[List-Cumbria] Carlisle Journal, 03 Sep 1814 - Cumberland Assizes (10)

Fri Oct 23 18:05:25 UTC 2020

Saturday 03 Sep 1814   (p. 4, col. 1-5)

CUMBERLAND ASSIZES. 

----- 

NISI PRIUS. 

[continued] 

SHAW v. SPARKS AND ANOTHER, AND SHAW v. HETHERINGTON AND ANOTHER. 

These two actions were brought to recover damages for presumed trespasses in going through the ground of one WATTS (the real
plaintiff), to a wood which the township of Great Clifton claimed as common to them. 

Mr. R. WATTS, on being examined, said he was son of the owner of the wood in question; and discharged SPARKS, and also HETHERINGTON,
from going through his ground to this wood, when proceeding thither with horses and carts. They told him that they had a right to
cut wood, in Acre-Gill; and, if they had a right to the wood, they had a right to a road to take it away. 

Mary KENDAL, aged 76 years, deposed that she was born at Clifton, and lived there till she was 37 years old: her father farmed
Maiden Field; never heard any person had a right to go through that estate to cut wood in Acre-Gill; never saw any person go that
way to the wood; knew SPARKS, the defendant, but never saw him go that way to the wood. 

-- MONTEATH, aged 68 years, knew Bow-Flatts; was frequently in it three times a day, but never observed or heard of any person going
that way to the wood. 

Mrs. LOSH was born at Clifton; knew the land that SPARKS farmed, but never knew him or his father to go through Bow-Flatts to get
wood. 

John SANDERSON, aged 42 years, stated that his father farmed under Mrs. WATTS. He knew Bow-Flatts;-knew also Acre Gill wood, the
road to which was by Bank-top;-has a farm of his own in Clifton, but never went, nor heard of any person go by, or having a right to
go by, Bow Flatts to the wood. 

SHAW, the farmer, hedged Bow-Flatts 7 or 8 years ago; never saw a cart-track until 6 or 7 years since; SHAW went that way himself,
and WATTS had gone that way: that part on which carts went had never been ploughed. 

Mary THOMPSON, James PARVING, and Jane SHAW, all gave similar evidence.-The latter was sister to the plaintiff-had known the
premises for 20 years, and saw the place in dispute almost every day, and never knew any person, except their own family, go over
Bow-Flatts to the wood:-remembered one NORMAN, two years ago, attempting to go that way, and being prevented by her father. 

In defence, the Counsel lamented that two actions should have been brought on this case, and said he would call proof of the road to
the wood, and the common right of it. 

The first evidence produced on this side was Joseph SIM, aged 69, who had lived in Clifton since he was five or six years old, and
knew SHAW's ground. His (witness's) father was SHAW's servant for four or five years, who had  a house and a small field in the
township. He remembered SHAW sending witness to cut wood at the Bank, and directing him to go by the turnpike: he accordingly went
with a horse and cart over Bow-Flatts, and returned the same way;-went several times to Acre-Gill, and never knew any cart road
thither except the one by Bow-Flatts. When he was 10 years old SHAW told him to go to Common-bank, and said it was common to all the
township;-never had wood brought away from it any other way,-that was the old road and there was no other, and had heard many old
people say so.-On cross-examination he said that he never saw any person but SHAW cut and take away wood; was once examined on this
subject at an arbitration 19 years ago, but was not then sworn; witness then told Mr. FLETCHER that he had orders from his master to
go either way: the dispute at that time related to cutting wood, and not the right of cart-road, which subject was not agitated. 

Peter NORMAN went to live at Clifton 30 years ago;-farmed an estate under Mr. TICKLE, of Workington, for 17 years;-got wood in
Acre-Gill and Bow-Flatts; had directions to cut wood for his landlord and take it away in a cart, which he did; had gone every year
to the wood with a cart, for 17 years successively; witness had four sons, who had also gone with the carts to the wood, and always
by Bow-Flatts. SHAW never said any thing to him for so doing. 

Isaac THOMPSON was sworn. The evidence said that he sold a tenement he had in the township, half a year ago, which was of customary
tenure, and had not subscribed to the defence of this action. This evidence was not admitted. 

Mary KENDAL, aged 80 years, was born in Great Clifton, and knew Common-Bank, which had always been used in common by the township,
who, when they cut wood, went through Bow-Flatts, in carts, without interruption; nor had she ever heard of any-this was fifty years
ago;-her nephew was a subscriber to defend this action;-she lived great part of her time with her father and mother on their own
land at Clifton. On her cross-examination, she said that she had a cart there (upon the premises) since John SHAW went to live on
this farm, and never asked him any questions; had been there within 49 years. Other questions was put by plaintiff's counsel, when
she told the Court, "I have told you all I know, and you'll excuse me saying any more." 

Joseph PITT, aged 45 years, said he was no subscriber to this action;-had lived in Great Clifton 30 years, and was employed 28 years
ago to cut wood in Common-Bank, by his father, who always got wood there when wanted, every year during the 17 years he lived with
him, and was never disturbed; he further stated he had seen other Clifton tenants do the same, in the spring time, in order to make
or repair fences. 

Peter ROBINSON lived at Clifton 25 years ago; remembered being sent to the wood, when he went through Bow-Flatts; had also assisted
other tenants to cut wood: he knew of no other cart-road except that by Bow-Flatts. Mr. BOWNESS, Lord Lonsdale's steward, sent
witness to Common-Bank 30 years ago to cut wood for his colliery; saw John NORMAN cut wood two years ago, as also one SCRUGMERE 20
years ago, on which occasion he never heard of any dispute about the wood. 

John FLETCHER deposed that he was one of the arbitrators in the dispute which was in 1795. 

The Judge said, it was admitted that the defendants had a right to cut and use the wood, but the matter in question was relative to
the right of bringing it through the plaintiff's field: and if they had a right of wood, it was fit that they should have a road to
it. The plaintiff was nonsuited, and the Judge recommended the dispute to be settled by arbitration. 

[to be continued] 

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