Legal Case – Thomas Simpson to Nicholas Walton – 14 Sep 1759

CASE

[Added at top left:] Mr Thomas Simpsons Case concerning Alston Moore Intakes or Enclosures 18 June 1759 Sent us, and Sent the Board 14 Sept. 1759



      The Manor of Aldston Moor in Cumberland consisted of several Demesne lands, a few Freehold Tenants, a great number of Customary Tenements held by the Tenants thereof as Customary Estates of Inheritance descendable from Ancestor to Heir according to the Custom of the Manor by payment of certain Antient Rents yearly commonly called Customary Rents and of Fines on change of Lord by Death called general Fines and on Change of Tenant by Death or Alienation called dropping Fines, and of very extensive  Wastes on which both the Freehold and Customary Tenants used to have Common of Pasture for all Cattle levant and couchant on their respective Lands, and Common of Turbary for Turf to be consumed in their Respective Houses as appurtenant to their respective Estates.

      It is most probable that each Tenant had originally a Right of Common [next 4 words underlined] on all the Wastes belonging to the Manor, but ever since any Man can remember, the Tenants [Tenements written above Tenants] have been divided into different Quarters and Divisions, each Tenant has had and taken his Common of Pasture and Turbary upon a particular Part or Tract of the Waste which lay nearest adjoyning or most convenient for his Tenements AND the Tenants keep amongst them Rolls called Drift Rolls which describe the particular Parts or Divisions of the Commons or Wastes on which the Cattle belonging to each Tenement ought to be depastured, and the Way or Road they ought to be driven thither -  It is supposed that all the Wastes and Commons together are more than sufficient to carry or support in Summer, all the cattle the Produce of all the inclosed Grounds can subsist in Winter, but some Quarters or Divisions of the Tenants pretend that the Common or Waste within their particular Drift or Divisions, is scarce sufficient for the maintenance in Summer of the cattle winter’d withn such Quarters or Divisions.  It is supposed that all the Tenants of Common Right are intitled to Common of Pasture and Turbary in and upon all the Wastes of the Manor generally And that the Allotment or Appropriation of particular part of the Common to particular Quarters or  Tenements was originally made by the Tenants only for preventing Disputes amongst themselves, without any Concurrence of their Lord, but a great many years ago there have been Amerciaments in the Lords Courts upon Tenants for interfering in their Neighbours Drifts most probably founded on some old ByLaws which seem to imply the Lords Consent to those Regulations.                    



Tempere Que Elizabeth

      Sir Thomas Hilton seized of this Manor Tempere  Due  Elizabeth having agreed with the Tenants to abolish the Customary Tenure, granted to each Customary Tenant a Lease for Twenty one years of the Customary Tenement at the Antient yearly Customary Rent formerly paid for it [space left] Soon after the Death of Sir Thomas Hylton which happened before the Expiration of said Leases Henry Hylton his Son and Heir enter’d into an Agreement with the Tenants to grant to each Tenant a Lease of the Tenement he then possessed for One Thousand Years reserving a small Rent (supposed to be the old Customary Rent) to be paid yearly, and Twenty Times the amount of that Rent to be paid every twenty one years as a running Fine or Grassom.

      And in pursuance of such agreement by Indentures dated 1st September 1611 between said Henry Hylton of one part and the Tenant of the other reciting the former Lease for Twenty one Years granted by Sir Thomas Hylton which would determine in 1616 the said Henry Hylton for the Consideration therein mentioned did demise grant and to farm let unto AB (the Tenant) all that Messuage and Tenement called N…. being of the yearly Rent of Ten Shillings scituate etc. and now in the Tenure and Occupation of the said AB or his Assigns And all Houses, Buildings, Meadows, Feedings, Grounds, Inclosures, Pastures, Common of [next 2 words underlined] Pasture & Turbary, Ways Waters and all other Easements Profits and Commodities to the said Messuage or Tenement and all other the Premises belonging or in anywise appertaining or thereof accepted reputed or taken to be part or parcel or used and occupied as part or parcel thereof, together with together with Houseboot and Hedgeboot to be taken at the sight of the Officer there for the Time being so often and at all times when need shall require .  And as it hath been used and accustomed to be spent or used in or upon the said Messuage or Tenement and other the Premises To Hold from the 1st May 1615 for 1000 years then next yielding and paying the said Rent of 10s yearly and a Fine or Grassom of £10 every 21 years by equal payments at Two Days mentioned.

      It has been usual for all the Lords from Time to Time since the Commencement of these Leases upon proper Application to permit or give Leave by parol to the Tenants to inclose small parcels of the Waste adjoining to their Houses and to improve the same, the Tenants paying to the Lord small annual Rents in proportion to the Quantity of Commons taken up and Fines or Grassoms every 21 Years in proportion to such Rents as for their antient Tenements, which has been a very great Advantage to the Tenants as well as the Lords, and contribute greatly to the general Improvement of the Country.

      This Manor by several Conveyances and Descents became the estate of the late Earl of Derwentwater, And by the Attainder of him and his brother Charles Radcliffe being forfeited was by the Statute of 22nd of his present Majesty vested in the Commissioners of Greenwich Hospital for the benefit of that Hospital

      The Stewards of Chief Agents for the Hospital have from Time to Time [next 5 words underlined] within these 20 years last given Leave to several of the Persons interested under these long Leases to inclose small pieces of the Wastes of the Manor adjoining to their Antient Tenements such Tenants paying therefore small yearly Rents as usual which Inclosures have been made accordingly And others of these Tenants pretending that some of these Improvements commonly called Intacks are turned to Meadow and the Owners enabled to keep more Cattle upon their Tenements than heretofore whereby the Rights of Common of the other Commoners is prejudiced , openly in the [next 2 words underlined] Day Time have pulled down several of these Inclosures and threatened to pull down all others erected within 20 years last which will occasion very great Confusion in the Manor.   

      It is more than probable that there is really a considerable Surplusage of Common within this Manor , but the Difficulty of proving such a Surplusage and the Tenants having a [next 3 words underlined] Right of Turbary seems to make it impracticable for the Lords to rest much upon that Point.

      Therefore whether in case any of the Owners of the new Inclosures so pulled down, should bring an Action of Trespass against any of the Persons engaged in demolishing the Hedges , who claim only under these long Leases (as the Right of Common originally appurtenant to those Tenements whilst Customary Extinguished on acceptance of their Lease) the Def.ts must not found their Right of Common and consequently to pull down their Neighbours Hedges on the Grant in the Lease, and be obliged to set forth and declare their Titles to the Tenements to which they claim their Right of Common as appurtenant from the original Lessees , or if such Def.ts in order to avoid the Difficulty which will attend such a Deduction, should justify as <Servants> and by the Command of some of the Antient Freeholders will such Command be traversable? Or can such Defts justify in an Action of Trespass upon their bare possession without entering into the Title to their Leasehold Tenements and without prescribing to Common of Pasture etc?  And if not safe for the Commoner to proceed by way of Action, can they, or the Lords by any suit in Equity, or by any other and what means, put a stop to the Destruction of these Improvements which not only advance the Profits of the Manor but are a real Improvement and Advantage to the whole Country.