§ 126. The presumption of title arising from possession will be ? 111 obviously much strengthened by proof of uninterrupted enjoyment for a considerable time. In many cases, as before observed,' the legislature has fixed what periods of undisturbed possession will suffice to confer an absolute title; and in these cases, when the party by his pleading shows that he relies upon the statutory limitation, no lapse of time but that of the full period fixed by Act of Parliament will justify a presumption in support of the claim.' But if, instead of depending upon the statute-law, the party rests his case, as he may do, upon common-law presumption, or a lost grant, the fact of enjoyment for a less period than the statutory number of years, when coupled with other circumstances, will warrant a jury in finding a verdict in his favour.3 § 127. In other cases, to which the statutes of limitation do not 112 extend, the same principles of presumptive evidence apply, though they are necessarily open to a more vague interpretation. For instance, though a plaintiff seeking to recover land is bound, as we have just seen, to establish his own title, he will not be required to prove strictly every successive link in it, provided that the property has been long in his possession. When, therefore, a man claimed under a feoffment, and proved that he had had uninterrupted enjoyment of the premises for twenty years, the court and jury presumed, in his favour, that the necessary formalities of the old livery of seisin had been complied with. But presumptions of this nature will not now be raised, where the land has been held for a less period than twelve years, nor will they, where the acts of the parties, or the other facts in the case, lead to a different inference.' 6 5 1 Ante, 8 74. 2 See 2 & 3 W. 4, c. 71, § 6; 2 & 3 W. 4, c. 100, 8, Eldridge v. Knott, 1 Cowp. 214; Lowe v. Carpenter, 6 Ex. R. 825. 3 See Bright v. Walker, 1 C. M. & R. 222, 223, per Parke, B.; Ld. Stamford v. Dunbar, 13 M. & W. 822, 827; Lowe v. Carpenter, 6 Ex. R. 830, 831, per Parke, B.; Hanmer v. Chance, 4 De Gex, J. & S. 626, 631, per Ld. Westbury. 4 Ante, 125. Rees v. Lloyd, Wightw. 123; Doe v. Cleveland, 9 B. & C. 864; 4 M. & R. 666, S. C., Doe v. Davies, 2 M. & W. 503; Doe v. Gardiner, 12 Com. B. 319. 637 & 38 V., c. 57, 12; and see cases in last note. Doe v. Gardiner, 12 Com. B. 319. Again, without any direct proof of the passing of a bye-law, or the loss of it, the court will infer its existence from a usage of long standing; for where rights have been exercised in a particular manner for many years without interruption, it is only reasonable to presume that they have had a legal origin.' 4 § 128. The maxim, "ex diuturnitate temporis omnia præsumuntur ritè et solemniter esse acta;" is of great value, and has been applied to a variety of cases. Under certain circumstances this presumption assumes a conclusive character. One instance has already been furnished' in the case of ancient documents, the due execution of which will be presumed on their mere production. The American courts recognise other applications of the rule. Thus, after the lapse of twenty years, they conclusively presume, in favour of every judicial tribunal which has acted within its jurisdiction, that all persons interested in its proceedings have had due notice. So, it has been held in the United States, that where an authority is given by law to executors, guardians, and other officers, to make sales of lands upon being duly licensed by the courts, and they are required to advertise the sales in a particular manner, and to observe other formalities, the lapse of sufficient time, which in most cases is fixed at thirty years, raises a conclusive presumption that all the legal formalities of the sale were observed. The licence to sell, and the official character of the vendor, being provable by record or judicial registration, must in general be so proved; and the deed must also be proved in the usual manner; it is only the intermediate proceedings that are presumed. Probatis extremis præsumuntur media. 113 1 R. v. Powell, 3 E. & B. 377; May. of Hull v. Horner, 1 Cowp. 110, per See Johnson v. Barnes, 8 Law Rep., C. P. 527, per Ex. Ch. Ld. Mansfield, 2 Ante, & 87. 3 Gr. Ev. 19 & 20, in great part. Brown v. Wood, 17 Mass. 68. 3 See Pejepscot Prop's v. Ransom, 14 Mass. 145; Blossom v. Cannon, id. 177; Colman v. Anderson, 10 Mass. 105; Williams v. Eyton, 27 L. J., Ex. 176; 2 H. & N. 771, S. C.; 4 H. & N. 357, S. C., in Ex. Ch. In some cases, an interval of twenty years has been held sufficient. See Society, &c., v. Wheeler, 1 New Hamp. R. 310. § 129. In the Act which was passed in 1874, to facilitate the transfer of land,' the legislature has incorporated the maxim in question in one of the leading rules, which are henceforth to regulate the practice of conveyancers and the rights of vendors and purchasers. For § 2 enacts, in substance, that in the completion of any contract of sale of land, and subject to any stipulation to the contrary in the contract, all recitals, statements, and descriptions of facts, matters and parties, contained in deeds, instruments, Acts of Parliament or statutory declarations, twenty years old at the date of the contract, shall, unless proved to be inaccurate,-be sufficient evidence of the truth of the same.2 § 130. One of the most important applications of the presump. 114 tion under review, is to cases where the rights of the Crown are concerned. Here, though lapse of time does not of itself furnish a conclusive legal bar to the title of the Sovereign, agreeably to the mischievous maxim nullum tempus occurrit regi,-yet, if the adverse claim could have had a legal commencement, juries are instructed or advised to presume such commencement, after many years of uninterrupted possession. Accordingly, royal grants, charters, and even Acts of Parliament, have not infrequently been thus found by the jury, after long continued peaceable enjoyment, accompanied by the usual acts of ownership. So, the long enjoyment of port duties, tolls, customary dues, fees, or the like will, if the nature of the case admits of it," be held to warrant the presumption of any 1 37 & 38 V., c. 78, § 2; Bolton v. London School Board, L. R., 7 Ch. D. 766; 47 L. J., Ch. 461, S. C. 2 See Re Marsh & Ld. Granville, L. R., 24 Ch. D. 11, per Fry, J. 4 Gr. Ev. 45, in part, as to nine lines. * R. v. Brown. cited 1 Cowp. 110; May. of Hull v. Horner, id. 102; Eldridge . Knott, id. 215; Lopez v. Andrew, 3 M. & R. 329 a; Delarue v. Church, 2 L. J., Ch. 113; O'Neill v. Allen, 9 Ir. Law R., N. S. 132, 141, per Pigot, C. B.; Doe d. Devine v. Wilson, 10 Moo., P. C. L. 527; Little v. Wingfield, 11 Ir. Law R., N. S. 63; Roe v. Ireland, 11 East, 280; Goodtitle v. Baldwin, id. 488; Att.-Gen. v. Ewelme Hospital, 17 Beav. 366; Mather v. Trinity Church, 3 Serg. & R. 509. 5 See Gann v. Free Fishers of Whitstable, 20 Com. B., N. S. 1, in Dom. Proc.; 11 H. of L. Cas. 192, S. C.; overruling S. C. in C. P. and Ex. Ch., Free Fishers of Whitstable v. Gann, and Gann v. Johnson, 11 Com. B., N. S. 387, and 13 Com. B., N. S. 859; Bryant v. Foot, 2 Law Rep., Q. B. 161; 7 B. & S. 725, S. C.; and in Ex. Ch., S. C. 3 Law Rep., Q. B. 497; 37 L. J., fact necessary to make them legal:1 and if distinct evidence of any such payments be given as far back as living memory goes, the jury, unless evidence to the contrary be shown, will be quite justified in presuming, or, rather, will be directed to presume, that such payments were immemorial, or at least were referable to a legal origin. So, a series of acts of ownership exercised on the seashore by the adjoining proprietor, will afford abundant evidence for a jury to presume that the Crown formerly granted the soil to one of his ancestors; and a similar inference may be drawn from the production of a royal grant conveying the right of wreck.* 3 § 131. Again, notwithstanding the rule which provides that, in 114 order to constitute a valid dedication to the public of a highway, the owner of the soil must intend to dedicate," the uninterrupted user of a road by the public for forty or fifty years has been held amply sufficient to justify a presumption in favour of the original animus dedicandi, although there was ground for supposing that the soil of the highway was vested in the Crown.o Even a qualified or partial dedication of a way may be presumed in like manner from continuous use; and in a case in which, as far back as living memory went, the public had enjoyed a right of way across an arable field, and the owner had ploughed up the field including the Q. B. 217, and 9 B. & S. 444; Lawrence v. Hitch, 3 Law Rep., Q. B. 521, in 1 May. of Exeter v. Warren, 5 Q. B. 801, per Ld. Denman. 2 Malcomson v. O'Dea, 10 H. of L. Cas. 593; Mills v. May. of Colchester, 36 L. J., C. P. 213; D. of Beaufort v. Smith, 19 L. J., Ex. 106; per Parke, B.; 4 Ex. R. 471, S. C.; Pelham v. Pickersgill, 1 T. R. 667, per Ashhurst, J.; Shephard v. Payne, 3 New R. 580, per Ex. Ch. 3 Calmady v. Rowe, 6 Com. B. 861; D. of Beaufort v. May. of Swansea, 3 Ex. R. 413; Le Strange v. Rowe, 4 Fost. & Fin. 1048, per Erle, C. J.; Healy v. Thorne, I. R., 4 C. L. 495. See ante, 119. Hale de Jure Mar. 25, recognised in Calmady v. Rowe, 6 Com. B. 891. 5 Poole v. Huskinson, 11 M. & W. 827. 6 R. v. East Mark, 11 Q. B. 877; R. v. Petrie, 24 L. J., Q. B. 167; 4 E. & B. 737, S. C.; Turner v. Walsh, L. R., 6 App. Cas, 636. See Greenwich Board of Works v. Maudslay 5 Law Rep., Q. B. 397; 39 L. J., Q. B. 205, S. C.; Powers v. Bathurst, 49 L. J., Ch. 294, per Fry, J. 3 path, it was presumed, first, that the original dedication of the way was subject to the right of ploughing it up in due course of farming,' and next, that although it had for a time become impassable in consequence of such ploughing, the public had no right of deviating from it. So, after evidence of nearly forty years' possession of a tract of land, and proof of a prior order of council for its survey, and of an actual survey, an American jury has been instructed to presume that a patent had been duly issued. In regard, however, to Crown and public grants, a longer period is generally deemed necessary, to justify this presumption, than in the case of grants from private persons. § 132. The principles upon which, in cases of incorporeal here- 114A ditaments, grants may be presumed, as between private persons, from mere uninterrupted user and enjoyment, have been much discussed in Ireland; and it seems now to be finally settled, first, that juries in such cases should not be required to find as a fact that a deed of grant has been actually executed, but that, without believing any grant to have been made, they may often, under the instruction of the court, presume its existence for the simple purpose of quieting possession,—and next, that this presumption may be sometimes raised even against a reversioner, provided it can be either directly proved, or reasonably inferred, that he has had full knowledge of his opponent's actual enjoyment of the right in 1 Mercer v. Woodgate, 10 B. & S. 833; 39 L. J., M. C. 21, S. C.; Arnold v. Blaker, 40 L. J., Q. B. 185, per Ex. Ch. 2 Arnold v. Holbrook, 8 Law Rep., Q. B. 96; 42 L. J., Q. B. 81, S. C. Gr. Ev. 45, in part. * Jackson v. M'Call, 10 Johns. 377: "Si probet possessionem excedentem memoriam hominum, habet vim tituli et privilegii, etiam a Principe. Et hæc est differentia inter possessionem xxx vel xl annorum, et non memorabilis temporis; quia per illam acquiritur non directum, sed utile dominium; per istam autem directum." 1 Masc. de Prob., p. 239; concl. 199, n. 11, 12. * Deeble v. Linehan, 12 Ir. Law R., N. S. 1, per Ex. Ch., following the dicta of Ld. Mansfield in Eldridge v. Knott, 1 Cowp. 214, and of Ld. Wensleydale in Bright v. Walker, 1 C. M. & R. 217, and in Magdalen Coll. v. Att.-Gen., 3 Jur., N. S. 675, cor. Dom. Proc., and overruling a dictum of Bayley, B., in Day v. Williams, 2 C. & J. 461; Little v. Wingfield, 11 Ir. Law R., N. S. 63, per Ex. Ch. |