Part II. if he prove that the horse or carriage was Negligence. taken out of the stable by the servant in defiance of his orders to the contrary, this evidence shewing that the servant was not then in the due employment of his master, discharges the master from his general liability for the acts of the servant.

Disturb

ance.

Price, cor.

SECTION III.

Actions for Disturbance, &c.

IN Actions for Disturbances and Nuisances, the plaintiff must prove his possession of the land or house which has been injured, and carry Lewis v. his evidence of the state and situation of the Wilmot, J. premises, and the enjoyment of the right, as far back as possible; for in cases where there is no actual grant, usage and prescription must settle the rights of the parties.

Worcester

Spr. Ass.

1761, M.S. cited also 2 Will. Saund.

175. a

Upton.

22 Will. Saund.

In general the proof of twenty years undisDarwin .puted enjoyment of commons, lights, pews, ways, or other easements appurtenant' to a house or 175, d.and land, and in some cases a much less term will be sufficient to raise the presumption of a prescription or grant; (m) but when it is so

several

other cases

there cited.

2

claimed,

(m) In Bealey v. Shaw, 6 East. 214, Lord Ellenborough said, that twenty years exclusive enjoyment of water, in any particular manner, affords a conclusive presumption of right in the party so enjoying it. But less than twenty years enjoyment may, or may not, afford such a presumption, according as it is

attended

ance.

claimed, (and it is only in the case of copyholds Ch.VI. f.3. that it can be claimed otherwise,) the evidence Disturbmust go to shew the exercise of the right by the occupier of the particular land to which it is said to be appurtenant, for evidence that all the tenants of a manor have enjoyed it, is, in such case, not admissible.'

The defendant, in answer to this, may shew that the enjoyment was by the connivance or consent of one who had only a temporary interest in the estate, out of which the easement is claimed; and this will avoid the right which would otherwise arise from the usage. Thus, if a tenant for life or years permit a stranger to use a way, &c. through a close, this will give no title whatever, as against the remainder-man who ought not to be bound by his

attended with circumstances to support or rebut the right. In that case, the persons under whom the defendants claimed, had eighty years since erected a mill on their lands, and made a weir to direct water to it out of the river Irwell, which weir had been at different times before 1787 enlarged, and thereby a greater quantity of water diverted from the river. In 1787 the plaintiff built a mill lower in the stream, which was supplied by the water not then taken by the defendants weir, and the plaintiff continued to enjoy this surplus water until 1791, when the defendants enlarged their weir and made other works on the river, whereby they took all the water from the plaintiff's mill. The Court held the action maintainable; and Mr. J. Le Blanc said, the true rule is, that if after the erection of works, and the appropriation by the owner of the land of a certain quantity of water flowing over it, the proprietor of other lands afterwards takes what remains of the water before unappropriated, the first mentioned owner, however he might before such second appropriation have taken to himself so much more, cannot do so afterwards.

v.

Wilson Page, 4 Esp. Cas. 71.

Part II. fraud or laches.' So if the usage has been

Disturb

ance.

'Bradbury v. Grin

Saund,

merely by favour, and acknowledged as such: as if a small rent has been paid to the defendant for it; or he has locked the gates when he sell, 2 Wil. thought proper, and kept the key; or done any 175, d. other act which shews that the plaintiff did not Vide claim it as a right, it will be proper evidence, Campbell v. Wilson, on the part of the defendant, to counteract the 3 East.294 effect which the usage unexplained would pro

duce.

In these cases the plaintiff is not obliged to prove any specific injury to himself; that he has a right, and that such right has been wilfully invaded by the defendant, is sufficient; for if he were to wait until he could prove actual damage, the defendant by repeated invasions of a right, which can only depend on usage, might himself gain a title which could not afterwards be successfully opposed. In actions, therefore, by a commoner against a stranger, proof of the plaintiff's right of common, and that the defendant's cattle were turned thereon by him, or that he took the dung away, is Pinder v. sufficient; but if the action be brought against worth, 2 the lord, or a third person, who puts cattle on East. 154 the common, by his licence, the plaintiff must

* Wells v.

Watling, 2 Blac.

1233. Hobson v.

Todd, 4

T. Rep.71.

Ibid.

Wads

* Per

3

also prove a specific injury, as that there was not sufficient common left; at least, if the deBuller, J. fendant prove the contrary, it will be an answer to the action.

4 T. Rep.

73.

There is one case where, though the form of action is trespass, yet the proof will be the

same,

same, and governed by the same rules, as the above actions on the case; that is, the case of a fishery. Prima facie the right of the fishery will be in the owner of the soil; and, therefore, the first point will be, to prove property in it; this, in cases of rivers not navigable, is in the owners of the land on each side, to the middle of the river; but, nevertheless, another person may have the fishery by prescription; and as usage is so important, proof of an attempt to catch fish, though unsuccessful, will be sufficient evidence in an action for disturbance in a several fishery.*

patrick v. Green1 Wil

2162.

way,

liams's Saunders [346, b.]

CHAP. VII.

OF THE EVIDENCE IN THE ACTIONS OF TROVER.

T

Trover.

HERE is another action on the case, Actions of which, being governed by a rule of pleading not admitted in the former, I shall mention in a distinct chapter. In the action of Trover, the plaintiff does not truly state his case, but is permitted to use a fiction, and to say that he lost the goods, the value of which he seeks to recover; and that the defendant found them and converted them to his own use.

The general issue not guilty is the plea also used in this action, but, nevertheless, the plain

Trover.

1 Gordon

v. Harper, 7 T. Rep.

12.

Pine

v. Dor, 1

Part II. tiff is not put to prove the formal and fictitious Actions of part of his case. He must prove either a general and absolute property, and right of possession, at the time of the conversion, (for a reversionary property will not do,') in which case he is not obliged to prove any actual possession of the goods, for the legal T.Rep.55. possession follows the property; or else he must shew that he has a special property which 7 T. Rep. renders him answerable to the true owner; and that at the time they came into the defendant's hands he had also the actual possession of 3 Bul. N.P. them. In cases where any written paper is the subject of the action, the plaintiff should also prove notice to the defendant to produce it.*

2 Bul.

N. P. 33.

33.

33.

• Ante, 107.

v. Cole, 6

The plaintiff must then prove a conversion by the defendant. If it appear that the defendant 5 Baldwin gained the possession of the goods by force,' or Mod. 212. that, being intrusted with them, he actually conB.N.P.44 verted them to his own use; as if a carrier draw out part of the liquor in a vessel, this is of itself sufficient, and no further evidence is necesRichard- sary; but in general where goods come into a man's hands, by finding or delivery, it is necessary that a demand of them by the plaintiff, 576. Vide Mulgrave and a refusal to deliver them by the defendant, v. Ogden, should be proved to shew a conversion by him. This refusal is always evidence of a conversion, unless explained by the defendant."

son v.

Atkinson,

1 Stra.

Cro. El.

219.

7 B. N. P.

44.

6

The defendant may, on the general issue, controvert the plaintiff's property by shewing a better title in himself, or in some person on

whose