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40 years, was not a sufficient ground for presuming a release or extinguishment; and that no such presumption could be raised within less than 50 years, which is the period fixed by the statute of limitations (1). A bond may be discharged by payment, and on account of the difficulty of proving this fact after a length of time, it is reasonable to presume it without positive proof: but for the extinguishment of a quit-rent a deed is necessary, and it would be • • too much to presume, that the lord of the manor has executed such a deed, from the mere fact of his not having demanded payment of the quit-rent. "A presumption," said Mr. Justice Aston, "from mere length of time, which is to support a right, is very different from a presumption to defeat a right; here the presumption is to defeat the right of the lord to a small payment within the 50 years limited by the statute; and therefore upon mere length of time unaccompanied by other circumstances, such a limitation ought not to be altered, and another set up."
Of property. Possession is prima facie evidence of property. Possession with an assertion of property, of even possession alone, gives the possessor such a property as will enable him to maintain an action of trover or trespass against a wrongdoer (2). Thus, it has been held, that an agister of cattle may maintain trespass against a person for wrongfully laking them away (3). And the principle applies to criminal as well as civil cases. On a prosecution for larceny, the property of the goods may be laid in the person who had possession at the time; and proof of the mere possession will support the indictment. This has been determined in the case of an agister of cattle (4), and in the case of a coachman, who drove the stage-coach by which the goods were sent (5). So, (to give another example in a civil case,) in an action on a policy of insurance (6), the mere
(1) F.ldridgc v. Knott, Cowp. 114. (4) Woodward's case, a East, P. C.
(1) Aiirior5' v. Delamirie, 1 Str.505. 653. < Craham v. Veatc, 1 East, 144. Suttou (5) Deakin's case, 2\F.i'.t, P. C. 653. v Buck, 2 Taunt. 302. ^6) Robensin v. French, 4 East, 130.
(3) 1RolLAbr. tit. Trespass (M).
fact fact of possession ofa ship by the plaintiff as owner is sufficient prima facie evidence of ownership; and though it should appear on the cross-examination of one of the witnesses for the plaintiff, that the plaintiff derived his ownership under a bill of sale executed by the witness himself, it would not on that account become necessary for the plaintiff to produce that bill of sale. The proof of possession will be sufficient without the aid of any documentary proof, unless such further evidence is rendered necessary in consequence of some contrary proof on the other side.
There are many cases, not within the statute of limita- Of grants, tions, where courts of justice, from a principle of quieting &c" possession, have held, that juries ought to presume the most solemn instruments to support a length of possession. The rule of presumption is applied, wherever the possession of the party is rightful, to invest that possession with a legal title (1). Even in the case of the crown, which is not bound by the statutes of limitation, a charter or grant may be presumed from great length of possession. (2)
An endowment of a vicarage may be presumed from the long and continued possession of first fruits and tenths (,}). So, long and uninterrupted usage will support a modus decimandi. It is evidence from which the jury may presume an agreement, beyond time of memory, between the land-owners and all the parties, whose consent was necessary to give it effect. But such usage will not of itself be sufficient to support a modus de rum decimando. And though immemorial custom is evidence of the other kind of modus, and is in general a ground for presuming deeds even against the crown; yet in the particular instance of a composition for tithes, it is settled, that where the deed cannot be produced, some evidence must be given referring to the
(1) 8 East, 163. 101. 3 T. R. I51. g. ;T. R. 40 a.
(a) Bedle v. Beard, 12 Rep. 5. 11 East, 488. Mayor of Kingston v. Horner, Coop. (3) Crimes v. Smyth, 1% Rep. 4.
* Oivill. 5I4. 716, 731,
I 4 deed,
deed, or shewing that it did exist, independent of mere usage. And the reason why this has been so held is stated to be, that if it were otherwise, the church would be defrauded, and every bad modus turned into a good composition. "The presumption of a deed from long usage is for the furtherance of justice and for the sake of peace, when there has been a long exercise of an adverse right. For instance, it cannot be supposed, that any man would suffer his neighbour to obstruct the light of his windows and render his house uncomfortable, or to use a way with carts and carriages over his meadow for 20 years successively, unless some agreement had been made between the parties to that effect, of which the usage is evidence. But with respect to a composition for tithes, the same reason does not obtain, because temporary agreements arc made and continued for the convenience of parties during a succession of incumbents: there is no exercise of any adverse right, which is generally deemed necessary to raise the presumption." (1)
Upon the same principle, uninterrupted enjoyment of an easement for 20 years, or upwards, is strong evidence of a right of enjoyment, from which juries are directed by the court to presume a conveyance or agreement; as, in an action on the case for obstructing the plaintiff's lights (2), or in the case of a market regularly kept above 20 years (3). So, a faculty from the ordinary may be presumed from the long uninterrupted usage of a pew in a church, claimed as appurtenant to a messuage (4). So, an adverse enjoyment of a way over another person's land for above 20 years is a strong ground for the jury to presume agrant, although about 26 years ago the way was extinguished by an award under
an inclosure act (i > If indeed the party had asserted his right to be grounded on the award, this would shew 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.
Adverse possession for a shorter period than 20 years will not of itself arford a ground for such a presumption; and there ought to be sonic other evidence in support of the right (2). 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 inclosed 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 13 years, without making any objection, this was held to be evidence from which the jury might presume a licence from the lord. (3)
In the cases which have been mentioned, the usage for 20 years was considered to be strong presumptive evidence of a grant or agreement. But it is only presumptive proof; and therefore evidence is admissible to repel such a presumption; as, by shewing that the usage was limited, or modified, or bad in its commencement, or that it clearly originated in a mistake (4). In the case of Darwin v. Upton (5), which has been cited, where the effect of this kind of evidence was much considered, Lord Mansfield said, " The enjoyment of lights with the defendant's acquiescence for 20 years is such decisive presumption of a right by grant or otherwise, that, unless contradicted or ex
(1) Campbell v. WiUon, 3 East, 294. weather, 11 East, .175. 11. R. v. Lloyd, 301. Keymer v. Summers, Hull. N. P. I Campb. N. P. C. 260. 74. Carr v. Helton, 3 Gwill. 1261. (1) 6 Enit, 215. 4 Burr. 1963. As to a public rijlu of way, by a pre- Cotlerel v. Griffiths, 4 Esp. N. P. C. 69. sumeil dereliction on the part of the ^3) Doe, dem. Foley, v. Wilson, owner of the soil, see the case of the II East, 54. Trustees of thcRugbyCharity v.Merry- (4) 3 East, 300, s.
(j) iSaundi 175.C.
plained, plained, the jury ought to believe it. But it is impossible that length of time can be said to be an absolute bar like a statute of limitation; it is certainly n presumptive bar, which ought to go to the jury." The other Judges also were strongly of the same opinion. In the case of Holcroft v. Heel, indeed (1), Ch. J. Eyre who tried the cause held that an undisturbed possession of a market by the defendant for 23 years was a bar to an action brought by the plaintiff the grantee of a neighbouring market, and therefore nonsuited the plaintiff"; and the Court of Common Pleas seem, from the report, to have been of the same opinion. But this case has been since explained by a learned Judge who was counsel in the cause (2); and it appears to have been the opinion of the Court, that the adverse possession was such strong evidence, that the Chief Justice ought to have left it to the jury to find a grant of the market from the crown; but as the court also intimated, that if the cause were to be tried again upon the same facts, the jury would be so directed, the plaintiff's counsel declined pressing for a new trial. So that this case appears not to be inconsistent with the other authorities, which determine, that such a continued possession is only presumptive evidence of a grant.
The usage, which is supposed to be founded on a grant or agreement, determines also the extent of the supposed grant (3). 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 forme? right, not only to the same extent, but in the same specific manner (4). So, if a person has a way for carriages from D. to B. over another man's close, and pur
(i) I Bps. & Pull. 4CO. (4) Chandler v. Thompson, 3 Can ph.
(») 3 E.ist, 198. 301. 80. And see Martin v. Oo')e, iCampb.
(3; 14 Kan, 33?, 340. 3^0. Bealty T. Stuw, 6 East, 208.