County Court: Friday: Before Mr. Serjeant Petersdorff, Judge: Whiteway v. Watts, Bearne, Blake & Co.: This was an action for £20 damages, alleged to have been occasioned through the defendant’s having undermined certain lands belonging to the plaintiff: Mr. Creed appeared for the plaintiff and Mr. R. Templer for the defendants. Mr. Creed in stating the case, said Mr. Whiteway, the plaintiff was a gentleman residing at Fishwick, in the parish of Kingsteignton, and the defendants were clay merchants, carrying on business at Newton Abbot and Kingsteignton. The plaintiff was owner in fee of a piece of land called Guinea Park, which adjoined the eastern side of a garden plot. The garden plot, he remarked, was very small, and the hedge which separated the two properties, he contended, belonged to his client. He did not believe there was any ditch on either side of this fence. Had there been a ditch he believed the law would have given a presumption of ownership viz. that the hedge was the property of the person on the side where the ditch was not. In the present instance, however, the ownership of hedge would have to be decided by the acts that had been committed on it and he thought the evidence he should be able to produce, there could be no doubt whatever that his client was the owner. The defendants had sunk in this garden plot a shaft, for the purpose of raising clay, a course that was rather unusual, as sinking of pits was generally the practice. They had sunk this shaft some distance, and afterwards had branched off in another direction to that of the level. The consequences were that the surface of the defendants’ side of the hedge had sunk considerably, as well as the plaintiff’s hedge extending over a length of 42 feet, and also the plaintiff’s land, on the other side of the hedge, some places as much as three or four feet. Furthermore, a portion of the giving way of his client’s land was marked by a chasm, at least six inches in width, about 15 ft. from the hedge; nor could they tell at present how much more giving way might take place. Mr. Templer here inquired of his learned friend if he was going to ask for prospective damages. Mr. Creed said he merely asked for permanent damages, as it was quite evident the field was permanently injured. He was aware the right to the ownership of the hedge would depend, as he had stated before, in a great measure as to the acts that had been done in regard to it. He should, however, be able to call not only the plaintiff but a tenant who occupied the land previous to Mr. Whiteway and purchased the land of Mr. Pinsent, and they would conclusively prove what he had stated and further, that the tenant had made several parts of the hedge. Indeed, Mr. Whiteway had always been under the impression that was his property. He had also given orders to the tenant of the garden not to cut the hedge. He should also call another witness who would prove that he had repaired the hedge in compliance with Mr. Whiteway’s instructions. After had proved this, he thought his client’s right to the hedge could not be questioned, or at all events it would be very difficult to disprove it. It was true that during the 18- or 19-years Mr. Whiteway had been the owner of this property he had not been so diligent in keeping this fence as he should be, and consequently on one or two occasions the tenant of the garden had cropped off the surplus growth, a very natural act. …
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