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in question for every resident freeman paying scot and lot; it appeared in Of Rights of evidence that the right relied upon was an ancient right. By 2 & 3 Will. 4, c. 64, and 5 & 6 Will. 4, c. 76, part of an additional parish is thrown within the borough of Stamford: it was held, that the declaration was not supported, as the right claimed was larger than that proved. (Beadsworth 5. Torkington, 1 G. & D. 482; 1 Q. B. 782.). In an action on the case for disturbance of common, when the defendant justifies under a right of common for his cattle levant and couchant, the plaintiff must new assign, if he intends to prove a surcharge. (Bowen v. Jenkins, 2 Nev. & P. 84; 6 Ad. & Ell. 911).
If one of the commoners surcharges the common, that is, puts more cattle into the common than he is entitled to do, the commoner who is injured may maintain an action on the case against the other for a surchage, notwithstanding he has himself been guilty of a surcharge. (Hobson v. Todd, 4 T. R. 71.) In an action on the case for the surcharge of a common, the plaintiff may declare generally for the injury, without stating the defendant's right of common, and how he had exceeded that right. (Atkinson v. Teesdale, 2 W. Bl. 817; 3 Wils. 278. See Cheesman v. Hardham, 1 B. & Ald. 706.) In case for a surcharge of common, the plaintiff need not show that he was exercising his right of common at the time of the surcharge, but only that he could not enjoy his common so beneficially as he ought. (Wells v. Watling, 2 W. Bl. 1233.) As to the right of distress for å surcharge, see 1 Wms. Saund. 630, edit. 1871.
An action of trespass will lie by one tenant in common against another, and also against his licensee, for making holes in the common, and for digging and taking turves away, when those acts are not done in the exercise of a right of common. And the plea, that the close was not the plaintiff's close, does not put in issue the exclusive possession of the plaintiff. But the plaintiff will recover such damages only as are proportionate to his interest. (Wilkinson v. Haygarth, 11 Jur. 104; 16 L. J., Q. B. 103.)
An owner seised in fee of a close, upon which the burgesses of a borongh had a right during a certain portion of the year to depasture their cattle, and having during that period exclusive possession of the close, may maintain an action of trespass against a party who, during that period, commits a trespass in the subsoil by digging holes; but not against one who, during that period, merely rides over the close. (Cox v. Glue, 5 C. B. 533.) The defendant in trespass pleaded, that for thirty years before suit he and all occapiers for the time being had enjoyed common of right and without interruption in, upon and throughout the close called P., and issue was joined on a traverse of this plea. The close P. was 3,000 acres in extent, and interraption by inclosure of ten acres had been acquiesced in for a year, and the trespass complained of was committed on these ten acres: it was held, that the defendant would only have proved his plea by proof of user on the place where the trespass was committed: the plaintiff was entitled to the verdict. (Davies v. Williams, 16 Q. B. 543.) As to pleading in an action of trespass against several claiming a right of common, see Church v. Wright, 15 C. B., N. S. 750.
Before the stat. 3 & 4 Will. 4, c. 27, the commoner was barred of his right of entry and ejectment, by having acquiesced in the inclosure of part of a common for more than twenty years, and his remedy was by writ of assize of common. The lord was not conclusively barred of his remedy to recover common lands which had been inclosed until the lapse of sixty years, within which time he might recover the lands by a real action. (Edrards v. M'Leay, Cooper, C. C. 318; Hawke v. Bacon, 2 Taunt. 155; Creach v. Wilmot, Id. 159. See 2 Smith's L. C. 632, 5th ed.) Writs of assize have been abolished by 3 & 4 Will. 4, c. 27, s. 36, post.
It is the policy of the law not to allow commoners to abate except in a Abatement. few cases. The abator is a judge in his own cause, which ought seldom to be permitted, whereas an action will best ascertain the just measure of the damages he has sustained. The cases where the law allows an abatement by a commoner, are where the acts of the lord are directly contrary to the nature of the common. For by the grant of it, the grantor gives everything
Of Rights of which is incident to the enjoyment of the grant, such as free ingress, egress,
&c. Therefore, if the lord erect a wall, gate, hedge or fence around the common, to prevent the commoner's cattle from going into the common, the commoner may abate the erection, because it is inconsistent with the terms of the grant. (2 Roll. Abr. 145, (W.) pl. 2; Cooper v. Marshall, 1 Burr. 259; Sadgrore v. Kirby, 6 Term Rep. 485.) The power of abatement in this case seems analogous to other cases where the acts done are inconsistent with the terms of the grant; and if the grantor of a way, &c., stops it up, the grantee may abate the erection.
A commoner may pull down a house wrongfully erected upon the common, if necessary for the exercise of his right, unless persons are in it at the time. (Perry v. Fitzhore, 15 Law J., N. S., Q. B. 239; 10 Jur. 799; 8 Q. B. 757.) In trespass for pulling down the dwelling-honse of the plaintiff, in which he and his family were inhabitants and actually present at the time, a plea justifying, because it was wrongfully erected upon a place over which defendant had a right of common, is bad. (Ib.) If a mere stranger erect a building upon land belonging to another, the owner of the land is justified in pulling down the building for the purpose of ejecting the intruder; and the fact of the latter being at the time in the building will not be any ground for maintaining an action of trespass against the real owner. (Barking v. Read, 19 Law J., Q. B. 291.) This is a very different case from Perry v. Fitzhone (8 Q. B. 757); for the defendant alleged that the house was his own, and that the plaintiff was a mere intruder; and it cannot be that such a person can prevent the owner from doing what he pleases on his own land. In the latter case, the plaintiff had a right of possession, but in the former case he had none. (See Harvey v. Bridges, 1 Exch. 261.) A declaration for breaking the plaintiff's house in which he was, and pulling it down is not answered by a plea as to the breaking and entering, that the defendant was entitled to common of pasture over the land on which the house had been wrongfully erected, and that he necessarily and unavoidably committed the trespasses complained of in removing the house. (Jones v. Jones, 8 Jur., N. S. 1132; 1 H. & Colt. 1.) In this case the court was of opinion that this case was not distinguishable from Per v. Fitzhone, but declined to express any opinion whether they would for the first time have concurred in the judgment in that case. Where a house obstructs the exercise of a right of common, the commoner may after notice and request to the plaintiff to remove the house, pull it down, though the plaintiff is actually inhabiting and present in the house. (Daries v. Williams, 16 Q. B. 543.)
So where the commoner is deprived of part of his common, by the erection of a wall, gate or hedge upon the common itself, it seems he may abate the erection, for it deprives him of his common, and forms no part of the soil of the common, and by such abatement the commoner does not at all meddle with the soil. (Mason v. Cæsar, 2 Mod. 65; 2 Inst. 88; Litt. Rep. 38.) And yet, as the lord may approve, leaving a sufficiency of common, the commoner acts at the peril of being punished in an action of trespass, provided the lord has left a sufficiency of common. When a part and not the whole of a common had been inclosed, a commoner in asserting his right of common may throw down the whole of the hedge erected on the common, and a plaintiff in trespass cannot recover against him on a new assignment, because he had thrown down more than sufficient to admit his cattle. (Arlett v. Ellis, 7 B. & C. 346; 9 D. & R. 897; 9 B. & C. 671.) But where a hedge or erection is made upon other land, which is no part of the common, but surrounds the common, the commoner can only abate so much of the erection as to make a way for his cattle to go into the common. (15 Hen. 7, 10 b, pl. 18; 29 Edw. 3, 6; 2 Inst. 88; Mason v. Cæsar, 2 Mod. 65. See 1 Wms. Saund. 353, a.) If the lord of a manor plant trees upon a common, a commoner has no right to cut them down; his
remedy is only by an action. (6 T. R. 483.) Remedy in equity. Where there has been possession of a fishery for a considerable length of
time, a person claiming a sole right to it may bring a bill to be quieted in the possession of it, though he has not established his right at law. (Mayor of York v. Pilkington and others, 1 Atk. 282.) And if the
Of Rights of
persons who dispute the right are numerous, so that it cannot be determined in one action at law, the party claiming an exclusive right may go to a court of equity first, which will direct an issue for settling the right, as in disputes between the lords of manors and their tenants, or the tenants of different manors. (Lord Tenham v. Herbert, 2 Atk. 483.) Bat if the question about a right of fishing arises between two lords of manors, neither of them can go into equity for relief until the right has been established at law. (Lord Tenham y. Herbert, 2 Atk. 483; Whitchurch v. Hyde, Id. 391; Welby v. Duke of Rutland, 6 Br. P. C. 575; see 1 Br. C. C. 40, 572.)
A bill will lie against the lord by one copyholder, on behalf of himself and the other copyholders, to have their rights of common ascertained: but one copy holder not suing on behalf of all cannot maintain such a bill. (Phillips v. Hudson, L. R., 2 Ch. 243.) A suit for the purpose of establishing a right of common over the wastes of a manor may be maintained by a copyhold and freehold tenant of the manor on behalf of himself and all other copyhold and freehold tenants. (Smith v. Earl Brownlow, L. R., 9 Eq. 241.) And by one freehold tenant of a manor on behalf of himself and all other freehold tenants. (Warrick v. Queen's College, Oxford, L. R., 6 Ch. 716; Betts v. Thompson, L. R., 6 Ch. 732.) A bill for the purpose of establishing a right of common over the wastes of a forest may be maintained by an owner and occapier of land within the forest on behalf of all the owners and occupiers. (Commissioners of Seners v. Glasse, L. R., 7 Ch. 456.)
As to production of documents in a suit instituted to establish a right of common of vicinage, see Minet v. Morgan, L. R., 11 Eq. 284.
As to the law of common in general, see Bac. Abr. Common; Com. Dig. Common; Cruise's Dig. tit. XXIII.; Woolrych on Rights of Common, 2nd ed.
(3.) OF THE PRESUMPTION OF GRANTS OF EASEMENTS;
AND OF LICENCES. For a long series of years prior to the passing of the act 2 & 3 Will. 4, Presumption at c. 71, judges had been in the habit, for the furtherance of justice, and for common law of the sake of peace, to leave it to juries to presume a grant from a long exer- real rights from cise of an incorporeal right, adopting the period of twenty years, by analogy exercise during to the statute of limitations, 21 Jac. 1, c. 16. Such presumption did not twenty years. always proceed on a belief that the thing presumed had actually taken place, but, as said by a learned author, (2 Stark. on Ev. 669,) "a technical efficacy was given to the evidence of possession beyond its simple and natural force and operation; and though in theory it mere presumptive evidence, in practice and effect it was a bar." The act 2 & 3 Will. 4, c. 71, is intended to make that possession a bar or title of itself, which was so before only by the intervention of a jury. (Bright v. Walker, 4 Tyrw. 507; 1 Cr., Mees. & Rosc. 217. See ante, pp. 9, 10.)
The presumption of a legal title, by grant or otherwise, to incorporeal rights in the lands of others, founded on adverse possession and enjoyment of such rights for the space of twenty years, appears to have been adopted in analogy to the enactment of the statute of limitations, 21 Jac. 1, c. 16, which made an adverse enjoyment of twenty years a bar to an action of ejectment; (Holcroft v. Heei, i Bos. & Pull
. 460; 2 Saund. 175 a;) for as an adverse possession of that duration will give a possessory title to the land itself, it seems to be also reasonable that it should afford a presumption of right to a minor interest arising out of land. (Campbell v. Wilson, 3 East, 294; Read v. Brookman, 8 Ť. R. 151.). This rule, according to Lord Mansfield, C. J., “is founded upon principles of sound policy and convenience;" (Cowp. 110;) and the grant is presumed, as the same learned judge declares, “ for the purpose and from a principle of quieting a long possession.” (16. 215.) The rule was resorted to, with the view of reliev
Presumption of ing the infirmity and necessity of mankind, who require, for the preserva
tion of their property and rights, where there is no written document, the admission of some general principle to take the place of individual and specific belief; and the legal presumption supplied the place of such belief. (Hillary v. Waller, 12 Ves. 266.)
A presumption of a grant is raised upon the general principle, that what has been done should be presumed to be rightly done; ex diuturnitate temporis omnia presumuntur solemniter esse acta. (Co. Litt. 6 b.) In applying this principle to a right of way, if it be found that the act has been often repeated, (for the occasional use of a walk or a path across a man's field would hardly be such an use as would establish the right,) but if the act must necessarily have been often repeated with the knowledge of the persons acting upon an adverse right, it affords a strong presumption in favour of the right so exercised. The same principle is applied to presumption in the case of light or of flowing water. (3 B. & C. 621, 622.) If there has been an uninterrupted possession of light, water, or any
other easement for twenty years, it affords a ground for presuming a right by grant, covenant or otherwise, according to the nature of the easement, and if there is nothing to rebut the presumption, a jury may be directed to act upon it. (Yard v. Ford, 2 Wms. Saund. n.(2); Cross v. Lewis, 2 Barn. & Cress. 686; S. C. 4 Dowl. & Ryl. 234; Livett v. Wilson, 3 Bing. 115; and see the judgment of Holroyd, J., Williams v. Moorland, 2 Barn. & Cress. 914; S. C. 4 Dowl. & Ryl. 588, and the cases there cited.) But the rule was subject to this qualification, that the possession was with the acquiescence of him who was seised of an estate of inheritanco; for a tenant for life or years has no power to grant any such right for a longer period than during the continuance of his particular estate ; (2 Wms. Saund. 174, n. (2); Daniel v. North, 11 East, 372; Barker v. Richardson, 4 Barn. & Ald. 579; Wood v. Veal, 5 Barn, & Ald. 454; S. C. 1 Dowl. & Ryl. 20;) but if the easement existed previously to the commencement of the tenancy, the fact of the premises having since been for a long period in the possession of a tenant will not defeat the presumption of a grant. (Cross v. Lewis, B. & Cr. 686.)
A grant of mines will not be presumed against an express reservation of them, although the owner had allowed the person in possession of the surface to expend money in working them. (Norway v. Rowe, 19 Ves.
156; Bowser v. Colby, 1 Hare, 139.) Pleading a non- In order to obviate the difficulty of proving an immemorial usage, it forexisting grant. merly became a practice to plead a right of way by what was termed a
non-existing grant; (Blewitt v. Tregonning, 3 Ad. & Ell. 554;) that is, a feigned grant by deed (supposed to be lost) from a former freeholder of the land, in or upon which the easement was exercisable, to a former freeholder of the tenements in respect of which it was claimed, but it was necessary that the names of the parties to, and the date of, such supposed grant should be stated; (Hendy v. Stephenson, 10 East, 55;) but profert of the deed is excused if it be averred that the deed has been lost by time and accident. (Read v. Brookman, 3 T. R. 151.) It is necessary to support the plea, if denied, by proof that, at the anterior period stated, the parties described as the former freeholders (the pretended grantor and grantee) of the casement really were such freeholders concurrently of the respective properties. (Blewitt v. Tregonning, 3 Ad. & Ell. 554.) The defendant pleaded a grant of right of way by deed, subsequently lost. The plaintiff in his replication traversed the grant. At the trial, there being conflicting testimony as to the uninterrupted user of the way, the judge directed the jury, that if, upon this issue, they thought the defendant had exercised the right of way uninterruptedly for more than twenty years by virtue of a deed, they would find for the defendant; if they thought there had been no way granted by deed they would find for the plaintiff :-it was held that this direction was right. (Livett v. Wilson, 3 Bing. 115; 10 Moore, 439. See Doe d. Fenwick v. Read, 5 B. & Ald. 232.) If the plaintiff merely traverse a non-existing grant of a way, he cannot on the trial give evidence to show that the supposed grantor was not, as alleged in the plea, seised in fee, even for the purpose of rebutting
the presumption of the grant. (Corlisham v. Cheslyn, 1 Cr. & Jery: 48; Presumption of Chitty, Pl. 597, 6th edit.) With reference to pleas of this kind, it was said by Littledale, J.,—“If the evidence establish an user as far back as memory goes, and there does not appear to have been any time at which it did not exist, that is proof of prescription; and, supposing the evidence sufficiently strong, a prescription is what the jury would find, and they have no right to find a grant, unless more be shown. Supposing the evidence in such a case to leave it doubtful whether the right existed sixty or seventy years ago, it may be protected under a plea of non-existing grant; but if the evidence of user goes far enough to prove a prescription, such evidence cannot be relied on to prove a grant.” (Blewitt v. Tregonning, 3 Ad. & Ell. 583, 584.)
“The occasion of the enactment of the Prescription Act is well known. It had been long established that the enjoyment of an easement as of right for twenty years was practically conclusive of a right from the reign of Richard I., or in other words of a right by prescription, except proof was given of an impossibility of the existence of the right from that period. A very common mode of defeating such a right was proof of unity of possession since the time of legal memory: To meet this the grant by a lost deed was invented : but in progress of time a difficulty arose in requiring a jury to find upon their oaths that a deed had been executed, which everybody knew never existed: hence the Prescription Act.” (Per Martin, B., Mounsey v. Ismay, 3 H. & C. 486; 13 W. R. 521.) See also the remarks of Cockburn, C. J., in Bryant v. Foot, L. R., 2 Q. B. 181.
There is nothing in the act 2 & 3 Will. 4, c. 71, to interfere with a claim How far Prescripof a right of way or other easement by express grant. (Bright v. Walker, tion Act has su
perseded common i Cr., M. & R. 223; ante, pp. 9, 10; Livett v. Wilson, 3 Bing. 115; Plant law. Y. James, 2 N. & M. 517; 4 Ad. & El. 749, 765; Blewitt v. Tregonning, 3 Ad. & Ell. 554.) Although that statute has facilitated the proof of profits à prendre and easements, it does not appear to have superseded the common law, so that a party may elect to proceed either under the statute or according to the common law. (See Holford v. Hankinson, 5 Q. B. 584.) In Onley v. Gardiner (4 Mees. & W. 496), where the defendant failed in proving a sufficient title under the statute, in consequence of an unity of possession, the court after argument, in which it was held that such unity defeated the title under the statute, allowed the defendant to amend his plea, by pleading a right of way immemorially. (See Richards v. Fry, 3 Nev. & P. 72; Welcome v. Upton, 5 Mees. & W. 403, 404; Parker v. Mitchell, 11 A. & E. 788; Lowe v. Carpenter, 6 Ex. 825.) So also in the case of tithes, where a party pleads a modus existing from time immemorial, he may proceed just in the same way as he might have done before 2 & 3 Will. 4, c. 100, was passed. (Earl of Stamford v. Dunbar, 13 M. & W.822.)
It is frequently advisable to plead together in the same case pleas of prescription by the statute, of prescription at common law, and of a nonexisting grant. (Bullen & Leake, Prec. Plead. 813, 3rd ed.) These pleas were pleaded together in Bailey v. Stevens, 12 C. B., N. S. 91; 10 W.R. 868.
In the case of rights to light acquired by prescription, Lord Westbury said, “ The right to what is called an ancient light now depends upon positive enactment. It is matter juris positivi, and does not require, and therefore ought not to be rested on any presumption of a grant or fiction of a licence having been obtained from the adjoining proprietor.” (Tapling v. Jones, 11 H. L. C. 290; 13 W. R. 617.)
A right of way, or a right of passage for water (where it does not create Necessity of a an interest in land) is an incorporeal right, and stands upon the same deel to pass incorfooting with other incorporeal rights, such as rights of common, rents, poreal rights and advowsons, &c. It lies not in livery, but in grant, and a freehold interest therein cannot be created or passed otherwise than by deed. (Hewlins v. Shippam, 5 B. & C. 221.) A term for years in an incorporeal hereditament, or in a thing lying in grant, cannot be created without deed. (14 Vin. Abr. tit. Grant (Ga); 2 Roll. Abr. 63, tit. Grant (G); Co. Litt. 85 a; 5 B. & C. 882.) Although the older authorities speak of incorporeal inheritances, yet