in possession to allow or prevent the premises from being so used (a). Another ground which would in all probability repel the presumption, is legal disability in the proprietor of the soil, as from infancy, coverture, absence beyond sea, &c.; in which cases, the usage may fairly be attributed to united encroachment and misapprehension. The putting up of a gate, bar, or chain, or any other like significant act manifesting intention in the landowner to confine the use of the road to particular individuals, will also negative a claim by the public. And it is not necessary for this purpose, that the gate or bar should be constantly shut, or the chain be drawn across the way, so as always to intercept the progress of passengers. It is enough if that be done occasionally. Thus, "the Duke of Bedford preserves his right in Southampton-street, Covent-garden, by a bar placed across the street, which being shut at pleasure, shows the limited right of the public" (b). It has also been decided, that if a gate or bar erected to prevent a thoroughfare be afterwards knocked down or forcibly removed, and the land-owner takes no further step to exclude the public for several years, yet such apparent acquiescence will not support the allegation of a relinquishment; the opposite intention, so plainly demonstrated at first, furnishes a decisive answer to the claim of the public (c). (a) Wood v. Veal, supra. (b) Per Lord Kenyon, 11 East, 376, n. (c) Roberts v. Karr, 1 Camp. 262, n.; Lethbridge v. Winter, Ib. 263, n. In delivering judgment in the case of Hillary v. Waller (a), Lord Erskine, after noticing that the right to incorporeal hereditaments might be lost by long nonuser, asserted that the same principle applied more strongly to the case of public roads. He had heard, he said, a contrary doctrine, and the reason given was that there could not be the same presumption of a surrender. And that might be so, he proceeded, if the right were vested in the public by matter of record, for then the right would appear, while the surrender would not. But if it did not rest upon matter of record, and the public had not enjoyed, it was surely in such case proper to be left to the jury to presume, and was indeed almost conclusive, not that the right had been surrendered, but that it had never existed; and for this special reason, that one man might surrender, or for many reasons might not enjoy his right, but the probability was, as to the public, that some instance of enjoyment would be shown. The case was much stronger than that of a private road, where, for many years there has been no enjoyment; for here what one man might relinquish, another man might be disposed to assert. ⚫ These observations are undoubtedly weighty. But it should seem, that Lord Erskine must not be understood as intending to affirm, that the same length of disuse, which raises the presumption of the surrender of a private right of way, will prove destructive of a (a) See 12 Ves. 265. public right. The cases, in this particular, certainly are not parallel. Twenty years may justly enough be held to bind parties whose private rights only are affected; but the public have an interest in the suppression of nuisances, and therefore power to suppress them, though of much longer standing (a). And accordingly, in a late case, where there had been possession for twenty years of water in a public navigable river at a certain height, which river had not been used for the purpose of navigation for more than twenty years, it was held that such length of possession by no means conclusively established the claimant's title, and that, therefore, upon the river being afterwards widened and deepened for use, whereby the level of the water was lowered, the party was without remedy (b). In like manner, although a several and exclusive right of fishery may be prescribed for, yet it has been determined that such right cannot be claimed on the ground of presumption, because the privilege of fishing in arms of the sea and navigable rivers is a privilege common to all people, and does not admit of being abridged otherwise than by proof of a prescriptive title (c). But it must not be understood from these observations, that the claim to a common right of way is incapable of being repelled by evidence of a long exclusion of the public, though the way may possibly have been used within the time of living memory (a); but merely that so short a period as twenty years, unaccompanied by other circumstances, cannot be relied upon as competent to that end (a). (a) See Rex v. Montague, 4 Barn. and Cress. 597. CHAPTER XVIII. PRESUMPTIONS OF FACT CONTINUED. Of the presumptive Bar to Equities of Redemption. ON breach of the condition or proviso, which is contained in mortgage deeds for payment of the money lent, the estate of the mortgagee becomes absolute at law. To mitigate the severity of this rule, it was laid down as a maxim in our courts of equity at a very early period,-Once a mortgage always a mortgage; and it was resolved, that estates which had been pledged as securities for money, might be redeemed at any time on payment of the principal sums secured and interest, although the period originally fixed for payment had passed. But it is obvious, that a strict adherence to this rule of equity, unless it received some concurrent qualification, would produce effects as injurious as those which it was intended to prevent. If the power of redemption were under no circumstances limited in point of time, much litigation, and in some cases real injustice, would ensue. It is therefore now held, by analogy to the statute of limitations (a), that twenty years possession by a mortgagee, without account or acknowledgement of an existing right to redeem, forms a presumptive bar to the equity of the mortgagor (b). (a) 21 Jac. I. c. 16. (b) Pearson v. Pulley, 1 Cha. Ca. 102; Clapham v. Bowyer, 1 |