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Vice-Chancellor has not always been uniform; and, generally and principally, because ingenious objections--objections at this day difficult to answer-may be raised against the evidence in support of any legal origin, whether prescriptive, by lost charter, or lost statute, which may be theoretically assigned for the franchise. By stating these objections thus generally, we do not intend to take from their legitimate force; still less do we intend to be influenced in our decision upon them by the consideration that they are urged against a great and venerable body like the University. But equally in this, as in the case of any individual lord of a manor, we would ask any law. yer, whether he has ever known a franchise of equal antiquity in its exercise, though most undoubted in right, against which ingenious minds might not raise similar objections. It follows almost necessarily from the imperfection and irregularity of human nature, that a uniform course is not preserved during a long period ; a little advance is made at one time, a retreat at another; something is added or taken away from indiscretion or ignorance, or through other causes ; and
007 when, by the lapse of years, the evidence is lost *which
* would explain these irregularities, they are easily made the foundation of cavils against the legality of the whole practice. So, also, with regard to tiile; if that which has existed from time immemorial be scrutinised with the same severity which may properly be employed in canvassing a modern grant, without making allowance for changes and accidents of time, no ancient title will be found free from objection ; that, indeed, will become a source of weakness which ought to give security and strength. It has, therefore, always been the well-established principle of our law to presume every thing in favour of long possession ; and it is every day's practice to rest upon this foundation the title to the most valuable properties. We should be departing from this principle and practice if we were now to institute the inquiry prayed for, and call on the Vice-Chancellor to justify the exercise of this ancient franchise. It is possible that it may rest on no legal foundation, and that, upon a full examination, it may turn out to be incapable of being supported. The only question for us is, whether, under the circumstances, sufficient doubt has been raised in our minds as to the lawfulness of its present title, to make it proper for us to direct the information to be filed. That has not been done, and this rule will, therefore, be discharged.”
$ 85. There are several other cases in illustration of this principle. Thus, although, in the case of a farm or district modus, the occupiers are bound, in order to establish the prescription, to shew, with reasonable precision, the description and boundaries of the lands said to be covered, and to shew the identity of the lands for which the respective sums in lieu of tithes have been paid; still it has frequently been
no held in courts of equity that *trifling and immaterial varia[ *1001
Jtion in the evidence as to the boundaries of farms forining part of a district of considerable extent, when the greater part of such boundaries are tolerably certain, is not sufficient to destroy the modus payable in lieu of the tithes of land proved to be within such boundaries.(y) So, again, in the case of Bailey v. Appleyard, it is laid
(y) Shelford's Tithe Com. Acts, 199; Bailey v. Sowell, 1 Russ. 239; Rudd v. Wright, 1 down by Coleridge, J.,(z) that a plea of prescription will be supported by proof of a prescriptive right larger than that claimed, but of such a nature as to include it; and in Welcome v. Upton, (a) Alderson, B., asks, “ Would the claim of a party to a right of way be defeated by shewing that some person had narrowed it by a few inches ?" On the other hand, however, a general prescription is not supported by proof of a prescriptive right coupled with a condition.(6)
$ 86. Alihough the usage is not sufficiently long or uniform to raise the presumption of a prescriptive right, still it is entitled to its legitimate weight as evidence, from which, coupled with other circumstances, the jury may find the existence of the right.
§ 87. The presumption of prescriptive rights, derived from enjoyment, however ancient, is instantly put an end to, where the right is shewn to have originated within the period of legal memory ;(c) and it is of course liable to be rebutted by any species of legitimate evid. ence, direct or presumptive.(d) The existence of an ancient grant, *without date, is not, however, necessarily inconsistent
el *101 ] with a prescriptive claim; for the grant may either have been made before the time of legal memory, or in confirmation of a prior right.(e) So, in the case of Scales v. Key,(s) where, on a question of false return to a mandamus, the issue turned on the existence of an immemorial custom within the city of London, the jury hảving found that the custom existed to 1669, (the case was tried in 1834,) the judge at Nisi Prius refused to ask them whether the custom existed after that year, and directed a verdict to be entered for the defendant; and this ruling was confirmed by the court in banc. So, in the case of Biddulph v. Ather,(g) where, in support of a prescriptive right to wreck, evidence was adduced of uninterrupted usage for ninety-two years, it was held not to be conclusively negatived by two allowances in eyre 400 years previous, and a subsequent judgment in trespass ; and the judge having left the whole case to the jury, who found in favour of the claim, the court refused to disturb the verdict. So, a prescriptive claim to a right of way for the defendant and his servants, tenants and occupiers of a certain close, is not necessarily disproved by shewing that the land had, fifty years before, been part of a large common, which was inclosed under the provisions of an inclosure act, and allotted to the defendant's ancestor. The jury having found for the plaintiff, Parke, J., says, “ There is no rule of law which militates against the finding. From the usage, the jury might infer that the lord, if the fee were in him before the inclosure, had *ther,
hoe [ *102 ] right of way.”(h) So, in the case of a modus decimandi, Younge, 147; Rudd v. Champion, Id. 173; Bree v. Beck, Id. 232. See Ward v. Pomfret, 6 Jurist, 568.
(2) 8 A. & E. 167, (35 Eng. Com. Law Reps.) See the Bailiffs of Tewkesbury v. Bricknell, 1 Taunt. 142.
(a) 6 M. & W.540. (b) Paddock v. Forrester, 3 Scott, N. R., 715; 3 M. & Gr. 903, (42 Eng. Com. L. Reps.) and the cases there cited.
(c) 2 Blackst. Com. 31; Fisher v. L. Greaves, 3 E. & Y., Tithe C., 1180.
) 11 A. & E. 819, (39 Eng. Com. Law Reps.) See, also, Welcome v. Upton, 6 M. & W. 536.
(g) 2 Wils. 23." (h) Codling v. Johnson, 9 B. & C. 933, (17 Eng. Com. Law Reps.) See further on this subject, Hill v. Smith, 10 East, 476; Schoobridge v. Ward, 3 M. & Gr. 896, (42 Eng. Com. Law Reps.)
it is laid down by Sir J. Leach, V. C., that ancient documents cannot prevail against all proof of usage, unless they are consistent with each other, and unless the effect of them excludes not the probability, but the possibility of the modus.()
$ 88. Notwithstanding the desire of the courts to uphold the prescriptive rights, there were many cases in which the extreme length of the time of legal memory exercised a very mischievous effect; as the presumption from user, however strong, was liable to be altogether defeated by shewing the origin of the claim at any time since the 1 Rich. 1, A. D. 1189. Besides, possession and user are in themselves legitimate evidence of the existence of rights created since that period, the formal proof of which may have subsequently perished by time or accident. « Tempus," says Lord Coke, “est edax rerum ;' and records and letters-patent, and other writings, either consume or are lost, or embezzled, and if ancient grants and acts had been drawn in question in the life time of the parties to them, they might have shewn the truth of the matter; but after the death of all the parties, and after many succession of ages, if any objection or exception should prevail, the ancient and long possession of the owners should hurt them.”(k) Acting partly on this principle, but chiefly for the furtherance of justice and the sake of peace, by quieting possession,(1) the judges attach102 , ed an artificial weight *to the possession and user of such
d matters as lie in grant, where no prescriptive claim was put forward, and in process of time established it as a rule, that twenty years' adverse and uninterrupted enjoyment of an incorporeal hereditament, uncontradicted and unexplained, was cogent evidence from which the jury should be directed conclusively to presume a grant or other lawful origin of the possession.(m) This period of twenty years
(i) White v. Lisle, 4 Madd. 224.
(k) Bedle v. Beard, 12 Co. 5. (1) Bright v. Walker, 1 C., M. & R. 217; Eldridge v. Knott, Cowp. 215.
(m) 3 Stark. Ev. 911, 3rd ed.; Greenl. L. E. 20, art. 17; 2 Wms. Saund. 175 a ; Bealy v. Shaw, 6 East, 208; Balston v. Bensted, 1 Camp. 463; Wright v. Howard, 1 S. & Stu. 203; Campbell v. Wilson, 3 East, 294; Lord Guernsey v. Rodbridges, 1 Gilb. Eq. R. 4; Bright v. Walker, 1 C., M. & R. 217, &c. Much confusion has arisen from the loose lan. guage to be found in some of the books and cases on this subject. In the case of Holcroft V. Hecl, (1 B. & P. 400,) where the grantee of a market, under letters-patent from the crown, suffered another person to erect a market in his neighbourhood, and to use it for the space of tweny.three years without interruption, the Court of Common Pleas held, that the undisturbed possession of the market by the defendant for twenty-three years was a clear bar to the plaintiff's right of action. This case has, however, been strongly observed upon, 2 Wms. Saund. 175 a, et seq. In the case of Darwin v. Uplon, (Id. 175 c.) Lord Mansfield says " The enjoyment of lights with the defendant's acquiescence for twenty years is such decisive presumption of a right by grant or otherwise, that, unless contradicted or explained, the jury ought to believe it. But it is impossible that length of time can be said to be an absolute bar, like a statute of limitations; it is certainly a presumptive bar, which ought to go to the jury." And Buller, J., there says, “ If the judge in this case meant that twenty years' uninterrupted possession of windows was an absolute bar, he was certainly wrong; if only a presumptive bar, he was right." See, also, the observations of Lord Mansfield in The Mayor of Hull v. Horner, (Cowp. 103.) Again, in many modern works, the presumption of right from twenty years' enjoyment of incorporeal hereditaments is spoken of as a " conclusive presumption;" (Greenl. L. E. 20, art. 17; per Lord Ellenborough in Balston v. Bensted, 1 Camp. 465; and Bealey v. Shaw, 6 East, 215;) an expression almost as inac. curate as calling the evidence a bar. If the presumption be conclusive" it is a præsumptio juris et de jure, and not to be rebutted by evidence; whereas, the clear meaning of the cases is, that the jury ought to make the presumption, and act definitively upon it, unless it is encountered by adverse proof. “The presumption of right in such cases," says Mr. Starkie, “ is not conclusive; in other words, it is not an inference of mere law, to be made by the courts, yet it is an inference which the courts advise juries to make wherever the
*seems to have been adopted by analogy to the Statute of Limitations, 21 Jac. 1, c. 16, s. 1, which makes an adverse enjoyment for twenty years a bar to an action of ejectment; for, as an adverse possession of that duration gave a possessory title to the land itself, it seemed reasonable that it should afford a presumption of right to a minor interest arising out of the land."(n) The practical effect of this præsumptio quasi juris was considerably increased by the decision in Read y. Brookman,(o) namely, that it is competent to plead a right to an incorporeal hereditament by deed, and excuse profert of the deed by alleging it to have been lost by time and accident. It became, therefore, a usual mode of claiming title to an incorporeal hereditament, to allege a feigned grant within the time of legal me. mory, from some owner of the land, or other person capable of making one, to some tenant or person capable of *receiving it ;(p) #1 setting forth the names of the supposed parties to the document,(9) with the excuse for profert, that the document had been lost by time or accident. On a traverse of the grant, the uninterrupted usage of twenty years would be held cogent evidence of its exist. ence. This was termed making tiile by “non-existing grant."
$ 89. In order, however, to raise this presumption against the owner of the inheritance, the possession must be with his acquiescence; such a possession with the acquiescence of a tenant for life, or other inferior interest in the land, although evidence against the owner of the particular estate, will not bind the fee.(r) And the acquiescence of the owner of the inheritance may either be proved directly, or inferred from circumstances.(s) Where, however, the time has begun to run against the tenant of the fee, the interposition of a particular estate does not stop it.(t)
$ 90. This presumption only obtains its practically conclusive cha. racter when the evidence of enjoyment during the required period remains uncontradicted and unexplained. In the case of Livett v. Wilson,(u) where, in answer to an action of trespass, the defendant
presumption stands unrebutted by contrary evidence." (3 Stark. Ev. 911, 3rd ed.) It only remains to add, that the doctrine in question has only been fully established in modern times, and was pot introduced without considerable opposition. “I will not contend," says Sir D. Evans, " after the decisions which have taken place, that it may not be more conveni. ent to the public that the doctrine which has been extensively acted upon in the enjoyment of real estates should be adhered to, than departed from, though of very modern origin. But I shall ever maintain the sentiment, that the introduction of such a doctrine was a perver. sion of legal principles, and an unwarrantable assumption of authority.” (2 Ev. Poth. 139.)
(n) 3 Stark. Ev. 911, 3rd ed.; 2 Wms. Saund. 175 a, and the cases there cited. Although the doctrine of adverse possession in the case of land has been taken away, except in a few instances, by 3 & 4 Will. 4, c. 27, (see Shelford's Real Property Acts, p. 117, 4th ed.,) the presumption of title by lost grant has not been affected. (See infra.)
(0) 3 T. R. 151.
Hendy v. Stevenson, 10 East, 55.
(8) Gray v. Bond, 2 B. & B. 667, (6 Eng. Com. Law Reps.)
(0) Cross v. Lewis, 2 B. & C. 686, (9 Eng. Com. Law Reps.) So, in the case of the Statute of Limitations, it is a rule, that, once the statute begins to run, nothing stops it. See Rhodes v Smethurst, 4 M. & W. 42.
(u) 3 Bingh. 115, (11 Eng. Com. Law Reps.); sce, also, Doe d. Fenwick v. Reed, 5 B. & A. 232, (7 Eng. Com, Law Reps.), and Dawson y. The Duke of Norfolk, 1 Price, 246.
, *pleaded the right of way by lost grant; at the trial, before
J Gaselee, J., it appeared that there was conflicting eviddence as to the undisputed use of the way, and the alleged right had been pretty constantly contested; whereupon the judge told the jury that if they thought the defendant had exercised the right of way uninterruptedly for more than twenty years, by virtue of a deed, and that that deed had been lost, they should find a verdict for the defendant ; and this ruling was fully confirmed by the court in banc. But the fact of possession for a less period than twenty years is still a circumstance from which, when coupled with other evidence, a jury may infer the existence of a grant ;(2) and in the recent case of Hall v. Swift,(y) which was an action for obstructing a water-course, in which it was proved, that, at a period much earlier than twenty years before the commencement of the suit, the stream in question had flowed through the plaintiff's lands, but that there had been some interrup. tion about twenty-two years before the action, and it was not till within nineteen years that the stream had again flowed constantly in its former course ; the jury, on this evidence, having found for the plaintiff, the verdict was upheld by the court in banc, Tindal, C. J., observing, that “ It would be very dangerous to hold that a party should lose his right in consequence of such an interruption: if such were the rule, the accident of a dry season, or other causes over which the party could have no control, might deprive him of a right established by the longest course of enjoyment."
*9 91. We have seen that a title by prescription could [ *107 ],
d not be made against the crown.(z) This doctrine was not, however, extended to the case of a supposed lost grant, although, in order to raise such a presumption against the crown, a much longer time is required than against a private individual.(a) The leading cases on this subject are those of Bedle v. Beard(6) and The Mayor of Hull v. Horner.(c) In the former of these cases it appeared that King Edward I., in the 31st year of his reign, being seised of the manor of Kimbolton, to which the advowson of the church of K. was appendant, by letters-patent granted the manor, with the appurtenances, to Humphrey de Bohun, Earl of Hereford, in tail general. Humphrey de Bohun, the issue in tail, by deed, 40 Edw. 3, granted the advowson, then full, to the Prior of Stoneley and his successors, on which it became appropriate, and so continued. Two objections were made to the validity of this impropriation : 1st. That the grant of the manor cum pertinentibus did not pass the advowson, and the court held that it did not. 2nd. That the grant by tenant in tail became void at his death. But it was held by Lord Chancellor Ellesmere, assisted by the principal judges, and on consideration, that, although, for all that appeared, the impropriation was defective, seeing that the tenant in tail had nothing in the advowson at the time of his grant of it to the prior, yet it ought then (i. e. Hil. 4. Jac. 1, a. D. 1607) to be intended, in respect of the ancient and continual posses. sion, that there was a lawful grant of the king to the said Humphrey,