APPENDIX. SELECT ADJUDGED CASES. BLUNDELL v. CATTERALL. (5 B. & Ald. R. 268; S. C. 7 Eng. C. Law R. 91.) TRESPASS, for breaking and entering the plaintiff's close, (describing it, first, as a close called the Sea-Shore, within the manor of Great Crosby; secondly, as a close between the high-water mark and the low-water mark of the river Mersey, in Great Crosby, in the county of Lancaster;) and with feet in walking, and with the feet of horses, and with the wheels of bathing machines, carts, and other carriages, passing over, tearing up, damaging the sand, gravel, and soil of the said close. The defendant pleaded, as to the trespasses committed on the close called the Sea-Shore, and on that between the high and low-water mark, a public right of way on foot, and with cattle, carts, and carriages; and secondly, as to the same trespasses, that all the liege subjects of our lord the king, had been used and accustomed to have and enjoy, and of right ought to have had and enjoyed, and still of right ought to have and enjoy the right and liberty of bathing in the sea from time to time, being over and upon the whole or any part of, or adjoining to, the said close, in which, &c., at all seasonable and convenient times, for their health and recreation, and for that purpose, of going and returning, passing, and repassing into, through, over, and along the said close, in which, &c. on foot, and with their servants, and with carriages and bathing ma chines, and horses drawing the same to the sea and back again; and of staying in and upon the close a necessary and convenient time for the purposes of bathing as aforesaid; And thirdly, as to part of those trespasses, a right of bathing and of passing on foot only. The plaintiff took issue on these pleas; and also newly assigned that the defendant committed the trespasses on other occasions, and for other purposes than those in the pleas mentioned, and out of the highway in the first set of pleas mentioned. Issue thereon. At the trial, at the last Lancaster assizes, before Bayley J., a verdict was found for the defendant on the first set of pleas; and for the plaintiff on the new assignment, and on all the other pleas, subject to the opinion of the Court on a special case. The plaintiff was the lord of the manor of Great Crosby, which is bounded on the west by the river Mersey, an arm of the sea. As lord of the manor, he was the owner of the shore, and had the exclusive right of fishing thereon with stake nets. The defendant was the servant at an hotel, erected in 1815, upon land in Great Crosby, fronting the shore, and bounded by the high water mark of the river Mersey, the proprietors of which kept bathing machines for the use of persons resorting thither, who were driven by the defendant, in machines, across the shore into the sea, for the purpose of bathing, and the defendant received a sum of money from the individuals so bathing, for the use of the machines, and for his service and assistance. No bathing machines were ever used upon the shore in Great Crosby, before the establishment of this hotel, but it had been the custom for the public to cross it on foot, for the purpose of bathing. There was a common highway for carriages along the shore, and it was proved, that various articles for market were occasionally carted across the shore, although the more common mode of conveyance for such things was by a canal, made about forty years ago. The defendant contended for a common law right for all the king's subjects to bathe on the sea-shore, and to pass over it for that purpose, on foot, and with horses and carriages. The case was argued in last Easter term. |