A Report in Trewman's Exeter Flying Post 29 July 1863
Right of Property in the River Exe. - Edward Jenkins, John Bass, and John Ellis, were brought up on remand charged with having illegally trespassed on "spire" beds situate in the river Exe, between Topsham and Exminster, and appropriating "spires". The case was deferred from last week for the production of evidence.
It will, no doubt, be recollected that this case has been brought before the Bench several times previously and in some cases convictions followed. Other parties having continued to appropriate the "spires" prosecutions were maintained.
On the present occasion Mr Gidley appeared for the complainant, Mr Baker, a tenant of S.T. Kekewitch, Esq., M.P., and Mr Toby for the defendants, labourers, of Topsham. Mr Gidley produced a handbill in which the "spire" beds were offered for sale on the 25th March, 1858, and also the conveyance of the same, showing it had been purchased by Mr Kekewitch for £430. He stated the property was formerly considered to be in the parish of Exminster. Mr Gidley then contended that the right set up to it last week by Mr Toby could not be maintained in law, and he cited several similar cases to show that Mr Toby's arguments were untenable.
A mass of evidence was adduced from the oldest inhabitants of Exminster and occupiers of the property showing that it was in the parish of Exminster, and that the right to cut the "spires" was reserved to Mr Kekewitch or his tenants. Mr Toby submitted to the Bench that they had no jurisdiction, and quoted the law to prove that if the matter of right was doubtful that fact alone was sufficient to stay the jurisdiction. He contended that the land was the property of the crown: that it was a portion of a navigable river; and that the right to cut the "spires" had not been called into question during the past twenty or thirty years. He cited the case of Miles v. Rose and another, tried at Taunton, to show that the flow and reflux of a river was prima facie evidence of a navigable river; and stated that vessels did at times pass up and down over the very beds in dispute.
He then entered into an historical account in which he stated that as far back as 1290 ships used to come up with their merchandise and discharge at the Exeter Quay, but the navigation was stopped at that date by a weir being thrown across the river. This weir was subsequently destroyed, but in 1315 or 1316 Countess and James' weirs were thrown across the river in consequence of a dispute with the Devon family and the Mayor of Exeter about fish.
Mr Toby further contended that as the tide flowed and ebbed in the portion of the river in which the "spire" beds were, those beds formed part of a navigable river and consequently were public property. He called witnesses, all of whom were aged men, of Topsham, who had cut the "spire" beds; and had perambulated the beds as part of the Topsham bounds. These witnesses also proved that the beds were surrounded with water and vessels could at the present time go all round them at high tide. Mr Toby urged that this circumstance established the beds public property.
Mr Gidley replied urging, that a person might have a right by virtue of some tenement, but no such right had been proved. If the beds were, as Mr Toby said, the property of the crown then that fact would still constitute the defendants trespassers. Property might at all times be under water but nevertheless it just as much belonged to certain manors. The Bench retired, and on their return into court the Chairman (Mr Sanders) said the defendants must have had a suspicion that they were doing wrong and, therefore, they fined Jenkins and Bass 10s. each, and the expenses, and dismissed Ellis, who had not been proved to have cut any "spires," and who went away when told he was trespassing.
29 July 1863 - Trewman's Exeter Flying Post