2 & 3 Will. 4, joyment by leave and licence, or any other circumstances which nec. 71, s. 5. gative that it was an user or enjoyment under a claim of right; the

What receivable in evidence.

words of the 5th section not being inconsistent with the simple fact of enjoyment, being referable, as we understand the statute, to the fact of enjoyment as before stated in the act, viz. an enjoyment claimed and exercised as of right." In Onley v. Gardiner, (4 Mees. & W. 494,) it was decided, that unity of possession was "inconsistent with the simple fact of enjoyment as of right," and therefore need not be specially pleaded. The simple fact of enjoyment referred to in the 5th section is an enjoyment "as of right," and proof that there was an occasional unity of possession is as much in denial of that allegation, as the occasionally asking permission would be.

In Clayton v. Corby, 2 Q. B. 813, it was held, that evidence of unity of possession was receivable under the traverse of a plea of enjoyment for sixty years, inasmuch as such proof went to show that the enjoyment was not as of right. (See Pye v. Mumford, 5 Dowl. & L. 414, post, p. 23.)

In trespass quare clausum fregit, to a plea of enjoyment of a right of way over the plaintiff's close, by the occupiers of a close called W. for twenty years next before the commencement of the suit, under the stat. 2 & 3 Will. 4, c. 71, s. 2, the plaintiff replied that, before the period of twenty years mentioned in the plea, one W. C. was seised in fee, as well of the close mentioned in the declaration as of the close called W., and continued so seised during part of the said period of twenty years, to wit, until, &c., when he died so seised, it was held bad on special demurrer; for that unity of seisin was not inconsistent with the right as alleged in the plea, and unity of possession (if that were meant by the replication) might have been given in evidence under a traverse of the right as alleged in the plea. (England v. Wall, 10 Mees. & W. 699.)

In trespass, upon issued joined, whether the defendant had for thirty years enjoyed as of right a certain privilege, &c., upon the plaintiff's land, the plaintiff, in order to raise the presumption that the enjoyment was permissive, may give in evidence an old lease made to the defendant's predecessor, and expiring immediately before the commencement of the thirty years, whereby the lessee was entitled to the privilege, &c., during the term. It is not necessary in such a case for the plaintiff to reply the lease specially under 2 & 3 Will. 4, c. 71, s. 5. (Clay v. Thackrah or Thackeray, 2 M. & Rob. 244; 9 Carr. & P. 47; ante, p. 7.) In an action of trespass quare clausum fregit, it was also held, that this unity of possession need not be specially replied; and that, without a special replication under the 2 & 3 Will. 4, c. 71, s. 5, the lease of the land to B., and letters written by B. while lessee of the mill, and before he became lessee of the land, were receivable in evidence. (Ib.) And it was held, that B.'s lease of the land having expired more than thirty years ago, the acts of the occupiers of the mill in repairing the banks ever since that time, without any leave asked by them, or any notice from the other side of any adverse claim, must be taken to be done as of right. (Ib.) The plea under 2 & 3 Will. 4, c. 71, was of a right of way for the occupiers of a close for twenty years, for horses, carts, waggons, and carriages, at their free will and pleasure. The replication traversed such right. It was held that, under the issue, the plaintiff might show that the defendant had a right of way for horses, carts, waggons, and carriages, for certain purposes only, and not for all, and was not compelled to new assign; and might show that the purpose for which the defendant had used the road, and in respect of which the action was brought, was not one of those to which the right extended. (Cowling v. Higginson, 4 Mees. & W. 245.).

The latter part of the 5th section, in express terms, applies only

to rights which can be claimed by the occupiers of a tenement in 2&3 Will. 4, respect of it, which, it has been contended, is confined to a claim ap- c. 71, s. 5. pendant or appurtenant, and does not apply to a right in gross, as a Whether right to take the whole pasturage in gross. (See 5 Mees. & W. 402; common in 6 Mees. & W. 540; 7 Mees. & W. 81.) It is questionable whether gross within a right of common in gross be within the stat. 2 & 3 Will. 4, c. 71. act. Parke, B., said, "If the only question had been whether a right of common in gross be within the stat. 2 & 3 Will. 4, c. 71, s. 5, we should probably have granted a rule for the purpose of giving that question further consideration, although we might be disposed to think that the present case is within the equity of the statute." (Welcome v. Upton, 6 Mees. & W. 542. See S. C. 5 Mees. & W. 404.)

In cases of prescription, the allegation must be proved as laid. Proof of preThus, in replevin, if the defendant avow taking the cattle as damage scription. feasant, and the plaintiff plead in bar a right of common, and aver that the cattle were levant and couchant, on which averment issue is joined, proof only for part of the cattle will not be sufficient, for the issue is upon the whole. (2 Roll. Abr. 706; 5 Rep. 79; 4 Rep. 29 b; 1 Campb. 313. See 2 H. Bl. 224.) But though a party must prove a prescriptive right commensurate with the right claimed, he will not be precluded from recovering, because he proves a more ample right than what he claims. Evidence of a right of common for sheep and cows will support a plea prescribing for common only for sheep. (Cro. Eliz. 722; 1 Taunt. 142; West v. Andrews, 1 B. & Cr. 77.) A party may prescribe for less than he proves, but that implies that the lesser right claimed is included in the greater. (Bailey v. Appleyard, 8 Ad. & Ell. 167.) Where a plaintiff claimed a right of common for all his commonable cattle, and the proof was that he had turned on all cattle that he kept, but he had never kept any sheep; it was held, that such evidence of a right for all commonable cattle ought to have been left to the consideration of the jury. (Manifold v. Pennington, 4 B. & Cr. 161.) Where in debt, for not setting out tithe of hay, plaintiff averred that there was a certain annual custom as to setting out the tithe "within the parish, and the limits, bounds and tithable places thereof;" it was held, that such averment was proved, for that the custom prevailed in all parts of the parish where tithe of hay was set out, and that proof of a modus for hay in one township made no difference. (Pigott v. Bayley, 6 B. & Cr. 16.) Where a plaintiff claimed an easement of hanging linen across a yard for drying them larger than that proved, the court refused to allow the plaintiff to amend, on payment of costs, inasmuch as he was not thereby precluded from bringing another action, if he were interrupted in the enjoyment of the limited right. (Drewell v. Towler, 3 B. & Ad. 735.) The general rule of pleading in cases of tort is, that it is sufficient if part only of the allegation stated in the declaration be proved, provided that what is proved affords a ground for maintaining the action, supposing it to have been correctly stated as proved. There is an exception, however, to this rule, which is, where the allegation contains matter of description. There, if the proof given be different from the statement, the variance is fatal. (Ricketts v. Salway, 2 B. & Ald. 363. See Beadsworth v. Torkington, 1 Q. B. 782; Brunton v. Hall, Ib. 792.)

2&3 Will. 4,

c. 71, s. 6.

Restricting

tion to be

allowed in support of

VI. LESS PERIOD NOT TO BE ALLOWED.

VI. That in the several cases mentioned in and prothe presump- vided for by this act, no presumption shall be allowed or made in favour or support of any claim, upon proof of the claims herein exercise or enjoyment of the right or matter claimed for provided for. any less period of time or number of years than for any such period or number mentioned in this act as may be applicable to the case and to the nature of the claim (1).

(1) This section forbids a presumption in favour of a claim to be drawn from a less period of enjoyment than that prescribed by the statute. (Bright v. Walker, 1 Cr. M. & Rosc. 222; ante, pp. 8-10.)

The "interruption" which defeats a prescriptive right, under stat. 2 & 3 Will. 4, c. 71, is an adverse obstruction, not a mere discontinuance of user by the claimant himself. In a case under the 1st section, if proof be given of a right enjoyment at the time of action brought, and thirty years before, but disused during any part of the intermediate time, it is always a question for the jury whether at that time the right had ceased or was still substantially enjoyed. The inference to be drawn from the facts proved, on this point, is not a presumption within the 6th section. Where a commoner had ceased to use the common during two years of the thirty, having no commonable cattle at the time, but had used it before and after: it was held, that a jury were justified in finding a continued enjoyment of the right during thirty years. (Carr v. Foster, 3 Q. B. 581; 2 Gale & D. 753. See Hall v. Swift, 4 Bing. N. C. 381.)

Parke, B., observed, "There is some difficulty in reconciling the two decisions of Carr v. Foster, and Parker v. Mitchell, ante, p. 10, although that may perhaps be effected by observing a distinction between enjoyment at the commencement and termination of the periods, and during the intermediate time. If, on the other hand, the two decisions are to be considered as irreconcilable, I think the more correct view is this, that no right can be obtained, unless an user be proved of the easement at least once a year during the prescribed period." (Lowe v. Carpenter, 6 Exch. 831.)

Proviso for persons under disabilities.

VII. DISABILITIES.

VII. Provided also, That the time during which any person otherwise capable of resisting any claim to any of the matters before mentioned shall have been or shall be an infant, idiot, non compos mentis, feme covert, or tenant for life, or during which any action or suit shall have been pending, and which shall have been diligently prosecuted, until abated by the death of any party or parties thereto, shall be excluded in the computation of the periods hereinbefore mentioned, except only in cases where the right or claim is hereby declared to be absolute and indefeasible (m).

(m) It is the intention of the act, that an enjoyment of thirty years, or twenty years, shall be of no avail against an idiot or other person labouring under incapacity, but that one of sixty or forty years shall

confer an absolute title, even against parties under disabilities. (See 2&3 Will. 4, Wright v. Williams, 1 Tyr. & Gr. 392; 1 Mees. & W. 77.) This c. 71, s. 7. section, it is to be observed, in express terms excludes the time that the person (who is capable of resisting the claim) is tenant for life. During the period of a tenancy for life, the exercise of an easement will not affect the fee, in order to do that there must be that period of enjoyment against an owner of the fee. (Bright v. Walker, 1 Cr. M. & R. 222; ante, pp. 8-10.) 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.

Where to trespass quare clausum fregit the defendant pleaded thirty years' enjoyment of a right on the land in which, &c., under the 2 & 3 Will. 4, c. 71, s. 1, the plaintiff, if he relies on the fact, that during part of those thirty years the land had been held by a tenant for life, or any other matter of fact not inconsistent with the simple fact of enjoyment, should reply it specially, and not traverse the enjoyment as pleaded. (Pye v. Mumford, 5 Dowl. & L. 414; 17 Law J., Q. B., 138; 12 Jur. 578.)

In case for the diversion of water the plaintiff alleged in his declaration a reversionary interest in three closes of land, to wit, three pond's filled with water, one pond being upon each of the said closes, and a right to the flow of the water into the said closes, for supplying the said ponds in the said closes with water for the watering of cattle. The defendant traversed the right to the flow of the water as alleged. It appeared in evidence at the trial, that the plaintiff had enjoyed an immemorial right to the flow of this water into an ancient pond in one of his closes, but that above thirty years ago he made a new pond in each of the three closes, and turned the water so as to supply them, and thenceforth disused the old pond, which was gradually filled with rubbish and overgrown with grass. The plaintiff's right in respect of the three ponds having been defeated by proof of an outstanding life estate, under 2 & 3 Will. 4, c. 71, s. 7, it was held, that he was entitled, under this declaration, to recover in respect of his right to the flow of water to the old pond. (Hale v. Oldroyd, 14 Mees. & W. 789.)

cluded in

VIII. TIME EXCLUDED FROM FORTY YEARS. VIII. Provided always, and be it further enacted, What time That when any land or water upon, over, or from which to be exany such way or other convenient watercourse or use of computing water shall have been or shall be enjoyed or derived, hath the term of been or shall be held under or by virtue of any term of appointed by life, or any term of years exceeding three years from the granting thereof, the time of the enjoyment of any such

forty years

this act.

2&3 Will. 4, way or other matter as herein last before mentioned, c. 71, s. 8. during the continuance of such term, shall be excluded

Replication

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 (n).

(n) According to the 7th section a tenancy for life is included in the period of forty years, the 8th section only takes it out on condition that the reversioner shall bring his action within three years after its determination; an user of forty years confers a primú facie title, which is good, unless the reversioner pursues his remedy within the three years. (Wright v. Williams, 1 Tyr. & G. 393; 1 Mees. & W. 77.) 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 Mees. & W. 500.)

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 from the computation of forty years' enjoyment, but not from the computation of an enjoyment for twenty years. (Palk v. Shinner, 18 Q. B. 568.) 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. (Per Erle, J., Ib. 575.)

Where a replication to a plea of enjoyment of an easement for of life estate. forty years, under the 2 & 3 Will. 4, c. 71, sets up a life estate in order to bring the case within the 8th section of the act, it must show that the plaintiff is the party entitled to the reversion expectant upon such life estate. In an action on the case for an injury alleged to be done to the interest of the plaintiff's reversion in certain closes of land by turning water into a channel running through the plaintiff's lands, after such water had been used by the defendant on his own land, in precipitating minerals, and become so impregnated as to be extremely injurious to the plaintiff's estate; the defendant pleaded an user for forty years "before the commencement of the suit." The replication set forth, that Rice Thomas was seised in his demesne as of fee of the several closes over which the watercourse passed, and that by certain indentures of lease and release therein stated, his interest was conveyed to trustees for the uses therein mentioned, and one of which was to the use of Rice Thomas for life, with a power to Rice Thomas, whilst so seised of the freehold for his life, to grant leases upon certain conditions therein named, by indenture; that Rice Thomas, by virtue of this settlement, did become seised of the freehold for his life; and that whilst he was so seised, by virtue of the power therein contained, he did, by indenture duly made between himself of the one part, and Edward Hughes and Thomas Williams of the other part, enfeoff the said Hughes and Williams of the said closes for and during the term of the lives of William Lewis Hughes, now Lord Dinorben, Owen Williams and John Davies, and the longest liver of them; and the replication concluded by stating, that Lord Dinorben, one of the lives, was still in being. It was said by the court, "the enjoyment of the right during forty years alleged in the pleas, being admitted, the replications, which state only an existing tenancy for life, are no answer; for the time of a tenancy for life in a person who might otherwise be capable of resisting the claim, though