Way. Presumption in a church, claimed as appurtenant to a messuage. (1) (p) An of grant. adverse enjoyment of a way over another person's land for above 20 years has been considered a strong ground for the jury to presume a grant, although, about 26 years before, the way had been extinguished by an award under an inclosure act. (2) If, indeed, the party had asserted his right to be grounded on the award, this would show that the way was used by mistake; but unless it could be clearly referred to something else besides adverse possession, the jury would probably be directed not to consider small circumstances as raising a presumption, that the possession arose otherwise than by grant. Licence. Usage explained. -Adverse possession for a shorter period than 20 years will not of itself afford a ground for such a presumption; and there ought to be some other evidence in support of the right. (3) However, a licence may be presumed within that time, though in general a grant cannot; as, in an action of ejectment to recover part of a waste enclosed by the defendant, where it was proved that the steward of the lord of the manor had from time to time seen the inclosure, which had been nearly thirteen years, without making any objection, this was held to be evidence from which the jury might presume a licence from the lord. (1) In the cases which have been mentioned, the usage for twenty years was considered to be strong presumptive evidence of a grant or agreement. The original enjoyment cannot be legally explained or accounted for, unless a grant has been made; and on this ground it is, that such grants are presumed. (5) But usage is only presumptive proof; and, therefore, evidence is admissible to repel such a presumption; as, by showing that the usage was limited, or modified, or bad in its commencement, or that it clearly originated in a mistake. (6) In the case of (1) Rogers v. Brooks, 1 T. R. 431, (a.) Griffith v. Matthews, 5 T. R. 296, 298. (2) Campbell v. Wilson, East, 294, 302. Keymer v. Summers, Bull. N. P. 74. Carr v. Heaton, 3 Gwill. 1262. As to a public right of way, by a presumed dereliction on the part of the owner of the soil, see the case of the Trustees of the Rugby Charity v. Merryweather, 11 East, 375. n. R. v. Lloyd, 1 Campb. 260. R. v. Barr, 4 Campb. 16. Woodyer v. Haddon, East, 56. (5) 5 Barn. & Ald. 237. of Norfolk, 1 Price, 246. of grant. Darwin v. Upton, (1) which has been cited, where the effect of Presumption this kind of evidence was much considered, Lord Mansfield said, "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 Only presumtive proof. be an absolute bar, like a statute of limitation; it is certainly a presumptive bar, which ought to go to the jury." The other judges also were strongly of the same opinion. The usage which is supposed to be founded on a grant or agree- Limited right. ment determines also the extent of the supposed grant. (2) The right granted is considered to be commensurate with the right enjoyed. A person who has enjoyed a limited right cannot lawfully enlarge it to the detriment of others; and in case of such enlargement, those who are prejudiced may lawfully obstruct the use in the newly acquired part; but still he will be entitled to the enjoyment of his former right, not only to the same extent, but in the same specific manner. (3) So, if a person has a way for car- Way. riages from D. to B. over another man's close, and purchases land adjoining to B., he cannot use the way with carriages to the adjoining land, though he come first to B., and so to the adjoining land; for this way may be prejudicial to the other person's close. (4) The continued use and enjoyment of a private way for carriages does not necessarily imply a right to use it as a drift-way, though the one has been often understood as including the other. (5) However, it has been held that the use of a carriage-way is evidence of a right of way for all kinds of cattle, more especially, if some species of cattle have been usually driven along the way; and that it will be a question for the jury to determine, from the nature and situation of the premises, and from other circumstances, whether it is more probable that the grant included both rights of way, or that one of them was excluded. (6) (1) 2 Saund. 175, c. East, 208, 214, (2) 14 East, 339, 340. (3) Chandler y. See also 6 Thompson, Campb. 80. And see Martin v. Goble, i Campb. 320. Bealey v. Shaw, 6 East, 208. (4) Roll. Ab. 391, tit. Chimin, art. (6) By Mansfield C. J. and Cham- Presumption of grant. Consent of owner. Way. Lights. Pr. ev. in The principle above stated must always be understood with this qualification, that the possession, from which the party would presume a grant of the easement, was with the knowledge of the person seised of an estate of inheritance (q) If a tenant for years or for life gives a licence to another to enjoy an easement on his lands for above twenty years without interruption, this will not effect the person in reversion or remainder; but, on the determination of the particular estate, he may dispute the right to the easement, and the length of possession will not be evidence against him to presume a grant, unless it can be shown that he acquiesced. (1) So, where a person made windows in his house, and had them for above twenty years, without any interruption from the occupier of the opposite premises, who occupied them under a lease, the Court of King's Bench held, that the possession of such an easement would not affect the landlord on the determination of the lease, and that he would not be liable to an action for raising the height of his own premises, and thereby obstructing the light through the new windows. (2) Presumptive, or circumstantial evidence, must obviously be as criminal cases. admissible in criminal prosecutions as in civil cases; for whether the proceeding be of a civil or criminal nature, the modes of reasoning, and of drawing conclusions from facts, must necessarily be the same. (r) When direct evidence of facts cannot be supplied, as must continually happen in some of the worst species of crimes, reasonable minds will necessarily form their judgment on circumstances, and act on the probabilities of a case. The whole system of human action proceeds on probability. And as mathematical or absolute certainty" (to use the words of Lord Mansfield in the Douglas cause) (3) " is seldom to be attained in human affairs, reason and public utility require, that judges, and all mankind, in forming their opinion of the truth of facts, should be regulated by the superior number of the probabilities on the one side or the other, whether the amount of these probabilities be expressed in words and arguments, or by figures and numbers." The principal difference to be remarked between civil and criminal cases, (1) Bradbury v. Grinsel, 2 Saund. 175, d. in note. Wood v. Veal, 5 Barn & Ald. 454. Harper v. Charlesworth, 4 Barn & Cress. 574. (2) Daniel v. North, 11 East, 372. (3) Cited in Andrew Stuart's 3d. letter to Lord Mansfield, vide supra, p. 157. with reference to the modes of proof by direct or circumstantial evidence, is, that in the former, where civil rights are ascertained, a less degree of probability may be safely adopted as a ground of judgment, than in the latter case, which affects life and liberty. In criminal prosecutions, it has been observed, (1) the circumstantial evidence should be such, as to produce nearly the same degree of certainty as that which arises from direct testimony, and to exclude a rational probability of innocence. Doubtless, the circumstances ought to be of such a nature as not to be reasonably accounted for on the supposition of the prisoner's innocence, but perfectly reconcilable with the supposition of his guilt. Circumstantial evidence has, in some instances, undoubtedly been found to produce a much stronger assurance of the prisoner's guilt, than could have been produced by the most direct and positive testimony. (2) As a general principle, however, it is certainly true, that positive evidence of a fact from credible eye witnesses is the most satisfactory that can be produced, and the universal feeling of mankind leans to this species of evidence in preference to that which is merely circumstantial. If positive evidence of a fact can be produced, circumstantial evidence ought not to be trusted. (s) Chief Baron Gilbert, therefore, considers it a higher species of proof. He says, "When the fact itself cannot be proved, that which comes nearest to the proof of the fact is the proof of the circumstances which necessarily or usually attend such facts; and which are called presumptions and not proofs, for they stand instead of the proofs of the fact, till the contrary be proved." (t) between wit A difference between witnesses on points cf little importance Difference affords no reason to suspect their veracity. These variations in nesses. testimony occur every day in the transactions of common life, and may be explained on the commonest principles of human nature, (1) Burnet's Treatise on the Crim- (2) A very remarkable case of cirinal Law of Scotland, p. 323. cumstantial evidence is stated at length in Burnet's Treat. on the Criminal Law See also the very masterly summing up of the Lord Ch. Justice of the Court of Scotland, p. 524. of K. B. in Ireland, on the trial of Gra ham, Forbes, and others for a conspira cy. Printed Rep. p. 350. (s) See Note 322, p. 385. (1) See Note 323, p. 386. Goods found on prisoner. Men relate facts as they observe and remember them; and the powers of attention, observation, and memory, are infinitely diversified. A difference in the manner of relating unimportant circumstances is perfectly natural, and what might be expected in the ordinary course of things: on the contrary, it is the exact coincidence in minute particulars, that shows contrivance, and excites suspicion. An eminent writer, in adverting to the differences in the narrative of the sacred writers, has made some very judicious observations on this subject, which are of universal application. (1) "If several independent witnesses of fair character," he says, "should agree in all the parts of a story, (in testifying, for instance, that a murder or a robbery was committed at a particular time in a particular place, and by a certain individual,) every court of justice in the world would admit the fact, notwithstanding the abstract possibility of the whole being false. Again, if several honest men should agree in saying that they saw the King of France beheaded, though they should disagree as to the figure of the guillotine, or the size of his executioner, as to the King's hands being bound or loose, as to his being composed or agitated in ascending the scaffold; yet every court of justice in the world would think, that such difference, respecting the circumstances of the fact, did not invalidate the evidence respecting the fact itself. It would be impossible to establish the truth of any fact, if a disagreement in the evidence of witnesses, in minute points, should be considered as annihilating the weight of their evidence in points of importance. In a word, the relation of a fact differs essentially from the demonstration of a theorem. If one step is left out, if one link in the chain of ideas constituting a demonstration is omitted, the conclusion will be destroyed; but a fact may be established, notwithstanding a disagreement of the witnesses respecting it in certain trifling particulars of their evidence." (u) On an indictment for larceny, proof that part of the stolen goods have been found upon the person of the prisoner, or in his house or possession, is presumptive evidence against him of his having stolen them, so as to call upon him for his defence; and may be sufficient to warrant a conviction, if no facts appear (1) The Bishop of Llandaff's Apology, p. 79. |