The British Press; or, Morning Literary Advertiser.
London, England, 1826-06-06 00:00:00

THE KING v. THE COMMISMONEAS OF BERWICK TIER.

In the last Term a rule was obtained, calling upon the defendants
to show cause why a mandamus should not issue from this Court,
directed to them, commanding them to enter into the consideration
of a claim made by General Tyrwhitt for damage that was done to
his fisheries in the:river,Tweed by the defendants, in the proceedings
they bad taken under a local Act for the improvement of Berwick
harbour. It appeared upon that occasion, from the affidavits on
which the rule was obtained, that three vats, which were appurte.
nances to the fisheries of General Tyrwhit, and which he had
erected at considerable expense. had been indicted as nuisances, and
were abated by the Sheriliof Berwick-upon-Tweed under the usual
process issued for that purpose. The destruction of these vats
formed an item in the complainant's claim for compensation ; and
he also urged as another source of considerable loss, for which he
ought to be compensated, that the defendants had entered on and
deprived him of a part of hit landed estate on the banks of the
river, under the powers vested In them by the Act of Parliament
before mentioned. This was denied by the affidavits on the other
side, and it was stated that the land thus taken had been the site of
an ancient pier built in the reign of Elizabeth, anti called Elizabeth
Pier. _ . _

_
Mr. Tixtiar.r., on the part of the Commissioners, now showed
enuse a'ainst the rule, and contended that the defendants were not
responsible for the destruction of the vats, which had been pro-
nounced to be a nuisance by the verdict of a Jury, and had conse-
quently been demolished by the comretent legal authorities for that
purpose. As to the other supposed ground of complaint. it was denied,
anti the complainant's right to the land in question was negatived.
Mr. PAR KE. in support of the rule, contended that the language
of the Act of Parliament, under which the Commissioners acted,
was imperative on them to hear complaints, and to award compen-
sation for injuries done to persons, however trifling those injuries
might be ; though in this instance, the damage sustained by Gen.
Tyrwhitt was extremely great. As however in this case there
were allegations on one side, and a contradiction on the other, the
liearned Counsel was sure the Court would not, on a motion for a
mandamus, enter into the merits of this case. The mandamus
therefore ought to go, as there was ground for inquiry and exami.
nation, and as the terms of the Act were positive and direct.

The COURT, afler ashortdeliberat4n, expressed their opinion
that they could not interfere wi:h respect to any supposed damage
that had been done to a party by the abatement of a nuisance in
legal form. They were, however, of opinion that there was at
least ground for investigation and inquiry on the other subject of
complaint; and therefore, for that purpose, the rule for the man-
damus ought to be made absolute.
BUSINESS OF THE COURT.

In the course of the morning. the King's warrant, under his Sign
Manual. was read by Mr. I.F.BLANC, the Master of the Court, in
pursuance of 3 Geo. IV. cap. 114. authorizing two or three Judges
of this Court to sit between the different Terms, for the purpose
of hearing and determining business that ought to be taken in
Term, but which was postponed from the pressure of business.
COURT OF COMMON PLEAS, MONDAY, JUNE 3.

There was no business of any public interest here to-day. The
Court rows at twelve o'clock.

COURT OF EXCHEQUER, MONDAY, JUNE a.

DAVIES v. DAVIES.
This was a motion to chew cause why the ponsuit in this case
should not be set aside, and a new trial granted. Sir William Owen
hail been heard on a former day In support of the motion.
This was an action brought by the plaintiff, who held a farm in
Pembrokeshire under Mr. Wilson, against the defendant, the
reprrsentative imthistase of the Commissioners of Enclosures. for
injury done to his pspperty by the extinction of a water-course which
supplied him with viMer.
Mr. Wtt.t.tiarid. who appeared for the defendant, argued in
favour of the noMkilt. lie laid by the joint operation of the Enclo-
sure Acts 4l'arid-4, tiro. 111., the Commisalonera had a right to
"eitinguishrhearilfer-tblitse ht qutscitin,to impeirte the tillegeof the
common through which it paned, and which, without such an al.
tuition, must hare remained a barren bog. This power, bt

THE B

PRESS.

contended, was vested In the Commissioners by the Private Enclo-
sure Act, 49 Geo. 111., and though the General Act, 41 (leo.
111.
did not lo express terms give them the right, yet it did so by inipli-
cation. By the Private An It was required that a Mai) of the
place allotted by the Commissioners should be attached to
their award, and stand part of it. In the map which was
attached td,Ahe allotment granted to the plaintiff, no notice
whatever was taken of this water-course, and he considered
that, in fact, an extinction of the water-course in question,
under the Act. But the Commissionets had no intention to
deprive the plaintiff of the advantages he derived from the water-
course ; for, though the original water-course was extinguished, a
I new one was made, which they intended as a substitute for that
which had been destroyed. The Commissioners made an award, by
which they gave an allotment to Ale. Wilson, under whom the
plaintiff' holds, which he has enjoyed for 12 years. In the map at-
tached to that award, the old water-course was not delineated, which
rendered it altogether a nonentity. The question, therefore, In his
mind was, whether, after 12 years' enjoyment of' the allotment, the
plaintiff could now reject the award of the Commissioners.
Mr. Baron Ilur.Loce said, the question which he ought to
prove was that the Commissioners had a power to divert the water
from its general course. It would not be sufficient to chew that
they had power to make new ones.
Mr. WILLIAMS said they had the power by implication;
for If they had the power to make new water-courses, they could
easily make so many as entirely to extinguish the water-course in
question, and he saw no reason why they could not do that
honestly and openly, which they could have covertly done under
the power which they unquestionably possessed, of making any
number of water-courses they thought fit.
Sir WILLIAM OWEN said, that a serious injury had been done
to the plaintiff by the extinction of the water-course in question.
lne of the witnesses on the trial had sworn that without
that water-course the farm was not worth dwelling.on. Ile con-
tended the Commissioners had no right to divert the water in ques-
tion from its usual course, and if they had, they did not exercise it.
The award was made in 1812, end the cause of action did not arise
until within the last two years ; the water being allowed to flow
in its accustomed course until within that period, and therefore,
any argument founded on no appeal being made to the Quarter
Sessions was nugatory. The new water-conrie that had been con-
structed was dried up, and consequently usele's. He would move
the Court that the nonsuit be set aside, and a new trial granted.
Mr. Baron GB AIIAM said the old water-course had been a great
convenience to the farm. Suppose a mill had been fed by that
water-course; it was evident to such y case that its extinction
would be a great injury to the proprietor. The General Enclosure
Act gave the Commissioners no power to stop ancient water-courses,
and the terms of the private Act were not sufficiently clear to decide
upon, as had been argued. The Commissioners had done a great
act of injustice in extinguishing the old water-course, without
giving a flow of water to compensate the loss. lie did not con-
sider the acceptance of the allotment any bar to the rights of the
plaintiff; and as the old course had heen allowed to flow until
within the last two yeah, he could not have been guilty of any
!aches by not appealing to the Quarter Sessions.
The other Judges having coincided in this decision, the non-
suit was set aside and a new trial granted.