(English) Rookes v Withers (1598), Sir Edward Coke Reports

Rooke’s case

[Hil. 40 Eliz.]

 

In the Common Pleas.

 

 

TENANTS at will, or other particular tenants, cannot bind him, who has the inheritance.

Commissioners of sewers ought to tax equally all who are in danger of being damnified by non repair of banks, &c.

If one be bound by prescription to repair the river-bank, yet on commission awarded, the commissioners ought to tax all who have land in danger.

4 Inst. 75; Hardr. 478; Palm. 133; Skin. 568.

 

In replevin in the Common Pleas by Rooke against Withers; the defendant justified the taking by authority of a commission of sewers directed to B. S. and others, to survey all walls (prout in the commission) in the river of Thames, in the counties of Kent and Essex, because one Carter, &c. was assessed to every acre for repairing of a bank, &c. for the non-payment of which he took the distress; to which the plaintiff replied, of his own wrong, without such cause. And the jurors found the commission and the stat. of 6 H. 6. c. 5. & 23 (a) H. 8. c. 5. And that the commissioners did impanel a jury to inquire of defaults, who presented that seven acres of meadow in which the distress was taken, was next adjoining to the river; and that the bank of the river was adjoining to the said seven acres, for which they taxed Carter to pay 8s, for every acre: and the jury further found, that the occupiers of the said seven acres (b) had used always to repair the said bank, sometimes voluntarily, and sometimes by presentment. And further that divers other persons had lands to the quantity of 800 acres within the same level, and subject to drowning, if the said bank be not repaired; and whether this assessment of the owner of the land next adjoining only, without any assessment of the others, who had lands subject to the like danger of drowning, was lawful or not, was the question. And in this case three points were resolved:

1st The finding the repairing, &c. by the occupiers was not material.

1. That the finding of the repairing, &c. by the occupiers of the said seven acres was not material, because the (c) occupiers might be tenants at will, or other particular tenants, who cannot by their act bind him who has the inheritance.

2d. The commissioners ought to tax all who are in danger equally.

2. That the commissioners ought to tax (d) all who are in danger being damaged by the not repairing equally, and not him who has the land next adjoining to the river; only for the statute of 6 H. 6. cap. 5. on which the commission of sewers is formed and specified, has precise words in the said commission, that no person of any estate or condition shall be spared. Ita quod aliquibus tenentibus terrarum sive tenementorum, &c. diviti vel pauperi, vel alteri cujuscunque conditionis, statús, vel dignitat’ fuerit, qui desensionem, commodum, & salvationem per præd’ Wallias, fossafa, guttera, pontes, calceta, & gurgites &c. habent vel habere poterint nullatenus parcatur in hac parte. And if the law should be otherwise, inconvenience might follow: for perhaps the rage and force of the water might be so great, that the value of the land adjoining will not serve to make the banks, &c. and therefore the statute will have all who are in danger, and who are to receive benefit by the making of the banks, to be contributory; for (e) qui sentit commodum sentire debet & onus: and the said statutes require equality, which well agrees with the rule of equity: Vide the case of Bankrupts in the Second Part of my Reports. Et vide 35 H. 8.; Ber. tit. Testam; (f) 19; 4 E. 3. †Assise 178; ‡11 H. 7. 12. b.; ║29 E. 3. 39.; and Sir William (g) Herbert’s case in the Third Part of my Reports; cases of equality grounded on reason and equity, ipsæ (h) etenim leges cupiunt jure regantur; and notwithstanding the words of the commission give authority to the commissioners to do according to their discretions, yet their proceedings ought to be limited and bound with the rule of reason and law (A). For (i) discretion is a science or understanding to discern between falsity and truth, between wrong and right, between shadows and substance, between equity and colourable glosses and pretences, and not to do according to their wills and private affections; for as one saith, talis discretio discretionem confundit.

 

If the owner of the land was bound by prescription to repair the river-bank, yet on such commission awarded the commissioners ought to tax all who had land in danger.

 

And Walmesley, Justice, held, and it was not denied by any, that if the owner of the land was bound by (j) prescription to repair the river-bank, that yet on such commission awarded, the commissioners ought not to charge him only with the whole, but ought to tax all who had land in danger: and to this purpose the statutes were made; for otherwise (k) it might be that all the land would be drowned before that one person only could repair the bank; and that appears by the words of the statutes; wherefore judgment was given for the plaintiff (B).

 

 

Footnotes:

(a) 10 Co. 138. a.; 139. a.; 140. a.; 13 Co. 36.; Cr. Jac. 336; 2 Bulst. 197; Callis sect. f. 1.

(b) 2 Roll. Rep. 289.

(c) 2 Roll. Rep. 289; 6 Co. 57. 60.

(d) 10 Co. 139. a.; l Roll. Rep. 32; 2 Bulst. 199; Cr. Jac. 336.

(e) l Co. 99. a.; 5 Co. 24. b.; 7 Co. 38. b.; Co. Lit. 231. a.; 2 Inst. 489; Cart. 142; 3 Keb. 592.

(f) 2 Co. 23. b.; Br. N. C. 275; 2 Bulstr. 15.

(g) 3 Co. 13, 14.

(h) 10 Co. 138. a., 140. a.; 4 Inst. 41; 2 Bulstr. 197, 198; Callis, sect. 112; Hob. 158; Hardr. 146; Cr. Jac. 336; 3 Bulst. 128.

(i) 2 Co. 25. b.; 8 Co. 152. a.; 9 Co. 123. b.; Co. Lit. 10. a., 43. a., 166. b. 274. b. 171. b.

(j) 10 Co. 140. a.; Callis, sect. 144.

(k) 10 Co. 140. b.

(†) 2 Co. 25. b.

(‡) 2 Co. 25. b.; 3 Co. 13. a., 14. a.; Co. Lit. 376. b., 386. b.; Hob. 25; 3 Bulstr. 318; Cr. Jac. 218.

(║) 2 Co. 25. b.

(A) Vid. post. Keighley’s case, 10 Co. 140. a. and note; ib. and vid. Doswell v. Impey, 1 Barn. & Cress, 165., S. C. 2 Dow. & Ryl 550.

(B) Callis in his reading on Sewers, p. 144, observes, “This being mistaken, is discreetly altered in the said case of Keighley by the author himself; for how could it be presumed that the learned makers of this worthy law would have stricken down at one blow so many thousand prescriptions, customs, &c.” Vid. Rex v. Commissioners of Sewers for Essex, 1 Barn. & Cress. 477; S. C. 2 Dow. & Ryl. 700. that where an individual is bound by prescription or otherwise to repair a sea wall, still if there be no default on his part, and damage is sustained by an extraordinary flood or tempest, the whole level must bear the loss and be contributory to the repairs; but that they shall not be contributory where there is default in him.

 

See THE REPORTS SIR EDWARD COKE, Knt. VOL. III (p. 203)

Rooke’s Case, Coke, Reports, 5:99–100 (English Reports, 77:209– 10)

 

About 涂云新 (TU Yunxin)

涂云新,男,祖籍四川达州,复旦大学法学院助理教授、法学博士;奥斯陆大学(University of Oslo)国际人权法硕士(LL.M);复旦大学人权研究中心(国家人权教育与培训基地)青年研究员,教育部教育立法基地暨上海教育立法咨询与服务研究基地(复旦大学)青年研究员。Email: chinatu@live.com 电子邮件 Dr. TU Yunxin, Lecturer in Constitutional Law at Fudan University Law School,Shanghai, China (PRC)