evidence negativing the continued enjoyment as of right is admissible under this issue; and every time that leave is asked for and obtained there is a break in the continuance of the enjoyment, (f) because each asking of leave is an admission that, at that time, the asker had no right. Hence it follows that, not only asking leave, but an agreement commencing within the period, may be given in evidence under the general traverse, notwithstanding the words of the fifth section of the Prescription Act; for the party can not and does not rely on it as an answer to an enjoyment as of right, which he confesses, nor as avoiding any such enjoyment during the time covered by the agreement, but as showing that there was not, at the time when the agreement was made, an enjoyment as of right, and so the continuity is broken, which is inconsistent with the simple fact of enjoyment during the forty or twenty years. (g) If the plaintiff chooses to reply, and sets up a tenancy for life, he excludes the time of that tenancy, and drives the defendant to show thirty years' enjoyment, either wholly before the tenancy for life, if it be still subsisting, or partly before and partly after, if it be ended. But it has been said, "What if there had been an interruption for two years during the tenancy for life and within thirty years before the action, is the plaintiff to be deprived of the benefit of such interruption?" The answer is, "No: although the tenant for life can not, by acquiescence, burden the estate, he may, by resistance, free it; and if the plaintiff chooses to avail himself of that resistance, he may traverse the enjoyment as of right for thirty years, and show the interruption." The defendant will not then be allowed to give the tenancy for life in evidence, in order to avoid the effect of the interruption. () 437. Replications traversing the enjoyment of a right of way. -Under a replication denying that the defendant had used a way for forty years as of right and without interruption, the plaintiff is at liberty to show the character and description of the user and enjoyment during any part of the time, as that it (f) Monmouth Canal Co. v. Harford, 1 C. M. & R. 631. (g) Tickle v. Brown, 4 Ad. & E. 383. Bright v. Walker, 1 C. M. & R. 219. (h) Clayton v. Corby, 2 Q. B. 825. See Dana v. Valentine, 5 Met. (Mass.) 8, as to the effect of a slight cessor in the use. was used by stealth, or in the absence of the occupier of the close, and without his knowledge, or that the land was let on lease, and that the user and enjoyment were without the privity of the landlord, and that the latter had no means of knowing what was done upon the land to the prejudice of the inheritance, and could not therefore have prevented it, or that the enjoyment was a precarious enjoyment, by leave and license, or any other circumstances which negative the fact that it was a user and enjoyment as of right. (1) All acts showing that the defendant's user, although as of right and without interruption for the period specified, was not such a user as would, before the Prescription Act, have been sufficient to establish a claim by prescription or grant, must be replied specially, and can not be given in evidence under a traverse of the right of way alleged in the plea. (k) 438. Facts and circumstances which must be specially replied. -By the fifth section of the Prescription Act, it is enacted that if the party resisting the claim intends to rely on any proviso, exception, incapacity, disability, contract, agreement, or other matter thereinbefore mentioned, or on any cause or matter of fact or of law not inconsistent with the simple fact of enjoyment, the same shall be specially alleged and set forth in answer to the allegation of the party claiming, and shall not be received in evidence on any general traverse or denial of such allegation. "The greatest difficulty," observes Lord DENMAN," arises from the language of the concluding paragraph of this fifth section of the Prescription Act, and more particularly from the words, or any cause or matter of fact or of law not inconsistent with the simple fact of enjoyment.' As all these matters are required to be specially pleaded, and forbidden to be given in evidence under a general traverse of the enjoyment as of right, it is plain that they are treated by the legislature as consistent with such an enjoyment; and as, by the rules of pleading, and of logical reasoning, every allegation by way of answer which does not deny the matter to which it is proposed as an answer is taken to confess it, we must conclude that the legislature used the words 'as of right' in such a sense as that a party confessing the enjoyment as of right for forty years, or twenty,, as the case may be, may account for (2) Beasley v. Clarke, 3 Sc. 263. (4) Kinloch v. Neville, 6 M. & W. 795, and avoid the effect of it by alleging, in the one case, a consent or agreement, provided it be by deed or writing (see sec. 2), and in the other, any contract, &c., written or parol (see sec. 5). It follows that 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 not be avoided by replying that it was held by contract which is not adverse. Again, as the legal right to a way can not pass except by deed, it is plain that the words. 'enjoyment as of right,' can not be confined to enjoyment under a strict legal right, for then a 'consent or agreement' in 'writing,' not under seal, of which the second section speaks, could not account for such enjoyment. The words, therefore, must have a wider sense; and yet they must have the same sense as the words 'claiming right thereto,' in the second section, otherwise there will be incongruities in the construction of the Act. It seems, therefore, that the enjoyment as of right must mean an enjoyment had, not secretly or by stealth, or by tacit sufferance, or by permission asked from time to time, on each occasion, or even on many occasions, of using it, but an enjoyment had openly, notoriously, without particular leave at the time, by a person claiming to use it, without danger of being treated as a trespasser, as a matter of right, whether strictly legal by prescription and adverse user, or by deed conferring the right, or though not strictly lawful to the extent of excusing a trespass, as by a consent or agreement in writing, not under seal, in case of a plea for forty years, or by such writing, or parol consent or agreement, contract, or license, in case of a plea for twenty years. According to this view of the act, a license in writing must be replied to a plea of forty years' enjoyment, if it cover the whole time, and the same of a parol license, in case of a plea for twenty years." () 439. Replication of the existence of a tenancy for life during part of the period of enjoyment relied upon by the plea.—Where there has been a thirty years' notorious enjoyment of a profit à prendre during a tenancy for life had with the knowledge. and acquiescence of the owner of the fee, so as to be an enjoyment as of right within the statute against the inheritance, the tenancy for life must be specially pleaded by the reversioner, (1) Per Cur. Tickle v. Brown, 4 Ad. & E. 382. in order to exclude such thirty years' enjoyment from the computation of the prescriptive period under the statute. Thus where, in an action of trespass, the defendant pleaded an uninterrupted user and enjoyment of a profit à prendre for thirty years, under s. 1 of 2 & 3 Wm. 4, c. 71, and the plaintiff, by his replication, traversed the enjoyment, and the defendant, at the trial, proved enjoyment for thirty years next before the action, it was held that the plaintiff was not at liberty to prove a tenancy for life during part of those thirty years, as he had not set it up by his replication. (1) 440. Rejoinder traversing the fact of the existence of the tenancy for life during part of the period of enjoyment.—If a tenancy for life during the thirty years' period be replied and traversed by the rejoinder, the defendant may insist that the thirty year's enjoyment alleged in the plea is made up of time preceding and following the tenancy for life. (») 441. Evidence at the trial-Proof on the part of the plaintiff.—If the plaintiff in his declaration has alleged that he is possessed of a close, and proves possession either of the surface or of the subsoil and minerals beneath the surface, he sustains his declaration. (0) Under the plea of not guilty, the plaintiff must be prepared to prove the commission, by the defendant, his servants or agents, of the trespass of which he complains. (p) Where it was proved that the plaintiff was tenant of certain rooms in the defendant's house, and that the defendant unlawfully locked the door and kept him out, it was held that the jury might infer that there had been an actual entry by the defendant into the plaintiff's rooms, so as to support an allegation in a declaration that the defendant broke and entered the rooms of the plaintiff and expelled him therefrom. (9) To fix the defendant with a trespass committed by the hand of another, it must be proved that the act was done by command of the defendant, or that it was done for his benefit, and that he subsequently adopted and ratified the act. (r) Where the declaration alleged that the defendant entered the plaintiff's dwelling-house, and continued therein for eight days, it was held that the plaintiff was entitled to show a tres (m) Pye v. Mumford, 11 Q. B. 675. (n) Clayton v. Corby, 2 Q. B. 813. (0) Cox v. Glue, ante. (p) Ante. Com. Dig. TRESPASS. pass committed by the defendant in the dwelling-house on any of those days, and that the plaintiff need not prove that the defendant continued there the whole time; but, when various subsequent acts of trespass are given in evidence, it ought to appear that they were all in continuation, or in furtherance, of the original wrongful act. (s) 442. Proof under a traverse of the plaintiff's possession, or right of possession, of the locus in quo.-If the defendant, by his plea, denies the plaintiff's possession, or right of possession, of the locus in quo, the plaintiff must be prepared with general evidence of actual or constructive possession at the time of the commission of the alleged trespass. If the soil and freehold of the locus in quo are proved to be in the plaintiff, the possession is also presumed to be in him, unless there be some evidence to the contrary, (t) for possession follows the property when there is no actual possession in another person. (a) Actual or constructive possession, without proof of any title to the soil and freehoid, is quite sufficient to support an action against a wrong-doer; for he who commits a trespass upon the possession of another, being himself a wrong-doer, has no right to put the other party to proof of title. A lessee of the vesture or herbage, or a purchaser of growing crops, who has a right to the use of the land for bringing the crops to maturity, and, has, consequently, an interest in the soil, may maintain an action for a trespass upon his close or land against any person who wrongfully comes upon the land, or interferes in any way with the growing crops; (x) but a purchaser of crops arrived at maturity, who has bought them with a view to their immediate severance as chattels, and has no interest in the soil, can not maintain an action for a trespass upon the land, but must confine his cause of action to a claim for damages for an injury to goods and chattels. (1) Very slight evidence of possession is sufficient to establish a prima facie title to sue for an injury to realty, such as the occupation of the soil with stones and rubbish, which have been placed thereon by order of the plaintiff, and kept there (s) Percival v. Stamp, 9 Exch. 174. (t) Parke, B., Hebbert v. Thomas, I C. M. & R. 864. (u) Rex v. Mayor, &c., of London, 4 T. R. 26. (x) Crosby v. Wadsworth, 6 East, 609. See Roads v. Overseers of Trumpington, L. R., 6 Q. B. 64. (1) Parker v. Staniland, It Fast, 366 Evans v. Roberts, 5 B. & C. 837. |