Mellor v Spateman

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Mellor v Spateman
King Charles II by John Michael Wright or studio.jpg
Charles II in Garter robes by John Michael Wright or studio, c. 1660–1665
Court Court of King's Bench
Decided1669
Citation(s)(1669) 1 Wm. Saund. 339 85 Eng. Rep. 495
Case opinions
Kelynge, C.J. [1]
Keywords
  • Common of pasture by prescription [2]
  • Disturbance of common [3]
  • Trespass [3] [4]
  • Levant and couchant [5]

  • Profit à prendre [6]
  • Profit of pasture [7]
  • Corporation has no kindred [8] [9]

Mellor v Spateman (1669) 1 Wm. Saund. 339, is an English common law trespass [note 1] case heard in the Court of King's Bench where it was held that a corporation may prescribe to have a common of pasture. [2] In relation to cattle levant and couchant within the town, a corporation may prescribe for common in gross, but not for common in gross without number. [10]

Contents

Background

The case concerned a claim of trespass by Henry Mellor against John Spateman [11] on a common field of some 20 acres in Derby, called Littlefield. [12] It was claimed that the defendant forcibly entered the close [note 2] and allowed horses, bulls, swine and sheep to consume and tread down the grass. [11]

The defendant pleaded not guilty to trespass with his cattle, but to the count of trespass with his two geldings and two mares, Mellor declared to the court that he was a burgess of the ancient borough of Derby at the time of the alleged trespass and for some time before, and due to an earlier change of name of the corporation to the name of mayor and burgesses, the defendant laid a prescription for common in the corporation. In particular, the defendant relied on said corporation being permitted to have other names, such as "bailiffs" and "burgesses", which extended the right to graze commonable cattle in the pasture at Littlefield. [11] A change of name, or alteration, did not mean that a corporation would necessarily lose its franchises. [13]

The question was raised as to whether cattle which did not belong to the corporation could feed on the common and consume the fruit of the land - in this case, the grass. [14] It had long been established that the right to have an unlimited number of livestock grazing in a pasture would usurp the land, so a cap on the number of animals which could be supported throughout the winter was imposed. [12]

Judgment

The court found for the plaintiff because the defendant's plea was deemed to be bad for having omitted the words "levant and couchant within the town". Kelynge, C.J., stated that the common had not been destroyed and the judgment against the defendant was solely as a result of the fault in the plea. [11]

Another outcome of the case was that a profit à prendre could only be created by grant or prescription. A distinction was drawn between an "easement", such as the custom of people drawing water from a well or spring, and a profit à prendre. Since an "easement" would not have been capable of giving rise to a profit à prendre, the right could only have been supported by a "grant in gross" or prescription. [6] For a profit à prendre to be created in common law by prescription, it is necessary to demonstrate to the court that the "profit" had been in continuous use since time immemorial. [15]

Kelynge, C.J., held that there could not be any common in gross without number. [1] For cattle to be deemed levant and couchant in the town, there could not be "any common in gross without number" [10] and the court felt that the plea should not have omitted the wording "levant et couchant within the town". [16]

So in the case of Mellor v Spateman, 1 Saund. 343, where the Corporation of Derby claim common by prescription, and though the inheritance of the common be in the body politic, yet the particular members enjoy the fruit and benefit of it, and put in their own cattle to feed on the common, and not the cattle belonging to the corporation; ...

Lord Holt CJ, Ashby v White (1703) [17]

As part of the judgment, the King's Bench recorded that: "The plaintiff must not only allege that he has a right of common for cattle levant and couchant, but must also prove it, by shewing himself in possession of some land, whereon the cattle may be levant and couchant." [5] Levancy and couchancy was taken as the right of common for commonable cattle, where the possession of such land rested on it being capable of sustaining the 'commoned' livestock throughout the winter. [18] The right of common had to be regulated by levancy and couchancy within the town, otherwise the corporation would in effect 'surcharge the common'. [4]

Notes

  1. ↑ Rather than a prima facie case of trespass to land, it is more a case by a commoner for disturbance. [3]
  2. ↑ "Close", old English term for an estate.

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References

  1. 1 2 Williams, John; Saunders, Edmund (1871). Notes to Saunders' Reports: By Serjeant Williams. Vol. 1. Stevens. p. 630. Retrieved 29 August 2021. And Kelynge, C. J., said positively, that there cannot be any common in gross without number ((5), post, 633).
  2. 1 2 Barton v The Church Commissioners for England [2008] EWHC 3091 at para. 46, [2008] EWHC 3091 (Ch)(2008)
  3. 1 2 3 Sergeant, Thomas; M'Kean Pettit, Thomas, eds. (1839). Reports of Cases Argued and Determined in the English Courts of Common Law. Vol. 33. H. C. Carey & Lea. p. 246. LCCN   44037217 – via Indiana University. ...In trespass, a plea of common negatives the trespass prima facie; but the gist of the disturbance of common is the excess.
  4. 1 2 Petersdorff, Charles; Hammond, E. (1830). A Practical and Elementary Abridgment of the Cases Argued and Determined in the Courts of King's Bench, Common Pleas, Exchequer, and at Nisi Prius... Vol. 5. W. R. H Treadway, and Gould & Banks. p. 416. LCCN   08036426. In trespass the defendant pleaded that the mayor and burgesses of the corporation of D___ had common for all their commonable cattle in a certain field. The Court gave judgment that the plea was bad because it was not said that the cattle were levant et couchant within the town; and Kelyng, C. J. who, on a former day, had intimated his opinion that if this right were not regulated by levancy and couchancy, within the town, the corporation would surcharge the common, said positively that there could not be any common in gross without number.
  5. 1 2 Williams, John; Saunders, Edmund (1871). Notes to Saunders' Reports: By Serjeant Williams. Vol. 1. Stevens. p. 628.
  6. 1 2 "Prescriptive Right of Public and of Freehold Inhabitants to Fish in Private Waters". Harvard Law Review. 25 (3): 280–82. January 1912. doi:10.2307/1324915. JSTOR   1324915.
  7. ↑ Phillips, Mary; Judith-Anne, MacKenzie (2014). Textbook on Land Law. United Kingdom: Oxford University Press. p. 504. ISBN   9780199685639 . Retrieved 24 August 2021.
  8. ↑ Wilson, Thomas E. (1938). "Labor Law: Liability of Labor Union to Member for Modification of Collective Agreement Negotiated with Employer". Michigan Law Review. 36 (8): 1395–397. doi:10.2307/1282037. JSTOR   1282037. Like the corporation, the state has no kindred. See Mellor v. Spateman, I Wms. Saund. 343, 85 Eng. Rep. 495 (1670).
  9. ↑ Kilbourne, James H. (1938). "Jurors - Disqualification for Relationship to Parties - Who are Parties". Michigan Law Review. 36: 1391–1395. doi:10.2307/1282036. JSTOR   1282036. Mellor v. Spateman, I Wms. Saund. 343 at 345, 85 Eng. Rep. 495 (1670), where the judge points out "that the natural persons members of a corporation ... are not strangers to the corporation, but are the parties interested in all the revenues and privileges of the corporation of which they are members. And therefore, if a corporation bring an action for anything which they claim in their corporate capacity, it is a ground for principal challenge to a juror that he is of affinity to any member of the corporation, though the corporation itself cannot have any kindred," and cites Coke, Littleton, 14th ed., 157a (1791).
  10. 1 2 Selwyn, William (1838). An Abridgment of the Law of Nisi Prius. J. and W.T. Clarke. p. 424. LCCN   35028939 . Retrieved 29 August 2021. A corporation may prescribe for common in gross, for cattle levant and couchant within the town, but not for common in gross sans nombre.
  11. 1 2 3 4 Saunders, E.; Williams, J. (1807). The Reports of the Most Learned Sir Edmund Saunders, Knt. ...: Of Several Pleadings and Cases in the Court of King's Bench, in the Time of the Reign of ... King Charles the Second [1666-1672] With Three Tables. Great Britain: P. Byrne, Fry and Kammerer, printers. LCCN   18007219 – via University of Chicago. John Spateman late of Derby in the said county gent. was attached to answer Henry Mellor gent. of a plea, wherefore with force and arms he broke and entered the close of the said Henry, called Littlefield, at Derby aforesaid...
  12. 1 2 Williams, John; Saunders, Edmund (1871). Notes to Saunders' Reports: By Serjeant Williams. Vol. 1. Stevens. p. 612.
  13. ↑ Lloyd, Thomas, ed. (1788). Proceedings and Debates of the General Assembly of Pennsylvania. Vol. 3. Pennsylvania General Assembly. p. 61 – via University of Chicago Library. As to the retaining rights of common and other rights — He mentioned the case of Mellor v. Spateman, in I Saund. 343. Where it was agreed "that a corporation, by the change or alteration of the name of the corporation, does not lose their franchises". Old rights must remain: It would be very unreasonable, if it should be otherwise.
  14. ↑ Wharton, Thomas I. (1844). The Law Library New Series, Vol. XXVII. Vol. 43. John S. Littell. p. 203. Retrieved 26 August 2021.
  15. ↑ Law, Jonathan; Martin, Elizabeth A., eds. (2018). "Prescription". A Dictionary of Law. Oxford Paperback Reference (Ninth ed.). Oxford, United Kingdom: Oxford University Press. p. 521. ISBN   9780198802525. LCCN   2017961528. OCLC   1043882876.
  16. ↑ Burn, Edward Hector; Cartwright, John (2011). Cheshire and Burn's Modern Law of Real Property. Oxford University Press. p. 706. ISBN   9780199593408. LCCN   2011933693 . Retrieved 29 August 2021. And the court did not dislike any part of the plea, but only it was not said in the plea, "levant et couchant within the town".
  17. ↑ Ashby v White ,92ER 126370, 137-139 2 Ld Raym 938, 953-958(Court of King's Bench1703).
  18. ↑ Williams, John; Saunders, Edmund (1871). Notes to Saunders' Reports: By Serjeant Williams. Vol. 1. Stevens. p. 629. Retrieved 29 August 2021. By levancy and couchancy is meant the possession of such land as will keep the cattle claimed to be commoned during the winter... ...and an allegation of a right of common for all commonable cattle "levant and couchant", is proved by a grant of "reasonable common of "pasture"". 6 M. & S. 47. Doidge v. Carpenter. Roscoe on Evidence 258, 5th ed.
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