The Stourbridge Observer, Cradley Heath, Halesowen & District Chronicle.
Stourbridge, West Midlands, England, 1874-11-14 00:00:00

THE EPPING FOREST ENCLOSURE.
OF SEWEILS_ OF. ME CITY 01

LONDON V. OLASSIr

The hearing of this suit, known es the Epping Fortst ease,
Which has occupied a great part of the time 1 the Court
since the 59th of Jane last, was concluded In the Roils
Court ou Tuesday, In favour of the planddis.—The
follow-
luj report of the case is from The Times:—
The question involved in the suit was the validity of
the numerous enclosures, amounting to nearly 3,000
acres, made or sanctioned by the lords of the manors in
the Forest during the 20 years previous to the tiling of the
bill, in May, 1871. The relief now asked by the plaintiffs
was an injunction to restrain the defendants other
than the Crown from (1) enclosing any part of the
waste now unenclosed, (2) building upon any part of the
waste enclosed since August, ISSI, or carrying away
or destroying any loam or soil of the waste enclosed
since that date, or the herbage growing thereon, (3)
building upon any part of the unenclosed, or carrying
away or destroying the loam or soil thereof or the her-
bage growing thereon, or otherwise interfering with the
rights of the plaintiffs or the other owners and occu-
piers ,4 lands and tenements within the forest. The
plaintiffs also asked for a declaration that they are en-
titled to an injunction (the injunction itself being
waived) to restrain the defendants other than the
Crown from permitting&to remain enclosed or
built upon any of the waste lands other than
lands winch, at the tiling of the bill, were actually
oovered with buildings, or actually enclosed or
used 38 the gardens or curtilages of buildings, or
lands actually enclosed upwards of twenty years before
the tiling of the bill; with an inquiry what waste lands
of the forest in the possession of the defendants are
enclosed or built upon, other than and except 38 afi ve-
said ; and liberty to apply for injunctions in respect
of the above-mentioned declaration of right. Such is
the decree asked for at the liar to-clay [Tuesday.] but
the decree will not be finally settled until an early
day, when the cause will be in the paper to be, as
it is technically called, "spoken to upon the
minutes" of the decree.

The plaintiffs sued as owners and, as to part, oc-
copiers of a farm at Little Ilford, just within the
boundaries of the forest, which they acquired some
years ago for a burying ground. The suit was, it need
hardly be mentioned, a representative one—i e., it
purported to be brought on behalf of the owners and
occupiers generally of lands and tenements within
the forest. In order to succeed, it was incumbent on
them to satisfy the Court, as they have now WlC-
ceetled in doing, that such owners and occupiers have
from time immemorial enjoyed, as appendant or
appurtenant to their respective tenements, commons
of pasture for commonable beasts—i.e., horses and
neat cattle—over the waste of the forest. It TM
field on demurrer in March, 1072. that such a right
might exist by virtue of the forest laws, and was suffi-
ciently pleaded; and the result of the twenty-two days
which this cause has occupied in bearing has been to
satisfy the Court that the right in question does exist as
founded on user, with the necessary consequence of
precluding further enclosures of the waste. The nature
of the various defences will appear from the judgment.
It will be observed that the plaintiffs do not seek to
disturb enclosures made upwards •f 20 years before
the filing of the bill, if, indeed, they could do so con-
sistently with the Chancery doctrines as to acquiescence
and state demands, and that they waive their right as
to lands which, during the last twenty years, have been
actually covered with buildings or enclosed and use! as
the gardens of buildings. It doss not at present appear
whether they will make any concession to persons who
have laid out money on permanent improvement of
enclosed waste, as suggested by the Court the previous
day.
Mr. Manisty, Q.C. Mr. Joshua Williams Q.C.,
Mr. Fry, Q.C., and Mr. W. It. Fisher appeared for
the plaintiffs; Mr. Southgate, Q.C., Mr. Henry
Mattheive, Q.C., Mr. Nalder, Mr. Cowie, Mr. Chap-
man Baer, Mr. Montague Cookson, Mr. Kekewich,
Mr. Cecil Ruasell, Mr. W. F. Robinson, Mr. J. T.
Humphry, Mr. T. C. Wright, Mr. Freeling, Mr.
Dickins, and Mr. Rigby for the lords of the manors;
Mr. Langworthy for a gentleman selected to represent
the owners of lands alleged to be illegally enclosed;
sad the Attorney-General and Mr. W. W. Kerslake
for the Crown.
At the sitting of the Court this [Tuesday] morning
the Attorney-General stated that he should take no
part in the argument, and that the Crown would pay
its own costs of suit.

.The junior counsel were then heard seriatim. Mr.
Chapman Barber, for the Lord of the Manor of West
Ham, disclaimed at the bar, and was dismissed with
costs, to be paid by the plaintiffs.
At the conclusion of the arguments for the defence,

The Master of the Rolls, without calling for a replv,
proceeded to deliver judgment. The case, he said,
had occupied a long time, but not by any means too
long, considering the enormous mass of materials to be
dealt with. An enormous sum of money must have
been expended in getting up the case, when the outlay,
he felt convinced, of a comparatively small sum would
have furnished the Court with all the materials it
needed for arriving at a conclusion. The issue was,
to his mind, a very simple one, and the nature of the
proof required was a very simple one, the proofs being
solely evidence of long user. In fact, the plaintiffs'
cane was in his opinion one of extreme simplicity.
The forest of Essex, comprising Epping and Hainault
Forests, and extending originally over some 60,000
acres, contained a great waste. Whether this waste
was originally perfectly continuous was not clear; but
his Honour inagined that it was once continuous. At
any rate the waste of Epping was continuous, whether
or not the waste of the now disofforested forest of
Hainhault was connected with it. The great waste of
Epping once contained some 4,000 acres. There were
also detached portions of waste, the larger of which, if
not all of them, wereoriginally connected with the great
waste. The plaintiff's case was that the owners and oc-
cupiers of land within the forest were entitled to corn-
mob of pasture for commonable beasts over the great
waste, describing it as common appurtenant to their
lands, qualified by the forest laws as to the fence months,
and subject to the Sovereign's right of feeding deer.
Subject to this last-mentioned right the claim was an
ordinary claim of common. Such claim had, of coarse,
to be made out in the ordinary way, and this the
plaintiffs had done by calling a great number of wit-
nesses. These witnesses had proved that there was a
division of the tract of country called the forest into ,
parishes, and that each parish possessed a forest officer
called a reeve, chosen by the inhabitants, and sworn
In at the Forest Court. This reeve's duty was to
mark the beasts which were allowed to graze on the
waste. There was a reeve for every parish or
sub-divieion of a parish. The mark was a letter with
a crown, with which the reeve marked every beast
brpught to him for the purpose before being turned
out. One of the great contests bad been where
the beast, when marked was turned out. His con-
aluaion was that the beast AM turned out wherever
the owner pleased, anywhere in the parish, or pretty
well anywhere in the neighbourhood. Occasionally
people drove their cattle to a distance, with the
object of finding better feed outside their own parish.
Besides the evidence of living persona as to this, a series
of records had been put in, showing the right of owners
and occupiers to turn out on the waste of the forest,
which warn treated as an entire thing so far as common-
able rights were concerned. This thing was everywhere
called the forest waste, or by a similar appellation. No
p ation of it was ever called the waste of a parish, nor
warn there a trace of such a thing as a parish common.
In short, it was one indivisible thing—the forest waste.
If it had been true, as the defendants suggested, that
the right to turn lout was confined to the ambit of
the pariah, there would be some evidence of it. But
there was no trace of such evidence. The reeves im-
pounded cattle for straying in lanes or enclosed land, or
for not being marked, but never for being turned out
outside the parish of their owners. If the plaintiffs
proved, as they had proved, that all people throughout
the forest did turn out outside their respective parishes,
that was enough to establish the right of common. The
defendants said, in their answers, that they believed
" . .

that there was 'in old times a reeve of eac'h manor,
by whom the cattle were marked, so as to avoid sur- ,
charging the manor, and they claimed the right,
either under the statute of Merton or with the con- ,
sent of the homage, to enclose the waste. The
eubstemee of this defence was that the common was,
se to speak, manorial common, and the Lords of the
Manors had the right to enclose in spite of the
plaintiffs. But when the defendants' witnesses came
to be cross-examined, it became apparent that the
right of turning out was not confined to the particular
manor, and so the defence broke down in this respect,
And in support of the contention that they had the
right to enclose' they made out no more than this—
that they had the right to enclose small slips
of • the waste ; and so this part of the de-
fence was else abandoned. Then, when the case
same to be argued after the vacation, one of the
defences put forward was that assuming the
right of common to be established, still it could be de-
feated by showing that it did not accord with the right
elaimed by the bill. It was argued that it could be
shown from ancient documents, perambulations, and so
forth, that the right wan not a right over the whole
waste, lot over go much thereof only as belonged to the
King. His Honour had read the (1, cuments through and
through, and could find nothing to support this view,
All the documents spoke in effect of the waste of the
forest, not distinguishing between the King's soil and
the soil of other lords. This disposed of that argil-
scant. Then it was argued that the extent of the
. . .

...
forest varied from time to time, and you could not
from user presume a grant of a right over lands of I
variable extent. This led him to ask the question, did
the extent of the forest vary' There was no evidence I
before him of it having varied .luring the period of ,
legal memory; and an Act passed during the first
Sessioe of the Long Parliament, which enacted, not
that ouch and ouch should be the boundaries of the
forest for the future, but that the boundaries should
have been such and such from all time, and annulled
all perambulations, etc., to the contrary, precluded
him from inquiring whether the boundaries had ever
been different from the boundaries at the present
day. Then it hail been cold that these rights
existed only so long as the Forest Laws were
in force, and ceased when the lands affected by them
were disforested on the sale of them by the Crown
under the Act of George IV. ; but it WM a sufficient
answer to this argument that there were no
Words in she Act to affect the rights of commoners, and
thige_riglita could not be affected by the transfer by the
Vrown to third parties of its forestal rights. Another
argument woo that the right must lie preimmed to be a
right of common appurtenant quit the parish, and com-
mon of vicinage qua the rest of the forest. But M-
id-tough the tight had sometimes been claimed in that
jet the difficulty in the way of proving the right
to be common of vicinage was insuperable. Common
of vicinage was where two Ville having common
Intermixed intercommon with each other ; but
the right here claimed wanted all the characteristics
of this. Then, could not be common of vicinage
between boors than two not,
; whereas, here there
were 20 parishes inasconimoning, and in common of
vicinage the commoner could only turn out on his own
common, and was restricted from turning out more
beasts than his own common would maintain. Look-
ing at all the circithistancen, it could not he common
viciaage. or anything else than common appurtenant.
As to the right claimed by the lords to approve against
the oucunumira, to, must observe that the enclosures
were small in extent, though numerous, before 1800,
and were not of a class to afford any evidence of the
existence of the right. It was only since Boulcott and

Winruill, in 1809, and, indeed, within the last few
years for the iniot part, that the wholesale enclosures
had been made which occasioned the suit. He had now
to consider the question of costs. Sound justice re-
quired that, as a general rule, the unsuccessful parties
should pay the riots. He found no special ground
for departing from the rule in the present instance.
What some of the defendants had done was to take
other people's property from them without their con-
sent and appropriate it to themselves. It would be
borne in mind that they would retain some part of
these acquisitions under the exception in the proposed
decree. They had also endeavoured to support their
title by a large mass of evidence, which must be
wholly discredited, and he could not but make them
responsible for the acts of their agents in putting in
evidence which, with greater care, they would have
themselves rejected. He was bound, therefore, to
give the costs of the suit against all the defendants
except Mr. Chapman Barber's client and the Crown.
The case would be put in the paper on an early day to
be spoken to on minutes.