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some consent or agreement expressly made or given for that purpose, by deed or writing.”(r)

(o) The first section of this important statute provides for rights of common and other profits à prendre, declaring, that, after an enjoyment of thirty years, they shall not be put an end to by merely shewing their commencement antecedent to that period, and, after an en. joyment of sixty years, rendering the right absolute and indefeasible, unless the enjoyinent were allowed under a written instrument. The second section makes provisions for ways, watercourses, use of water, and all easements, (except the right to lights, which is provided for by sect. 3,) and protects the uninterrupted enjoyment of them for the full period of twenty years from being defeated by shewing the origin of the enjoyment at an anterior period; leaving the claim, however, to be defeated in any other lawful way: and when the enjoy. ment has been extended to sixty years, then it is rendered indefeasible, unless shown to have originated by consent in writing. It is important to keep in mind the distinction between these sections, because a party who lays claim to an eascment under this statute is bound to give strict proof of his claim as an easement, which will not be supported by proof of a profit à prendre. As to what are profits à prendre and easements within the respective sections, see Wickham v. Hawker, 7 M. & W. 63; Manning v. Wasdale, 5 A. & E. 758; Jones v. Richard, Id. 413; Welcome v. Upton, 5 M. & W.398. In the construction of the second section, it was held by the Court of Exchequer, in Bright v. Walker, (1 C., M. & R. 211,) that a user of a right of way for more than twenty years, which cannot give a title against all persons having estates in the locus in quo, gave no title against a lessee and those claim ing under him. In that case the plaintiff claimed a right of way by reason of his being possessed of a certain wharf. It appeared by the evidence that the plaintiff's premises together with the close where the obstruction by the defendant took place, were demised in 1805, by the Bishop of Worcester, to a party under whom the plaintiff claimed. The jury found that there had been no grant of a right of way by the bishop, but that the plaintiff and those under whom he claimed had actually enjoyed the way without interruption for more than twenty years. A verdict was thereupon entered for the plaintiff, which was, after argu. ment, set aside by the court in banc ; and Parke, B., in delivering the judgment of the court, expresses himself thus:-" If the enjoyment for twenty years take place with the acquiescence or by the laches of one who is tenant for life only, the question is, what is ils effect according to the true meaning of the statute? Will it be good to give a right against the see, and those claining under it by a new lease, or only as against the termor and his assigns during the continuance of the term ? or will it be altogether invalid ? In the first place, it is quite clear that no right is gained against the bishop; whatever construction is put on the seventh section, it admits of no doubt under the eighth. It is quite certain that an enjoyment of forty years instead of twenty, under the circumstances of this case, would have given no title against the bishop, as he might dispute the right at any time within three years after the expiration of the lease ; and if the lcase for life be excluded from the longer period, as against the bishop, it certainly must from the shorter. Therefore, there is no doubt but that this possession of twenty years gives no title as against the bishop, and cannot affect the right of the see. The important question is, whether this enjoyment, as it cannot give a title against all persons having estates in the locus in quo, gives a title as against the lessee and the defendants claiming under him, or not at all. We have had considerable difficulty in coming to a conclusion on this point; but, upon the fullest consideration, we think that no title at all is gained by an user which does not give a valid title against all, and permanently affect the see. Before the statute, this possession would indeed have been evidence to sopport a plea or claim by a non-existing grant from the termor in the locus in quo to the termor under whom the plaintiff claims, though such a claim was by no means a matter of ordinary occurrence; and in practice the usual course was lo state a grant by an owner in fee to an owner in fee. But since the statute, such a qualified right, we think, is not given by an enjoyinent for twenty years. For, in the first place, the statute is for shortening the time of prescription ;' and if the periods mentioned in it are to be deemed new times of prescrip. tion, it must have been intended that the enjoyment for those periods should give a good title against all; for titles by immemorial prescription are absolute and valid against all ;-- they are such as absolutely bind the fee in the land. And, in the next place, the statute no where contains any intimation that there may be different classes of rights, qualified and absolute, valid as to some persons, and invalid as lo others. From hence we are led to conclude that an enjoyment of twenty years, if it gives not a good title against all, gives no good title at all; and as it is clear that this enjoymeni, whilst the land was held by a tenant for life, cannot affect the reversion in the bishop now, and is therefore not good as against every one, it is not good as against any one, and therefore not against the defendant. This view of the case derives confirmation from the seventh section, which provides as follows :- That the time during which any person, otherwise capable of resisting any claim to any of the mat. ters before mentioned, shall have been or shall be an infant, idiot, non compos mentis, feme


*By sect. 2, “ No claim which may be lawfully made att the common law by custom, prescription, or grant, to *any way or other easement, or to any watercourse, or the use of any water, to be enjoyed or derived upon, over, *or from any land or,

[ *120 ] water of our said lord the king, his heirs or sucessors, or ? being parcel of the Duchy of Lancaster or the Duchy of Cornwall, or being the property of any ecclesiastical or lay person or body corporate, when such way or other matter as herein last before mentioned 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 shewing only that such way or other matter was first enjoyed at any time prior to such period of twenty years ; but, nevertheless, such claim may be defeated in any other way by which the same is now liable to be defeated ; and where such way or other matter as *herein last before mentioned shall have, been so enjoyed as aforesaid for the full period of forty

[ *121 ] 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 writ. ing."

Sect. 3. “Where the access and use of light to and for any dwelling-house, workshop, or other building shall have been actually enjoyed therewith for the full period of twenty years, without interruption, the right thereto shall be deemed absolute and indefeasible, any local usage or custom to the contrary notwithstanding, (s) unless it shall appear that the same was enjoyed by some consent or agreement expressly made or given for that purpose by deed or writing."

Sect. 4. “Each of the respective periods of years herein before mentioned shall be deemed and taken to be the period next before some suit or action wherein the claim or matter to which such period may relate shall have been or shall be brought into question, and that no act or other matter shall be deemed to be an interruption within

covert, or tenant for life, or during which any action or suit shall have been pending, and which shall have been diligently prosecuted until abated by the death of any party or parties thereto, shall be excluded in the computation of the periods hereinbefore mentioned, except only in cases where the right or claim is hereby declared to be absolute and indefeasible.' This section, it is to be observed, in express terms excludes the time that the person (who is capable of resisting the claim to the way) is tenant for life; and unless the context makes it necessary for us, in order to avoid some manifest incongruity or absurdity, to put a differ. ent construction, we ought to construe the words in their ordinary sense. That construction does not appear to us to be at variance with any other part of the act, nor to lead to any absurdity. During the period of a tenancy for life, the exercise of an easement will not affect the fee; in order to do that, there must be that period of enjoyment against an owner of the fee. The conclusion, therefore, to which we have arrived is, that the statute in this case gives no right from the enjoyment that has taken place; and as sect. 6 forbids a presumption in favour of a claim to be drawn from a less period of enjoyment than that prescribed by the statute, and as more than twenty years is required in this case to give a right, the jury could not have been directed to presume a grant by one of the termors to the other by the proof of possession alone. Of course, nothing that has been said by the court, and cer. tainly nothing in the statute, will prevent the operation of an actual grant by one lessee to the other, proved by the deed itself, or, upon proof of its loss, by secondary evidence; nor prevent the jury from taking the possession into consideration, with other circumstances, as evidence of a grant, which they still find to have been made, if they are satisfied that it was made in point of fact. We are, therefore, of opinion, that in the present case the plaintiff is not entitled to recover."

(8) Usages of the City of London have been held to be within these words. Salters Company v. Jay, 3 A. & E., N. S. 109, (43 Eng. Com. Law Reps.;) 6 Jur. 803.

the meaning of this statute, unless the same shall have been or shall be submitted to, or acquiesced in, for one year after the party interrupted shall have had or shall have notice thereof, and of the person making or authorising the same to be made."(t)

(1) It has been justly observed of this section that, it is nothing but “an exposition of the proof” required to establish the right spoken of in the preceding section. (Shelford's Real Property Acts, p. 13, 4th ed., and per Tindal, C. J., in Jones v. Price, 3 Bing. N. C. 52, 32 Eng. Com. Law Reps.) Upon it, taken in conjunction with those sections, several important decisions have taken place, and which are not entirely consistent with each other. First, then, it has been held in several cases, that pleadings framed under this statute should allege an user of the right for thirty, sixty, twenty, or forty years, according to the nature of the case, pext before the commencement of the suit; not before the act complained of in the declaration. (Shelford, ut supra, citing Wright v. Williams, 1 M. & W.77; Richards v. Fry, 7 A. & E. 707, (34 Eng. Com. Law Reps.) And it has been held, that an allegation of the enjoyment of a right of common for thirty years before the commencement of the suit is sufficient, without saying thirty years “next” before. Jones v. Price, 3 Bing. N. C. 52, (32 Eng. Com. Law Reps.;) Richards v. Fry, 7 A. & E. 707, (34 Eng, Com. Law Reps.) But the cases on the clause in the first and second sections, that the enjoyment is to be by a person" claiming right," and " without interruption," present more difficulty. With respect to these, Parke, B., in delivering the judgment of the Court of Exchequer in Bright v. Walker, I C., M. & R. 219, says, “ In order to establish a right of way, and to bring the case within the second section, it must be proved that the claimant has enjoyed it for the full period of twenty years, and that he has done so as of right,' for that is the form in which, by the fifth section, such a claim must be pleaded ; and the like evidence would have been required before the statute to prove a claim by prescription or non-existing grant. Therefore, if the way shall appear to have been enjoyed by the claimant, not openly and in the manner that a person rightfully entitled would have used it, but by stealth, as a trespasser would have done, if he shall have occasionally asked the permission of the occupier of the land, no title would be acquired, because it was not enjoyed as of right. For the same reason it would not, if there had been a unity of possession during all or part of the time, for then the claimant would not have enjoyed as of right' the easement, but the soil itself." So, in the subsequent case of Tickle v. Brown, 4 A. & E. 369, (31 Eng. Com. Luw Reps.;) it is said by the Court, “The enjoyment as of right means of enjoyment not had secretly or by stealth, or by tacit sufferance, or by permission asked from time to time, on each occa. sion, or on many, but an enjoyment had openly, 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 the right so claimed shall be strictly legal, as by prescription and adverse user, or by deed, or shall have been merely lawsul to the extent of excusing a tres. pass.” As to the question of what shall be an interruption sufficient to prevent a right from being acquired under this stalute, the cases are not uniform. It will be remembered that the first and second sectiuns say, that the right is to be actually enjoyed" without interruption" for the respective periods specified in those sections, while the third section enacty, that, "when the access and use of light shall have been actually enjoyed for the full period of twenty years without interruption,' the right thereto shall be deemed abso. lute and indefeasible." Now, the present section, which, as we have already stated, is nothing but an exposition of the proof requisite to establish the several species of rights given by the statute, provides, " that no act or matter shall be deemed to be an interruption within the ineaning of this statute unless the same shall be submitted to or acquiesced in for one year after notice." The first case on this subject is that of Payne v. Shedden, 1 M. & Rob. 383, in which Patteson, J., says, “ If there be ten years' enjoyment of a right of way, and then a cessation under a temporary agreement for another ten years, yet this may be a sufficient enjoyment of the old right for twenty years to make it indefeasible under the statute; for the agreement to suspend the enjoyment of the right does not extinguish, nor is it inconsistent with, the right. The next is that of Lawson v. Langley, 4 A. & E, 890, (31 Eng. Com. Law Reps.;) where, in order to support a plca of right of way enjoyed for forty years, evidence was lendered to carry the user fifty years back, which having been rejected by Lililedale, J., a new trial was unanimously awarded by the Court of Queen's Bench. Lord Denman there says, “Surely the user fifty years ago was some evidence as to the state of things at the distance of forty. Indeed,' I should think that proof as to the user of the road at any time could scarcely be excluded; though, if it went no farther than to show what had taken place at a very distant period, it would amount to nothing." And Littledale, J., adds, “ If evidence of user beyond forty years were to be excluded, it might be, that, after the case had established it as far as thirty-eight years back, a discontinuance of proof might occur as to the two or three preceding years, and the party might fail because he was unable to carry his case on without guing to the dis

*Sect. 5. “In all actions upon the case and other plead #1922 1 ings wherein the party claiming may now by law *allege his right generally, without averring the existence of such right from

tance of forty-one." Subsequent to both of these came the case of Bailey v. Appleyard, 8 A. & E. 161, (35 Eng. Com. Law Reps.,) which was an action of replevin for taking cattle, with an avowry for damage feasant; to which the plaintiff pleaded in bar a right of common of pasture, by enjoyment for thirty years next before the commencement of the suit. Patteson, J., at Nisi Prius, held, that the plaintiff, under this plea, was bound to shew an uninterrupted enjoyment of pasturage for thirty years; and that, if there had been an interruption, the plaintiff could not aid himself by proof of a prior enjoyment; and he left it to the jury to say, whether there had been substantially an enjoyment for thirty years or for twenty-eight only. On the case coming before the Court of Queen's Bench in banc, it was argued, that, froin the evidence of enjoyment for twenty eight years, the jury might have presumed an enjoyment for thirty; whereupon Patteson, J., said, “I thought that the most undoubted exercise of enjoyment for lwenty-nine years and three-quarters would not have been sufficient;" and the whole Court agreed in refusing a rule to shew cause, on the ground, as it should seem, that there had been an interruption for two of the thirty years. In delivering his judgment, Coleridge, J., says, “ The burden of establishing an immemorial right is withdrawn, (by the statute,) and the proof is limited to thirty years. When that was done, the Legislature might reasonably say, that the party prescribing should prove his right for that whole period, and that no presumption should be drawn frotn evidenee as to a part." Neither of the preceding cases was cited in Bailey v. Appleyard; and see the note (i) to that case in page 778 of the same volume. In the same term with Bailey v. Appleyard the case of Hall v. Swift (4 Bing. N. C. 381, 33 Eng. Com. Law Reps.,) 6 Scott, 167, was decided by the Court of Common Pleas. That was an action for obstruction of a watercourse, in which it appeared, that, many years before the com. mencement of the suit, the stream had ceased to flow to the plaintiff's land, but had re. sumed its ancient course about nineteen years before. On this evidence, Alderson, B., left it to the jury to say, whether or not the plaintiff, and those under whom he claimed, had twenty years' enjoyment, and they found for the plaintiff. On a motion for a new trial, Tindal, C. J., said, “ It would be very dangerous to hold that a party should lose his right in consequence of such an interruption, (as this;) if such were the rule, the accident of a dry scason, or other causes over which the party could have no control, might deprive him of a right established by the longest course of enjoyment.” It is to be observed, that, in that case, neither the statute itself, nor any of the previous cases upon it, were referred to. In the case of Parker v. Mitchell, 11 A. & E. 788, (39 Eng. Com. Law Reps ;) where, in order to establish a right under the second section of the statute, the defendant gave evi. dence of user for a period of fifty years from the commencement of the suit, and so down. wards until within four or five years of such commencement, Coleridge, J., held the pleas not supported, and that there was no case to go to the jury; and this ruling was upheld by the Court in banc. One of the most important cases on this subject is that of Flight v. Thomas, 11 A. & E. 688, (39 Eng. Com. Law Reps.,) confirmed on error by the House of Lords, 8 CI. & Fin. 231. That was an action for obstructing lights; and at the trial an enjoyment was proved for nineteen years and 330 days, when an obstruction took place within a year from which the action was brought. Parke, B, who tried the case, having on this evidence directed a verdict for the plaintiff, this ruling was held correct. In the argument before the Exch. Chamb., (11 A. & E. 701, 39 Eng. Com. Law Reps.,) Tindal, C. J., says, “ There is nothing in the word interruption' which necessarily confines its meaning to an obstruction in the middle or course of the enjoyment; and no authority has been cited to shew that an interruption for the last three months of the period of twenty years is to be considered as different in itself, or in its legal consequences, from an inter. ruption of the same duration in the middle of the twenty years. It must undoubtedly be admitted, that there are difficulties attending the act, whichever way it be construed. If construed in favour of the plaintiff below, it follows that an enjoyment for nineteen years and a fraction will establish the right, provided the action be brought before the inter. ruption has continued for the full period of a year. If decided in favour of the defendants below, then we must hold an obstruction for less than a year to be an interruption. Upon the whole, we adhere best to the established rule for the interpretation of acts of the Legis. lature, that, where it is possible, full sense and meaning must be given to every clause of the act, when we hold that the obstruction in this case was no interruption within the meaning of the act, and, consequently, that the actual enjoyment of the use of the rigbt continued for the full period of twenty years, without interruption." In the recent case of Carr v. Foster, 2 Gale & Dav. 753, the plaintiff, in proof of a claim of common in respect of a farm, proved an exercise by former tenants commencing more than thirty years before action brought. About twenty years previous there had been a cesser, during which

*126 ] *rebut suche, shall be admired and provide denied, all' a be

[ *124-5 ]

time immemorial, such general allegation *shall still be

o J deemed sufficient; and if the same shall be denied, all and every the matters in this act *mentioned and provided, which shall be applicable to the case, shall be admissible in evidence to sustain or

*rebut such allegation; and that in all pleadings to actions "100 J 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, for and during such of the periods mentioned in this act as may be applicable to the case, and without claiming in the name or right of the owner of the fee, as is now usually done; and if the other party shall intend to rely on any proviso, exception, incapacity, disability, contract, agreement, or other matter hereinbefore 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.”(u)

Sect. 6. “In the several cases mentioned in and. *60 J provided for by this act, no presumption shall be allowed or made in favour or support of any claim, upon proof of the exercise or enjoyment of the right or matier claimed for any less period of

the landlord himself was in possession, who had no commonable cattle: the user was afterwards resumed by the tenants, and continued down to the time of the bringing of the action. On this evidence it was objected, that there was a gap in the title; but Lord Dengan left it to the jury to say, whether the right had been subtantially enjoyed for the period of thirty years, and this ruling was upheld by the Court in banc. Lord Denman, in giving his judgment, there says, “I think the period of thirty years was made out. There must be some interval in the actual enjoyment of almost every right. In such cases, I think it must be for the jury to say whether there has been substantially the requisite enjoyment. It is contended, that intermission for so long a time as a year, at all events, will vitiate the claim. But the word in the statute is 'interruption,' not intermission.' 'An intermission may be explained. Surely, as a matter of proof, you may infer from the enjoynient both before and after the user, that the right was enjoyed throughout the full period." And Patteson, J., adds, “ The statute says nothing as to immediate user, and it must be for the jury to say whether such user has been had. The cesser for a long period may be very good evidence, unless it is explained, that a party had not the right claimed, and knew he had it not, but that is another matter."

(u) See, on the subject of this section, the First Report of the Real Property Commis. sioners, p. 52; and it should also be remembered that the statute itself was framed previ. ously to the General Rules of H. T., 4 Will. 4, by which the effect of the general issue was No much limited. We have seen in the note to the preceding section that unity of posses. sion, during any portion of the time required by the earlier sections of this act for confirming a right, puts an end to the claim; and it has accordingly been held that such unity of possession need not be replied specially under this section, but may be given in evidence under a traverse of the enjoyment, for its effect is to negative the enjoyment. (Onley v. Gardiner, 4 M. & W. 496; Clayton v. Corby, 2 G. & Dav. 174; England v. Wall, 10 M. & W.699.) So, where the enjoyment has been under a license covering the whole period, it must be pleaded specially under this section; but where it is only for a portion of ihe time, it may be given in evidence under a traverse of the enjoyment; (Monmouthshire Canal Company v. Hereford, 1 C., M. & R. 614; Tickle v. Brown, 4 A. & E. 369, (31 Eng. Com. Law Reps.;) Beasley v. Clarke, 2 Bing. N. C. 705, (29 Eng. Com. Law Reps.;) Clay v. Shackeray, 2 M. & Rob. 244 ;) for each asking leave breaks the continuity of the enjoy. ment, and amounts to an admission that at the time of asking the asker had no right. (Sbelford's Real Property Acts, 18.) See further, on the construction of this section, the cases of Kinloch v. Neville, 6 M. & W. 795; Colchester v. Roberts, 4 M. & W. 769; Wels come v, Upton, 5 M. & W. 398.

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