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neighbor's soil is of a similar nature, joyment at the commencement of the

and can only be gained by grant, either
actual, or presumed from open enjoy-
ment for at least twenty years. (3 M.
& W., 220.)

A claim by prescription was liable to
be defeated, as has been seen, by evi-
dence of non-existence, at any time,
however remote, if within the period of
legal memory; and the modern remedy
for this inconvenience, by presuming a
grant of moderate antiquity, was not
considered to be satisfactory in princi-
ple, and was uncertain and inconvenient
in practice. (See 5 Nev. & M., 313.)
To supply the imperfection of the law,
Lord Tenterden's "Act for shortening
the time of Prescription in certain cases'
(2 & 3 Will. IV., c. 71) was passed. It
applies to rights of common (5 M. & W.,
298; 6 Id., 542; 7 Id., 63), or other
profit or benefit (as distinguished from
easements, ante, p. 32, n. (30)), claimed
by custom, prescription, or grant, to be
exercised in alieno solo; to "any way
or other easement, water-course (1 M.
& W., 77), or use of any water;" and
to "the access and use of light to or for
any building;" but with a difference as
to each of these three classes of rights.
Tithes, rents, and services are excepted
from the operation of the statute.

As to rights of common and other
profits à prendre, the effect of proof of
enjoyment as of right, and without in-
terruption (as distinguished from mere
intermission of user, 1 M. & Rob., 382;
6 Jurist, 837; and see 6 Scott, 167; 6
M. & W., 540) for thirty years, in sup-
port of a claim which may lawfully be
made at the common law, by custom,
prescription, or grant,* is not to be de-
feated by showing the commencement
of the enjoyment at any time prior to
the thirty years, though it may be de-
feated in any other way in which, at the
common law, such a claim might have
been defeated. Thus it may be defeat-
ed by showing that the enjoyment for
thirty years was by parol license, cover-
ing the whole time; for that, at common
law, would have rebutted the presump-
tion of a grant. (6 Nev. & M., 239.)
Such a license must be specially replied
to a plea of prescription under the act
(Ib.); although occasional licenses, or a
general license not covering the whole
time, being inconsistent with a continu-
ous enjoyment as of right, may be given
in evidence under a general traverse of
the enjoyment. (Ib.; 1 C., M. & R.,
614; 3 Scott, 262.) Again, if the en-

period was by special authority (as under an act of Parliament), which ex pired during the period, and the enjoy ment for the rest of the period was adverse; these facts, not being incon sistent with a continuous enjoyment as of right during the whole period, can not be evidence in a traverse of the enjoyment; although, if specially replied, they would show that the claim could not be supported as a claim by "custom, prescription, or non-existing grant." (6 M. & W., 805.)

But the time during which any per son otherwise capable of resisting such claim shall have been infant, non compos, feme covert, or tenant for life, or during which any action shall have been pending, and diligently prosecuted until abated by death, is to be excluded in the computation of the thirty years.

Upon proof of such enjoyment for sixty years (without regarding any disabil ity), the right is to be deemed absolute and indefeasible by any means, except by showing its origin by some express consent or agreement in writing; that is to say, by showing its origin under such an agreement prior to the commencement of the period of sixty years; for an enjoyment even by parol agreement within the period is not such an enjoy ment as of right as the act requires. (6 Nev. & M., 230.)

The periods of thirty and sixty years are to be deemed and taken to be the periods next before some suit or action wherein the claim or matter shall have been or shall be brought in question. (As to the meaning of which words, see 11 Ad. & El., 788; 7 M. & W., 536; 2 Gale & D., 181.) It seems, that unless the claimant's title has been established in some previous action, there must be direct evidence of enjoyment within the year preceding the commencement of the action in which his title is disputed, and not within the year preceding the act complained of. (3 Nev. & P., 75; 7 Ad. & El., 702, 707; 8 Cl. & Fin., 23.) But if there is such evidence, proof of enjoyment prior to the commencement of the period may be admitted as evidence of the state of things at the commencement of the period. (4 Ad. & E., 890.) Of course, an ancient right, founded on prescription, and derived by the present claimant by assignment from him with whose ancestors the prescription commenced, will not be defeated by evidence of modern in

* See 1 C., M. & R., 218; and in illustration, the observations on the Tithe Prescription Act, ante, p. 32, n. (29)

terruption for a period insufficient to to or for any building, during twenty The Pre confer an adverse title under the Statute years, without interruption, and not by scription of Limitations. (6 M. & W., 541.) virtue of any consent or agreement in Act

Nothing is to be deemed an interrup- writing, shall confer an absolute and intion, unless submitted to or acquiesced in defeasible right. (See 11 Ad. & E., 695.) for one year after notice to the party in- Lastly, it is enacted, that in the sevterrupted. So that an enjoyment for eral cases provided for by the act, no twenty-nine years and a fraction, fol- presumption founded on enjoyment for lowed by an interruption not asquiesced a shorter period than that applicable unin for a whole year, constitutes an en- der the act to the case in question, is to joyment for thirty years under the act be admitted. This proviso is, evident(8 Cl. & Fin., 231; 3 Per. & D., 442); ly, only a qualified exclusion of the comand if there be any series of interrup- mon law, which seems clearly, except tions, each for less than a year, the en- so far as these words control it, to be joyment will suffice, although it be taken still applicable, concurrently with the against the will of the owner, who en- statute, as well as to cases which are deavors to interrupt it. (Ib.) not affected by it. (See 6 Scott, 167; 1 C., M. & R., 222; 3 Nev. & P., 72; 4 M. & W., 496; 6 Id., 542.)

The principal difficulty in applying
this statute is to determine what is a
sufficient continuous enjoyment as of
right to satisfy it.
There must be an
enjoyment of the easement, &c., as such,
and as of right for such continuous peri-
od as is applicable to the particular case,
next before the commencement of the
suit. If the benefit has been enjoyed
openly for a year or two, and afterward
uniformly by permission asked on each
occasion; or if it has been enjoyed se-
cretly and by stealth (3 M. & W., 229)
for several years, and then openly, such
enjoyment does not count as an enjoy-
ment under the act. "The words as of
right can not be confined to an adverse
right from all time, as far as evidence
shows; for if they were so confined,
such enjoyment, once confessed, could

The same provisions apply to claims "which may lawfully be made at the common law, by custom, prescription, or grant,* to any way or other easement, or to any water-course, or the use of any water," to be enjoyed in solo alieno; except that the periods are respectively twenty and forty years. But there is a further provision, in respect of these rights only, that where the servient tenement has been held for any term, for life, or exceeding three years from the granting thereof, the time of enjoyment during the continuance of such term shall be excluded (see 2 Gale & D., 181) in the computation of the period of forty years, in case, within three years following the determination of the term, the claim shall be resisted by the reversioner. (1 M. & W., 100.) And this provision has been construed to apply also to the period of twenty years. (1 Cr., M. & R., 220; see 3 Scott, 264.) not be avoided by replying that it was It has been already observed, that the had by contract, which is not adverse. acquisition of a right to light stands upon Again, as the legal right to a way can a peculiar ground; and, accordingly, it not pass except by deed, it is plain that has been made the subject of a distinct the words can not be confined to enjoy. provision, containing no qualification or ment under a strict legal right, for then reference to the common law, it being a consent or agreement in writing not simply enacted, that the "actual enjoy- under seal (of which the second section ment" (whether as of right or not is im- speaks) could not account for such enmaterial) of the access and use of light joyment. The words, therefore, must

* Therefore, where the enjoyment not contemplate any enjoyment that during part of the period was under an would not give a title, as prescription act of Parliament, which ceased to apply, does, against all the world. The court and for the remainder of the period the seems to have forgotten that the words enjoyment was adverse, the claim was in the body of the act extend the meanheld not to be such as the act contem- ing of the word "prescription," in the plated (6 M. & W., 806); but in 1 Cr., title, to all claims that would be sup M. & R., 220, an enjoyment for twenty ported by custom, prescription, or inferyears against the lessee of a bishop, be- ence of non-existing grant (6 M. & W., ing (on account of the lease, see sect. 8) 806; see 5 Id., 203); and, besides, that insufficient to confer a right against the if the claim in question is not within the bishop, was held to confer no right act, it is then left as a question of preagainst the lessee; and one reason given sumption for the jury, at common law. was, that the act being made for short- (3 Nev. & P., 72.) ening the time of prescription," could

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have a wider sense, and yet they must till the 32d Hen. VIII., was not any cer-
have the same sense as the words 'claim- tain period before the commencement
ing right thereto' in the second section, of the suit, but dated from some histor
otherwise there will be incongruities in ical event fixed from time to time, as the
the construction of the act. It seems, beginning of the reign of Henry I., the
therefore, that the enjoyment as of return of King John out of Ireland, the
right' must mean an enjoyment had, coronation of King Richard I., &c. (First
not secretly, or by stealth, or by strict Real Prop. Rep., 51; Stat. Westm. 2d,
sufferance, or by permission asked from c. 46.) By the stat. 32 Hen. VIII, c.
time to time, on each occasion, or even 2, the time for bringing a writ of right
on many occasions of using it; but an on the seizin of an ancestor was limited
enjoyment had openly, notoriously, with- to sixty years from the commencement
out particular leave at the time, by a of the adverse possession; and for a
person claiming to use it without dan- sessory action on an ancestor's seizin
ger of being treated as a trespasser, a sa the time was fifty years. No person
matter of right, whether strictly legal, was to bring a real action, droitural or
by prescription and adverse user, or by possessory, on his own seizin, after thir-
deed conferring the right, or though not
strictly legal, yet lawful to the extent of
excusing a trespass, as by a consent or
agreement in writing not under seal, in
case of a plea of enjoyment for forty [or
sixty] years, or by such writing, or by
parol consent or agreement, contract, or
license, in case of a plea of enjoyment
for twenty [or thirty] years." (6 Nev.
& M., 238; see 1 C., M. & R., 219, 631;
3 Scott, 263; 4 M. & W., 500.)

Enjoyment under a parol license dur-
ing an entire year within the period
would, therefore, be an interruption to
the continuous enjoyment as of right, con-
templated by the act. Again, unity of
possession (of which unity of seizin is
primâ facie evidence) is admissible to
show that the enjoyment during any part
of the period (not being less than a year)
was not enjoyment of the easement, &c.,
as such. (4 M. & W., 496; 2 Gale &
D., 183; 10 M. & W., 699.) (It must
not be forgotten that unity of possession
of the dominant and servient tenements
does not necessarily do more than sus-
pend the easement; an absolute extin-
guishment can only be effected by unity
of seizin or title. 2 C., M. & R., 41.)
See further, on this subject, Gale & What-
ley on Easements, passim.

ty years; and real actions by remaindermen and reversioners, and avowries and conusances for rents and services, were limited to fifty years. This statute did not limit a right of entry, or an action of ejectment founded on such right; nor was the time for exercising such a right limited by the common law, otherwise than by the operation of a descent cast, discontinuance, or warranty. (See Vol. iii., p. 176, 191.) But the statute 21 Jac. I., c. 16, while it limited all writs of formedon (i. e., real actions by remainder-men, reversioners, or issue in tail) to twenty years, also provided that no person should make entry into any lands but within twenty years after his right of entry accrued, with a saving of the rights of persons under disabilities.

Actions in which it was unnecessary to allege any seizin, such as actions of dower, escheat, waste, &c.; the action of quare impedit, by which the right to an advowson is tried; and suits by lay impropriators for tithes, were not subject to any period of limitation. (First Real Prop. Rep., 39, 40.)

The statute of James I. and the previ ous statutes of limitation did not declare that adverse possession for any time should extinguish the title of the right ful owner, but merely limited his right Somewhat analogous to the creation of to recover by action or entry; and hence incorporeal rights by prescription is the the law of limitation has been treated as acquisition of a legal title to existing her- belonging "ad ordinationem litis," formeditaments by long enjoyment. At the ing a branch of the practice of the courts, common law, no length of adverse pos- rather than a substantive law of real session seems to have been sufficient to property. (See 2 Scott, 304; 5 Cl. & bar the rightful owner, unless the land Fin., 1.) Accordingly, the subject has was actually recovered from him in a hitherto found a place in the third book real action of a particular form, and he took no steps for reversing the judgment within a year and a day; but various statutes were successively passed for limiting the period for bringing a writ of right (formerly the ordinary mode of trying the title to real property), which,

of these Commentaries; but now that the recent statute has declared that lapse of time shall not only bar the forensic remedy, but also shall actually extin guish the right and title of the person out of possession (3 & 4 Will. IV., c. 27, s. 34),* the law of limitation of rights to

* There is no such provision in the Statute of Limitations of New York.

real property belongs more properly to the present division of the work.

The provisions of the statute are too numerous, and its construction in some respects is too difficult, to allow of more than a general outline of its operation being attempted in this place.

there were many ways in which a stran- Statute of
ger might have been in the actual en Limitations.
joyment of the land for his own benefit
without having disseized the true own.
er; and during such non-adverse pos-
session, the time of limitation under the
stat. of James I. did not run. (1 Salk.,
242; 1 Burr., 60; 10 B. & Cr., 816; 4
Nev. & M., 477.) But the distinction
has been abolished by the recent act,
which has done away with the doctrine
of non-adverse possession. (2 M. & W.,
911; 3 Nev. & P., 548.) This effect is
accomplished by the explanatory pro-
visions, of which I proceed to notice the
most important

Where the person claiming, or some
one through whom he claims, having
been in possession or in receipt of the
profits, shall have been dispossessed or
have discontinued such possession, the
right to enter is to be deemed to have
first accrued at the time of such dispos-
session or discontinuance. (Sect. 3; 4
Nev. & M., 664.)

Where the claim is made to the estate or interest of some person who died in possession or receipt of the profits, and was the last person who had such possession or receipt, the period is counted from his death. (Sect. 3.)

The greater part of its provisions are confined to claims to "land" and "rent," words which have a peculiar meaning throughout the act, the word “land" signifying manors, messuages, and all other corporeal hereditaments, and tithes (not belonging to a spiritual or eleemosynary corporation sole), and also any share, estate, or interest in them or any of them, whether of a freehold or chattel interest, and of whatever tenure; the word "rent" extending to all heriots, and to all services and suits for which distress may be made, and to all annuities and periodical sums of money charged upon or payable out of any land (except moduses or compositions belonging to a spiritual or eleemosynary corporation sole). But (except by the provisions applicable to the recovery of arrears of rent) the statute does not provide any bar for the recovery of a rent reserved upon a lease for years, that being a mere incident to the reversion; so that, after non-payment for more than twenty years, if the Where the title is derived from an inreversion continues, the reversioner's ti- strument (not being a will) made by a tle to the rent, as distinguished from the person being in possession, &c., in rearrears beyond six years, is not barred. spect of the same estate or interest, and (9 M. & W., 113.) The second section, no possession has been had under such about to be stated, applies only to free- instrument, the right accrues at the time hold rents, of which a seizin can be had. indicated by the instrument. There The second section enacts generally seems to be a doubt whether the words that (after the year 1833) "no person "in respect of the same estate or intershall make an entry or distress, or bring est" confine this part of the clause to an action to recover any land or rent, but cases where the whole estate or interest within twenty years after the time at of the grantor passes by the instrument. which the right to make such entry or A person claiming as lessee under a lease distress, or to bring such action, shall for life by a tenant in fee can scarcely have first accrued to some person through be said to claim the same estate as that whom he claims; or if such right shall of which his lessor was possessed. (See not have accrued to any person through 4 Scott, 180.) If this doubt is well foundwhom he claims, then within twenty ed, such cases, as well as claims under years next after the time at which the right to make such entry or distress shall have first accrued to the person making or bringing the same."

This general enactment is explained and qualified by subsequent sections, which include within their purview almost every possible case; and those few cases (such as claims under wills) which are not within any of these explanatory clauses have been held to be left to the general operation of the second section. (4 Scott, 168.)

At the common law, the rightful owner, having once been in the actual seizin of an estate, could only have been put to his entry by an actual disseizin; and

wills (which are expressly excepted in
this explanatory section), fall under the
general words of the 2d section. (Ib.)

The right to enter in respect of a re-
mainder or reversion first accrues on the
determination of the next preceding es-
tate, and the remainder-man or rever-
sioner has twenty years from that time,
except in the cases where his right is
expectant on the determination of a ten-
ancy at will, from year to year, for years
in certain cases, or in tail. And where
a remainder-man or reversioner has a
right to enter for a forfeiture or condi-
tion broken, he may do so within twen-
ty years, but his neglect to enter on that
ground will not prejudice his right on

Statute of the natural determination of the partic-
Limitations. ular estate.

Where a tenancy at will has been
created, it is, for the purposes of the
act, to be considered to have determin-
ed at the end of a year from its com-
mencement, from which presumed, or
any previous actual, determination of
the will, the period of limitation is to be
reckoned; and the possession continues
to be adverse until the true owner re-
covers actual possession, or obtains from
the occupier a sufficient acknowledg-
ment of title in writing. (Sect. 14. See
.7 M. & W., 226.) A cestui que trust or
mortgagor in possession is considered at
law as tenant at will to his trustee or
mortgagee, but it is expressly provided
that such a tenancy shall not constitute
adverse possession. Doubts which arose
as to the effect of the act upon the rights
of a mortgagee out of possession (6 Nev.
& M., 816) were removed by the stat.
7 Will IV. & 1 Vict., c. 28, which di-
rects the twenty years to be counted
from the last payment of any principal
or interest under the mortgage.

ant in tail, binding on himself, but not on his issue, the possession does not commence to be adverse until his death; so possession under an assurance which creates a base fee (i. e., which, being made by tenant in tail in remainder, &c., bars the issue in tail, but not the remainders over) is not adverse while there is issue in tail. But, by sect. 23, possession under any assurance by tenant in tail, inoperative against those in remainder or reversion (or, after such possession has once been had, possession by any person not entitled in respect of any inter est expectant on the estate-tail), commences to be adverse to those in remainder or reversion, when the time arrives at which (but for such assurance) a like assurance executed by the tenant in tail for the time being would, without the consent of any other person, have barred them.

What shall be deemed adverse possession in particular cases is for further certainty specified in some additional clauses.

The receipt of rent from a tenant from Where the possession is in a tenant year to year, or other lessee, is to be deem"from year to year or other period,' ,"ed the receipt of the profits. (Sect. 35.) without writing, the time is counted from the end of the first of such years or other periods, or the last payment of rent. (Sect. 8.)

Where the possession is under a lease in writing, reserving a yearly rent of twenty shillings or upward, the period may commence before the determination of the term, viz., at the time when rent shall have been first received by some person wrongfully claiming it as the immediate reversioner, provided no subsequent payment has been made to the true owner. (Sect. 9.) And the landlord is barred for the benefit, not of the tenant, but of the person so wrongfully receiving the rent. (Sect. 35.) Mere discontinuance of the receipt of the rent is no bar; there must be a wrongful payment to another. (7 M. & W., 131; 3 Beav., 308.)

Where there is a lease in writing, and no pecuniary rent to the amount of twenty shillings is reserved, the period is reckoned from the determination of the ten

ancy.

A mere entry or continual claim shall not keep alive any right. (Sects. 10, 11.)

The possession of a coparcener, jointtenant, or tenant in common, for the benefit of himself or any other person than his coparcener, &c., is to be deem ed adverse (sect. 12); and the posses sion of a younger brother or other relation is adverse to the heir. (Sect. 13.)

Possession commences to be adverse to an administrator on the death of the intestate. (Sect. 6.) Formerly, the time was counted from the grant of the letters of administration.

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A further time beyond the period of twenty years is allowed in case of disability by reason of infancy, coverture, idiotcy, lunacy, unsoundness of mind, or absence beyond seas, existing at the time when the right first accrued, in the person to whom it accrued. Such person, or those claiming through him, are allowed ten years from the time of the cesser of such disability. But this provision does not extend (as the old statute did, 4 Possession adverse to the issue in tail Taunt., 830) to a succession of disabilidid not formerly commence to be ad- ties, and whatever disabilities may have verse to the remainder-man or reversion- existed, the claim is barred at the end er until after failure of issue in tail; but of forty years. (Sects. 16, 17, 18.) No now, as soon as the time commences to part of the United Kingdom, nor the isl run against a tenant in tail, it runs, also, ands of Man, Guernsey, Jersey, Alder against all those whom he might have ney, or Sark, nor any island adjacent to barred, whether he lives through the them (being part of the British dominwhole period of limitation or not. (Sects. ions), shall be deemed to be "beyond 21, 22.) If the possession has been ob- seas," within the act. (See 3 You. & tained under a conveyance by the ten- C., 617.)

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