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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, i Price, 246.
Cress. 339. (6) 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 likely 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
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(6)
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. 3 East, 298 ; and per Lord Ellen
(6) Holdcroft v. Heel, i Bos. borough, C. J. 11 East, 491, and Pull. 400 ; per Le Blanc, J.
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
(a) Rex v. Carpenter, 2 Show. Cowp. 102. 47; Mayor of Hull v. Horner, (b) i 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
(a) Truman v. Walgham, 2 3 Lev. 424 ; Colton v. Smith, Wils. 299.
Cowp. 47 ; Rickards v. Bennett, (6) 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 a fence, which in a considerable Serj. Wms. n. 175 a; 1 Vin. Sup. measure deprived the house of the 162; Dougal v. Wilson, 2 Saund. benefit of light and air, though the by Serj. Wms. n. 175 ; Darwin supply was still as great as when v. Upton, ib. 175 a and b. See it had been used for the purpose of also 3 Barn. and Cress. 335, et making malt; Sir A. Macdonald, seg.
C. B., before whom the trial of an But although twenty years' pos. action for the obstruction took session of lights affords prima place, said,- It was not enough facie evidence of a permanent right, that the windows were to a ceryet the right thus attested is not tain degree darkened by the wall by necessary consequence abso- which the defendant had built. lute and unqualified in its degree. The house was entitled to the de. On the contrary, it is held to be gree of light necessary for a maltlimited to, and determined by, the house, not for å dwelling-house. extent and manner of the usage: The converting it from the one in80 that any attempt to increase the to the other could not affect the measure or benefit of the ease- rights of the owners of the adjoinment, —by enlarging, for example, ing ground. No man could by any the space. admitting light,-may, act of his suddenly impose a new as a new and distinct act of en- restriction
his neighbour. croachment, be successfully resist- The house in question had for ed (Chandler v. Thompson, 3 twenty years enjoyed light suffiCamp. 80. See also per Wilmot, cient for a malt-house, and up to C. J. in Dougal v. Wilson, 2 this extent, but no further, the Saund. n. 175.) In like manner, plaintiffs could still require that an alteration which serves to im- light should be admitted to it. prove the quality of the light be- The question therefore was, whefore enjoyed cannot be justified. ther, if it still remained in the And therefore in a case, where a condition of a malt-house, a proper building between thirty and forty degree of light for the purpose of years old, formerly used for pre- making malt was prevented from paring malt, was converted into entering it, by the wall which the a parish workhouse; and then the defendant had erected. In conowner of the adjoining land raised formity with this opinion a verdict
(1) Reed v. Goodyear, 17 Serg. & Rawle, 353.