It has been decided under the statute 2 & 3 Will. 4, c. 71, that an enjoy- 2 & 3 Will 4, ment of twenty years, which cannot give a good title against all having c. 71, s. 2. estates in the lands in question, will not confer any title at all, even as between the parties having partial interests under leases. In an action on the Enjoyment under case for obstructing a way claimed from a wharf, in a close called Cliff statute.

meadow, through Eacham meadow, over the locus in quo, called the Acre, Bright v. Walker. where the obstruction took place, into a public highway, it appeared that Cliff and Eacham meadows were held under the Bishop of Worcester by a lease for three lives, granted in 1805. In 1809 Roberts purchased the leasehold interest from Davis, and began to make bricks in Cliff meadow, and carried them through Eacham meadow and the Acre into the highway. In 1811 Dalton, the then occupier of the Acre, and the assignee of a copyhold lease for four lives, under the bishop, of the close called Acre, put up a gate to obstruct Roberts in carrying bricks. Roberts broke it down, and he and the plaintiff, who claimed under him, continued to carry bricks over the Acre, without interruption, for more than twenty years, when the defendant, claiming as assignee of the bishop's lease, under Dalton, obstructed the way, and for that obstruction the action was brought. No proof was given on either side, that either of the original leases had been surrendered, and therefore the case was considered as if both had continued to the time of the obstruction. The jury found, first, that they would not presume any grant of right of way by the bishop; and secondly, that the plaintiff Roberts had actually enjoyed the way without interruption for more than twenty years; and the only question was, whether such an enjoyment gave to the plaintiff a right of way over the defendant's close, so as to enable him to maintain the action, which question depended upon the construction of the above act, particularly the second section. Parke, B., in giving the judg ment of the court, after stating the second section of the act, said, "In Nature of the order to establish a right of way, and to bring the case within this sec- enjoyment. tion, it must be proved that the claimant has enjoyed for the full period of twenty years, and that he has done so 'as of right,' for that is the form in which by section 5, such a claim must be pleaded, and the like evidence would have been required before this statute, to prove a claim by prescription or non-existing grant. Therefore, if the way shall appear to have been enjoyed by the claimant, not openly, and in the manner that a person rightfully entitled would have used it, but by stealth, as a trespasser would have done; if he shall have occasionally asked the permission of the occupier of the land, no title would be acquired, because it was not enjoyed 'as of right.' For the same reason it would not, if there had been unity of possession during all or part of the time; for then the claimant would not have enjoyed, 'as of right,' the easement,' but the soil itself. So it must have been enjoyed without interruption.' Again, such a claim may be defeated in any other way by which the same is now liable to be defeated; that is, by the same means by which a similar claim, arising by custom, prescription, or grant, would now be defeasible; and therefore it may be answered by proof of a grant or of a licence written or parol for a limited period, comprising the whole or part of the twenty years, or of the absence or ignorance of the parties interested in opposing the claim, and their agents, during the whole time that it was exercised. So far the construction of the act is clear, and this enjoyment of twenty years having been uninterrupted, and not defeated on any ground above mentioned, would give a good title; but if the enjoyment take place with the acquiescence or laches of one who is tenant for life only, the question is, what is its effect, according to the true meaning of the statute? Will it be good to give a right against the see, and against those claiming under it by a new lease, or only as against the termor and his assigns during the continuance of the term? or will it be altogether invalid? In the first place, it is quite clear that no right is gained against the bishop. Whatever construction is put on the seventh section, it admits of no doubt under the eighth. It is quite certain, that an enjoyment of forty years instead of twenty, under the circumstances of this case, would have given no title against the bishop, as he might dispute the right at any time within three years after the expiration of the lease; and if the lease for life be excluded from the longer

2 & 3 Will. 4, c. 71, s. 2.

Bright v. Walker.

No title gained by user which

does not give

period, as against the bishop, it certainly must from the shorter. Therefore, there is no doubt but that possession of twenty years gives no title as against the bishop, and cannot affect the right of the see.

The important question is, whether this enjoyment, as it cannot give a title against all persons having estates in the locus in quo, gives a title as against the lessee and the defendant claiming under him, or not at all? valid title against We have had considerable difficulty in coming to a conclusion on this point; but on the fullest consideration we think that no title at all is gained by a user which does not give a valid title against all, and permanently affect the see.

all.

Easement must have been enjoyed as such.

Effect of unity of possession.

"Before the statute this possession would indeed have been evidence to support a plea or claim by non-existing grant from the termor in the locus in quo to the termor under whom the plaintiff claims, though such a claim was by no means a matter of ordinary occurrence; and in practice the usual course was to state a grant by an owner in fee to an owner in fee. (Sce sect. 5.) But we think that since the statute such a qualified right is not given by an enjoyment for twenty years. For in the first place, the statute is for the shortening the time of prescription, and if the periods mentioned in it are to be deemed new times of prescription, it must have been intended that the enjoyment for those periods should give a good title against all, for titles by immemorial prescription are absolute and valid against all. They are such as absolutely bind the fee in the land. In the next place, the statute nowhere contains any intimation that there may be different classes of rights qualified and absolute, valid as to some persons and invalid as to others.

"From hence we are led to conclude, that an enjoyment of twenty years, if it give not a good title against all, gives no title at all; and as it is clear that this enjoyment, whilst the land was held by a tenant for life, cannot affect the reversion in the bishop now, and is therefore not good as against every one, it is not good against any one, and therefore not against the defendant. This view of the case derives confirmation from the 7th section. This section, it is to be observed, in express terms excludes the time that the person (who is capable of resisting the claim to the way) is tenant for life; and unless the context makes it necessary for us, in order to avoid some manifest incongruity or absurdity, to put a different construction, we ought to construe the words in their ordinary sense. That construction does not appear to us to be at variance with any other part of the act, nor lead to any absurdity. During the period of a tenancy for life, the exercise of an easement will not affect the fee; in order to do that, there must be that period of enjoyment against the owner of the fee.

"The conclusion, therefore, at which we have arrived is, that the statute in this case gives no right from the enjoyment that has taken place; and as sect. 6 forbids a presumption in favour of a claim to be drawn from a less period than that prescribed by the statute, and as more than twenty years is required in this case to give a right, the jury could not have been directed to presume a grant by one of the termors to the other by the proof of possession alone. Of course nothing that has been said by the court, and certainly nothing in the statute, will prevent the operation of an actual grant by one lessee to the other, proved by the deed itself, or upon proof of its loss by secondary evidence; nor prevent the jury from taking this possession into consideration, with other circumstances, as evidence of a grant which they may still find to have been made, if they are satisfied that it was made in point of fact." It was therefore decided that the plaintiff was not entitled to recover, and a nonsuit was entered. (Bright v. Walker, 4 Tyrw. 508, 513; 1 C., M. & R. 211, 223.)

The enjoyment of an easement as of right for twenty years next before the commencement of the suit, within this statute, means a continuous enjoyment as of right for twenty years next before the commencement of the suit, of the easement as an easement, without interruption acquiesced in for a year. It is therefore defeated by unity of possession during all or part of the period of enjoyment, although such unity of possession has its inception after the completion of the twenty or forty years. (Battishill v. Reed, 18 C. B. 696; 25 L. J., C. P. 290.) Where a plaintiff had enjoyed

a way as of right and without interruption from 1800 to 1855, when the action was brought, it was held, that his claim under this statute was defeated by an unity of possession from 1843 to 1853. (Ib.) And such unity of possession need not be specially replied under the 5th section. (Onley v. Gardiner, 4 Mees. & W. 496. See Monmouthshire Canal Company v. Harford, 1 C., M. & R. 631; 5 Tyr. 85; Richards v. Fry, 3 Nev. & P. 367; 7 Ad. & Ell. 698.) To an action of trespass on land, the defendant pleaded, that for twenty, thirty, forty, and sixty years, he and the occupiers of a mill had (as an easement) gone on the land to repair the banks of a stream which flowed to the mill. The replication denied the rights claimed. It appeared that within forty years B. had been lessee' of the mill under one landlord, and of the land under another: it was held, that this was such a unity of possession as prevented his having an easement on the land. (Clay v. Thackerah, 9 Car. & P. 47; 2 M. & Rob. 244.)

A lease was made in 1775, by A. to B., which comprised two closes, Blackacre and Whiteacre. A mill was subsequently built on Blackacre, which was supplied by a stream through Whiteacre; and S., a tenant of the mill under B., and subsequent tenants, enjoyed this right of water from 1818. In 1836, C., who was entitled to the reversion expectant on B.'s lease, appointed Whiteacre to K. for life from the expiration of that lease, retaining Blackacre. The lease of 1775 expired in April, 1840. K., in 1841, demised Whiteacre to the defendant; and, in 1843, C. demised Blackacre to the plaintiff, with the right to water sufficient for the mill as enjoyed by S. In an action for the diversion of the water, commenced in June, 1860, there was evidence of uninterrupted enjoyment from 1818 to 1860; it was held that, as during the lease of 1775 there was a unity of possession in B., the enjoyment by his tenant pending that lease was not an enjoyment "as of right" within the meaning of this act. (Wilson v. Stanley, 12 Ir. Com. Law Rep., N. S. 345.) It was held also, that the user for more than twenty years since April, 1840, conferred no title to the easement under this section, the reversion of the servient tenement during that period being vested in the tenant for life. (Ib.)

Where two tenants occupied adjoining premises under the same landlord, it was suggested by Kindersley, V.-C., that one tenant might acquire an easement over the adjoining property as against the other tenant. (Daniel v. Anderson, 31 L. J., Ch. 610; 10 W. R 366.) It seems clear in general that the tenant of one close cannot as such by user acquire an easement over another close which belongs to the same landlord. (Gayford v. Moffatt, L. R., 4 Ch. 133; Russell v. Harford, L. R., 2 Eq. 507.)

2 & 3 Will. 4, c. 71, s. 2.

According to the true construction of the statute, in order to make an user Enjoyment as of "as of right," it must be exercised for the period prescribed as of right right.

against all persons, so as to be evidence of a perfect right. But a party has

no right of way as of right" if the exercise for the first seven years was during a period when the owner could not stop him.

A plea under this act of an user of a way as of right for twenty years over a close is not supported by proof of an user of the way for part of the twenty years while a party was the landlord and owner as well of the messuage in respect of which the right was claimed as of the close over which it was exercised, and for the rest of the period when the defendant had acquired the freehold of the messuage.

În 1823, M. built two adjoining houses, behind each of which was a piece of ground appropriated as a yard, but no wall divided the yards. In 1832, M. permitted the defendant to occupy one of the houses without payment of rent, and he was accustomed to pass over the yard of the other house, which was let from time to time to different tenants, to a public highway. M. continued owner of both houses until his death in December, 1838. In August, 1839, the trustees under his will conveyed the last-mentioned house and the ground behind it to a person through whom the plaintiff derived his title. In September, 1839, the trustees conveyed the other house and ground to the defendant, who continued to occupy and use the way across the plaintiff's yard without interruption until 1853. It was held, that there was no user of the way "as of right" for twenty years within the

2 & 3 Will. 4, c. 71, s. 2.

Enjoyment as of right.

Effect of leave being given.

Effect of interruptions.

meaning of this section. The exercise, in the first instance, was during a period when the owner could not stop him, and therefore he gained no right during that time. The time when he used the way not of right could not be added to the time when he used it as of right. (Winship v. Hudspeth, 10 Exch. 5; 21 Law J., Exch. 268.)

The words, "enjoyed by any person claiming right," applied to casements in the 2nd section, and "enjoyment thereof as of right," in the 5th section of this act, mean an enjoyment had, not secretly or by stealth, or by tacit sufferance, or by permission asked from time to time on each occasion, or even on many occasions of using it, but an enjoyment had openly and notoriously, without particular leave at the time by a person claiming to use it, without danger of being treated as a trespasser, as a matter of right, whether strictly legal by prescription and adverse user or by deed conferring the right, or though not strictly legal, yet lawful to the extent of excusing a trespass, as by a consent or agreement in writing not under seal, in case of a plea for forty years, or by such writing or parol consent or agreement, contract or licence, in case of a plea for twenty years. (Tickle v. Brown, 4 Ad. & Ell. 369; 6 Nev. & M. 230. See Bright v. Walker, 1 Cr., M. & R. 219; ante, p. 9; Arkwright v. Gell, 5 Mees. & W. 333.) In the case of prescription, long enjoyments, in order to establish a right, must have been as of right, and therefore neither by violence nor by stealth, nor by leave asked from time to time. (Per Willes, J., Mills v. Mayor of Colchester, L. R., 2 C. P. 486.)

It was said by Alderson, B., that "if a parol permission extends over the whole of the twenty years, the party enjoys the way as of right and without interruption for the twenty years; not so, if the leave be given from time to time within the twenty years." (Kinloch v. Neville, 6 M. & W. 795.) Upon an issue with regard to twenty years' enjoyment of a railroad without interruption, for the convenient use and occupation of their closes, the defendants insisting upon such a right are bound to show an uninterrupted enjoyment as of right during that period, and the plaintiff may prove under such issue applications by the defendants during the twenty years for leave to cross their railroad, and it is not necessary for them to reply such licence specially. Where the simple issue is, whether there has been a continued enjoyment of the way for twenty years, any evidence negativing the continuance is admissible. Every time that the occupiers asked for leave, they admitted that the former licence had expired, and that the continuance of the enjoyment was broken. (Monmouthshire Canal Company v. Harford, 1 Cr., M. & R. 615.)

In questions under this section it is most important to show the nature of the user, and of the interruptions, as bearing on the question, whether the enjoyment was as of right. For though no interruption less than a year breaks the period when once the enjoyment as of right has begun, yet interruptions acquiesced in for less than a year may show that the enjoyment never was of right. (Per Coleridge, J., Eaton v. Swansea Waterworks Co., 17 Q. B. 275.) See further as to interruptions in the enjoyment, the note to sect. 4, post.

The plaintiff and the defendant occupied contiguous portions of land. For more than forty years, and as far back as living memory went, the occupiers of the plaintiff's land had been in the habit of passing over the defendant's land to a brook which lay on the other side of that land, and of damming up the brook when necessary, so as to force the water into an old artificial watercourse which ran across the defendant's land to the plaintiff's land. That was done for the purpose of supplying their cattle with water whenever they wanted it, except when the owners of the defendant's land used the water as they did at certain seasons of the year for irrigation. It was held, that upon this evidence the jury was warranted in inferring an user as of right by the occupiers of the plaintiff's land, of the easement on the defendant's land, and that for the interruption of such easement the plaintiff might maintain an action against the defendant. (Beeston v. Weate, 5 Ell. & Bl. 986.)

Action by the owner of a mill on the river Calder, which mill of right ought to be supplied with a flow of water from a mill-pool on the Calder,

c. 71, 8. 2.

right.

against an owner of works higher up the stream, for placing cinders 2 & 3 Will. 4, and scoriæ at his works so as to fall into the stream of the Calder, whence they were carried down into the plaintiff's mill-pool, and filled it up to the obstruction of his right to water. Plea, that the occupiers Enjoyment as of of the defendant's works had for more than twenty years as of right placed cinders and scoriæ, the refuse of their works, on the banks of the stream and in its channel, and that the cinders and scoriæ complained of were such refuse so placed. Held, that the plea was bad, non obstante veredicto, as not showing that the defendant had during twenty years as of right caused the refuse to go into the pond; for until the occupiers of the mill sustained some damage from the defendant's user, no right as against them began to be acquired. (Murgatroyd v. Robinson, 7 El. & Bl. 391; 26 L. J., Q. B. 233; 3 Jur., N. S. 615. See also as to perceptible damage, Sampson v. Hoddinott, 1 C. B., N. S. 611; O'Brien v. Enright, I. R., 1 C. L. 718; Goldsmid v. Tunbridge Wells Commissioners, L. R., 1 Ch. 349.)

The plaintiff occupied as tenant certain clayworks. Previous to his occupation a watercourse had been cut by the then occupant from a stream to the works, and there was evidence of this being done with the consent of the owner of the stream on certain terms. A few years after the watercourse was cut the plaintiff took the works, and used the watercourse uninterruptedly for more than twenty years, and he knew nothing of the circumstances under which the watercourse was made. Held, that there was evidence to go to the jury that the watercourse had not been enjoyed by the plaintiff for twenty years as of right. (Gared v. Martyn, 19 ̊C. B., Ñ. S. 732; 14 W. R. 62.)

The use of waste water from a canal was held not to be an enjoyment as of right. (Staffordshire, &c. Canal Co. v. Birmingham Canal Co., L. R., 1 H. L. 254.) It was said by Blackburn, J., that Wood v. Waud (3 Ex. 748) was in effect a decision that an active enjoyment in fact for more than the statutable period is not an enjoyment as of right, if during the period it is known that it is only permitted so long as some particular purpose is served. (Mason v. Shrewsbury, &c. R. Co., L. R., 6 Q. B. 584.)

A claim of enjoyment for one of the shorter periods mentioned in the statute may be defeated in any way in which the same was liable to be defeated at common law except one, viz., that the right originated within the time of legal memory. Where therefore an easement was enjoyed during part of the period in exercise of a statutory right, and the statutory right having ceased, the enjoyment was continued for the rest of the period, it was held that the claim could not be sustained. (Kinloch v. Neville, 6 M. & W. 806.)

granted.

Where a claim is made under the act, it is incumbent on the claimant to Right must be prove that the right founded on the claim by user might at the beginning capable of being of or during that user have been lawfully granted to him; and where such a grant would have been ultra vires and void by reason of an act of parliament, the claim cannot be sustained. (Staffordshire, &c. Canal Co. v. Birmingham Canal Co., L. R., 1 H. L. 278.) So it has been held that a company incorporated by act of parliament for making and maintaining a canal, and having powers under their act to take water for the purpose of supplying the canal, cannot by user acquire, under this section, a prescriptive right to take the water for any other purpose. An easement to take water to fill a canal ceases when the canal no longer exists. (National Guaranteed Manure Company v. Donald, 4 H. & N. 8; 28 Law J., Exch. 184. See Rochdale Canal Company v. Radcliffe, 18 Q. B. 287; Mill v. New Forest Commissioners, 18 C. B. 60, ante, p. 5.)

To support a plea framed on the 2nd section of this statute, of a right of Evidence of user. way enjoyed for forty years, evidence may be given of user more than forty years back. If evidence of user beyond forty years were to be excluded, it might be that, after the case had been established as far as thirty-eight years back, a discontinuance of proof might occur as to the two or three preceding years, and the party might fail because he was unable to carry his case on without going to the distance of forty-one. (Lawson v. Langley, 4 Ad. & Ell. 890.) To a plea of forty or twenty years' enjoyment of a way, a licence, if it cover the whole time, must be pleaded. (Tickle v.