The Decision of the Circuit Court of the United States for the District of New-Jersey on the Rights of the Proprietors of the Eastern Division of the State of New-Jersey; Delivered at October Term, 1837 (Paperback)

This historic book may have numerous typos and missing text. Purchasers can download a free scanned copy of the original book (without typos) from the publisher. Not indexed. Not illustrated. 1837 Excerpt: ...was then vested in the plaintiff; and that as it was a right in a navigable river, where the tide flowed and reflowed, it was an incorporeal hereditament; and he directed the jury to find a verdict for the plaintiff. The plaintiff had a judgment. (12 C.L. 395, 396. 399.) Where a plaintiff can establish a franchise of a several fishery, without propriety in the soil--without a record which reaehes to within 300 years of Magna Charta, and on evidence of possession extending only sixty years before the trespass, it is most manifest, that the prescription need not be proved back to Henry III. as a matter of fact. The judge decides on the legal sufficiency of the evidence, to make out the right by prescription; and as a matter of law, directs the jury to find, that there was a franchise existing before legal memory. In so doing, he acts upon a rule which has been established for centuries. "A right or title by prescription is, where there has been the use and possession for such length of time, whereof the memory of man runneth not to the contrary, --time out of mind, and prescription, which is all one in the law. The time of legal memory is the 1 R.I.; (1189.) therefore this is proved, that continuance of possession, or other customs and usages, used after the same time, is the title of prescription, &c., and this is certain. Where a man will plead a title of prescription of customs, he shall say that such custom hath been used from time whereof the memory of man runneth not to the contrary; that is as much as to say, when such a matter is pleaded, that no man then alive hath heard any proof of the contrary, nor hath no knowledge to the contrary. (Litt. Sect. 170.) Two things are necessary to make out this title; possession, long, continual and peaceabl...