CHAPTER IV.

THE PROOF OF PRESCRIPTION AT COMMON LAW.

User the pri- PRESCRIPTIVE rights, and especially those in and over mary evidence, land, although having, as well as the land itself, the protection of law for their enjoyment by the persons entitled to them (a), seem to require, by reason of their nature, that protection more than the land itself. These rights being based on and preserved by user, user, besides its importance as an aid which may be resorted to for the interpreting of ancient deeds (b), is the primary evidence of the existence of the right, and the continued user of the right, in modern times, for a certain length of time raises a presumption in law of the previous existence of the right for an antecedent period extending as far back as the time of legal memory (c); and the longer the user the stronger the right (d). To hold otherwise, long-continued usage would impair instead of confirm the security of rights (e). In this way these rights are referred to a legal origin (ƒ).

(a) 6 Bing. 163.

(b) Hale, De Jure Maris, 33; Wild v. Hornby, 7 East, 199; Chad v. Tilsed, 2 Brod. & B. 403; Calmady v. Rowe, 6 C. B. 861; The Duke of Beaufort v. The Mayor, &c. of Swansea, 3 Ex. 413; The Mayor of Exeter v. Warren, 5 Q. B. 773; Att.-Gen. v. Jones, 2 H. & C. 347; Little v. Wingfield, 11 Ir. C. L. R. 63; Baird v. Fortune, Macq. 127, 149; Rowe v. Brenton, 3 Man. & Ry. 133.

(c) Chad v. Tilsed, 2 Brod. & B. 403; Jenkins v. Harvey, 1 C. M. & R. 877; Shephard v. Payne, 12 C. B., N. S. 414; 16 Ib. 132, on

error; Bryant v. Foot, 7 B. & S. 725, supra, p. 216; Malcomson v. O'Dea, 10 H. L. C. 593; O'Neill v. Allen, 9 Ir. C. L. R. 132; 11 Ib. 95. See also Rawstorne v. Backhouse, 3 L. R., C. P. 67; Baird v. Fortune, 4 Macq. 127,

149.

(d) See Morewood v. Wood, 14 East, 327, n.; The Mayor, &c. of Truro v. Reynalds, 8 Bing. 275; Bremner v. Hull, 12 Jur., N. S. 648; Duke of Beaufort v. Smith, 4 Ex. 456.

(e) The Mayor, &c. of Truro v. Reynalds, supra.

(f) Per Ashhurst, J., Pelham v. Pickersgill, 1 T. R. 660.

Evidence of long exclusive enjoyment of a fishery, of of a fishery, a character to establish that it has been dealt with as of right as a distinct and separate property, and nothing appearing that the fishery is of modern origin, raises the presumption that the fishery, being reasonably shown to have been dealt with as property, must have become such in due course of law, and therefore must have been created before legal memory (g).

Mines worked for a period beyond living memory, ―mines, nothing appearing when the workings commenced, are presumed to be ancient mines, and the persons working them, having always had for a like period the use of an uninterrupted flow of water, and nothing appearing that the right to such user was not coeval with such working, the presumption would be, independently of the 2 & 3 Will. 4, c. 71, s. 2, that the owner of the mines had acquired, either by prescription or grant, such right (h).

Long uninterrupted usage of a pew in a church is -pew. ground for presuming a faculty (i), creating in the person claiming the pew, or in some person from or through whom it is claimed, in exclusion of all other persons, the right to the use of such pew (k).

The length of time during which the modern user Length of the has been exercised is a material consideration in deter- user. mining the validity of a prescriptive right. A regular usage for twenty years, unexplained or uncontradicted and involving nothing to contravene public policy, is the foundation of many public and private rights (1).

(g) The Duke of Somerset v. Fogwell, 5 B. & C. 875; Mannall v. Fisher, 5 C. B., N. S. 856; Bridges v. Highton, 11 L. T. R., N. S. 653; Malcomson v. O'Dea, 10 H. L. C. 593.

(h) Ivimey v. Stocker, 12 Jur., N. S. 419.

(i) Per Buller, J., Griffith v. Matthews, 5 T. R. 296, 298.

(k) Vide ante, p. 130 et seq.

(1) The King v. Jolliffe, 2 B. & C. 54; The Free Fishers of Whitstable v. Gann, 13 C. B., N. S. 853; Blewett v. Tregonning, 3 Ad. & E. 554, 583; 11 Ir. C. L. R. 95; The Queen v. Stimpson, 4 B. & S. 301; Rolle v. Whyte, 8 Ib. 116; Garnett v. Backhouse, Ib. 490.

Reputation.

Must be

And the modern use of a prescriptive right for that period at the least is, in general, necessary to raise such presumption. A much longer modern user, however, may be essential to raise the presumption. A usage of only forty years, applied to establish an exclusive right of fishing over an arm of the sea, will not destroy the right of the subject (m); such prior usage to the same effect may be presumed if nothing be shown to the contrary (n).

Assuming evidence of reputation to be applicable to prescriptions, it is not to be admitted until a foundation has been first laid by other evidence of the right claimed (o).

The evidence of the claim must be adapted to the adapted to the nature of the prescription. Therefore evidence which tends, but is insufficient, to prove a profit à prendre, cannot be used to support a claim to an easement (p).

nature of the

claim.

Proof of allegation of a

several fishery.

Prescriptive

and customary rights cannot be supported by the same evidence.

The allegation of a several fishery in an action of trespass for the disturbance of the fishery is proved by evidence showing such a fishery either as an incorporeal, and not a territorial hereditament (q), that is, a several fishery in alieno solo (r), or vice versa, that is, a several fishery as an incident to the ownership of the soil (s).

If a prescriptive right and a customary one to the same privilege can exist in respect of the same land, each being distinctly proved by proper evidence applicable to each, the same evidence cannot be offered in support of both; for it would be inconsistent with common sense to say, that the very same facts could prove two rights of a completely different nature, and it would be neces

(m) Chad v. Tilsed, 2 Brod. & B. 403. See also The Queen v. Stimpson, 4 B. & S. 301.

(n) Chad v. Tilsed, 2 Brod. & B. 403.

(0) See Morewood v. Wood, 14 East, 327, n.

(p) Bailey v. Appleyard, 8 Ad. & E. 161.

(1) The Duke of Somerset v. Fogwell, 5 B. & C. 875.

(r) Holford v. Bailey, 8 Q. B. 1000; 13 Ib. 426.

(8) Marshall v. The Ulleswater Steam Nav. Co., 3 B. & S. 732. See also Malcomson v. O'Dea, 10 H. L. C. 593.

sary for a jury to elect among inconsistent rights which of them the evidence should appear to them to sup

port (t).

extent of

The prescriptive title proved must be as large as (u), Title to be but may be larger than, the title claimed. The latter proved, and case implies that the lesser right claimed is included in proof. the greater one proved (x).

An absolute prescription is not supported by evidence of a qualified or conditional one, but the latter may be construed as an entire one, and then both parts of it ought to be pleaded ( y).

User since the time of legal memory will not sustain a custom shown to have been non-existing anterior to such user, but is referable not to right but to usurpation (z).

The easement of stallage, without payment of anything for the use of the soil, cannot be claimed by the inhabitants or parishioners of a place by grant, for they cannot, in general, so claim in that character (a); and if the claim be rested on a grant from the owner of the market created within the time of legal memory, and no evidence of the market, or of the exemption, having been enjoyed anterior to such creation be given, the claim cannot be sustained by a presumption of the fact of user anterior to the creation of the market (b).

A prescriptive right, claimed by the owners and occupiers of a farm, to "the sole and exclusive right of pasture and feeding of sheep and lambs" on certain land as appertaining to the farm, is not proved by evi

(t) Blewett v. Tregonning, 3 Ad. & E. 544. See also Felkin v. Herbert, 11 L. T. R., N. S. 173.

(u) Wright v. Rattray, 1 East, 377; Beadsworth v. Torkington, 1 Q. B. 782; Manifold v. Pennington, 4 B. & C. 161.

(x) Fountain v. Cook, 2 Selw. N. P. 2nd ed. 1253; Bailey v. Appleyard, 8 Ad. & E. 161, 167.

L.

(y) Paddock v. Forrester, 3 Man. & G. 903.

(z) Marquis of Anglesey v. Lord Hatherton, 10 M. & W. 218; Duke of Portland v. Hill, 12 Jur., N. S. 286; 2 L. R., Eq. Ca. 765, S. C.

(a) Vide supra.

(b) Lockwood v. Wood, 6 Q. B. 67, n.

Effect of presumption of immemorial

existence from

continued modern user.

dence of the pasturing and feeding of the sheep and lambs of strangers on the land (c). On the trial Coleridge, J., considered that, although such evidence was admissible as evidence of the right, because whether lawful or not it might be very cogent to prove the existence of the right claimed, yet that it could not properly be considered as done in the exercise of the right. But on a motion for a new trial the court thought this mode of characterizing the evidence was calculated to weaken its due effect upon the jury, if it were entitled to be considered as a lawful mode of exercising the right, but held that the mode was a usurpation upon the lord's grant and unreasonable, and therefore refused the rule.

The presumption of the immemorial existence of a prescriptive right, based on continued modern user for a certain length of time, is, however, a præsumptio juris tantùm (d), or one which may be rebutted; and if rebutted either by proof of the actual origin of the claim since the time of legal memory, or by its appearing that the claim could not possibly have existed at that date (e), or if there be anything in the nature of the subjectmatter, or in the other evidence, to encounter the inference, or to suggest the necessity of other proof (ƒ), is inadmissible, and the claim, whatever may have been its duration, has no binding validity in law. Furthermore it is immaterial whether the impossibility of the origin of the claim having been beyond the time of legal memory is shown by extrinsic evidence, or is to be gathered from the nature of the alleged claim itself; as where, in the case of an alleged customary payment, the amount is so large as to make it impossible that such a payment can have been established as far back as the reign of Richard the First (g).

(c) Jones v. Richard, 6 Ad. & E. 530.

(d) Best on Evidence.

(e) Duke of Beaufort v. Smith, 4 Ex. 456; Blewett v. Tregonning, 3 Ad. & E. 554, 583; Bry

ant v. Foot, 7 B. & S. 725.

(ƒ) O'Neill v. Allen, 9 Ir. C. L. R. 132.

(g) Per Cockburn, C. J., Bryant v. Foot, supra.