Bailey v Appleyard
| Jurisdiction | England & Wales |
| Judgment Date | 25 April 1838 |
| Date | 25 April 1838 |
| Court | Court of the Queen's Bench |
English Reports Citation: 112 E.R. 798
IN THE COURT OF QUEEN'S BENCH
S. C. 3 N. & P. 257; 1 W. W. & H. 208; 7 L. J. Q. B. 145; 2 Jur. 872. Explained, Hollins v. Verney, 1884, 13 Q. B. D. 311. See explanatory note between pp. 778 and 779, 8 Ad. & E.
[161] bailey against appleyard. Wednesday, April 25th, 1838. Under stat. 2 & 3 W. 4, c. 71, a. 1, proof of a thirty years' enjoyment of common of pasture is not complete if proof be given of an enjoyment for twenty-eight years immediately preceding an action in which the right is disputed, and it appear that twenty-eight years back the enjoyment was interrupted, but that the right was exercised before the interruption. And the party disputing the right is riot bound to shew that such interruption was adverse: it lies upon the party prescribing, under the statute, to prove thirty years' uninterrupted enjoyment. Serable, that, under sect. 2 of the statute, prescription for a right, every year, and at all times of the year, to put and turn the party's cattle into and upon a certain close, is too vague, and may be demurred to. If there be no demurrer, and the issue on such plea be tried, the party prescribing, and relying on sect. 2, must give proof applicable to some definite easement. And he will fail if the evidence entitle him not to an easement, but to a profit & prendre. Per Coleridge J. A plea of prescription is supported if the party prove a right more extensive than that pleaded; but the right proved must be of such a nature that it may comprehend the right pleaded. [S. C. 3 N. & P. 257 ; 1 W. W. & H. 208 ; 7 L. J. Q. B. 145 ; 2 Jur. 872. Explained, Hollins v. Ferney, 1884, 13 Q. B. D. 311. See explanatory note between pp. 778 and 779, 8 Ad. & E.] Declaration (December 30th 1837), in replevin for cattle. Avowry, that the locus in quo was defendant's close, soil and freehold, and that the cattle were damage-feasaut. Pleas in bar. 1. That, before and at the time when, &c., plaintiff was, and still is, the occupier of a certain messuage and of certain closes of land with their respective appurtenances, situate and being in the township of Thornton, &c.; " and that he the said plaintiff and the occupiers for the time being of the said messuage," &c., " for thirty years next before the said time when," &c., "and before the commencement of this suit, have continually had, and have been used and accustomed to have, and of right ought," &c., "and the plaintiff still of right ought, to have, for himself and themselves, aud his and their tenants, occupiers of the said messuage and land with the appurtenances, a right of pasture in, upon, over, and throughout a certain close called Toadholes Lane, situate aud being in the said township of Thornton," &c., " for his and their cattle, every year and at all times of the year, as to the said messuage...
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