said closes on the other side thereof, minerals dug and gained by them from such their said closes, and for the necessary and more convenient occupation and use of their said several closes respectively for the said pur poses; wherefore the said defendants, as servants and by the command of the said R. S. H., J. H., and W. W. D.at &c., for the purpose of making the said tram-roads across the said closes in which &c., broke and entered &c., and made across the same such tramroads for the purposes aforesaid, from the said closes of the said R. S. H., J. H., and W. W. D. on one side of the said closes in which &c., to their said closes on the other side thereof. And the defendants, as such servants and by such command, at the said times when &c., used the said tram-roads so by them made, in carrying and conveying in tram-carts from and to such respective closes of the said R. S. H., J. H., and; W. W. D., divers minerals their property, and by them: dug and gained from such the said closes respectively, and in so doing, the said defendants, at the said times when &c., necessarily and unavoidably, with feet in walking, a little trod down, trampled upon, consumed, and spoiled the grass of the plaintiffs' growing on their said closes in which &c., and tore up, subverted, damaged, and spoiled the earth and soil of the said closes in which &c., and tore up, prostrated, and destroyed a small part of the said roads and paths of the plaintiffs, and the materials thereof coming, to wit, the said iron, earth, and rubbish, in the first count mentioned in that behalf, and the said goods and chattels in the second count seized, took, and carried to a small and convenient distance, and there left the same for the use of the plaintiffs, and also then and there cut, dug, and made, in and upon the closes in which &c., the said excavations, and the said roads and paths so alleged to have been cut, dug, and made by 1834. MONMOUTH SHIRE CANAL HARFORD and Others. 1834. MONMOUTHSHIRE CANAL COMPANY v. HARFORD them; and the defendants, as such servants and by such command, on these occasions, and for the purPoses aforesaid, also then and there necessarily put, placed, and laid, and caused to be put, placed, and laid in and upon part of the closes in which &c. the and Others. iron, stones, earth, and rubbish, in the said first count lastly mentioned, the same being materials necessary and proper for making such tram-roads so made across the closes in which &c., and there kept and continued the same from thence hitherto, as the defendants lawfully might for the cause aforesaid, doing no unnecessary damage to the said plaintiffs, and the use and enjoyment of the said closes in which &c. for the purposes of a railway under the said acts of parliament, not being thereby hindered or obstructed; verification. -b The fourth, fifth, sixth," and seventh pleas were similar to the third in substance, but varied in the "mode of stating the purposes for which the way was "claimed. The eighth plea claimed a way similar to that claimed in the third plea, by virtue of a reservation in a grant of the locus in quo made by one Glover to the plaintiffs. This plea became immaterial. The ninth, tenth, and eleventh pleas resembled the eighth, claiming the way in like manner for various other purposes. The twelfth plea was of a grant of the way (by lost deed) from the plaintiffs to certain persons under whom the defendants justified. The thirteenth plea was similar, stating the way to be for the convenient occupation of the adjoining lands. The fourteenth plea stated, that for twenty years and upwards next before the commencement of this suit, and before either of the said times when &c., the occupiers for the time being of certain, to wit, twenty closes, adjoining the closes in which &c., on one side thereof, being also the occupiers of divers, to wit, twenty other closes, adjoining to and on the other side of the close in 1834. which &e, of right and without interruption have had and used, and have been used and accustomed to have and use, and of right during that time, and at the said SHIRE CANAL times when, &c., were entitled to have and use the M MONMOUTH COMPANY บ. HARFORD liberty, easement, and privilege of passing and repassing across the said closes in, which, &c., in such and Others. parts thereof as should be necessary and convenient, from and to such respective closes, adjoining and being T on each side of the closes in which &c., on foot and with horses and carts, for the purpose of, carrying minerals the produce of such respective lands, and other things, from and to such respective closes so adjoining the closes in which &c., and for the more convenient use, occupation, and enjoyment of such lastmentioned closes, with liberty and power to such occupiers for the time being of such closes on one side of the closes in which &c., being also the occupiers of the said other closes on the other side of the closes in which &c., to do and perform in all the said closes in which &c., all such things as should be necessary for the purposes of enjoying and using the liberty, easement, and privilege of passing and repassing the closes in which &c. as last aforesaid, and as should not obstruct or be inconsistent with the use and enjoyment of the said closes in which &c. as a railway, under the said acts of parliament: and the defendants further say, that long before the said times when &c., the said R. S. H., J. H., and W. W. D., were occupiers of the said last-mentioned closes, on one side of the closes in which &c., as of the said last-mentioned closes on the other side thereof. And the said defendants further say, that during the times last-mentioned, and before and at the said several times when &c., the said closes so adjoining the said several closes in which &c., were and are lands or closes containing divers large quantities of minerals of a valuable nature, and were valuable 1834 MONMOUTH SHIRE CANAL COMPANY v. I chiefly on that account, and the owners and occupiers thereof were in the habit of digging and obtaining therefrom divers large quantities of minerals And the defendants further say, that it was and is usual and HARFORD proper in that part of the country where the said several and Others. closes were situate, to carry and convey such minerals in tram-carts, and in and along a tram-road constructed for that purpose, and that the same could not con veniently or properly be carried or conveyed in any other manner; nor could such closes so adjoining the closes in which &c., be otherwise conveniently used or enjoyed for the purposes last aforesaid; and thereupon, before and at the said several times when &c. it became and was necessary, reasonable, and proper, and did not obstruct, and was not inconsistent with such use and enjoyment of the said closes in which &o., as a railway under the said acts of parliament, that the said R. S. H., J. H., and W. W. D., should make and erect certain tram-roads across the said closes in which &c., in different parts thereof, for the purpose of carrying and conveying from their said close on one side thereof, to their said close on the other side thereof, minerals dug and gained by them from such their said closes respectively, and for the necessary and more convenient occupation and use of their said several closes respectively for the said last-mentioned purposes; wherefore the said defendants, as the ser vants and by the command of the said R. S. H., J. H., and W. W. D., at the said several times when &c., for the purpose of making such tram-roads across the said closes in which &c., and of using the last-mentioned way, broke and entered the said closes in which &c., and then and there made across the same such tram roads for the purposes aforesaid, from the said closes of the said R. S. H., J. H., and W. W. D., on one' side of the said closes in which &c., to their said closes The on the other side thereof; and the defendants as I " 1834. MONMOUTHL SHIRE CANAL: COMPANY |