Of Watercourses. with sea-weed and beach, and were covered by the high water of the ordi Alluvium. Ferries. nary spring tides, but not by the medium tides. It was held, in the absence As to the boundary of a parish which lies on the seashore or extends up to a tidal river, see Bridgwater Trustees v. Bootle-cum-Linacre, (L. R., 2 Eq. 4). An information for the purpose of having the title of the crown to alluvium gained from the sea declared and established, is analogous to a bill to ascertain boundaries, and requires in support of it admissions or evidence showing a title in the crown to some lands in the possession of the defendant. (Att.-Gen. v. Chambers, and Att.-Gen. v. Rees, 4 De G. & J. 55. See Godfrey v. Little, 2 Russ. & M. 633.) But where the witness, in support of the information, deposed that the alluvium had been added to the main land, not gradually and imperceptibly, but rapidly; it was held, that a sufficient case had been made for directing issues. (lb.) It seems that the title to alluvium, arising from artificial causes, does not differ as to the rights of landowners, from the title to alluvium arising from natural causes, where the artificial causes arise from a fair use of the land adjoining the seashore, and not from acts done with a view to the acquisition of the seashore. (Ib.) Where the acts of ownership relied on consisted merely of turning cattle upon a marsh which crossed the invisible line of boundary separating the marsh from the seashore, and the cattle were allowed to stray without interruption, Lord Chelmsford, C., said, "The effect of acts of ownership must depend partly upon the acts themselves, and partly upon the nature of the property upon which they are exercised. If cattle are turned upon enclosed pasture ground, and placed there to feed from time to time, it is strong evidence that it is done under an assertion of right; but where the property is of such a nature that it cannot be easily protected against intrusion, and if it could it would not be worth the trouble of preventing it; there, mere user is not sufficient to establish a right, but it must be founded upon some proof of knowledge and acquiescence by the party interested in resisting it, or by perseverance in the assertion and exercise of the right claimed in the face of opposition. (Att.-Gen. v. Chambers, 4 De G. & J. 55, see p. 65.) In Scratton v. Brown (4 B. & C. 485), where the advance of the sea had been gradual and imperceptible, and the high and low water mark had varied in the same degree, it was held, that the freehold of the grantee of the shores and sea grounds shifted as the sea receded or encroached. (See 2 Bl. Com. 262; Rex v. Lord Yarborough, 3 B. & C. 91; 2 Bligh, N. S. 147; The Hull and Selby Railway Company, 5 M. & W. 327.) Land formed by gradual accretion belongs to the owner of the adjacent soil. (Doe v. East India Company, 10 Moore P. C. C. 140.) A ferry is the exclusive right to carry passengers across a river or arm of the sea, from one vill to another, or to connect a continuous line of road leading from one township or vill to another, and not a servitude imposed upon a district or large area of land, and is wholly unconnected with the ownership or occupation of land. (Newton v. Cubitt, 12 C. B., N. S. 32; 9 Jur., N. S. 544. See Reg. v. Matthews, 5 El. & Bl. 546; 1 Jur., N. S. 1204; 25 L. J., M. C. 7.) In an action for an evasion of an ancient ferry, by carrying passengers across the river near thereto, the court refused to allow the defendant to add a plea, alleging a variety of circumstances to show that from the altered state of the neighbourhood public convenience required that which the defendant had done, holding that the plea was clearly bad, and at the most amounting to not guilty. (Newton v. Cubitt, 5 C. B., N. S. 627; 5 Jur., N. S. 847; 28 L. J., C. P. 176.) A right of ferry is a matter in which the public are interested, and of which therefore reputation is evidence, and so also is a verdict or judgment of a court of competent jurisdiction, touching the same right, although be- of Watercourses. tween other parties. (Pim v. Currell, 6 Mees. & W. 234.) A custom or usage of keeping an ancient ferry boat was alleged by the parishioners of a parish. (3 Mod. 294.) All common ferries have their origin in royal grant or in prescription which presumes such grant. The owner of the ferry is bound, under pain of indictment, to maintain the ferry at all times for the use of the public. (Letton v. Goodden, L. R., 2 Eq. 131.) (6.) OF THE RIGHT TO PEWS. Of common right, the soil and freehold of the church is the parson's; General right the use of the body of the church, and the repair of it common to the with regard to parishioners; and the disposing of the seats therein the right of the ordi- pews. nary. (Hob. 69; Gibs. Cod. tit. 9, c. 4.) According to the common law the rector, whether endowed or spiritual only, is entitled to the chief seat in the chancel unless some other person be in a condition to prescribe for it from time immemorial. The ecclesiastical court, in the exercise of its ordinary authority would allot to him such sitting and protect him against the disturbance of such right. (Spry v. Flood, 2 Curt. 357.) An exclusive title to pers and seats in the body of the church may be maintained in virtue of a faculty, or by prescription, which is founded on the presumption that a faculty had been heretofore granted. All other pews and seats in the body of the church are the property of the parish; and the churchwardens, as the officers of the ordinary, and subject to his control, have authority to place the parishioners therein. No precise rules are prescribed for the government of churchwardens in the use of this power, for its due exercise must depend on a sound judgment and discretion applied to the circumstances of the parish. (Report of Ecel. Commrs., Feb. 1832, p. 48.) By the general law, and of common right, all the pews in a parish church are the common property of the parish; they are for the use in common of the parishioners, who are all entitled to be seated orderly and conveniently, so as best to provide for the accommodation of all. The distribution of seats rests with the churchwardens, as the officers, subject to the control of the ordinary. (12 Rep. 105; 3 Inst. 202; 3 Hagg. Eccl. Rep. 733.) By the general law, the use of all the pews belongs to the parishioners; they are to be seated therein, in the first instance, by the churchwardens; the power of the latter, however, is subject to the control of the ordinary, who is to see that the churchwardens exercise their authority discreetly, for the proper accommodation of the parishioners at large. This is the law, not merely to be found in ecclesiastical authorities, but is the common law of the land, as laid down by the highest common law authorities. (Blake v. Usborne, 3 Hagg. Eccl. R. 733.) It will be sufficient to refer to Lord Coke. (12 Rep. 105; 3 Inst. 202.) The churchwardens have a discretionary power to appropriate the pews in the church amongst the parishioners, and may remove persons intruding on seats already appropriated. (Reynolds v. Monkton, 2 M. & Rob. 384.) The parishioners cannot prescribe to dispose of pews in exclusion of the ordinary. (1 Salk. 167, pl. 7.) Neither the minister nor the vestry have any right whatever to interfere with the churchwardens in seating and arranging the parishioners, as often erroneously supposed; at the same time the advice of the minister, and even sometimes the opinion and wishes of the vestry, may be fitly invoked by the churchwardens, and to a certain extent may be reasonably deferred to in this matter. The general duty of the churchwardens is to look to the general accommodation of the parish, consulting, as far as may be, that of all the inhabitants. The parishioners, indeed, have a claim to be seated according to their rank and station; but the churchwardens are not, in providing for this, to overlook the claims of all parishioners to be seated, if sittings can be afforded them. Accordingly they are bound, in particular, not to accommodate the higher classes beyond their real wants, to the exclusion of their poorer neigh Of the Right to Particular rights. Particular rights founded on faculty or prescription. Prescriptive right to pews, how proved. bours, who are equally entitled to accommodation with the rest, though they are not entitled to equal accommodation, supposing the seats to be not all equally convenient. (2 Addams, R. 425, 426.) The incumbent has no authority in the seating and arranging the parishioners beyond that of an individual member of the vestry, and which his station and influence in the parish naturally give him. He may properly object to a plan which is generally inconvenient, which diminishes the accommodation in the church, which disfigures the building, which renders it dark and incommodious. In every case of this description, it is very proper he should make a representation to the ordinary; but as to the mere arrangement of seats, if the parishioners can settle that among themselves, and to their own satisfaction, and can agree about the expense, there seems but little necessity for the interference of the incumbent; the expense is that of the parishioners; the churchwardens are bound to repair with the consent of the vestry; it is not the vicar, but the vestry which appropriate the seats: the general superintendence and authority in allotting them rests with the ordinary. (1 Phill. R. 233.) The general right then being in the parish and the ordinary, any particular rights in derogation of these are stricti juris; it is the policy of the law that few of these exclusive rights should exist, because it is the object of the law that all the inhabitants should be accommodated; and it is for the general convenience of the parish that the occupation of pews should be altered from time to time, according to circumstances. A possessory right is not good against the churchwardens and the ordinary: they may displace, and make new arrangements, but they ought not without cause to displace persons in possession; if they do, the ordinary would reinstate them the possession therefore will have its weight,-the ordinary would give a person in possession, cæteris paribus, the preference over a mere stranger. (1 Phill. R. 324.) The churchwardens are not justified in dispossessing any one of a sitting which he has enjoyed for a time, without giving notice of their intention, and offering an opportunity for explanation. (Horsfall v. Holland, 6 Jur., N. S. 278.) A possessory right is sufficient to maintain a suit against a mere disturber. (Spry v. Flood, 2 Curt. 356.) The fact of possession implies either the actual or virtual authority of those having power to place. The disturber may show that he has been placed there by this authority, or must justify his disturbance by showing a paramount right,- a right paramount to the ordinary himself; namely, a faculty by which the ordinary has parted with the right; or if there be no proof of a faculty, there may be proof of prescription, and such immemorial usage as presumes the grant of a faculty. (1 Phill. R. 324.) Where the prescription is interrupted, the jury are not bound to presume a faculty from long undisturbed possession. (Morgan v. Curtis, 3 M. & R. 389.) On the expiration of a faculty, as where one was granted for ninety-nine years, the right of the parishioners to the use of the pew revives. (3 Hagg. Eccl. R. 733.) A faculty (for annexing a pew to a messuage) obtained by surprise and undue contrivance may be revoked. (2 Hagg. Eccl. R. 417.) A prescriptive right must be clearly proved; the facts must not be left equivocal; and they must be such as are not inconsistent with the general right. In the first place, it is necessary to show that the use and occupation of the seat have been from time immemorial appurtenant to a certain messuage, not to lands; the ordinary himself cannot grant a seat appurtenant to lands. Secondly, it must be shown that if any acts have been done by the inhabitants of such messuage, they maintained and upheld the right. At all events, if any repairs have been acquired within memory, it must be proved that they have been made at the expense of the party setting up the prescriptive right. The onus and beneficium are supposed to go together; mere occupancy does not prove the right. What might be the effect of very long occupancy, where no repairs have been necessary, does not appear to be decided. It is a common error to suppose that by mere occupancy pews become annexed to particular houses. In country parishes the same families occupy the same pews for a long time, but they still belong to the parish at large; if, however, it is shown that the in habitants of a particular house have repaired, that fact establishes that the burthen and benefit have gone together, and is inconsistent with the right of the parish still to claim the benefit, and is evidence of the annexation of the pew. Thus the uniform and exclusive possession of the inhabitants of a particular messuage connected with the burthen of maintaining and repairing the seat is evidence sufficient to establish a prescriptive title. (1 Phill. R. 325-6.) To exclude the jurisdiction of the ordinary from the disposal of a pew, it is necessary, not merely that possession should be shown for many years, but that the pew should have been built and repaired time out of mind. (1 T. R. 428.) The strongest evidence of that kind is the building and repairing time out of mind; but mere repairing for thirty or forty years will not exclude the ordinary. The possession must be ancient, and going beyond memory, though on this subject the high legal memory, even before the act 2 & 3 Will. 4, c. 71, was not required. (1 Hagg. Cons. R. 322.) Twenty years' adverse possession seems to bar the right to a pew. (1 Phill. R. 328.) On application for a faculty to repair and repew a church, a parishioner appeared to the decree and prayed a faculty might not be granted without a proviso that a pew claimed to be held by him by prescription should not be removed or altered. The prescription was denied. It was held, that a prima facie title by prescription was established, and that the faculty should be issued with the proviso. (Knapp v. Parishioner of St. Mary, Willesden, 2 Rob. Ecc. Rep. 358; 15 Jur. 473.) Evidence of repair to a pew claimed by prescription is not absolutely necessary, as no repair may have been made within the period of any one living. (b.) Where the members of a corporation have as such occupied a particular pew in the parish church, the repairs of it may be properly charged on the borough fund. (Reg. v. Mayor, &c. of Warwick, 10 Jur. 262; 15 Law J., Q. B. 306.) Of the Right to Extra-parochial persons cannot establish a claim to scats in the body of Extra-parochial a parish church without proof of a prescriptive title, and therefore if they persons. sue in the ecclesiastical court to be quieted in the possession of such seats, the court of K. B. will grant a prohibition; although it seems that such persons cannot establish such a claim even by prescription. (Byerly v. Windus and others, 5 B. & C. 1; S. C., 7 DowÏ. & Ryl. 564. See Hallack v. University of Cambridge, 1 Gale & D. 100; 1 Q. B. 593, as to prohibition against granting a faculty.) A pew in an aisle or chancel may belong to a non-parishioner, for the case of an aisle or chancel depends upon, and is governed by, other considerations. (2 Addams, R. 427.) A pew in the body of the church may be prescribed for as appurtenant to a house out of the parish. (Davis v. Witts, Forr. R. 14; Lonsley v. Hayward and another, 1 Younge & Jerv. 583.) A man may prescribe for a chancel or for an aisle, or for a pew in an aisle, or even in the nave of a church, if he prescribes for that he and those whose estate he has, have always had it, and have always repaired it, even though the estate or house in question be out of the parish. ` (Per Kindersley, V.-C., Churton v. Frewen, L. R., 2 Eq. 656.) A pew annexed by prescription to a certain messuage cannot, as is often erroneously conceived, be severed from the occupancy of the house, but passes with the messuage, the tenant of which for the time being has de jure the prescriptive right to the pew, (1 Hagg. Cons. R. 319; 1 T. R. 430; 3 M. & R. 334; 2 Add. 428,) which cannot be sold nor let without a special act of parliament, (1 Hagg. Eccl. R. 319, 321,) or under the provisions of the Church Building Acts. (See 58 Geo. 3, c. 45, ss. 65, 66, 75-79; 59 Geo. 3, c. 134, ss. 26, 32; 8 & 9 Vict. c. 70, s. 11.) Where an occupier of a pew ceases to be an inhabitant of the parish, he cannot let the pew with and thus annex it to his house, but it reverts to the disposal of the churchwardens. (1 Hagg. Eccl. R. 34.) A person who has permission from the churchwardens to sit in a pew temporarily, and in order, by keeping possession for the future tenant, to carry into effect the conditions of sale of a house with which the pew has for above a century been held under an expired faculty, has no possession on which he can bring a suit for perturbation of seat against a mere intruder, such permission by the church Prescriptive right to pew cannot be severed from occupancy of messuage. Of the Right to Right to vote in respect of pews. Chancels. Remedy for dis Action at law. wardens being illegal, as confirming the sale of the pew. (Blake v. Usborne, 3 Hagg. Eccl. R. 726.) Customs pleaded, "that pews are appurtenant to certain houses, and are let by the owners to persons who are not inhabitants of the parish," are bad. (1 Hagg. Cons. R. 317.) Custom, "that persons who had not pews appurtenant pay rent for seats, which is applied in payment of the parish rate," is a practice which has been constantly reprehended by the ecclesiastical courts, and discouraged as often as set up. (1 Hagg. Cons. R. 317.) But if a house to which a pew is appurtenant be let to a parishioner, in that character he is clearly entitled to the pew. (2 Add. 428.) It was held, that sect. 51 of the local statute 51 Geo. 3, c. 151, which enacts, that the said vestrymen (of St. Marylebone) shall set out and appropriate such a number of seats for the gratuitous accommodation of the poor of the said parish for the time being, and also of such other pews or seats for the use of the parishioners of the said parish as the said vestrymen shall think necessary, proper and convenient, is imperative upon the vestrymen, and empowers them to set out and appropriate the pews (other than those of the poor) without restriction, and not subject to the superintendence of the ordinary. (Spry v. Flood, 2 Curt. 362.) It was held, that by the 52nd sect. of 51 Geo. 3, c. 151, which enacts, that it shall be lawful for the vestrymen of St. Marylebone, if they shall think proper, to let the pews, &c., or any of them, except the pews or seats to be appropriated for the gratuitous accommodation of the poor of the said parish for the time being as before mentioned, to such persons only who shall be inhabitant householders within the said parish, the vestrymen were empowered to let all the pews save those for the poor, and consequently to remove the rector from one of two pews of which he had been in possession from the time of his induction, and to let it to another inhabitant householder. (Spry v. Flood, 2 Curt. 364.) 32 & 33 Vict. c. 94, contains provisions for the surrender of pews which are private property, or subject to any trust, to the bishop of the diocese or the ecclesiastical commissioners. On the construction of private acts it was held that the proprietors of pews did not acquire such a freehold interest in the soil of the church as entitled them to a county vote; but only a right to sit in it to hear divine service, which right was of the nature of an easement. (Hinde v. Chorlton, L. R., 2 C. P. 104; Brumfitt v. Roberts, L. R., 5 C. P. 224; Greenway v. Hockin, ib. 235.) A pew in a chancel may legally belong to a party in respect of the ownership of a house. (Parker v. Leach, 4 Moore, P. C. C. 180.) Immemorial repair of a chapel or lesser chancel, which is part of a parish church, coupled with other acts of ownership, is evidence of a freehold of inheritance in it being vested in those who have executed the repairs and exercised the acts of ownership. Such a freehold may be vested in a private person: and the enjoyment of such a chapel or chancel, and the right to its exclusive use is not necessarily annexed to a dwelling-house. (Chapman v. Jones, L. R., 4 Ex. 273.) Even though the freehold may not be in the person prescribing, immemorial use and occupation, coupled with reparation, may entitle the lord of the manor by prescription to the perpetual and exclusive use of the chancel, and such a right may be appendant to an estate or house not situate in the parish. (Churton v. Frewen, L. R., 2 Eq. 634.) Where a pew is claimed as annexed to a house by faculty or prescription, turbance of pews. the courts of common law exercise jurisdiction, on the ground of the pew being an easement to the house, and the proper remedy for a disturbance is an action on the case. (Mainwaring v. Giles, 5 B. & Ald. 361.) Where the pew is in a chancel, the freehold of an individual, the right to it is triable at common law. (May v. Gilbert, 2 Bulstr. 151.) The ecclesiastical court has jurisdiction in all suits respecting pews; but where prescriptive rights come in question, prohibition will be granted on the application of either party, for the purpose of having the prescription tried by a jury. (Report of Eccl. Commrs., p. 49.) If a man claiming title by prescription to an aisle, chancel, &c., as his freehold, or to a pew or seat in the body of the church, |