2 & 3 Will. 4, c. 71, s. 7.

Cases where right is declared absolute.

must be that period of enjoyment against an owner of the fee (Bright v. Walker, 1 C. M. & R. 222; ante, pp. 7, 8). A claim was defeated by proof of an outstanding life estate under this section (Hale v. Oldroyd, 14 M. & W. 739). Under sects. 1, 4 and 7 of this act an enjoyment as of right for thirty years next before the commencement of an action may be proved by showing that the party has enjoyed for several periods amounting together to thirty years, and that during the whole time between such periods, and between the last of them and the action (if such period intervened), the estate over which the right has been exercised was in the hands of a tenant for life (Clayton v. Corby, 2 Q. B. 813).

The cases in which the right is declared by the statute to be absolute and indefeasible are as follows. By the 1st section, where the right, profit or benefit shall have been taken as required for the full period of sixty years, the right shall be deemed absolute and indefeasible, unless it shall appear that the same was taken and enjoyed by some consent or agreement, expressly made or given for that purpose by deed or writing. By the 2nd section, where any way or easement, or any watercourse, or the use of any water, shall have been enjoyed as therein mentioned for the full period of forty years, the right thereto is made absolute and indefeasible, unless it shall appear that the same was enjoyed by some consent or agreement expressly given or made for that purpose by deed or writing. By the 3rd section, the enjoyment of light for the full period of twenty years without interruption is made absolute and indefeasible, unless it shall appear that the same was enjoyed by some consent or agreement expressly made or given for that purpose by deed or writing.

What time to be excluded in computing the term of forty years appointed by

this act.

Omission of easement in 8th section.

any

VIII. TIME EXCLUDED FROM FORTY YEARS.

8. Provided always, and be it further enacted, That when land or water upon, over, or from which any such way or other convenient (n) watercourse or use of water shall have been or shall be enjoyed or derived, hath been or shall be held under or by virtue of any term of life, or any term of years exceeding three years from the granting thereof, the time of the enjoyment of any such way or other matter as herein last before mentioned, during the continuance of such term, shall be excluded in the computation of the said period of forty years, in case the claim shall within three years next after the end or sooner determination of such term be resisted by any person entitled to any reversion expectant on the determination thereof (0).

(n) The words of the 2nd section extend to all easements; but the word "easement" is omitted in the 8th section. There seems reason for thinking that the word convenient has crept into the 8th section instead of the word 'easement," for, with that exception, the expressions in the two sections are the saine. It does not appear why it should be supposed that the legislature would have neglected to protect the interests of reversioners in the case of other easements than ways and watercourses (See Wright v. Williams, 1 M. & W. 77).

(o) The 8th section applies expressly to the computation of an enjoyment for forty years; and it would be contrary to all rules of construction to hold that it applies also to the computation of an enjoyment for twenty years (Palk v. Skinner, 18 Q. B. 568). Under the 7th and 8th sections of this act, the time during which the servient tenement has been under lease for a term exceeding three years, is to be excluded

c. 71, s. 8.

from the computation of forty years' enjoyment, but not from the com- 2 & 3 Will. 4, putation of an enjoyment for twenty years (1b.) The effect of the 8th section is not to unite discontinuous periods of enjoyment, but to extend the period of continuous enjoyment, which is necessary to give a right, by so long a time as the land is out on lease, subject to the condition therein mentioned (Onley v. Gardiner, 4 M. & W. 500).

A tenancy for life is excluded from the period of forty years by the 8th section on condition that the reversioner shall bring his action within three years after its determination; a user of forty years confers a primâ fucie title, which is good, unless the reversioner pursues his remedy within the three years (Wright v. Williams, 1 M. & W. 77). The word "reversion" at the end of the section does not include remainder (Symons v. Leaker, 15 Q. B. D. 629; see Laird v. Briggs, 16 Ch. D. 440; 19 Ch. Div. 22).

Where a replication to a plea of enjoyment of an easement for forty Replication of years, under this act, sets up a life estate in order to bring the case within life estate. the 8th section of the act, it must show that the plaintiff is the party entitled to the reversion expectant upon such life estate (Wright v. Williams, 1 M. & W. 100).

9. This act shall not extend to Scotland (p).

(p) This act has been extended to Ireland by 21 & 22 Vict. c. 42.

Not to extend to Scotland.

ON SUFJECTS INCLUDED IN THE PRESCRIPTION ACT.

1. Of the Nature of Prescription.

2. Of Rights of Common.

3. Of the Presumption of Grants of Easements and of Licences.

4. Of Rights of Way.

5. Of Watercourses.

6. Of the Right to Pews.

7. Of the Right to Light and Air.

(1.) OF THE NATURE OF PRESCRIPTION.

Every species of prescription by which property is acquired or lost is Nature of founded on this presumption, that he who has a quiet and uninterrupted prescription at possession of any thing for a certain number of years is supposed to have common law. a just right, without which he would not have been suffered to continue in the enjoyment of it; for a long possession may be considered as a better title than can commonly be produced, as it supposes an acquiescence in all other claimants, and that acquiescence also supposes some reason for which the claim was forborne (1 Domat, 461). The most ancient and distinguished writers on the common law of England have recognized the principle, that a right to any incorporeal hereditament may be acquired by length of time. This mode of acquisition they have denominated prescription," præscriptio est titulus ex usu et tempore substantiam capiens ab authoritate legis" (Co. Litt. 113 b). Every prescription supposes a grant Supposes a once made, and afterwards lost, and therefore nothing can be claimed by grant. prescription which in its nature could not have been granted (See Goodman v. Saltash, 7 App. Cas. 654). Provision was made against the insecurity to property for want of a reasonable term of limitation by the stat. 3 Edw. 1 (Westm. 1), c. 39, by protecting possession, when as old as Richard I., against certain legal proceedings. By analogy to that statute, the term of legal memory was fixed at the same period; but as no provision was made to shift the period, in consequence of the continual

Twenty years' enjoyment presumptive evidence of prescriptive

right.

Prescription. lapse of time, the reign of Richard I. was left as the point from which legal memory was dated. Hence, in order to constitute a prescription previously to 2 & 3 Will. 4, c. 71, the enjoyment must have existed time out of mind, or, in other words, must have commenced antecedent to the reign of Richard I. (Bract. L. 2, c. 22; 3 Lev. 160; 1 Bl. Comm. 76; 2 Id. 263). The period called legal memory, in contradistinction to living memory, commenced in 1189 (Co. Litt. 114b; 2 Inst. 238; 2 Ves. sen. 511). But in order to make persons on the alert in guarding their rights, and to prevent disputes respecting rights which have been long and peaceably enjoyed, the courts have interpreted an enjoyment of an incorporeal right for the period of forty years, or even twenty years, unless rebutted by other circumstances, presumptive evidence that the right has existed time out of mind, and consequently (unless its origin could be proved) a sufficient foundation for establishing a prescriptive right (10 East, 476; 2 Brod. & Bing. 403; Cowp. 215; 2 Wils. 23). And accordingly a regular usage for twenty years, not explained nor contradicted, was that upon which many public and private rights were held, there being nothing in the usage to contravene public policy (R. v. Joliffe, 2 B. & C. 54; 6 East, 214; 2 Wms. Saund. 175, a, d; see Whitstable v. Gann, 11 C. B. N. S. 412). But since 2 & 3 Will. 4, c. 71, a title to subjects included in the first section of that act cannot be established by an enjoyment for a less period than thirty years, ante, p. 3. To every prescription there were two inseparable incidents-time and usage (Co. Litt. 113). Prescription, and time whereof no memory runneth to the contrary, were all one in law (Litt. s. 170). And this was understood not only of the memory of anyone living, but also of proof by any record or writing, or otherwise, to the contrary, which was considered within memory (Co. Litt. 115a). Thus a lease of ground for fifty-six years to be a passage negatived a prescription, and suffering it to be used for three or four years after the expiration of the lease was held not to amount to a gift to the public (R. v. Hudson, Str. 909). A prescription ought to be certain; therefore a prescription for copyholders to pay to the lord for a fine upon death two years' rent or less is bad (Com. Dig. Prescription (E. 3); see A. G. v. Mathias, 4 K. & J. 592). And a claim to carry from a close so much clay as might at any time be required for making bricks at a brick kiln in every year, and at all times of the year, was held bad (Clayton v. Corby, 5 Q. B. 415; see 2 Q. B. 813). And a prescription ought to be reasonable; and therefore a man cannot prescribe for an heriot upon the death of every stranger within his manor (Com. Dig. Prescription (E. 4)). But it may be reasonable, although unusual or inconvenient, as for a way over a churchyard, or through a church (2 Roll. Abr. 265, 1. 40). There can be no prescriptive right in the nature of a servitude or easement so large as to preclude the ordinary uses of property by the owner of the lands affected (Dyce v. Hay, 1 Macq. H. L. C. 305). In order to make out a prescriptive right, it must be claimed as annexed to land, or as having been created by grant and enjoyed by a body corporate in continuance from time immemorial, or as a right handed down from ancestor to heir without intermission until the person who claims the present enjoyment (per Willes, J., Constable v. Nicholson, 14 C. B. N. Ŝ. 230; 32 L. J. C. P. 240).

Prescription must be certain and reasonable.

Different sorts of prescrip

tion.

Prescription is of two sorts,-either a personal right, which has been exercised by a man and his ancestors; or a right attached to the ownership of a particular estate, and only exercisable by those who are seised of the estate. The first is termed a prescription in the person; the second is called a prescription in a que estate, which, in plain English, means a right or privilege claimed by prescription as annexed to and going along with particular lands (Co. Litt. 113 b, 121 a; 3 Gwill. 1291; Austin v. Amhurst, 7 Ch. D. 692). As to prescribing in que estate, see note to 2 & 3 Will. 4, c. 71, s. 5, ante, p. 16. There is a third mode of prescription, which is apparently, but not really, a third, namely, claiming as a member of a corporation. There the member claims in right of the body corporate as a person (per Fry, J., Austin v. Amhurst, 7 Ch. D. 692).

between

custom.

pre

Prescription differs from custom in this respect, that a custom is properly Prescription. a local usage not annexed to the person, such as the custom that all the copyholders of a manor have common of pasture upon the waste; whereas Difference prescription is in a particular person (Co. Litt. 113 b; 4 Rep. 31 b). Custom is local, prescription personal: and the difference lies in the mode of scription and claim suited to the difference of the claimants. Where the claimant has a weak and temporary estate, he cannot claim in his own right, but must have recourse either to the place, and allege a custom there, or if he prescribes in the que estate, it must be under cover of the tenant in fee (Bean v. Bloom, 2 Bl. R. 928; S. C. 3 Wils. 456; Sharp v. Lowther, Cas. temp. Hard. 293; Lynn Regis v. Taylor, 3 Lev. 160). See further as to the distinction between custom and prescription proper, Brown's Law of Limitation, pp. 134, 209.

A custom which has existed from time immemorial without interruption within a certain place, and which is certain and reasonable in itself, obtains the force of a law, and is in effect the common law within that place to which it extends, though contrary to the general law of the realm. In the case of a custom, therefore, it is unnecessary to look out for its origin; but, in the case of prescription, which founds itself upon the presumption of a grant that has been lost by process of time, no prescription can have had a legal origin where no grant could have been made to support it. Thus a custom for all fishermen within a certain district to dry their nets upon the land of another might well be a good custom, as it was held in 5 Co. 84; and yet a grant of such an easement to fishermen within the district eo nomine might well be held to be void (per Tindal, C. J., Lockwood v. Wood, 6 Q. B. 64, 65; and see Goodman v. Saltash, 7 App. Cas. 654).

The "inhabitants" of a town cannot by that name and description prescribe for an easement in alieno solo; where such a claim has been allowed, it will be found to have been in invariably rested on the ground of custom, and not of prescription (Co. Litt. 3 a; Day v. Savadge, Hob. 85, 5th edit.; Gateward's case, 6 Rep. 59 b; S. C. as Smith v. Gateward, Cro. Jac. 152; Baker v. Brereman, Cro. Car. 418; Fitch v. Rawling, 2 H. Bl. 393; see A. G. v. Acton, 22 Ch. D. 228). An easement as a right of way in alieno solo may be claimed by custom (Grimstead v. Marlow, 4 T. R. 717). As to a claim by "parishioners" to a church way, see Batten v. Gedye, 41 Ch. D. 507.

Rights of common in the waste of a manor can be claimed by copyholders by custom. They cannot prescribe in their own names by reason of the want of permanence. Nor can they in their lord's name, for he cannot claim common in his own land. They are therefore allowed to claim it by custom (per Lord Denman, Rogers v. Brenton, 10 Q. B. 61; see Warrick v. Queen's College, 10 Eq. 122). But common cannot be claimed by "dwellers" in a manor (Allgood v. Gibson, 25 W. R. 60; 34 L. T. 883); or by "occupiers" of copyhold lands under the copyholders (Austin v. Amhurst, 7 Ch. D. 689; Knight v. King, 20 L. T. 494; as to a charitable trust for "occupiers," see Re Christ Church Act, 38 Ch. Div. 520). Freeholders claim common by prescription (Warrick v. Queen's College, 6 Ch. 716).

another's soil cannot be claimed by

Except in the case of common claimed by copyholders by custom, a Profit à profit claimed out of another man's soil must be alleged by way of pre- prendre in scription, and not by way of custom, for a custom to take a profit in alieno solo is bad (Blewitt v. Tregonning, 3 Ad. & Ell. 575; see 9 C. B. N. S. 682). The reason why a profit à prendre cannot be supported by a custom in an indefinite number of people is, that the subject of the profit custom. à prendre would in that case be liable to be entirely destroyed (per Lord Campbell, C. J., Race v. Ward, 4 Ell. & Bl. 705). In trespass for taking stones, &c., from the sea-shore, defendant pleaded a custom in the inhabitants of a township of which he was a member, and also a prescriptive right for the inhabitants and overseers of highways to take such stones. Held that such a custom was bad, being a profit à prendre in alieno solo, and that the overseers of the highways and the inhabitants

Prescription. of a township, not being a corporation, were not capable of taking by grant, and therefore could not claim such right by prescription (Constable v. Nicholson, 14 C. B. N. S. 230; Pitts v. Kingsbridge Board, 19 W. R. 884; see A. G. v. Mathias, 4 K. & J. 591). "Owners and occupiers" cannot claim a profit à prendre by prescription (Tilbury v. Silva, 45 Ch. D. 98). A claim, however, by "inhabitants" of tenements in a borough to the privilege of oyster dredging within a fishery which had been acquired by prescription by the borough corporation was supported by presuming a grant to the corporation subject to a trust (in the nature of a charitable trust) in favour of the inhabitants (Goodman v. Saltash, 7 App. Cas. 633; see the charitable trusts held to exist in Re Christ Church Act, 38 Ch. Div. 520; Wilson v. Barnes, 38 Ch. Div. 507). Compare the right of fishing vested in a corporation in trust for its members (Re Free Fishermen of Faversham, 36 Ch. Div. 329). A Crown grant to the inhabitants of a parish to take profits à prendre out of a royal manor is valid, the effect of the grant being to incorporate the inhabitants for the purpose of enabling them to exercise the right (Willingale v. Maitland, 3 Eq. 103). But such a grant will not be presumed from proof of user by the inhabitants, if the presumption is inconsistent with the past and existing state of things and there is no trace of such a corporation having existed at any time (Rivers v. Adams, 3 Ex. D. 361). And in the case of such a grant an action is maintainable only by the inhabitants as a corporation (Chilton v. London, 7 Ch. D. 735).

CUSTOM.

are valid.

Custom is "local common law"; which, as a general rule, is proved by What customs usage (per Jessel, M. R., Hammerton v. Honey, 24 W. R. 603). Equally in the case of custom as in that of prescription, long enjoyment, in order to establish a right, must have been as of right, and therefore neither by violence nor by stealth, nor by leave asked from time to time (Mills v. Colchester, L. R. 2 C.P.476; 3 C. P. 575). "It is an acknowledged principle that, to give validity to a custom, it must be certain, reasonable in itself, commencing from time immemorial, and continued without interruption. It belongs to the judges of the land to determine whether a custom is reasonable or not. A custom is not unreasonable merely because it is contrary to a particular maxim or rule of the common law, for 'consuetudo ex certâ causâ rationabili usitata privat communem legem' (Co. Litt. 113 a), as the custom of gavelkind and borough-English, which are directly contrary to the law of descent; or, again, the custom of Kent, which is contrary to the law of escheats. Nor is a custom unreasonable because it is prejudicial to the interests of a private man, if it be for the benefit of the commonwealth, as the custom to turn the plough upon the headland of another, in favour of husbandry, or to dry nets on the land of another, in favour of fishing and for the benefit of navigation. But, on the other hand, a custom that is contrary to the public good, or injurious or prejudicial to the many, and beneficial only to some particular person, is repugnant to the law of reason; for it could not have had a reasonable commencement: as a custom set up in a manor, on the part of the lord, that the commoner cannot turn in his cattle until the lord has put in his own, is clearly bad; for it is injurious to the multitude, and beneficial only to the lord (Year B. Trin. 2 H. 4, fol. 24, B. pl. 20). So a custom that the lord of the manor shall have £3 for every pound breach of any stranger (21 H. 4 (a)); or that the lord of the manor may detain a distress taken upon his demesnes until fine be made for the damage, at the lord's will (Litt. s. 212)." (Per Tindal, C. J., Tyson v. Smith, 9 Ad. & Ell. 421.)

A custom must be

-certain ;

A custom accordingly must be certain. Thus a custom is void which sets up a claim to lay coals to an indefinite extent and for an indefinite time on the lands of other copyholders whereby their lands may be made practically useless, although they would still be liable to pay their rents and perform their services (Broadbent v. Wilkes, Willes, 360; recognized in Salisbury v. Gladstone, 9 H. L. C. 692).