the defendants, intending to injure the plaintiff, and to lessen the value of his said estate in the said close, whilst the said Thomas Vincent was possessed of the same as tenant as aforesaid, to wit, on the said 12th June, 1772, at Old Stratford aforesaid, did dig up a large quantity of the earth, soil, sand, and gravel in the said close, and converted the same to their own use, and made divers large pits, holes, and trenches there, and continued the same until the commencement of this action, whereby the said close of the plaintiff there is greatly injured, and his said estate lessened in value. -Last count. That the plaintiff, on the said 12th June, 1772, at Old Stratford aforesaid, was possessed of divers goods and chattels, to wit, 10,000 cart loads of earth, &c. as of his own property, and being so possessed, casually lost the same, which afterwards came to the hands of the defendants, who found the same, and have converted the same to their own use, to the plaintiff's damage of 500l. To which the defendants pleaded not guilty, and thereupon issue was joined. The cause came on to be tried at the assizes held for the county of Warwick, on the 24th day of July, 1773, when a verdict was found for the plaintiff on the first and second counts, damages 1d. each, costs, 40s.; and for the defendants, on the last count, subject to the opinion of the Court of King's Bench as to the verdict so found for the plaintiff on the first two counts, on the following case: It appeared in evidence, that the plaintiff is owner of the sole and separate fishery in the river Avon, in the place in question, and that his tenants have cut flags and osiers growing in the bed of the river, in a part of the said fishery, which river is there navigable, and the defendants are the proprietors of the navigation thereof. That about twelve months ago the defendants built a new wharf on their own ground, adjoining to the bed of the river in the 1774. PARTHERICHE 1774. PARTHERICHE against MASON place in question, to which wharf loaded barges could not come up, but at times when the river there was and another. higher than usual. That in order to make it practicable for such barges to approach the said wharf at all times, the defendants dug a new canal in the bed of the river there, which channel was 138 feet long, and in some places, 19, and in others, 40 feet wide, and from 8 to 12 inches deep, and led to the said wharf; and that they took away some of the gravel and soil dug thereout, and converted it to their own use; that the navigation of the river there might have been carried on, as well as usual, without this new channel, which was cut for the sake of approaching the said new wharf. That there is an ancient wharf not far from the said place; but that it is an advantage to the public, and the town of Stratford in particular, to have this new wharf, and the approach thereto, as the price or rate of wharfage would be diminished by having two wharfs instead of one. That since the passing of the act of the 24th George the 2d, c. 39, for the better regulating the navigation of the said river, another new wharf had been built by the side of the same river, at the distance of about twenty miles from the place in question, towards the river Severn, and a like channel cut to it, and no consideration for it was paid to the owner of the fishery in the last-mentioned place. That the plaintiff brought his action within six months after the facts in question were committed. The questions reserved for the opinion of the Court are, first, whether the bed and soil of the river Avon, in the place in question, being within a navigable part of the said river, as described in the said act of 24 George II, belong to the defendants, as proprietors of the navigation thereof, or to the plaintiff, as owner of the sole and separate fishery second, whether the defendants, in making the new channel in question, as proprietors 1774. of the said navigation, have acted within the powers and authority given them by the said act of parlia- PARTHERICHE ment, and are justified thereby. Wallace, for plaintiff. As to the first question, he contended, that the plaintiff, being owner of the several fishery, must prima facie be owner of the soil. Smith v. Kemp. Salk. 637. 4 Mod. 186. Carthew. 285, S.C. Bro. Tresp. pl. 426. These authorities shew that a several fishery implies a right of soil. As to the second question, whether the owners of the navigation have not exceeded their authority, he observed, that the object of the act was to settle the tonnage. The defendants defended themselves under the clause by which they were to clear and repair the river in the same manner as heretofore. This act was done to make a passage to a new wharf, belonging to the proprietors of the navigation, and was not an act within the meaning of the statute, Kenyon, contra. There is no reason why a person may not have a several fishery in alieno solo. If so, the fact should have been found, that plaintiff was owner of the soil. As to the second question, when persons are enabled to make a navigation, all incidental powers are given of making wharfs, &c. that may be necessary for more conveniently carrying it on. The defendants' acts in this instance were found, in the case, to be a benefit to the town. The restraint in the act of parliament, from making wharfs between Evesham and Harrington, seems to infer that the defendants might do it in other places. The act also gives the defend ant liberty to land goods, &c. at any wharfs, as shall be thought convenient. against MASON and another. SED PER CURIAM. Where a man has a several fishery, the presumption is, that he has the soil; that 1774. PARTHERICHE against MASON and another. presumption is conclusive, if not opposed. Here is a clear damage to the soil. The act gives no authority to the defendants to do what they have done. It only authorises to repair what the owners were formerly bound to do. Judgment for plaintiff. 1775. Mich. Term. A devise of lands to S. S. to hold the same unto S.S. and the heirs of their heirs for ever, chargeable with a legacy; but in case the said S. S. should die without leaving issue of his body, then a DEN on the Demise of WILLIAM GEERING against THIS HIS was an ejectment brought for the recovery of sixty acres of land, sixty acres of meadow, and sixty acres of pasture, with the appurtenances, in the parish of his body, and Denchworth, in the county of Berks, which William Geering, on the 24th June, 1774, demised to the plaintiff for five years, from the 25th March then last. And the cause came on to be tried at the last assizes at Abingdon, in the said county of Berks, when the plaintiff had a verdict, subject to the opinion of the Court on the following case: William Geering was seised in fee of the premises in question, and by his will of 28th November, 1738, devised the same in the following words : "I give and devise unto my grandson, Samuel Shenton, all that meadow ground, called Picked Mead, ly"ing and being in the parish of Denchworth, in the county of Berks, to hold unto the said Samuel Shenton, " and the heirs of his body, lawfully to be begotten, " and their heirs for ever; chargeable, nevertheless, "and charged with the payment of eight pounds a devise of the land unto W.S. to hold unto the said W. S. and his heirs for ever; also chargeable with such legacy; creates only an estate tail in S. S. with a vested remain der over. year unto my niece, Mary Stevenson the elder, dur"ing her natural life, to be paid her by quarterly pay(6 ments; but in case the said Samuel Shenton shall "die without leaving issue of his body, then I give "and devise the said meadow ground unto my nephew, "William Geering, son of Mr. William Geering, of 66 "Denchworth aforesaid, to hold unto the said William Geering the son, and his heirs for ever, chargeable as aforesaid; and also chargeable with, and subject "to the payment of one hundred pounds of lawful money of Great Britain unto my niece, Anne Beale, "within one year next after the said William Geering, or his heirs, shall be possessed of the said meadow "ground. All the rest and residue of my goods, chattels, real and personal estates whatsoever, after the 66 payments of debts, legacies, and funeral expences, I give, devise, and bequeath unto my grandson, "Samuel Shenton, his heirs, executors, administrators, "and assigns." The said William Geering, the testator, died in 1739. The said Samuel Shenton, the grandson, entered and died seised, leaving issue Samuel Shenton the younger, his only child, who also entered and died seised. Samuel Shenton, the person last seised, attained twenty-one, and died in 1768, having made his will, dated 23d April, 1767, and thereby devised the premises to his mother, the defendant Mary Shenton, and her heirs and assigns for ever, who entered, and is now in the possession thereof, under the said devise. The lessor of the plaintiff is the nephew of the testator, William Geering, and son of William Geering, of Denchworth, in Berkshire, mentioned in the will of the testator William Geering. The question for the opinion of the Court is, whether the lessor of the plaintiff hath a good title to recover the lands devised, and in the ejectment mentioned. Baldwin, for plaintiff. Where an estate tail is once given, the issue of the devisee shall take no more. By the words of the will Samuel Geering took only estate tail. King v. Melling, 1 Vent. 225. Langley v. Baldwin, cited Eq. Cases Ab. 292. pl. Doe ex dem. 16. 559. pl. 15. v. Laming, 2 Burrow. Repts. 1775. DEN on the Demise of GEERING against SHENTON, Widow. |