[Mew's Dig. vi. 1033.]
The appellant stated, that the Dean and Chapter were seized of the Manor of Westow, in the county of Durham, on the South side of the river Tine, extending, to the middle of that river, and of the East part of a certain waste ground called Jarrowslake, about 150 acres, (parcel of the manor) with divers liberties in the said river, and demised to the appellant Shepheard their said East part of Jarrowslake, with power to convert it to his best advantage; and this Jarrowslake being useless by the water overflowing it at every tide, which was thereby hindered from flowing up the river; and the appellant Shepheard conceiving it a fit place for erecting salt-works, began to inclose it with a ballast wharf, for salt ships, according to the antient usage at South Shields, (within said manor) where they had, time out of mind, enjoyed such wharfs, without paying any acknowledgment to respondents, and particularly at a place called Mildam Key, where they had constantly taken the ballast of salt ships, for above three score years, without interruption; and that this place was many years ago certified by commissioners of sewers, as most commodious for a ballast key, and its advantages were reported to King Charles the second, by the Trinity Masters of London; and this liberty was confirmed to appellants by several orders of the King and Council, in the case of Sir Robert Heath, above three score years ago: Yet respondents have, for many years, endeavoured either to get this ground themselves, or render it useless to all others; and fearing that coal ships should prefer to unload ballast at the intended quay, rather than sail many miles up a dangerous river to the town quays, not only demolished the said wharf, but exhibited their bill in the Exchequer, prescribing for the sole licensing all [19] ballast wharfs there; and praying a perpetual injunction to restrain appellants in the premisses. Whereupon the Court directed a trial upon these isues: 1. Whether the appellants could lawfully erect and use a ballast key at Jarrowslake, without the respondents license. 2. Whether the erecting such quay would be a damage to the river or navigation thereof, or port of Newcastle. And upon a verdict by a jury of Bedfordshire, an inland county, strangers to navigation, who never had any view or knowledge of the place in question, the Court, without granting appellants further time to make out their right at law, by a jury of the neighbourhood, which they assort they can do by evidence never yet heard, (and some of it discovered since the last trial) decreed a perpetual injunction: from which the defendants appealed, and insisted before the Lords, that the issues tried, (supposing them proper) were not tried by a jury of the neighbourhood, before whom the law gives every man right to have his cause once tried at least, as having best knowledge of usage and fact, and that such trial ought the rather to have been granted in this case; because it concerns not only the inheritance of the Church, and the private interest of their lessee fairly purchased, but the coal and salt trades throughout the kingdom; and that no damage was proved to have arisen to the said river or port by the appellants ballast wharf, wherein they proceeded above seven score yards, or by the old wharf, built formerly at the same place, which had stood fifty years without pretence of prejudice which appellants conceived would have been the proper issue, rather than an issue to try whether it will in future be any damage, which no jury can well take cognizance of, it being impossible to prove how much or how the appellants would build, till the same should be completed; and insisted further, that appellants, by this decree, are not only restrained from erecting ballast wharfs for coal ships, but for salt ships too, though it was fully proved that salt ships constantly cast their ballast at the Dean and Chapter's key, at South Shields, without any duty or acknowledgment to the town of Newcastle: to which, in particular, the appellants right could not possibly be found, upon so general issue as was then tried. And that appellants are, by this decree, for ever precluded from making any use of their
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