Shanks v. Welch land dispute

[Coquet]

Interesting one this. Includes some glimpses of old Amble:
[most of these cuttings have a date pencilled on, but not this one that I can see, but the bulk of the dated ones are from the 1840s; this will almost certainly be the same period. As the ages of the witnesses are stated you will be able to date it from the census returns]

SHANKS v. WELCH
The counsel were the same as in the preceding case.
Mr. Watson opened the pleadings. The plaintiff charged the defendant with a trespass on a certain close in the township of Amble; and the defendant pleaded first, that the plaintiff was not, at the time of the alleged offence, in possession of the close in manner and form described, and secondly, that the close was the freehold of the Countess of Newburgh; to which the plaintiff had replied that it was not the property of the Countess of Newburgh, and thereupon issue was joined.

Mr. Cresswell stated the case at great length. With respect to the first issue, whether Shanks was to possession of the property in question, he should adduce evidence clear and satisfactory. The other question as to the title of Lady Newburgh, required more consideration. In respect to the latter, Mr. Smith, and formerly Mrs. Taylor, were the owners of property adjoining the sea, and situated on the south side of the river Coquet. For several years back Mr. Smith and Mrs. Taylor had exercised general acts of ownership over the rocks which bound the land next the sea, but between these rocks and the enclosed lands there was a ridge of sand banks grown over with bents, and which would, in the course of the proceedings, be described as the Links or rabbit warren. On a part of these Links the defendant had erected a house, which he lived in, and this was the trespass complained of. There could be no doubt that when a person held lands or property undisputed for a considerable period, upwards of sixty years, the law acknowledged his right of ownership, and a recent Act of Parliament had taken away the power of persons recovering property if twenty years were suffered to elapse without prosecuting his claim. After proving these several acts of ownership exercised by Mr. Smith and Mrs. Taylor, that would be prima facie evidence of their title to the property, and it would remain for the Learned Counsel for the defendant to make out an opposite title, if he could do so. After some further observations the Learned Counsel proceeded to call:
John Turner was seventy-eight years old, and had lived at Amble all his life. He rented the Links of Mr. Smith and his father, and was tenant, first and last, for thirty years. Fed cows upon it. Had also rented the rabbits of Mr. Smith's Links of Lady Newburgh's agent, as well as those on other Links. One of the Links was called the Hope Link, and it belonged to the Hope farm. paid the rent for the rabbits to Lady Newburgh's agent, Mr. Leadbitter. Recollected the boundary between Mr. Smith's Link and Lord Newburgh's. It was a dyke. The course of the Coquet has changed, and washed into Mr. Smith's Link ; there is a rock at the end of Mr. Smith's Link, against which the river flows. About thirty years ago put down some stones as a separation between Mr. Smith's and the Hope Link. Put them down at the request of Mr. Smith and Mr. Leadbitter. They called on me to shew them the line of the boundary, as the earth dyke was then gone, and having pointed out the line of the old boundary, the stones were put down, and they are there yet. Mr. Taylor's Links are to the south of Mr. Smith's, and there is a stone wall between them. The tenant of Mr. Taylor's farm feeds the Links, but Lord Newburgh got the rabbits. They get stones from the rock at the end of Mr. Smith's Link, but they always ask leave. They go to Mr. Smith first, and then they come to me, and I keep an account of what is taken. At the Martinmas fair at Warkworth, I collect the money and divide it between Mr. Smith and Mrs. Taylor. Mr. Leadbitter's son once set a man on to win stones without asking leave, but Mr. Smith Interfered, and the stones were not taken away. A person named Summers also attempted to win stones there without leave, but he was prevented by Mr. Smith. There is a quantity of seaweed on the rock, and formerly kelp was burnt upon the Link. A person named Hall and his father who lived at Bondicarr, did so for many years, but latterly there has been no demand for the article. I have known wrecks come on shore on the rocks, and have received salvage for them, which I also paid to Mr. Smith and Mrs. Taylor.
Cross-examined by Mr. Alexander—The boundary between Amble and Warkworth is about half a mile to the north of the Coquet. Two commissioners of the Duke of Northumberland came over, and were present when the boundary stones were laid. It was a mark between Lord Newburgh and the Duke. That is about forty years ago. It was at the north of the Hope link. Mr. Leadbitter and Mr. Smith's father were also present. This was about eight years before the other boundary was laid down. There was a salt pan formerly on the rock at the mouth of the river, where it is at present. A man named Storey had the pans taken, but they have not been worked for the last thirty or forty years. There was a black-smith's shop and other buildings beside the pans. There was a sale when Storey left. Never saw a building, or anything of that kind on the site now occupied by Welch's house. The salt pans belonged to Lord Newburgh. There is a road along the Links.
Re-examined by Mr. Creswell—The road ran down the middle of the Links. There is a stone wall between Mr. Taylor's and Mr. Smith's Links, with a gate through it : and there was an earth dyke between Mr. Smith's and Lady Newburgh's. The rabbits used to go with the land till Mr. Leadbitter came.
Cross-examination by Mr. Alexander resumed.--Mr. Cook had the salt-pans formerly, and also the colliery, and coals were laid upon the Links then. They were laid there in the summer for consumption during the winter. There was a paved road from where the coals were laid to the pans.
Re-examination by Mr. Cresswell resumed.—It is between fifty and sixty years since Cook had the pans, and the next people had no coals upon the Links. Mr. John Cook and Mr. Smith's grand-father were brothers-in-law.
Robert Younger is forty-six years old, and has lived at Warkworth all his life. Confirmed the testimony of the preceding witness as to the winning of stones, and setting out the boundary between Mr. Smith and Lady Newburgh's property.
John Holdsworth had lived at Amble Link House twenty-four years past May-day, and had acted as agent for Mrs. Taylor for the stones, and had also claimed salvage for them when wrecks were stranded. Had rented Mr. Smith's Links from Shanks for three or four years, and gave them up to him at May-day, 1839.
George Coward had got stones from the rock, and paid an acknowledgment to Mr. Smith.
Henry Hall confirmed the evidence of a preceding witness as to the boundaries. He remembered the salt pan. The foundation was on the rock, and it stood against the bank. Witness also gave evidence about the letting of the Links and the rabbit warren. Remembered a person named Fuller having Mrs. Taylor's Links, and he was tenant of the farm at the same time, but the rabbits were in other hands.
Cross-examined by Mr. Alexander.--Fuller ploughed up the Links, and Lord Newburgh's agent served him with a writ, and he had to make satisfaction in money.
Re-examined by Mr. Cresswell.---Fuller had to make satisfaction for destroying the herbage and the rabbit warrens.
James Dand is seventy-five years of age, and has lived at Warkworth since he was four years of age. Succeeded Mr. Leadbitter in the Hope Farm. Mr. Carr, of Alnwick, is the agent. A person
named Lockie had the rabbits at that time, and he paid £32 a year for them, which was added to our rent, Lockie gave up the rabbits, we let them for £28. We had no other privilege besides taking and killing the rabbits on Mr. Smiths, Mr Taylor's, and Mr. Widdrington’s Links. If we had the liberty of grazing upon the Links, they would have been worth a good deal more than £32.
William Muers had lived all his life at Warkworth, and his father was agent to Lloyd's, Knew that salvage was paid to Taylor and Smith when vessels were stranded on the rocks. He also confirmed the evidence of a preceding witness, as to the boundaries. A lease was put in, granted by Lord Newburgh to Henry Robert, and James Dand, dated the 25th of April, 1809. It demises two messuages, farmholds, and lands, called Amble House West Farm, and Amble Hope House East Farm, for the term of twenty-one years; also, "all the parcel of waste ground, or sand-bank, on both sides of the river Coquet, but principally on the north side:" also, the "coney warrens, with liberty to take and kill the rabbits."
This was the case for the plaintiffs.
Mr. Alexander then addressed the Court on behalf of the defendants, maintaining that their right to the freehold of the coney garth itself, as well as to the privilege of taking and killing rabbits, was set forth in ancient documents relating to the escheat of the property to the Crown, by reason of attainder against the Earl of Derwentwater and others of that period; and that the description of the property then given was the same as had been used in all subsequent leases and wills, up to the present time. On the other hand, no evidence had been given by the plaintiffs to shew a severance between the right to take the conies and the coney garth itself. He might carry back the documentary evidence to the time of Elizabeth, but he would commence at that period when the property escheated to the Crown. In 1742, the then proprietor, Wm. Radcliffe, of Amble, died without an heir, and on the 4th of February at commission was issued to enquire what estates he died seized of; and the inquisition, bearing date the 16th of November in the same year, and made under, by virtue of, the said commission, declared that Wm. Radcliffe died seized of “all the free warrens or coney garths belonging to Amble aforesaid and Hauxley." Then there were letters patent leasing these possessions to Geo. Lennox, Duke Of Richmond and another, for thirty-one years, at the yearly rent of £16. 10s. Subsequent grants were made by the Crown it, in all of which, the property in question was described in the same terms. The possession was conveyed by letters patent, under the authority of an Act of Parliament, to Lord Newburgh, who, in 1790, granted a lease of the coney garth to Middleton and Smith, then to a person named Turner, and on the 1st of October, 1806, his Lordship granted a " lease of the coney warren or coney garth, with the liberty of taking and killing rabbits there, to Smith, Leadbitter, and others;" and subsequent leases were granted too other parties, all setting forth the possession in nearly the same terms. The patent to Lord Newburgh also contained a grant of a site of the salt-pans; and it would appear from the evidence of the witnesses that would be called, that some of the buildings connected with the salt-pans stood upon the links in question. The fair inference from all these circumstances was, that the title to the freehold was vested in Lady Newburgh. In respect to the acts of ownership sworn to by the witnesses for the plaintiff, it might easily be supposed that during the absence of Lord Newburgh, or the former lessees under the Crown; acts of ownership might be exercised without authority, which was no doubt the casein this instance.
The various documents were there put in, and witnesses examined, with a view to prove enjoyment under them. This was clearly made out in reference to the salt pans, but not in respect to the Links. A lease from Mr. Leadbitter, as the agent of Lord Newburgh, to Messrs. Middleton and Smith, executed by the former but not the latter, leasing " the Coneygarth in Amble" for the annual rent of £10, was put in ; and also another lease to Mr. Widdrington of the Coneygarth, in Hauxley, for the yearly rent of £500, and to prove enjoyment, an account rendered to Lord Newburgh by Mr. Leadbitter was also put in, containing the entry of £15 received from Widdrington, Smith, and Middleton, for the " Coneygarths" in Amble and Hauxley. The evidence in respect to the salt pan went to prove that the buildings were not upon the Links, but upon the rock, adjoining the Links. A number of old foundations had been excavated, within the last fortnight, and engineers had been brought to examine them, with a view to prove that they were the foundation of the salt works, and that Mr. Welsh's house, which was the ground of trial was built upon a portion of the foundation, but nothing satisfactory was elicited on this part of the case, as it was impossible to tell from seeing the ruins, whether they were upon the site of the old salt pans or not.
One of the witnesses, who remembered the position of the salt pans, remarked that they were close upon the edge of the cliff, and could not be seen till the spectator was just upon them, whereas Mr. Welsh's house was built on the top of the hill.
Mr. Cresswell having replied upon the whole of the case, The Learned Judge proceeded to sum up, observing that the question for the Jury to try was the title or claim set up by the Countess of Newburgh. With respect to the first plea put in by the defendant, it had been clearly shewn that Shanks was the occupier of the Links under Mr. Smith, and the proper party in whose name to bring the action ; and in respect to the second plea, setting forth the title of the Countess of Newburgh to the freehold, he might state that it fell to Lady Newburgh to prove the affirmative. The several acts of ownership proved to have been executed by Mr. Smith, and his fathers before him, were prima facie evidence of his title, until the contrary were proved. How then had the defendant endeavoured to make out Lady Newburgh's title?
It appeared that in the year 1742 a certain person named Radcliffe died without heirs, whereupon his property escheated to the Crown, and the Crown, as usual in such cases, being desirous of granting his possessions out to parties connected in blood, but not legally entitled, issued a commission under the great Seal to summon a jury to enquire what lands he died seized of, in order that the Crown might take possession of them. The defendants put in first the commission, and that the finding of a jury upon that; and the jury found that Radcliffe died possessed of a "coney garth in Amble, with the right of taking and killing the rabbits," and also the site of a salt pit in Amble aforesaid." Eventually by a conveyance in fee under an Act of Parliament, passed in the reign of George III., giving power to the Crown for that purpose, the possession became vested in Lord Newburgh. The defendants say that the property thus conveyed to Lord Newburgh was a “free warren or coney garth," and that the Link in question is a part of that “coney garth." Who was in the possession of these lands when these grants were made, it was quite impossible now to tell; but if it could be shewn that since the grant was made, Lord Newburgh had continued to hold it either by his tenants or representatives, that would be an exercise of right which would clearly substantiate his title. Where, however, ancient deeds exist, and modern enjoyment does show enjoyment under them, then these deeds sink into insignificances and therefore the question for their consideration would be whether the defendants had made but that that the freehold had […...] concurrently with the leases. Lord Newburgh made his will in 1812[?] and died soon after. There was no evidence of actual possession on the part of his Lordship, but it was said that he had been in possession by his tenants and if so that was the same thing. 'They had proved that leases had been executed to certain parties and the payment of rent in pursuance of these leases. The earliest document of this nature put in was a lease of 1790 of the Links. Now Turner, the first witness examined, said that he hired the Links (not the rabbits,) and had been tenant to Mr. Smith's father, and the present Mr. Smith, for a period of thirty years, that he had first paid rent to Smith's father, and then to Smith. When he had the " taking and killing" of the rabbits upon that Links, as well as Taylor's and Widdrington's, leased from Lord Newburgh's agent. Smith himself used to graze sheep and cattle upon it. Turner leased it in 1802. 'Then in 1790 Middleton and Smith took a lease of the “Free Warren or Coney Garth, with liberty to take and kill rabbits therein” and the "Coney Garth" is described In the lease as being theta in the possession of Smith. Now that it was in the possession of Smith as tenant there was no evidence to shew, and where a person was in possession, that was prima facie evidence that he was the owner in fee, and if not that must shewn. The " Coney Garth" was certainly further described as " bounded on the west by the lands of William Smith, but when they considered that the Links were but sand banks and the loose wording of these times, he thought but little importance was to be attached to that. Then in the lease it was provided that during a certain portion of the term the Links might he ploughed up, but that two years before the lease expired it was to be laid down in grass again, so as to preserve the breed of rabbits. Now what would be the object of Smith in taking the rabbit warren ? It might be to destroy the rabbits, and so prevent their committing depredations on his crops, and if so, he had clearly a right to do so, provided that at the expiration of his lease he left the warren stocked again.
Mr. Addison here called his Lordship's attention to the fact that the "Coney garth" was described as being in the possession of Smith, or his " under tenants," thereby justifying the inference that Smith himself was a tenant, but his Lordship did not consider that the proper construction to be put upon it. His Lordship then proceeded to remark upon the boundaries, observing that their existance, and the fact of so much importance having been attached to them, could be accounted for only on the supposition that there were rights of one kind or another, attached to one part which was not attached to the others. If the freehold of the Links, as well as the franchise of taking and killing rabbits, was vested in Lord Newburgh, what object could he have in erecting boundary lines ? The boundary between Mrs. Taylor's and Mr. Smith's links was a stone wall, and the old boundary between Mr. Smith and Lord Newburgh was an earth dyke, and there was clearly no advantage in having these boundaries, unless there where exclusive rights attached to each. They had, therefore, no evidence that Lord Newburgh was ever in possession of these Links, whilst they had evidence that some one else was in possession of them. Supposing that this was the case, then evidence was brought forward on the part of the defendants to shew that the salt pits were Lord Newburgh's, and that the house was built upon the site of these pits, and that consequently they were justified in building it. There was undoubtedly a grant of the salt pits, and possession had no doubt been shewn; but then the question was whether the defendants had proved that the house was built upon the site of the salt pits. The pits were on the cliff, the house is on the bank top. Within the last fortnight they had excavated the ground, and discovered some foundations, which they asked the jury to believe, are the foundations of the salt pits. But the evidence was that the salt pans were at the edge of the sea; and one of the defendant's witnesses had said that it was impossible to see them till you were just upon them, and that the house had been built upon the top of the hill. There was one other circumstance to be considered, and that was that on the Links there was a depôt for coals, for the use of the lessee of the salt works, and thence it was inferred that the owner of one was the owner of the other ; but that had been completely disposed of in the cross-examination. He had now gone through the whole of the points of the case, and he did not think it was necessary to trouble them by reading the evidence at length. They had heard the evidence, and would say therefore whether the plaintiff was possessed of the Links in question, and, secondly, whether Lady Newburgh had made out her title to the soil and freehold upon which the house was built, for that constituted the ground of action. Unless they thought that Lady Newburgh had made that out, then the plaintiff would be entitled to a verdict.
It was about a quarter to eleven when the Jury retired, and after being locked up for a short time, they found for the plaintiff; with nominal damages.
We have been compelled, from want of space, to abridge very materially the speeches of the Learned Counsel, both in this case and the preceding one. It is but justice to say that they manifested untiring zeal for the interests of their clients during the whole of the unusually protracted proceedings.

[hollydog]

Thankyou for the interesting articles Coquet.
Is there anyway we could transpose some of the locations onto a scanned map, or even hand drawn sketch map, in order to gain an idea where the farms, lands, boundaries might have been in the c19th

[Coquet]

I would love to see some plans too, I'm sure the court must have had some documents of this nature presented - I wonder what happened to them?

The old salt pans referred to do not appear to be the ones alongside the burn in Amble, but some other place further east on rocks/cliff- and probably not the 'modern' ones near the east cemetery??

[janwhin]

Here's an interesting coincidence. A descendant of Joseph Welch has recently contacted me. Apparently Joseph was of John Welch and Sons, builders of Gateshead who were involved in the building of the harbour. He also built Cliff House, and lived there, and Welch's Buildings. Could this be the Welch involved in the land dispute and could the house referred to be Cliff House?

[Coquet]

Interesting.


It would be nice to have a reference page with biographical details of the local 'movers and shakers'; not just the aristocracy, that is the Countess of Newburgh/Widdrington/Cook/ types, but the individuals that have made a significant contribution to the development of the area, or were otherwise well known to their contemporaries. People that pop up time and again in the archive records/press. Welch might be such a person.



Pehaps a paragraph or two on each?