The Times, Monday, Feb 24, 1868; p. 11; col. D
CARLISLE, FEB. 21.
(CIVIL COURT. - Before Mr. Justice LUSH.)
THE MAYOR, &c., OF CARLISLE, V. GRAHAM AND ANOTHER.
This is an action brought by the corporation of Carlisle to try their right to a
several fishery in a part of the river Eden, about four miles below Carlisle,
and which the defendants claim as lessees of Lord LONSDALE, who is the real
defendant in the action.
Mr. TEMPLE, Q.C., and Mr. KEMPLAY appeared for the plaintiffs; Mr. MANISTY,
Q.C., Mr. JONES, Q.C., and Mr. R. G. WILLIAMS for the defendants.
Mr. TEMPLE, in opening the case, traced the title of the corporation from the
5th of Henry III., by whom a charter was granted to the citizens of his city of
Carlisle. This charter expressly granted to them among other things a free
fishery (liberam piscariam) in the water of Eden, at a fee-farm rent of 60 l. a
year. This charter was confirmed from time to time, the rent being raised to 80
l. a year, but most materially by Edward IV., in the first year of his reign,
who, in grateful remembrance of the manner in which the citizens of Carlisle had
defended the city against Queen Margaret and the Prince of Wales, remitted for
ever 40 l., one half of the fee-farm rent payable to the King, for, among other
things, the King's fishery, and he further granted to the citizens the custody
of his fishery of Carlisle, otherwise called Sheriff's Nets, otherwise called
the Fishery of Frithnet, in the water of Eden. It appeared from an inspeximus
charter, granted in the year 1638 by Charles I., that nearly each succeeding
Sovereign had inspected and confirmed the old charters. From 1597 to 1651 the
corporation possess records of the receipt of rent for their fishery. In 1692
the corporation granted a lease of their fishery called King Garth to one
PATTINSON, with all pools, draughts, free boat, or boats, water banks, or
landing places, fishings, &c., for three years, at the rent of 26 l. 10s. a
year. About this time the river Eden, which made a great bend to the east, began
to flow along a gote or cut which was a narrow channel, almost quite dry, except
in times of flood, forming the chord of the arc, or bend of the river. This
channel or gote was entirely within the manor of Beaumont, which belonged to Sir
John LOWTHER. In consequence of the altered flow of the river, in 1693 an
agreement was made between the corporation and Sir John LOWTHER, by which Sir J.
LOWTHER granted them liberty to fix posts, stakes, &c., within his barony of
Burgh-by-the-Sands, and to make and maintain any weirs, fish garths, &c., and to
use and land boats and nets within the said barony for the using and more easy
and better management of the fishery in the river Eden belonging to the
corporation called King Garth, at the yearly rent of 5 l. From that time the
corporation rented the LOWTHER fisheries down to 1758, and let them with their
own fisheries to their various tenants. In 1758 disputes arose between Sir James
LOWTHER and the corporation in consequence of some interference on the part of
his lessee with the fisheries claimed by the corporation, and in 1760 they filed
a bill in Chancery against Sir James LOWTHER and his tenants, in which they
described the fishery claimed by them, and set up a right to have their fishery
in the new course of the river instead of and to as full an extent as they had
their fishery in the old course of the river. In that suit a commission was
issued to examine old witnesses, and a number of old witnesses were examined
upon interrogatories administered on behalf of the corporation, and
cross-interrogatories administered on behalf of Sir J. LOWTHER. These
depositions were read by Mr. TEMPLE, and the evidence of the witnesses as to
what they had observed themselves and had heard from old people, showed the user
and reputed boundaries of the corporation and other fisheries as far back as the
middle of the 17th century. No answer was put into this bill, and it did not
appear what became of the suit, but within two or three years, after the
corporation took Lord LONSDALE's fisheries until about 1794, when Lord LONSDALE
took the corporation fishery and paid rent for it down to the year 1841 or 1842,
and as alleged by the corporation for the King Garth Fishery.
THE MAYOR, &c., OF CARLISLE, V. GRAHAM AND ANOTHER. [cont.]
Mr. TEMPLE's opening occupied upwards of three hours, and at the end of it the
learned JUDGE suggested that the question in dispute appeared to be chiefly one
of law to be disposed of by the Court. There being, however, some questions of
fact about which the parties could not agree, Mr. TEMPLE put in a number of
documents, and called one witness and closed his case. It was then agreed that
his Lordship should direct a verdict as he might think fit after hearing all the
evidence, reserving any question for the opinion of the Court above, and that
the Court should be at liberty to draw inferences of fact. The jury was then
Mr. MANISTY opened his case, and after conceding that the coprporation once had
a fishery in the old course of the river, argued that they had no right to a
fishery in the new course, and showed, by the production of the receipts, that
from 1798 down to 1842 Lord LONSDALE had rented from the corporation their "free
boat fishery," and that during all that time the corporation had never assumed
to let the King Garth fishery, now claimed by them, and that it was not until
1866, after the present dispute had arisen, that the corporation assumed to let
a fishery such as was claimed in the action. The case was adjourned before Mr.
MANISTY had concluded his opening.
SATURDAY, FEB. 22.
Mr. MANISTY continued his address to the Judge this morning, tracing the
pedigree of the LOWTHER family from 1683, the date of the purchase by them of
the Barony of Burgh, to the present time, and produced various court rolls of
the barony, showing the various manors in the barony and the nature of the
tenure, and closed his case without calling any witnesses.
Mr. TEMPLE then called Mr. MOUNSEY to give evidence and produce documents in
reply, and the learned Judge, being asked to direct a verdict, directed a
verdict for the defendants, with leave to the plaintiffs to move to enter a
verdict for 40s.
Thus ended the great cause of the Assizes, which had been expected, from the
voluminous briefs delivered to counsel, to have occupied several days, but, in
consequence of the numerous admissions made on both sides, was shortened into
the compass of a day and a half.