2 & 3 Will. IV. c. 100. use of water," the 8th uses the words " § 366. We have seen that "tithes, rent and services" are excepted out of the 2 & 3 Will. IV. c. 71. The two latter are provided for by the Statute of Limitations, 3 & 4 Will. IV. c. 27; the provisions of which are irrelevant to our present purpose; and the former by 2 & 3 Will. IV. c. 100, which, in its first section, enacts, that "all prescriptions and claims of or for any modus decimandi, or of or to any exemption from or discharge of tithes, by composition real or otherwise, shall, in cases where the render of tithes in kind shall be hereafter demanded by our lord the King, his heirs or successors, or by any Duke of Cornwall, or by any lay person, not being a corporation sole, or by any body corporate of many, whether temporal or spiritual, be sustained and be deemed good and valid in law, upon evidence shewing, in cases of claim of a modus decimandi the payment or render of such modus, and, in cases of claim to exemption or discharge shewing the enjoyment of the land, without payment or render of tithes, money, or other matter in lieu thereof, for the full period of thirty years next before the time of such demand, unless, in the case of claim of a modus decimandi, the actual payment or render of tithes in kind, or of money or other thing differing in amount, quality, or quantity from the modus claimed, or, in case of claim to exemption or discharge, (e) Gale on Easements, 104, 2nd Ed. the render or payment of tithes, or of money or other matter in lieu thereof, shall be shewn to have taken place at some time prior to such thirty years, or it shall be proved that such payment or render of modus was made or enjoyment had by some consent or agreement expressly made or given for that purpose by deed or writing; and if such proof in support of the claim shall be extended to the full period of sixty years next before the time of such demand, in such cases the claim shall be deemed absolute and indefeasible, unless it shall be proved that such payment or render of modus was made or enjoyment had by some consent or agreement expressly made or given for that purpose by deed or writing; and where the render of tithes in kind shall be demanded by any archbishop, bishop, dean, prebendary, parson, vicar, master of hospital, or other corporation sole, whether spiritual or temporal, then every such prescription or claim shall be valid and indefeasible, upon evidence shewing such payment or render of modus made or enjoyment had, as is herein before mentioned, applicable to the nature of the claim, for and during the whole time that two persons in succession shall have held the office or benefice in respect whereof such render of tithes in kind shall be claimed, and for not less than three years after the appointment and institution or induction of a third person thereto : Provided always, that if the whole time of the holding of such two persons shall be less than sixty years, then it shall be necessary to shew such payment or render of modus made or enjoyment had (as the case may be), not only during the whole of such time, but also during such further number of years, either before or after such time, or partly before and partly after, as shall with such time be sufficient to make up the full period of sixty years, and also for and during the further period of three years after the appointment and institution or induction of a third person to the same office or benefice, unless it shall be proved that Has not taken away the common law. 2o. Incorporeal rights not affected by the above statutes. Presumed dedication of high ways to the public. such payment or render of modus was made or enjoyment had by some consent or agreement expressly made or given for that purpose by deed or writing." By sect. 8, "In the several cases mentioned in and provided for by this act no presumption shall be allowed or made in favour or support of any claim upon proof of the exercise or enjoyment of the right or matter claimed for any less period of time or number of years than for such period or number mentioned in this act as may be applicable to the case and to the nature of the claim (f)." This enactment, like the former, has not taken away the common law (g). § 367. 2°. We proceed, in the second place, to consider the presumptions made from user of incorporeal rights not coming within the statutes above referred to. Among the foremost of these may be ranked the presumption of the dedication of highways to the public. "A road," says Littledale, J., in R. v. Mellor (h), “becomes public by reason of a dedication of the right of passage to the public by the owner of the soil, and of an acceptance of the right by the public." A dedication by the owner is insufficient without an acceptance on the part of the public (i). Now, the fact of dedication may either be proved directly, or inferred from circumstances (k), especially from that of permissive user on the part of the public. If a man open his land so that the public pass over it continually, the public, after (f) There are several other provisions and exceptions in this statute which are not inserted, as the practical operation of presumptive evidence of exemption from tithe has been almost put an end to by the Tithe Commutation Act, 6 & 7 Will. IV. c. 71, and subsequent acts. The 2 & 3 Will. IV. c. 100, has been amended in some respects by 4 & 5 Will. IV. c. 83. (g) The Earl of Stamford v. Dunbar, 13 M. & W. 822. (h) 1 B. & Ad. 37. (i) R. v. Mellor, 1 B. & Ad. 32; R. v. St. Benedict, 4 B. & A. 447. (k) R. v. Wright, 3 B. & Ad. 681; Surrey Canal Company v. Hall, 1 Man. & G. 392; R. v. St. Benedict, 4 B. & A. 447. a user of a very few years, will acquire a right of way (1), unless some act be done by the owner to shew that he had only intended to give a licence to pass over the land, and not to dedicate a right of way to the public (m). Among acts of this kind may be reckoned the putting up a bar, or excluding by positive prohibition persons from passing (n). The common course is by shutting up the passage for one day in each year (o). Where no acts of this nature have been done, there is no fixed rule as to the length of possession sufficient, when unaccompanied by other circumstances, to constitute presumptive evidence of a dedication; but unquestionably a much shorter time will suffice than would be required to raise the presumption of a grant among private individuals. In the case of The Rugby Charity v. Merryweather (p), Lord Kenyon says, that, "in a great case, which was much contested, six years was held sufficient:" and where the existence of a highway would be beneficial to the owner of the soil, a dedication has been presumed from a user of four or five years (q). But the animus or intention of the owner of the soil in doing the act, or permitting the passage, must be taken into consideration (r). "In order," says Parke, B., in Poole v. Huskinson (s), "to constitute a valid dedication to the public of a highway by the owner of the soil, it (1) The British Museum v. Finnis, 5 C. & P. 460; Lade v. Shepherd, 2 Str. 1004. (m) Barraclough v. Johnson, 8 Ad. & E. 99. (n) R. v. Lloyd, 1 Camp. 260; Roberts v. Karr, Id. 262, n.; Lethbridge v. Winter, Id. 263, n. (0) Per Patteson, J., in The British Museum v. Finnis, 5 C. & P. 465. But the keeping a gate across a road is not conclusive evidence against its being a public way, for it may have been granted with the reservation of keeping a gate in order to prevent cattle straying. Davies v. Stephens, 7 C. & P. 570. (p) 11 East, 376, n. (9) Jarvis v. Dean, 3 Bing. 447. (r) Poole v. Huskinson, 11 M. & W. 827; R. v. East Mark Tithing, 11 Q. B. 877. (s) 11 M. & W. 830. Must be with consent of owner of the fee. Public favoured. user. is clearly settled that there must be an intention to dedicate-there must be an animus dedicandi, of which the user by the public is evidence, and no more; and a single act of interruption by the owner is of much more weight, upon a question of intention, than many acts of enjoyment." And the animus or intention is to be determined by the jury (t). But the dedication of a highway to the public must be the act, or at least with the consent, of the owner of the fee: the act or assent of a tenant for any less interest will not suffice (u): though the assent of the owner of the inheritance may be inferred from circumstances (x). Upon the whole, the public are favoured in questions of this nature; and it is said, that when a road has once been a king's highway no lapse of time or cessation of user will deprive the public of the right of passage whenever they please to resume it (y). Presumption of § 368. The next subject calling for attention here is surrender or extinguishment of the presumption of the surrender or extinguishment of rights by non incorporeal rights by non-user. This is altogether unaffected by the prescription acts (≈), and the general principle is thus stated by Abbott, C. J., in Doe d. Putland v. Hilder (a): "The long enjoyment of a right of way by A. to his house or close, over the land of B., which is a prejudice to the land, may most reasonably be accounted for, by supposing a grant of such right by the owner of the land: and if such a right appear to have existed in ancient times, a long forbearance to (t) Barraclough v. Johnson, 8 A. & E. 99; Surrey Canal Company v. Hall, 1 Man. & G. 392. (u) Baxter v. Taylor, 1 Nev. & M. 11; R. v. Bliss, 7 A. & E. 550; Wood v. Veal, 5 B. & A. 454. (x) Davies v. Stephens, 7 Car. & P. 570; R. v. Barr, 4 Camp. 16; Jarvis v. Dean, 3 Bing. 447; R. v. Hudson, 2 Str. 909; Harper v. Charlesworth, 4 B. & C. 574. (y) 2 Selw. N. P. 1362, 9th Ed. (z) Gale on Easements, 354, 2nd Ed. (a) 2 B. & A. 791. |