XXIII. VICTORIA. 8 & 9 Vict. c. 118., by sects. 25-27, provides for the application, by persons proposing to inclose land subject to be inclosed, to the Inclosure Commissioners; the reference of the matters by them to an assistant Commissioner; and the subsequent embodiment by them of the conditions of the proposed inclosure in a provisional order. Sect. 33 enacts that a valuer shall be appointed; sect. 34 defines his powers and duties, and sect. 35 enables him to call in an assistant Commissioner as assessor, in matters of contested claims. [Wightman J. Do the claims there mentioned include a disputed question as to whether land is an ancient inclosure or not? Does not that section refer rather to claims as to land which it is admitted is subject to be inclosed?] Karslake, contrà. The section is limited to contested claims to lands subject, under sect. 11, to be inclosed. J. D. Coleridge. At all events the decision of the valuer on any claim is conclusive. By sect. 39 the Commissioners, or an assistant Commisioner, are empowered, on the representation of the valuer, to set out the boundaries of parishes or manors in which any land proposed to be inclosed is situate; subject to a right of appeal to this Court, or to an inquiry before a sheriff's jury. Sect. 44 regulates the proceedings upon the appeal. By sects. 46-49, the valuer is required to hold meetings and determine claims, in the matter of an inclosure. By sect. 50 all encroachments within twenty years "shall be deemed parcel of the land subject to be inclosed, and shall be" "inclosed accordingly," " and in case any dispute or difference shall arise touching any such encroachments"" or as to the extent thereof, such 66 1860. CHILCOTE V. YOULDON. 1860. CHILCOTE V. YOULDON. dispute or difference shall be determined by the valuer." Sect. 52 provides that inclosures of twenty years standing shall be deemed ancient inclosures; but if a valuer has decided, under sect. 50, that an inclosure is not ancient, the only remedy of a party dissatisfied with his determination is by appeal against it, under sect. 55, to the Commissioners or an assistant Commissioner. The statute points out a regular course of proceeding, which, as Kindersley V. C. decided in Turner v. Blamire (a), ought to be followed. Such also may be presumed to have been the opinion of the Lords Justices, who, in affirming that decision on appeal (b), expressed no dissent from the Vice Chancellor's ratio decidendi. Next, as to the second point: stat. 15 & 16 Vict. c. 79. s. 13. enacts that "when any person by whom any encroachment or inclosure, of whatever value, which, under" stat. 8 & 9 Vict. c. 118., "shall be deemed to be parcel of the land subject to be inclosed, shall be actually occupied, shall neglect or refuse to quit and deliver up possession of the same, or any part thereof, to the valuer acting in the matter of the inclosure, within one calendar month next after the determination of claims under" stat. 8 & 9 Vict. c. 118., " the possession thereof may be recovered by such valuer under the provisions of" stat. 1 & 2 Vict. c. 74. Having regard to the enactments of stat. 8 & 9 Vict. c. 118., it is clear that land included in the map annexed to the provisional order of the Commissioners must, under that Act, be "deemed to be parcel of the land subject to be inclosed." [Blackburn J. Does not sect. 13 of stat. 15 & 16 Vict. c. 79. refer only to encroachments made within twenty years; which, by stat. 8 & 9 Vict. c. 118. s. 50., "shall be (a) 1 Drew. 402. (b) 22 L. J. N. S. Ch. 766. deemed parcel of the land subject to be inclosed”? By sect. 49 of stat. 8 & 9 Vict. c. 118. the valuer is expressly disabled from determining title to land.] If the valuer has decided wrongly, his determination can be reversed on appeal. [Blackburn J. But must he not, in order to shew his right to the interference of the justices, prove before them that the land in question was subject to be inclosed, under sect. 50 of stat. 8 & 9 Vict. c. 118. ? The proceedings before the justices are to be under the provisions of stat. 1 & 2 Vict. c. 74.; and under that Act a landlord seeking to recover possession of a small tenement must prove before the justices a tenancy and a holding over by the tenant, in order to give the justices jurisdiction.] Lastly, assuming that the valuer's determination was not conclusive, it was right upon the facts; and the justices were wrong in reversing it. Karslake, contrà. The justices had jurisdiction to inquire into the matter, and they came to a right conclusion. Upon the finding, the piece of land in question must be considered to be de facto an ancient inclosure; and sect. 11 of stat. 8 & 9 Vict. c. 118., which enumerates the descriptions of land subject to be inclosed under the Act, does not comprehend ancient inclosures. It cannot be said that all land included in the map annexed to the Commissioners' provisional order for inclosure is thereby to be conclusively deemed to be land subject to inclosure: otherwise, any part of the New Forest or of the Forest of Dean might become subject to inclosure if put into such a map; whereas sect. 13 of the Act excepts those forests from its operation. The facts in evidence before the justices shewed that the land in question in the present case was an ancient inclosure 1860. CHILCOTE V. YOULDON. 1860. CHILCOTE v. YOULDON. within sect. 52, having been inclosed for more than twenty years before the first meeting of the Commissioners. Sect. 50 shews that the only encroachments upon land which are subject to inclosure are encroachments made within twenty years of that meeting. By sect. 86 ancient inclosures cannot be inclosed without the written consent of the person interested in them. Sects. 47, 48, 55 and 56, which relate to claims before the valuer by persons setting up some right or interest in lands proposed to be inclosed; the determination of those claims by the valuer; and the appeal from him to the Commissioners, and from the Commissioners to the Assizes; apply only to claims relating to rights in lands which the Commissioners have power to inclose, and have no bearing on the claim of an owner of land to prevent its inclosure altogether. By stat. 15 & 16 Vict. c. 79. s. 13., the valuer is empowered to recover possession of "any encroachment or inclosure" "which under" stat. 8 & 9 Vict. c. 118., " shall be deemed to be parcel of the land subject to be inclosed:" by which must be meant, not all encroachments or inclosures that the Commissioners may choose to insert in their map, but such only as are subject to inclosure: such, that is, by reason of sects. 50 and 52 of the first Act, as are of less than twenty years' standing. Turner v. Blamire (a) was a motion for an injunction to restrain the Commissioners from confirming the award of their valuer; and the injunction was refused, on the ground that it appeared that the plaintiff had acquiesced in the result of the preliminary inquiry by an assistant Commissioner, namely, that the land in dispute was subject to inclosure. But the fact, proved by the present respondent, that his land is an ancient (a) 1 Drew, 402. inclosure, shews that the valuer had no jurisdiction whatever to inclose it. Coleridge, in reply. Stat. 15 & 16 Vict. c. 79. s. 13. authorizes the valuer to recover land which, under stat. 8 & 9 Vict. c. 118., "shall be deemed to be parcel of the land subject to be inclosed." The question is, by whom must it be so deemed? Surely, by the Commissioners. Assuming, therefore, that the Commissioners, by reason of sects. 50 and 52 of the earlier Act, are wrong in deeming an encroachment of more than twenty years' standing subject to inclosure, still, if they so deem it, their decision is conclusive and cannot be inquired into by the justices. By sect. 55 of the first Act, the valuer is to make out a schedule of the claims which he allows, "after" he "shall have heard and determined all claims and objections which shall have been made in the matter of an inclosure". The proper course, therefore, for an owner of land, who denies that it is subject to inclosure, to adopt, is to go before the valuer and make out the exemption. It is too late to take such an objection after the valuer has heard and determined. [Cockburn C. J. Can the valuer give himself jurisdiction in such a case, by deciding the matter of fact, as to the liability of the land to inclosure, wrongly ?] If he has jurisdiction to inquire, he has, also, jurisdiction to determine; and if his determination is wrong the only redress is by an appeal under the statute. The defendant could not, by setting up a question of title, oust the jurisdiction of the justices to give the valuer possession of the land which the defendant was proved to be holding over; Rees v. Davies (a). (a) 4 C. B. N. S. 56. 1860. CHILCOTE V. YOULDON. |