Carr v Foster: 1842

The plaintiff claimed a profit a prendre saying had been acquired under s.1 of the 1832 Act, by use for 30 years, the applicable period in relation to a profit a prendre. The evidence was that the right in question, to pasture cattle on a common, had not been exercised in two years out of the period of thirty because the person claiming the right had no commonable cattle in those years. Lord Denman CJ overruled an objection that the acquisition of the profit could not be shown by reason of the non-use in two years, and the jury found for the plaintiff claiming the profit a prendre. Cause was shown, so the matter was reconsidered en banc.
Held: Lord Denman CJ had not changed his mind. He said: ‘I am of opinion that the thirty years’ enjoyment was sufficiently made out. There must be some interval in the enjoyment of all such rights; and it must be a question for the jury, in each case, whether the right was, substantially, enjoyed for the requisite period. It has been ingeniously argued that a thirty years’ enjoyment cannot have taken place where there has been a two years’ intermission. But the words of sect. 1 are ‘without interruption’, not ‘without intermission’. And the intermission must be a matter open, in every case, to explanation . . where actual enjoyment is shewn before and after the period of intermission, it may be inferred from that evidence that the right continued during the whole time.’
Patteson J said: ‘I think there is no difficulty in the construction of the statute. ‘Interruption’ in sect. 1 must clearly mean an obstruction by the act of some other person than the claimant, not a cessation by him of his own accord . . It is suggested that the argument for the plaintiff might apply equally if there were a cesser for seven years. I am not prepared to say that it would not. It might be that, under the circumstances, the party had no occasion to use the right. The question would always be for the jury. So long an intermission would be a strong piece of evidence against the continued right: but it would be for them to determine.’
Williams J said: ‘I am of the same opinion. ‘Interruption’ means an obstruction, not a cesser or intermission, or any thing denoting a mere breach in time. There must be an overt act, indicating that the right is disputed. Before the statute, in cases relating to common, it was very usual to explain the ceasing to turn on cattle by the fact that there were not, at the time, commonable cattle to turn on. No necessary inference arises from the cesser during two, three, or seven years. In this particular case enjoyment for the requisite period was abundantly made out.’


Lord Denman CJ, Patteson J, Williams J


(1842) 3 QBR 581


Prescription Act 1832

Cited by:

CitedLawrence and Another v Fen Tigers Ltd and Others QBD 4-Mar-2011
The claimants had complained that motor-cycle and other racing activities on neighbouring lands were a noise nuisance, but the court also considered that agents of the defendants had sought to intimidate the claimants into not pursuing their action. . .
CitedCoventry and Others v Lawrence and Another SC 26-Feb-2014
C operated a motor racing circuit as tenant. The neighbour L objected that the noise emitted by the operations were a nuisance. C replied that the fact of his having planning consent meant that it was not a nuisance.
Held: The neighbour’s . .
Lists of cited by and citing cases may be incomplete.

Land, Limitation

Updated: 02 May 2022; Ref: scu.430353