Claim for 3. For a long time prior to the 5th of March, 1876, the trespass on defendant had wrongfully claimed to use the said road for his a private road. Extent of right. Kinds of prescription. Prescription at common law. The value of a defence of prescription at common law. The prescriptive rights given by statute. Periods to right to all continuous and apparent easements will remain in the grantor as well as pass to the grantee. (Pyer v. Carter, 1 H. & N. 91-96; 26 L. J. Ex. 258; Watts v. Kelson, L. R. 6 Ch. App. 166.) Where easements are not created by grant, express or implied, they must arise by prescription, and prescription is of three kinds. (1) Prescription at common law; (2) Prescription under the Prescription Act (2 & 3 Wm. 4, c. 71), and (3) Prescription arising from a lost grant. Prescription at common law.]-The right is here claimed by immemorial use, the averment being that the defendant and those whose estate he hath have enjoyed the right from time whereof the memory of man runs not to the contrary. The date of legal memory is now fixed at the beginning of the reign of Richard I., and what follows from that is this, that although upon proof of an exercise of the right for twenty years, the Court will in the first instance presume the right in favour of the defendant, yet if the plaintiff can show that there was any period of time (since the reign of Richard I.) when the defendant could not possibly have enjoyed the right, the defence is at an end. Suppose a right of way is claimed to a house by immemorial user, and proof is given that for thirty years the defendant has enjoyed the right, up to this point the defendant has a primâ facie case, but it is liable to be displaced by the plaintiff proving that the house in question was not more than 100 years old, and could not therefore have existed in the time of Richard I. The consequence is that the defence of prescription by immemorial user is not of much value, except when some right is claimed over lands, the history of which does not go farther back than it can be shown the defendant enjoyed the right claimed. Prescription by statute.]-The statute 2 & 3 Wm. 4, c. 71, gives with respect to a specified class of easements, a mode of acquisition far more certain than that mentioned above. By this statute if a person enjoys uninterruptedly and as of right a profit à prendre, or right of common for thirty, or a right of way or watercourse for twenty years next before the commencement of the suit in which the question of the validity of the easement arises, then the easement is not liable to be defeated by proof that it had its origin on this side of the reign of Richard I.; and when a profit à prendre or right of common has been enjoyed for sixty and a right of way or watercourse for forty years, an indefeasible title is obtained, unless where it is shown the right in question has been enjoyed by virtue of some deed. The time during which a party capable of resisting the claim is an infant, idiot, non compos mentis, feme covert, or tenant for life, is to be excluded from the computation of the terms of thirty and twenty years; and the time during which any land or water upon, over, or from which any right of way or watercourse shall have been enjoyed, has been held under any term of life or of years exceeding three, is excluded in the computation of the period of forty years, on condition that the claim is resisted by the reversioner within three years after the determination of the term. It must be noticed that this Act is confined to certain classes of easements-rights of way, watercourse, profits à prendre, rights of common, light, air; and therefore a title based upon a twenty years' enjoyment as of right can only be pleaded with respect to a right in pleading that is ejusdem generis, with one of the rights specified. In pleading be excluded from the computation of time. Difference common law and statutory prescription. prescription at common law, it is enough to aver that the defendant, &c., has enjoyed the right from time immemorial; no averment as to the nature of the enjoyment is necessary; but in pleading under the Prescription Act it must be averred that the right was enjoyed uninterruptedly during the twenty years' and of right. The enjoyment meant by the statute is "an enjoyment had openly, notoriously, without particular leave at the time, by a person claiming horses and carriages on the alleged ground that the same was a Claim for public highway, and the plaintiff had frequently warned him trespass on that the same was not a public highway, but the plaintiff's road. private road, and that the defendant must not so use it. 4. On the 5th of March, 1876, the defendant came with a cart and horse, and a large number of servants and workmen, and forcibly used the road, and broke down and removed a gate which the plaintiff had caused to be placed across the same. 5. The defendant and his servants and workmen on the same occasion pulled down and damaged the plaintiff's hedge and ditch upon each side of the road, and went upon the plaintiff's field beyond the hedge and ditch, and injured the crops there growing, and dug up and injured the soil of the road; and in any case the acts mentioned in this paragraph were wholly unnecessary for the assertion of the defendant's alleged right to use, or the user of the said road as a highway. The plaintiff claims : (1.) Damages for the wrongs complained of. (2.) An injunction restraining the defendant from any repetition of any of the acts complained of. a private The " enjoyment" meant by the statute.. Essential that the easement 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 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 for forty years, or by such writing or parol consent or agreement, contract, or licence in case of a plea for twenty years." (Per Cur. Tickle v. Brown, 4 Ad. & E. 369, 312. See further Clay v. Shackeray, 2 M. & Rob. 244; Gayford v. Moffatt, L. R. 4 Ch. 133; Partridge v. Scott, 3 M. & W. 220.) It need not be averred in the case of prescription at common law that the easement continued down to the time of the suit; but this is essential in cases within the statute. In fact if there were proof of enjoyment for fifty years down to within a few years of action brought, when it ceased there would still not be enough to satisfy the statute. (Parker v. Mitchell, 11 Ad. & E. 788; Lowe v. Carpenter, 6 Exch. 825; L. J. 20 Ex. 374.) Prescription by lost grant.]-The third way of proving prescription is by averring that some owner of the servient tenement, by a grant which is now lost, granted to the defendant or an ancestor the easement claimed. Where this is pleaded the jury may, from acts of ownership extending back over not less than twenty years, presume that the lost lost grant grant once existed, and find a verdict for the defendant accordingly. presumed This mode of acquiring an easement has advantages of its own, and is a after useful one. It is not necessary to aver and prove the continuance of 20 years' the user up to the time of action brought, nor will evidence that the de- user. fendant's right had its origin within legal memory affect it, as in the case of prescription at common law. It is often advisable to claim prescription by each one of the three modes indicated. continue to time of action. Prescrip tion by Defence to claim for tres pass on a private road. Claim for trespass to a mine and (3.) Such further relief as the nature of the case may require. Statement of Defence. 1. The defendant says that the road was and is a public highway for horses and carriages, and a few days before the 5th of March, 1876, the plaintiff wrongfully erected the gate across the road for the purpose of obstructing and preventing and it did obstruct and prevent the use of the road as a highway. And the defendant on the said 5th of March, 1876, caused the said gate to be removed, in order to enable him lawfully to use the road by his horses and carriages as a highway. 2. The defendant denies the allegations of the 5th paragraph of the statement of claim, and says that neither he nor any of his workmen or servants did any act or used any violence other than was necessary to enable the plaintiff lawfully to use the highway. Trespass to a Mine, and Trover of Quantities of Coal. 1. The plaintiffs are colliery proprietors and dealers in coal, and are possessed of certain lands situate in the borough of W., trover of a in the county of L., and are also possessed of certain coal quantity of mines lying under or in the vicinity of the said lands. coal. 2. The defendants are also colliery proprietors, and are possessed of certain mines adjacent to the said mines of the plaintiffs. 3. The defendants on divers days and times between the 1st of May, 1875, and the 5th of November, 1875, broke into and entered upon the said mines of the plaintiffs, and dug levels in the said mines and worked the said mines, and dug up and got out and carried away and otherwise converted to their own use divers large quantities of the plaintiffs' coal, and erected barriers and other obstructions in and upon the said mines of the plaintiffs, whereby the plaintiffs have been prevented from having access to and working their said mines and getting coal therefrom, and have been otherwise hindered in carrying on their business as such colliery proprietors as aforesaid. 4. The defendants, although requested so to do, have refused to remove the said barriers and obstructions, and by reason of the plaintiffs. being prevented from having access to and work- Claim for ing their said mines in manner before mentioned, the plaintiffs trespass to a mine, &c. have lost the difference between the value of the coal when the same would otherwise have been gotten by the plaintiffs and the lesser present value of the said coal. 5. The quantity of coal wrongfully dug up, got out, carried away and converted by the defendants as aforesaid, amounts to between 5000 and 10,000 tons. 6. The defendants also trespassed upon the plaintiffs' said mines, and cut and made a roadway through and across the same, and carried and conveyed large quantities of coal, earth, and minerals over the said roadway and through the said mines. 7. By reason of the cutting and construction of the said roadway in paragraph 6 mentioned, the plaintiff's have been and still are prevented from working their said mines on the further or west side of the said roadway, and the plaintiff's have thereby lost the difference between the value of the coal when the same would otherwise have been gotten by them and the lesser present value of the said coal. The plaintiffs claim : (1.) £10,000 as damages in respect of the trespasses and conversions aforesaid. (2.) The removal at the expense of the defendants of all the barriers and obstructions aforesaid. (3.) An injunction, mandatory or otherwise, restraining the defendants from any repetition of any of the acts complained of, and ordering them to restore the said. mines as far as practicable to the state in which they were before the acts complained of. (4.) Such further and other relief as the nature of the case may require. Statement of Defence. 1. The defendants do not admit that the plaintiffs were or Defence. are possessed of any of the lands or mines in the 1st paragraph of the statement of claim mentioned. 2. The defendants deny that they on the said days and times or at any time broke into or entered the said mines, or dug R R claim for trespass on Defence to levels therein or worked the same, or dug up or got out or carried away, or otherwise converted to their own use, divers or mine, and any quantities of the plaintiffs' coal; and they further deny conversion that they erected barriers or any other obstructions in and upon the said mines. of coal. Claim for trespass in pursuit of game. Defence. 3. The defendants deny that they ever were requested or that they refused to remove any barriers or obstructions as alleged in the 4th paragraph of the statement of claim, and they do not admit any of the other allegations in the said paragraph. 4. The defendants deny that they trespassed upon the said mines, or that they cut and made a roadway through or across the said mines, or carried or conveyed large or any quantities of coal, earth, or minerals over the said roadway or through the said mines. 5. The defendants do not admit the allegations in the 5th and 7th paragraphs of the statement of claim, or any of them. Reply. The plaintiffs join issue upon the statement of defence, except in so far as it may contain admissions. Claim for Trespassing on Land in Pursuit of Game. 1. At the time of the committing of the acts complained of the plaintiff was and still is possessed and in the occupation of certain lands situate on S. Common, in the county of C. 2. On or about the 13th of April, 1876, the defendants entered and trespassed upon the said land in search and pursuit of game. The plaintiff claims: (1.) £50 damages for the wrongs complained of. (2.) An injunction restraining the defendants from any repetition of the acts complained of. (3.) Such further relief, &c. Statement of Defence. 1. The defendants deny that they committed the alleged trespasses. 2. The defendants say that the land whereof the plaintiff claims to be possessed, situate on S. Common, was at the time of |