant.
This cause excited the utmost possible interest in this town and the university, and although the latter is pretty nearly empty at this time of the year, there was a goodly array of black gowns in the galleries of the court, the other parts of which were crowded to excess. The plaintiff is a colonel in the army and a gentleman of fortune residing at Trumpington, near this town, and the defendant is a humble letter of boats on a small island in the river Cam; where he has recently built a boat-house and a public house called the Robinson Crusoe. Since the amusement of boating has become a fashionable exercise amongst the students of this university, and has been patronized and encouraged by the heads and tutor of the colleges in general, the number of boats kept between the well-known mills at Newnham and Granchester has prodigiously increased. The depth of the water between Cambridge and Granchester, the softness and fertility of the scenery of its banks, and the rural beauties and attractions of the village of Granchester, have all combined to draw to this part of the river the “boating,” which was formerly in a very great degree confined to that por-tion of it which lies below the town. The plaintiff, who is lord of the manor of Trumpington, and the owner of the greater part of the property lying on one side of the river between Cambridge and Granchester, imagined that the public had not right to navigate their boats upon it, and for the pur-pose of putting a stop to the growing practice, he on the 5th of May, 1837, caused a chain to be placed across the stream. This obstruction becoming generally known, the defendant consulted Mr. Cannon, an active and intelligent attorney in Cambridge, who advised him to put himself in a boat and chop down the tree to which the chain was attached. The defendant forthwith complied with his advice, and having made a free passage for his boat, he passed along up the water; but, on his return, the plaintiff’s men had put up the chain at a different part of the stream, and a “twibill” being sent for, one William Gee, by the orders of the defendant, chopped the chain in two, and the liberated boats then passed on to Cambridge. This led to the present proceeding.
By the evidence of 32 witnesses called for the defendant (who, as the affirmative of the issue to be tried lay upon him, first called his witnesses), it appeared that the disputed water is that portion of the Cam which lies between the village of Granchester and the town of Cambridge, in length about two miles. It commences at “Granchester-mill,” and runs down to a point where the northern boundary of the village of Granchester meets the southern boundary of the town of Cambridge. At this point a portion of it branches off till it reaches a mill called “Newnham-mill,” whilst the main stream continues its course till it attains the ancient mill called “the King’s mill,” and situate just above the small bridges in Cambridge. These three mills stand completely across the river and interpose an effectual barrier to boats or aught else but the water; but the persons who are in boats are accustomed when they arrive at either of them, if they wish to pass above or below them, to haul their vessels out of the water and take them overland for a few yards, when they are again dropped into the water.
It appeared by the evidence called to-day, that as far back as living memory extends - namely, for more than 60 years, persons of all ranks have been accustomed to row up the river between Cambridge and Granchester at all times of the year, without the slightest molestation or hindrance. From the year 1806 until a recent period the miller at Granchester kept a large barge, in which he constantly sent to Cambridge great quantities of corn and flour. Parties of pleasure “gipsy boats,” fishing parties, and individuals, have, during the whole time to which the memory of living witnesses extends, been in the habit of using this part of the river as often as their inclination led them.
Several persons were called, who from living at or near the mills have frequently assisted in drawing the boats from the water there, for the purpose of enabling those who were in them to con-tinue their voyage up or down the stream, as the case may be. It was, moreover, shown that a fellow-commoner of Trinity, named Houlder, 25 years ago kept a boat at the back of Newnham-mill, in which he was in the constant habit of rowing up and down the disputed portion of the river without let or hindrance. When he left the university he sold his boat to the miller, who also used it between his mill and Granchester. At a later period also the Rev. Mr. Hawkes, the Vicar of Granchester, and the Hon. Locke King, brother of the present Lord Lovelace, kept boats above Newnham-mill, and rowed and fished up to Granchester, at their free will and pleasure. Not one of the witnesses called ever heard, from the earliest period to which their evidence extended, of any leave asked by the persons using the river, or of the slightest hindrance or interruption offered to them on the part of the plaintiff or his ancestors, or of any person whatever.
At the close of the defendant’s evidence the Court adjourned until tomorrow.
WEDNESDAY, AUGUST 1.
The evidence on the part of the plaintiff, in reply to the case made out on behalf of the public, was this morning given. No fewer than 16 witnesses were called, the general effect of whose testimony was, that whilst they admitted the free, unchecked, and general use of the river between Cambridge and Granchester for the last 17 or 18 years, they had not known pleasure-boats upon it before that time. Some of them did, indeed, remember the use of boats upon it for 22 or 23 years, but they were few in number, and those very seldom used. One John Cross, a boat-letter, whose establishment is below Cambridge, and whose boats consequently ply in an opposite direction to those of the defendant, and upon a portion of the river neither so commodious nor so popular as the part in dispute, admitted that for more than 30 years the young men would occasionally take his boats up the stream between Cambridge and Granchester, although not with his assent or privity. The same fact was also admitted by the sons of the two other deceased boat-builders. It appeared than the plaintiff took his degree at this university in the year 1800, and that for three years following he was occasionally resident in college. In 1803 he went into the army, in which he continued till 1816, when he went abroad till 1823. Since that period he has been constantly resident in this country, and very frequently at and near his property at Trumpington, and during the 15 years which have elapsed since 1823 it is that the use of the river between Cambridge and Granchester has been vigorously, constantly, and notoriously going on, with the knowledge and silent acquiescence of all parties who might be interested in preventing a right from growing up.
Mr. Kelly, for the defendant, replied upon this evidence and contended, with great confidence, that the defence was completely established by the very witnesses who had been called on behalf of the plaintiff. In the case of the “Rugby Charity v. Mereweather,” 11 East, 376, Lord Kenyon and the Court of King’s Bench decided that the owner of land which had been, with his knowledge, used by the public for only six years, had, by his acquiescence, dedicated the way to the public; and that, after that acquiescence, he could not prevent the free use and enjoyment of the way by any portion of the community. Were it, indeed, otherwise, his acquiescence would, as Lord Kenyon observed, be only “a trap for trespassers.” In this case, the defendant’s own witnesses had proved that for more than 30 years the public had, more or less, navigated their boats on this river, and for the last 16 with the plaintiff’s full knowledge; and he could not now be permitted to prevent the free use of it by all who might wish to enjoy it.
Mr. Andrews addressed jury in reply upon the whole case, minutely dissecting the vast body of evidence which had been given.
Mr. Justice Park then proceeded to sum up the evidence in this important inquiry. His Lordship read over the whole of the proofs, and left it to the jury to say whether those proofs satisfied them that this river was a common public navigable river for all the subjects of this realm.
The Jury retired for a short time, and then found a verdict for the defendant, thus established the right set up on behalf of the public.