bours, with a cut or branch from Hunston common to the city of Chichester; by means of which said breaking down the said dam the water rushed and flowed with great force from the river Lavant unto the said cut or watercourse, and the said closes of meadowland into the said cut or branch, so making or nearly completed, and forced a great quantity of the said closes or meadow-land into the said cut or branch, and broke down thirty yards of the said cut or branch, and filled up the same, which said quantity of soil, so forced into the said cut or branch, the plaintiffs, under their contract, were bound to remove. Plea, not guilty. At the trial, before Wood B. at the last assizes for the county of Sussex, the only question of law was, whether the plaintiffs had such an interest in the bank in question as to entitle them to maintain trespass. It appeared that the plaintiffs had entered into a contract with the company of proprietors of the Portsmouth and Arundel navigation for forming a canal; and, in the course of performing their contract, in making the branch from Hunston common, in February, 1821, had erected a dam upon the locus in quo by permission of the owner of the soil. The dam was six feet thick, and was twelve feet across, and was formed of earth and. wooden piles. It had been originally made in January, 1821; between that time and December it had been repaired by the plaintiffs. A verdict having been found for the plaintiffs, Taddy Serjt. now moved for a rule nisi to enter a nonsuit, or for a new trial, and contended, that the plaintiffs had no such interest as to enable them to maintain trespass. They had constructed the dam on 1822. DYSON against COLLICK. the 1822. DYSON against COLLICK. the soil of another, and by his permission; it was a continuation of the soil from one bank of the watercourse to another; it consisted of earth which coalesced with the adjacent soil; and the bank, therefore, became the property of the owner of the adjoining land. In Callis on Sewers, p.74. fourth edition, it is laid down that "A wall doth differ in point of ownership from a bank, first, in respect of the materials the same is made of: for a bank is made ex solo et fundo quæ ex suis propriis naturis sunt eadem cum terra super qua edificatur; but so is not a wall, for it is an artificial edifice, not of the materials arising of the place where it standeth, but which he brought thither, and built there ad propria onera et costagia partis: so that the ownership and property of a wall doth appertain to him who is bound to repair the same, though his ground lie not next thereto; but of a bank, the property and ownership is his whose grounds adjoin thereto." And this was considered good law by the Court of Common Pleas in The Duke of Newcastle v. Clarke (a), where it was held, that the commissioners of sewers could not maintain an action against commissioners of a harbour for breaking down a dam erected by the former, as such commissioners, across a navigable river, as the authority to be exercised by them, on behalf of the public, does not vest in them such a property, or possessory-interest, as will enable them to maintain such action. Per Curiam. The dam was erected by the plaintiffs at their own expense, and with their own materials, upon the locus in quo, with the consent of the owner of the (a) 2 B. Moore, 666. soil, for a special purpose. Until that purpose was com- 1822. DYSON against COLLICK. Rule refused. (a) 8 East, 394. 1822. Saturday, PARTRIDGE against BERE. A mortgagor ACTION for diverting a water course. in possession of the premises mortgaged, is tenant to the mortgagee. The declar ation contained an averment, that a certain close was in the possession and occupation of one John Turner, as tenant thereof to the plaintiff, the reversion belonging to the plaintiff. At the trial before Park J. at the last assizes for the county of Devon, it appeared, that Turner being tenant for life of the close mentioned in the declaration, in March 1817, had mortgaged the same to the plaintiff for 100l., for a term of years, provided he, Turner, lived so long, and that Turner had since that time continued in possession and paid the interest. It was objected on the part of the defendant, that the relation of landlord and tenant did not subsist between a mortgagor and mortgagee, and consequently, that the averment was not supported by evidence; the learned Judge over-ruled the objection; and now Adam moved for a new trial, and contended, that there was no tenancy, there was no payment of rent, but of interest; and he relied on the opinion of Buller J. in Birch v. Wright. (a) Per Curiam. Here the mortgagor was in actual possession of the mortgaged premises, by sufferance of (a) 1 Term. Rep. 382. the the mortgagee, who has the legal title vested in him. The former, therefore, is a tenant within the strictest definition of that word. Rule refused. (a) (a) As long as the mortgagor or his heir is in possession of the land, and the legal ownership is in the mortgagee, there must subsist a tenancy between the parties; or otherwise the mortgagor or his heir must hold in fee, and as disseisors; for the law of England recognises no possession independent of a tenancy, either to the lord paramount or mesne lord: If, in the mortgage deed, there is the usual proviso for the enjoyment of the land by the mortgagor, and his heir, until default in payment, &c., and the mortgagor is in actual possession, he may, under the agreement, be regarded as tenant for years to the mortgagee, during the continuance of the agreement; Powseley v. Blackman (a); and on his death, during the agreement, his legal interest devolves on his executors, who, during the remainder of the agreement, are trustees for the heir of the mortgagor. If, in the case of such agreement, the money is not paid at the appointed time, and the mortgagor continues in possession after the determination of the agreement, without any fresh agreement between the parties, he is, until payment of interest, or other recognition of tenancy, tenant by sufferance, for he came in by a rightful title, although he holds over wrongfully. If the mortgage deed contains no such agreement, and the mortgagor remains the actual occupant with the consent of the mortgagee, he is strictly tenant at will. Keech v. Hall. (b) If, in the latter instance, the mortgage is transferred to another, without the concurrence of the mortgagor, the tenancy at will is determined, and the mortgagor becomes tenant, by sufferance, to the assignee, until payment of interest or other recognition of tenancy; and in all cases in which the mortgagor can be considered tenant at will, the death either of himself or of the mortgagee must determine the tenancy. If it is determined by the death of the latter, the mortgagor will be tenant, by sufferance, to the representative of the mortgagee, until payment of interest or other recognition of tenancy, and afterwards tenant at will. If it is determined by the death of the mortgagor, and his heir or devisee enter and hold without any recognition of the mortgagee's title by payment of interest or other act, an adverse possession may be considered to take place. Per Holt in Smartle v. Williams. (c) In every case in which a tenancy by sufferance exists between the parties, and even where an adverse possession commences, as by the entry of the heir or devisee of the (c) 5 Lev. 387. & 1 Salk. 245. Thunder v. Belcher, 3 East, 449. 1822. PARTRIDGE against BERE. mortgagor |