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of twenty years seems to have been adopted by analogy to the Statute of Limitations, 21 Jac. I. c. 16, which makes an adverse enjoyment for twenty years a bar to an action of ejectment; for, as an adverse possession of that duration gave a possessory title to the land itself, it seemed reasonable that it should afford a presumption of right to a minor interest arising out of the land (b). The practical effect of this quasi præsumptio juris was considerably increased by the decision in Read v. Brookman (c), namely, that it was competent to plead a right to an incorporeal hereditament by deed, and excuse profert of the deed by alleging it to have been lost by time and accident. It became, therefore, a usual mode of claiming

Greenl. Ev. § 17, 4th Ed.; per Lord Ellenborough in Balston v. Bensted, 1 Camp. 465; and in Bealey v. Shaw, 6 East, 215, &c.); an expression almost as inaccurate as calling the evidence a "bar." If the presumption be "conclusive," it is a præsumptio juris et de jure, and not to be rebutted by evidence; whereas, the clear meaning of the cases is, that the jury ought to make the presumption, and act definitively upon it, unless it is encountered by adverse proof. "The presumption of right in such cases," says Mr. Starkie," is not conclusive; in other words, it is not an inference of mere law, to be made by the courts, yet it is an inference which the courts advise juries to make wherever the presumption stands unrebutted by contrary evidence." 3 Stark. Ev. 911, 3rd Ed. It only remains to add, that the doctrine in question has only been fully established in modern times, and was not introduced

without considerable opposition. "I will not contend," says Sir D. W. Evans, "after the decisions which have taken place, that it may not be more convenient to the public, that the doctrine which has been extensively acted upon in the enjoyment of real estates, should be adhered to than departed from, though of very modern origin. But I shall ever maintain the sentiment, that the introduction of such a doctrine was a perversion of legal principles, and an unwarrantable assumption of authority." 2 Ev. Poth. 139.

(b) 3 Stark. Ev. 911, 3rd Ed.; 2 Wms. Saund. 175 et seq., and the cases there cited. Although the doctrine of adverse possession in the case of land has been taken away, except in a few instances, by 3 & 4 Will. IV. c. 27, the presumption of title by lost grant has not been affected. See infra.

(c) 3 T. R. 151.

title to an incorporeal hereditament, to allege a feigned grant within the time of legal memory, from some owner of the land or other person capable of making one, to some tenant or person capable of receiving it (d); setting forth the names of the supposed parties to the document (e), with the excuse for profert that the document had been lost by time and accident. On a traverse of the grant, the uninterrupted usage of twenty years would be held cogent evidence of its existence. This was termed making title by "non-existing grant."

§ 359. In order, however, to raise this presumption against the owner of the inheritance, the possession must be with his acquiescence; such a possession with the acquiescence of a tenant for life, or other inferior interest in the land, although evidence against the owner of the particular estate, will not bind the fee (f). And the acquiescence of the owner of the inheritance may either be proved directly, or inferred from circumstances (g). Where, however, the time has begun to run against the tenant of the fee, the interposition of a particular estate does not stop it (h).

§ 360. This presumption only obtains its practically conclusive character when the evidence of enjoyment during the required period remains uncontradicted and unexplained. In the case of Livett v. Wilson (i), where in answer to an action of trespass, the defendant pleaded a right of way by lost grant: at the trial, before Gaselee, J., it appeared that there was conflicting evidence as to

(d) Shelford's Real Property Acts, 48, 4th Ed.

(e) Hendy v. Stevenson, 10 East, 55.

(f) 2 Wms. Saund. 175 et seq., and the cases there cited.

(g) Gray v. Bond, 2 B. & B.

667.

(h) Cross v. Lewis, 2 B. & C.

686.

(i) 3 Bing 115. See also Doe d. Fenwick v. Reed, 5 B. & A. 232, and Dawson v. The Duke of Norfolk, 1 Price, 246.

Presumption of grant from the

crown.

the undisputed user of the way, and the alleged right had been pretty constantly contested; whereupon the judge told the jury that if they thought the defendant had exercised the right of way uninterruptedly for more than twenty years, by virtue of a deed, and that that deed had been lost, they would find a verdict for the defendant; and this ruling was fully confirmed by the court in banc. But the fact of possession for a less period than twenty years is still a circumstance from which, when coupled with other evidence, a jury may infer the existence of a grant (k).

§ 361. We have seen that by the common law a title by prescription could not be made against the crown (l). This doctrine was not however extended to the case of a supposed lost grant, although, in order to raise such a presumption against the crown, a longer time is required Presumption in than against a private individual (m). The same holds the rights of the where it is sought to acquire a right in derogation of the derogation of rights of the public (n).

public.

Pews.

§ 362. By the general law and of common right, all pews in churches belong to the parishioners at large, for their use and accommodation, but the distribution of seats among them rests with the ordinary, whose officers the churchwardens are; and whose duty it is to place the parishioners according to their rank and station, subject.

(k) Bealey v. Shaw, 6 East, 215; see per Tindal, C. J., in Hall v. Swift, 4 Bingh. N. C.

381.

(1) Supra, § 349.

(m) 1 Greenl. Ev. § 45, 4th Ed. See Bedle v. Beard, 12 Co. 4, 5; Mayor of Hull v. Horner, Cowp. 102; Gibson v. Clark, 1 Jac. & W. 159; Roe d. Johnson

v. Ireland, 11 East, 280; Goodtitle d. Parker v. Baldwin, Id. 488; Jewison v. Dyson, 9 M. & W. 540; Brune v. Thompson, 4 Q. B. 543.

(n) Weld v. Hornby, 7 East, 195; Chad v. Tilsed, 2 B. & B. 403; Vooght v. Winch, 2 B. & A. 662; R. v. Montague, 4 B. & C.

598.

however on complaint to the control of the ordinary (o). But a right to a pew as appurtenant to an ancient messuage may be claimed by prescription, which presupposes a faculty (p); and it is only in this light, namely, as easements appurtenant to messuages, that the right to pews is considered in courts of common law (q). The right to pews is either possessory or absolute. The ecclesiastical courts will protect a party who has been for any length of time in possession of a pew or seat against a mere disturber, so far at least as to put him on proof of a paramount title (r). And where the right is claimed as appurtenant to a messuage within the parish, possession for a long series of years will give a title against a wrong doer in a court of common law (s). But where the origin of the pew is shewn, or the presumption rebutted by circumstances, the prescriptive claim is at an end (t). In order however to raise the presumption of a right by prescription or faculty against the ordinary much more is required: and with respect to the length of occupation necessary for this purpose it is difficult to lay down any general rule (u).

(0) Corven's case, 12 Co. 1056; 3 Inst. 202; Byerly v. Windus, 5 B. & C. 1; Pettman v. Bridger, J Phillim. 323; Fuller v. Lane, 2 Add. 425; Blake v. Usborne, 3 Hagg. N. R. 733. See also Mainwaring v. Giles, 5 B. & A. 356; and Bryan v. Whistler, 8 B. & C. 288.

(p) Pettman v. Bridger, 1 Phillim. 324; Walter v. Gunner, 1 Hagg. C. R. 317; Wyllie v. Mott, 1 Hagg. N. R. 39.

(q) 3 Stark. Ev. tit. Pew, 861, 3rd Ed.

(r) Pettman v. Bridger, 1 Phillim. 324; Spry v. Flood, 2 Curt. 356.

(s) Darwin v. Upton, 2 Wms. Saund. 175 c; Kenrick v. Taylor, 1 Wils. 326; Stocks v. Booth, 1 T. R. 428; Rogers v. Brooks, Id. 431, n.; Griffith v. Matthews, 5 T. R. 296; Jacob v. Dallow, 2 L. Raym. 755.

(t) Griffith v. Matthews, 5 T. R. 296; Morgan v. Curtis, 3 Man. & Ry. 389.

(u) See Ashly v. Freckleton, 3 Lev. 73; Kenrick v. Taylor, 1 Wils. 326; Griffith v. Matthews, 5 T. R. 296; Pettman v. Bridger, 1 Phill. 325; Waller v. Gunner, 1 Hagg. C. R. 322; Woolcoombe v. Ouldridge, 3 Add. 6; Pepper v. Barnard, 12 L. J. Q. B. 361.

Statutes 2 & 3 Will. IV. cc. 71 & 100.

of the old law.

§ 363. In this state of the law were passed the statutes 2 & 3 Will. IV. cc. 71, and 100. Notwithstanding all that had been done by facilitating the proof Inconveniences of prescriptive rights, and allowing the pleading nonexisting grants, cases still occurred in which the length of the time of prescription operated to the defeat of justice. On this subject the Real Property Commissioners expressed themselves as follows (x):-" In some cases the practical remedy fails, and the rule (of prescription) produces the most serious mischiefs. A right claimed by prescription is always disproved, by shewing that it did not or could not exist at any one point of time since the commencement of legal memory, &c., &c. Amidst these difficulties, it has been usual of late, for the purpose of supporting a right which has been long enjoyed, but which can be shewn to have originated within time of legal memory, or to have been at one time extinguished by unity of possession, to resort to the clumsy fiction of a lost grant, which is pleaded to have been made by some person seised in fee of the servient to another seised in fee of the dominant tenement. But besides the objection of its being well known to the counsel, judge and jury that the plea is unfounded in fact, the object is often frustrated by proof of the title of the two tenements having been such that the fictitious grant could not have been made in the manner alleged in the plea. The contrivance therefore affords only a chance of protection, and may stimulate the adversary to an investigation for an indirect and mischievous end of ancient title-deeds, which for every fair purpose have long ceased to be of any use." There was also this inconvenience that the evidence necessary to support a claim by lost grant would not support a claim by prescription; so that a plea of the former might miscarry from the evidence

(r) First Report of the Real Property Commissioners, 51.

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