TICKLE บ. BROWN. King's Bench. Surrejoinder, traversing the interruption in the enjoyment of the right of way, and issue thereon. Rejoinder to the replication to the third plea, traversing the enjoyment of the way as of right for forty years, with a special inducement that W. Coombe and the plaintiff were endeavouring, against the will of the defendant, to go over the close in a particular direction. Surrejoinder, re-asserting the enjoyment of the right of way for forty years; concluding to the country, and issue thereon. At the trial before Lord Denman, C. J., at the Summer Assizes for Devon, in 1834, a witness of the name of Joanna Baskerville, who was a daughter of a predecessor of the plaintiff, was called to prove the user of the way by her father, the then occupier of the plaintiff's estate. She was asked, on cross-examination, whether, under a parol agreement made in 1798, a payment of a penny a year had not been made by the occupier of the plaintiff's estate, to the occupier of the defendant's estate, for passing in the way claimed in the pleading to have been used as of right. It was objected for the plaintiff, first, that as that payment had reference to an agreement, it ought to have been specially pleaded, according to the provisions of section 5 of 2 & 3 Will. 4, c. 71; and, secondly, that if there had been such an agreement it would have been unavailable under the second section of that statute, not being by deed in writing. For the defendant it was contended, that the question was admissible on the last issue to negative the enjoyment for forty years; and also on the other issue, as showing that there was an interruption of that enjoyment acquiesced in by the plaintiff, or as showing the nature of the interruption of the right of way claimed. The learned judge, thinking that the objections were well founded, rejected the evidence as not admissible on either of the issues. There was also some other evidence of interruption of the right of way, but it did not clearly appear under what circumstances this interruption took place. The jury gave a verdict for the plaintiff; and a rule had since been obtained to set aside the verdict and have a new trial, on the ground that the evidence thus offered had been improperly rejected. Sir W. Follett and Crowder showed cause.-The pleadings, on the part of the plaintiff, in substance amount to this, that the plaintiff and the occupiers of the farm in question had used this way as of right. The question is, whether it is necessary to rejoin specially an agreement under the statute (a). (a) 2 & 3 Will. 4, c. 71, s. 2 & 5. By section 2 it is enacted, "that no claim which may be lawfully made at the common law by custom, prescription, or grant, to any way or other easement, to be enjoyed or derived upon, over, or from any land, &c. of any lay person, when such way, or other matter as herein last beforementioned, shall have been actually enjoyed by any person claiming right thereto without interruption for the full period of twenty years, shall be defeated or destroyed," by showing only that such way was first enjoyed at any time prior to such twenty years; " and where such way, &c. shall have been so enjoyed 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." Section 5, "In all pleadings to actions of trespass, and in all other pleadings wherein before the passing of this act it would have been necessary to allege the right to have existed from time immemorial, it shall be sufficient to allege the enjoyment thereof as of right by the occupiers of the tenement in respect whereof the same is claimed; and if the other party shall intend to rely on any proviso, exception, incapacity, disability, contract, agreement, or other matter herein before mentioned; or on any cause or matter of fact or of law not inconsistent with the simple fact of enjoyment, the same shall be specially alleged and set forth in answer to the allegation of the party claiming, and shall not be received in evidence on any general traverse or denial of such allegation." 's Bench. TICKLE บ. BROWN. --[Patteson, J.-You could not, under either of these issues, give evidence King's The Attorney-General, and W. C. Rowe, in support of the rule.-Both the special replications are put in issue by the rejoinders. The evidence tendered was admissible on the issue now framed, or not at all. The fifth section of the statute does not apply to this case, because the agreement not being in writing, but being a mere verbal licence, it could not have been rejoined. There may be some difficulty in reconciling the second and fifth sections, but they are reconcileable, if after the words " simple fact of enjoy (a) 1 C. M. & R, 614; S. C. 5 Tyr. 68. (b) 1 C. M. & R. 211; S. C. 4 Tyr. 502. TICKLE v. BROWN. King's Bench. ment" be inserted "as aforesaid," or "as of right," that is, referring the enjoyment to that which is spoken of in the second section, namely, an enjoyment by a person claiming right. Suppose a party, each time he comes upon the way, was to say that he did not claim it as of right, but that he did it with the licence, or in despite of the party occupying, would not that be evidence to show the nature of his enjoyment, that it was not of right?--[Patteson, J.-If this had been a claim of right of way for twenty years, the parol licence must have been pleaded. But you say that being forty years, and not being pleadable, because not in writing, it can be given in evidence upon the general traverse.]-In The Monmouthshire Canal Company v. Harford, applications for leave to lay the trams were admitted in evidence upon the general traverse.—[Patteson, J.-In that case there was no evidence of the existence of any agreement ;-there leave only was asked and granted. I have no doubt that was evidence upon the general traverse; here is more ;—not only is leave asked and granted, but there is a clear agreement. The plaintiff would use the way as of right under that agreement, and the fifth section enacts, that it shall be sufficient to allege the enjoyment as of right, and if the other party shall intend to rely on any agreement, the same shall specially be alleged and set forth, and shall not be received in evidence in any general traverse or denial.]—The construction to be put upon the statute is this: that where a party claims as of right, and makes out that right by an enjoyment of twenty or forty years, he may make out his case by proving the user alone for that period; and any thing which occurred before the commencement of the forty or twenty years must be pleaded; but any thing which occurred within the twenty years, or within the forty years, which has a tendency to show that it was by permission, and not as of right, that the enjoyment took place, may be given in evidence on the general traverse. It is difficult to see a distinction between a licence given for twelve months, which this agreement amounted to, and a licence given for a day. Each leave given for a time was a new agreement pro hac vice, and ought to have been specially replied. On the first issue, the plaintiff was bound to prove not only a simple enjoyment, but an enjoyment as of right, and any thing which shows that enjoyment not to have been of right, may be given in evidence on the general traverse. The case of Bright This was also evidence v. Walker is confirmatory of this view of the case. upon the second issue, as showing an interruption and acquiescence; or, at all events, as showing that the ceasing to use the way was because the party had no right.-[Patteson, J.-The words "as of right" must of necessity mean, as of right from a right, or from an agreement.]—The evidence as to the acts of former tenants was admissible against the plaintiff, for the evidence of the conduct of former occupiers was received as against the defendant. The defendant is the reversioner, and by the statute the acts of his tenants are made to bind him. The acts of the tenant of the plaintiff must in like manner bind him. Again, the payment of money was clearly evidence, and the declarations accompanying that act were also evidence. The doctrine is thus laid down in Phillips on Evidence (a): "Where it is necessary in the course of a cause to inquire into the nature of a particular act, or into the ntention of the person who did the act, proof of what the person said at the (a) Vol. I. p. 220, 6th edit. time of doing it, is admissible in evidence, for the purpose of showing its true King's Bench. character.” Cur. adv. vult. Lord DENMAN, C. J. afterwards in this term, (1st February,) (a) gave judgment. This was an action of assault. There were two pleas of justification in defence of a close, and two special replications, claiming a right of way over the close in question for forty years. At the trial which took place before me, it was proposed to show on the part of the defendant, that there had been a parol agreement between these parties relative to the use of the way claimed, and that a consideration had been paid by the plaintiff's predecessors, for the liberty of passing along this way, in the year 1798. This evidence was offered on the third issue to negative the enjoyment for forty years as of right; and it was also offered on the second issue, as of itself showing an interruption acquiesced in, or at all events, as explanatory of the character of a cessation to use the way for four years, commencing in 1800, which cessation was proved and ascribed by the defendant to interruption, but by the plaintiff to a voluntary abstaining from the user, on account of the close being in tillage. The evidence was rejected, and the plaintiff had a verdict, and the defendant obtained a rule nisi for a new trial, on the ground of that rejection. The question turns upon the second and fifth sections of 2 & 3 Will. 4, c. 71, which the Court is called upon to construe with reference both to the law and form of pleading. In so doing, we have the assistance of the cases of Bright v. Walker, and The Monmouthshire Canal Company v. Harford, in which this act of parliament came under the consideration of the Court of Exchequer. The greatest difficulty arises from the language of the concluding paragraph of the fifth section, and more particularly from the words "or any cause or matter of fact or of law not inconsistent with the simple fact of enjoyment." As all these matters are required to be specially pleaded, and forbidden to be given in evidence under a general traverse of the enjoyment as of right, it is plain that they are treated by the legislature as consistent with such an enjoyment; and as by the rules of pleading, and of logical reasoning, every allegation by way of answer, which does not deny the matter to which it is proposed as an answer, is taken to confess it, we must conclude that the legislature used the words " as of right" in such a sense, as that a party confessing the enjoyment as of right, for forty or twenty years, as the case may be, may account for and avoid the effect of it, by alleging in the one case a consent or agreement, provided it be by deed or writing, and in any other any contract, &c. written or verbal. It follows that the words "as of right" cannot be confined to an adverse right from all time, as far as evidence shows, for if they were so confined, such enjoyment, once confessed, could not be avoided by replying that it was had by contract, which is not adverse. Again, as the legal right to a way cannot pass except by deed, it is plain that the words enjoyment as of right" cannot be confined to enjoyment under a strict legal right, for there a consent or agreement in writing not under seal (of which the second section speaks,) could not account for such enjoyment. The words therefore must have a wider sense, and yet they must have the 66 (a) The case was argued in Michaelmas Term, 18th and 19th November, 1835. TICKLE v. BROWN. TICKLE บ. BROWN. King's Bench. same sense as the words "claiming right thereto" in the second section, otherwise there will be incongruities in the construction of the act. It seems, therefore, that the "enjoyment as of right" must mean an enjoyment had, not secretly or by stealth, or by tacit sufferance, or by permission asked from time to time on each occasion, or even on many occasions of using it, but an enjoyment had openly, and notoriously, without particular leave at the time, by a person claiming to use it without danger of being treated as a trespasser, as a matter of right, whether strictly legal-by prescription and adverse user, or by deed conferring the right-or, though not strictly legal, yet lawful to the extent of exercising a trespass-as by a consent or agreement in writing not under seal, in case of a plea of enjoyment for forty years, or by such writing, or by parol consent or agreement, contract or licence, in case of a plea of enjoyment for twenty years. According to this view of the act, a licence in writing must be replied to a plea of forty years enjoyment, if it cover the whole time; and the same of a verbal licence in case of a plea of enjoyment for twenty years; but it was argued, that each leave given in case of permission repeatedly asked, is pro hac vice as much a consent or agreement as a consent or agreement for twenty years, and therefore, according to this view of the act, ought to be replied; which is contrary to the decision of The Monmouthshire Canal Company v. Harford. On looking at the report of that case, 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 fifth 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, but as showing that there was not, at the time when the agreement was made, an enjoyment as of right, and that so the continuity is broken, which is inconsistent with the simple fact of enjoyment during the forty or twenty years. The evidence proposed ought therefore to have been received on the second issue; and on the third it may also have been admissible to show that the cessation to use was by reason of want of right, and not from voluntary abstinence. The rule for a new trial, therefore, must be made absolute. Rule absolute. |