Rabbit warren on the Burrows (1762)
Legal notes about this dispute.
Transcribed by David Carter 2018
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2 Jan 1762. Copies of a legal case and opinion concerning the right of the Lord of the Manor to establish a rabbit warren on the Commons and whether the parishioners may kill the rabbits, having the right to kill game there.
Reference: North Devon Record Office 2863/3/7-8
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Northam Burrows within the County of Devon lying on the sea coast of the Bristol Channel consists of some hundreds of acres of very good pasture land & also of a considerable quantity of sand-hills tufted with rushes. The pasture of this common belongs to all the inhabitants of Northam without any stint: and the poorer sort constantly collect the dung of cattle depastured thereon for their fewel. The Lord of the Manor & Royalty drives this common and impounds the cattle of strangers with this the inhabitants readily acquiesce. But at present (as also they have been for many years past) the sand-hills and a part of the plain pasture grounds are occupied by a great number of rabbits to the apparent detriment of the commoners, who are apprehensive of a still greater damage, from a greater if not unlimited increase of these rabbits - the ground which they occupy is not inclosed. The Lord of the Manor claimeth an absolute property in these rabbits, which the inhabitants regard as a nuisance and as such would extirpate them - but they are forbidden by the Lord of the Manor and threatened with prosecution. He alledgeth that though he may not have any grant on his custody immediately from the Crown, that from the deeds which in his hands he believes the grant concludes that such warren was expressed in the original grant of the Manor and therefore he says that he hath a right to maintain a rabbit warren on the common. He finds Free Warrens in a grant or conveyance of this manor from Arundel to Carey in the reign of Elizabeth and urgeth that he and his ancestors have possessed the rabbits for 60 years past. The parishioners urge that by an old instrument a copy of records in their custody which is herewith laid before you, it does not appear to them that he hath any such right - indeed they are not capable of themselves of judging how far this copy is an evidence of the Lord of the Manor's title from the Crown, or whether it contains the whole or only a part of the Royal Grant or to what rights this grant extends. They say as to the possession which the Lord of the Manor alledgeth and which he says he and his ancestors have had for 60 years past - The inhabitants say that about 45 years since in consequence of an expensive law suit which had been long depending between the then Lord of the Manor and the inhabitants concerning many differences and disputes as to rights and privileges within the Manor, an award was admitted by the parties to put an end to the suit whereby it appears that at that time the Lord of the Manor did acknowledge that he had no exclusive claim or Title to the Common in question for the words of the award are viz: 10 It is agreed between the parties that the Burrows commonly called Northam Burrows or Commons is and shall be enjoyed by the inhabitants of the said Parish as hath been the ancient enjoyment and custom, neither shall any person whatsoever have claim, or be entitled to any privilege or benefit, interest or enjoyment upon or out of the said Burrows or Commons but as an inhabitant and in common with the inhabitants of the said parish etc...
From these words the inhabitants presume that it must appear that there was no rabbit warren existing on the Burrows at the time when this award was made.
As to any subsequent possession, the inhabitants allege that they never allowed that the Lord of the Manor had any legal right, and if ever he hath levyed any money on any private person for a supposed trespass on his rights to a rabbit warren, they conceive that a submission in a particular party to avoid the expense of a litigation may not affect their common rights to the pasture and the commons which if such a rabbit warren be established, must necessarily be greatly affected.
The Lord of the Manor about 15 or 16 years since & not before did it is said, let out his privilege of Free Warren at an annual rent and his tenants caught many rabbits and sold them by virtue it is said of this lease but the inhabitants conceive that this lease may not establish the Lord of the Manors property with respect to a rabbit warren on the Burrows or Commons.
One of the tenants had been a servant to the Lord of the Manor, came a stranger into the Parish and rented at the same time an estate of the Lord of the Manor - and other tenants or parishioners who succeeded him never was an inhabitant, both the Lord and tenant were frequently interrupted in the enjoyment, some wealthy inhabitants always insisting that they had as much right to the rabbits as the Lord of the Manor.
The Lord of the Manor does not pretend to have a patent of a rabbit warren. An aged inhabitant can remember when there was not a rabbit on the Burrows to the best of his knowledge.
You'll be pleased to observe that the parchment writing laid before you is an attested copy under the hand of the Manor Steward of the exemplification of the Charter of the Manor.
Q1: If the Lord of the Manor hath or hath not a legal right to establish and maintain a rabbit warren on the Common aforesaid, to the detriment of the inhabitants.
Answer to 1st question: The award is not sufficiently stated to enable me to judge properly of the rights of the Lord and inhabitants in this case; but if the soil is on the Lord and Rabbits have been found in Northam Burrows time out of mind (as one may conjecture from the name) the inhabitants may have a right of Common of Pasture and no other right whatsoever in the soil. If the rabbits have been brought there without consent of late years the inhabitants may destroy them as detrimental to the herbage.
Q2: If he hath not a legal right, by what means the parishioners may be relieved or whether they may though not qualified by the law to use nets or carry guns for the destruction of the game use these means nevertheless for the destruction of the rabbits which they regard as a nuisance on the said Commons.
Answer to 2nd question: The answer to this question must depend upon the legal right concerning which no sufficient grounds to warrant an opinion are laid before me in this case.
Q3: Whether the inhabitants of Northam as all are interested, can be admitted as legal evidence of a suit should commence may & costs be defrayed by the Poor Rates.
Answer to 3rd question: The inhabitants of Northam cannot be witnesses in this case as to the right of common, or of soil being in interested. The costs cannot be defrayed lawfully out of the Poor Rates.
Signed: C. Yorke, 2nd January 1762.
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