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It has been decided upon this section, that where a defendant justifies 2 & 3 Will. 4, under an enjoyment of twenty or forty years, if the plaintiff relies upon a c. 71, s. 5. licence covering the whole of that period, he must reply such licence specially: but a licence granted and acted on during the period may be given must be replied in evidence under the general traverse of the enjoyment during the period specially. alleged, showing that there was not, at the time when the agreement was made, an enjoyment as of right; and so the continuity is broken, which is inconsistent with the simple fact of enjoyment during the forty or twenty years. (Tickle v. Brown, 4 Ad. & Ell. 369; 6 Nev. & M. 230;- see Lowry v. Crothers, I. R., 5 C. L. 98, ante, p. 5.).

To a declaration in trespass qu.cl.fr. the defendant pleaded, that he and Licence must be the former occupiers of a house and land had for twenty years used and co-extensive with enjoyed as of right a certain way on foot and with horses, &c., from and out the right claimed. of a common highway, towards, into, through and over the plaintiff's close, to the defendant's house and lands and back, at all times of the year, at their free will and pleasure. The replication averred, that the defendant, &c. used and enjoyed the right of way mentioned in the plea, but they did so under the plaintiff's leave and licence. At the trial it appeared, that the defendant and the former occupiers of his house and land had an admitted right of way from thence over the locus in quo to the highway, and across the highway to a close called Reddings, and that for the last twenty years they had a licence from the plaintiff to use, whenever they pleased, a way from the defendant's house and lands over the locus in quo to the highway and baek, when they had not any intention of going to Reddings. It was held, that the replication was not supported by this evidence, and that the plaintiff was bound to show a licence co-extensive with the right claimed in the plea and admitted by the replication. (Colchester v. Roberts, 4 Mees. & W. 769.)

The asking leave from time to time within the forty or twenty years Evidence admisbreaks the continuity of the enjoyment as of right, because each asking of sible under leave is an admission that, at that time, the asker had no right; and there- general traverse. fore the evidence of such asking within the period is admissible under

Asking leave. general traverse of the enjoyment for forty or twenty years as of right. (Monmouthshire Canal Co. v. Harford, 1 Cr, M. & R. 614. See Tickle 7. Brown, 4 Ad. & Ell. 383.) Lord Denman, C. J., said, that in looking at the report of the case of the Monmouthshire Canal Co. v. Harford (1 Cr., M. & R. 614; 5 Tyr. 68; see post), we find that the decision rests on this ground, viz. that the asking leave from time to time within the forty or twenty years breaks the continuity of the enjoyment as of right, because each asking of leave is an admission that, at that time, the asker had no right; and therefore the evidence of such asking within the period is admissible under a general traverse of the enjoyment for forty or twenty years as of right. To this ground of decision we quite accede; and it will follow, that not only an asking leave, but an agreement commencing within the period may be given in evidence under the general traverse, notwithstanding the words of the 5th section ; for the party cannot and does not rely on it as an answer to an enjoyment as of right which he confesses, nor as avoiding any such enjoyment during the time covered by the agreement; bat as showing that there was not, at the time when the agreement was made, an enjoyment as of right; and so the continuity is broken, which is inconsistent with the simple fact of enjoyment during the forty or twenty years. (Tickle v. Brown, 4 Ad. & Ell. 383, 384.) In Beasly v. Clark (3 Scott, 258; 2 Bing. N. C. 709), Tindal, C. J., said, “Under a replication denying that the defendant had used the way for forty years as of right, and without interruption, the plaintiff is at liberty to show the character and description of the user and enjoyment of the way during any part of the time—as, that it was used by stealth, and in the absence of the occupier of the close, and without his knowledge; or that it was merely a precarious enjoyment by leave and licence, or any other circumstances which negative that it was an user or enjoyment under a claim of right; the words of the 5th section not being inconsistent with the simple fact of enjoyment, being referable, as we understand the statute, to the fact of enjoyment as before stated in the act, viz. an enjoyment claimed and exercised as of right.”

2 of 3 Will. 4, In Onley v. Gardiner (4 Mees. & W. 494), it was decided, that unity

c. 71, s. 5. of possession was “inconsistent with the simple fact of enjoyment as of Evidence of unity right,” and therefore need not be specially pleaded. The simple fact of of possession.

enjoyment referred to in the 5th section is an enjoyment “as of right," and proof that there was an occasional unity of possession is as much in denial of that allegation, as the occasionally asking permission would be. In Clayton v. Corby (2 Q. B. 813), it was held, that evidence of unity of possession was receivable under the traverse of a plea of enjoyment for sixty years, inasmuch as such proof went to show that the enjoyment was not as of right. (See Pye v. Mumford, 5 Dowl. & L. 414.) In trespass quare clausum fregit, to a plea of enjoyment of a right of way over the plaintiff's close, by the occupiers of a close called W. for twenty years next before the commencement of the suit, under this statute, the plaintiff replied that, before the period of twenty years mentioned in the plea, one W. C. was seised in fee, as well of the close mentioned in the declaration as of the close called W., and continued so seised during part of the said period of twenty years, to wit, until, &c., when he died so seised ; it was held bad on special demurrer; for that unity of seisin was not inconsistent with the right as alleged in the plea, and unity of possession (if that were meant by the replication) might have been given in evidence under a traverse of the right as alleged in the plea. (England v. Wall, 10 Mees. & W. 699.)

In trespass, upon issue joined, whether the defendant had for thirty years enjoyed as of right a certain privilege, &c., upon the plaintiff's land, the plaintiff, in order to raise the presumption that the enjoyment was permissive, may give in evidence an old lease made to the defendant's predecessor, and expiring immediately before the commencement of the thirty years, whereby the lessee was entitled to the privilege, &c., during the term. It is not necessary in such a case for the plaintiff to reply the lease specially under this section. (Clay v. Thackerah, 2 M. & Rob. 244; 9 Carr. & P. 47; ante, p. 11.) In an action of trespass quare clausum fregit, it was also held, that this unity of possession need not be specially replied; and that, without a special replication under the 5th section, the lease of the land to B., and letters written by B. while lessee of the mill, and before he became lessee of the land, were receivable in evidence. (16.) And it was held, that B.'s lease of the land having expired more than thirty years ago, the acts of the occupiers of the mill in repairing the banks ever since that time, without any leave asked by them, or any notice from the other side of any adverse claim, must be taken to be done as of right.

(16.) Evidence of ex- The plea under this act was of a right of way for the occupiers of a close tent of right. for twenty years, for horses, carts, waggons, and carriages, at their free will

and pleasure. The replication traversed such right. It was held that, under the issue, the plaintiff might show that the defendant had a right of way for horses, carts, waggons, and carriages, for certain purposes only, and not for all, and was not compelled to new assign; and might show that the purpose for which the defendant had used the road, and in respect of which the action was brought, was not one of those to which the right extended. (Cowling v. Higginson, 4 Mees. & W. 245.) In an action of trespass quare clausum fregit, defendant justified the acts complained of, as having been done in exercise of a right of way for foot passengers. Plaintiff taking issue upon that, gave evidence at the trial that defendant had used the alleged pathway with horses and carts. Held, that the excessive user should have been new assigned. (Lane v. Hone, I. R., 6 C. L, 232.) It is sufficient primâ facie proof of a prescription for a generat easement as a right of way for all purposes to show the actual exercise of the right for more than twenty years for all the purposes to which the use or enjoyment of the premises at different times required its exercise, although for some of those purposes it appears that it was first used, in fact, within that period. (Dare v. Heathcote, 25 L. J., Exch. 245.) Hence, where a right of way was pleaded for cattle and carts, and it appeared that the right had been used for cattle for more than twenty years, and had for the first time been used for carts within that period on the first occasion which had arisen requiring its use in that manner; it was 2 & 3 Will. 4, held that the evidence was enough to go to the jury, as raising a presump- c. 71, s. 5. tion that the right had existed to the general extent to which it was claimed, although it had not been exercised for a period so long as in itself to create a prescription. (Ib.)

In cases of prescription the allegation must be proved as laid. Thus, in Prescriptive right replevin, if the defendant avow taking the cattle as damage feasant, and commensurate the plaintiff plead in bar a right of common, and aver that the cattle were claimed must be levant and couchant, on which averment issue is joined, proof only for part proved. of the cattle will not be sufficient, for the issue is upon the whole.' (2 Roll. Abr. 706; 5 Rep. 79; 4 Rep. 29 b; 1 Campb. 313. See 2 H. Bl. 224.) But though a party must prove a prescriptive right commensurate with the right claimed, he will not be precluded from recovering, because he proves a more ample right than what he claims. Evidence of a right of common for sheep and cows will support a plea prescribing for common only for sheep. (Cro. Eliz. 722; 1 Taunt. 142; West v. Andrens, 1 B. & Cr. 77.) A party may prescribe for less than he proves, but that implies that the lesser right claimed is included in the greater. (Bailey v. Appleyard, 8 Ad. & Ell. 167.) Where a plaintiff claimed a right of common for all his commonable cattle, and the proof was that he had turned on all cattle that he kept, but that he had never kept any sheep; it was held to be evidence of a right for all commonable cattle, which ought to have been left to the consideration of the jury. It might have been otherwise if there had been evidence of the plaintiff having kept cattle which he did not turn on. A right of common was held to be well laid as "for sheep at all times of the year;" though it was proved to be subject to folding the sheep at night in a certain farm, the expression being held to mean all usual times. (Manifold v. Pennington, 4 B. & Cr. 161 ; Brook v. Willet, 2 H. Bl. 224.) Where in debt, for not setting out tithe of hay, plaintiff averred that there was a certain annual custom as to setting out the tithe “ within the parish, and the limits, bounds and tithable places thereof;" it was held, that such averment was proved, for that the custom prevailed in all parts of the parish where tithe of hay was set out, and that proof of a modus for hay in one township made no difference. (Pigott v. Bayley, 6 B. & Cr. 16.) Where a plaintiff claimed an easement of hanging linen across a yard for drying them, larger than that proved, the court refused to allow the plaintiff to amend on payment of costs, inasmuch as he was not thereby precluded from bringing another action, if he were interrupted in the enjoyment of the limited right. (Drewell v. Tonler, 3 B. & Ad. 735.) The general rule of pleading in cases of tort is, that it is sufficient if part only of the allegation stated in the declaration be proved, provided that what is proved affords a ground for maintaining the action, supposing it to have been correctly stated as proved. There is an exception, however, to this rule, which is, where the allegation contains matter of description. There, if the proof given be different from the statement, the variance is fatal. (Ricketts v. Salmay, 2 B. & Ald. 363. See Beadsworth v. Torkington, 1 Q. B. 782; Brunton v. Hall, Ib. 792.) If the allegation of right be divisible, it seems that the plaintiff is entitled to a limited verdict for a divisible part of the right alleged, though he fails to prove the residue. (See Giles v. Groves, 12 Q. B. 721; 1 Chit. Pl. 400, 7th ed.; Bullen and Leake's Precedents of Pleadings, 285, 711, 3rd ed.)

The latter part of the 5th section, in express terms, applies only to rights Right in gross which can be claimed by the occupiers of a tenement in respect of it, which, not within the it has been contended, is confined to a claim appendant or apportenant, and does not apply to a right in gross, as a right to take the whole pasTurage in gross. (See 5 Mees. & W. 402; 6 Mees. & W. 540; 7 Mees. & W.81.) It is questionable whether a right of common in gross be within this statute. Parke, B., said, “If the only question had been whether a right of common in gross be within the 5th section, we should probably have granted a rule for the purpose of giving that question further consideration, although we might be disposed to think that the present case is within the equity of the statute.(Welcome v. Upton, 6 Mees. & W.542. See 8. C. 5 Mees. & W. 404. See also per Willes, J., Bailey v. Stevens,

statute.

2 & 3 Will. 4, 12 C. B., N. S. 113.) It is now decided that rights in gross are not within c. 71, 8. 5. the statute. (Shuttleworth v. Le Fleming, 19° C. B., N. S. 687; 14 W. R.

13.)

for.

VI. LESS PERIOD NOT TO BE ALLOWED. Restricting the 6. In the several cases mentioned in and provided for by presumption to be this act, no presumption shall be allowed or made in favour or port of claims support of any claim, upon proof of the exercise or enjoyment herein provided

of the right or matter claimed for any less period of time or number of years than for such period or number mentioned in this act as may be applicable to the case and to the nature of the claim (1)

(1) This section forbids a presumption in favour of a claim to be drawn from a less period of enjoyment than that prescribed by the statute. (Bright v. Walker, 1 Cr., M. & Rosc. 222 ; ante, pp. 9, 10.)

The “interruption" which defeats a prescriptive right, under this statute, is an adverse obstruction, not a mere discontinuance of user by the claimant himself. In a case under the 1st section, if proof be given of a right of enjoyment at the time of action brought, and thirty years before, but disused during any part of the intermediate time, it is always a question for the jury whether at that time the right had ceased or was still substantially enjoyed. The inference to be drawn from the facts proved on this point is not a presumption within the 6th section. Where a commoner had ceased to use the common during two years of the thirty, having no commonable cattle at the time, but had used it before and after : it was held, that a jury were justified in finding a continued enjoyment of the right during thirty years. (Carr v. Foster, 3 Q. B. 581; 2 Gale & D. 753. See Hall v. Swift, 4 Bing. N. C. 381.)

The meaning of this section seems to be that no presumption or inference in support of the claim shall be derived from the bare fact of user or enjoyment for less than the prescribed number of years; but when there are other circumstances in addition, the statute does not take away from the fact of enjoyment for a shorter period its natural weight or evidence, so as to preclude a jury from taking it along with other circumstances into consideration as evidence of a grant. (Per Lord Westbury, Hanmer v.Chance, 13 W. R. 556 ; 34 L. J., Ch. 416.)

Proviso for per bons under disabilities.

VII. DISABILITIES. 17. Provided also, That the time during which any person otherwise capable of resisting any claim to any of the matters before mentioned shall have been or shall be an infant, idiot, non compos mentis, feme covert, or tenant for life, or during which any action or suit shall have been pending, and which shall have been diligently prosecuted, until abated by the death of any party or parties thereto, shall be excluded in the computation of the periods hereinbefore mentioned, except only in cases where the right or claim is hereby declared to be absolute and indefeasible (m).

(m) It is the intention of the act, that an enjoyment of thirty years, or twenty years, shall be of no avail against an idiot or other person labouring under incapacity, but that one of sixty or forty years shall confer an absoInte title, even against parties under disabilities. (See Wright v. Williams, 2 & 3 Will. 4, 1 Tyr. & Gr. 392 ; 1 Mees. & W.77.) This section, it is to be observed, c. 71, .. 7. in express terms excludes the time that the person (who is capable of resisting the claim) is tenant for life. During the period of a tenancy for life, the exercise of an easement will not affect the fee; in order to do that there must be that period of enjoyment against an owner of the fee. (Bright v. Walker, 1 Cr., M. & R. 222 ; ante, pp. 9, 10.) The cases Cases where right when the right is declared by the statute to be absolute and indefeasible is declared abso

lute. are as follows. By the 1st section, where the right, profit or benefit shall bave been taken as required for the full period of sixty years, the right shall be deemed absolute and indefeasible, unless it shall appear that the same was taken and enjoyed by some consent or agreement, expressly made or given for that purpose by deed or writing. By the 2nd section, where any way or easement, or any watercourse, or the use of any water, shall have been enjoyed as therein mentioned for the full period of forty years, the right thereto is made absolute and indefeasible, unless it shall appear that the same was enjoyed by some consent or agreement expressly given or made for that purpose by deed or writing. By the 3rd section, the enjoyment of light for the full period of twenty years without interruption is made absolute and indefeasible, unless it shall appear that the same was enjoyed by some consent or agreement expressly made or given for that purpose by deed or writing.

A claim was defeated by proof of an outstanding life estate under this section. (Hale v. Oldroyd, 14 M. & W. 739.)

Under sects. 1, 4 and 7 of this act, an enjoyment as of right for thirty years next before the commencement of an action, may be proved by showing that the party has enjoyed for several periods amounting together to thirty years, and that during the whole time between such periods, and between the last of them and the action (if such period intervened), the estate over which the right has been exercised was in the hands of a tenant for life. The defendant pleaded generally, that he had enjoyed as of right for thirty years next before the commencement of the action; the plaintiff replied that a life estate was outstanding for twenty-seven of the said thirty years; the defendant rejoined that such estate did not continue during any part of the said thirty years : and issue was thereupon joined. The defendant proved enjoyment during two periods, amounting together to thirty years; one period before and one after the life estate. It was held, that the defendant's issue was proved, and that as the plaintiff had replied and set up a tenancy for life he excluded the term of such tenancy, and drove the defendant to show thirty years' enjoyment, either wholly before the tenancy for life if it had still subsisted, or partly before and partly after, whereas in this case it had determined. (Clayton v. Corby, 2 Q. B. 813.)

VIII. TIME EXCLUDED FROM FORTY YEARS.

excluded in com

8. Provided always, and be it further enacted, That when What time to be any land or water upon, over, or from which any such way or

puting the term other convenient (n) watercourse or use of water shall have of forty years been or shall be enjoyed or derived, hath been or shall be held appointed by this under or by virtue of any term of life, or any term of years exceeding three years from the granting thereof, the time of the enjoyment of any such way or other matter as herein last before mentioned, during the continuance of such term, shall be excluded in the computation of the said period of forty years, in case the claim shall within three years next after the end or sooper determination of such term be resisted by any person

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