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by matter of record; such as many species of royal franchise, as deodands, traitors' or felons' goods, &c. ;(h) and is restricted to such things as may be created by grant,(t) such as rights of common,(A) and other profits a prendre in the lands of others;(/) all species of easements, which are defined to be benefits or liberties without profit, which one man may have a right to in the soil of another without obtaining any interest in the *land itself,(m) such as ways,(n) r water-courses or other rights to water,(o) rights to * lights,(p) pews or vaults attached to messuages ;(q) franchises, which can be created by grant and without recorder) such as freewarren.(s) parks, waifs, estrays, wrecks, royal fish, treasure trove, markets, fairs,(<) tolls,(u) claims of exemption from toll,(x) exemption by modus decimandi from payment of tithes in kind,(y) &c. The reason for which is said to be, that every prescription supposes a grantor equivalent document once to have existed, and to have been lost by lapse of time.(z) And here it is to be observed, that, at the common law, no claim by prescription could be made against the rights of the Crown.(a)
*§ 79. Customary rights differ from prescriptive in this, r that the former are usages applicable to a district or num- *•' ber of persons, while the latter are rights claimed by one or more individuals,^) as existing either in themselves and their ancestors, or as annexed to particular property.(c) The latter is called prescribing in a que estate, or, in other words, laying the prescription in the party and those whose estate he hath.(</) And here it is necessary to observe, that, at the common law, every prescription must have been laid in the tenant of the fee-simple; all parties holding any inferior
may, however, prescribe to hold lond ■■ tenant in common with another. (Littleton, a. 310; Brooke, Abr., tit. Prcsc. 19, and Trespass, 122.)
(A) Co. Litt. 114, a.; 5 Co. 109 b; Com. Dig., tit . Franchises, A. 2.
(i) 3Cruise's Dig. 423,4lhed.; 1 Vent . 387. (i) 4Co. 37 a; Bac. Abr., tit . Common, A.
(i) 2&3 Will. 4,c. 71, s. 1.
(m) Shelford's Real Property Acts, f,; Gale & Whitley on Easements, p. 5; Termes de la Ley, tit. Easement. (n) Gale & Whatley, C, 16.
<o) Shelford, 6; Wright v. Williams, 1 M. & VV. 77. (p) Gale & Whatley, 16.
(q) Com. Dig., tit . Cemctry, B.; Mainwaring v. Giles,5 B. & A. 356, (7 Eng. Com. Law Reps.); Bryan v. Whistler, 8 B. & C. 293, (15 Eng. Com. Law Reps.)
(r) 2 Blackst. Com. 265; Bac. Abr., tit. Customs, B.; Com. Dig., tit Franchises, A. 1.
(») R. v. Talbot, Cro. C. 311; W. Jones, 320.
(() Co. Litt. 114. b.; 5 Co. 109 b; Bac. Abr., tit. Customs, B.; Com. Dig. tit. Prescription, Id., tit . Franchises, A. 1 ; 2 Inst. 220.
(u) Fitzn. Abr., tit . Toll, pi. 3; Com. Dig., tit. Toll, E.; Lord Pelham v. Pickersgill, 1 T. R. 660; Mayor of Nottingham v. Lambert, Willes, 111; Brett v. Bealcs, 10 B. & C. 508. (21 Eng. Com. Law Reps.)
(*) Mayor of London v. Lynn, 1 H. Bl. 206 ; 4 T. R. 130; 1 B. & P. 487; Com. Dig. tit . Toll, G. I ; F. N. B. 22C, I. (y) 2 Blackst. Com. 30, 31.
(») 2 Bl. C.265; But . Co. LiU. 261. a., D. Potter v. North, 1 Ventr. 387; 13 II. 7, 16 B. pi. 14.
(a) 2 Ro. Abr. 264, tit. Prescription, C ; Com. Dig. Precsc. F. I. It is difficult to see the reason of this, if it be true, as stated in most of the books, that every prescription presupposes a grant before the time of legal memory; (2 Bl. C. 265; But. Co. Litt. 261 a., n. (I.); 13 H. 7,16 B. pi. 14; Potter v. North, 1 Ventr. 367 ;) and it is well known that a grant tcttAtnthe time of legal memory may be presumed against the Crown. (8ee infra.) The rulo was altered in some respects by 9 Geo. 3, c. 16, and 32 Geo. 3, c. 58; and the Crown is bound by the recent prescription acts, 2 & 3 Will. 4, cc. 71 and 100. (See infra.)
(6) Co. Litt . 113. b.; 4 Co. 32 a; 3 Cruise's Dig. 422, 4th ed.
(e) Co. LiU. 113. b., 121. a.; 2 Bl. C. 265.
(d) Shelford's Real Property Acts, 29, 4th ed.
interest in the land could not prescribe by reason of the imbecility of their estates; but were obliged to prescribe under cover of ihe tenant in fee, by alleging his immemorial right to the subject-matter of ihe claim, and deducing their own title from him.(e) So, a copy-holder, even in fee, must have prescribed under cover of the lord of the manor.(/)
§ 80. A prescriptive or customary right, in order to be valid, must have existed undisturbed from time immemorial ;(g) by which, at the common law, was meant, as the word implies, that no evidence, verbal or written, could be adduced, of any time when the right was not in existence ;(h) and the right is pleaded by alleging it to have existed from " time whereof the memory of man runneth not to the contraT *91 1 W."® But when the stat. *West. 1, (3 Edw. l,)c. 39, L J had fixed a time of limitation in the highest real action
known to the law, it was considered unreasonable to allow a longer time in claims by prescription. Accordingly, by an equitable construction of that statute, a period of legal memory was established in contradistinction to that of living memory, by which every prescriptive right was deemed indefeasible, if existing previous to the first day of the reign of Richard I., (6 July, 1189,) and, as the converse of th.it proposition, at once at an end, if shewn to have had its commencement since that period. (A:)
§ 81. After the time of limitation had been further reduced to sixty years by 32 H. 8, c. 2, and in many cases, including the action of ejectment, to twenty years by 21 Jac. 1, c. 16, it might have been expected that, by a similar jquitable construction, the time of prescription would have been proportionably shortened. This, however, was not done, and it remained as before.(Z) But the stat. 32 H. 8, c 2, affected the subject in this way, that, whereas previously a man might have prescribed for a right, the enjoyment of which might have been suspended for an indefinite number of years, it is thereby enacted, that "no person shall make a prescription by the seisin or possession of his ancestors or predecessors, unless such seisin or possession had been within sixty years next before such prescription made."
§ 82. A prescriptive title once acquired might, as has been said, be destroyed by interruption. But this must be understood of an inter
T *92 1 rup,ion of lne rignt, not simply *ar> interruption of user.(i») L J Thus, a prescriptive right might be lost or extinguished by
an unity of possession of the right with an estate in the land as high and perdurable as that in the subject-matter of the right ;(n) as, for instance, where a party entitled in fee to a right of way or common became seized in fee of the soil to which it was attached. But the taking any lesser estate in the land only suspended the enjoyment of the subject-matter of the prescription, without extinguishing the right to it, which accordingly revived on the determination of the particular estate.^)
(<) 2 Blackst. Com. 264, 265; 6 Co. 60 a. (f) 4 Co. 31 b.
(g) 1 Bl. C. 77; Bracton, lib. 2, c. 22, fol. 51 b; Litt. s. 170. (A) Co. Litt. 115. a.
(t) Litt. s. 170; 2 Ro. Abr., tit. Prescrip. M. p. 269, pi. 16.
(i) 2 Bl. C. 31; 2 Inst. 238; Co. Litt. 114. b.; 3 Cruise's Dig. 425, 4th cd.; Chapman v. Smith, 2 Vez. sen. 506. (1) 2 BUckat. Com. 31; Gale & Whatley on Basements, 69. (m) Co Litt. 114. b.; Canham v. Fisk, 2 C. & J. 126, per Bayley, a (n) 3 Cruise's Dig. 428; Co. Litt. 114. b.; R. v. Hermitage, Carth. 241. (o) 3 Cruise's Dig. 426; 4th ed.
§ 83. The time of prescription thus remaining unaltered, it is obvious that the difficulty of establishing a prescriptive claim must have increased with each successive generation, if strict proof of the exercise of the supposed right were required up to the time of Richard I. The mischief was, however, considerably lessened by the rules of evidence established by the courts. Possession and user in modern times being prima facie evidence of property and right, the judges attached to them an artificial weight, and held, that, when uninterrupted, uncontradicted, and unexplained, they constituted proof from whence a jury ought, in all cases, to infer a prescriptive right coeval with the time of legal memory. The length of possession and user necessary for this purpose depends in some degree on circumstances, and the nature of the right claimed. On a claim of modus decimandi, where there is nothing in the amount of the sum alleged to be payable in lieu *of r #g„ -, tithe inconsistent with its having been an immemorial pay- *- J ment, the regular proof should be payment of that amount in lieu of tithe by the parish, township, or farm, so far back as living memory will reach; coupled with negative evidence, that, during that period, no tithes in kind have ever been paid in respect of that parish, township, or farm.(p) So, generally, in the case of other things to which a title may be made by prescription, proof of enjoyment as far back as living memory raises a presumption of enjoyment from the remote era.(<7) And a like presumption may be raised from an uninterrupted enjoyment for a considerable number of years. "If," suys Alderson, B., in the case of Jenkins v. Harvey,(r) "an uninterrupted usage of upwards of seventy years, unanswered by any evidence to the contrary, were not sufficient to establish a right to a toll on all coal brought into a port, there are innumerable titles which could not be sustained;" and in that case the judge at Nisi Prius having directed the jury, by telling them that he was not aware of any rule of law which precluded them from presuming the immemorial existence of the right from the modern usage, the Court of Exchequer held the direction improper, and that the correct mode of presenting the point to them was, that, from the uninterrupted modern usage, they should find the immemorial existence of the payment, unless some evidence was given to the contrary.^) *In an old case of Bury v. Pope,(/) it was agreed r -, by all the judges, that a period of thirty or forty vearswas <- * insufficient to give such a title to lights as would enable the owner of the land to maintain an action against the possessor of the adjoining soil for obstructing them. But in the modern case R. v. Jolifle,(u) which was a quo warranto calling on the defendant to shew by what authority he claimed to exercise the office of mayor of the borough of Petersfield, the defendant set up an immemorial custom for the jury of the court leet to present a fit person to be mayor of the borough: to which the Crown replied, an immemorial custom for the court leet to
(p) Shclford's Tithe Commutation Acib, 135, 3rded.; Bree v. Beck, 1 Younge, 244; Chapman v. Monson, 2 P. Wms. 565; Moore v. Bullock, Cro. Jac. 501 ; Lyncs v. Lett, 3 Y. & J. 405; Chapman v. Smith, 2 Vez. sen. 506.
(o) First Report of Keal Property Commissioners, 51; Blewctt T. Tregonn'uig, 3 A. Sl E. 554, per Littlcdale, J.; R. v. Carpenter, 2 Show. 48.
(r) 1 C, M. & R. 895. (») Id. 894.
(<) Cro. El. 118. See Cross y. Lewis, 2 B. & C. 686, (9 Eng. Com. Law Reps.)
(u) 2 B. & C. 54, (9 Eng. Com. Law Reps.)
present a fit person to be bailiff, and that at the court by which the defendant was presented to be mayor the steward nominated the persons composing the jury, and issued his precept for the bailiff to summon them, whereas by the law of the land, the steward should have issued his precept to the bailiff to summon a jury, and the particular person should have been selected by the bailiff. To this the defendant rejoined, that from time immemorial the steward used to nominate the urors, and at the trial proved that for more than twenty years such iad been the practice, which was unanswered by any evidence on the part of the Crown; whereupon Burrough, J., who tried the case, told the jury, that slight evidence, if uncontradicted, became cogent proof, and a verdict was given for the defendant . A rule was obtained for a new trial, on the ground that there was not sufficient evidence to warrant the finding of the jury; and Lord Tenterden, after argument, expressed himself as follows:—"Upon the evidence uncontradicted r #g5 -i *and unexplained, I think the learned judge did right in *- telling the jury that it was cogent evidence, upon which
they might find the issue in the affirmative. If his expression had gone beyond that, and had recommended them to find such a verdict, I should have thought that the recommendation was fit and proper. A regular usage for twenty years, not explained or contradicted, is that upon which many private and public rights are held, there being nothing in the usage to contravene the public policy." Holroyd and Best, JJ., concurring, the rule was discharged.
§ 84. Where there is general evidence of a prescriptive claim extending over a long space of time, the presumption of a right existing from time immemorial will not be defeated by proof of slight, partial, or occasional variations in the exercise or extent of the right claimed. This is clearly explained in the judgment of the Court of Queen's Bench in the case of R. v. Archdall :(!r)—That was a rule calling on the Vice-Chancellor of the University of Cambridge to shew cause why an information in the nature of a quo warranto should not be exhibited against him, to shew by what authority he granted alehouses licenses within the borough of Cambridge; when, after an elaborate argument, and time taken to consider, the following judgment was delivered by Littledale, J.:—" Turning to the affidavits, it appears to be unquestionable that the Vice-Chancellor of Cambridge has exercised this franchise from a very remote period; from a period, indeed, so remote, that the first exercise cannot be T *96 1 distinctly traced, nor the origin to which it is referrible *- J at all *certainly assigned; that he has exercised it not
merely within the borough of Cambridge, but without it, and in the county, to the extent of the known liberties of the University. The history of the alehouse licenses, as granted by justices of the peace, is well known; it takes its commencement from the stat. 5 & 6 Ed. 6, c. 25; but ihe mode of proceeding by the Vice-Chancellor never bore express reference to any authority given by that statute, nor squared with its provisions in form or substance. He has described himself, indeed, as justice of the peace, and he has acted with another head of a house described in the same way; but the latter is called
(*) 8 A. Si E. 281, (35 Eng. Com. Law Reps.)
his assistant only; the license is stated to proceed from himself, and is under his single seal and signature; it is granted during good pleasure, is subject to other conditions than those of a magistrate's license, and the recognizance has never been certified to the Quarter Sessions. It further appears that this privilege has been recognized, with more or less distinctness, in a great number of public statutes, some of them going back to a distant period; one, stat. 9 Ann. c. 23, s. 50, passed considerably more than a century since, in very clear language recognizing and confirming it. Lastly, it appears that, during the whole of this period, the University has been placed side by side, as it were, with a municipal body of considerable power, and that between the two differences have from time to time prevailed, and much jealousy been manifested as to the conflicting privileges; yet, until very modern times, no resistance entitled to serious consideration has been made by the borough to the exercise of this franchise, and no licenses have been granted by the charter justices; and it may be collected from the silence of the *affidavits for the rule, .- 1 that the same acquiescence and abstinence have been dis- L * played by the justices of the county at large. Before we pass to our conclusion, we observe that what we here find is exactly what we might have expected to find. In early times it is well known that the number of students at the University, as at our inns of court, was much greater than at present; they were also younger in age, and yet for the most part lived not within the restraint of college walls, nor under that discipline, almost of a domestic character, which now prevails in our universities, but in lodging-houses, inns, or hostelries, scattered through the town. In those times, too, the ordinary beverage, even for the educated classes, especially for the moderate means of the majority of students, was ale or beer, not wine or spirits. A control over the houses of resort in which these articles were sold— a control of the most absolute kind—was in some sort necessary for the preservation of discipline and morals.and for the prevention of those brawls and street riots, and fierce contentions with the inhabitants of the town, which the age and dispositions of the parties, and the manners of the times, would otherwise have made inevitable. Such a control, therefore, was highly expedient, if not necessary; the University, generally a favoured body, was not unlikely to procure from the Crown what might be so reasonably asked for, and, being a learned body, was likely to procure it in such form and with such sanction as would render the grant valid; and if granted, there was no officer in whom it would so reasonably be vested as in the Vice-Chancellor, the great resident governor of the whole body. We are now called upon, however, to subject this franchise to inquiry, as an usurpation *upon the Crown ; not because any of the facts ■- #gg 1 above stated are disputed, but because the University can- * not shew the precise charter or statute to which the grant of the franchise can be expressly referred ; because, at an early period, the assize of bread and ale was in the borough, not in the University; because the first licensing statute, 5 & 6 Ed. 6, c. 25, does not notice the franchise as existing in the University, nor save it; because the Vice-Chancellor appears always to have styled himself and his assistant justices of the peace; because the course of proceeding by the