Difference between custom

and prescrip

tion.

at common law.

equivalent document once to have existed and to have been lost by lapse of time (m). And here it is to be observed that, at the common law, no claim by prescription could be made against the rights of the Crown (n).

§ 350. Customary rights differ from prescriptive in this, that the former are usages applicable to a district or number of persons, while the latter are rights claimed by one or more individuals (o), as existing either in themselves and their ancestors, or as annexed to particular property (p). The latter is called prescribing in a que estate, or, in other words, laying the prescription Mode of plead in the party and those whose estate he hath. And ing prescription here it is necessary to observe, that, at the common law, every prescription must have been laid in the tenant of the fee-simple; all parties holding any inferior interest in the land could not prescribe by reason of the imbecility of their estates, but were obliged to prescribe under cover of the tenant in fee, by alleging his immemorial right to the subject-matter of the claim, and deducing their own title from him (q). So, a copyholder, even in fee, must have prescribed under cover of the lord of the manor (r).

Requisites of a prescriptive right.

§ 351. A prescriptive or customary right, in order to be valid, must have existed undisturbed from time immemory may be presumed against the Crown. (Infra, § 361.) The rule was altered in some respects by 9 Geo. III. c. 16, and 32 Geo. III. c. 58; and other modern statutes.

(m) 2 Blackst. Comm. 265; Butl. Co. Litt. 261 a, n. (1); Potter v. North, 1 Ventr. 387; 13 Hen. VII., 16 B. pl. 14.

(n) 2 Ro. Abr. 264, Prescription, C.; Com. Dig. Præsc. F. 1. It is difficult to see the reason of this, if it be true, as stated in most of the books, that every prescription presupposes a grant before the time of legal memory (see last note); and it is well known that a grant within the time of legal

(o) Co. Litt. 113 b; 4 Co. 32 a; 3 Cruise's Dig. 422, 4th Ed.

(p) Co. Litt. 113 b, 121 a; 2 Blackst. Comm. 265.

(9) 2 Blackst. Comm. 264, 265. (r) 4 Co. 31 b.

memorial (t); by which, at the common law, was meant, as the words imply, that no evidence, verbal or written, could be adduced of any time when the right was not in existence (u); and the right is pleaded by alleging it to have existed "from time whereof the memory of man runneth not to the contrary (x)." But when the stat. West. 1, (3 Edw I.), c. 39, had fixed a time of limitation in the highest real actions known to the law, it was considered unreasonable to allow a longer time in claims by prescription. Accordingly, by an equitable construction of that statute, a period of legal memory was established in contradistinction to that of living memory, by which every prescriptive claim was deemed indefeasible if existing previous to the first day of the reign of Richard I., (6 July, 1189), and, as the converse of that proposition, at once at an end if shewn to have had its commencement since that period (y).

I. c. 16.

§ 352. After the time of limitation had been further 32 Hen. VIII. reduced to sixty years by 32 Hen. VIII. c. 2, and in c. 2, and 21 Jac. many cases, including the action of ejectment, to twenty years by 21 Jac. I. c. 16, it might have been expected that, by a similar equitable construction, the time of prescription would have been proportionably shortened. This, however was not done, and it remained as before (z). But the stat. 32 Hen. VIII. c. 2, affected the subject in this way, that, whereas previously a man might have prescribed for a right the enjoyment of which had been suspended for an indefinite number of years, it was thereby enacted, that no person should make any prescription by the seisin or possession of his ancestors or

(1) 1 Blackst. Comm. 76; Litt. sect. 170.

(u) Co. Litt. 115 a; Litt. in loc. cit.

(a) Litt. in loc. cit.; 2 Ro. Abr. 269, Prescrip. M. pl. 16.

(y) 2 Blackst. Comm. 31; 2 Inst. 238; Co. Litt. 114 b; 3 Cruise's Dig. 425, 4th Ed.

(2) 2 Blackst. Com. 31, note (u); Gale on Easements, 89.

Interruption.

Evidence of prescription from modern

user.

predecessors unless such seisin or possession had been within sixty years next before such prescription made.

§ 353. A prescriptive title once acquired might be destroyed by interruption. But this must be understood of an interruption of the right, not simply an interruption of the user (a). Thus, a prescriptive right might be lost or extinguished by an unity of possession of the right with an estate in the land as high and perdurable as that in the subject-matter of the right (b), as, for instance, where a party entitled in fee to a right of way or common became seised in fee of the soil to which it was attached. But the taking any lesser estate in the land only suspended the enjoyment of the subject-matter of the prescription, without extinguishing the right to it, which accordingly revived on the determination of the particular estate (c).

§ 354. The time of prescription thus remaining unaltered, it is obvious that the difficulty of establishing a prescriptive claim must have increased with each successive generation, if strict proof were required of the exercise of the supposed right up to the time of Richard I. The mischief was, however, considerably lessened by the rules of evidence established by the courts. Modern possession and user being primâ facie evidence of property and right, the judges attached to them an artificial weight, and held that when uninterrupted, uncontradicted, and unexplained, they constituted proof from which a jury ought to infer a prescriptive right coeval with the time of legal memory. The length of possession and user necessary for this purpose depends in some degree on circumstances and the nature of the

(a) Co. Litt. 114 b; Canham v. Fisk, 2 C. & J. 126, per Bayley, B.

(b) 3 Cruise's Dig. 428, 4th

Ed.; Co. Litt. 114 b; R. v. Hermitage, Carth. 241.

Ed.

(c) 3 Cruise's Dig. 426, 4th

right claimed. On a claim of modus decimandi, where there is nothing in the amount of the sum alleged to be payable in lieu of tithe inconsistent with its having been an immemorial payment, the regular proof should be payment of that amount in lieu of tithe by the parish, township, or farm, as far back as living memory will reach; coupled with negative evidence that, during that period, no tithes in kind have ever been paid in respect of that parish, township, or farm (d). So, generally, in the case of other things to which a title may be made by prescription, proof of enjoyment as far back as living memory raises a presumption of enjoyment from the remote era (e). And a like presumption may be raised from an uninterrupted enjoyment for a considerable number of years. "If," says Alderson, B., in the case of Jenkins v. Harvey (f), "an uninterrupted usage of upwards of seventy years, unanswered by any evidence to the contrary, were not sufficient to establish a right like the present" (i. e. a right to a toll on all coal brought into a port), "there are innumerable titles which could not be sustained :" and in that case a judge at Nisi Prius having directed a jury, by telling them that he was not aware of any rule of law which precluded them from presuming the immemorial existence of the right from the modern usage, the Court of Exchequer held the direction improper, and that the correct mode of presenting the point to them was, that, from the uninterrupted modern usage they should find the immemorial existence of the payment, unless some evidence was given to the contrary (g).

(d) Bree v. Beck, 1 Younge, 244; Chapman v. Monson, 2 P. Wms. 565; Moore v. Bullock, Cro. Jac. 501; Lynes v. Lett, 3 Y. & J. 405; Chapman v. Smith, 2 Vez. sen. 506.

(e) First Report of Real Pro

perty Commissioners, 51; Blewett v. Tregonning, 3 A. & E. 554, per Littledale, J.; R. v. Carpenter, 2

Show. 48.

(f) 1 C. M. & R. 895. See Brune v. Thompson, 4 Q. B. 543. (g) Id. 877.

F F

In an old case of Bury v. Pope (g), it was agreed by all the judges, that a period of thirty or forty years was insufficient to give such a title to lights as would enable the owner of the land to maintain an action against the possessor of the adjoining soil for obstructing them. But in the modern case of R. v. Joliffe (h), which was a quo warranto calling on the defendant to shew upon what authority he claimed to exercise the office of mayor of the borough of Petersfield, the defendant set up an immemorial custom for the jury of the court leet to present a fit person to be mayor of the borough, who presented him, the defendant; to which the Crown replied an immemorial custom for the court leet to present a fit person to be bailiff, and that at the court by which the defendant was presented to be mayor, the steward nominated the persons composing the jury, and issued his precept to the bailiff to summon them, who did so accordingly, whereas by the law of the land the steward should have issued his precept to the bailiff to summon a jury, and the particular persons should have been selected by the bailiff. To this the defendant rejoined, that from time immemorial the steward used to nominate the jurors: and at the trial proved that for more than twenty years such had been the practice, which was unanswered by any evidence on the part of the Crown; whereupon Burrough, J., who tried the case, told the jury that slight evidence, if uncontradicted, became cogent proof, and a verdict was given for the defendant. A rule was obtained for a new trial, on the ground that there was not sufficient evidence to warrant the finding of the jury; and Abbott, C. J., after argument, expressed himself as follows:-"Upon the evidence given, uncontradicted, and unexplained, I think the learned judge did right in telling the jury that it was cogent evidence, upon which they might find the issue (g) Cro. El. 118. See Cross (h) 2 B. & C. 54. v. Lewis, 2 B. & C. 686.