time or number of years than for such period or number mentioned in this act, as may be applicable to the case and to the nature of the claim."(v) *Sect. 7. "The time during which any person, other- [ *128 ] wise capable of resisting any claim to any of the matters before mentioned, shall have been or shall be an infant, idiot, non compos mentis, feme 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 herein before mentioned, except only in cases *where the right or claim is hereby declared to be absolute and indefea[ *129 ] sible."(x) (v) This section prohibits any presumption, in favour of any of the claims mentioned in the other sections of the act, being made from any period of enjoyment less than the periods provided for by those sections respectively, and seems to have been introduced in consequence of the cases of Cotterell v. Griffiths (4 Esp. 69) and others, in which possession and user for less than twenty years was held sufficient to raise the presumption of a grant, license, &c. Great care must, however, be taken not to misunderstand this section. The word presumption is used in it in the secondary sense of artificial presumption, or presump. tion which, unsupported by any other evidence, shifts the burden of proof; and the meaning of the section is, that no inference shall be drawn from the unsupported fact of an enjoy ment for less than thirty or twenty years, &c., as the case may be. But it was not intended to divest enjoyment for a shorter period of its legitimate weight as evidence, or to preclude a jury from taking the possession into consideration, with other circumstances, as evidence of a grant, which they may still find to have been made, if they are satisfied that it was made in point of fact. (Bright v. Walker, 1 C., M. & R. 222.) We have seen, in a former part of this work, that, although præsumptiones leviores are not entitled to any weight when standing alone, the concurrence of several of them may constitute proof of the most convincing kind. (Part 1, c. 3, act. 34.) Again, in the case which has been already referred to, of Carr v. Foster, 2 Gale & D. 753, which was a traverse of the exercise of a right of common of pasture, as appurtenant to a messuage, for thirty years, under the first section of the act, it appeared in evidence, that, for more than thirty years before the commencement of the action, the right had been exercised by other tenants of the premises in question, and that about twenty years before action brought, there had been a cesser for about two years, during which the landlord himself was in possession, who had no commonable cattle; subsequently to which the user was resumed, and continued down to the time of bringing the action. On this statement of facts, it was held, by the Court of Queen's Bench, that the non user was not an interruption within this statute, and that it was correctly left to the jury to say whether the right had been subtantially enjoyed for the full period of thirty years. Patteson, J., in delivering his judgment, says, "I think in this case there is no difficulty in construing the act. The interruption spoken of in the first section is clearly an obstruction by other persons, and not a mere intermission by the claimant. This is clear from the fourth section, which speaks of the claimant 'acquiescing' in the interruption. The case of the defendants does not seem to be put so much upon an alleged interruption, but rather upon the sixth section, which says that no presumption shall be allowed in favour of a claim, upon proof of enjoyment for a less period than the act has specified. But is any such presumption necessary to support the claim in this case? The fourth section provides that there must not be a cesser of enjoyment at the end of the period, but that it must be proved; for it says that the period must be next before' the action; and the sixth section seems intended to provide that there shall be no presumption as to the commencement of the period. Formerly you presumed antecedent enjoyment; now that is not to be done. But the statute says nothing as to termediate user, and it must be for the jury to say whether such user has been had. I think the sixth section applies to exclude the presumption of antecedent enjoyment only." (x) In an action of trespass, the defendant pleaded a justification under a profit à prendre, alleged to have been enjoyed for thirty years next before the commencement of the suit; to which the plaintiff replied, that a life estate existed during twenty-seven years of the period of thirty years mentioned in the plea; to which the defendant rejoined, that the life estate did not continue during any part of the said period of thirty years :-Held, that, under this issue, the defendant was entitled by the present section to exclude the life estate altogether in the computation of the time, and that the issue ought to be found in his favour, Sect. 8. "When any land or water, upon, over, or from which any such way or other convenient' watercourse, or use of water, shall have been, or shall be, enjoyed or derived, hath been or shall be held under or by virtue of any term of life, or any term of years, exceeding three years from the granting thereof, the time of the enjoyment of any such way or other matter, as herein last before mentioned, during the continuance of such term, shall be excluded in the computation of the said period of forty years, in case the claim shall, within three years next after the end or sooner determination of such term, be resisted by any person entitled to any reversion expectant on the determination thereof."(y) * 99. The cases on this important act of parliament [ *130 ] have been already referred to in the notes on its several sections, but there is one point connected with it which requires particular notice; namely, that the earlier sections of the statute, being in the affirmative, have been held not to take away the common law, or prevent a party pleading a prescriptive claim, or claim by lost grant, in the same manner as he might have done before the act had passed.(z) In a word, those provisions of the act were intended to give additional facilities to parties, and not deprive them of any rights to which they were previously entitled. But, in order to entitle a party to the benefit of the statute, he must plead it,(a) and the mode of proof is affected by the sixth section, which is in the negative, and prohibits any presumption being made from a period of enjoyment shorter than those given in the previous sections.(b) § 100. We have seen that "tithes, rents, and service" are excepted out of the 2 & 3 Will. 4, c. 71. The two former are provided for by 3 & 4 Will. 4, c. 27, and the latter by 2 & 3 Will. 4, c. [ *131 ] 100, which, in its first section, enacts, that "all prescriptions, and claims, of or for any modus decimandi, or of or to any exemption from or discharge of tithes, by composition, real or otherwise, shall, in cases where the render of tithes in kind shall be here on proof of an enjoyment of twenty-five years before, and five years after, the life estate. (Clayton v. Corby, 2 G. & Dav. 174.) See further, on the construction of this section, the cases already referred to, of Bright v. Walker, 1 C., M. & R. 211, and Wright v. Williams, 1 M. & W. 77. (y) This section must be read in conjunction with the second. While the second renders indefeasible the rights therein mentioned if enjoyed for forty years without interruption, the present section exempts from the computation of that time the period during which the servient tenement is held by a tenant for life, or lessee for less than three years, in case the claim be resisted by the reversioner within three years after the determination of the particular statute. (See Bright v. Walker, 1 C., M. & R. 211.) It will, however, be observed, that, while the second section speaks of" ways or other casements, water-courses, or use of water," the eighth uses the words "ways or other convenient watercourse, or use of water;" and it is hardly possible that the Legislature could have intended to protect the reversioner in case of ways, watercourses, and use of water only, and not in the case of easements generally. Two suppositions have been advanced to explain this apparent inconsistency; one, that the word "convenient" has crept into this section by mistake, instead of "easement;" and the other, that "convenient" is a misprint for "convenience," a word used in some old books as synonymous with easement. (Gale & Whatley on Easements, p. 104.) (z) Onley v. Gardiner, 4 M. & W. 496; Welcome v. Upton, 5 M. & W. 398; Blewett v. Tregonning, 3 A. & E. 554, (30 Eng. Com. Law Reps. ;) Gale & Whatley on Easements, p. 98. (a) Welcome v. Upton, 5 M. & W. 398. It is common in practice to state the claim differently in different counts or pleas; in some relying on the common law, and in others on the statute. (See Wilkinson v. Proud, 11 M. & W. 33, &c.) (b) See the observations and cases on that section, supra, art. 98, n. (v). after demanded by our lord the king, his heirs or successors, or by any duke of Cornwall, or by any lay person, not being a corporation sole, or by any body corporate of many, whether temporal or spiritual, be sustained and be deemed good and valid in law, upon evidence showing, in case of claim of a modus decimandi, the payment or render of such modus; and in cases of claim to exemption or discharge, showing the enjoyment of the land without payment or render of tithes, money, or other matter in lieu thereof, for the full period of thirty years next before the time of such demand, unless in the case of claim of a modus decimandi, the actual payment or render of tithes in kind, or of money, or other thing differing in amount, quality or quantity from the modus claimed, or in case of claim to exemption or discharge, the render or payment of tithes, or of money or other matter in lieu thereof, shall be shown to have taken place at some time prior to such thirty years, or it shall be proved that such payment or render of modus was made, or enjoyment had, by some consent or agreement expressly made or given for that purpose, by deed or writing; and if such proof in support of the claim shall be extended to the full period of sixty years next before the time of such demand, in such cases the claim shall be deemed absolute and indefeasible, unless it shall be proved that such payment or render of modus was made, or enjoyment had, by some consent or agreement expressly made [ *132 ] *or given for that purpose by deed or writing; and where the render of tithes in kind shall be demanded by any archbishop, bishop, dean, prebendary, parson, vicar, master of hospital, or other corporation sole, whether spiritual or temporal, then every such prescription or claim shall be valid and indefeasible, upon evidence showing such payment or render of modus made or enjoyment had as is hereinbefore mentioned, applicable to the nature of the claim, for and during the whole time that two persons in succession shall have held the office or benefice in respect whereof such render of tithes in kind shall be claimed, and for not less than three years after the appointment and institution or induction of a third person thereto : Provided always, that if the whole time of the holding of such two persons shall be less than sixty years, then it shall be necessary to show such payment or render of modus made or enjoyment had, (as the case may be,) not only during the whole of such time, but also during such further number of years, either before or after such time, or partly before and partly after, as shall, with such time, be sufficient to make up the full period of sixty years, and also for and during the further period of three years after the appointment and institution or induction of a third person to the same office or benefice, unless it shall be proved that such payment or render of modus was made, or enjoyment had, by some consent or agreement expressly made or given for that purpose by deed or writing." By sect. 8, "In the several cases mentioned in and 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 matter claimed for any less period of time or number of *years, than for such period or number mentioned in this act as may be applicable to the case, [ *133 ] and to the nature of the claim." (c) (c) There are several other provisions and exceptions in this statute which are not inserted, § 101. We now proceed, in the second place, to consider the presumptions made from user of other incorporeal rights, which are neither prescriptive nor coming within the statutes already referred to. Amongst the foremost of these may be ranked the presumption of the dedication of highways to the public. "A road," says Littledale, J., in the case of R. v. Mellor,(d)" becomes public by reason of a dedication of the right of passage to the public by the owner of the soil, and of an acceptance of the right by the public." A dedication by the owner is insufficient without an acceptance on the part of the public. (e) Now, the fact of dedication may either be proved directly, or inferred from circumstances,(ƒ) among the foremost of which is that of permissive user on the part of the public. If a man open his land so that the public pass over it continually, the public, after a user of a very few years will acquire a right of way,(g) unless some act be done by the [ *134 ] owner to show *that he had only intended to give a license to pass over the land, and not to dedicate a right of way to the public.(h) Among acts of this kind may be reckoned the putting up a bar, or excluding, by positive prohibition, persons from passing.() The common course is said to be by shutting up the passage for one day in each year.(k) Where no acts of this nature have been done, there is no fixed rule as to the length of possession sufficient, when unaccompanied by other circumstances, to constitute presumptive evidence of a dedication; but unquestionably a much shorter time will be sufficient, than would be required to raise the presumption of a grant among private individuals.() In the case of The Rugby Charity v. Mereweather,(m) Lord Kenyon says, that, "in a great case which was much contested, six years was held sufficient;" and where the existence of a highway would be beneficial to the owner of the soil, a dedication has been presumed from a user of four or five years.(n) But in all cases the animus or intention of the owner of the soil in doing the act, or permitting the passage, must be taken into consideration. "In order," says Parke, B., in the recent case of Poole v. Huskinson, (o) "to constitute a valid dedication to the as the practical operation of the subject of the presumptive evidence of exemption from tithe has been almost put an end to by the Tithe Commutation Act, 6 & 7 Will. 4, c. 71, and the subsequent acts 2 & 3 Vict. c. 62, 3 & 4 Vict. c. 15, and 4 & 5 Vict. c. 36. See the cases collected in Shelford's Tithe Commutation Acts, and also the cases of Salkeld v. Johnston, 1 Hare, 196; Fellowes v. Clay, 7 Jurist, 343; and the Dean and Chapter of Ely v. Bliss, 6 Jurist, 496. (d) 1 B. & Ad. 37, (20 Eng. Com. Law Reps.) (e) R. v. Mellor, 1 B. & Ad. 37, (20 Eng. Com. Law Reps.;) R. v. Benedict, 4 B. & A. 447, (6 Eng. Com. Law Reps.) (f) R. v. Wright, 3 B. & Ad. 681, (23 Eng. Com. Law Reps.;) Surrey Canal Company v. Hall, 1 M. & Gr. 392; R. v. Benedict, 4 B. & A. 447, (6 Eng. Com. Law Reps.) (g) Shelford's Real Property Acts, p. 55, 4th ed.; per Patteson, J., in The British Museum v. Finnis, 5 C. & P. 465, (24 Eng. Com. Law Reps.;) Lade v. Shepherd, 2 Str. 1004. (k) Barraclough v. Johnson, 8 Ad. & E. 99, (35 Eng. Com Law Reps.) (i) R. v. Lloyd, 1 Camp. 260; Roberts v. Karr, id. 262, n.; Lethbridge v. Winter, id. 263, n. (k) Per Patteson, J., in The British Museum v. Finnis, 5 C. & P. 465, (24 Eng. Com. Law Reps.) But the keeping a gate across a road is not conclusive evidence against its being a public way, for it may have been granted with the reservation of keeping a gate in order to prevent cattle straying. (Davies v. Stephens, 7 C. & P. 570, 32 Eng. Com. Law Reps.) (1) Shelford's Real Property Acts, p. 55. (n) Jarvis v. Dean, 3 Bing. 447, (13 Eng. Com Law Reps.) (m) 11 East, 376, n. public of a highway by the owner of the soil, it is clearly settled, that there must be an intention to dedicate-there *must be an animus dedicandi, of which the user by the public is evi[ *135 ] dence, and no more; and a single act of interruption by the owner is of much more weight, upon a question of intention, than many acts of enjoyment." And the animus, or intention, is to be determined by the jury.(p) "A man," says Littledale, J., in Barraclough v. Johnson, (q) "may say that he does not mean to dedicate a way to the public, and yet, if he had allowed them to pass every day for a length of time, his declaration alone would not be regarded; but it would be for the jury to say whether he had intended to dedicate or not. facts may warrant them in believing that the way was dedicated, though he has said that he did not so intend: and if his intention be insisted upon, it may be answered that he should have shown it by putting up a gate or by some other act." The § 102. But the dedication of a highway to the public must be the act, or at least with the consent of the owner of the fee; the act or assent of the tenant for any less interest will not suffice.(r) Thus, in Wood v. Veal,(s) where a way over the plaintiff's premises had been used as a public way so far back as living memory could go, and had been lighted, paved, and watched, as a public street of a city, and enumerated as such in an act of parliament; but it appeared in evidence that the premises had been leased in 1719 for a term of 99 years, and in 1820, two years after the expiration of the lease, the plaintiff, who had been living in the neighbourhood for twenty-four years, erected a fence to stop up the way; Lord Tenterden left it to the jury to say whether they thought "there had been any [ #136 ] dedication to the public previously to 1719; if not, there could be no dedication to the public, except by the owner of the fee; and that the permission by the tenants for 99 years would not bind the landlord; and this ruling was confirmed by the court in banc. But the assent of the owner of the inheritance may be inferred from circumstances. Thus, in Davies v. Stephens,(t) where there had been a user for between thirty and forty years, during which time the land had been in the possession of tenants. Lord Denman told the jury, that, although the submission of the tenants to that user could not bind the owner of the land without proof of his also being aware of it, still, if they thought those acts of user had gone on for a great length of time, they might presume that the owner had been made aware of them. So, in R. v. Barr,(u) Lord Ellenborough says, " after a long lapse of time, and a frequent change of tenants, from the notorious and uninterrupted use of a way by the public, I should presume that the landlord had notice of the way being used, and that it was so used with his concurrence." In that case, however, the user by the public extended over a period of more than fifty years, and there was (p) Barraclough v. Johnson, 8 Ad. & E. 99, (35 Eng. Com. Law Reps.;) Surrey Canal Company v. Hall, 1 M. & Gr. 392, (39 Eng. Com. Law Reps.) (9) 8 Ad. & E. 105, (35 Eng. Com. Law Reps.) (r) Baxter v. Taylor, 1 N. & Man. 13, (28 Eng. Com. Law Reps. ;) R. v. Bliss, 7 Ad. & E. 550, (34 Eng. Com. Law Reps.) (8) 5 B. & A. 454, (7 Eng. Com. Law Reps.) (t) 7.C. & P. 570, (32 Eng. Com. Law Reps.) (u) 4 Camp. 16. |