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on the same principle, the limits of the right itself. This is the case with incorporeal hereditaments : concerning which it is held, that the terms of the supposed grant or reservation, whereto the title is ascribed, may be collected and ascertained from the manner in which the rights claimed have of late been exercised (a): for the probability is, that the antecedent corresponded with the recent enjoyment, and was commensurate with the privilege contracted for. Thus it has been resolved, that a right of way over a stranger's estate to a particular close does not justify the use of such way for the purpose of going to other lands adjoining (b): and again ; that a prescriptive right of way for carriages is no evidence of such right for all manner of cattle (c). So, with respect to rights of water and light, the party entitled cannot support a claim to appropriate larger quantities than what have previously been enjoyed (d) (1).
But long usage ascertains the nature and extent of the right, not only where the instrument of grant or reservation is presumed; but in those cases also where the original deed which creates the right is extant, but the right conferred by it is not precisely and accurately defined. Accordingly, in a modern case, where the proprietors of certain lands on the sea
(a) Per Lord Ellenborough, 14 279. See also 14 East, 339 ; 2 East, 340.
Brod. and Bing. 406. (b) 1 Rolle's Abr. 391. tit. Che (d) Bealey v. Shaw, 6 East, min private, l. 50; Laughton v. 208; Martin v. Goble, 1 Camp. Ward, Lutw. 43.
322; Chandler v. Thompson, 3 (c) Ballard v. Dyson, 1 Taunt. Camp. 80.
(1) Tyler v. Wilkinson, 4 Mason, 397.
coast, with a view to reclaim, and bring into cultivation, a large [*]space of sea-mud, which they alleged themselves to be entitled to, under grants of wreck from the crown, in the reigns of Henry 2. and Henry 8., ran an embankment across a small bay left almost dry at low water; and, for above thirty years afterwards, exercised, without opposition, an exclusive right to the soil of the bay; it was held, that this usage was evidence whence anterior usage might be presumed, and coupled with the general terms of the grant, served both to elucidate it, and to establish the right claimed (a).
The length of time which is necessary to substantiate the presumptive validity of titles, and the extinguishment of demands, is from circumstances susceptible of much variation. The species of property as real or personal,—the kind of security, whether more or less solemn,-the original circumstances of the transaction, as fair or fraudulent,—and the degree of inconvenience, which the neglect of the parties, if overlooked, would produce,-are the material points that in this respect principally affect the determination. Peculiarities personal to the claimants, or incident to particular cases, produce of course further variations. But, as a general rule, it may be laid down, that unmolested enjoyment of land or of an easement for twenty years will, prima facie, establish a right of ownership; and that the same length of forbearance, unaccounted for, will extinguish pecuniary demands.(1)
(a) Chad v. Tilsed, 2 Brod. and Bing. 403.
(1) Wells v. Washington's Admr. 6 Munf. 532.
[*]In this particular the provisions of the statute of limitations (21 Jac. 1. 16.) have been followed. By that statute writs of formedon and rights of entry are barred after a lapse of twenty years from the time when the rights of action and of entry first accrue. And in order to maintain an uniformity of decision on the subject of neglected rights generally, courts of law have adopted the same period as a convenient measure for determining the validity of rights not within the statute. But in so doing they regard non-claim for twenty years—not as a bar (a)—but as matter of evi
(a) In Holcroft v. Heel, i Bos. which the cause went off was an and Pul. 400, Eyre, C. J. is said to intimation from the Court, that, have held at N. P., that 20 years is the case went down to trial unmolested enjoyment of a market again upon the same faets, it operated as a bar to an action of would be left to the jury to find trespass, brought by the owner for the defendant, on the
presumpof a neighbouring market, for the tion of a grant, after the twenty disturbance: and in this opinion years' uninterrupted use : and that the other judges of the Court of they thought that such length of adC. B. are stated, in the report, to verse possession was evidence so have concurred. But on a subse- strong, that the Chief Justice ought quent occasion, in which Holcroft to have left it to the jury to find v. Heel was cited at the bar as an a grant of the market froin the authority for the position, that Crown. See 3 East, 298. It aptwenty years constituted a bar to pears, therefore, from this actions for the purpose of trying planation, that the case in questhe titles to franchises, Le Blanc, J. tion does not militate with other who had been of counsel in that authorities, which, under the circase, said, that the true ground on cumstances adverted to in the
Todd, 10 Serg. & Rawle, 63. Kingston v. Lesley, 10 Serg. & Rawle, 383. Miller v. Bates, 3 Serg. & Rawle, 493. But this must be exclusive of the period of plaintiff's disability. Dunlop et al. v. Ball, 2 Cranch, 180. Held, that a bond may be presumed satisfied after 18 or 20 years.
Clark v. Hopkins, 7 John. 556. See Jackson v. Harder, 4 John. 202. Blight's lessce v. Rochester, 7 Wheat. 535. Gouldhawk's ear's. v. Duane, 2 Wash. C. C. R. 323.
dence,[*] affording, according to circumstances, the presumption of a grant, release, agreement, or satisfaction. Courts of equiry, on the common principle of following the law, observe a similar rule. Formerly, it is true, the judges in these courts were careful to refrain from mentioning any precise time as a guide for their determination in reference to old claims; and lapse of time, when relied upon, amounted in general to a very considerable period. But now the statutory limit, except on special occasions, is never exceeded. It would be preposterous, said Lord Camden, for equity,—which by its own proper authority always entertained a limitation,—to countenance laches beyond the period that law has been confined to by Parliament.(a)
To prevent misconstruction, it should be remarked, that, though in all cases where non-claim forms the
text, regard enjoyment for twenty thought there must be some misyears as furnishing a presumption take in what had passed at the of right only.
trial; for though length of time In a prior case (Darwin v. was certainly a presumptive bar, Upton, 2 Saund. by Serjt. Wms. which ought to go to a jury, it n. 175. b. &c.), where Gould, J. at was impossible to hold it N. P. held that twenty years' pos- absolute bar, like a statute of session of lights, unanswered, was limitations. And Buller, J. comsufficient evidence of right; and it menting, in the same case, on Mr. was insisted, in support of a rule Justice Gould's use of the word for a new trial, that the learned right, said, the expression was open judge had called the twenty years' to a double construction : it was possession an absolute bar, in- properly used if intended to mean capable of being opposed by evi- a presumptive bar; but improdence, while, in point of fact, it perly, if to signify an absolute bar, was merely presumptive proof, (a) In Smith v. Clay, 3 Bro. which might be explained away ; C. C. 639. n. Lord Mansfield, C. J. said, he
only ground of defence, it must, to avail, be of at least twenty years' continuance; delay for a shorter periud, coupled with other circumstances, will often be equally fatal to the claimant's demand. (b)(1)
[*]The manner in which presumptions founded on lapse of time may be rebutted, occurs in the next place for consideration. But upon this head, a few general rules only—the topics most commonly depended on-can be offered. For, as we have before had occasion to observe, circumstances peculiar to each individual case almost universally constitute the principal ground of resistance. (2)
First, however, it may be noticed, that in some instances the allegation of title is capable of being disproved by reference simply to the nature of the property in dispute, or the mode in which the asserted right has been exercised. Tithes, when claimed on the sole ground of long non-payment, furnish an example of this kind. The retention, which is unlawful in its commencement, continues unlawful, in estimation of law, however often repeated; and all tithes being originally church property, and still held quasi church property, in whosesoever hands they reside,
(6) See 4 Burr. 1963; Lofft. 320; 1 T. R. 271; 6 East. 215 ; 2 Camp. 29.
(1) Vide Rowell v. Montville, 4 Greenl. 270. Tciler v. Lorillard, 10 Johns. 338. Winstanley v. Savage, 2 M'Cord, 439. Adverse possession for twenty years by several successive persons in order to bár an entry must be continued by a regular chain of priority between them. Jackson v. Leonard, 9 Cowen, 653.
(2) Nelson v. Carrington, 4 Munf. 332. Helms v. Howard, 2 Har. & McHenry, 77. Eustace v. Gaskins, 1 Wash. R. 188. Miller et al v. The Resolution, 1 Dall. 22. Livingston v. Livingston, 4. Johns. Ch. 287. Lessee of Delancey, v. McKcan, 1 Wash. C. C. 354.