The Stourbridge Observer, Cradley Heath, Halesowen & District Chronicle.
Stourbridge, West Midlands, England, 1878-08-10 00:00:00

THE RIGHT OF "FREE WARREN."

The cause of "Loftus v. Barney" has been heard at the
Norfolk Assizes, and was a case of some interest to tho3e
who live in rural districts, as it raised a question as to the
right of lords of manors, by the ancient right of sporting
called "free warren," to shoot over lands formerly in their
manors.—The case is thus reported in The Times

The plaintiff is the owner and occupier of a house
and land in the parish of Bracon Ash, Norfolk, and the
defendant is rector of the parish, and also, as he alleged,
lord of the manor of Bracon Ash, which, in his view,
comprita d the whole ef the parish. It appeared that
come five years ago the rector was informed by his
father that he was entitled as lord of the manor,
by virtue of an alleged right of " free warren," to
shoot over all the lands in the manor or parish, and
ie. January last he asserted that right by going on cer-
tain parts of the plaintiff's land with a gamekeeper,
armed with guns, and actually shooting a rabbit
thereon. The rev. gentleman afterwards sent to the
occupier a notice in writing that the lands he occupied
were part of his manor and that he had the right of
shooting over the lands and a right of free warren;
and be afterwards sent another notice, more formal
and explicit, stating he had learnt from his father
that he was entitled to the right he claimed. Mr.
Loftus summoned the rector for the trespass, but as
there was a question of right, the magistrates declined
to deal with it, and dismissed the charge. The con-
sequence was that Mr. Loftus brought the present
action for trespass, in which the rev. defendant set up
as a defence that the lands were within the manor
of Bracon Ash, and that he was lord of the manor,
and that he and bis predeceesots in title had
from time immemorial enjoyed certain franchisee
and liberties, including warren or free warren, as
appertaining to the manor. The answer set up on the
part of the plaintiff was, even assuming there was a
manor, and that the lands were within the manor,
that, in 1833, a Mr. Berney conveyed the lands with
the manor to Miss Berney, who, in 1840, conveyed the
lands in question, without any reservation of the
right of shooting, to one Norris, who conveyed the
lands to one Butcher, who, in 1862, conveyed the
lands to the plaintiff; and the case for the plaintiff was
that even supposing the lands to have been within the
manor, and to have been subject to such a right, yet
by a conveyance of the lanes in fee simple without
any reservation of a right of shooting, the lands became
freed from any such right, supposing it had ever
existed.

Mr. Day, Q.C., and Mr. Blofield were for the
plaintiff • Sir Patrick Colquhoun, Q.C., and Mr.
Simms Reeve were for the defendant.
Mr. Day, in opening the case to the jury, said the
rev. defendant claimed a right to shoot in his client's
garden, and had actually shot a rabbit there, and he
claimed this extraordinary right by virtue of a right of
"free warren," and as lord of the manor entitled to such
right. But, even assuming that there was a manor
and the lands were within the manor, and that the
lord had become entitled to a right of free warren, the
conveyance of the land to a purchaser in fee simple
destroyed any such right and freed the lands from it
entirely. But it would be for the defendant to prove
any such right. All he had to do was to prove his
client's right to the land of which he was in occupation,
the trespasses being admitted..
It was accordingly proved that in 1862 the land was
conveyed absolutely to the plaintiff without any re-
servation of a right of shooting. In addition, the
plaintiff stated that he had shot over his lands, and
that at one time the defendant had asked him if he
would let the right of shooting over his land. It ap-
peared from the deeds that in 1855 the rev, defendant
came into possession of the estate under the will of
Miss Berney, whose title deeds contained the term
"royalties," but that in the conveyances to Norris
and Butcher, under whom the plaintiff claimed, that
word was omitted, though the land was conveyed with
all rights appertaining to the land.

Sir Patrick Colquhoun upon this contended that the
right of free warren, which he said was quite distinct
from the ownership of the land, and passed under the
term "royalties," was not passed to those under si hom
the plaintiff claimed, so that it still remained in the
defendant as lord of the manor.

The Lord Justice, however, held that by the con-
veyance to the plaintiff's predecessors in fee simple
the land passed without being subject to any such
right of shooting over it on the part of the former
owners.
Sir Patrick Colquhoun still urged that there was
nothing to pass to the plaintiff the right of free war-
ren, and therefore it still remained in the rector as
lord of the manor.

Mr. Day cited a case in the Common Pleas in the
time of Lord Chief Justice Tindal, in which a lord of
a manor having right of free warren conveyed the
land, "excepting and reserving all royalties to the
premises belonging or appertaining," and yet it was held
that these words did not reserve to the lord the right
of free warren—a multo fortiori in the present case in
which there was no reservation whatever.

Sir Patrick Colquhoun still contended that, as the
deeds conveying to the Barney family conveyed all
royalties, privileges, &c., and the deeds of the plaintiff
did not, the right of free warren remained in the lord
of the manor.

The Lord Justice, however, adhered to his opinion.
Sir Patrick Colquhoun then proposed to give evi-
dence to show that the alleged right existed in the
lord of the manor by prescription or long user.
Mr. Norris, son of the Mr. Norris to whom the
land in question was first conveyed by the Berney
family, stated that his father had not himself shot over
the lands, but he could not say whether the Berneys
had shot over it. He believed Captain Maillard had
shot over the land.

Captain Maillard, who had held some of the Ber-
neys' land from 1840 to 1852, stated that Miss Berney
gave him leave to shoot over the laud in question, and
he did so—that is, she gave him leave to shoot over
the manor, and he believed the manor was coterminous
with the parish.
Mr. Day objected altogether to such loose evidence
as that as to the boundaries of a manor, and
IThe Lord Justice rejected the evidence.
The witness went on to state that Butcher, who had
conveyed the land in question to plaintiff, had never
shot (,ver the land, but the witness had done so by
Miss Berney's leave.
In cross-examination, he said he supposed Butcher
(an auctioneer in Norwich) to have been the owner,
and Miss Burney was the owner of the manor.
Another witness was called to give similar evidence,
and he was asked whether he ever knew any one shoot
over the land except with the leave of the lord of the
manor; but this was objected to and disallowed.
A man who had for twenty years accompanied the
reverend defendant in his shooting stated that he had
always shot over the land in question, not only before
it came to Mr. Loftus, but afterwards. In cross-ex-
amination, however, he said that the last time he went
with the defendant to shoot was ten or fifteen years
ago, and he had only been over the land four or five
times.

A lady who used to stay at Bracon-lodge, stated that
Mr. Norris, when the owner of these lands never shot
ever them, and used to buy his game in Norwich.
The reverend defendant was then called, and pro-
duced his title-deeds, under which it appeared that
they conveyed all warrens, franchises, &c. He came
anintdo
sthhoertplryoperty (u
afterwards
nder
hMe
shot
ey's
tßoevrnerthewlialln) idsn 5,
of :he
manor, including those now belonging to Mr. Loftus,
and which then belonged to Mr. Norris, whose leave
he never asked.. Hid father who had conveyed to
Miss Berney always told him he was entitled as lord
of the manor to exercise this right. He had, in fact,
exercised it ever since he came into the estate, though
for nine years he had not actually exercised it prior to
the present year, as he had only exercised it for the
purpose of keeping up his right.
The Lord Justice observed that this evidence could
hardly suffice to set up a prescriptive right adverse to
the owner of the land, supposing that (as he had
already ruled) the conveyance of the land in 1840 had
freed it from all such rights of the former owner.
Assuming that to be so, such evidence as this *Quid
hardly suffice to set up an adverse right against the
owner. It only amounted to this—that the reverend
gentleman assumed that he had the right and periodi-
cally asserted it; but if he had it not, then of course
that would come to nothing. If, therefore, it was a
question of law for him to decide, he had no difficulty
in deciding it against the defendant; for if it was for
the jury, he directed them to find for the plaintiff.
Gentlemen (said the Lord Justice), I am of opinion
that the conveyance of the land was a conveyance of
the land free and unfettered by any right of sporting
in the Berneys—the former owners; and, as there is
no evidence of a prescriptive right, I direct you to find
for the plaintiff.
The jury accordingly .so found, the damages being
agreed at 40s. the action being only to try a right.
Verdict for the plaintiff for 40s.