as to investing trust funds. Clark v. Beers, 61 Connecticut, 87; Mattocks v. Moulton, 84 Maine, 545; Caspari v. Cutcheon, 110 Michigan, 86; Jones v. Jones, 86 Virginia, 845. In Re Hall, 164 New York, 196, where trustees, empowered by will to invest "in any security, real or personal, which they may deem for the benefit of my estate, and calculated to carry out the intention of this" will, invested in the preferred stock of an umbrella corporation, which had no real estate or plant, the Court, conceding that their discretion under the will was not limited to the investments required by a Court of equity in the absence of any directions from the testator, said: "The range of so-called 'legal securities' for the investment of trust funds is so narrow in this state that a testator may well be disposed to give his executors or trustees greater liberty in placing the funds of the estate. But such a discretion, in the absence of words in the will giving greater authority, should not be held to authorize investment of the fund in new speculative or hazardous ventures. If the trustees had invested in the stock of a railroad, manufacturing, banking, or even business corporation, which, by its successful conduct for a long period of time, had achieved a standing in commercial circles and acquired the confidence of investors, their conduct would have been justified, although the investment proved unfortunate. But the distinction between such an investment and the one before is very marked. Surely there is a mean between a government bond and the stock of an Alaska gold mine, and the fact that a trustee is not limited to the one does not authorize him to invest in the other. In our judgment the authority given to the appellants by this will is quite similar to that vested in trustees in the New England States, where the strict English rule as to the investment of trust securities which prevails in this state does not obtain."

USER.

GRAY v. BOND.

(C. P. 1821.)

RULE.

PUBLIC acts of user in a particular manner of a tenement for the convenient enjoyment of another tenement, exercised without interruption for more than twenty years furnish evidence from which a grant may be presumed.

Gray and another v. Bond and another, 2 Brod. & Bing. 667, 668.

Gray and another v. Bond and another.

2 Brod. & Bing. 667-672 (23 R. R. 530).

Fishery.

Evidence of User.

Presumption of Grant.

Where the lessees of a fishery had publicly landed their nets on the [667] shore at A. for more than twenty years, and had, at various times, dressed and improved the landing place (both the fishery and the landing place having originally belonged to one person, but no evidence being offered to show that he, or those who under him owned the shore at A., knew of the landing nets by the lessees of the fishery): Held, that it was properly left to the jury to presume a grant of the right of landing to the lessees of the fishery, by some former owner of the shore at A.

This was an action on the case, for disturbing the plaintiffs in the enjoyment of their right of drawing nets to land, on the banks of the river Derwent, wherein they had a fishery. The defendants pleaded the general issue, and at the trial before BAYLEY, J., at the York Spring Assizes, 1820, a verdict was found for the plaintiffs, subject to the opinion of the Court, upon the following

case.

The river Derwent is a public navigable river in the county of York, the tide whereof flows to a point higher up the river than the place mentioned in the declaration called the Crabtree fellings. This river forms the boundary of the manor of Elvington, which extends to the line of the stream, and the lord of that manor, from time immemorial, hath been seised of a fishery in the river on the Elvington side of the river, to the line of the stream thereof, and extending throughout the length of the manor which he claims, as appurtenant to the manor. Before, and at the time of the execution of the lease and release hereinafter mentioned, Richard Sterne was seised in his demesne as of fee of the manor of Elvington, and of the lands conveyed by the deed, as well as other lands within the manor, and adjacent to the river Derwent, and being so seised, by indenture of lease and release, dated the 3rd and 4th October, 1774, he conveyed to Ralph and John Dodsworth (among other things) the close of land upon which the felling called the Crabtree felling is situated. The plaintiffs are possessed for a term of years of the legal estate of and in the manor and fishery; and, at the time of the grievance complained of in the declaration, were in pos- [* 668]

*

Gray and another v. Bond and another, 2 Brod. & Bing. 668, 669.

session of the fishery. It was proved at the trial, that the owners of the fishery and their lessees, had, for above twenty years last past, and in the recollection of one witness, at the distance of sixty-four years ago, for the more convenient use and enjoyment of their said fishery, drawn and pulled their nets to and upon the bank of the river, at certain different parts thereof, on the Elvington side of the river, for the purpose of taking the fish out of the nets, and that they had occasionally dressed the landing places, by sloping the foreshore, and levelling the ground with a spade. These landing places are called pulls or fellings, and are thirteen in number, within the manor of Elvington. The other fellings are situate upon different closes, which, before the time of the said conveyance, were and still are the property of the lord of the manor of Elvington; but the felling in question, called the Crabtree felling, is situate upon one of the closes which were conveyed to Ralph and John Dodsworth, by the before-mentioned deeds of lease and release, under whom Mr. Preston, the present proprietor of the closes, now claims and is seised of the same. There was no evidence either way, whether Ralph or John Dodsworth, or any person under whom Mr. Preston claims, or Mr. Preston himself had any knowledge of or was privy to the said use of the Crabtree felling. The defendants, as the servants of Mr. Preston, and by his direction, before the commencement of this action, placed stakes in and upon the Crabtree felling, so as thereby to prevent the plaintiffs from pulling their nets to land, and using the said felling so conveniently as before.

It was objected by the defendants at the trial, that, as the land upon which this felling was situated, had been conveyed by the

owner of the fishery to the Dodsworths in 1774, without [* 669] any reservation or any exception * of the right of landing

nets upon the said felling, such right was entirely gone. The learned Judge left it to the jury to presume, from the evidence of enjoyment, a grant of the right to land nets upon the Crabtree felling, to the owners of the said fishery, by some former owner of the close whereupon it was situated, since the year 1774; and the jury thereupon found a verdict for the plaintiffs, damages 18.

The question for the opinion of the Court was, whether the direction of the learned Judge was right. If the learned Judge ought to have directed the jury to presume such grant, then the

Gray and another v. Bond and another, 2 Brod. & Bing. 669, 670.

said verdict was to stand; but if not, then a nonsuit was to be entered.

The case was argued on a former day in this term.

Bosanquet, Serjt., for the plaintiff's, contended, that it was properly left to the jury to presume, from the evidence of enjoyment, a grant of the right to land nets upon the locus in quo, and cited Campbell v. Wilson, 3 East, 294 (7 R. R. 462); Yard v. Ford, 2 Wms. Saund. 175b; Keymer v. Summers, Bull. N. P. 74. Hullock, Serjt., for the defendants. The cases cited for the plaintiffs do not apply. Mere lapse of time will not of itself raise against the owner the presumption of a grant. In Campbell v. Wilson, there was a notorious user for twenty years exercised adversely. And so, in all the cases collected by Serjeant Williams in Yard v. Ford, particularly Darwin v. Upton, the grounds for such a presumption were infinitely greater than in the present case. One of the general grounds of a presumption, is the existence of a state of things which may reasonably be accounted for, by supposing the matter presumed, per [* 670] ABBOTT, Ch. J., in Doe v. Hilder, 2 B. & Ald. 782 (21 R. R. 488). Here, none of the parties interested were aware of the practice which obtained with respect to the landing of the nets upon the particular spot. Though an uninterrupted possession for twenty years and upwards, be a bar in an action on the case, yet the rule must be taken with this qualification, that the possession was with the acquiescence of the person seised of an estate of inheritance. The mere knowledge of the tenant is not sufficient, otherwise he might collude, to the great inconvenience of his landlord. Daniel v. North, 11 East, 372. The grounds for presuming the surrender of terms, are laid with equal tenderness to the interests of the owner of the inheritance, and show the jealousy with which the law sanctions a presumption. Doe v. Wright, 2 B. & Ald. 710 (21 R. R. 461); Doe v. Hilder, 2 B. & Ald. 782 (21 R. R. 488). The distinction between this case and those cited for the plaintiffs is, that, in the latter, knowledge on the part of the person interested was presumed upon clear grounds. There is no such knowledge in evidence in this case, which completely falls within the reasoning of Lord ELLENBOROUGH, in Daniel v. North, and the rule there laid down by him and the rest of the Court.

Bosanquet, in reply, was stopped by the Court.

Gray and another v. Bond and another, 2 Brod. & Bing. 670–672.

[* 671] now called on to decide

DALLAS, Ch. J. I think the question was properly left to the jury to presume or not, from the facts before them, a right on the part of the plaintiffs to land their nets on the locus in quo, and a grant from some former owner of the soil. We are not whether the jury were right or wrong in the conclusion to which they have come (though had I been one of them I should probably have come to the same), but the question is, whether the learned Judge left it to them properly, to presume a former grant. I agree with the argument which has been urged on the part of the defendants, that mere lapse of time will not of itself raise against the owner the presumption of a grant. When lapse of time is said to afford such a presumption, the inference is also drawn from accompanying facts; and here, where there is no direct evidence whether or not the owner of the land had any knowledge of what passed, the inference to be drawn must, in a peculiar degree, depend on the nature of the accompanying facts; and the presumption in favour of a grant will be more or less probable, as it may be more or less probable that those facts could not have existed without the consent of the owner of the land. The circumstances proved in the present case, were sufficient to leave to a jury, as circumstances from which the knowledge of the owner, and his acquiescence, on the supposition of a preceding grant, might fairly be presumed. This was done; and how could it be inferred that the owner had not such knowledge, when he was proved to be in possession of the property, when the landings were all made publicly, and the soil had actually been levelled to facilitate the plaintiffs' access. I entertain no doubt, that the question was properly left to the jury.

PARK., J. It seems to me, that it was most fitly left to the jury in this case, to presume a grant. Notwithstanding the distinction which has been attempted, I cannot distinguish this case from that of Campbell v. Wilson, 3 East, 294 (7 R. R. 462), at Lancaster, and if ever there was a strong case, that was one,

because there had been an award and an enclosure, twenty[* 672] six years before. The circumstances in that case, from which the knowledge of the owner of the soil might be inferred, were not stronger than those in the present. The case, indeed, does not come up to that of Daniel v. North, 11 East, 372,