Cambridge Chronicle 30 Mar 1839: Pemberton v Hawes retrial (part 1)

PEMBERTON v. HAWES. ——- (Special Jury.) This was an action for trespass brought by Col. F. C. Pemberton, of Trumpington Hall, near this town, against a man named Hawes, a boat-letter, who had a short time since hired a piece of land of the Corporation of Cambridge, at the back of the Queen’s Mill, on which he had erected a house, and carried on the business of boat-builder. Mr. BYLES opened the pleadings. He stated that the trespass complained of was the breaking a chain which Col. Pemberton had placed across the river to prevent persons navigating it on the Grantchester side of the mills, near the town. The defendant had pleaded first that he had not committed the trespass charged, and second that even if he had he was justified in so doing, the river being a navigable river for all the Queen’s subjects. Mr. ANDREWS stated the case to the jury. He said he should not dwell on the first plea of the defendant, because the evidence was so conclusive that he felt justified in passing it over. But the second plea required that he should call the attention of the jury particularly to two points — first, the state of the river; and secondly, the nature of the property on each side of it. With respect to the first, he must state, as all the jury had not had the opportunity of seeing it, that at the Grantchester end there was a mill directly across the stream, which completely prevented further navigation, but there was here also a branch stream, at the end of which was a set of gates to let off the waste water, at a place that was known even to this day as the old mill, which allowed to what was known by tradition, that formerly another mill stood there. Here, even at present, there could be no possibility of navigation, for there was a fall of at least six feet. Now, at the Cambridge end, the river within a quarter of a mile, branched off, one line of which, being perfectly straight, indicated that it was an artificial formation, and led to the conclusion that in the olden time there could have been no navigation there. Supposing it, however, to be a very ancient cut, it was terminated by a mill called the Newnham Mill, with a fall of several feet, and no boat could possibly pass from the Cambridge side without considerable manual exertion; and then it would have to be carried or dragged across a portion of a common field belonging to the Corporation of Cambridge. He begged them to keep in mind this latter fact, as he should again have to call their attention to it in another part of his address. The other branch was terminated by two mills, called the Queen’s Mill and the Bishop’s Mill. Here there could be no communication with the river on the Cambridge side, except by lifting the boats out of the water, and carrying or dragging them across another piece of the common, called Sheeps’ Green. There was also a fall here of several feet. He now came to the nature of the property on each side of the river. First, on the Trumpington side, there was Coe Fen, extending all the distance to Col. Pemberton’s land, all of which belonged to the Corporation of Cambridge. Then, all the way from that to the Grantchester termini belonged to Col. Pemberton. On the Grantchester side, the land belonged principally to Merton College, Oxford, to King’s and Corpus Christi colleges, Cambridge. Now, what the defendant would have to show was, that he either had the right by prescription, or had acquired it by a dedication. Now, if he claimed it by prescription, he would have to shew that from the time of legal memory, which was as far back as the reign of Richard the First, the public had navigated this part of the river. This he was assured he could not do, as, until within a very few years, he should show that such a thing was not attempted. If he claimed it by dedication, he would have to overcome the fact that the proprietors of the lands on each side, with the exception of the present plaintiff, were corporate bodies, who by an act of Queen Elizabeth could not alienate their property. Neither could the Corporation of Cambridge dedicate a right to carry or drag boats across any portion of Sheeps’ Green. Now, some show of a dedication might be attempted to be set up by evidence that persons of late years had gone up the river in pleasure boats without being objected to by Col. Pemberton. This he could easily account for by stating the circumstances which had occasioned this. Col. Pemberton had succeeded to this estate in 1801, and, with the exemption of the short time he was an Undergraduate in the University, had generally resided abroad. He had only paid occasional visits, of very short duration, to his estate from that time till 1837. Up to about that time he should show that the appearance of boats was of very rare occurrence, so much so that in the short visits of Col. Pemberton it was far from wonderful that he had not seen them, but as soon as he came to reside permanently at Trumpington, finding that the present defendant had commenced the business of a boat-letter, on the side of the mills towards Grantchester, he had taken measures to preserve his rights. He (Mr. A.) felt that the jury would consider Col. Pemberton had done right in this, for if the present defendant established his right, the property of the Colonel would be diminished in value to an incredible extent, besides which his domestic privacy would be greatly intruded on. In conclusion, he (Mr. A.) would remark that he had no doubt his learned friend would attempt to awaken their sympathies for the defendant, by telling then that he had embarked his all in his present undertaking; but he begged them to keep in remembrance that the establishment of the defendant was very recent, and that from almost the first Col. Pemberton had taken measures to vindicate his rights, so that what the defendant had done might be said to have been done with the knowledge of this action before his eyes. He trusted, however, his learned friend would abstain from exerting his eloquence on this point, and would allow the jury, as he was anxious to do, to deduce their verdict from the evidence offered them without their judgement being perverted by any oratorical efforts. Proof was then tendered of the commission of the trespass, but Mr. Kelly, on the part of his client, agreed to admit it. Mr. Kelly then addressed the jury for the defendant. He said to shorten the labours of the jury he had agreed to admit the trespass. He would now go into the question of the right to navigate this stream. Before he did this he would allude to the latter part of his learned friend (Mr. Andrew’s) address, wherein he hoped that no attempt would be made by him (Mr. Kelly) to enlist their sympathies for his client. This came but ill from his learned friend, after he had been attempting to awaken their sympathies for Col. Pemberton by calling their attention to the deterioration of the value of his property, and the inconveniences he would suffer from his privacy being disturbed. Now, if there was one thing more than another to which he wished to direct their attention it was to the fact that his client would be completely ruined by the loss of this action. By the assurance which continued use of the river for navigation gave him, he had been induced to pay out all he had in the world in his present undertaking, and without which he would be unable to earn himself a subsistence. He would not allude to that part of Mr. Andrew’s speech which inferred that because the river was closed at each end, it could not possibly be a navigable river. His learned friend would not have travelled far north or he would have met with many such instances, and in Ireland especially, there were many lakes to which a road came, and then there was a right of ferry across, in many lakes too there was an undoubted right of navigation. With respect to the proof of prescription, he would only say that it was perfectly unnecessary to prove it up to the time of what in the phraseology of the law was called “legal memory,” but all that was necessary was to show that a right had been used for a certain period, and then he had Mr. Baron Parke’s authority in the case of Jenkins and Hardy, to say that prescription was then inferred. That was, if a right was used by the public for a few years then it was supposed to have existed from the time of Richard the First. On the above case, it was also decided that use would prove prescription unless something was shewn to the contrary. With respect to the law of dedication, all that was often thought necessary to prove it was a knowledge of the use by the party for as little as five or six years. Now it was of little consequence whether the principal himself knew of the use or not, if his agents did, as was shewn in the case of the “King v. Parr.” And in this case it would be clear to them that Col. Pemberton or his agents looked very keenly after his rights of game and fishery, and they (the jury) would very reasonably infer that if the Colonel had any exclusive right to the river, this would have been looked after as narrowly. As to the “disabling statute” of Elizabeth precluding the idea of a dedication, he would only say that it would not allow the idea for a moment that the persons who had the administration of the affairs of Ecclesiastical Corporations could not give the public a right of way or navigation if they chose. Mr. Kelly then gave an outline of the evidence he should offer that not only millers, and gowramen had navigated the river for three quarters of a century, but that persons of every grade had navigated the river in all sorts of conveyances for that period. He should also shew that in leases of this very piece of land from 1616 to 1794 the stream abutting it, which was the one in question, had invariably been called the “common stream.” He should also shew that by a bye-law of the Corporation of Cambridge, it was ordered that the lessees of the mills should not stop the stream under a fine. In conclusion he would shew that the boats could be taken from one side of the mill to the other by a mere passage along a public-footway. A multitude of witnesses were then called who proved that for difference periods as far back as 70 years, they had seen pleasure boats navigating this stream at different times, all of which it appeared had been dragged out of the water on the Cambridge side and then put in on the other, with the exception of a boat belonging to the Rev. Mr. Hawkes, who lived at Grantchester; one belonging to Dr. Hardman, who lodged at Paradise; two belonging to undergraduates of the university, which were kept behind Newnham Mills for short periods; the millers’ boats which they used for cutting weeds and fishing; a barge belonging to Mr. Howard, the miller, which took corn to Grantchester mill, and brought back flour; and a boat belonging to Mr. Wheeler, who hired an osier holt of Colonel Pemberton. —Among the witnesses were the Rev. R. Jeffreys, Fellow of St. John’s, the Rev. Joseph Romilly, Registrar of the university, who had used the Grantchester side of the river many times without interruption. Henry Gunning, Esq., also deposed to the general fact of pleasure boats going up the river for many years, and to having seen two barges of materials in the mill dam, besides the miller’s barge, when the mill was undergoing repair about fifty years since. Several of the witnesses, in cross-examination, admitted that the boats when taken out of the river at one side of the mill to be put in on the other, were carried over a portion of the common called Sheeps’ Green. [The Court broke up at seven o’clock] THE PLAINTIFF’S CASE The evidence in support of that part of the plaintiff’s case which was to contradict the defendant’s plea that the river was navigable, was to the effect: (1) That it had not been used by the public; (2) To shew the origin of boats going behind the mills; (3) The objections which had been made; (4) The reasons why Col. Pemberton had not interfered as he now did sooner; and (5) That the defendant had not begun to build his house till after the trespass complained of had been committed. The evidence as to non-user was given by gentlemen who had many years since been members of the university, the tenants and servants of Col. Pemberton, and persons whose avocations led them to the sides of the river. The first class of witnesses principally were formerly fellows of King’s college, who availed themselves of their right of fishing on the Grantchester side. Many of them had been constant anglers there from 35 to 45 years since, and with two exceptions, which occurred about 1805 had never seen any boats but the millers’ and Col. Pemberton’s on the water. One of them, the Rev. Mr. Drury, one of the masters of Harrow, had been so fond of angling that he had sometimes neglected the lectures of his college to enjoy it. This, in answer, to a question put to him, he considered not doing as he would be done by now. The second class of witnesses to this point, the tenants and servants of Colonel Pemberton, who had been in the constant habit of seeing the river, had never seen boats come up from Cambridge, till within the last 14 or 15 years, and till very lately very casually after that time. The third class of witnesses consisted principally of two men, who when they were boys had kept cows on the commons and field adjacent, who put the commencement of boating within twenty years. Among these was a man whose father had taught swimming, and who always went with him, and he had never seen boats passing till within about the same time. The second division of the evidence was that of the persons who were the earliest living boat letters. This went to show that till within 14 or 15 years the boating was principally confined to below the old sluice called Fort St. George, that then only sailing vessels were seen above the sluice. About that time light boats became fashionable and they were taken behind the mills and greatly injured. These witnesses, however, in their cross-examinations admitted that boats might have been taken behind the mills without their knowledge earlier than this, and one of them remembered one instance in particular. The third part of the evidence was to the objections that had been made. One was a man named Butcher, who had been told he was trespassing when he went up the river swimming towards Colonel Pemberton’s lands. Another, named Rogers, had heard a former lessee of the Bishop’s mill tell some men they were trespassing when they were helping to get a boat from one side of his mill to the other. Another was Mr. Litchfield, fruiterer, of Cambridge, who when at school at Trumpington had heard the miller of Trumpington object to lend his barge to bring up some poles, which his master had purchased, and who was only induced at last to do so on condition that they came up secretly at night. The fourth division of the evidence was principally that of Mr. Pemberton, the cousin and agent of the Colonel, to shew that till 1835, the plaintiff had not resided on his estate, but had been generally abroad, or in Scotland or Ireland from the time he attained it, in 1801. Mr. Pemberton had not heard of boats going up till about 13 years since, and then as he was told they went up to take game on his cousin’s manor, he thought it sufficient to have them warned off the grounds. Evidence of general belief that the river was not navigable was tendered, but when the learned Judge gave his opinion that it was unnecessary as the other party had not produced any evidence of a contrary nature, it was not persisted in. The Court rose at 1/2 past six, and adjourned to this morning (Saturday).

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