Mousehold Heath in the Victorian Courts
A Common from Time Immemorial? Mousehold Heath in the Victorian Courts.
Photo: J. Rhodes, "Gravel-Pit, Mousehold Heath" from British Geological Survey
The legal status of Mousehold Heath in Norwich, and the property rights that Norwich residents could claim over it, was a highly charged issue in the Victorian period. The emergence of the Heath from the medieval manorial system, and its transformation into the vibrant recreational green space that we see today, saw lengthy and complex legal proceedings before the Victorian inclosure commissioners and then the courts. This culminated in Chancery litigation in 1883, leading to a decision by Mr. Justice Chitty which confirmed the title of Norwich Corporation to the Heath. The issues raised in the litigation include interesting questions about the ability (or otherwise) of community action to generate property rights, and the relevance of long usage and occupation for the informal creation of rights in land.
Long usage and the temporal dimension to property rights in land
The use of land by local communities for long periods of time is closely bound up with notions of “identity”, “belonging” and “ownership”. It generates a powerful sense of community “rights” over the land. These are themes that the Wastes and Strays project is exploring in a contemporary context through its oral history work programme with local user groups in its four case studies, including Mousehold Heath.
Long usage is also a constituent element in the law governing the informal creation of property rights in land, although the “legal” manifestation of the types of use required to create property rights - and the way that these rights can be protected and enjoyed - is often out of step with socially derived notions of “ownership” and community property. Title to land in English law is based on possession, a fact famously recognised in the law of “adverse possession” - a legal title to land can be based on 12 years possession by the claimant. Long usage of land and its resources can also create property rights over someone else’s land through the principle of prescription. Rights to take the produce of the land, for example, are recognised as profits a prendre and can be created by long usage. At common law, proof of usage since “time immemorial” was required – but in practice use for 20 years would suffice. A profit can also be established by proving that one’s use (taking the land’s produce for example) has continued for either 30 years or 60 years under the Prescription Act 1832; or by the legal fiction of a lost modern grant i.e., that 20 years use provides evidence that a grant or deed giving the rights was made by the owner at some point after 1189, but has subsequently been lost. But the use of the rights in all cases of alleged prescription must have been “nec vi, nec clam, nec precario” – the rights must be openly asserted, go unchallenged by the landowner and fall within one of several types of land use right recognised by the courts. Rights of common are in practice the principal type of profit. The language of the legal discourse around the interaction of the passage of time and the creation of rights in land – and especially of the normative force created by exercising rights from “time immemorial” - coloured much of the argument and discourse in the Victorian dispute over the legal title to Mousehold Heath, to which we will now turn.
Genesis of the Pockthorpe Dispute
The Heath was formerly waste of the manor of Pockthorpe, the title to which was until 1869 vested in the Dean and Chapter of Norwich Cathedral. The process by which the Heath was transformed from manorial waste - common land with grazing rights for sheep and cattle depastured by Norwich residents – into an entirely different form of community asset owned by the Norwich Corporation was both lengthy and hotly contested. The principal dispute concerned the rights (or otherwise) of Pockthorpe residents to extract gravel, sand and clay from pits dug on the Heath for the purpose of brick making. The origins of this practice are obscure, but it was a well-established activity that had been carried on since at least the sixteenth century. In the sixteenth and seventeenth centuries it seems to have been supervised closely by the Cathedral chapter through the Pockthorpe manor court.
Manorial court supervision of the practice seems to have lapsed in the course of the eighteenth century, and by the 1840s the practice of digging sand and gravel was instead being collectively organised by the local community. In 1844 a meeting of Pockthorpe citizens resolved to make a charge for the right to remove gravel and clay from the common, and to set up a distribution system for the monies received in order to benefit the poor of the parish of Pockthorpe by issuing vouchers (tickets) redeemable at local stores. The allocation of the rights to take gravel/clay, and the distribution of proceeds, was organised and overseen by a small committee elected by the residents. This was, then, an independently organised example of community action, unsanctioned and separate from the “official” channels of community organisation represented by the Norwich Corporation and the Dean and Chapter of Norwich Cathedral (who in 1844 were still lords of the manor of Pockthorpe).The subsequent events threw into sharp relief questions about the extent to which community action of this kind could generate property rights in the land over which they are exercised, and the extent to which (if at all) the courts would recognise these as legitimate and binding.
Before we look at the Chancery litigation, it would be useful to outline the chronology of events. In 1866 the Dean and Chapter of Norwich Cathedral agreed a scheme with the Ecclesiastical Commissioners for the creation of pleasure grounds with recreational public access at Mousehold. This was followed on 17th March 1869 by an Order in Council which vested the freehold title to Mousehold Heath in the Ecclesiastical Commissioners. This ended the legal involvement of the cathedral chapter in the subsequent development of the Heath, extinguishing their title as lords of the manor over the waste of the manor of Pockthorpe. The Public Health Act of 1875 subsequently empowered local authorities to create and hold land as “pleasure” or recreation grounds. This was an important step in the realisation of the Victorian ideal for the provision of public parks as orderly green spaces for open air recreation and exercise, and the powers were used across England and Wales to create many of the well-ordered urban parks that we still see today. Norwich was no exception. In July 1880, eighty acres of Mousehold Heath were conveyed to the Norwich Corporation to hold as a recreation ground “subject [only] to rights of common, easements and other rights”.
Photo by Sarah Collins
The Mousehold Dispute in the Court of Chancery
While the national legal landscape for the provision of “people’s” parks was being fundamentally redrawn in this way, the activities of the Pockthorpe community on Mousehold Heath continued unabated. Indeed, so well-established was the Pockthorpe residents’ commercial operation that the Dean and Chapter of Norwich Cathedral had themselves purchased gravel from them during the 1870s, and on which they had paid “royalties”. Gravel and clay were extensively removed and used for brick making. After it acquired the legal title, the Norwich Corporation appears to have reached an accommodation with some of the brickmakers, giving them tenancies to continue their operations temporarily so as to recoup their outlay in the short term. Nevertheless, those entering into tenancies were threatened and their access to and from the brickfields impeded; the roads onto the Heath were also blocked with gates to prevent brickmakers from neighbouring parishes such as Sprowston from accessing the clay and gravel pits to source their own supplies. This led to prosecutions under the Highways Acts before the Norwich magistrates on several occasions in the early 1880s.
When the Norwich Corporation presented a draft scheme for Mousehold Heath to the Inclosure Commissioners in 1881, intending to develop the Heath along the lines originally agreed back in 1866, the Pockthorpe committee sought to challenge their ability to do so by submitting a memorandum claiming that they (not the Corporation) held title to the land based on their use of it for sand and gravel extraction “from time immemorial”. This had the effect of halting the approval of the scheme as the Commissioners had no power to make rulings on matters of title to land. This in turn led in 1881 to proceedings being issued by the Corporation in Chancery seeking an injunction - both to prevent the Pockthorpe committee members interfering with the Commissioners’ hearings, and to prevent them interfering with the Corporation’s tenants who were using the Heath. In July 1881 the Court of Chancery issued an injunction preventing the removal of gravel or soil from the Heath and prohibiting Pockthorpe residents from blocking roads leading onto and from the Heath. This was followed by another action in Chancery in June 1883 in which Chitty J. upheld the Corporation’s legal title to the Heath.
The legal argument put forward by the Pockthorpe brickmakers was ingenious, but ultimately failed to satisfactorily address several fundamental principles of English property law. Unfortunately for the Pockthorpe brickmakers, the right to take gravel, clay and soil from someone else’s land has never been recognised as a legitimate right of common (or profit, in other words) – and this is the case whatever the length of time for which the alleged “rights” have been exercised. They were therefore unable to claim that their “rights” were recognised and preserved either by the terms of the 1880 conveyance to the Corporation or by the Public Health Act 1875. Most common rights to take the soil’s produce are characterised as estovers: sometimes referred to as “hearth rights”, these are typically rights that attach to houses or cottages adjoining a common and give the holder the right to take necessary produce for food, fuel, timber or animal bedding. They are not rights that can be used for commercial purposes. The rights claimed by the Pockthorpe residents here were essentially needed to support small scale industrial activities – to take clay, gravel etc for the manufacture of bricks. This was a type of activity for which long usage could not create property rights by prescription under the common law.
Faced with this problem, the Pockthorpe committee adopted an alternative strategy. They claimed instead that they had acquired ownership of the land itself by adverse possession. Or, rather, that the title to the land was vested in the trustees of a charitable trust for the relief of poverty in Pockthorpe, and over which they had control. The origins of the “Trust” were traced back to a meeting of the Pockthorpe parish on 23rd May 1844 which had elected a secretary and treasurer to oversee the collection of payments and their distribution as vouchers to residents, a practice that was renewed at New Year each year with the election of officers to oversee the issue of tickets giving access to the brickfields, to administer the collection of payments and to organise the disbursement of vouchers to residents of the parish. The de facto control of access to the brickfields by the “trustees” under this arrangement had largely gone unchallenged by the Cathedral authorities – who as lords of the manor had for many years held the “paper” legal title to the Heath. This led to some criticism of the church authorities in the court proceedings, not least from Chitty J himself who commented that “what has happened is to some extent due to the laxity, if not the supineness, of the administration in later times of the Dean and Chapter of Norwich”.
The key problem for the Pockthorpe community’s claim was that to constitute a trust the legal title to the land must vest in an individual or corporation – it cannot vest in a fluctuating body of persons. Chitty J observed that “to gain an adverse title under the Statute of Limitations the possession must not be in one man one day, and in another another. There was no legal possession in these persons at all. It was in a changing and fluctuating body of persons who were not acting on their own account”. Legal title had not vested in specific named members of the community who could act as the trustees of the trust, and it could not vest in “officers” elected each year to oversee the arrangements for the collection and disbursement of fees, as these would change from time to time. On the other hand, however negligent they may have been in exerting control over the heath, the paper title of the cathedral chapter and (then) Norwich Corporation was proved to the court’s satisfaction. The Corporation’s lawyers produced deeds and charters going back ultimately to the Norman Conquest to show an unbroken line of ownership of the Heath.
Several aspects of the Mousehold litigation are noteworthy. The mid-Victorian period was a time when legal battles were being waged against the inclosure of urban commons across England and Wales. The Commons Preservation Society (CPS) led numerous legal challenges to assert community control over open public spaces and scored well known successes in protecting many of the London commons. It is noteworthy, however, that the strategy adopted here differed from that in many of the Victorian cases promoted by the CPS. The tried and tested CPS tactics in the London cases involved firstly raising the issue in the national media and organising a local CPS group to mount a defence of their local common. Then a lawyer or historian would gather evidence that could be used to argue that the current uses of the land were a continuation of historical commoners’ rights. Finally, a local resident would act as a CPS advocate to challenge the lord of the manor and seek the protection of the land as a legally recognised “common”. The legal challenge would usually be mounted in the Chancery, rather than the common law courts, because the equitable jurisdiction of Chancery was based on the use of discretionary remedies and offered a greater chance of success. But success in a claim structured in this way was dependant on being able to show the existence of a common right to take some of the land’s produce, one which vested in local members of the community and had been used for a long period of time (“from time whereof the memory of men runneth not to the contrary”). The central problem for the Pockthorpe residents, as we have seen, was that the taking of gravel and clay to make bricks was not a recognised common right, neither had it been enjoyed by them from “time immemorial”. It was a practice that may have been in place for many years, but it had only been regularised following the parish meeting in 1844 that established the arrangements that were later claimed to have constituted a trust for the benefit of the community.
Postscript – Making Modern Mousehold
Following their victory in Chancery, the Corporation acted relatively swiftly to finalise their plans or the transformation of the Heath. In December 1883 the Land Commissioners for England certified a scheme for the development of Mousehold Heath as pleasure grounds under the City of Norwich Act 1867. This was followed by the City of Norwich Mousehold Heath Scheme Confirmation Act 1884. The 1884 Act set out a management scheme for the Heath and provided for the appointment of the first body of Mousehold Heath conservators, of whom there were to be 12: 9 nominated by the Corporation, 2 by the inhabitants of Pockthorpe and 1 by the Commissioner of Public Works. The total sum spent on the maintenance and upkeep of the Heath in any one year was fixed at a maximum rate of 1/2 d in the £1 and no expense greater than £25 was to be made without the consent of the Norwich Corporation.
These governance arrangements continue in a modified form to the present day under the City of Norwich Act 1984, with the participation of the Mousehold Heath defenders, and the Norwich Society alongside the 9 conservators nominated to the Mousehold Heath Conservators by the council. Provision is also made for one conservator to be appointed by an organisation interested in the conservation of the environment in the city. The Pockthorpe dispute itself may be long forgotten, but the legacy of its origins in the industrial history of Norwich lives on in the landscape of the Heath. Its hollows and pits are a prominent feature of the Heath and are in large part what makes it such an interesting and valued landscape for the local community, many of whom have commented in oral history interviews on the “interesting” and “unique” nature of the landscape – which makes it both special and central to the identity of Norwich as a modern city.
Professor Chris Rodgers
 Currently Limitation Act 1980, s. 15 (1). In 1883 (when the Mousehold litigation took place) the rule was the same under the Statute of Limitations 1874.
 “Time immemorial” is fixed at 1189 by a long-standing legal fiction (the accession of Richard 1); Statute of Westminster 1 1275.
 Enjoyment of a profit “as of right” for an uninterrupted period of 20 years cannot be defeated by proof that the use began after 1189, and if used for 40 years the right becomes absolute (Prescription Act 1832, ss 1,2). The period in both cases must be proved to have run “next before action” – that is before a suit or legal action brough to establish the claim.
 Dalton v Angus & Co (1881) 6 App Cas 740 (House of Lords)
 This was described as a “revolting fiction” by Lush J, in Angus & Co v Dalton (1877) 3 QBD 85, 94.
 But the use of prescription to establish common rights in a modern context has been severely curtailed by the registration of common rights under the Commons Registration Act 1965 and Commons Act 2006: see Gadsden on Commons and Greens (2nd ed, 2012) at 3-77 – 3-79
 For example, the Monastic and cathedral accounts for 1532-4 discuss the digging of sand:
Account of Robert Canon. Prior of the Office of Master Cellarer - 'of the digging of sand there, nothing. And of the sheep's pasture there this year 33s 4d', and for 1534-5 it is noted that ‘of the digging of sand there this year nothing, because without a farmer’. (Supplementary papers submitted, Norwich Corporation v Browne and others 1881, pp. 8,9. Norfolk RO).
 In the seventeenth century the cathedral authorities certainly seem to have managed the digging of sand closely: for example, the Pockthorpe Manor Court Leet Book records that on 6th November 1670 one Augustine Blennerhasset was fined 5 shillings for unlawfully digging ‘sand pitts’ on the demesne lands, and was ordered to fill them up within one month under penalty of forfeiture of 20 shillings (Supplementary papers submitted, Norwich Corporation v Browne and others 1881, p.20. Norfolk RO).
 For an excellent account of the local political tensions, political manoeuvring and the place of the Mousehold Heath case in the wider politics of the Victorian Parks movement see: Neil Macmaster, “The Battle for Mousehold Heath 1857-1884: Popular Politics and the Victorian Public Park” (1992) 127 Past and Present 117-154.
 Public Health Act 1875, s. 164.
 See discussion in the Norfolk Chronicle for Saturday 28 May 1881. The “easy going nature and laxity” of the Dean and Chapter was reported as having encouraged the Pockthorpians to build ‘clamps’ and start the manufacture of bricks.
 There are detailed accounts in the Norfolk Chronicle for Saturday 28 May 1881, 18 June 1881 and 2 July 1881.
 The 1881 Chancery proceedings are reported in some detail in the Norfolk Chronicle for Saturday 6th August 1881.
 Above, note 8. The 1875 Act provided that land could be transferred to be held as pleasure grounds “subject …. to rights of common, easements and other rights”.
 The Mayor and Corporation of Norwich v Brown and others (1883) 48 Law Times 725
 The Mayor and Corporation of Norwich v Brown and others (1883) 48 Law Times 725 at 900.
 See a useful discussion by Naomi Miller, Chapter 2 in “A Politics of the Common” in (S.Kirwan, L .Dawney and J. Brigstoke eds.) Space, Power and the Commons (2016, Routledge) at p.63ff.
 Co. Litt. 114b.
 Formerly the Inclosure Commissioners.