The Stourbridge Observer, Cradley Heath, Halesowen & District Chronicle.
Stourbridge, West Midlands, England, 1875-11-20 00:00:00

HALL, APPELLANT, v. NOTTINGHAM

ARj) OTHERS, RESPONDENTS"

In the Exchequer Division of the Supreme Court of Judica-
ture, the above cause has been heard, and which was a
special case stated for the opinion of the Court.
__ . _ .._

_
.
Mr. W. Masterman argued for the appellant; Mr. Bosan-
quet appeared for the respondents.

The case came up on appeal from the County Court
at Ludlow. It was there decided that a custom for
the inhabitants of the parish of Ashford Carbonell to
erect a Maypole on the appellant's field and dance
round and about the same, or otherwise enjoy any law-
ful and innocent recreation at any times in the year,
was good and lawful.
Mr. Masterman said the action was one of trespass.
He submitted the custom was not good. It was too
wide and calculated to deprive the appellant of all
benefit in her property. The Court ought not to ex-
tend the doctrines already laid down. It was true
since Charles IL's time the pastime of dancing at all
times had been held a reasonable custom.
,But in
" Milchamp v. Johnson" a custom to play any rural
sports and games was held bad, as too general and un-
certain, also unreasonable and illegal, as not specifying
what particular sports and games were intended to be
played. Here the custom claimed was too extensive,
and should not be stretched further in these days of
half -holyd ays.
The Lord Chief Baron: What is the name of the
piece? Does the extent of it appear?
Mr. Masterman : It is called the Maypole piece,
but I cannot tell your Lordship the extent. The
custom claimed would oust the freeholder of all her
rights, as the games claimed are unlimited and the
time unlimited.

The Lord Chief Baron: According to the respon-
dents' view, they might play cricket there day and
night all the year round.
Baron Amphlett : Or quoits and footbalL
Mr. Masterman : I also submit this custom is un-
tenable as being beyond all judicial control, following
the analogy of a prescription.
At the conclusion of Mr. Masterman's argument the
Court rose. _ _ _

On Monday the cause came on again, when Mr.
Bosanquet, for the respondents, said that the con-
tention of the appellant was that a piece of land
could not be so far dedicated as to be subject to the
right claimed at all times. That involved the denial,
practically, of the enjoyment of the rights on all village
greens. It was urged that there could not be a custom
so wide in alieno solo, that was at all, in a parish.
That body, being neither a " person " ner a " corpora-
tion," could have no freehold property. The interest
vested in somebody else, generally in the lord of the
manor or his grantee.
The Lord Chief Baron It has been held that a
custom may be unlimited as to time for all times and
seasons. But this custom may altogether prevent the
owner using the surface.
Mr. Bosanquet : That is so as to the surface, but in
Staffordshire or Shropshire the surface is of compara-
tively small value compared with the underlying soil.
The result of such a custom might be in some cases,
to take away all the right to use the be,
Baron Cleasby : The want of certainty is the great
difficulty in this case.
Mr. Bosanquet : Lord St. Leonards has expressly
distinguished village greens and playgrounds from pre-
scriptive rights. Blackstone has also defined the diffe-
rence between a custom or local usage and a presenp-
tion attached to a person. I admit that Lord St.
Leonard's remark was only a dictum; the decision of
the case was the other way. As to the reasonableness
of the case, there is nothing unreasonable that a piece
of ground should be dedicated for the general recrea-
tion of the public—that is, the parish. This het has
been found by the Judge.
Mr. Masterman, in reply: My learned friend
assumes this is a village green. In fact it is not one.
The freehold is in the plaintiff; it is part of glebe land
in an enclosed field. It has been regularly rated for
i
the poor, and tithe paid and commuted. It nno way
resembles waste of the manor or land open to the
public. It has been so since 1780.
The Lord Chief Baron: You cannot enter it from
all sides. It must be approached through gates or
some opening. I don't find the extent of the piece in
the case.
_ _

Mr. Masterman : lam informed it is just one acre,
my Lord.
The Lord Chief Baron: The custom, such as it is,
must be taken to have existed from time immemorial.
Mr. Masterman : It is ancient glebe.
Mr. Bosanquet : It might have been given with a
large extent of land as glebe since the time of Richard
I. It has been contested for years.
The Lord Chief Baron: The right exists in many
village greens, but I never heard of such a custom
being claimed over part of a field.
Mr. Bosanquet : The parish could not prevent the
owner from inclosing it so as to make it look like in-
closed land. _

Mr. Masterman : In " Mounsey v. Ismay " the cus-
tom upheld was limited to one day—viz., Ascension
Day. This custom is too wide, as it claims, in fact,
the right for the parish to play all games at all times.
The Lord Chief Baron said he had considerable
doubt in this ease, chiefly because to hold the custom
good would be to destroy the usufruct of the land.
The authorities were irreconeileable, and the Court
must decide between them. On the one hand, some
games and sports occupied every inch of the surface,
and the whole use would be destroyed, and there would
be no moment of time when the owner could enjoy or
make use of his land. On the other hand, it is so much
for the benefit of the inhabitants that they should have
a recreation ground that the injury to. the individual
was counterbalanced. He therefore adhered to the
authorities of "Abbott v. Weekly" and "Fitch v.
Rawlins." He was of opinion that the custom was
lawful.
Baron Cleasby concurred. A custom was something
which had the effect of a local law arising from the
consent of the inhabitants. But by the general law
it must be reasonable and certain. The authorities
seemed to him conclusive as to the reasonableness.
Nor was the mode of recreation really uncertain. Too
much precision was not to be expected as to what
exact sports were included in a right to recreation;
and the Court ought not to go in the direction of
limiting such rights.
Baron Amphlett was also of the same opinion. In-
dependently of the authorities, he thought the custom
good which by law must be reasonable and certain.
Here a piece of land had been appropriated to the recrea-
tion of the inhabitants, and though the user by the
owner were destroyed the custom was not necessarily
unreasonable on that account. To him it seeme.l
sufficiently certain. It was very essential in this
almost enclosed country that some space should be
reserved for lawful sports. He could not distinguish
this case from that of village greens. It might formerly
have been an open piece of ground which the owner
chose to enclose, but it had been subject to this custom.
Appeal dismissed, with costs.