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. Thackrah or Thackeray, 2 M. & Rob. 244; 9 Carr. & P. 47; ante, p. 8.) 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. (Ib.) 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. (Ib.)

The plea under this act was of a right of way for the occupiers of a close 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.)

It is sufficient primâ facie proof of a prescription for a general 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 held that the evidence was enough to go to the jury, as raising a presumption 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.)

The latter part of the 5th section, in express terms, applies only to rights which can be claimed by the occupiers of a tenement in respect of it, which, it has been contended, is confined to a claim appendant or appurtenant, 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 S. C. 5 Mees. & W. 404.)

With reference to the question whether this act applies to an easement in gross, Willes, J., said, "There is no doubt an easement in gross could not be claimed by an occupier under the prescription act, because under that act the claim is by custom, prescription or grant; and there is no doubt that a right could not be acquired under that act by twenty, thirty, or sixty years' enjoyment, according as it might be, whether an easement or a profit à prendre, except it was capable of being annexed to the land. But the question has arisen, whether it is not possible to plead a right in gross in the manner pointed out by the subsequent section, not a section giving the right, but a section giving the mode of pleading. It is perfectly clear to my mind, that it cannot be so pleaded without showing something more than that the person in possession is occupier; it must be

shown that he is heir or assignee of the person to whom the right in gross has been granted. The mere fact of his being in possession does not show that." (Bailey v. Stephens, 12 C. B., N. S. 113.)

2 & 3 Will. 4,

c. 71, s. 5.

In cases of prescription, the allegation must be proved as laid. Thus, in Proof of prescripreplevin, if the defendant avow taking the cattle as damage feasant, and the tion. plaintiff plead in bar a right of common, and aver that the cattle were levant and couchant, on which averment issue is joined, proof only for part 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. Andrews, 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. & Ěll. 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. Towler, 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. Salway, 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, 249, 602, 2nd ed.)

VI. LESS PERIOD NOT TO BE ALLOWED.

6. In the several cases mentioned in and provided for by Restricting the this act, no presumption shall be allowed or made in favour or allowed in sup presumption to be support of any claim, upon proof of the exercise or enjoyment port of claims of the right or matter claimed for any less period of time or for.

herein provided

c. 71, s. 6.

2 & 3 Will. 4, 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 (n).

(n) 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. 11, 12.)

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.)

:

Parke, B., observed, There is some difficulty in reconciling the two decisions of Carr v. Foster, and Parker v. Mitchell, ante, p. 13, although that may perhaps be effected by observing a distinction between enjoyment at the commencement and termination of the periods, and during the intermediate time. If, on the other hand, the two decisions are to be considered as irreconcilable, I think the more correct view is this, that no right can be obtained, unless an user be proved of the easement at least once a year during the prescribed period."' (Lowe v. Carpenter, 6 Exch. 831.)

Proviso for persons under disabilities.

VII. DISABILITIES.

7. 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 (0).

(0) 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 absolute title, even against parties under disabilities. (See Wright v. Williams, 1 Tyr. & Gr. 392; 1 Mees. & W. 77.) This section, it is to be observed, 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. 11, 12.) By the 1st section, where the right, profit or benefit shall have 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.

Where to trespass quare clausum fregit the defendant pleaded thirty years' enjoyment of a right on the land in which, &c., under this statute, the plaintiff, if he relies on the fact, that during part of those thirty years the land had been held by a tenant for life, or any other matter of fact not inconsistent with the simple fact of enjoyment, should reply it specially, and not traverse the enjoyment as pleaded. (Pye v. Mumford, 5 Dowl. & L. 414; 17 Law J., Q. B. 138; 12 Jur. 578.)

In case for the diversion of water the plaintiff alleged in his declaration a reversionary interest in three closes of land, to wit, three ponds filled with water, one pond being upon each of the said closes, and a right to the flow of the water into the said closes, for supplying the said ponds in the said closes with water for the watering of cattle. The defendant traversed the right to the flow of the water as alleged. It appeared in evidence at the trial, that the plaintiff had enjoyed an immemorial right to the flow of this water into an ancient pond in one of his closes, but that above thirty years ago he made a new pond in each of the three closes, and turned the water so as to supply them, and thenceforth disused the old pond, which was gradually filled with rubbish and overgrown with grass. The plaintiff's right in respect of the three ponds having been defeated by proof of an outstanding life estate, under the 7th section, it was held, that he was entitled, under this declaration, to recover in respect of his right to the flow of water to the old pond. (Hale v. Oldroyd, 14 Mees. & W. 789.)

2 & 3 Will. 4,

c. 71, s. 7.

VIII. TIME EXCLUDED FROM FORTY YEARS.

such any

way or

excluded in computing the term

act.

8. Provided always, and be it further enacted, That when What time to be any land or water upon, over, or from which other convenient (n) watercourse or use of water shall have been of forty years or shall be enjoyed or derived, hath been or shall be held under appointed by this 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 sooner determination of such term be resisted by any person entitled to any reversion expectant on the determination thereof (o).

(n) The words of the 2nd section extend to all easements; but the word "easement" is omitted in the 8th section. There seems reason for thinking that the word convenient has crept into the 8th section instead of the word "easement," for, with that exception, the expressions in the two sections are the same. It does not appear why it should be supposed that the legislature would have neglected to protect the interests of reversioners in the case of other easements than ways and watercourses. (See Wright v. Williams, 1 Tyr. & G. 390; 1 Mees. & W. 77.)

(0) According to the 7th section a tenancy for life is included in the period of forty years; the 8th section only takes it out on condition that the

Omission of easement in 8th

section.

2 & 3 Will. 4, c. 71, s. 8.

Replication of life estate.

Licence.

reversioner shall bring his action within three years after its determination; a user of forty years confers a primâ facie title, which is good, unless the reversioner pursues his remedy within the three years. (Wright v. Williams, 1 Tyr. & G. 393; 1 Mees. & W. 77.) The effect of the 8th section is not to unite discontinuous periods of enjoyment, but to extend the period of continuous enjoyment, which is necessary to give a right, by so long a time as the land is out on lease, subject to the condition therein mentioned. (Onley v. Gardiner, 4 Mees. & W. 500.)

Under the 7th and 8th sections of this act, the time during which the servient tenement has been under lease for a term exceeding three years, is to be excluded from the computation of forty years' enjoyment, but not from the computation of an enjoyment for twenty years. (Palk v. Shinner, 18 Q. B. 568.) The 8th section applies expressly to the computation of an enjoyment for forty years; and it would be contrary to all rules of construction to hold, that it applies also to the computation of an enjoyment for twenty years. (Per Erle, J., Ib. 575.)

Where a replication to a plea of enjoyment of an easement for forty years, under this act, sets up a life estate in order to bring the case within the 8th section of the act, it must show that the plaintiff is the party entitled to the reversion expectant upon such life estate. In an action on the case for an injury alleged to be done to the interest of the plaintiff's reversion in certain closes of land by turning water into a channel running through the plaintiff's lands, after such water had been used by the defendant on his own land, in precipitating minerals, and become so impregnated as to be extremely injurious to the plaintiff's estate; the defendant pleaded an user for forty years" before the commencement of the suit." The replication set forth, that Rice Thomas was seised in his demesne as of fee of the several closes over which the watercourse passed, and that by certain indentures of lease and release therein stated, his interest was conveyed to trustees for the uses therein mentioned, and one of which was to the use of Rice Thomas for life, with a power to Rice Thomas, whilst so seised of the freehold for his life, to grant leases upon certain conditions therein named, by indenture; that Rice Thomas, by virtue of this settlement, did become seised of the freehold for his life; and that whilst he was so seised, by virtue of the power therein contained, he did, by indenture duly made between himself of the one part, and Edward Hughes and Thomas Williams of the other part, enfeoff the said Hughes and Williams of the said closes for and during the term of the lives of William Lewis Hughes, now Lord Dinorben, Owen Williams and John Davies, and the longest liver of them; and the replication concluded by stating, that Lord Dinorben, one of the lives, was still in being. It was said by the court, "the enjoyment of the right during forty years alleged in the pleas, being admitted, the repli ations, which state only an existing tenancy for life, are no answer; for the time of a tenancy for life in a person who might otherwise be capable of resisting the claim, though excluded by the 7th section from the computation of the shorter period of twenty years absolutely, is, by the 8th section, excluded from the computation of the longer period of the forty years conditionally only; that is, provided the reversioner expectant on the determination of the term for life shall, within three years (that is, probably before the end of three years) after such determination, resist the right; and it does not appear that the plaintiff is entitled to the reversion expectant on that lease, though it is averred that he has a reversion expectant on the determination of the interest of the tenant in possession. The tenancy for the life of Lord Dinorben, the cestui que vie, is therefore not to be excluded, on these pleadings, from the period of forty years; and such period being complete, the defendant is entitled to an indefeasible right to the easement claimed. (Wright v. Williams, 1 Mees. & W. 100.)

Upon an issue with regard to twenty years' enjoyment of a railroad without interruption, for the convenient use and occupation of their closes, the defendants insisting upon such a right are bound to show an uninterrupted enjoyment as of right during that period, and the plaintiff may prove under such issue applications by the defendants during the twenty years for leave to cross their railroad, and it is not necessary for them to