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to negative that supposition. For instance, the exercise of the right may be attributable to mistake, or be the effect of accident; in which cases, as the owners of the waste may either be ignorant of, or not suspect the encroachment to be wilful, no adequate cause exists to infer their acquiescence. Consistently with [*]this it has been held, that a claim to rights of common could not be sustained, where it appeared that the enjoyment was plainly an act of encroachment, and arose either pur cause de vicinage, or in consequence of the boundaries of two contiguous commons being ill defined(a).

It remains to notice, that by long non-user (for twenty years for example) a claim to rights of common will be determined, unless there are circumstances which account for the non-user; the same reasons, which in the case of uninterrupted enjoyment induce the presumption of a grant, operating in this instance to support the presumption of a release (b). But it should seem that the commoner will not be precluded from prosecuting his title in a real action, until after the lapse of sixty years (the limit fixed by the statute: 32 Hen. VIII, c. 2,) from the last known exercise of the asserted right (1).

VI. As to Markets. The right of holding markets

(a) Dawson v. Duke of Nor- per Littledale, J. 3 Barn. and folk, 1 Price, 246. Cress. 339.

(b) 5 Vin. Abr 16, pl. 3; and

(1) Denton v. Jackson, 2 Johns. Ch. 320.

is a franchise derived from the crown in exercise of the royal prerogative. It is in general conferred with much circumspection, the usual course being to ascertain previously by a legal process (the writ of ad quod damnum), that the new market is not like

to prejudice other markets in the neighbourhood. If this previous step be omitted, or cannot [*]be proved, the circumstance last mentioned is a condition on which the validity of the grant depends, as otherwise the law will suppose that the king was deceived in making it (a).

Where a person suo arbitrio sets up a market, an information may be filed against him by the Attorney General; and if the usurped privilege prove injurious to a neighbouring fair or market, he commits a nuisance which the owner of such fair or market may remove by an action on the case for a disturbance. If, however, the parties interested in preventing the usurpation lie by for the space of twenty years or upwards, that acquiescence unaccounted for will preclude relief. The courts will then presume, that the franchise was lawfully acquired by grant from the crown(b).

But we should not be warranted in concluding, that after enjoyment for the period of time above specified, the presumption of a grant would be made in the face of circumstances which would account for the acquiescence of the owner of a neighbouring mar

(a) 2 Inst. 406; 3 Lev. 223. (6) Holdcroft v. Heel, 1 Bos. and Pull. 400; per Le Blanc, J.

3 East, 298; and per Lord Ellenborough, C. J. 11 East, 491.

ket. Although no case has yet been determined in which the right claimed on the mere ground of enjoyment has been negatived, it is not unreasonable to suppose, that if the party aggrieved by the erection of the new market were under personal disability at the time of such erection, the usual period would be allowed him [*]after the termination of the disability for resisting the usurpation.

VII. As to Tolls. The right to exact tolls, which is another franchise derived from the crown, may likewise, on evidence of long and undisputed enjoyment, be presumed to have originated in a grant a). But the antiquity of the usage must be very great to warrant this supposition, as in the only cases which have arisen on this subject the tolls claimed had been received for centuries. To prevent misconception, however, it is proper to remark, that the right to the tolls in those cases was not founded in prescription; for in both a time was shown when it was clear they were not paid. The validity of the demand was ascribed in each, and in the Mayor of Hull v. Horner in distinct and express terms, to the presumption of a grant from the crown.

It may not be irrelevant while we are upon this subject to mention the case of Lord Pelham v. Pickersgill (b), the decision in which case strongly shows the inclination of the courts to give every possible support to long enjoyment. But first we should observe, that toll for passing over a highway cannot be

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(a) Rex v. Carpenter, 2 Show. Cowp. 102. 47; Mayor of Hull v. Horner, (b) 1 T. R. 660.

claimed, whether under a grant or by prescription, unless it be founded in some valuable consideration, as the repair of roads, &c.(a); because the subject would otherwise be deprived of his common right to pass along the king's [*]highway,—a right which subsisted before all prescriptions. In the case adverted to, the plaintiff claimed toll of persons using a certain highway; and in proof of his claim produced evidence, that the liberty of passing over the soil and the taking of toll for such passage were both immemorial, and that the land and the tolls, though then severed, were before the time of legal memory in the same hands. The court, on a special verdict, gave judgment for the plaintiff. It should be presumed, they said, that the soil was originally granted to the public in consideration of the tolls, which would be a good and sufficient ground to justify the demand (b).

VIII. As to Lights. The right to lights or windows overlooking another person's land, is a privilege which, though generally obtained by purchase, originates not unfrequently either in a temporary permission by the adjoining landowner, or in the mere usurpation of the party. In both these cases, unless perhaps the permission in the former has been lately acknowledged, the effect of long unmolested possession is, to confer a legal title to the supply of light. It has accordingly been held in a numerous series of adjudications, that enjoyment of lights for twenty

Wils. 299.

(a) Truman v. Walgham, 2 3 Lev. 424; Colton v. Smith, Cowp. 47; Rickards v. Bennett, (b) See also Crispe v. Belwood, .1 Barn. and Cress. 223

years affords presumptive evidence of an agreement,

licence, or grant (a)(1).

(a) Lewis v. Price, 2 Saund. by Serj. Wms. n. 175 a; 1 Vin. Sup. 162; Dougal v. Wilson, 2 Saund. by Serj. Wms. n. 175; Darwin v. Upton, ib. 175 a and b. See also 3 Barn. and Cress. 335, et seq.

But although twenty years' possession of lights affords prima facie evidence of a permanent right, yet the right thus attested is not by necessary consequence absolute and unqualified in its degree. On the contrary, it is held to be limited to, and determined by, the extent and manner of the usage: so that any attempt to increase the measure or benefit of the easement, by enlarging, for example, the space admitting light,-may, as a new and distinct act of encroachment, be successfully resisted (Chandler v. Thompson, 3 Camp. 80. See also per Wilmot, C. J. in Dougal v. Wilson, 2 Saund. n. 175.) In like manner, an alteration which serves to improve the quality of the light before enjoyed cannot be justified. And therefore in a case, where a building between thirty and forty years old, formerly used for preparing malt, was converted into a parish workhouse; and then the owner of the adjoining land raised

of

a fence, which in a considerable measure deprived the house of the benefit of light and air, though the supply was still as great as when it had been used for the purpose making malt; Sir A. Macdonald, C. B., before whom the trial of an action for the obstruction took place, said,-It was not enough that the windows were to a certain degree darkened by the wall which the defendant had built. The house was entitled to the degree of light necessary for a malthouse, not for a dwelling-house. The converting it from the one into the other could not affect the rights of the owners of the adjoining ground. No man could by any act of his suddenly impose a new upon his neighbour. The house in question had for twenty years enjoyed light sufficient for a malt-house, and up to this extent, but no further, the plaintiffs could still require that light should be admitted to it. The question therefore was, whether, if it still remained in the condition of a malt-house, a proper degree of light for the purpose of making malt was prevented from entering it, by the wall which the defendant had erected. In conformity with this opinion a verdict

restriction

(1) Reed v. Goodyear, 17 Serg. & Rawle, 353.

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