Right of Property in the River Exe. - Edward
Jenkins, John Bass, and John Ellis, were brought up on remand charged with
having illegally trespassed on "spire" beds situate in the river Exe,
between Topsham and Exminster, and appropriating "spires". The case was
deferred from last week for the production of evidence.
It will, no doubt, be recollected that this case has been brought before the Bench several
times previously and in some cases convictions followed. Other parties
having continued to appropriate the "spires" prosecutions were maintained.
On the present occasion Mr Gidley appeared for the complainant, Mr Baker,
a tenant of S.T. Kekewitch, Esq., M.P., and Mr Toby for the defendants,
labourers, of Topsham. Mr Gidley produced a handbill in which the "spire"
beds were offered for sale on the 25th March, 1858, and also the conveyance
of the same, showing it had been purchased by Mr Kekewitch for £430. He
stated the property was formerly considered to be in the parish of Exminster.
Mr Gidley then contended that the right set up to it last week by Mr Toby
could not be maintained in law, and he cited several similar cases to show
that Mr Toby's arguments were untenable.
A mass of evidence was adduced from the oldest inhabitants of Exminster
and occupiers of the property showing that it was in the parish of Exminster,
and that the right to cut the "spires" was reserved to Mr Kekewitch or his
tenants. Mr Toby submitted to the Bench that they had no jurisdiction, and
quoted the law to prove that if the matter of right was doubtful that fact
alone was sufficient to stay the jurisdiction. He contended that the land
was the property of the crown: that it was a portion of a navigable river;
and that the right to cut the "spires" had not been called into question
during the past twenty or thirty years. He cited the case of Miles v.
Rose and another, tried at Taunton, to show that the flow and reflux
of a river was prima facie evidence of a navigable river; and stated
that vessels did at times pass up and down over the very beds in dispute.
He then entered into an historical account in which he stated that as far
back as 1290 ships used to come up with their merchandise and discharge at
the Exeter Quay, but the navigation was stopped at that date by a weir being
thrown across the river. This weir was subsequently destroyed, but in 1315
or 1316 Countess and James' weirs were thrown across the river in
consequence of a dispute with the Devon family and the Mayor of Exeter about
fish.
Mr Toby further contended that as the tide flowed and ebbed in the
portion of the river in which the "spire" beds were, those beds formed part
of a navigable river and consequently were public property. He called
witnesses, all of whom were aged men, of Topsham, who had cut the "spire"
beds; and had perambulated the beds as part of the Topsham bounds. These
witnesses also proved that the beds were surrounded with water and vessels
could at the present time go all round them at high tide. Mr Toby urged that
this circumstance established the beds public property.
Mr Gidley replied urging, that a person might have a right by virtue of
some tenement, but no such right had been proved. If the beds were, as Mr
Toby said, the property of the crown then that fact would still constitute
the defendants trespassers. Property might at all times be under water but
nevertheless it just as much belonged to certain manors. The Bench retired,
and on their return into court the Chairman (Mr Sanders) said the defendants
must have had a suspicion that they were doing wrong and, therefore, they
fined Jenkins and Bass 10s. each, and the expenses, and dismissed Ellis, who
had not been proved to have cut any "spires," and who went away when told he
was trespassing. |
