Legal Opinion – Robert Hopper Williamson to John Bell – 28 Dec 1793

Case



      Sir John Fenwick of Wallington in the County of Northumberland by Inde[nture]s of Lease and Release bearing Date the 1st and 2nd Days of December in the 3rd Year of King James the 2nd and in the Year of our Lord 1687 in Consid[eratio]n of £140 conveyed to Edward Burdett of Grays Inn in the County of Middlesex Esqr All that Messuage Farm Tenement or Sheepwalk with the appurt[enance]s called or known by the Name of Westburnhope and all Lands Tenements and Heridit[ament]s thereunto belonging or in anywise appertaining or reputed taken or enjoyed as Part or Parcel thereof situate lying and being in Hexhamshire in the Parish of Hexham in the said County of Northumberland late in the Tenure of Wm Pearson Gent his Assigns or Undertenants And also all Tithes of Corn Grain Wool Lamb and Pigg and other Tithes whatsoever - And in the Year 1691 the said Edwd Burdett conveyed the above Premisses to Sir William Blackett of the Town and County of Newcastle upon Tyne Bart

	This Estate is the Property of the Present Lord of the Manor of Hexham and for any Thing that appears to the contrary contained 97 Acres of inclosed Ground at the Time of the Purchase and the Tenant claims a large Tract of open ground as belonging thereto and which he says he has <Staff-> herded for 50 Years past and that the former Tenants used to do the like and about 23 or 24 Years ago the Examination of several Old People was taken (ex parti) to give the then Lord of the Manor some Satisfaction as to his Right to this Tract of open Ground which they (the Old People) described as follows, to wit, Beginning at the Foot of Brigsike where the same runs into Rowley Burn from thence Southwards up the said Sike to where the Road from Allenheads to Gingleshaugh and Dukesfield crosses the said Sike so westwards up the said Road to a little Hill and from that Hill to another little Hill near the Linburn head - From the last of those Hills in a direct Line to the Linburn and so up the said Burn to the Fordstead near the Low-Lin then through the said Burn at the Said Fordstead southwards up the Linburn Rigg along the Carrier Way to the Laddle Sike from thence Northwards along the Road leading from Allendale to Darwen Head till the Road comes to Knight’s Cleugh so through the Cleugh till the said Road adjoins the Road leading from Allenheads to Hexham then down the said Road to Baxton Cleugh then from Baxton Cleugh Eastwards along the Carrier Way to the Cast on the East Side of Charlie’s Bank then Southwards down the said Cast to the Burn where this Boundary did begin - See the Abstract of the Examination of the old people (most of whom are now dead) herewith sent

	The Agent for the Lord of the Manor on delivering the Lord’s Claim to the Commrs for dividing Hexhamshire and Allendale Common included this Tract of open Ground as a Part of Westburnhope Farm for which he claimed a Right upon the Said Common and it is apprehended an Objection will be made to the Claim  But the Agent contends that should an Objection be made to the Claim he will be well justified in persisting in it because the Sum of £140 paid for the Purchase of Westburnhope in 1687 was too much Money to be paid at that Time for only 97 Acres of Ground and the Tithes considering not only the Situation of this Farm which is upon the Moors and the small and uncertain Value of Stock at that Period owing to the political Situation of the Country it being before the Union and Watch and Ward being kept continually to guard against the Incursions of the Scotts upon the Northern Borders commonly called Moss-Troopers - For these Reasons coupled with the Enjoyment as shown by the Examinations of the Old People and the accounts given by the Tenant and also the Description in the Deed of a Farm or Sheepwalk the Agent supposes the £140 must have been paid for something more than bare 97 Acres of Land but being unwilling to run his Employer into Litigation without better advice requests Mr Williamson to give his Opinion whether under the Circumstances attending of this Case should an Objection be made to the Claim it will be prudent and justifiable in the Agent to persist in the Claim or he should give it up and be content with the Rights of Common only for the 97 Acres but if the Claim is to be persisted in then as most of the old People who have been examined are now dead what Mode must be pursued to render the present Tenant a Witness in Support of the Claim?

      

      From the Evidence taken in the Year 1769 there certainly appears strong grounds for the Claim which has been made by the Agent of the Lord of the Manor the Death of many of the Witnesses may perhaps make the Proof of the Rights now claimed more difficult than in 1769, but I think the Claim should be persisted in, as the Testimony of Joseph Armstrong seems to have considerable Weight, and when supported as it will probably be, by Evidence of more recent Enjoyment will afford a Proof of Title nor easily repelled, as the exclusive Enjoyment of this Tract of Land both at the remote Period spoken to by Joseph Armstrong and also in more modern Times seems prima facie referable only to that sort of separate Title now contended for by the Agent of the Lord of the Manor of Hexham.

      If the present Tenant surrenders to Mr Beaumont all such Right and Interest as he has to the several Grounds marked blue and yellow respectively in the Plan left herewith I think he will be competent to give Evidence as to the Boundary and I presume that the Rights of Common in respect of Westburnhope Farm is not disputed but only the extent of the Farm itself

      It is adviseable to collect as much <Parol> Evidence as can be obtained to strengthen the Testimony of Joseph Armstrong, as the Circumstances of the Enclosure made between 30 and 40 Years ago may not perhaps avail so much in the present Case, as similar Enclosures may in some other Cases, as the Lord of a Manor may enclose the Wastes of the Manor leaving sufficient Common for those intitled, unless the Tenants * of the Manor prescribe to have particular Privileges in the Wastes which may prevent the Lords Right of Enclosure.

      Robt Hopper Williamson

      NCastle 28th Decr 1793



[Marginal note:]

Green    97 Old Inclos

Blue      49 late Inclos between 30 and 40 Years since

Yellow  800 open Ground



[footnote added by Bell:]

* The Tenants of the Manor may prescribe for getting Peat and Turf Stones for building & repairing their Houses and Walls or Fences and Ling and Heather for thatching their Houses and Limestones upon the Waste for improving their Land which it is apprehended prevents the Lord’s Right to Enclose under the Statute of Merton according to a later Determination in the Terrn Reports

JB