recovery of the possession of the premises: however, a tenant holding lands, and enclosing part of an adjoining waste, thereby(m) attaches the enclosure to his farm, and his subsequent occupation of the part encroached upon will not confer a possession, or create a title, adverse to his lessor. Lord Kenyon is reported to have said(n), that if a tenant enclosed part of a waste, and remained so long in possession as to gain a possessory right to it, such enclosure would not belong to the landlord, but an acknowledgement by the tenant that he held such enclosed part of his landlord would make a difference: the reason assigned for this opinion is, that the tenant could not make his landlord a trespasser(o), which would be the case, if the landlord could recover in ejectment. It is, however, clearly settled, that a tenant shall not be suffered by his own act to abridge or diminish his lessor's rights or privileges, but at the end of his term must restore the demised premises with all their advantages. If lands be demised, with a right of common on an adjacent waste, and the tenant were to gain an adverse possession by enclosing part of the waste during his tenancy, the consequence might be, that on the expiration of the term, the lessor would not only lose his right of commonage by reason of the encroachment, but might be excluded by the interposition of such enclosure, from the benefit afforded by immediate proximity to the common. The tenant of a farm lying very near, though not extending to the sea-shore, having encroached upon and enclosed the land between his farm and the sea, upon the trial of an ejectment(p) brought, after the expiration of the tenant's lease, for recovery of the part encroached upon, Parke, Baron, said "it was clearly settled that encroachments made by a tenant were for his landlord's benefit, unless it were manifest by some act done at the time of making them, that the tenant intended the encroachments for his own benefit, and not to hold them as he held the farm to which the encroachments were adjacent."

28. A tenant having annexed some waste land to his farm, continued to hold it for twelve years, without any objection being made by the landlord or his agent, and Lord Ellenborough(q) held the jury might

(m) Bryan dem. Child v. Winwood, 1 Taunt. 208; Doe dem. Ld. Dunraven v. Williams, 7 Carr. & P. 332; Doe dem. Challnor v. Davies, 1 Espin. N. P. C. 461; Doe dem. Wheble v. Fuller, Tyrw. & Gr. 17.

(n) Doe dem. Colclough v. Mulliner, 1 Espin. N. P. C. 460; and see Lessee Irwin v. Boyse, 1 Irish Circ. Rep. 341. (0) That is, against the owner of the soil.

(p) Doe dem. Lewis v. Rees, 6 Carr. & P. 610, by Parke, B.; Doe dem. Ld. Dunraven v. Williams, 7 Carr. & P. 332, by Coleridge, J.; Doe dem. Harrison v. Murrell, 8 Carr. & P. 134, by Ld. Abinger, Ch. Baron; Doe dem. Wheble r. Fuller, Tyrw. & Gr. 17.

(9) Doe dem. Foley v. Wilson, 11 East, 57; Doe dem. Beck v. Heakin, 2 Nev. & P. 660; 6 Ad. & Ellis, 495, S. C.

presume a license, and that an ejectment could not be maintained without previous demand of possession. A license of this nature may be revoked either by the act of the landlord in païs, or by parol, and no precise time is limited by law as necessary to intervene between the countermand and the commencement of the action.

29. However, where a cottage was erected on a common by the express consent of the lord, and of all the commoners, it was ruled(r) that although sufficient common was not left, and the license was merely by parol, yet it was not competent for any of the commoners who had assented, to countermand the license after it had been acted on.

30. One Denis Beal, in the year 1800, enclosed a small piece of waste land from a common, and surrounded it with a fence: he occupied the land until Christmas, 1827, when for valuable consideration he conveyed it to a purchaser: in the years 1806, 1811, and 1817, the parish officers and freeholders perambulated the parish, for the purpose of asserting(s) their rights of common, by throwing open encroachments on the waste, and in each of those years they made a large gap in the fence, and rode through the enclosure, and in the year 1820 a perambulation was made by direction of the lord of the manor, when similar acts were done with the same objects: it did not appear that Denis Beal was present on any of these occasions, or that he ever paid any rent, and the Court ruled that there had been an adverse possession for twenty years, and that such acts of interruption would not be sufficient to entitle the lord of the manor to recover in ejectment.

31. Although acts of interruption, or claims made by a landlord will not defeat an adverse possession, yet payment of a nominal rent, or other recognition of the landlord's title, will be deemed evidence of permissive occupation by the intruder. Upon an ejectment for the recovery of a small strip of land by the side of a turnpike road, it appeared that the defendant(t) had enclosed and occupied the ground for thirty years without paying any rent, and at the expiration of that time, the owner of the adjoining land, on both sides of the road, demanded and obtained sixpence rent from the occupier on three several occasions, and it was decided that the payment of rent, in the absence

(r) Harvey v. Reynolds, 12 Price, 724; 1 Carr. & P. 141; and see Feltham v. Cartwright, 5 Bing. N. C. 569; 7 Scott, 695; The King v. Inhabitants of Horndon, 4 M, & Selw. 562; The King v. Inhabitants of Standon, 2 M. & Selw. 461.

(s) The King v. The Inhabitants of Wooburn, 10 B. & Cr. 846; The King v. The Inhabs. of Pensax, 3 B. & Adol. 815.

(t) Doe dem. Jackson v. Wilkinson, 3 B. & Cr. 413; 5 Dowl. & Ry. 273, S. C.

of other evidence, was conclusive that the occupation was permissive. So a cottage adjoining a high-road, having been occupied for nearly forty years, without payment of rent, the owner of the adjoining estate demanded and obtained formal possession (u) of the cottage, which was immediately restored to the former occupier to hold as tenant at will: the cottager afterwards continued in possession upwards of twelve years without paying any rent, and his acknowledgement of the title within twenty years prior to the service of the ejectment, was decided to be sufficient evidence of occupation, by permission from the owner of the premises.

A person holding adversely part of the waste of a manor, being applied to on the part of the landlord to pay rent, and being offered a lease, answered by letter, that though if matters were contested he thought he should establish(v) a legal right, yet he had made up his mind to accede to the proposal of paying a moderate rent, on an agreement for a term of twenty-one years. The treaty was broken off, and no rent was paid, nor lease executed, and it was ruled that the letter did not amount to an acknowledgement of title in the lessors of the plaintiff, so as to satisfy the fourteenth section (w) of the 3 & 4 Will. IV. c. 27, because there was no final bargain.

32. Strips of waste land lying between a highway and the adjoining enclosed lands, are presumed (x) to belong to the owner of the enclosure usque ad filum viæ, and such presumption is not confined to the inheritor, but applies equally to persons(y) holding by leases for life, or for years, as it seems improbable, when a lease is made of land near a high-road, and a small quantity of unenclosed land intervenes, that it should be the lessor's intention to exclude such part from the demise. Lord Tenterden observes(2), that in remote times roads were frequently made through unenclosed lands, and if such roads were out of repair, the passenger had a right to pass along the land by the road-side(a): the right on the part of the public was attended with this consequence, that although the parishioners were bound to the repair of the road, yet if an owner excluded the public from using the adjoining land, he cast

(u) Doe dem. Thompson v. Clark, 8 B. & Cress. 717.

(v) Doe dem. Curzon v. Edmonds, 6 Mees. & W. 295.

(w) 3 & 4 Will. IV. c. 27, s. 14, Eng. and Irish.

(x) Grose v. West, 7 Taunt. 41; Rex v. Inhabitants of Edmonton, 1 Moo. & Rob. 32; Lofft. 358; Barrett v. Kemp, 7 Bing. 332; 5 Moo. & P. 173; 2 Bing.

upon himself the burthen of repairing the road. If the same person was the owner(b) of the land on both sides, he was bound to repair the whole of the road: if he enclosed on one side only, the other being left open, he was bound to repair to the middle of the road. Hence it followed as a natural consequence, that when a person enclosed his land, he did not make his fence close to the road, but left an open space at the side of the road, to be used by the public when occasion required.

All grants of land are supposed to have come from the lord of the manor, as the grant to the lord is said to have come from the Crown, and the point to be ascertained is, whether the grantee of the lord (c) enclosed to the edge of his grant, or left an interval between his enclosure and the boundary line of his grant. If he enclosed less than the whole extent of his grant, and left an interval, such intervening portion belongs to the owner of the adjoining enclosure, but if he enclosed to the extent of his grant, such an interval belongs to the lord of the manor: the legal presumption is in favour of the owner of the adjoining land, and when the interval is claimed by the lord of the manor, he is required to shew acts of ownership in support of his demand; and for that purpose, the lord of the manor may give in evidence acts of ownership by himself on other portions of the waste lying between the same road and the enclosures of other persons on both sides of the road, though at a distance from the place in dispute. The presumption that such intervening strips of land belong to the owners of adjacent enclosures, may be rebutted(d) by shewing frequent acts of ownership by other persons, or that the road is modern, and passed entirely through the close of another, or that the strip communicates with an open common, or large portion of land; and as such vacant strips of land are presumed to belong to the owners of the adjacent farms, if cattle are suffered, without license, to consume the grass(e) on the boundary fence, an action of trespass quare clausum fregit, lies against their owner for the injury.

33. When roads are made over waste, or common lands, (f) the right of the soil, subject to the public easement, continues in the lord of the manor; but where roads are allotted by the owners of adjoining lands, then the property in the soil belongs to such owners, subject to the rights of general passage, unless such roads are vested by Statute

(b) Duncomb's case, Cro. Car. 366; The King v. Staughton, 1 Siderf. 464.

(c) Doe dem. Barrett v. Kemp, 7 Bing. 332; 5 Moo. & P. 173; Jones v. Williams, 2 Mees. & W. 326.

(d) Grose v. West, 7 Taunt. 41. (e) Stevens v. Whistler, 11 East, 51. (f) Headlam v. Hedley, Holt's N.P. C. 463, by Bayley, J.

in trustees. The Crown(g) has no estate in the road, though commonly called "the king's highway," except as an easement for the public right of passage, and the owner may recover, in ejectment(h), the soil and freehold of the road, subject to such public right. On the demise of a farm adjoining a public road, half the road is not infrequently measured as part of the land included in the lease.

(g) Year Book, 8 Edw. IV. fo. 9, plac. 7; 1 Ro. Abr. 392; Chimin Private B. pl. 1; Com. Dig. Chimin. A. 2.

(h) Goodtitle dem. Alker v. Chester, 1 Burr. 143.

END OF VOLUME I.