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PART V.
CII. III.

of 37 & 38

cases.

CHAPTER III.

WHEN TIME BEGINS TO RUN IN CASES OF DISCONTINU-
ANCE OF POSSESSION.

THE general effect of the 1st section of 37 & 38 Vict. c. 57 (which has been substituted for the 2nd section of 1st section 3 & 4 Wm. IV. c. 27) is to take away all remedies for Vict. c. 57, the recovery of land or rent at the end of twelve years includes all after the right to enforce such remedy accrued. The 3rd, 4th, 6th, 7th, 8th, and 9th sections of 3 & 4 Wm. IV. c. 27 and the 2nd section of 37 & 38 Vict. c. 57 define at what time in certain cases the right shall be deemed to have accrued. The object of the 3rd section of 3 & 4 Wm. IV. c. 27 is not to cut down or limit the meaning of the 2nd section of that Act (now the 1st section of 37 & 38 Vict. c. 57), or even to give a complete explanation of the terms used in that section, but to explain and give a construction to the enactment contained therein as to "the time at which the right to make an entry or distress or to bring an action shall be deemed to have first accrued" in those cases only in which doubt or difficulty might occur (1).

3rd section

of 3 & 4 Wm. IV. c. 27.

The 3rd section of 3 & 4 Wm. IV. c. 27 is as follows: "In the construction of this Act the right to make an entry or distress or bring an action to recover any land or rent shall be deemed to have first accrued at such time as hereinafter is mentioned; (that is to say)—

Governors of

(1) James v. Salter, 3 Bingh. N. C. at p. 553. Magdalen Hospital v. Knotts, 8 Ch. D. at p. 727. Pugh v. Heath, 7 App. Cas. at p. 238. Irish Land Commission v. Junkin, 24 L. R. Ir.

"1. When the person claiming such land or rent, or some person through whom he claims, shall, in respect of the estate or interest claimed, have been in possession or in receipt of the profits of such land, or in receipt of such rent, and shall while entitled thereto have been dispossessed, or have discontinued such possession or receipt, then such right shall be deemed to have first accrued at the time of such dispossession or discontinuance of possession, or at the last time at which any such profits or rent were or was so received;

"2. And when the person claiming such land or rent shall claim the estate or interest of some deceased person who shall have continued in such possession or receipt in respect of the same estate or interest until the time of his death, and shall have been the last person entitled to such estate or interest who shall have been in such possession or receipt, then such right shall be deemed to have first accrued at the time of such death;

"3. And when the person claiming such land or rent shall claim in respect of an estate or interest in possession granted, appointed, or otherwise assured by any instrument (other than a will) to him, or some person through whom he claims, by a person being in respect of the same estate or interest, in the possession or receipt of the profits of the land, or in the receipt of the rent, and no person entitled under such instrument shall have been in such possession or receipt, then such right shall be deemed to have first accrued at the time at which the person claiming as aforesaid, or the person through whom he claims, became entitled to such possession or receipt by virtue of such instrument;

"4. And when the estate or interest claimed shall have been an estate or interest in reversion or remainder, or other future estate or interest, and no person shall have obtained the possession or receipt of the profits of such land or the receipt of such rent in respect of such estate or interest, then such right shall be deemed to have first

PART V.

CH. III.

Five

branches

of the 3rd section of

3 & 4 W m

IV. c. 27.

PART V. accrued at the time at which such estate or interest became an estate or interest in possession;

CH. III.

First branch.

"5. And when the person claiming such land or rent, or the person through whom he claims, shall have become entitled by reason of any forfeiture or breach of condition, then such right shall be deemed to have first accrued when such forfeiture was incurred or such condition was broken."

This section naturally divides itself into five branches, as numbered above, each referring to a particular class of circumstances.

The first branch, as Parke, B., has laid down, provides for the case both of land of which a person has been dispossessed and of rent which a person has ceased to receive, and must be read with reference to such land and rent, reddendo singula singulis, as fixing the actual moment of dispossession or discontinuance of possession in the case of land, and the last actual payment of rent in the case of a person ceasing to receive rent, as the point from which the period of limitation is to begin (1).

It is clear that this is the correct view, but it is obvious that the learned judge should after the words, "discontinuance of possession," have added the words, "or receipt of profits," as these last words are used in the Act and can only refer to land. The first case, therefore, to be considered is where an owner of land has been dispossessed or has discontinued the possession or receipt of the profits of the land. As to this the provision of the statute is as follows:-" When the person claiming such tinuance of land or some person through whom he claims shall in respect of the estate or interest claimed have been in possession or in receipt of the profits of such land, and shall while entitled thereto have been dispossessed or have discontinued such possession or receipt, then such right shall be deemed to have first accrued at the

Discon

possession.

(1) Owen v. De Beauvoir, 16 M. & W. 564.

CH. III.

time of such dispossession or discontinuance of possession PART V. or at the last time at which any such profits were so received."

discon

of land.

Mere discontinuance of possession is not sufficient; What is there must be not only discontinuance of possession on tinuance of the part of the owner but actual exclusive possession for possession the statutory period by some one else to be protected (1). It has been held by the Privy Council that, if a person enter on the land of another and then, before he has acquired a title under the statute, abandons possession and no one else then takes possession, the statute has no operation, and the rightful owner is in the same position as if no intrusion had taken place (2).

Discontinuance under the statute must be the quitting of possession by a person then entitled to such possession. It was decided in Rimington v. Cannon (3) that the discontinuance of an estate tail worked by the tortious feoffment of a tenant in tail was not a discontinuance of possession by the person through whom the issue in tail claimed within the meaning of the 3rd section of 3 & 4 Wm. IV. c. 27 so as to make the period of limitation begin to run against such issue from the time of such feoffment. The general principle of the Act, it was said, was, that a person who had a right to enter should be barred if he does not exercise that right in a certain time, not that those should be barred who cannot exercise a right of entry. Contra non valentem agere non currit præscriptio. What may amount in any particular case to discontinuance of possession on one side and commencement of possession on the other must depend very much on the nature of the property and the particular circumstances.

(1) McDonnell v. McKinty, 10 Ir. L. R. 514; Smith v. Lloyd, 9 Exch. 562, 572; 23 L. J. Exch. 194; Agency Co. v. Short, 13 App. Cas. 793; Gibson v. Wise, 35 W. R. 409.

(2) Agency Co. v. Short, 13 App. Cas. 793; see Willis v. Earl Howe, 9 Times L. R. at p. 416; 41 W. R. 435.

(3) 12 C. B. 18, 33; 22 L. J. C. P. 153. See Earl of Abergavenny v. Brace, L. R. 7 Exch. 145; Bobbett v. S. E. Ry. Co. 9 Q. B. D. 424.

U

PART V.
CH. III.

of road.

This question was discussed in the Irish case of Tottenham v. Byrne (1). In that case the public had a Possession right to use a well, situated in a field near a highway; a road over which the public had a right of way led from the highway to the well between two walls. The owner of the field was originally the owner of the soil of the road and of the town-land in which both road and field were situate; he sold part of the town-land, including the field, but reserved the soil of the road. It was essential to the convenience of the inhabitants of the town-land that they should have the use of the well and the road to it; the right of the public over the road made it impossible for the owner of the soil of the road to have any beneficial enjoyment of it, except so far as the user of it was necessary to the full enjoyment of the rest of the town-land which was his property, and it was clear that for that reason he had reserved the soil of the road. The purchaser of the field pulled the walls down and threw the road into the adjoining field and also built a wall across the road at its junction with the highway, leaving a stile for the use of persons going to and from the well. The public, including the inhabitants of the town-land, continued to use the well and the road to it. Subsequently the defendant who claimed through the purchaser further obstructed the road. For this the plaintiff who claimed under the vendor brought an action. One of the questions raised in this action was whether the soil of the road was vested in the plaintiff or in the defendant. Pigot, C.B., agreeing with the ruling of Christian, J., at Nisi Prius, held that the soil was vested in the plaintiff, no matter at what time the walls were thrown down and the new wall built across the end of the road, because, notwithstanding those acts of the defendant, as the inhabitants of the town-land had continued to use the road, the plaintiff had had all the enjoyment of the road

(1) 12 Ir. C. L. R. 376.

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