Tunnicliff v. Lawyer

3 Cow. 382

Opinion

Curia.

It is not stated with what view the evidence of 20 years’ enjoyment of the right to obstruct was offered ; hut we may fairly intend, from the papers submitted, that it was .... . . x , , . ... to establish a prescription. 1 he evidence tended to tins, though it came short of making it out. It is not necessary, to give the plaintiff costs, that the defendant should set up and attempt to establish a title by deed. An attempt to. make out his right by adverse possession, or prescription to have an incorporeal right in the land of another, equally draws the title to freehold in question, and satisfies the words of the statute. It is enough that the defendant offers evidence pertinent to the question of title, which he has done in this instance. The principle of taxation was, therefore, right; but, as some of the items are exceptionable, let them be re-taxed, as Supreme Court costs, at the expense of the plaintiff.

Rule accordingly.