EXPORT OF AN ACIION-AT-LAW POR TRESPASS, SMITH PEENTIS AND ANOTHER”, OE C. ROACH SMITH v. THE DEAN AND CHAPTER OP ROCHESTER: REfERKED BY CHIEE JUSTICE ERLE, AT TPIE KENT LENT ASSIZES, ON THE 15th MAECH, 1864, TO ARBITRATION. BY THE PLAINTIFF, C. ROACH SMITH, F.S.A., ETC. LONDON: T. RICHARDS, 37, GREAT QUEEN STREET. Price Fifteenpenee. ill EEPORT iCTION-AT-LAW FOR TRESPASS, ‘"SMITH V. PEENTIS AND ANOTHER” X OR C. ROACH SMITH v. THE DEAN AND CHAPTER OF ROCHESTER: REFERRED BY CHIEF JUSTICE ERLE, AT THE KENT LENT ASSIZES, ON THE 15th MARCH, 1864, ARBITRATION. BY THE PLAINTIEE, C. ROACH SMITH, F.S.A., ETC. LONDON: T. RICHARDS, 37, GREAT QUEEN STREET. 1865. THE DEAN AND CHAPTEE OF EOCHESTEE. The Bean. The Very Rev. Robert Stevens, D.D. The Chafter. The Rev. J, Griffith, D.D. The Rev. E. Hawkins, D.D., Provost of Oriel College, Oxford. The Rev. S. Robinson, D.D., Master of the Temple. The Ven. Anthony Grant, D.C.D., Archdeacon of Rochester and St. Albans, Honorary Members. The Rev. H. J. B. Nicholson, D.D. The Yen. Archdeacon Burney. A REPOKT, ETC. There are several reasons why some account of this lawsuit should be laid before my friends and the public. I engaged in it only from a sense of duty, after trying by all means in my power to avoid a course to me most inconvenient and repugnant ; but yet unavoidable so long as a flagrant aggression remained not only unredressed, but justified and defended by the aggressors, and by those who profited by the aggression. My habits, my pursuits, and my inclinations are totally opposed to litigation; but at the same time a peaceable disposition is not incompatible with resolution to resist what I believed to be fraud, and an encroachment, which the law has decided was unjustifiable. I owe some explanation to my friends why I appeared in a court of justice as plaintiff against such a body as the Dean and Chapter of Eochester, who, from their position, should be supposed inca¬ pable of defending a wrong, and of refusing amicable redress. I owe it, perhaps, to the Dean and Chapter themselves, or to such of them as may yet be ignorant of the facts of the case; and I owe it to the public that the matter be clearly explained, as a warning to those who may be placed in similar circum¬ stances—a warning, to avoid, if possible, the annoyance to which I have been subjected; and as a precedent to be referred to in case the means of equitable arrangement are denied or withheld. Had the press been able to give publicity to the case, I should have been spared the trouble of printing any statement; but the arbitration to which the lawsuit was referred was conducted, as is usual, in a private room, and no reporters for the press attended. There is yet another reason why I should say a few words. I am, as it were, put upon my defence by assertions made on behalf of the Dean and Chapter, which go to combat the fact that I tried ineffectually for years to induce full consideration on the part of the Dean and Chapter, to avoid litigation. At Maidstone, Mr. Hawkins, for the defendants, said, “ The only thing I feel a2 4 inclined to join issue upon is the statement of my friend (Mr. Lush), that ineffectual efforts have been made for years past to get us to go to a reference and, pending the arbitration, and subsequently, the legal advisers of the defendants denied that I took those conciliatory steps which I did take. It is important to show that I did take them, and that the Dean and Chapter were resolved to keep what they had got, and not to grant me access to them, or in any way to allow me in their own court a full and fair hearing. On taking possession of my little property at Strood, in 1856, I found it was bounded on the south-east by two creeks, one of which separated it from lands of the Dean and Chapter of Eo- chester, tenanted by a Mr. Mace, and the other from lands of C. Gustavus Whittaker, Esq., tenanted by Mr. Henry Everist. A path, eight or nine feet wide, runs through the entire length of my property on the south-east to Mr. Whittaker^’s farm, called the Temple Farm. This path is upon the top of a bank of consi¬ derable height and width, with a long slope on each side; and from the bank, about midway, ran an entrance between the ends of the creeks into the Dean and Chapter's salt marsh. This was the only entrance. One of these creeks, known as Janes’s Creek, opened into a much wider creek, called the Pelican Creek, and both at every high tide were filled with water from the Medway. The smallest (Janes’s) at its mouth was some twenty feet wide ; but as it approached the Dean and Chapter’s entrance into their marsh it decreased in width, and the width was also decreased on the other side of their own entrance up to Mr. Whittaker’s land, where it ran into another wider creek, and so into the river. Eor purposes of the South-Eastern Eailway, to which it would be irrelevant to make further allusion, the creeks bounding my property and that of the Dean and Chapter and Mr. Whittaker were about to be filled up by the contractor to the railway; and when my friend, Mr. Humphrey Wickham (who was trustee to the property of Mr. James Janes, deceased) showed me the boundaries of what I had purchased, he said that half of the land made by filling up the creek would, as was customary, belong to me. So the matter rested for some time. With such neighbours as the Dean and Chapter and Mr. Whittaker, I did not ^ink it necessary to take any precautions, for I could not suppose an unfair division possible; or, had I thought it might occur, I should also have considered it would not be countenanced. One of the authors of ancient times, whose writings will ever shed a humanising influence over mankind, speaks of such things as are chiefly to be attended to in examining and selecting land before it is bought. The wholesomeness of the air and the fer¬ tility of the place are to be considered ; then the water and the 5 road; and lastly, and especially, the neighbours. It is acting like a madman, he says, for a person to make a bad fortune for himself, which that man does who purchases a dishonest neigh¬ bour ; and }ie cites an old Greek proverb to the effect that No TYian would lose his ox if his neighbours were honest, a saying, he adds, which refers not only to an ox but to every part of our estate * It may be said the moralist wrote for Pagan and not for Christian times ; that what might serve the notions of people eighteen hundred years ago will not apply at the present day; but I believe that such maxims and principles fit all times and creeds, though I admit I only fully scrutinised, when I made my purchase, the air, the place, the road, and the water. And so the matter rested awhile. The creeks were filled up and made level with the Dean and Chapter’s entrance, between the ends of the two creeks; and the whole of the salt marsh be¬ tween the footpath and the river was enclosed with a land wall crossing the mouth of Janes’s Creek, and covering also the cess and slope of the wide bank upon which the path runs ; but no fence was as yet set up—no mark replaced to show where the Dean and Chapter’s right of entrance was. It may be asked, “Where were the watchers ?” “Who were they The only per¬ sons who were authorised to direct the contractor were Mr. Wickham, on the part of the late Mr. Janes’s executors, and Mr. Essell, on the part of the Dean and Chapter. The same authority was vested in Mr. Wickham as regards the other portion of the filled-up creek dividing my property from the land of Mr. Whit¬ taker, tenanted by Mr. Everist. But it appears that Mr. Wickham could not get Mr. Essell to attend to join him in setting out the boundary line. Here we may notice the first error on the part of the Dean and Chapter. Time fiew on; but before very long I noticed that not only were the filled up creeks fenced off, but a gate was set up over the cess of the bank upon my side of what was Janes’s Creek ; and the Dean and Chapter’s old entrance appeared no longer; nothing remained of it but the path down the slope of the bank. At a glance I saw the obvious inequality of the division. It was apparent that nowhere had half of the ground been given to me; that where the creek had been widest there I was given the least; and that, at the end adjoining the larger creek, the gate had been fixed over the bottom or cess of my wall. As regards the other side, where the creek flanked Mr. Whittaker’s land, the whole of the newly-made land, and not only that, but the bank and all, had been taken into Mr. Whittaker’s field ! These are the plain uncontroverted facts, upon which the arbitrator’s * Columella, “ De Re Rustica”, lib. i, chap* iii. award for me was founded, and which in no way would the Dean and Chapter recognise! It seems the contractor, tired of waiting in vain for Mr. Essell and Mr. Wickham, took the directions of three other per¬ sons, one of whom was the chief witness of the Dean and Chapter; and upon his examination, and then only, was this fact made known! Up to that time I and Mr. Wickham were kept in the dark as to the history of the setting up of the fence. The con¬ tractor was in vain written to by Mr. Wickham. He never explained, but died, and made no sign. We lost no time in laying the matter before Mr. Essell, as the Dean and Chapter’s agent and representative ; and he attended upon the spot; heard Mr. Wickham’s explanation of the unfair division of the new ground ; did not object to a rectification of the boundary; and at that time even consented to accede to a suggestion made by Mr. Wickham, that the Dean and Chapter should receive from me the farther portion of the new ground, and give me an equal extent on the north-eastern side, near the larger creek; and the land was actually measured in consequence of this agreement; but Mr. Essell did not attend to approve, as he said he would do. At this interview Mr. Essell asserted that the Dean and Chapter always had a right of way where the gate had been set up, at the mouth of the filled-up creek! He was corrected by Mr. Wickham, who explained that it was recently water, and that their way was further to the south-west, and had never been, and could not have been, elsewhere. No one knew this better than Mr. Mace, the tenant, and the two persons who with him directed the contractor to stop up one road and open another. Some little time passed, and then it became evident that Mr. Essell was resolved not only not “to approve” the proposed ex¬ change, but to disapprove the rectification of the boundary. Mr. Wickham repeatedly wrote to and saw him, but to no purpose. He alleged at one interview that I had taken the matter into my own hands, and had erected “ an unsightly hovel! ” No hovel had been erected, except in Mr. Essell’s imagination. On another occasion it was alleged that Mr. Mace made objections! Then I ordered the gate to be nailed up; but it was afterwards broken open in the night by the order of Mr. Mace. It was then that it occurred to me it would be desirable to fortify myself with the opinion of some person who had made such or similar cases his study, that I might induce the Dean and Chapter to give attention to my representations and claims. I accordingly consulted William Bland, Esq., of Hartlip Place, a gentleman of well-known experience in rural aflairs. Mr. Bland very kindly heard my statement, and wrote to Mr. Murton of Tun- stall to ask him to look into the matter. Here a very unlooked-for 7 impediment arose; and the Dean and Chapter found their hands strengthened by Mr. Murton. He came to the filled-up creek ; but he called neither upon me nor upon Mr. Wickham. He went to Mr. Everist! Possibly Mr. Murton, as agent to Sir John Croft, the Dean and Chapter's tenant, could only look to his employer's interests; but neither I nor Mr. Bland contemplated his avoiding our evidence. He went, in short, to Mr. Everist, who assisted Mr. Mace, and an agent of the Dean and Chapter, in directing the railway contractor; and took his evidence only. Mr. Murton decided against me; but he in no way communicated with me ! Years had now rolled by; and I clearly saw it was resolved by the Dean and Chapter that the boundary as thus clandestinely set up should be maintained. On the other hand, I resolved it should not be, if possible. Mr. Wickham also, who all along could not believe that such a palpable and mean infringement of my rights could be seriously tolerated, became convinced that (what I had. long ago felt) stronger remonstrance should be made ; but neither of us could conceive that the strong arm of the law would have to be invoked. In the meantime, however, a remarkable and conclusive piece of evidence came to light which had been overlooked; and from a very obvious cause. This now disputed creek had never before been regarded as likely to produce a question at all. It was a creek dividing two properties ; and so it might have remained for ever, but for the accidental appearance upon the scene' .of the railway to Maidstone. Creeks are usually considered as belong¬ ing equally to the owners of the land on either side; but there are exceptions to this rule; and the avidity with which the major part of this creek was seized upon for the Dean and Chapter caused us to make an investigation, from which it ap¬ peared they had no right to any portion of it, but that it was wholly the late Mr. Janes's, and consequently wholly mine. This evidence was the tithe map, made twenty-two years before, in triplicate, for the tithe commissioners themselves, for the parish of Strood, and for the Dean and Chapter of Eochester. This map is on a scale of three chains to an inch. It was prepared by an eminent surveyor, and, its correctness was sanctioned on the part of the parish and by the Dean and Chapter. It is constantly referred to, and is abided by as authority. In this map the creek called Janes's Creek, now filled up, is laid down and distinguished as Mr. Janes s, wholly and solely. ^ Usu¬ ally in it creeks are marked as a divided property; but this is an exception, for which there was of course a cogent reason. Now, had this disinterested testimony told for the Dean and Chapter, I should have bowed to it at once, and abandoned all claim to any part of the ground; but not so the capitular surveyor, Mr. Clements. He termed it “-stuff." The evidence of this map. 8 which was ruled by the arbitrator to be good, may not be unim¬ portant as precedent or proof in a legal point of view, because I understand maps are not generally legal evidence, however bind¬ ing or influential they may be in transactions between honourable persons. In the autumn of 1862 Mr. Mace died. I lost no time in drawing Mr. Esselhs attention to his death, as it removed the alleged obstacle to Mr. EsselFs performing his promise. He re¬ ferred me to the capitular surveyor, Mr. Clements, who had pre¬ viously slighted the tithe map, and had opposed strenuously every advance made by Mr. Wickham. To Mr. Clements I applied, and by arrangement I met him upon the bank alongside of the fiUed-up creeks. He was accompanied by Mr. Bullard, who subsequently appeared as witness for the Dean and Chapter. Even then I did not despair of inducing an amicable arrange¬ ment by temperate reasoning; so, after courteous preliminaries of commonplace, I opened the discussion by referring to the narrow strip left me by the Dean and Chapter. “ This," I observed, “you will admit is mine.” “ We," replied Mr. Clements, “admit nothing. ’ I appealed to Mr. Bullard whether in such a case I could possibly, with any prospect of success or utility, continue the conference; and he replied that he thought I could not. However, as we were there, I ventured to ask upon whose evi¬ dence they relied to maintain their ground. I was told it was upon the testimony of Mr. Everist. I observed, that in holding together with them a part of the creek unquestionably mine, he would be put out of court altogether. We then separated. I now addressed a letter to the Dean and Chapter, in order that Mr. Wickham, on my behalf, might be allowed to appear before them, sending it under cover to Mr. Essell, and expressing a hope that what evidence was to be heard for me might be heard before the Chapter during the present or forthcoming audit. I briefly stated my case, and summed up as follows :—• 1. “ That you have thus been put into possession of property that is mine. 2. “That this property can be proved to have been Mr. Janes s and not yours, and that it was never before held by you, and never claimed for you; but that, on the contrary, it was held and used by Mr. Janes alone, and as his property. * 3. “ That this prbperty included (as can be proved) the whole of the creek now filled up. “ In order to expedite a settlement I have made free to enclose a letter from Mr. Wickham, and to say he is ready to appear before you to substantiate his assertions.” With every respect, I have the honour to be, etc.. Temple Place, Strood, Nov. 24, 1862. C. Koach Smith. 9 Mr. Wickham^s letter, as follows, was enclosed 1V/r^ o. T Strood, Nov. 22, 1862. My dear feir,—In answer to your enquiries respecting that part ot the property which you purchased of me as the trustee for sale of the real estate of the late Mr. James Janes, of which you have been_ unjustly kept out of possession for the last few years 1 have to inform you that it consists of land which was formerly portions of creeks or arms of the Eiver Medway, of which Mr Janes, from 1831 (when he purchased the property) up to the time of his death in 1854, was the sole owner, and over which he was the only person who during that time exercised any act of ownership In 1856 I consented to the said portions of creeks being filled up by parties then constructing the railway from btrood to Maidstone upon their making a fresh outlet for the surplus waiter from the pond, and properly enclosing the land which would be formed by filling up the portions of the creeks betore-mentioned. It was necessary that the fresh outlet should be completed before the old one was stopped, and I saw it was done, but the land to be formed had of course to be left to settle down before it could be enclosed, and the contractor delayed putting up the fence for a considerable time, and at last, without consulting me, set it up on the wrong side of the newly-made land; this was done in quite the latter end of 1857, and then the laud was/or the first time claimed by the late Mr. Thomas Mace as belonging to the Dean and Chapter of Eochester I can give positive and undeniable proofs of the acts of own¬ ership by Mr. Janes ha^ng been continually exercised, and of his right not only not having been disputed, but that it was known to and most distinctly recognised and acquiesced in by the Dean and Chapter and Mr. Mace. I remain, my dear sir, yours very truly, C. Roach Smith, Esq., Temple Place, Strood, near Ro^estrr,^K^t!'^‘ With the foregoing letters sent to Mr. Essell to be sub¬ mitted to the Dean and Chapter, I addressed a note to himself as chapter clerk, in which I tried to impress upon his considera¬ tion what I thought, in these words:—“ At present I feel I have neither been used justly or fairly by the Dean and Chapter; and I hope you will give your ready and cordial consent that what evidence is to be heard for me be heard before the Chapter during the present audit.” The receipt of the above letters was acknowledged, and assur¬ ance given that they should be laid before the General Chapter assembling on the morrow (November 25th, 1862). I entreat my readers to consider carefully the object of the ap¬ plication thus made to the Dean and Chapter. It was to avoid 10 the possibility of resorting to a legal process by settling the ques¬ tion by a private conference. I did not ask to be present. I requested merely that Mr. Wickham, on my part, should be allowed to produce his proofs of the late Mr. Janes's ownership of the creek. In their own office the Dean and Chapter held proof to which, among others, Mr. Wickham could have directed their at- , tention. He could also have heard on what grounds they held possession of what they had formerly disclaimed a right to, and had never possessed except when the fence was clandestinely erected. Had it been in their power, they could have relieved me from the unpleasant conviction that they had been put in possession of what was not theirs, by not only improper, but by fraudulent means. The Dean and Chapter, however, refused to hear Mr. Wickham, and returned the following reply. The Precinct, Rochester, 3rd Dec,, 1862. Dear Sir,—In reply to your communications relative to your claims to a portion of marsh land lying between the Mailing and Strood turnpike road and the river and near your estate in Strood, I am directed to apprise you that the estate of the Dean and Chapter of Eochester, of which the marsh is a part, is, and has for many years past been, demised to a lessee, during which period the portion of land in question has been, as the Dean and Chapter are advised, uninterruptedly held and enjoyed under the lease. Notwithstanding these circumstances (from which the imme¬ diate question of boundary at issue devolved rather upon the lessee or his tenant in possession), the Dean and Chapter in¬ structed their capitular surveyor (Mr. Clements) to inspect the spot and give them information upon the subject; and having considered his reports ' and such maps and plans as have been submitted to them, the Dean and Chapter have reason to believe that the land in question is rightly held by their lessee. I am, dear sir, your most obedient servant, C. Eoach Smith, Esq. Geoege Essell. As for the Dean and Chapter being advised that their lessee uninterruptedly held and enjoyed the land I claimed, Mr. Wick¬ ham could have explained that the land was covered with the water, and was mud, and no land at all, until 1856 ; and if they meant to say that the sub-tenant Mace held and enjoyed the land he had (by the aid of two unauthorised persons) taken possession of uninterruptedly, Mr. Essell himself could have refuted an assertion so untrue. Mr. Wickham could have asked them to turn to their copy of the tythe map; and could have shewn how utterly unworthy of consideration was Mr. Clements's information, based (as it was confessed to me to be) upon statements made by Mr. Everist who, as it afterwards appeared, in conjunction with 11 Mace, and Mr. Samuel Bidden the former capitular surveyor, set out the line of the fence which gave the newly-made land to the Dean and Chapter. A further communication was made by Mr. Wickham to Mr. Essell, in which he stated his readiness to produce evidence of Mr. Janes having ever exercised the right of ownership over the creek; he pointed out the recent date of the claims made under such extraordinary circumstances by the Dean and Chapter; and he reminded Mr. Essell of the wish he himself had expressed so long ago, that the dispute should be settled amicably; but, he added, it would not be prudent for me to delay any longer. Although up to this time Mr. Essell had in no way led us to imagine the Dean and Chapter could not at once terminate the contest, except when it was urged that the sub-tenant Mace (lately deceased) raised objections, we were now turned over to the legal representatives of the late tenant Mace (one of whom is the capi¬ tular surveyor himself); and Mr. Wickham had to re-open the whole question with Mr. Edward Wates, of Gravesend, solicitor, who is also one of Mace’s executors; and another tenant in the room of Mace was brought upon the scene in Mr. Edward Prentis, of Chalk, near Gravesend. But the settlement or not of the question rested not with any of these, but with the Dean and Chapter. This is admitted in a letter dated January 20th, 1864, written by Messrs. Hooke, Street, and Gutteres, the London agents of the solicitor of the defendants “Prentis and another”. A tedious and unsatisfactory correspondence now ensued between Mr. Wickham and Mr. Wates; and I could plainly see, notwith¬ standing the efforts and assurances of my friend Mr. Wickham, that not a foot of the abstracted land was to be restored to me unless the Dean and Chapter should be compelled to restore it by a court of law. Into a court of law I soon drifted. But that no effort should be wanting on my part to prevent an alternative to me vexatious and costly, I resolved to make a personal appeal to members of the Chapter and to Mr. Essell himself, 1 was resolved not to sanction this unscrupulous removal of my landmark; but, at the same time, I was equally resolved to afford the Dean and Chapter every opportunity to consent to a full and fair investiga¬ tion by disinterested persons. I seemed to have mastered the subject so thoroughly, to, have possessed myself of the facts of the case (upon which, sooner or later, the question would be de¬ cided) so completely, that I could hardly persuade myself that some one member of the Chapter might not be induced, by a per¬ sonal interview, to consider himself in my place and to do unto others as he would that others should do unto him. Among the names of the members of the Chapter, I found those of the Kev. Dr. Nicholson and Archdeacon Burney, with both of 12 whom I was acquainted. To them I wrote, entreating their inter¬ cession, Dr. Nicholson replied that, being only an honorary member of the Chapter, he could do nothing for me. Archdeacon Burney did not answer my letter. Without stating my object, I asked a clergymen, with whom I was acquainted, to give me a note of introduction to the Eev. Dr. Griffith, the locum tenens of the Dean (the Eev. Dr, Stevens), and the reputed chief acting member of the Chapter. As no answer was returned to my letter, after some time I resolved to see Dr. Griffith on my own introduction. Accordingly, I wrote a brief note soliciting him to be so kind as to favour me with a short in¬ terview, at any time most convenient to himself Dr. Griffith did not condescend to reply. My last resource was Mr. Essell, the Chapter clerk. I had long been assured that the Dean and Chapter did nothing but under his guidance: that he had been of old their adviser and director; and that, in short, in all relations with the outer world, he was their representative and incarnation. As the representative of Dr. Stevens, of Dr. Griffith, of Dr. Hawkins, of Dr. Eobinson, and of other reverend gentle¬ men, to whom much is given and of whom something at least is required or expected, I calculated on receiving from him a hear¬ ing of some kind at least; but Mr. Essell, after keeping me waiting some ten minutes, dismissed me so offensively, without permitting me to open my mouth, that I felt his door was closed to me. He ordered me to call again ; but in a manner so rude and insulting, that I could but conceive he intentionally thus re¬ pelled me, as knowing I should not again be likely to place my¬ self in his power. At all events, I felt I could no longer expect from the Dean and Chapter any recognition of my right to be treated honestly or honourably. But up to this summary rebuff by Mr. Essell, I yet had faint hopes that some one of the Chapter would interfere and insist on my request for arbitration being granted. I hSd been introduced to the Eev, Dr, Hawkins, the Provost of Oriel; and to him I wrote, entreating attention to my letter, asking that Mr. Wick¬ ham might be heard in my behalf Unlike Dr. Griffith, Dr. Hawkins courteously replied not only to this, but to many more letters subsequently written, I failed, however, as completely with Dr. Hawkins as with the rest of the Chapter. He considered that the Chapter had given every attention to my request; that the proper maps had been consulted, etc.; that I used “ hard words'’ in describing the conduct of those who were driving me to seek redress from the law, etc. My correspondence with Dr. Hawkins though private, might have been considered semi-official had I been so fortunate as to secure his interposition. But I only feel it necessary to allude to it to show that I exhausted all 13 the means in my power to prevent litigation which I dreaded only less than the alternative of submitting to and countenancing a mean, and, as I considered, fraudulent aggression. After ineffectual communication with Mr. Wates who, with Mr Clements, represented the late Mr. Mace, and also with Mr. Prentis’ the new tenant, I directed the removal of some of my land close to the gate which had been set up when the old entrance to the Dean and Chapter's marsh was closed for a new road more ad¬ vantageous to them. Mr. Clements, the capitular surveyor, soon employed masons to fill up the cavity with masonry; and the gate was again broken open. Then it was I directed the opinion of counsel to be taken • and, in consequence of the legal advice I received, the gate was again fastened and a post was driven in to secure it. Por the trespass in sawing asunder this post (by order of the Capitular Surveyor) an action-at-law was brought against Mr. Prentis, the tenant, and the person who cut the post asunder; notice having been served previously on Mr. Prentis (June 24th, 1863). ' The following correspondence will shew that even at this late period Mr. Wickham again tried to negociate. Strood, 28th Nov., 1863. Smith V. Prentis and Another. Dear Sirs,—I wish this matter could be settled. The real de¬ fendants, I believe, are acting solely from temper and ill-feeling. I am, dear sirs, yours truly, Tir -rx , H. Wickham. Messrs. Hooke, Street, and Gutteres, Solicitors, 27, Lincoln’s Inn Pields, London. Strood, I9th Jan., 1864. Smith V. Prentis and Another. Dear Sirs,—Can you give me a friendly meeting in this vexa¬ tious matter ? I am, dear sirs, yours truly, H. Wickham. Messrs. Hooke, Street, and Gutteres, Solicitors, 27, Lincoln's Inn Pields, London. 27, Lincoln’s Inn Fields, London, 20th Jan., 1864. Smith V. Prentis. Dear Sir.—We should be very glad if some means could be found for settling this amicably; but the fact is, that Mr. Mace's executors, who are the virtual defendants, have no choice but to defend. They are responsible to their lessor. Sir John Croft, who is again only lessee under the Dean and Chapter of Rochester 14 and as Sir John Croft will not relieve them of their liability to him, they are obliged to resist the plaintiff’s claim. We believe there is to be a meeting of the Chapter to-morrow, when Mr. Clements will explain the position of the affairs. In fact, the settlement or not of the question BESTS with the Chaptee, not with our clients. Yours truly, Hooke, Street, and Gutteees. H. Wickham, Esq. We now considered, and correctly, that the Dean and Chapter and their agents were resolved on defending the action-at-law; and measures were taken by us accordingly, as will appear by Mr. Wickham’s reply to a letter from Mr. Wates, which alarmed me, inasmuch as he had at the interview mentioned in it proposed as one of two arbitrators Mr. Murton. We knew that Mr. Murton (taking information from Mr. Everist) was adverse to me. 15, Harmer Street, Gravesend, 2nd March, 1864. Prentis ats. Smith. Dear Sir,—Since our interview yesterday herein I have been thinking over this matter; and the more I do so, the more con¬ vinced I am that it is a case most fit and proper to be at once re¬ ferred without going to the expense of preparing for trial, and counsel just getting up and opening the case, and it being sent by order of the judge to a reference before some barrister. Now, in order to avoid this, I am willing to consent on the part of my client to refer it to a respectable gentleman totally unconnected with all parties, and to abide by his decision, which I am sure you will be of opinion is the best mode of effecting a settlement of this troublesome little matter. May I beg the favour of an early reply ? Yours faithfully, Edwd. Wates. H. Wickham, Esq., Solicitor, Strood. City Dues’ OflSce, Rochester, 3rd March, 1864. Smith V. Prentis and Another. Dear Sir,—I also have weighed this matter over in my mind since our interview, and have arrived at an opinion totally dif¬ ferent from that expressed by you. It is a case in which the sanctity of the profession of the chief actors ought to have kept them from the course they have taken; and when I observe the avidity with which they seized upon, and the pertinacity with which they cling to a little piece of ground to which they have not the faintest shadow of a right or title, I cannot consider that I should be justified in recommending my client to consent to have the case heard in private. Besides this, we should lose the benefit of counsel whom I have retained. Altogether, your offer 15 comes so late, and after driving us into litigation, that I must now decline what we had, for four or five years previous to brino-- mg the action, earnestly sought. ® I could prove my assertion about “right or title^^ in a single moment; but knowing the parties I have to deal with, I dare not do so except in open court. I am, dear sir, yours truly, T,, , „ H. Wickham. hidward Wates, Esq., Solicitor, Gravesend. At the Kent Lent Assizes, held at Maidstone, the case was brought before the Chief Justice Erie, on March 18th, 1864, Mr. Lush and Mr. Prentice being counsel for the plaintiff'; and’ Mr! Hawkins and Mr. Mathews counsel for the defendants. The Lord Chief Justice having heard the opening speech of Mr. Lush, recommended the action to be disposed of by arbitration, the arbitrator to have power to settle the boundaries and the right of way. After some discussion this course was agreed to by all parties, and T. Dickson Archibald, Esq., barrister-at-law, was chosen arbitrator. On April 16th, Mr. Archibald attended personally to inspect the disputed ground and examined the fence and gate set up by the Dean and Chapter, and the mte of the old entrance closed up; he also had pointed out to him the course of the filled-up creeks. He was attended by Mr. Prentice for the plaintiff, and by Mr! Mathews for the defendants, by the solicitors on either side, and by numerous witnesses. After a long examination which included a lucid statement by Mr. Wickham of the course of the creeks, to which no one on the part of the defendants offered any contradic¬ tion, the first sitting of the arbitrator was held at Strood, at the Bridge Tavern, and the subsequent meetings at Westminster and in London. The first witness called was Mr. Frederick Fisher Cattlin, land surveyor, of 20, Abingdon Street, Westminster, who proved that he had been in practice as a surveyor for thirty years. That in 1843-4 he surveyed the parish of Strood for the purpose of preparing and making the tithe map. The map was made in triplicate: one being for the tithe commissioners themselves; the- second for the Parish of Strood; and the third for the Dean and Chapter of Rochester. Elaborate references accompany the map. [The copy belonging to the Parish of Strood was produced and examined.] Remembered perfectly the state of the creek called “Janeses Creek.^^ It was then open water as described, di¬ viding Mr. Janes's property from that of the Dean and Chapter and Mr. Whittaker. The width of the creek at its mouth, opening into the larger creek, where the gate now is, was about twenty- two feet; the average width towards the middle and at the fur- 16 ther part was sixteen feet. Had revisited the site of the creek; and could see that even now indications confirmed his measure¬ ments made in 1843-4. There was a shelving bank with cess be¬ tween the foot of the wall and the water. In answer to questions put by Mr. Prentice and the arbitrator, Mr. Cattlin explained his reasons for marking the larger creek as half Mr. Janes's and half the Dean and Chapter's; and the smaller as wholly Mr. Janes’s. It was an invariable rule with him that whenever a boundary fence was claimed as being wholly the pro¬ perty of the owner of the land on either side, to take the evidence not only of the person claiming it, but also that of the owner of the land on the other side; and in no instance did he ever depend upon the unsupported testimony of the claimant. It was only when the other admitted that he had no right, he (Mr. Cattlin) assigned a boundary wholly to one. It was so in the present case. He did not lay down the creek as Mr. Janes’s sole property upon Mr. Janes's assertion ; hut from information received from the Dean and Chapter of Rochester. He went to their office, the office of the Chapter clerk, Mr. Essell; and there he received the informa¬ tion that this creek was not in any way the Dean and Chapter's; hut wholly Mr. Janes’s. He had the most perfect recollection of going to the office for the purpose. The arbitrator ruled that the map must be received in evidence. Mr. Montagu Harrison, who was the resident engineer for the Strood and Maidstone railway, proved that during the progress of the works across the Strood marshes he passed the creek two or three times daily, and saw it, in all its stages, whilst being filled up. He likewise proved the correctness of Mr. Cattlin's map of the creek, that it was twenty-two feet wide, and that the gate and fence were upon the cess of the plaintiffs land-wall. John Lucas, Obed. Butcher and George Coulter (all of whom worked in Mr. Janes's brickfield for many years) proved that barges frequently came into that part of the filled-up creek near the mouth of the larger creek, which filled-up creek, by the direction of Mr. Janes, they had always treated as his property, by taking the earth and soil from the bottom of it, whenever they wanted it for use; and they spoke, particularly, of one occasion when they took many thousands of yards from the large creek and mouth of the smaller, to fill and level the land of Mr. Janes where the earth had been dug out for brick-making ; and that no one ever interfered with them. They deposed also to the fact of Mr. Janes having erected upon the filled-up creek a privy for the use of his men, and to other acts of ownership. Mr. Thomas William Clark, of Strood, schoolmaster, seventy-two years of age, proved that he had lived in Strood all his life, and was intimately acquainted with the creek in question. That the 17 part filled up was a miniature bay in which he used to lay up his boat iAe Widgeon; and that the creek from the mouth to the first turning was called '‘The Pelican Creek," and the upper part, tor the last thirty years, was known as "Janeses Creek.” 1 Thomas Janes, residing close by the spot, nephew of the late Mr Janes, proved that he had known the property for wenty- our ye^s, and had intimate knowledge of the creek caUed " J anes s Creek”; barges were brought into it. His uncle took mud from it to lay upon the land, and to repair the land-wall. Remembered the privy erected over the creek used by his uncle's men. They took mud out of the creek filled up, enough to cover a quarter of an acre a foot deep : they were a long time at work, ilie land-wall was not used as a roadway. Mr. Janes widened the wall considerably and constantly. Mr. Everist has put brick rub¬ bish there. A great many barges came up, in certain seasons, with mud; it was not necessary to widen the creek to admit barges; the sides were not cut away by Mr. James Janes. Saw the workmen take mud from beyond the half of the creek. Never recollected any footpath or road crossing Mr. Eoach Smith's garden or land anywhere, since he knew it (twenty-four years). One part of the new gate stands upon the foot of the old land-wall- both of the posts stand where water used to flow up. Mr Humphry Wickham, of Strood, solicitor, lives three or four hundred yards from the property, which is visible from his garden and meadow: has resided there for thirty-four years • deposed to the state of the land-wall, the jiroperty of the plaintiflp “ (tJien newly made and now plamtins plantation) was mowed. Has a sketch taken at the time. Janes commenced brick-making in 1835. In 1838 a Eo- man cemetery was discovered in consequence.* The land then was open, and continued open until the brick wall was built There never was any defined road across it until Mr. Janes made the brick wall. Has seen a good-sized boat in the creek. Has himself rowed up it in a boat, turned round, and rowed back again. Has seen Butcher repairing the land-wall; but does not remember having seen Coulter repairing it. As trustee of Mr. Janes's property saw Perry, the railway contractor, in 1855, or early in 1856, and made an arrangement with him. Perry was allowed to fill up the creek and alter the drainage from one corner of the plaintiff's pond to the other; and when the filling up was completed. Perry was to fence off the creek-land between the re¬ spective owners. Saw the creek constantly whilst being filled * An account of this was printed in 1843, in the « Collectanea Antiqua” vol. 1 , accompanied by a map shewing the creek in question, the adioininff creek, the Medway, etc. > j s B 18 up; it was not finished until late in 1856, The new gate was set up the last day in 1857. Produced copy of letter, to Mr. George Essell; dated December 15th, 1856, making a proposal. Wrote to Perry when he detected the unfair manner in which, he set up the fence; but could never get him to attend. Perry died not long after. Met Mr. Essell and the plaintiff on the spot in consequence of representations being made to Mr. Essell. Mr, Essell did not object to the proposal made for a division, but as¬ serted that the Dean and Chapter had always a right of way through the new gate across the mouth of the creek ! Corrected Mr. Essell. Took possession of the gate for my client, the plain- tifij and he held it for two years. The witness confirmed the tes¬ timony previously given as to width of the creek, and to the erec¬ tion of the gate upon the cess of the land-wall, and said that on the south-west side Mr. Everist had enclosed part of the creek ; indeed, wholly the south-west side. In cross-examination. —Mr. Janes purchased the property in 1829. The land-wall was four feet wide at the top; was used by the late Mr. Mace, Horses could and did. go to the Dean and Chapter's marsh through the old gate. Has seen men repairing the wall. Was often consulted by Mr. Janes. Did not recollect hearing the auctioneer say that Lot 11 had no water frontage. Has heard him say he said nothing on the subject. Told the plaintiff he would be entitled to half of the creeks opposite his lot. Neither he nor the plaintiff received any compensation in respect of the plaintiff's property from the railway company. Had communication with Mr. Essell as to where the boundary should be. Mr. Essell did not attend to help him to direct the con¬ tractor. The contractor said he would wait no longer. At the commencement I claimed half the creek, and afterwards I claimed the whole. Met Mr. Webb, Mr. Mace, Mr. Clements (the capi¬ tular surveyor), and others; met by arrangement to discuss. I said the fence was on the north-west side of the creek, to which Mr, Clements replied, “ It's a-lie"; and aU of them but my¬ self said it was on the south-east. A long discussion took place upon the little angle close to the gate, I denied and opposed their right to the road they had made. I studied what was right; not Mace's convenience. Mr. Essell attended with me and the plaintiff. Mr. Essell said, or implied, there was no creek, as he said his capitular clients always had a right of way across where the new gate stood, which I again denied. The Plaintiff. —Attended with Mr. Wickham to inspect the land he had purchased and the limits. Saw the creek before it was filled up ; it was only in parts, partially filled; at high tides the water could flow in as usual; walked over the old entrance into the Dean and Chapter's marsh. Judged the creek at the 19 mouth must have been upwards of twenty feet wide; he should have said from twenty feet to twenty-five feet; it narrowed where the land-wall turned to the south-west and terminated in Mr. Whittaker's field opposite the south-western part of his (plain¬ tiff's) land. ^ Mr. Wickham did not, at first, say the entire creek was his (plaintiff's) property. It was subsequently shewn to be wholly his. Considers it now (from accumulated evidence) wholly his. When he attended with Mr. Essell and Mr. Wickham, Mr. Essell declared they (the Dean and Chapter) always had a right of road there ; through where the new gate was set up. Mr. Wick¬ ham proved it was an impossibility; and Mr. Essell did not reply.* He saw he had made a mistake. Mr. Mathews, previous to examining witnesses for the de¬ fence, remarked that the marsh and land were in the possession of Mr. Mace's executors,f held from Sir John Croft for seven years, from 1860. , Mace died in October, 1862, and in truth the executors are the defendants. He laid stress on the inconvenience and hardship to which they had been exposed by the plaintiff's conduct, on the long time since the creek was filled up, and the claim made by plaintiff to more than he was entitled to; and remarked that the late Mr. Janes was Mr. Mace’s enemy; and that the case had been put in a vague way; and that if he could prove that the gate was not set up on the plaintiff's land, he should then dispose of the case. The width of the old creek was never twenty feet—nearer ten. He should call a gentleman who knew the property for fifty years. At high tides barges floated in, and were allowed to settle down. He said, I can show what took place between Mr. Janes, Mr. Everist, and Mr. Mace. In 1850, Mr. Janes consulted Mr. Everist; and it was arranged by Mace and Janes that the road and wall should be as they are. Janes, by Mace's leave, took out immense quantities of mud from the creek; the embankment was used by Mace and Everist. The following witnesses were then called and sworn:— Mr. Henry Everist, tenant of C. Gustavus Whittaker, Esq., of the Temple Earm, a magistrate, and lately Mayor of Eoch ester. —Has lived at the Temple Farm nearly twenty years. Was inti¬ mately acquainted with Mr. Janes ; knew the property before Janes bought it; knew it before the road (land-wall) was made, and when Janes made it. There wasn't any creek ; a little ditch ; no creek—only a ditch. The tide flowed over the whole. When * When Mr. Wickham said he should under any circumstances oppose their establishing a road, Mr. Essell ®ade remarks which led both me and Mr. Wickham to understand an amicable arrangement would be made. He set us quite at rest on this point! t Mr. Clements (the capitular surveyor), Mr. Wates, solicitor for the defence, and another. B 2 20 the tide was high enough it flowed up to the Temple land. The ditch was not more than ten feet wide where the gate stands; it narrowed up to nothing where the old gate stood. On the other side of the old gate it was a narrow ditch; you could step across. Janes in making his waU, shot his wall and narrowed it; it was ten or twelve feet. He wanted to get all the land he could for his brick-field. The present wall is double the width of the ori¬ ginal wall. Twenty years ago Janes had dug out nearly aR his earth. He then bought two acres of Mr, Whittaker. Lug boats came up the creek at high tides ; never saw a barge in it. A lug boat doesn't draw more water than a fishing-boat; is ten feet wide on deck, and seven or eight feet at bottom. Was often called to assess damages done by Janes to trees from kilns. Janes consulted me about boundary; he continually increased. I remember telling him he was working too near the Dean and Chapter's land. Him and me were very friendly. In a wRl I made I left him executor. When I went to the Temple Tarm the land-wall was two feet wide. Perry, the railway contractor, complained about the fence not being put up when the creek was filled up; the fence by my part was put up at once. Perry consulted me where to put up the fence ; and I and Sidden (then the Dean and Chapter's sur¬ veyor), and Mace (disinterested persons) directed him. I saw all the fence put up. The gate was put up afterwards. I was con¬ sulted, and I directed it. The fence stands outside the creels, and two or three feet on the Dean and Chapter s land. Never was more certain of anything in his life; would not say it were it not true. They brought in chalk, etc, to help to fill it up. On cross-examination this witness said he was the biggest rate-payer in the county of Kent, and had built forty houses. Had taken no part of the creek to himself, when he and the two other disinterested persons directed Perry. He had possession of what was the creek between Janes’s and Whittaker’s property. PlaintiflF never spoke to him on the subject. He never received a letter in which it was referred to.* I have known Janes cut away the Dean and Chapter's marsh. I knew of his cutting it away where the old gate stood. I often advised him. He never would take my advice. We were on excellent terms. What some may suppose inconveniences to neighbours which I built, he didn't regard as such. He planted trees to take ofiF their view.' The fence is not upon the plaintiff's land ; the gate stands upon land which belonged to the Dean and Chapter. Mr. George Webb (of the firm^of Messrs. Murton and Webb of * The following occurs in a letter I sent Mr, Everist, by post, on Feb. 2nd, 1862:—“At the same time, I should name that on the south side of the road upon the bank, a considerable piece of the ground I purchased has been deprived of its boundary, and has been taken into your field.” 21 -r¥’'- ™ sent for by Mr. Wickham. Mr. belonging to Janes. Met Mr Wickham on the spot, which he inspected. Took evi¬ dence of Mr Evenst. Mr. Mace. Mr. Bnllard, and Mr. Clements. Did not recollect if Mr. Wickham was allowed to say all he had 0 say. Mr Wickham said he thought it a strange thing that the Dean and Chapter should resort to such means for such an insig- nihcant end. Could see earth that had been newly put in The new gate stood upon earth that had been put there. The Arbitrator. —You might see new earth, and yet the gate would be over the cess. ^ Mr. Tfe^—Considered the gate within the boundary of the Dean and Chapter. ^ Mr. John Simpson Bullard, formerly in the office of the ^apter clerk, Mr. Essell.—Produced a map made in 1825 by Couge for the Dean and Chapter. Eecollected the property for forty years. Believed the new gate to stand some feet on the old Waitings, which were bounded not by what he should call a creek, but by what he should term a rill. Does not think the tithe map fully represents it. In 1858 Mr. Wickham claimed the whole of the creek. In 1844 he (Mr. Bullard) was actino’ under his employers for the Dean and Chapter. ° On cross-examination it appeared Mr. Bullard could not re¬ collect the state of the creek, the bank, and the adjoining property twenty years ago so well as he could forty years ago, at which time he passed that way by the Cherry Orchard to shoot wild fowl. Mr. Ed,ward Edwards, a retired surgeon, formerly residing in Strood.—Remembers the property for forty years. Often went that way. One side of it was the Hog Marsh; the wall narrow and low; a deep fall j and then the ditch j the creek much bigger now than then, about six or eight feet. The land of the Dean and Chapter now not near so large; has diminished nearer the river than the old wall. The new wall is nearer the river than the old wall. Did not see the creek when it was filled up. Where the gate now is was formerly Saltings. The creek would scarcely hold a boat; it might have been possible for one at high water. On cross-examination .—Knew the wall in 1838. Does not remember the new wall being built. His memory is very good. The creek to the Medway is much wider, larger—double as wide as in 1838. To other questions^Mr. Edwards replied that he did not recollect. Thomas Gilbert. —Lives at Higham; is seventy-four years 22 old. Has known Strood for forty years. Was in Mr. Mace’s employ. Took korses to the Saltings from the turnpike gate, and across the corner of what is now Mr. Smith’s garden. Eecol- lects the ditch. The creek was wider on the Saltings’ side. Left Temple Farm twenty years ago. Has been sixteen years at Higham. Forty-one years ago was the first time he led horses into the marsh. Eecollects a little round post. Had not been on the spot very lately. Cross-examined. —Mr. Edwards asked me to come down, and Mr. Coombs. Had not been there but once of late years. On being pressed, admitted that he and Mace (the following witness) were there together on the L2thinst. Mr. William Mace, land surveyor.—Lived there since 1798. The thoroughfare from the turnpike to the marsh crossed the Hog Marsh, now Mr. Smith’s garden. A gate to the Dean and Chapter’s marsh stood upon the narrow wall. In the creek they washed sheep forty or fifty years ago. There was room for two boats to pass each other. Janes took stuff from the mouth of the ditch. Eemembered barges as far as they go at the present time; never into the smaller creek. The fence is, in my judgment, within the Saltings, and the gate also, three or four yards ; the gate three or four yards within the Saltings. The fence is two yards from the centre of the creek. He always considered all yours [Dean and Chapter’s] thirty or forty years back. Where the gate now stands was always dry. On cross-examination said—For thirty or forty years have never known the Dean and Chapter exercise any act of owner¬ ship over the property. [The same answer was given to a repeti¬ tion of the question.] Would not let boys bathe in the creek. Sheep were washed there forty years ago. Mr. John Goomhes of Strood.—Has known the Saltings thirty- five years. Went on the marsh once or twice before Janes made bricks; is not clear at which end they entered the marsh. In 1827 the wall was as now, only smaller; and it was crossed to get into the marsh. Eemembers a dispute in 1838 about horses crossing Janes’s field; an arrangement was then made; was not present at such arrangement. The ditch was about eight feet wide; he could have jumped across it. He never did jump across it. Eemembers Janes excavating the creek at the mouth of the ditch. Does not believe a barge went up Janes’s Creek, except at a high tide. The fence has been put up at the edge of the ditch on the opposite side.. The width of a barge is about twelve feet. Cross-examined hy Mr. Wickham. —By the exj)ression, “the opposite side of the ditch,” I mean the Dean and Chapter’s side. The Arbitrator. —One must believe the evidence of one’s own senses. 28 Mr. Thomas Buck of Ring's Mill Farm, •who lived many years at the Temple Farm, was subpoenaed for the defendants, and ap¬ peared on the first day at Maidstone; but on the first day only. It was stated that being resolved to speak the truth, his evidence would have been fatal, or at least very damaging to the defendants. I have heard that Mr. Buck has expressed himself to that effect; and his conduct is highly honourable to him. We could have called Mr. Buck, but we felt our case so completely made out and established, that it was needless to call him and other witnesses. Mr. James Sharpe produced a map of the Saltings (prepared by him for the capitular surveyor) in their present condition. The object seemed to be to show that the Dean and Chapter’s marshes were not so extensive now as formerly, and that it might be thence inferred the plaintiff (through Mr. Janes) possessed what they missed ; but it showed the quantity to be 1 rood 19 perches more than it was twenty years ago ! The Arbitrator observed that this map might be fallacious: he would take it for what it might be worth, a map to show a loss of land. It was impossible to say where the land has melted away. Mr. Mathews. It is clear we lose two acres. The Arbitrator. We must rely on ocular testimony: on what we, ourselves, have seen ] and also on witnesses. Mr. Mathews. There was a time when the property now claimed by the plaintiff was the property of the Dean and Chapter of Rochester, The testimony of all, since 1830, tend to show the property was the Dean and Chapter's: all unite; Mr. Everist, Mr. Bullard, Mr. Mace, Mr. Coombes, etc. There is important evidence given by Mr. Bullard in a tracing of an accurate map, showing continual encroachments by Janes, which Mr. Wickham and Mr. Roach Smith are continuing. Plaintiff's case is that Janes began at some uncertain time to dig earth for bricks ; that he took out mud from the creek over a series of years, and the acts were exercised during tenancy by Mace. But it would be a hard thing that the Dean and Chapter should now be losers from the oversights or omissions of Mr. Mace. The Arbitrator cited a case where the Dean and Chapter of Canterbury, from having exercised no supervision, lost their land through the negligence of their tenant. Mr. Mathews continued; and again referred to the evidence of Mr. Everist that Janes did not dig to the full extent of the creek; and that Janes put up the fence (land-wall ?). With the evidence of Mr. Cattlin, on the other hand, he owned he had a difficulty. Mr. Prentice replied on the entire evidence. He drew atten- 24 tion to the inconsistencies of the testimony of the witnesses brought forward by the defendants : some could remember, and some could not; some had very long memories, but yet could not speak of the state of the creek and land-wall within a moderate limit of time. How was it, he asked, that Mr. Essell had never been brought forward ? He had his senses ; and could have told them something : why was he not produced ? As for the varied state¬ ments of the witnesses about the width of the creek, it was im¬ possible to believe them, or to reconcile them with the clear, and obviously correct evidence given for the plaintiff, confirmed as it was by what they might see even now, and what they had all seen. Even had it been at all possible to believe them, what did they mean by saying that the fence and the gate were upon the Dean and Chapter's side of the creek ? This creek one said he could have leaped over, another called it a ditch, and one termed it a rill! But it was proved by the same evidence for the defendants that sheep had been washed in it, that boys used to bathe in it. Was it possible to believe that boys bathed in a ditch; that sheep were washed in a ditch? He would, however, not dilate on all the manifest inconsistencies they had heard; so great and glaring were they, that even if the plaintiff had been wholly without testimony, the defendant's wit¬ nesses would have made his case for him. He would rest his case simply upon the clear confirmed fact, that the gate had been set over the cess of the plaintiff's land-wall. Such is about what occurred during the arbitration. The result will be anticipated by every one who reads carefully the evidence for the plaintiff and the evidence for the defendants ; who asks who the witnesses for the former are, and who are those for the latter ? and who (with the clue which a full answer to his query would give) examines into the evidence, and, indeed, into the whole of the case and its antecedents. Persons living upon the spot, knowing the place, and in possession of all the circum¬ stances, can readily penetrate the transparent flimsiness of the defence; the absurd attempts to show that at some past time the Dean and Chapter held a portion of the ground Mr. Janes bought in 1829 ; the inference suggested that because (as they asserted) they had so much land at some remote-time, and had not so much now, that therefore I must hold it; and the vain efforts to con¬ tract a creek into a ditch, a creek open to the eyes of all only a few years ago, would be merely ridiculous were they not a des¬ perate attempt to make up a case against manifest and con¬ clusive facts. Strangers to the locality, though not so easily able to understand without maps and plans the else simple ques¬ tion at issue, will nevertheless be able, from the foregoing evi¬ dence, to judge for themselves correctly. 25 Our witnesses might have been quadrupled, could I have consented that they should have been exposed to the consequences of giving testimony against the interests of persons of so much local influence, who could, and, as they supposed, would, sooner or later, have sought means of resentment and revenge. In the face of this danger, several had sufficient moral courage to ask to be allowed to appear; but we were more than sufficiently for¬ tified ; and I have the gratification, in thanking them, to feel they can never be marked injuriously for doing their duty. The witnesses for the defence were nearly all labouring under the disadvantage of being, in some way or other, I will not say suborned, but connected with the defendants. Mr. Coombes is a relative of the deceased Mr. Mace, and so is William Mace. Mr. Webb is a nephew of, and in partnership with, Mr. Murton, agent for Sir J. Croft, the lessee of the Dean and Chapter. Mr. Bullard was formerly in the office of the Chapter Clerk. Mr. Edwards and the man Gilbert (whom he and Mr. Coombes hunted up) could say nothing whatever that helped their em¬ ployers ; but on the contrary ; and if the arbitrator, having seen the gate and fence, and the yet visible limits of the creek, could have believed Mr. Everist's statement that the gate was on the Dean and Chapter^’s side of the creek, then he could not have believed there had been a creek at all. Not any attempt was made to verify the bold assertion of Mr. Mathews that any part of Mr. Janes's ground had ever been the Dean and Chapter's. When Mr. Janes purchased the estate in 1829, the creek now filled up divided his land (called, it seems, “The Hog Marsh") from the Dean and Chapter’s marsh, known as “The Saltings." Through this, the Hog Marsh, from time out of mind, was an undefined way for horses and cattle over the road between the creeks, which the Dean and Chapter's agents stopped up when they made a new road and set up the gate over the cess of the land-wall. It is incredible they ever had a footing, except so far as the undefined pathway allowed them, which was never disputed. Mr. Janes had too many vigilant eyes upon him had he been disposed to take a foot from the Dean and Chapter. What fence did he remove ? What acknowledged boundary did he violate ? The Dean and Chapter produced maps such as they, for their own interests, selected ; but they never attempted to show the existence of any such fence or line ; and never dreamed of any until it became necessary for them to try to retain so tempting a bit of addition to their broad lands, which meretricious fortune had thrown into their grasp, as they were led to believe, and to get a more convenient road to their marsh. Eor twenty-six years Mr. Janes had possessed and used the land and the creek also, and twenty-two years ago Mr. Cattlin 26 deposed that he made the tithe map, and was instructed by the Dean and Chapter themselves to lay down therein the creek as not even in part theirs, but as wholly the property of Mr. Janes, This map, held by themselves as proof and authority, their repre¬ sentative disparaged; but he tried to force as evidence a map which the Arbitrator said might be fallacious; which, in fact, was so, and which (its unworthiness being exposed) the defendants tried to withdraw! As Mr, Mathews correctly said, I wrote letters claiming the whole of the creek. I hope the Dean and Chapter and the Provost of Oriel may be induced to print and publish the entire correspondence. It was by. means of a docu¬ ment in their own possession, sanctioned by them, and, as regards the creek, directed hy them, that I discovered my right. No one previously to the coming of the railway had ever paid particular attention to a long winding boundary of land, dividing marshes of no great value, presenting nothing attractive one would think, although some of the witnesses for the defence had (as they alleged) so acutely noticed it so many years ago ; one so far back as forty years, when cherries grew near and wild fowl rested not far off! Could a sportsman and an admirer of cherries which grew in an orchard called the finest in Kent, be so likely, forty years ago, to know so much of this creek as Mr. Cattlin and Mr. Harrison, who professionally surveyed it, the one twenty-two years ago, the other some ten years? Could he or the other witnesses of the defendants have known it as the men knew it who worked in it for years? The one is attracted momentarily by cherries just beyond it; and by wild fowl further still. The others stood in the creek itself for days and weeks—^were for years in and about it, and could be supposed to have reason for knowing its depth and breadth, and for knowing it was a creek, and not a rill, nor a ditch to be leaped over. What could Mr. Coombes, Mr. Edwards, Mr. W. Mace, or Mr. Bullard know of the breadth of the creek in com¬ parison with Mr. T. Janes or Mr. Wickham, who saw it daily ? Or with Mr. Clark, who kept a boat in it ? In short, whatever in other respects may be their trustworthiness, in this case they were not to be credited. But to me the most curious part of this singular effort on the part of the Dean and Chapter to retain possession of my land was their bringing forward as witness Mr. Everist, by whose acknowledged instrumentality they had been put into possession of it! Their tenant Mace, their surveyor Bid¬ den, and Mr. Everist, their chief witness, directed the railway contractor Perry I It was natural enough for Mr. Wickham to remark, as Mr. Webb stated, that he wondered the Dean and Chapter, with their vast possessions, should strain every available nerve to acquire 27 this little strip of land. Every man of honour and nonesty would wonder. I have heard say they think themselves stewards ! But there are unjust as well as just stewards ; and it is no part of a just stewardship to acquire an increase of property by unjust means, such as they used. We are all stewards it may be said ; what is ours is for others ; partly while we live, wholly when our brief holding of life and goods is over. The Dean and Chapter have not only enormous property and influence in their capacity as a firm or body, but they have individually great wealth. Dr. Grifiith, it is said, could lose £50,000 at once by the failure of a bank, and yet not feel the loss, unless it were beneficially, as the phethoric man is never injured by losing superfluous blood. In every point of view then a greedy sensitiveness to the property of others is no proof of good stewardship; what it is proof of I need not say. Mr. Knight* remarked, that corporations and deans and chap¬ ters, because they did not allow everybody to take possession of their property, got abused. He may rely upon it that where a rich corporate body is in one instance injured by an individual, they in fifty instances are the oppressors; and it is but very seldom a man with right only on his side can dare to contend with almost boundless wealth and the complicate and unscrupulous machinery which wealth commands. When, therefore, an indivi¬ dual who has not forfeited his good character, is seen opposing a pubhc body, it may be taken for granted that the single man is either in the right, or is convinced he is. He cannot afibrd, like rich bodies, to speculate on the chapter of accidents ; to hold what chance, or it may be fraud, throws in his way, and trust to the issue of the law. Many a man has been crushed by public bodies owing to his very helplessness; but the weakness of the isolated is of itself a protestation against this romantic and fan¬ ciful idea of ill-used corporations and deans and chapters. It is the old fable of the wolf and the lamb, with a modern application. Though it is of no advantage to me, it may be of some use to the Dean and Chapter and to the public to print their names. I am assured that if each could be canvassed singly, each would lament the insults so coolly put upon me; that each would dis¬ claim any ill feeling; that some would even deny any know¬ ledge of the matter; and that all would express regrets. I cannot be brought to think so meanly of their morality. They will hardly avail themselves of a pretext so thin—of an excuse so shallow. They, no doubt, justify themselves, one and all. If not, the press is open to them; and they yet hold a portion of Of the firm of Essell, Knight, and Arnold. 28 my land by, as it appears, their own acknowledgment,* and have inflicted upon me the loss of much time and of some money in recovering what I have recovered. How they justify themselves I can only suppose from what has transpired during the arbitration. Mr. Mathews boldly said the land, and bank, and creek were once the Dean and Chapter's. Who suggested this; and why was it sug¬ gested without the shadow of evidence ? This was the unstable . ground upon which it was attempted to establish the reckless assertion. By the Dean and Chapter's maps it seemed to have appeared that at some past time they held at that particular spot of their estates a certain measurement of land. Now, if in 1863 they could prove they had not so much, it was sought to make or strengthen their caige by suggesting that I must have it! They had it measured, and by their measurement they believed they had lost two acres. Their maps showed they had gained 1 rood and 19 perches. The quantity they held of mine did not amount to more than a quarter of an acre; but this they never had before been in possession of It was not for us to show what they had done with their two acres ; but it could have been suggested that the Maidstone Eailway had taken and paid them highly for a large piece; that two sides of their land had ever been under the action of the river, and had decreased yearly; and, lastly, why did they not suspect that in fencing ofi* the land a part might have been absorbed into Mr. Whittaker's estate ? The Capitular Surveyor did not probably survey in this direction ; but I am told by per¬ sons who know far more of the limits and boundaries as they were, that nearly or quite a quarter of an acre of the Dean and Chapter's Saltings was fenced so that it now forms part of Mr. Whittaker's psoperty. But whether it be here or there, under the railway or in the Medway, it is not for me to show • I had only to prove it was not in my possession, and that I never sought for it; and that has been done convincingly and effec¬ tually. Those who may not yet fully understand the case, who may wonder that it could be possible for the Dean and Chapter to coun¬ tenance such proceedings, may possibly say, “ Had the Dean and Chapter been led to believe that, being in possession, they had a 'primd facie case against you, and really believed that you had no right, and that they had every right to the creek"? This is a very charitable point of view, in which, to survey the matter for the Dean and Chapter ; but it is delusive. What was the possession they had ? It was a possession I had held; and it was taken furtively, while neither I nor Mr. Wickham was looking on. It was the * The Tythe Commissioners’ map, sanctioned by them: and, as regards the creek, dictated by them. 29 kind of possession that is often transiently held by the daring and dextrous, until the owner, who is spoiled, can sound an alarm and call for the watchman and the police. It would be a great aggra¬ vation of the offence if the purloiner were to allege he had pos¬ session, and therefore had a primd facie case in his favour. The alarm was sounded by me ; I followed my property immediately. Mr. Essell, on the part of the Dean and Chapter, appeared upon the spot in conference with us; and such a possession for the Dean and Chapter was no real or legal holding at all. It is painful to be forced into collision with a body of men holding so high and so sacred a position as the Dean and Chapter. It is all the more grievous when they themselves are the hostile incentives to disturbance. All who wish weU to the church must be afflicted to see her guardians in a state of antagonism to the principles upon which the church is based. The Dean and Chapter of Eochester cannot, morally, afford to be provoking actions in courts of law under specious excuses. They should be known as aiming at something higher and better. In the great work they have undertaken, they should be so earnestly engaged, should be so individually occupied, so accessible, so vigilant, that law-suits should be impossible. There is much to be done in and around Eochester with a neglected population. And yet not one in a thousand has probably ever seen the Dean or the Chapter. Lord Ebury says the clergy are a caste by themselves ; but the Dean and Chapter of Eochester are almost a caste among the hard- worked and ill-paid clergy around them ; to the laity they are wholly so; they are unseen, unfelt, and unknown, as regards the active duties of their profession. THE AWAED. ]. Verdict entered for plaintiff to stand; but the entry for damages to be reduced to one shilling 2. The fence set up by Perry under the direction of Mr. Everist, Mr. Mace, and Mr. Bidden, to be removed back to the extent of forty feet in length and ten in width. 3. The gateway to be removed ten feet from its present posi¬ tion towards the west. 4. Defendant to have the right of a road, ten' feet wide, for carts, cattle, etc., across the plaintiff's land at this point, which is more especially shewn by a plan prepared by order of the Arbi¬ trator, the plaintiff being at liberty to erect and maintain a gate upon his property. 5. The fence to be removed within a month by defendant at his expense, and to become his property. 6. The defendant to pay the plaintiff's costs of, and incidental 30 to, the reference; and the defendants to bear and sustain their own costs. 7. One moiety of the costs of the award (eighty guineas) to be paid by the defendant; and the other half by the plaintiff. (Signed) T, D. Archibald. Given July 20th, 1864. The forty feet in length and ten feet in breath extend to where the bank turns to the south. The other part of the filled-up creek remains just as it was parted off, in the manner stated, for the Dean and Chapter, up to Mr. Whittaker's land ; so that, so far as the evidence given for plaintiff shewed, the Dean and Chapter are still, in every way, considerable gainers in land; and they have obtained a new road over that portion of plaintiff's land the most valuable to him, and which road materially affects his using the ground. It will thus be seen that under certain circum¬ stances a road can be altered for the benefit of one to the detriment of another; that advantage can be taken of the filling-up of a creek to change an old road and establish a new one in spite of the op¬ position of the owner of the land over which the new road is made. I can only repeat that the entire case is of importance to the public. It is only just to remark that since the Award was given Mr. Everist has restored that 'part of the Plaintiff’s land which had been taken into Mr. Whittaker’s farm. T. KICHARDS, 87, GREAT QUEEN STREET,