346 INCLOSUEE OF WASTE LAND. 



without doing anything more. It was held by the Court of Common 

 Pleas that the acts so done by the lord did not amount to a dispos- 

 session of Coorabes, and a resumption of possession by the lord, so as 

 to entitle the latter to maintain ejectment within twenty years, from 

 that time. 



Cressicell J. said : " Pritchard, the lord, when he intended to resume 

 possession of the land in question, in 1835, from a feeling of kindness 

 to the incroacher, abstained from doing enough to resume his rights. 

 It is clear that he was out of possession, and that there was no tenancy 

 at will before the year 1835. The defendant was there as a trespasser. 

 The 10th and 11th sections of 3 & 4 Will. IV. c. 27, must be looked 

 at together. The latter throws light upon the former : it enacts that 

 ' No continual or other claim upon or near any land shall preserve any 

 right of making an entry or distress, or of bringing an action.' That 

 section treats the making an entry as something more than merely 

 being on the land, and claiming it. The 10th section seems to require 

 something more than merely formally going on the land. The making 

 an entry amounts to nothing, unless something is done to divest the 

 possession out of the tenant, and revest it in fact in the lord. We are 

 bound by the plain words of the statute." And see Doe clem. Bennet v. 

 2h(r?ier. 



And ivhere a tenant encloses land, tvhether adjacent to, or distant from 

 the demised premises, and whether the land be part of a waste, or belong 

 to the landlord or a third person, it is a presumption of fact that the 

 inclosure is part of the holding, unless the tenant during the term does 

 some act disclaiming his landlord's title {Kingsmill v. Millard). 



Incroachments by tenant on waste are presumably for the benefit of 

 the landlord (Earl of Lishurne v. David Davids, 1 L.R. C.P. 259). 



The 8 & 9 Vict, c, 118, s. 123, which gives a right to the, Inclosure 

 Commissioners or their vahier to enter land to be inclosed or dealt with 

 under the Act, extends to land over which there is a right of common, 

 and which by an order for inclosure is to be retained by the owner, 

 freed from the right of common {Gruhh v. Broivn). 



Upon a question ivJiether a piece of ivaste land Iging hetii'een a highivay 

 and the plaintiff's inclosed land, belonged to the plaintiff, or to the lord 

 of the manor, it was held in an action for breaking and entering the 

 close of the plaintiff, that grants by the lord of other slips of waste land 

 on either side of the same road, abutting on inclosed lands of the lord 

 himself and of other persons, were admissible for the purpose of showing 

 that the locus in quo was part of the waste of the manor without showing 

 continuity {Dendg v. Simpson). 



One who has contracted ivith the owner of a close for the purchase of a 



