No. I. & 3 W. 4, c. 71. any watercourse, or the use of any water, to be enjoyed or derived upon, over, or from any land or water of our said lord the king, his heirs or 2 successors, or being parcel of the duchy of Lancaster or of the duchy of Cornwall, or being the property of any ecclesiastical or lay person, or body corporate, when such way or other matter as herein last before or other easementioned shall have been actually enjoyed by any person claiming right ment the pethereto without interruption for the full period of twenty years, (1) riods to be shall be defeated or destroyed by shewing only that such way or other twenty years matter was first enjoyed at any time prior to such period of twenty and forty years. years, but nevertheless such claim may be defeated in any other way by which the same is now liable to be defeated; (3) and where such way or other matter as herein last before mentioned shall have been so enjoyed as aforesaid for the full period of forty years, the right thereto shall be deemed 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. III. That when the access and use of light to and for any dwelling- Claim to the house, workshop, or other building shall have been actually enjoyed use of light entherewith for the full period of twenty years without interruption, the joyed for 20 right thereto shall be deemed absolute and indefeasible, any local usage years indefeasior custom to the contrary notwithstanding, unless it shall the same was enjoyed by some consent or agreement expressly made or been by congiven for that purpose by deed or writing. (4) appear that ble, unless shewn to have sent. IV. That each of the respective periods of years herein-before men- Before-mentioned shall be deemed and taken to be the period next before some suit tioned periods or action wherein the claim or matter to which such period may relate to be deemed those next before suits for claims to which such periods relate. (1) Where in trespass quare clausum fregit it was pleaded that the occupiers of the adjoining closes had for twenty years, as of right and without interruption, used and been accustomed to use the privilege and easement of passing and repassing, &c. and laying down rail-roads across the plaintiff's rail-road, which right was traversed by the replication; it was held, that on this issue the defendants were bound to show an uninterrupted enjoyment, as of right, during the twenty years, and that the plaintiff might prove, under such issue, applications by the defendants during that period for leave to cross their rail-road, and that it was not necessary to reply such license specially under the eighth section of this act; Monmouth Canal Company v. Harford, 1 C. M. & R. 614. A plea, if under this statute, of twenty years' use is not defeated by proof of an agreed alteration of the line of the way, or by a temporary non-use under an agreement of the parties; Payne v. Shedden, 1 Moo. & Rob. 328. (3) The assignee of a lease granted for three lives by a bishop in right of his see, used for more than twenty years, without interruption, a way to and from his premises, over a close called "The Acre." The defendant, who was in possession of the Acre, under a similar lease, obstructed the way. In an action in the case for this obstruction it was held that the plaintiff's use conferred no title under the above act as against the reversioner the bishop, or his lessee, or persons claiming under such lessee during the term. Bright v. Walker, 4 Tyr. 502, and see 1 C. M. & R. 614. (4) Previous to the above clause, the acquiescence of lessees or tenants for life in the enjoyment of lights did not bind the landlord or reversioner, unless he knew of such enjoyment and acquiesced for twenty years; and a presumption against the owner of lands was not so easily inferred in the case of lights as in cases of rights of way or common, where the tenant suffered an immediate injury. Thus it was held, that an enjoyment of lights for more than twenty years during the occupation of the opposite premises by a tenant, did not preclude his landlord, who was ignorant of the fact, from disputing the right to such enjoyment, although he would have been bound by twenty years' acquiescence, after having known that the windows were opened; 11 East, 370. So, where light had been enjoyed for more than twenty years contiguous to land, which within that period had been glebe land, but was conveyed to a purchaser under the 55 G. 3. c. 147, it was decided that no action would lie against such purchaser for building, so as to obstruct the lights, inasmuch as the rector, who was tenant for life, could not grant the easement, and therefore no valid grant could be presumed; 4 B. & Ald. 579. See also 2 B. & Cr. 686. Under the above clause an absolute right to light may be acquired by an enjoyment without interruption for twenty years, as the eighth section of the act (see post,) providing for possession during particular estates, does not extend to lights. GG No. I. 2 & 3 W. 4, c. 71. In actions on the case the lege his claim from time im shall have been or shall be brought into question, and that no act or other matter shall be deemed to be an interruption, within the meaning of this statute, unless the same shall have been or shall be submitted to or acquiesced in for one year after the party interrupted shall have had or shall have notice thereof, and of the person making or authorizing the same to be made. V. That in all actions upon the case and other pleadings, wherein the party claiming may now by law allege his right generally, without claimant may averring the existence of such right from time immemorial, such general allege his right allegation shall still be deemed sufficient, and if the same shall be denied, generally, as at all and every the matters in this act mentioned and provided, which present. shall be applicable to the case, shall be admissible in evidence to sustain In pleas to tres- or rebut such allegation; and that in all pleadings to actions of trespass, pass and other and in all other pleadings wherein before the passing of this act it pleadings, would have been necessary to allege the right to have existed from time where party immemorial, it shall be sufficient to allege the enjoyment thereof as of used to alright by the occupiers of the tenement in respect whereof the same is claimed for and during such of the periods mentioned in this act as memorial, the may be applicable to the case, and without claiming in the name or period menright of the owner of the fee, as is now usually done; (1) and if the tioned in this other party shall intend to rely on any proviso, exception, incapacity, act may be al- disability, contract, agreement, or other matter herein-before menleged; and ex- tioned, or on any cause or matter of fact or of law not inconsistent with ceptions or the simple fact of enjoyment, the same shall be specially alleged and other matters to set forth in answer to the allegation of the party claiming, and shall not be replied spe- be received in evidence on any general traverse or denial of such cially. Restricting the VI. That in the several cases mentioned in and provided for by this presumption to act, no presesumption shall be allowed or made in favour or support of be allowed in any claim, upon proof of the exercise or enjoyment 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. support of claims herein provided for. Proviso for infants, &c. What time to be excluded in computing the term of forty years appointed by this act. allegation. VII. 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 herein-before mentioned, except only in cases where the right or claim is hereby declared to be absolute and indefeasible. VIII. Provided always, That when any land or water upon, over, or from which any such way or other convenient watercourse or use of water shall have been or shall be enjoyed or derived hath been or shall be held 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 sooner determination of such term be resisted by (1) Previous to this act a prescription must, in a que estute, always have been raised in the owner of the fee. A tenant for life, for years at will, or a copyholder, could not prescribe by reason of the imbecility of their estates; 4 Rep. 31, 32. For as prescription was deemed usage beyond the time of memory, it was absurd that they should pretend to prescribe for any thing whose estates commenced within the memory of man; and therefore the copyholder must have prescribed under cover of his lord's estate, and the tenant for life under cover of the tenant in fee simple; 2 Comm. c. 17. any person entitled to any reversion expectant on the determination thereof. IX. That this act shall not extend to Scotland or Ireland. Not to extend to Scotland or Ireland. No. I. 3 & 4 W. 4, c. 71. X. That this act shall commence and take effect on the first day of CommenceMichaelmas term now next ensuing. ment of act. [No. II. 3 & 4 W. IV. c. 27.-An Act for the Limitation of Actions and Suits relating to Real Property, and for simplifying the Remedies for trying the Rights thereto. [24th July 1833.] act. " Land." BE it enacted, &c., That the words and expressions herein-after men- Meaning of the tioned, which in their ordinary signification have a more confined or words in the a different meaning, shall in this act, except where the nature of the provision or the context of the act shall exclude such construction, be interpreted as follows; (that is to say,) the word "Land" shall extend to manors, messuages, and all other corporeal hereditaments whatsoever, and also to tithes (other than tithes belonging to a spiritual or eleemosynary coporation sole), and also to any share, estate, or interest in them or any of them, whether the same shall be a freehold or chattel interest, and whether freehold or copyhold, or held according to any other tenure; and the word "Rent" shall extend to all heriots, and to all services" Rent." and suits for which a distress may be made, and to all annuities and periodical sums of money charged upon or payable out of any land (except moduses or compositions belonging to a spiritual or eleemosynary corporation sole); and the person through whom another person is said Person to claim shall mean any person by, through, or under, or by the act of through whom whom, the person so claiming became entitled to the estate or interest another claims. claimed, as heir, issue in tail, tenant by the curtesy of England, tenant in dower, successor, special or general occupant, executor, administrator, legatee, husband, assignee, appointee, devisee, or otherwise, and also any person who was entitled to an estate or interest to which the person so claiming, or some person through whom he claims, became entitled as lord by escheat; and the word "person" shall extend to a body politic, corporate, or collegiate, and to a class of creditors or other persons, as well as an individual; and every word importing the singular number Number and only shall extend and be applied to several persons or things as well as gender. one person or thing; and every word importing the masculine gender only shall extend and be applied to a female as well as a male. "Person." II. That after the thirty-first day of December one thousand eight No land or rent hundred and thirty-three no person shall make an entry or distress or to be recovered bring an action to recover any land or rent but within twenty years next but within 20 after the time at which the right to make such entry or distress or to years after the bring such action shall have first accrued to some person through whom right of action he claims; or if such right shall not have accrued to any person through claimant or whom he claims, then within twenty years next after the time at which the right to make such entry or distress or to bring such action shall whose estate he have first accrued to the person making or bringing the same. accrued to the some person claims. III. That in the construction of this act the right to make an entry or When the right distress or bring an action to recover any land or rent shall be deemed shall be deemed to have first accrued at such time as herein-after is mentioned; (that is to have acto say,) when the person claiming such land or rent, or some person crued in the through whom he claims, shall, in respect of the estate or interest claimed case of an estate have been in possession or in receipt of the profits of such land, or in in possession; receipt of such rent, and shall while entitled thereto have been dispos No. II. 3 & 4 W. 4, sion; c. 27. on abatement sessed, or have discontinued such possession or receipt (1), then such right shall be deemed to have first accrued at the time of such disposition or discontinuance of possession, or at the last time at which any such profits or rent were or was so received; and when the person on disposses- claiming such land or rent shall claim the estate or interest of some deceased person who shall have continued in such possession or receipt in respect of the same estate or interest until the time of his death, and shall have been the last person entitled to such estate or interest who shall have been in such possession or receipt, then such right shall be deemed to have first accrued at the time of such death; and when the person claiming such land or rent shall claim in respect of an estate or interest in possession granted, appointed, or otherwise assured by any instrument (other than a will) to him, or some person through whom he claims, by a person being in respect of the same estate or interest in the possession or receipt of the profits of the land, or in the receipt of the rent, and no person entitled under such instrument shall have been in such possession or receipt, then such right shall be deemed to have first acin case of future crued at the time at which the person claiming as aforesaid, or the perestates; son through whom he claims, became entitled to such possession or receipt by virrue of such instrument; and when the estate or interest claimed shall have been an estate or interest in reversion or remainder, or other future estate or interest, and no person shall have obtained the possession or receipt of the profits of such land or the receipt of such rent in respect of such estate or interest, then such right shall be deemed to have first accrued at the time at which such estate or interest became an estate or interest in possession; and when the person claiming such land or rent, or the person through whom he claims, shall have become entitled by reason of any forfeiture or breach of condition, then such right shall be deemed to have first accrued when such forfeiture was incurred or such condition was broken. in case of for feiture is not he shall have a IV. Provided always, that when any right to make an entry or distress or to bring an action to recover any land or rent by reason of any forfeiture or breach of condition shall have first accrued in respect of any estate or interest in reversion or remainder, and the land or rent shall mainderman, not have been recovered by virtue of such right, the right to make an new right when entry or distress or bring an action to recover such land or rent shall be his estate comes deemed to have first accrued in respect of such estate or interest at the into possession time when the same shall have become an estate or interest in possession, as if no such forfeiture or breach of condition had happened (2). Reversioner to V. Provided also, That a right to make an entry or distress or bring an action to recover any land or rent shall be deemed to have first accrued, in respect of an estate or interest in reversion, at the time at which the same shall have become an estate or interest in possession by the determination of any estate or estates in respect of which such land shall have been held, or the profits thereof or such rent shall have been received, notwithstanding the person claiming such land, or some per have a new right. (1) An important alteration is introduced into the law relating to landlords and tenants by this clause. Under the 21st Jac. c. 16, the mere nonpayment of rent by a lessee was not considered as raising an adverse possession in him, which would cause that statute to operate, although the nonpayment had extended over a period of upwards of twenty years; 2 Bos. & P. 542. Now, however, in consequence of the above section, declaring that a party's right of entry shall be deemed to have accrued at the last time at which rent was received, it follows that twenty years' possession by a tenant without payment of rent, or any acknowledgment in writing of the landlord's title (see post, s. 16), will be a complete bar to the latter. (2) A remainder man or reversioner is not bound to take advantage of a forfeiture, but may waive it, and wait until the determination of the particular estate, before he proceeds to make an entry, or bring his action; 1 Ves. sen. 278. The object of the section, therefore, is to prevent him being judiced by such waiver. son through whom he claims, shall, at any time previously to the creation of the estate or estates which shall have determined, have been in possession or receipt of the profits of such land, or in receipt of such rent. No. II. 3 & 4 W. 4, c. 27. VI. That for the purposes of this act an administrator claiming the An administraestate or interest of the deceased person of whose chattels he shall be tor to claim as appointed administrator shall be deemed to claim as if there had been if he obtained no interval of time between the death of such deceased person and the the estate withgrant of the letters of administration (1). out interval after death of deceased. VII. That when any person shall be in possession or in receipt of the In the case of profits of any land, or in receipt of any rent, as tenant at will, the right a tenant at will, of the person entitled subject thereto, or of the person through whom the right shall he claims, to make an entry or distress or bring an action to recover be deemed to such land or rent shall be deemed to have first accrued either at the de.. have accrued at termination of such tenancy, or at the expiration of one year next after the end of one the commencement of such tenancy, at which time such tenancy shall year. be deemed to have determined: Provided always, that no mortgagor or cestui que trust shall be deemed to be a tenant at will, within the meaning of this clause, to his mortgagee or trustee. VIII. That when any person shall be in possession or in receipt of the No person after profits of any land, or in receipt of any rent, as tenant from year to year a tenancy from or other period, without any lease in writing, the right of the person en- year to year, to titled subject thereto, or of the person through whom he claims, to make have any right an entry or distress or to bring an action to recover such land or rent but from the shall be deemed to have first accrued at the determination of the first of end of the first such years or other periods, or at the last time when any rent payable year or last in respect of such tenancy shall have been received (which shall last payment of happen.) rent. writing, shall have been wrongfully received, no right IX. That when any person shall be in possession or in receipt of the Where rent profits of any land, or in receipt of any rent, by virtue of a lease in writ- amounting to ing, by which a rent amounting to the yearly sum of twenty-shillings or 20s. reserved upwards shall be reserved, and the rent reserved by such lease shall by a lease in have been received by some person wrongfully claiming to be entitled to such land or rent in reversion immediately expectant on the determination of such lease, and no payment in respect of the rent reserved by such lease shall afterwards have been made to the person rightfully en- to accrue on titled thereto, the right of the person entitled to such land or rent, sub- the determinaject to such lease, or of the person through whom he claims, to make an tion of the entry or distress or to bring an action after the determination of such lease. lease shall be deemed to have first accrued at the time at which the rent reserved by such lease was first so received by the person wrongfully claiming as aforesaid; and no such right shall be deemed to have first accrued upon the determination of such lease to the person rightfully entitled (2). X. That no person shall be deemed to have been in possession of any land within the meaning of this act merely by reason of having made an entry thereon (3). A mere entry not to be deemed possession. (1) The intention of this section is, to get rid of a practical inconvenience which resulted from the former state of the land under which it was decided that as the property of the intestate only vested in his administrator from the grant of administration, (See Woolley v. Clark, 5 B. & A. 744,) the 21 Jac. c. 16, as to rights accruing after the death of the deceased only began to run from the time of obtaining such grant. Consequently a right to a term of years might have been kept alive for an indefinite period, notwithstanding adverse possession by delay or neglect to administer on the part of the next of kin. (2) Previous to this act, a right of entry was preserved to the owner of a subsisting lease, although no rent had been received by him; Orwell v. Maddox, Runn. Ejectm. No. 1; neither did the adverse receipt of rent by another person for upwards of twenty years deprive the party of his right of entry at the expiration of the lease; Doe v. Danvers, 7 East, 299, and see 2 Sch. & Lef. 625; 3 B. & C. 298. (3) By the 4th & 5th Anne, c. 16, s. 14, no entry upon lands should be of force to satisfy the 21st Jac. 1, c. 16, unless an action was thereupon commenced within one year after, and prose |