that action was brought in which they came in question; and with respect to the form of the plea, which is at first sight somewhat incongruous, it is to be observed that there is something of the same kind of incongruity, though by no means to the same extent, in the usual mode of pleading a prescription, which states' that some person seised in fee from time whereof the memory of man is not to the contrary, until and at the time when, &c., and from thence hitherto hath had and enjoyed, and hath been used and accustomed to have and enjoy, and still ought of right to have and enjoy,' a particular easement, and then justifies the act done by reason of that enjoyment, which enjoyment is both before and after the time of such act. It appears to us, that the statute in question intended to confer, after the periods of enjoyment therein mentioned, a right from their first commencement, and to legalize every act done in the exercise of the right during their continuance." The court held the pleas sufficient in point of law. (Wright v. Williams, 1 Mees. & W. 77, 98-100. See Rex v. Inhabitants of Calow, 3 Maule & S. 22.)

Twenty years' enjoyment by the occupier, in order to give right under this statute, must be up to the time of the commencement of the suit, not up to the time of the act complained of; and, consequently, an enjoyment of twenty years or more before that act gives only what may be termed an inchoate title, which may become complete or not by an enjoyment subsequent, according as that enjoyment is or is not continued to the commencement of the suit. This apparent absurdity, arising from a strict construction of the act, was fully considered and acted on in Wright v. Williams and Richards v. Fry (ubi sup.). (Per Parke, B., Ward v. Robins, 15 Mees. & W. 242.)

It has been held that the period of twenty years may be the period of twenty years next before any suit or action wherein the claim to the right is brought into question, and is not limited to the twenty years next before the pending suit or action. (Cooper v. Hubbuck, 12 C. B., N. S. 456.)

Where a right of way was claimed by prescription at common law, it was held that there must be evidence of user for at least twenty years as of right; but that it need not be the twenty years next before the commencement of the suit. (Darling v. Clue, 4 F. & F. 329.)

A plea of forty or twenty years' user, under the 2nd and 4th sections of this statute, is not supported by proof of a user from a period of fifty years before the commencement of the action down to within four years of it; and if the evidence go no further there is no case for the jury. In an action of trespass quare clausum fregit the defendant pleaded a right of way for twenty and forty years respectively, under the 2nd section. Evidence was given of user, in support of these pleas, more than fifty years ago, but there was a failure to show that the user continued for the last four or five years before the commencement of the action. A verdict was found for the plaintiff on motion for a new trial the rule was refused. (Parker v. Mitchell, 3 P. & Dav. 655; 11 Ad. & Ell. 788.) This was considered a correct decision. Pleas of twenty and forty years' user respectively under this act are not supported by proof of user for forty years and upwards before the commencement of the action to within fourteen months of it. Some act of user must be shown to have been exercised in the year in which the action was brought. (Lowe v. Carpenter, 6 Exch. 825; see Ennor v. Barwell, 2 Giff. 420.) As it is impossible that the acts of user should continue to the very moment of action brought, or that they should be continued within a week or month of that time, Parke, B., thought that, according to the true construction of the statute, some act of that description must take place within each year. Alderson, B., said that Parker v. Mitchell decided that enjoyment during the last year is material; and Bailey v. Appleyard (8 Ad. & Ell. 161) decided that the enjoyment must be during the first year; and Carr v. Foster (3 Q. B. 581) seemed to intimate that the intermediate time was not so material. (Lowe v. Carpenter, 6 Exch. 832.)

It was said by Patteson, J., that if there be ten years' enjoyment of a right of way, and then a cessation under a temporary agreement for another ten years, yet this may be a sufficient enjoyment of the old right for

2 & 3 Will. 4,

c. 71, s. 4.

Requisite evidence of user during statutory period.

3 Will. 4, c. 71, 8. 4.

Interruption.

Enjoyment for nineteen years and a fraction.

twenty years to make it indefeasible under this statute, for the agreement to suspend the enjoyment of the right does not extinguish it, nor is it inconsistent with the right. (Payne v. Shedden, 1 M. & Rob. 383.)

The interruption which defeats a prescriptive right under 2 & 3 Will. 4, c. 71, is an adverse obstruction, not a mere discontinuance of user by the claimant himself. (Carr v. Foster, 3 Q. B. 581. See note to sect. 6, post.) The mere intermission of the exercise of the right for more than a year, in the middle of the prescriptive period, is not necessarily an interruption of the right, within the meaning of this section: such an intermission may be explained, and it is for the jury to say whether there has notwithstanding been a substantial enjoyment of the right for the requisite period. (Ib.; and see Plasterers' Co. v. Parish Clerks' Co., 6 Exch. 630.) The interruption may be caused by the act of a stranger, as well as by that of the person in whose land the easement is claimed. (Davies v. Williams, 16 Q. B. 558.)

Where it appeared that at a period much earlier than twenty years before the commencement of the action, a stream of water had flowed through the plaintiff's lands; but that there had been some interruption about twenty-two years before the action, and it was not till within nineteen years that the stream had again flowed constantly in its former course, and it was objected that there was a want of sufficient evidence to support the plaintiff's claim, Tindal, C. J., said, it would be very dangerous to hold, that a party should lose his right in consequence of such an interruption; if such were the rule, the accident of a dry season, or other causes over which the party could have no control, might deprive him of a right established by the longest course of enjoyment. (Hall v. Swift, 4 Bing. N. C. 381; 6 Scott, 167. See the remarks of Patteson, J., on that case, 3 Q. B. 585, 586; and Carr v. Foster, 3 Q. B. 381.)

Where an obstruction to an ancient light had existed more than twelve months, but a promise had been given to remove the obstruction, and twelve months had not elapsed from the date of that promise before proceedings were taken, it was held, that there had not been such an interruption of the enjoyment as would deprive the owner of the light of his remedy. (Gale v. Abbott, 8 Jur., N. S. 987; 10 W. R. 748.)

An interruption in the enjoyment may cause the acquisition of a qualified easement instead of altogether preventing the acquisition of any easement. (Rolle v. Whyte, L. R., 3 Q. B. 286.)

Although, under this section, no interruption will prevent a right from being acquired by twenty years' user, unless it has been acquiesced in for a whole year, yet an interruption for a shorter period may have the effect of showing that the enjoyment never was as of right, and thereby of preventing a right being acquired under the second section of this act. (Eaton v. Swansea Waterworks Co., 15 Jur. 675; 20 L. J., Q. B. 482; 17 Q. B. 267; ante, p. 12.)

The right to an easement which has been enjoyed for nineteen years and a fraction, and is then interrupted by the owner of the soil, may still be acquired under this statute at the end of the twentieth year; for the interruption to defeat twenty years' user must have been acquiesced in or submitted to for a whole year. In an action for obstructing certain windows, in a house occupied by the plaintiff, it appeared that at the time when a wall which caused the obstruction was erected, the part of a window had existed and been enjoyed, and the use of the light and air through the same had been enjoyed for the space of nineteen years and 330 days only, the period of a year not having elapsed from the time of the erection of the wall until the commencement of the action in which the right had been brought into question. The plaintiff had notice of the erection and of the prevention of the light and air from entering thereby through the said part of the window, and at the time of the commencement of the action, the part of the window had been made, and had existed and been enjoyed, and the access and use of light and air through the part of the window had been enjoyed for the full space of twenty years, except as aforesaid, without any interruption except the interruption above mentioned, and not under any consent or agreement given by deed or writing; and at the time of the

commencement of the action such interruption had not been acquiesced 2 & 3 Will. 4, in for one year after the plaintiff had notice thereof. If the 3rd section c. 71, 8. 4. had stood alone, the court held that the plaintiff below could not have established any claim to the use of the light in question, because it had not been actually enjoyed with the messuage for the full period of twenty years before the commencement of the action, but only for nineteen years and 330 days, when the enjoyment was interrupted by the erection of the wall. The 4th section, however, defines the meaning of the word interruption, and as upon the trial it was proved that the erection of the wall, which was the act complained of, had not been acquiesced in for one year after notice, inasmuch as the action was commenced within a few months after the erection of the wall, the court was of opinion that such erection of the wall and continuing it so erected, was not an interruption within the meaning of the 4th section of the act. (Flight v. Thomas, 11 Ad. & Ell. 688; 3 P. & Dav. 442; affirmed by the House of Lords, 5 Jurist, 811; 8 Cl. & Fin. 231. See 17 Q. B. 272.)

As to evidence of interruptions to the right of common, see Davies v. Williams, 16 Q. B. 558; Welcome v. Upton, 6 M. & W. 536. Where the Acquiescence in lord attempted to stop the user of a common, the fact that some of the interruptions. tenants yielded is not an interruption of the right within the meaning of this section, so as to bar the rights of freeholders, who as a body have never yielded to, or acquiesced in, the claim of the lord (Warrick v. Queen's College, Oxford, L. R., 10 Eq. 105.) Non-acquiescence in an interruption is a question of fact for a jury, and need not necessarily be proved by bringing some suit or action within a year from the commencement of the interruption. (Bennison v. Cartwright, 5 B. & S. 1; 12 W. R. 425.)

V. PLEADINGS.

5. In all actions upon the case and other pleadings, wherein the party claiming may now by law allege his right generally, without averring the existence of such right from time immemorial, such general allegation shall still be deemed sufficient, and if the same shall be denied, all and every the matters in this act mentioned and provided, which shall be applicable to the case, shall be admissible in evidence to sustain or rebut such allegation; and in all pleadings to actions of trespass, and in all other pleadings wherein before the passing of this act it would have been necessary to allege the right to have existed from time immemorial, it shall be sufficient to allege the enjoyment thereof as of right by the occupiers of the tenement in respect whereof the same is claimed for and during such of the periods mentioned in this act as may be applicable to the case, and without claiming in the name or right of the owner of the fee, as is now usually done; and if the other party shall intend to rely on any proviso, exception, incapacity, disability, contract, agreement, or other matter hereinbefore mentioned, or on any cause or matter of fact or of law not inconsistent with the simple fact of enjoyment, the same shall be specially alleged and set forth in answer to the allegation of the party claiming, and shall not be received in evidence on any general traverse or denial of such allegation (k).

(k) Before the passing of the statute 2 & 3 Will. 4, c. 71, a prescription in a que estate must always have been laid in the person who was seised of the

2 & 3 Will. 4, c. 71, 8. 5.

Matters to be replied specially.

fee simple. A tenant for life, for years, or at will, or a copyholder, could not prescribe in this manner, by reason of the imbecility of their estates; for as prescription was deemed to be always beyond time of memory, it would have been absurd that those whose estates commenced within the memory of man should have prescribed for any thing. Therefore, a tenant for life must have prescribed under cover of the tenant in fee simple, and a copyholder under cover of his lord. (6 Rep. 60 a; Fortesc. 340.) The uniform practice, in a plea justifying under a right of common, was to set out the title to the common specially, by showing a seisin in fee of the land to which the defendant claimed a right of common, either in himself or in some other person under whom he derived title, and then to prescribe in the que estate for the right of common, by showing the right to have been in the party seised in fee, and all those whose estate he had in the land from time immemorial. (Grimstead v. Marlow, 4 T. R. 718; 1 Wms. Saund. 346, n. (1).) And if the defendant was lessee for years, he must have shown the seisin in his lessor, and prescribed in him; for if he laid the prescription in himself it was bad. (Cro. Car. 599; 4 Rep. 38.) As where a defendant justified under a right of common of pasture, showing a demise from a freeholder for life of the land in respect of which he claimed, and averred that he the defendant, and all those whose estate he then had, and his landlord, from time, &c., had common of pasture in respect of the demised premises, it was held upon demurrer to be a bad plea. (Attorney-General v. Gauntlett, 3 Y. & Jer. 93.) But by the above section in actions on the case, the claimant may allege his right generally; and in pleading to actions of trespass, where previously it would have been necessary to have alleged the right to have existed from time immemorial, it will be sufficient to allege the enjoyment thereof as of right by the occupiers of the tenement in respect whereof the same is claimed during the period provided by the act, and without claiming in the name of the owner of the fee.

The leading provision of this statute is in favour of enjoyment "as of right," that is, of such a nature that its origin could be reasonably referred to nothing but some right, though it were not capable of being exactly described. (Per Lord Denman, Č. J., 4 Q. B. 355. See 1 Exch. R. 286.)

For the meaning of "enjoyment as of right," see Tickle v. Brown, 4 Ad. & Ell. 369, quoted ante, p. 12.

The 5th section gives a new plea, by enacting, that in certain cases it shall be sufficient to allege the enjoyment "as of right." If the parties choose to avail themselves of that provision, they must follow the very words; and if they neglect to do so, the plea is bad, and the omission would be ground of demurrer. Since this statute, it is usual in pleading a right of way to plead first a prescriptive right, then a right of way existing for the last forty years, and then a right of way existing twenty years, and so of other rights under that statute. (Per Alderson, B., Earl of Stamford v. Dunbar, 13 Mees. & W. 827.)

A plea in trespass alleging that the defendant and all other prior occupiers of a certain tenement, for twenty years next before the commencement of the suit, have had, used and actually enjoyed without interruption, and of right ought to have had, used and actually enjoyed, &c. a way through the locus in quo, was held to be bad after verdict, as the actual enjoyment was not alleged to have been under the right claimed, and the enjoyment therefore was not shown to be "as of right," according to the 5th section. (Holford v. Hankinson, 1 Dav. & Mer. 473; 5 Q. B. 584.) The plea alleged a defective title, and came within the reason of the decision in Jackson v. Pesked, 1 Mau. & S. 234. The distinction between a defective statement and the statement of a defective title was exemplified in Davis v. Black, 1 Q. B. 900, and Rutter v. Chapman, 8 Mees. & W. 1.

Where a defendant pleads an enjoyment of an easement for thirty years under this act, and the plaintiff relies on the existence of a life estate, or any of the other portions of time which by sect. 7 are to be excluded from the computation of the thirty years, not being inconsistent with the actual fact of enjoyment, he is bound under the 5th section of this statute to plead such life estate, &c. specially. (Pye v. Mumford, L. J. 1848, Q. B. 138; 12 Jur. 578; 5 Dowl. & L. 414.)

It has been decided upon this section, that where a defendant justifies 2 & 3 Will. 4, under an enjoyment of twenty or forty years, if the plaintiff relies upon a c. 71, 8. 5. licence covering the whole of that period, he must reply such licence spe- When licence cially: but a licence granted and acted on during the period may be given must be replied in evidence under the general traverse of the enjoyment during the period specially. alleged, showing that there was not, at the time when the agreement was made, an enjoyment as of right; and so the continuity is broken, which is inconsistent with the simple fact of enjoyment during the forty or twenty years. (Tickle v. Brown, 4 Ad. & Ell. 369; 6 Nev. & M. 230;- see Lowry v. Crothers, I. R., 5 C. L. 98, ante, p. 5.)

To a declaration in trespass qu. cl. fr. the defendant pleaded, that he and Licence must be the former occupiers of a house and land had for twenty years used and co-extensive with enjoyed as of right a certain way on foot and with horses, &c., from and out the right claimed. of a common highway, towards, into, through and over the plaintiff's close, to the defendant's house and lands and back, at all times of the year, at their free will and pleasure. The replication averred, that the defendant, &c. used and enjoyed the right of way mentioned in the plea, but they did so under the plaintiff's leave and licence. At the trial it appeared, that the defendant and the former occupiers of his house and land had an admitted right of way from thence over the locus in quo to the highway, and across the highway to a close called Reddings, and that for the last twenty years they had a licence from the plaintiff to use, whenever they pleased, a way from the defendant's house and lands over the locus in quo to the highway and back, when they had not any intention of going to Reddings. It was held, that the replication was not supported by this evidence, and that the plaintiff was bound to show a licence co-extensive with the right claimed in the plea and admitted by the replication. (Colchester v. Roberts, 4 Mees. & W. 769.)

Asking leave.

The asking leave from time to time within the forty or twenty years Evidence admisbreaks the continuity of the enjoyment as of right, because each asking of sible under leave is an admission that, at that time, the asker had no right; and there- general traverse. fore the evidence of such asking within the period is admissible under a general traverse of the enjoyment for forty or twenty years as of right. (Monmouthshire Canal Co. v. Harford, 1 Cr, M. & R. 614. See Tickle v. Brown, 4 Ad. & Ell. 383.) Lord Denman, C. J., said, that in looking at the report of the case of the Monmouthshire Canal Co. v. Harford (1 Cr., M. & R. 614; 5 Tyr. 68; see post), we find that the decision rests on this ground, viz. that the asking leave from time to time within the forty or twenty years breaks the continuity of the enjoyment as of right, because each asking of leave is an admission that, at that time, the asker had no right; and therefore the evidence of such asking within the period is admissible under a general traverse of the enjoyment for forty or twenty years as of right. To this ground of decision we quite accede; and it will follow, that not only an asking leave, but an agreement commencing within the period may be given in evidence under the general traverse, notwithstanding the words of the 5th section; for the party cannot and does not rely on it as an answer to an enjoyment as of right which he confesses, nor as avoiding any such enjoyment during the time covered by the agreement; but as showing that there was not, at the time when the agreement was made, an enjoyment as of right; and so the continuity is broken, which is inconsistent with the simple fact of enjoyment during the forty or twenty years. (Tickle v. Brown, 4 Ad. & Ell. 383, 384.) In Beasly v. Clark (3 Scott, 258; 2 Bing. N. C. 709), Tindal, C. J., said, " Under a replication denying that the defendant had used the way for forty years as of right, and without interruption, the plaintiff is at liberty to show the character and description of the user and enjoyment of the way during any part of the time-as, that it was used by stealth, and in the absence of the occupier of the close, and without his knowledge; or that it was merely a precarious enjoyment by leave and licence, or any other circumstances which negative that it was an user or enjoyment under a claim of right; the words of the 5th section not being inconsistent with the simple fact of enjoyment, being referable, as we understand the statute, to the fact of enjoyment as before stated in the act, viz. an enjoyment claimed and exercised as of right."