shall be the original and genuine standard of that measure of length or lineal extension called a yard; and that all (*)measures of length shall be taken in parts or multiples, or certain proportions of the said standard yard; and that one third part of the said standard yard shall be a foot, and the twelfth part of such foot shall be an inch; and that the pole or perch in length shall contain five such yards and a half, it enacts, that(b) all superficial measure shall be computed and ascertained by the said standard yard, or by certain parts, multiples or proportions thereof; and that the rood of land shall contain 1,210 square yards according to the said standard yard; and that the acre of land shall contain 4,840 such square yards, being 160 square perches, poles or rods; and that(c) from and after the 1st day of May 1825, all contracts, bargains, sales and dealings which shall be made or had within any part of the United Kingdom of Great Britain and Ireland, for any goods, wares, merchandise, or other thing to be sold, delivered, done or agreed for by measure, where no special agreement shall be made to the contrary, shall be deemed, taken and construed to be made and had according to the standard measures ascertained by this Act; and in all cases where any special agreement shall be made with reference to any measure established by local custom, the ratio or proportion which every such local measure shall bear to any of the said standard measures shall be expressed, declared and specified in such agreement, or otherwise such agreement shall be null and void and it is then enacted that(d) the several statutes, ordinances, and acts and parts of the several statutes, ordinances and acts thereinafter mentioned and specified, so far as the same relate to the ascertaining or establishing any standards of measures, or to the establishing or

(b) S. 2.

(c) S. 15.

(d) S. 23, see 6 Geo. IV. c. 12.

(*)recognizing certain differences between measures of the same denomination, shall from and after the 1st day of May 1825, be repealed; and the enumeration includes the statutes or ordinances before mentioned in this section, which are therefore repealed.

This Act determines what now in law is the superficial quantity of an acre of land. A question will no doubt arise, whether s. 15 applies to contracts for land under the words "or other thing to be sold," or whether those words are not to be construed ejusdem generis with the preceding words, which are "goods, wares, merchandise." At all events, the section applies only to sales by measure. But wherever a purchaser is under a contract entitled to statute acres, the measure will be regulated by this Act.

(*328)

(*)CHAPTER VII.

OF THE TITLE WHICH A PURCHASER MAY REQUIRE.

I. A PURCHASER before the late Act of 3 & 4 W. 4, c. 27, had a right to require a title commencing at least sixty years previously to the time of his purchase; because the old statute of limitations(a)(I) could not in a shorter period confer a title. In Paine v. Meller(b), Lord Eldon was of opinion, that an abstract not going farther back than forty-three years, was a serious objection to the title(205).

(a) 32 Hen. VIII. c. 2; 21 Jac. I. c. 1. Vide post; and see Barnwell v. Harris, 1 Taunt. 430.

(b) 6 Ves. jun. 349. See Robinson v. Elliott, 1 Russ. 599.

(I) The Courts however were so anxious to protect a long possession, that no plaintiff was entitled to so little favor as a plaintiff in a writ of right. See Charlwood v. Morgan, Baylis v. Manning, 1 New Rep. 64, 233; Maidment v. Jukes, 2 New. Rep. 429.

(205) In Sergeant v. Ballard, 9 Pick. 251, the plaintiffs claimed a right of dockage upon the land of the defendant. It was claimed as a prædial service due from the estate of the defendant to the estate of the plaintiffs; and said the court, Putnam J. "it is analogous to the right of watering cattle, conducting water, a right of way, of pasturage, of digging for metals, &c. and a great many other rights and easements, which may be acquired by grant, and by other means in the land of others." The jury at the trial were instructed, that in order to establish the plaintiff's claim, it was not necessary for them to produce any deed, or to prove that any ever existed; the rule being, "that twenty years' occupation alone is sufficient to ground a presumption that the occupation began in virtue of some compact between the parties; but it is to be applied only to cases where the legal qualities of such right are proved to exist. One is, that the occupation must be uninterrupted by the owner of the land; another is, that the occupation must be really adverse, and not by any

OF THE TITLE WHICH A PURCHASER MAY REQUIRE. 399

Even sixty years were not sometimes sufficient. For instance, if it might reasonably be presumed from the

permission, license, or indulgence of the owner." One ground for a new trial assigned was because the instructions were erroneous; but the court considered the instructions of the chief Justice upon the point of occupation, very proper. Putnam, J. observed, "We cannot suppose (as was contended for the plaintiffs), that the mere use of the easement for twenty years is conclusive of the right; nor do we think that was the meaning of Story, J. in Tyler v. Wilkinson, 4 Mason, 402.— His words were by our laws, upon principles of public convenience, the term of twenty years of exclusive uninterrupted enjoyment has been held a conclusive presumption of a grant of right.' He could not have intended an enjoyment which had been by the favor and at the will of the owner for twenty years. The chief Justice further instructed the jury, that the plaintiffs could not join the period of the occupation of Governor Hutchinson, before the revolution, to their own subsequent occupation, because the occupation was interrupted from 1774 to 1780.' Such an interruption would be what the civilians call a usurpation; Ayl. Civ. Law. 321, 324; which is a discontinuance given to prescription, in point of time and possession, for upon a commencement of usurpation, prescription is destroyed or annihilated, and must begin again ;' which usurpation may be by "an extra judicial denunciation or claim of right," and especially "by a contestation of suit."

.

But the time which an ancestor possessed may be extended and allowed to his heirs; and the same rule applies to buyers and sellers. "Inter venditorem quoque et emptorem conjungi tempora." Just. instin. lib. 2. tit. 6. s. 8. All that would be required by the possessor would be, evidence that the possession had been legally continued from one owner to another. It was therefore a correct instruction which was given by the chief Justice, that the plaintiffs could not lap on Governor Hutchinson's time to Parson's, because of the interruption from 1774 to 1780. But the plaintiffs might avail themselves of the continued possession of their ancestors. And if Hutchinson acquired the right before he went away in 1774, it would have passed with the estate in virtue of the confiscation and the deed of the commonwealth to Sergeant and Parsons. But the difficulty of the case on the part of the plaintiffs, is as to the character of the occupation, whether it were adverse, or by favor. The plaintiffs have the burden of proof. If they leave it doubtful they are not to prevail. They must not only prove the using for twenty years, which is here the 'tempus longum,' but that it was continued, uninterrupted and adverse, that is, under a claim of right; the owner acquiescing. Dedications of ways do not always rest upon

contents of the abstract, that estates-tail were subsisting, the purchaser might demand the production of the prior title. The statutes of limitation could not in such case be relied on; remainder-men having had distinct and successive rights, upon which at least the statute of James could only begin to operate as they fell into possession. It might have been thought in the common case of a man claiming by descent, a reversion expectant upon particular estates created by his ancestor's will, that a writ of right would not lie after sixty years from his ancestor's death, although the particular estates had but (*)recently determined. But however this might be, the length of possession, for in 3 Bing. R. 447, the question left to the jury was whether the thorough-fare had been used with the consent of the owner of the soil, and not for what length of time. A parol dedication is good, and generally the only one made; and although there is no grantee to take, it vests in the public, and is different from ordinary grants, and is construed upon principles to suit the nature of the case; they are similar to the case where a man lays out a street or highway over his own land, where there is no grantee of the easement, yet it takes effect as a grant to the public use, who have the right of passage through, not the absolute property. White v. The City of Cincinnati, 6 Peter's R. 432. So, in the case of Wyman v. The Mayor of N. Y. 11 Wend. R. 486, where a vendor sold lots according to the city map on which his estate was laid down as divided into blocks, streets, &c. held: that he impliedly granted the right or privilege to the purchaser of having such streets, &c.—and where the conveyance itself bounds the lot upon a a street of a particular width, or as lying within a certain distance from the street, the dimensions and locality of which are described with sufficient certainty in the deed, and the grantor is the owner of the land upon which the supposed street is located, the grant of the privilege of such a street may well be implied. A similar implication arises when a conveyance is made with reference to a map or town plot on which the streets are laid down. In the case of Lewis street, 2 Wend. R. 472, "the principle was established, that in the city of New-York the purchasers of lots bounded upon streets not yet opened, are not subject to any assessment for opening such streets, to pay the owner for the value of the land, the presumption being that an enhanced price was paid for the lots, in consideration of being upon a street or streets. S. P. 8 Wend.

85.