STATUTES RELATING TO REAL PROPERTY, PASSED IN THE REIGNS OF KING WILLIAM IV. AND QUEEN VICTORIA. PRESCRIPTION. 2 & 3 WILLIAM IV. CAP. 71. An Act for shortening the Time of Prescription in cer- I. Time limited for establishing rights of common and other profit II. Limitation of time as to ways, easements and watercourses. IV. How periods of limitation are to be computed. V. Pleadings. VI. Period less than that provided by statute not to be allowed. VIII. Time excluded in computation of period of forty years. I. TIME LIMITED FOR ESTABLISHING RIGHTS OF COM- " c. 71, s. 1. WHEREAS the expression "Time Immemorial, or Time 2&3 Will.4, whereof the Memory of Man runneth not to the contrary,' is now by 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 claims to may be lawfully made at the common law, by custom, pre- right of comscription (a), or grant, to any right of common (b) or other profits B mon and c. 71, s. 1. à prendre, not to be dethirty years' feated after enjoyment by showing the commencement. 2&3 Will. 4, other profit or benefit, to be taken and enjoyed from or upon any land of our sovereign lord the King, his heirs or successors, or any land being parcel of the Duchy of Lancaster or of the Duchy of Cornwall, or of any ecclesiastical or lay person, or body corporate, except such matters and things as are herein specially provided for, and except tithes, rent, and services, shall, where such right, profit, or benefit shall have been actually taken and enjoyed by any person claiming right 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 be defeated; and when such right, profit, or benefit shall have been so taken and enjoyed as aforesaid, for the full period of sixty years, the right thereto 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 (c). After sixty years' enjoyment the right to be absolute, unless had by consent or agreement. Subjects included in first section. (a) The reader is referred to a subsequent part of this work, as to the nature of prescription, the difference between it and custom, what things may or may not be claimed by prescription, and how a right depending upon it may be lost. (See pp. 25-34.) (b) As to rights of common, see post, pp. 34-48. (c) The several decisions upon this statute, although relating to many different subjects, have for the most part a relation to each other; the more convenient course therefore will be to commence with the statute and the several decisions upon it, rather than to distribute them amongst the subjects which are hereafter considered separately. The first section relates to such claims as may be lawfully made at common law, by custom, prescription, or grant, to any right of common or 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 tithes. (See Acts for the Commutation of Tithes and Supplement thereto, by Shelford, 3rd 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 Act for the Commutation of Tithes in England and Wales. (See 6 & 7 Will. 4, c. 71, s. 49.) It must be borne in mind that the first section of the Prescription Act includes different subjects from those in the second, which distinguishes between easements and common, or profit à prendre, and that 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; 1 Nev. & P. 172; Blewitt v. Tregonning, 3 Ad. & Ell. 554; 5 Nev. & M. 308; 2&3 Will. 4, Bailey v. Appleyard, 3 Nev. & P. 257; 8 Ad. & Ell. 161.) c. 71, s. 1. A right, claimed by the inhabitants of a township, to enter upon the land of a private person and take water from a well therein for domestic purposes, is an easement and not a profit à prendre, and may therefore properly be claimed by custom. (Race v. Ward, 4 Ell. & Bl. 702; 24 Law J., Q. B., 153; 1 Jur., N. S., 704.) The court beld an alleged custom to be bad for all the inhabitants occupying lands in a district to enter a close and take therefrom reasonable quantities of sand, which had drifted thereupon, for the purpose of manuring their lands. The reason was, that the drifted sand had become part of the soil, so that the claim was to take a profit in alieno solo. (Blewitt v. Tregonning, 3 Ad. & Ell. 554, cited in Race v. Ward, 4 Ell. & Bl. 712.) To a declaration for breaking and entering the plaintiff's close and Profit à taking his fish, a custom pleaded for all the inhabitants of a parish prendre. to angle and catch fish in the locus in quo was held to be bad, as this was a profit à prendre, and might lead to the destruction of the subject matter to which the alleged custom applied. (Bland v. Lipscombe, 4 Ell. & Bl. 713, n.) The liberty of fowling has been decided to be a profit à prendre. (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; it is common of fishing. (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, or for his life, it would amount only to a mere personal licence of pleasure, to be exercised by the individual licensee. But in the case of a grant 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. (Per Parke, B., Wickham v. Hawker, 7 Mees. & W. 78, 79. The 1st section requires in the case of a right of common or a Proof of enprofit à prendre, enjoyment " without interruption for the full period joyment. 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, post, p. 16.) This period of thirty years means next before the commencement of the action. (See post, s. 4, and note, p. 13.) Before the passing of this act, a prescriptive claim was a claim of immemorial right; the evidence in support of it was such as a party might be able to give in such a case; and the jury were to draw their inference from such proof as could be produced. Now the burden of establishing an 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. (See 8 Ad. & Ell. 167.) The plaintiff prescribed under 2 & 3 Will. 4, c. 71, first for a right of pasture thirty years next before the commencement of the action; and, secondly, for a right of simply turning on cattle for twenty years. No evidence was given of acts of depasturing at a period commencing more than thirty years before the commencement of the suit; but that more than twenty-eight years before the suit (in 1809) a rail was erected, so as to prevent the enjoyment of pasture, and that 2 & 3 Will. 4, afterwards, the rail having been removed, the plaintiff depastured for c. 71, s. 1. twenty-eight years; it was held, that the defendant was not bound to Plea under the statute. prove that the rail was erected adversely to the plaintiff's right, but that the onus lay on the plaintiff to prove affirmatively his actual enjoyment of pasture for thirty years, and that no presumption could be admitted in his favour on proof of enjoyment for a less period. (Bailey v. Appleyard, 8 Ad. & Ell. 161, and note explanatory of case, ib. p. 1; 3 Nev. & Per. 257, note on case; 2 P. & Dav. 1; 2 Jurist, 872.) Also 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, and of which no evidence was given. (Ib.) Littledale, J., said it is clear that on the first issue no sufficient proof was given under stat. 2 & 3 Will. 4, c. 71, s. 1. If the claim had been made by virtue of immemorial user, or of a non-existing grant, as was done before the statute, twenty-eight years' enjoyment would have been some evidence; but the late act, while it dispenses with the necessity of setting up such user or grant, and limits proof to a thirty years' enjoyment, requires that that enjoyment shall be proved to the full extent. Here the twenty years' enjoyment was proved in respect of a right, which by the statute requires thirty years to confirm it; that is, the right of pasture. The plaintiff, therefore, was not entitled to recover. (Bailey v. Appleyard, 8 Ad. & Ell. 165, 166.) Under stat. 2 & 3 Will. 4, c. 71, sects. 1, 4 and 7, 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. The defendant pleaded, generally, that he had enjoyed as of right for thirty years next before the commencement of the action; the plaintiff replied that a life estate was outstanding for twenty-seven of the said thirty years; the defendant rejoined that such estate did not continue during any part of the said thirty years: and issue was thereupon joined. The defendant proved enjoyment during two periods, amounting together to thirty years; one period before and one after the life estate. It was held, that the defendant's issue was proved, and that as the plaintiff had replied and set up a tenancy for life he excluded the term of such tenancy, and drove the defendant to show thirty years' enjoyment, either wholly before the tenancy for life if it had still subsisted, or partly before and partly after, whereas in this case it had determined. Evidence that during the alleged enjoyment the estates over which, and in right of which, it has been exercised, were held by the same person, disproves enjoyment as of right: the fact, therefore, need not be specially pleaded, but may be proved under a mere traverse of the enjoyment. (Clayton v. Corby, 2 Q. B. 813.) If the statute be relied on, it ought to be pleaded. (Welcome v. Upton, 6 Mees. & W. 401.) The first section of the statute enacts that no claim to right of common, which shall have been actually enjoyed by any person claiming right thereto, shall be defeated by showing only that it was first taken at some prior time. The 4th section enacts, that the thirty years shall be deemed and taken to be the period next before some suit or action wherein the claim shall be brought into question. The 5th section enacts, that in all pleadings in trespass, it shall be sufficient to allege that enjoyment of common as of right by the occupiers of the tenement in respect whereof the same is claimed for, and during such of the periods mentioned in the act as may be applicable to the cases, and without claiming in the name of the owner of the fee, as is now usually done. Taking these |