in the affirmative. If his expression had gone even beyond that, and had recommended them to find such a verdict, I should have thought that the recommendation was fit and proper. A regular usage for twenty years, not explained or contradicted, is that upon which many private and public rights are held, there being nothing in the usage to contravene the public policy." Holroyd and Best, JJ., concurring, the rule was discharged.

claim not de

exercise of the

§ 355. Where there is general evidence of a prescrip- Prescriptive tive claim extending over a long space of time, the pre- feated by par sumption of a right existing from time immemorial will tial variations in not be defeated by proof of slight, partial, or occasional right. variations in the exercise or extent of the right claimed. This subject is well illustrated by the case of R. v. Archdall (i). In delivering the elaborate judgment of the court in that case, Littledale, J., says, "It follows almost necessarily, from the imperfection and irregularity of human nature, that a uniform course is not preserved during a long period: a little advance is made at one time, a retreat at another; something is added, or taken away, from indiscretion, or ignorance, or through other causes and when by the lapse of years the evidence is lost which would explain these irregularities, they are easily made the foundation of cavils against the legality of the whole practice. So, also, with regard to title: if that which has existed from time immemorial be scrutinised with the same severity which may properly be employed in canvassing a modern grant, without making allowance for the changes and accidents of time, no ancient title will be found free from objection that, indeed, will become a source of weakness, which ought to give security and strength. It has therefore always been the well-established principle of our law to presume everything in favour of long possession; and it is every day's practice to rest upon this foundation the title to the

(i) 8 A. & E. 281.

User for a

evidence, when coupled with

most valuable properties." There are several other cases illustrative of this principle. Thus, although in the case of a farm or district modus the occupiers are bound, in order to establish the prescription, to shew, with reasonable precision, the description and boundaries of the lands said to be covered by it, and to shew the identity of the lands for which the respective sums in lieu of tithes have been paid; still it has frequently been held in courts of equity that a trifling and immaterial variation in the evidence as to the boundaries of farms forming part of a district of considerable extent, when the greater part of such boundaries are tolerably certain, is not sufficient to destroy the modus payable in lieu of the tithes of land proved to be within such boundaries (k). So, again, in the case of Bailey v. Appleyard (l), it is laid down by Coleridge, J., that a plea of prescription will be supported by proof of a prescriptive right larger than that claimed, but of such a nature as to include it; and in Welcome v. Upton (m), Alderson, B., asks, "Would the claim of a party to a right of way be defeated by shewing that some person had narrowed it by a few inches?" On the other hand, however, a general prescription is not supported by proof of a prescriptive right coupled with a condition (n).

§ 356. Although the usage is not sufficiently long or shorter period, uniform to raise the presumption of a prescriptive right, still it is entitled to its legitimate weight as evidence, from which, coupled with other circumstances, the jury may find the existence of the right.

other circumstances.

(k) Bailey v. Sewell, 1 Russ. 239; Rudd v. Wright, 1 Younge, 147; Rudd v. Champion, Id. 173; Bree v. Beck, Id. 211. See Ward v. Pomfret, 1 Man. & Gr. 559.

(1) 8 A. & E. 167. See The

Bailiffs of Tewkesbury v. Bricknell, 1 Taunt. 142.

(m) 6 M. & W. 540.

(n) Paddock v. Forrester, 3 Scott, N. R. 715; 3 M. & Gr. 903, and the cases there cited.

right, how re

§ 357. The presumption of prescriptive right, derived Presumption of from enjoyment, however ancient, is instantly put an end prescriptive to when the right is shewn to have originated within butted. the period of legal memory (o); and it is of course liable to be rebutted by any species of legitimate evidence, direct or presumptive (p). The existence of an ancient grant without date is not, however, necessarily inconsistent with a prescriptive right; for the grant may either have been made before the time of legal memory, or in confirmation of a prescriptive right (7). So, in Scales v. Key (r), where, on a question of false return to a mandamus, the issue turned on the existence of an immemorial custom within the city of London, the jury having found that the custom existed to 1689, (the case was tried in 1834), the judge at Nisi Prius refused to ask them whether the custom existed after that year, and directed a verdict to be entered for the defendant; and this ruling was confirmed by the court in banc. So, in Biddulph v. Ather (s), where, in support of a prescriptive right to wreck, evidence was adduced of uninterrupted usage for ninety-two years, it was held not to be conclusively negatived by two allowances in eyre 400 years previous, and a subsequent judgment in trespass; and the judge having left the whole case to the jury, who found in favour of the claim, the court refused to disturb the verdict. So, a prescriptive claim to a right of way for a party and his servants, tenants and occupiers of a certain close, and a justification as his servant and by his command, is not necessarily disproved by shewing that the land had, fifty years before, been part of a large common, which was inclosed under the provisions of an

(0) 2 Blackst. Com. 31; Fisher v. L. Graves, 3 E. & Y., Tithe C. 1180.

(p) See Taylor v. Cook, 8 Price, 650, and the cases cited in the preceding notes.

(q) Addington v. Clode, 2 W. Bl. 989.

(r) 11 A. & E. 819. See also Welcome v. Upton, 6 M. & W.

536.

(s) 2 Wils. 23.

Title by nonexisting grant.

inclosure act, and allotted to the ancestor of the party. The jury having found for the defendant, a rule was obtained to enter a verdict for the plaintiff, which was however discharged after argument. J. Parke, J., there says, "There is no rule of law which militates against the finding. From the usage, the jury might infer that the lord, if the fee were in him before the inclosure, had the right of way (t)." So, in the case of a modus decimandi, it is laid down by Sir J. Leach, V. C., that ancient documents cannot prevail against all proof of usage, unless they are consistent with each other, and unless the effect of them excludes not the probability, but the possibility, of the modus (u).

§ 358. Notwithstanding the desire of the courts to uphold prescriptive rights, there were many cases in which the extreme length of the time of legal memory exercised a very mischievous effect; as the presumption from user, however strong, was liable to be altogether defeated by shewing the origin of the claim at any time since the 1 Rich. I. (A. D. 1189). Besides, possession and user are in themselves legitimate evidence of the existence of rights created since that period, the more obvious and natural proofs of which may have perished by time or accident. "Tempus," says Sir Edward Coke, "est edax rerum(x);" records and letters patent, and other writings, either consume or are lost, or embezzled and if ancient grants and acts had been drawn in question in the lifetime of the parties to them, they might have shewn the truth of the matter; but after the death of all the parties, and after many successions of ages, if any objection or exception should prevail, the ancient and long possession

(t) Codling v. Johnson, 9 B. & C. 933. See further on this subject, Hill v. Smith, 10 East, 476; Schoobridge v. Ward, 3 M. & Gr.

896.

(u) White v. Lisle, 4 Madd.

224.

(r) 3 Co. 21 b; 12 Id. 5.

of owners should hurt them (y). Acting partly on this principle, but chiefly for the furtherance of justice and the sake of peace, by quieting possession (2), the judges attached an artificial weight to the possession and user of such matters as lie in grant, where no prescriptive claim was put forward, and in process of time established it as a rule that twenty years' adverse and uninterrupted enjoyment of an incorporeal hereditament, uncontradicted and unexplained, was cogent evidence from which the jury should be directed conclusively to presume a grant or other lawful origin of the possession (a). This period