COMMON OF PASTURE IN THE NEW FOREST. Lymington County Bench, April 13th, 1901. POLICE v. PLUMBLEY.

Author: Lymington: Printed by Chas. T. King.
Description: Report of the proceedings against - 'MARTHA PLUMBLEY, of Shirley Holmes, was summoned for allowing two cows and a heifer stray upon the highway in the Parish of Boldre, "such highway not passing over any Common, or waste, or unenclosed ground over which you had a right of pasture."' Magistrates present were Mr. VF Dent (Chairman), Mr EH Pember KC, Mr D Jones, Col Harman, Col Clinton, Mr WI Whitaker, Mr EP King and Mr WJC Moens. Mr Charles Lamport of Southampton prosecuted on behalf of the Police and Mr GEW Mortimer of Romsey, defended. Mr. Lamport said he appeared on behalf of the Chief Constable to lay the facts. Mr. Moens said as a Commoner he was interested and therefore could not sit; he was reminded by Mr. Mortimer that he was also there on subpoena and must not sit. Mr. Lamport cited the Highway Act of 1864 and as such the magistrates had jurisdiction; he said that the case was a simple charge of cattle straying at a place where the traffic was heavy to which they were a danger. He stated that the place where the cattle were found was waste ground and not part of the Forest. Mr. Mortimer stated that the New Forest was entirely exempted by its own Act of Parliament and that it was for him to prove that this road came witin the special exception. Police Constable Collard gave his evidence and Mr. Mortimer cross-examined him. The Road Surveyor to the Rural District Council of Lymington, Mr Samuel Crittall, stated he knew the road, it was within his jurisdiction and when questioned confirmed he had made up the water table by taking away surface soil by the side of the road. The case for the prosecution concluded. Mr. Mortimer then raised his objections to the magistrates' jurisdiction: that all or most of them were Commoners and should not sit and try a case affecting Common rights. Mr. Lamport objected that this should have been said at the outset, Mr. Mortimer replied that the Chairman's ruling on the last occasion when he had been told that he couild not raise any question of law until it was his chance to speak. Mr. Pember and Mr. Mortimer then disputed the Statutes of the Commoner; the former stating that the Register of Commoners named 'any person entitled to rights of Common in or over the Forest on his making aspplication to have his name so inserted'; the latter stating that it was a Register of Commoners entitled to vote. Mr. Pember stated that his not choosing to exercise his rights as a Commoner, as a landowner under the Schedule of the Act of 1877, left him free to exercise his magisterial functions; although in fact he had 'executed a deed and handed over the land to [his] son for his use'. Mr. Pember then asked, if in fact, all the magistrates were Commoners, 'what is the tribunal for this case?' Mr. Mortimer replied 'The Verderers'. Mr. Pember queried this as 'no-one can be a Verderer who is not an owner of property'. Mr. Mortimer quoted the Act of 1877 which gave the Verderers the power to try all these things. Mr. Pember asked if the Act referred entirely to the unenclosed parts of the Forest, Mr. Mortimer said 'No' because 'the Crown might present anything' and 'Forest law was laid down in the Charter and charged to the Court of Swainmote'. The magistrates overruled the objection by referring to the 1864 Act. Mr. Mortimer's second objection was that the 'title of the Crown could not be interfered with' and as the 'claim was under the Crown your jurisdiction is gone'. Mr. Mortimer said that 'waste by the sides of the road was excluded from the power of the Action of 1864' and that even the 'metalled part of the road belongs to the Crown'. Mr. Mortimer was then allowed to raise eight more objections all in the same vein and said that he could establish what the Bench had previously asked him to prove that the 'road was within the perambulation of the Forest and that it was Crown property'. Mr. Lamport maintained the highway was repaired and controlled under the 1864 Act as was 'enclosed land'. The Bench decided to hear the evidence before considering Mr. Mortimer's objections. Mr. Mortimer called a representative of the Britich Museum, Mr. Dorset Eccles, who produced the original King George III map by Driver. The road was shaded green, denoting Forest land, and the sides of the road were shaded yellow meaning it was intermediate property. Mr. Lamport mainted there was 'no such thing as a highway then', but Mr. Mortimer said that the 'Lymington Highways Act goes back to 1700'. The Clerk to the Deputy Surveyor of the New Forest, Mr. Arthur George Grace, produced an original copy of Driver's map and a copy of Kelsey's map. This latter map of 1818 was the one 'upon which all settlements were made by the Office of Woods and Forest'. Mr. Pember queried the relevance of the maps because the character of the road had been subsequently altered and 'common was gone'. Mortimer argued cattle could graze alongside the road and cited SEWERS v GLASSE and then COUNTESS OF BELMORE v KENT COUNTY COUNCIL. Mr. Grace pointed out that the colouring of the road, green, indicated it was Crown property per se. Mr. Moens was under subpoena to produce his deeds relating to encroachments on the road in question but the bench refused to hear his testimony or evidence. 'A Forest Marksman then produced his book showing that Mrs Plumbley (the Defendant) was a Commoner.' The magistrates retired and upon their return deemed that the case had been proved and fined the Defendant 'sixpence for each animal and the costs'. The Bench deemed that 'it had not been proved to their satisfaction that this part of the road in question passed over Common'. It would be for Mr Mortimer to consult with Mr Cripps 'as to the best way of raising a case, if he intended doing so'. Mr. Mortimer indicated that he would and would serve the notices within seven days. He asked for the sureties and enforcement of the conviction to stand over, the Bench consented. 'The case against ETHERIDGE was also adjourned.'
Publisher: Lymington: Printed by Chas. T. King
Period covered: April 13 1901
Format: Booklet: Printed, folded and stapled.

Primary Reference: 300000014

Last import: December 21, 2022
0 comments

Your Comment