judgment obtained against the then owner of the land, and defendant's family had continued in possession ever since; it was held that the original possession having been taken not under any conveyance, the length of possession was only primâ facie evidence, from which a jury might infer a subsequent conveyance by the original owner or some of his descendants, but that it might be rebutted, and that the jury must not presume such conveyance from length of time, unless they were satisfied that it had actually been executed. And Abbott, C. J., in giving judgment, observed, that "in cases where the original possession cannot be accounted for, and would be unlawful unless there had been a grant, the rule may perhaps be different, and all the cases cited are of that description. Here the original possession is accounted for, and is consistent with the fact of there having been no conveyance. In my opinion, presumption of grants and conveyances have already gone too far, and I am not disposed to extend them farther." (a)

The grant to be presumed must have been made by a person who had power to make it, or the presumption cannot arise. (b)

If the person against whom the presumption is to be made be an infant, or labour under any other disability, the presumption will be rebutted. (c)

So if a tenant for a term of years, or life, permit another to enjoy an easement on his estate for twenty years or upwards without interruption, and then the particular estate determines, such user will not affect him who has the inheritance in reversion or remainder;

but when it vests in possession he may dispute the right to the easement, and the length of possession will be no answer to his claim. Thus where A. being tenant for life, with a power to make a jointure, which he afterwards executed, gave licence to B. in 1747 to create a wear on the river T. in A.'s soil for the purpose of watering B.'s meadows, and then A. died, and the jointress entered and continued in possession to the year 1799, when the tenants of A.'s farm diverted the water of the river from the wear; upon which the tenant of B.'s farm brought an action on the case for diverting the water; it was held by the court of King's Bench that the uninterrupted possession of the wear for so many years, with the acquiescence of the particular tenants for life, did not affect him who had the inheritance in reversion. (a)

So also where A. was seised of an ancient mill, together with a stream of water diverted out of a river, and flowing from thence unto his mill; and B. being possessed of other mills, together with a stream of water diverted out of the same river, above the stream of A. by means of a head-wear, and flowing from thence through the lands of A. down to B.'s mills, as appurtenant to the same; B. erected upon other lands below the lands of A. and near the said watercourse, two other mills, whereby A.'s mill became of no use. A. having recovered damages in one action against B. on this account, B. agreed to take a grant from A. of the use and benefit of the watercourse, widened and deepened by him, and of the liberty of diverting the water out of the river, for ninety-nine years, if three persons therein named should so long live, at an annual rent;

(a) Bradbury v. Grinsel, Mich. 41; Geo. III. K. B. 2 Wms. Saund. 175 d.

and a lease was granted to that effect. Soon after the execution of this deed A.'s mill was destroyed. B., or those claiming under him, continued to enjoy the watercourse and the use of the water during the term, and paid the rent. The lease having determined by the death of the last surviving cestui que vie, the person claiming under the grantee continued to enjoy the watercourse in the manner described in the grant, and paid rent for it. The reversion of the lands upon which A.'s mill stood having become vested in C., it was held that he might maintain indebitatus assumpsit for the use and occupation of the watercourse and the water running therein, against the persons who claimed under B. (a)

Thus also where lights had been made and enjoyed without interruption for above twenty years, during the occupation of the opposite premises by a tenant; that will not conclude the landlord of such opposite premises, without evidence of his knowledge of the fact; which is the foundation of presuming a grant against him; and consequently will not conclude a succeeding tenant who was in possession under such landlord from building up against such encroaching lights. (b)

In another and later case, which has been since much referred to, the same rule was laid down.

In trespass and justification under a public right of way, the locus in quo, which was not a thoroughfare, had been held under lease from 1719 to 1818, but as far back as living memory could go it had been used by the public, and lighted, paved and watched under an act of parliament, in which it was enumerated as

(a) Davis v. Morgan, 4 B. & C. 8. (b) Daniel v. North, 11 East. 372.

one of the streets in Westminster. After 1818, the plaintiff, who previously lived for twenty-four years in its neighbourhood, inclosed it; and it was held, under these circumstances, the jury were justified in finding that there was no public right of way, inasmuch as there could be no dedication to the public by tenants for ninety-nine years, nor by any one except the owner of the fee. (a)

Where successive rectors had been in possession of land for above fifty years past; but in an action for delapidations, brought by the present against the late rector, it appeared that the absolute seisin. in fee of the same land was in certain devisees since the stat. 9 Geo. II. c. 36, and that no conveyance was enrolled according to its provisions, it was held that no presumption could be made of any such conveyance enrolled, (which, if it existed, the party might have shown,) and consequently that the rector had no title to the land, as the statute avoids all other grants, &c., in trust for any charitable use, made otherwise than is there directed. (b)

(a) Wood v. Veal, 5 B. & A. 464; see also Goodtitle, v. Baldwin, 11 East. 488, stated ante, p. 420; and Barker v. Richardson, 4 B. & A. 579, stated post.

(b) Goodtitle v. Baldwin, 11 Fast. 488. As to what length of time, and

what species of adverse possession, is sufficient to raise a presumption of a grant in favour of the right to a good title in a register county, see Doe d. Beanland and others, v. Hurst, 11 Pri. 475.

CHAPTER XXV.

OF THE PRESUMPTION OF CONVEYANCES OF LEGAL ESTATES IN ABSTRACTS OF TITLE.

IT is frequently necessary to presume the conveyance of a legal estate in an abstract. We shall mention the principal instances in which this will be done.

Where a chasm occurred in the documentary evidence of a title, between a will creating a trust and a deed forty or fifty years old, purporting at that time to convey the trust estate to trustees then newly appointed, successive conveyances from the old to the new trustees were presumed to have been made. (a)

So also, as has been before observed, (b) the existence and regularity of old mesne assignments of leaseholds will be presumed where there has been a corresponding possession of the lands. (c) Thus

(a) Roe d. Everal v. Lowe, 1 H. B.

446.459.

(b) Ante, p. 104.

(c) Goodwin v. Baxter, 2 Bla. Rep.

1228. Anon. 12 Vin. Ab. 233, pl. 15; 11 Ves. 350; and see Rex. v. Barnsley, 1 M. & S. 377.