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PASSED IN THE REIGNS OF
KING WILLIAM IV. AND QUEEN VICTORIA.
2 & 3 WILLIAM IV. CAP. 71. An Act for shortening the Time of Prescription in certain Cases(a).
[1st August, 1832.]
I. Time limited for establishing rights of common and other profits à
prendre. II. Ways, easen
sements, and watercourses.
I. TIME LIMITED FOR ESTABLISHING RIGHTS OF COMMON AND
OTHER PROFITS À PRENDRE. WHEREAS the expression “ Time Immemorial, or Time whereof 2 & 3 Will 4, the Memory of Man runneth not to the contrary,” is now by c. 71, s. 1. the law of England in many cases considered to include and denote the whole period of time from the reign of King Richard the First, whereby the title to matters that have been long enjoyed is sometimes defeated by showing the commencement of such enjoyment, which is in many cases productive of inconvenience and injustice ; for remedy thereof, be it enacted, That no claim which may be lawfully made at the common Claim to right law, by custom, prescription (6), or grant, to any right of com- of common mon (c) or other profit or benefit, to be taken and enjoyed from and other
profits à prenor upon any land of our sovereign lord the King, his heirs or dre not to be successors, or any land being parcel of the Duchy of Lancaster defeated after
2 & 3 Will. 4, or of the Duchy of Cornwall (d), or of any ecclesiastical or lay c. 71, s. 1.
person, or body corporate, except such matters and things as thirty years' are herein specially provided for, and except tithes, rent, and enjoyment by services, shall, where such right, profit, or benefit shall have showing the
been actually taken and enjoyed by any person claiming right ment. thereto without interruption for the full period of thirty years,
be defeated or destroyed by showing only that such right, profit, or benefit was first taken or enjoyed at any time prior to such period of thirty years, but nevertheless such claim may be
defeated in any other way by which the same is now liable to After sixty
be defeated ; and when such right, profit, or benefit shall have years' enjoy- been so taken and enjoyed as aforesaid, for the full period of ment the right to be sixty years, the right thereto shall be deemed absolute and indeabsolute, feasible, unless it shall appear that the same was taken and unless had by enjoyed by some consent or agreement expressly made or given agreement. for that purpose by deed or writing (e). This act (a) By 21 & 22 Vict. c. 42, this act was extended to Ireland. extended to
(6) The reader is referred to note (1) at the end of this act, as to the Ireland.
nature of prescription; the difference between it and custom; what customs are valid; what things may or may not be claimed by prescription; and how a right depending upon it may be lost (see post).
(c) As to rights of common, see note (2) at the end of this act.
(1) The provisions of this act are not affected by the Act for limiting Actions and Suits by the Duke of Cornwall, in relation to Real Property
(23 & 24 Vict. c. 53, s. 2). Rights in (e) Prescriptive rights in gross are not within the scope of the statute gross. (Shuttleworth v. Le Fleming, 19 C. B. N. S. 687). Subject- The first section relates to such claims as may be lawfully made at commatter of the mon law, by custom, prescription, or grant, to any right of common or first section. other profit or benefit to be taken or enjoyed from or upon any land.
Tithes, rent and services are excepted from this act. The stat. 2 & 3 Will. 4, c. 100, provides the limitation of time with respect to claims of a modus decimandi, or exemption from, or discharge of titħes (See Shelford's Tithe Acts, 3rd ed. ; Leach's Tithe Acts, 5th ed.) The stat. 3 & 4 Will. 4, c. 27, post, limits the time within which actions and suits must be brought respecting tithes not belonging to a spiritual or eleemosynary corporation sole. The limitation of time for the recovery of tithes is not affected by the Tithe Act, 1836 (see 6 & 7 Will. 4, c. 71, s. 49).
The first section of this act includes different subjects from those in the second, and distinguishes between easements and common or profit à prendre; a different limitation is established for the first and latter cases (Bailey v. Appleyard, 8 Ad. & Ell. 167; Lawson v. Langley, 4 Ad. & Ell. 890 ; Jones v. Richard, 5 Ad. & Ell. 413). The right to receive air, light, or water, passing across a neighbour's land, may be claimed as an easement, because the property in them remains common; but the right to take “ something out of the soil” is a profit à prendre, and not an easement (Manning v. Wasdale, 5 Ad. & Ell. 764 ; Blewitt v. Tregonning, 3 Ad. & Ell. 351). This section applies only to profits à prendre in the land of another, and has no application to a copyholder's acts on his copyhold tenement (Hanmer v. Chance, 4 D. J. & S. 626).
The liberty of fowling has been decided to be a profit à prendre dre.
(Davies' case, 3 Mod. 246). The liberty to hunt is one species of aucupium, and the taking of birds by hawks seems to follow the same rule. The liberty of fishing appears to be of the same nature; it implies that the person who takes the fish, takes for his own benefit (Anon., Hardr. 407). The liberty of hunting is open to more question, as it does not of itself import the right to the animal when taken; and if it were a licence given to one individual, either on one occasion or for a time,
Profits à preno
or for his life, it would amount only to a mere personal licence of pleasure, 2 & 3 Will. 4, to be exercised by the individual licensee. But in the case of a grant c. 71, s. 1. by deed—" of free liberty with servants or otherwise to enter lands and there to hunt, hawk, fish, and fowl”—to persons," their heirs and assigns,” where it is apparent that not merely the particular individual named, but any to whom they or their heirs choose to assign it should exercise the right, it has been considered that an interest, or profit à prendre, was intended to be granted (Wickham v. Hawker, 7 M. & W. 78, 79). The property in animals fere naturce, while they are on the soil, belongs to the owner of the soil, and he may grant a right to others to come and take them by a grant of hunting, shooting, fowling, and so forth, and such a grant is a licence of a profit à prendre. Substantially it may be reserved by the owner of the fee simple when he alienates, although it is considered that, technically speaking, in such a case it is a re-grant of the right by the
, sie Hrusteev. 345). A right to cut down and carry away trees growing in a close (Bailey V. Sterens, 12 C. B. N. S. 91), and a right to take stones and sand from the seashore (Constable v. Nicholson, 14 C. B. N. S. 230), have been held to be profits à prendre. A claim to cut and carry away litter was held established as a claim by prescription to a profit à prendre (De la Marr V. Miles, 17 Ch. Div. 535).
A profit à prendre in another's soil cannot be claimed by custom, for Profit à prenthis among other reasons, that a man's soil might thus be subject to the dre in most grierous burdens in favour of successive multitudes of persons another's like the inhabitants of a parish or other district who could not release the soil cannot be right (A. G. v. Mathias, 4 K. & J. 591 ; Constable v. Nicholson, 14 C. claimed by B. N. S. 230; Johnson v. Barnes, L. R. 7 C. P. 604; Bland v. Lipscombe, custom. 4 Ell. & Bl. 713, n. (C); Allgood v. Gibson, 34 L. T. 883; Blewitt v. Tregonning, 3 Ad. & Ell. 554). Claims by custom on the part of “inhabitants” to profit à prendre in another's soil were held bad (Chilton v. London, 7 Ch. D. 735 ; Rivers V. Adams, 3 Ex. D. 361). Nor can such an indefinite class as owners and occupiers ” claim a profit à prendre by prescription (Tilbury v. Silva, 45 Ch. D. 98). But inhabitants were allowed to claim by custom a right to take water from a well, which was an easement (Race v. Ward, 4 E. & B. 702),
Before the passing of this act, a prescriptive claim was a claim of imme- Proof of morial right; the evidence in support of it was such as a party might be enjoyment able to give in such a case; and the jury were to draw their inference from under the such proof as could be produced. Now the burden of establishing an section. immemorial right is withdrawn, and the proof is limited to thirty years, But the party prescribing must prove his right for that whole period, and no presumption will be drawn from evidence as to part of that period (Builty v. Appleyard, 8 Ad. & Ell. 161, and note explanatory of case, ib. p. 1). It was also held, that proof of his enjoyment of pasture for twenty-eight years did not include proof of" the right of turning on for twenty years, the latter right being an easement only, a right of a quite different nature. The enjoyment under this section must be enjoyment as of right (De la IVarr v. Miles, 17 Ch. Div. 591 ; as to enjoyment as of right, see post, p. 9). A tenant accordingly cannot acquire any right under this section in other land belonging to his landlord (Warburton v. Parke, 2 H. & N. 64). Nor is an enjoyment sufficient which can be referred to an agreement in writing made by the owner of the servient tenement (Lowry v. Crothers, I. R. 5 C. L. 98); but where the acts were done as of right it was immaterial that they were done under a claim of an invalid custom (De la Warr v. Miles, 17 Ch. Div. 583). As to the nature of the evidence to be given in claiming a right under this section to common appurtenant, see Commissioners of Sewers v. Glasse, 19 Eq. 150, 151.
T'he plaintiff claimed a right of common by prescription in respect of a que estate in land, and also by thirty and sixty years' enjoyment by the occupier of the land. The defendant offered evidence that a tenant then deceased, while tenant of the land for years, had declared that he had no
2 & 3 Will. 4, such right in respect of the land. The declaration was held not admis. c. 71, 8. 1. sible, inasmuch as it was in derogation of the title of the reversioner
(Papendick v. Bridgwater, 5 Ell. & Bl. 166). “It would be very mischievous if it were in the power of a tenant to destroy a profit à prendre belonging to the land which he occupies, or to impose a servitude upon it. There is no difference in this respect between destroying an easement and creating
If the tenant might say that the land enjoyed no right of way, he might also say that it was liable to an easement for taking water, profit à prendre by turbary or other common. It would come to this : that by the tenant's acknowledgment of a servitude, like that in Scholes v. Chadwick, 2 Moo. & R. 307, or for cutting turves or taking away sand, the tenant might create a servitude against the reversioner. That would be very inconvenient, and it is upon the view of the balance of general convenience that the English laws of evidence are founded. In Daniel v. North, 11 East, 372, it was decided that the acquiescence of the tenant cannot prejudice the landlord, and if so, I think, à fortiori, that his declaration cannot" (Papendick v. Bridgwater, ý Ell. & Bl. 177; see Scholes v. Chadwick, 2 Moo. & R. 507; Reg. v. Bliss, 7 Ad. & Ell. 550).
This section of the act does not prevent a claim to a right of common, &c., from being defeated after thirty years' enjoyment, by showing that such right was first enjoyed at a time when it could not have originated legally. A claim to a right of common over a Crown forest, in respect of a certain tenement which was grounded on thirty years' uninterrupted enjoyment under this section may be defeated by showing that the tenement has been inclosed from the waste of a manor only forty years, and that the grant of any right over the forest was made absolutely void by a statute passed previously to the inclosure. It was questioned whether this act has any application to the case in which the establishment of a right by means of this statute would be a violation of the express terms of statutes prohibiting the granting of such a right (Mill v. New Forest, 18 C. B. 60).
As to the nature of the enjoyment requisite to support a claim under
the act, see further the note to sect. 2, post. Period of The 1st section requires in the case of a right of common or a profit à enjoyment. prendre enjoyment without interruption for the full period of thirty
years ”; the most undoubted exercise of enjoyment for twenty-nine years and three-quarters will not be sufficient (Bailey v. Appleyard, 8 Ad. & Ell. 164 ; see Flight v. Thomas, 11 Ad. & Ell. 688). Taking the first, fourth, and fifth sections together, it has been decided that the period mentioned in the act is thirty years next before some suit or action in which the claim shall be brought into question, and that an allegation of an enjoyment for thirty years next before the times when the trespasses to which the plea relates were committed is insufficient (Richards v. Fry, 7 Ad. & El. 698 ; Wright v. Williams, 1 M. & W. 77). See further the
note to sect. 4, post. Pleading If the statute be relied on it ought to be pleaded (Welcome v. Upton,
6 M. & W. 401). Plea of enjoyment of a right of common for thirty years before the commencement of the suit was held sufficient, without saying thirty years next before (Jones v. Price, 3 Bing. N. C. 52). The proper mode of pleading a profit to be taken out of land is the enjoyment of the right for the periods mentioned in the first section (Irelcome v. Upton, 5 M. & W. 398).
II. WAYS, EASEMENTS, AND WATERCOURSES. In claims of 2. No claim which may be lawfully made at the common right of way law (f), by custom, prescription, or grant, to any way or other or other easement the easement, or to any watercourse, or the use of any water, to be