Odger's English Common Law

PRESUMPTION OF A LOST GRANT. 569
enjoyed the right ever since 1189. Proof of user as of right
ior so long as aged persons could remember was accepted as
sufficient to raise a presumption that it had existed from
time immemorial. Such user must have been neither secret,
nor forcible, nor by the permission of the owner of the ser-
vient tenement (nee clam, nee vi, nee precario) ; eke it would not
be " user as of right." Subsequently, "for the furtherance
•of justice and the sake of peace," proof of such a user for
twenty years was held sufficient to raise a presumption that
the right had been enjoyed from time immemorial. 1
But this presumption could always at common law be
rebutted by proof that the enjoyment had in fact commenced
within the period of legal memory. If the defendant could
prove the actual date of the commencement of the enjoyment
and that date was subsequent to 1189, the plaintiff's claim
was defeated.
(d) To avoid this hardship a new method of claim was
introduced, by which the right was based upon a fictitious
grant, supposed to have been made about the time when the
enjoyment of the right commenced and to have been sub-
sequently lost. Such a grant, although made since 1189,
would afford a legal origin for the user, provided the
right claimed was one which could be created by grant.
In all such cases, where the user had continued without
interruption for twenty years or more before action brought,
the long enjoyment was accepted as strong presumptive
{but not conclusive) evidence of the existence of such a
" lost grant." It is a principle of our law that a legal origin
is, if possible, to be presumed for a long-established practice.'-
Lord Ellenborough once said that he would, if necessary,
presume a hundred lost grants whenever people have for a
long period of time been doing something which they would
have had no right to do, unless they had had a deed of grant.
But " the presumption of a lost grant from long-continued
1 Per Parke, B., in Bright v. Walker (1831), 1 Cr. M. & E. at p. 217, cited with
approval by Pollock, B., in Bass v. Gregory (1890), 25 Q. B. D. at p. 484.
2 Johnson v. Barnes (1873), L. R. 8 C. P. 527 ; see also the remarks of Lord
Herschell in Philipps v. Halliday, [1891] A. C. at p. 231 ; and Hulbert v. Dale,
[1909] 2 Ch. 670.