Surrey v. . Piggot

1 N.C. 743

• Court: Court of King's Bench
• Decided: July 5, 1793
• Status: Published

Opinions

Bucksdale held it was not, for it is a thing of necessity. He cited 4 Rep., 26. Benedicta est expositio quando res redimitur a destructione. Rent shall be extinct by unity, and so shall be a way. 14 H., 7. For they have no existence during the unity, and therefore they are gone. But it is otherwise of a thing which exists notwithstanding the unity. 12 H., 7, 4.Praecipe of a water course ought to be pro una acra aqua coopert. In 6 Jac., B. R., Chaloner and Moor. It was adjudged that an ejectione firmae does not lie for a water course, for it is not a thing stable, but always moving; *and is also a thing of necessity. Here it is a thing distinct from the land, as in 12 H., 7, in the case of a gutter. The other exception was that the action is brought against Piggot and two others, who justify by the command of Piggot; but there is no answer by Piggot. To which it was replied that the commander is a trespasser. Piggot has no title to the water course, for a grant from H. 8 to Box is pleaded, whereby Box was seized, and being so seized, one Seal entered and enfeoffed Piggot and two others, and he does not say that Seal ousted Box, so for anything that appears here, Box is yet seized and the feoffment does not imply an ouster. There was a case in the Common Bench, Cook v. Cook, in dower: the defendant pleaded entry since the last continuance, and because he did not plead ouster of the tenant, it was held to be no plea.

On another day WHITLOCK, J., concurred. But It is not material whether the defendant has a title to the hop yard or not.