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support. It must be claimed by actual or implied grant or reservation. 2 Roll. Ab. 564, 1. 50; Partridge v. Scott, 3 M. & W. 220; and see Angus v. Dalton, infra. But it is otherwise in the case of the ownership of adjoining land in its natural state. Roll. Ab. supra, and cases cited in Humphries v. Brogden, infra. So where the surface and the subsoil are Fested in different owners, the presumption is that the owner of the surface has a right to the support of the subsoil. Humphries v. Brogden, 12 Q. B. 739, and judgment, Ibid. As to the presumption of a right of lateral support for buildings, see Angus v. Dalton, 6 Ap. Ca. 740, D. P. See further, post, tit. Action for disturbance of right of support. In all these cases the presumption may be displaced or reversed by proof of express covenants between the parties, or by implied obligations arising out of the original circumstances under which the property became divided. See Richards v. Rose, 9 Exch. 218; 23 L. J., Ex. 3.
For other cases of presumed ownership, or property, see further, the heads Action for nuisance, and trespass to land, post.
Presumption of grants, &c.] It is a rule of prescription that " antiquity of time justifies all titles and supposeth the best beginning the law can give them.' So that if evidence be given, after long enjoyment of property to the exclusion of others, of such a character as to establish that it was dealt with as of right as a distinct and separate property in a manner referable to a possible legal origin, it is presumed that the enjoyment in the manner long used was in pursuance of such an origin, which, in the absence of proof that it was modern, is deemed to have taken place beyond legal memory.” Johnson v. Barnes, L. R., 7 C. P. 592, 604, per cur.; L. R., 8 C. P. 527, Ex. Ch. Thus, independently of the statute 2 & 3 Will. 4, c. 71, for shortening the time of prescription, evidence of the adverse enjoyment of an easement (as of lights or a way) for twenty years or upwards, unexplained, is held to afford a presumption of a grant or other lawful title to enjoy it. Lewis v. Price, 2 Wms. Saund. 175 a; Campbell v. Wilson, 3 East, 294; Livett v. Wilson, 2 Bing. 115; post, -iction for disturbance of way. The uninterrupted possession of a pew for thirty-six years affords a presumption of title by faculty or otherwise. Rogers v. Brooks, cited 1 T. R. 431, n. See also Halliday v. Phillips, 23 Q. B. D. 48, C. A. So the use for over forty years of a sign board attached to an adjacent house is evidence of a grant of the easement to keep it there. Moody v. Steggles, 12 Ch. D. 261. Exclusive possession of a stream of water in any particular manner for twenty years is presumptive evidence of right in the party enjoying it derived from a grant, or, if need be, an Act of Parliament. Bealey v. Shaw, 6 East, 215. See Mason v. Hill, 5 B. & Ad. 1; Magor v. Chadwick, 11 Ad. & E. 571; Ivimey v. Stocker, L. R., 1 Ch. 396. So from twenty years' enjoyment the jury may presume a grant of the right of landing nets on another's ground to the owners of a fishery. Gray v. Bond, 2 B. & B. 667. When rights of common and estovers have been enjoyed for many years by the freehold tenants of a manor, and also by the inhabitants, the latter will be presumed to claim through the former, so as to have acquired a legal origin for the right. Warrick v. Queen's College, Oxford, L. R., 6 Ch. 716. So where a borough corporation had by prescription a several oyster fishery in an estuary, and the free inhabitants of ancient tenements in the borough from time immemorial, without interruption and claiming as of right, exercised the privilege of dredging for oysters without stint during a portion of the year, it was held that the right of the corporation must be presumed to have been granted to them subject to a trust or condition in favour of such inhabitants in accordance with the usage. Saltash, Mayor of, v. Goodman, 7 Ap. Ca. 633, D. P. See Tilbury v. Silva, 45 Ch. D. 98, C. A. In order, however, to establish the presumption of a grant of an easement, it must appear that the enjoyment was with the acquiescence of him who was seised of an estate of inheritance; for a tenant for life or years has no power to grant such right, except as against himself. Bright v. Walker, 1 C. M. & R. 219; Daniel v. North, 11 East, 372; Barker v. Richardson, 4 B. & A. 579. And in order to make the enjoyment evidence as against a reversioner, there must be evidence against him of acquiescence distinct from the mere enjoyment of the easement. But, if the easement existed previously to the commencement of the tenancy, the fact of the premises having been for a long time in the possession of a tenant will not defeat the presumption of a grant. Cross v. Lewis, 2 B. & C. 686; see post, Action for disturbance of way; Proof of public way. As to presumption of a grant of lateral support for a building, see Angus v. Dalton, 4 Q. B. D. 162, C. A.; 6 Ap. Ca. 740, D. P. So of access of air thereto, see Ba88 v. Gregory, 25 Q. B. D. 481. As to presumed grants and reservations of easements, see further, sub tit. Actions for obstruction of light and air, and for disturbance of watercourse, post,
As a jury will be at liberty to negative a grant, unless some probable evidence of one is laid before them, the title by lost grant cannot always be relied on. See Norfolk, Duke of v. Arbuthnot, 5 C. P. D. 390, 392. The stat. 2 & 3 Will. 4, c. 71, while on the one hand it confers a new title by uninterrupted enjoyments, and so dispenses with the necessity of presuming grants, on the other hand enacts (sect. 6), that in the cases therein provided for (that is, cases of easements and profits à prendre) no presumption shall be made in support of a claim on proof of enjoyment for a less period than the number of years specified in the Act.
Charters and grants from the Crown may be presumed from length of possession (as, for instance, 100 years) not merely in suits between private parties, but even against the Crown itself, if the Crown be capable of making the grant. Hull, Mayor of v. Horner, Cowp. 102; Jenkins v. Harvey, 1 C. M. & R. 877. Even where there is no person competent to make an indefeasible grant, an Act of Parliament may be presumed in favour of very long user. Lopez v. Andrew, 3 M. & Ry. 329, n. But it has been said that “no judge would venture to direct a jury that they could affirm the passing of an Act of Parliament within the last 250 years, on an important subject of general interest, of which no vestige can be found on the parliament rolls or other records, or in the history of the country :” and the court accordingly refused to presume any Act sanctioning a mode of nominating by the Crown to a deanery, which was shown to have begun in the 16th century, and to have continued, without interruption, for the last 250 years. R. v. S. Peters, Exeter, 12 Ad. & E. 512; and see a like opinion expressed in Att.-Gen. v. Ewelme Hospital, 17 Beav. 366 ; 22 L. J., Ch. 846. See also Chilton v. Corporation of London, 7. Ch. D. 735. See also cases of presumption arising from long possession mentioned arguendo, in Tenny v. Jones, 10 Bing. 78; Doe d. Millett v. Millett, 11 Q. B. 1036; Lyon v. Reed, 13 M. & W. 285. The circumstances may negative the presumption of the grant notwithstanding long user, e.g., where the enjoyment has been under a void charter. Att.-Gen. v. Horner, 14 Q. B. D. 245, C. A. Where by an Act of Will. 3, certain corporation land was set apart for a burial ground, which was afterwards consecrated, it was held that a conveyance of the land from the corporation might be presumed. Campbell v. Liverpool, Mayor of, L. R., 9 Eq. 579.
Where the origin of the possession is accounted for without the aid of a grant or conveyance, and it is consistent with the fact of there having been no conveyance, it requires stronger evidence than mere possession
to warrant a jury in saying that any conveyance has been executed. Doe d. Fenwick v. Reed, 5 B. & A. 232. And user of land is evidence of a grant thereof, only where the user would otherwise be illegal; where the user is referable to an existing easement, there is no presumption of such grant. Lee Conservancy Board v. Button, 12 Ch. D. 383, 406, 409, C. A.; 6 Ap. Ca. 685, D. P. Where there is no evidence of the right to an easement, except mere user, without any trace of the commencement of it, it is evidence of a title by prescription rather than by grant. Blewett. v. Tregonning, 3 Ad. & E. 554. A Crown grant of a profit à prendre to the inhabitants of a parish, thereby incorporating them, will not be presumed. if the presumption is inconsistent with the past and existing state of things, and there is no_trace of such a corporation having existed. Rivers, Ld. v. Adams, 3 Ex. D. 361; Saltash, Mayor of v. Goodman, 7 Ap. Ca. 633, 637. And it seems that a jury ought not to be encouraged to presume a Crown grant from mere user in favour of a party, who might, if he pleased, have produced an authentic enrolment of it, which was shown by his own witnesses to be in existence at the Tower. Brune v. Thompson, 4 Q. B. 543. Where the plaintiff claimed, on an indebitatus count, a toll by prescription, and proved constant perception of a fixed amount, which the jury found to be unreasonable; held, that the plaintiff was not entitled to recover at all, although the jury found what amount would have been reasonable. S. C. As to presumption of fees, tolls, &c., being payable from long-continued payment of them, see the following cases--Shephard v. Payne, 12 C. B., N. S. 433; 31 L. J., C. P. 297; 16 C. B., N. S. 132; 33 L. J., C. P. 158; Bryant v. Foot, L. R., 2 Q. B. 16; L. R., 3 Q. B. 497, Ex. Ch.; Lawrence v. Hitch, Id. 521, Ex. Ch.; Mills v. Mayor of Colchester, L. R., 2 C. P. 476 ; L. R., 3 C. P. 575; Gann v. Free Fishers of Whitstable, 11 H. L. C. 192; 35 L. J., C. P. 29; Free Fishers of Whitstable v. Foreman, L. R., 4 H. L. 266.
Mere possession of a lease by the lessor, with the seals cut off, affords no presumption of a surrender in writing under the Stat. of Frauds. Doe d. Courtail v. Thomas, 9 B. & C. 288.
Presumption of the duration of life and survivorship.] The presumption of the duration of life of persons of whom no account can be given, generally ends at the expiration of seven years from the time when they were last known to be living. Per Ld. Ellenborough, C. J., Doe d. George v. Jesson, 6 East, 84; Doe d. Lloyd v. Deakin, 4 B. & A. 433. By stat. 19 Car. 2, c. 11, s. 1, in action by lessor or reversioner for the recovery of lands granted or leased for lives, or for years determinable on lives, the cestuis
que vie shall be accounted to be naturally dead if they shall remain beyond the seas, or elsewhere absent themselves within the realm, by the space of seven years together, and no sufficient or evident proof be made of the lives of such persons : sect. 4 provides for the recovery of the land and mesne profits where the cestuis que vie are afterwards shown to have been living. At common law, proof by one of a family, that, many years before, a younger brother of the person last seised had gone abroad, that the reputation in the family was that he had died there, and that the witness had never heard in the family of his having been married, is presumptive evidence of his death without issue. Doe d. Banning v. Griffin, 15 East, 293. So where a person is shown to have been in existence a long time ago, as 100 years, his death unmarried and without issue will be presumed in the absence of any evidence to the contrary. Doe d. Oldham v. Wolley, 8 B. & C. 22; Greaves v. Greenwood, 2 Ex. D. 289, C. A. But in shorter periods (as fifty years), inquiry must be made in proper quarters, and from persons likely to know, whether the missing party, A., has been heard of. Doe d. France v. Andrews, 15 Q. B. 756. If those persons say that they have heard of A., the onus of proof is shifted, but the party seeking to prove A.'s death may then give evidence to show that their only information is erroneous. Edmonds v. Prudential Assur. Co., 2 Ap. Ca. 487, 511, 514, per Ld. Blackburn. Proof that a person sailed in a ship bound for the West Indies, two or three years ago, and that the ship has not since been heard of, is presumptive evidence that the person is dead; but the precise time of the death, if material, must depend upon the circumstances of the case. Tatson v. King, 1 Stark. 121. See also Doe d. Ld. Ashburnham v. Michael, 17 Q. B. 276; 20 L. J., Q. B. 480, cited post, p. 59.
The fact of the party being alive or dead at any particular period within, or at the end of, the seven years, must be proved by the party asserting that fact. Doe d. Knight v. Nepean, 5 B. & Ad. 86; 2 M. & W. 894, Ex. Ch.; In re Phené's Trusts, infra. In a case where a girl of sixteen ran away from her father, a small farmer, and was never heard of after 1814, when she left England, Shadwell, V.-C., refused to presume, in 1844, that she had died in 1821; the mere fact of her not having been heard of since 1814 afforded no inference of her death; for the circumstances of her case made it probable that she would never be heard of by her relations. Watson v. England, 14 Sim. 28; Dowley v. Winfield, Id. 277; Bowden v. Henderson, 2 Sm. & Giff. 360. In the cases of In re Beasney's Trusts, L. R., 7 Eq. 498, and In re Henderson's Trusts, cited Id. 499, it was held that where a person had not applied for the payment of an annuity which he had previously received, and on which he was dependent for his support, there was evidence of his death before the payment became due. See also Hickman v. Upsall, L. R., 20 Eq. 136; 4 Ch. D. 144.
Presumptions as to the continuance of life are not legal presumptions, but presumptions of fact only, depending on the circumstances of each case. Lapsley v. Grierson, 1 JI. L. C. 498; R. v. Lumley, L. R., 1 C. C. 196; R. v. Willshire, 6 Q. B. D. 366. Where N., born in 1829, went to America in 1853, and frequently wrote home till August, 1858, when he wrote from on board an American war-ship, but from that time nothing was heard about him except that he was entered in the books of the American navy as having deserted on the 16th June, 1860, while on leave, Giffard, L. J., refused to presume that N. was alive on the 6th Jan., 1861. In re Phené's Trusts, L. R., 5 Ch. 139; accord. In re Lewes' Trusts, L. R., 6 Ch. 356. See also In re (Valker, L. R., 7 Ch. 120.
Where a husband and wife had been carried off the deck of a vessel by the same wave, it was held that there was no inference of law as to survivorship from the different sex, age, and state of health of the husband and wife; that the question was, from beginning to end, one of fact; and the difference in strength, age, and in other respects, was merely matter of evidence for the jury. Underwood v. Wing, 23 L. J., Ch. 982; 4 D. M. & G. 633; 24 L. J., Ch. 293; affirm. in Iling v. Angrave, 8 H. L. C. 183; 30 L. J., Ch. 65; Re Green's Settlement, L. R., 1 Eq. 289.
See further, 1 Dart's Vendors and Purchasers, 6th ed., pp. 385, et sel., where all the cases on these subjects are collected.
A presumption which juries ought to make is, that males under fourteen are incapable of sexual intercourse. The period of gestation is also presumed to be about nine calendar months. The exact limits of variation of this period are not very clearly settled ; so that if there were any circumstances from which an unusually short or long period of gestation might be inferred, or if it were necessary to ascertain the period with nicety, special medical testimony would be required. The subject was elaborately discussed in the Gardiner Peerage case, which is reported separately by Le Marchant. See also Bosvile v. Att.-Gen. 12 P. D. 177. In ordinary cases juries would be directed that fruitful intercourse and parturition are separated by a period not varying more than a week either way from that above mentioned.
Presumption in favour of the regularity of acts, appointments, &c.] The legal maxim here applicable is omnia præsumuntur rite et solenniter esse acta. Where a feoffment has been proved, livery of seisin may sumed after twenty years, if possession has gone along with the feoffment; Biden v. Loveday, cited 1 Vern. 196; Rees v. Lloyd, Wightw. 123; but a less time than twenty years is not sufficient; Doe d. Wilkins v. Cleveland, Ms. of, 9 B. & C. 864; except as against one who claims under it. Doe d. Rowlandson v. Wainwright, 5 Ad. & E. 520. As to a presumption of the regularity of acts done after a lapse of time without impeachment of them, see the observations of the court in Williams v. Eyton, 2 H. & N. 771; 27 L. J., Ex. 176; S. C. on error, 4 H. & N. 357; 28 L. J., Ex. 146. A person will not be presumed to have committed an unlawful act; therefore, when performances appeared to have taken place at a theatre, a licence was presumed in an action against a performer for not acting. Rodwell v. Redge, 1 C. & P. 220. But where the Act requiring the licence directs that a notice of it shall be painted on the outside of the house, and there is no such notice, it will be presumed, in an action for the penalty, that there is no licence. Gregory v. Tuffs, 6 C. & P. 271. Generally it may be laid down that illegality is not presumed. Gleadow v. Atkin, 1 Cr. & M. 418, per Bayley, B.; Hire Purchase Furnishing Co. v. Richens, 20 Q. B. D. 389, per Bowen, L. J. See Onus Probandi, post, p. 94. So a fact may be presumed from the regular course of a public office; thus, where it was proved that the custom-house would not permit an entry to be made, unless there had been endorsement on a licence, it was held (the licence being lost) that from this entry the endorsement might be presumed. Butler v. Allnutt, 1 Stark. 222. So when a statute enjoins a public officer to make an entry of registration of a deed when brought to him with an affidavit of certain particulars, it must be presumed from such entry being made that the affidavit was left with the deed, as required by the statute; Waddington v. Roberts, L. R., 3 Q. B. 579; the deed in this case was a composition deed under the Bankruptcy Act, 1861, s. 192, and the court followed Grindell v. Brendon, 6 C. B., N. S. 698; 28 L. J., C. P. 333, where the deed was a bill of sale; Gugen v. Sampson, 4 F. & F. 974, 976, cor. Channell, B., is to the like effect. In Mason v. Wood, 1 C. P. D. 63, the court declined to follow these cases, on the ground apparently that the statute did not direct the officer not to file the bill of sale without the affidavit. In the case of the post-office, there is a presumption that a letter properly directed and posted will be delivered in due course. See British & American Telegraph Co. v. Colson, L. R., 6 Ex. 122, per Bramwell, B.; and Stocken v. Collin, 7 M. & W. 515. This presumption is, it would seem, to be extended to postal telegrams, now that the inland telegraphs form part of the Government postal system.
The most common application of this presumption is in favour of the regular appointment of an officer in the execution of his duty. Thus, the fact of a person acting in an official capacity as a surrogate, is primâ facie evidence that he is duly appointed, and has competent authority. R. v. Verelst, 3 Camp. 432. Šo of other public officers; though the appointment must be in writing; as in the case of justices of the peace, constables, &c. Berryman v. Wise, 4 T. R. 366; Doe d. Davy v. Haddon, 3 Dougl. 310 ; Marshall v. Lamb, 5 Q. B. 116. So, where a soldier is employed in