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2 83 Will. 4, The right of an owner of land to the support of the land is one of the c. 71, s. 2. ordinary rights of property, analogous to the right to a natural stream,
incidental to all land, and not an easement or right acquired by grant or otherwise. (Bonomi v. Backhouse, Ell. Bl. & Ell. 642; Backhouse v.
Bonomi, 9 H. L. C. 503.) Subject-matter of The second section refers to easements properly so called, and to rights the second section, which are in some way appartenant to a dominant tenement. (Shuttle
worth v. Le Fleming, 19 C. B., N. S. 687; 14 W. R. 13.) A custom for the freemen of a town to enter upon another man's land for the purpose of holding horse-races there, is not an easement within this section. (Mounsey v. Ismay, 3 H. & C. 486; 13 W. R. 521.) This section includes only such easements upon or over the surface of the servient tenement as are susceptible of interruption by the owner of such servient tenement, so as to prevent the enjoyment on the part of the owner of the dominant tenement from ripening into a right. (Webb v. Bird, 10 C. B., N. S. 283, per Erle, C. J.) Erle, C. J., said, “ It appears to me, that this section was not intended to give a right, after twenty years, to every sort of enjoyment which may be classed under the general term easement, but that it was meant to apply only to the two descriptions of easement therein specified, viz., the right to a way or watercourse which may be enjoyed or derived upon, over, or from any land or water.” He did not think the passage of air over the land of another was, or could have been contemplated by the legislature when framing that section. Tbey evidently intended it to apply only to the exercise of such rights upon or over the surface of the servient tenement as might be interrupted by the owner, if the right were disputed. It is clear that such was the intention of the legislature, because the section provides that the claim shall not be defeated where there has been actual enjoyinent for the period mentioned “without interruption.” (Webb v. Bird, 10 C. B., N. S. 282.) Byles, J., agreed that the words “or other easement" in the second section mean any other easement ejusdem generis with a way, -- something that is to be exercised upon or over the soil of the adjoining owner, more especially as it is clear, from the next section, that the easement of the access of light is
excluded. (Ib. p. 286.) Passage of air An owner of a windmill cannot claim, either by prescription or by pre
sumption of a grant arising from twenty years' acquiescence, to be entitled to the free and uninterrupted passage of the currents of wind and air to his mill. (16.)
A claim, by the occupier of a copper-mine, to sink pits in his own land for the water pumped out of his mine and for the precipitation of the copper contained in such water, and for that purpose to put iron into the said pits, and to cover the same with the said water, and afterwards to let it off, impregnated with metallic substances, into a watercourse flowing over the land of another, is a claim to a watercourse within this section. (Wright v. Williams, 1 Tyr. & G. 375; 1 Mees. & W.77.) The privilege of washing away sand, stone and rubble, dislodged in the necessary working of a tin mine, and of having the same sent down a natural stream through the plaintiff's land, may be the subject of a grant, and may be pleaded as a prescriptive right under this act to a declaration charging the defendants with throwing such stone, sand and rubble into the stream, and thereby filling up its bed within the plaintiff's land, and causing the water to flow over it. Such privilege may also be well pleaded as a local custom. (Carlyon v. Lovering, 1 #. & N. 784; 26 Law J., Exch. 251.) The right to have water which would otherwise have flowed down to the plaintiff's land diverted over other land, was held to be a claim to a watercourse within this section. (Mason v. Shrewsbury, fc. R. Co., L. R., 6 Q. B. 578. See also Staffordshire, fc. Canal Co. v. Birmingham Canal Co., L. R., 1 H. L. 254.)
The Prescription Act does not appear to have superseded the common superseded com- law, except in the case of claims to light. (See note (3) at the end of the mon law, except
act.) As to the difference between the mode of claiming easements under in cases of light.
the statute and at common law, see Gale on Easements, 153, note (v), 4th ed.
Statute has not
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, 8. 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 å 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, th 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 judge 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 occapier 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 terin? 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 nnder 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 f: 3 Will. 4, period, as against the bishop, it certainly must from the shorter. Therec. 71, s. 2. fore, 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. Bright v. Walker.
The important question is, whether this enjoyment, as it cannot give a. No title gained title against all persons having estates in the locus in quo, gives a title as by user which does not give
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 all.
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.
“ 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. (See 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 have been enjoyed the commencement of the suit, within this statute, means a continuous en
joyment as of right for twenty years next before the commencement of the
suit, of the easement as an easement, without interruption acquiesced in for Effect of unity of a year. It is therefore defeated by unity of possession during all or part possession. of the period of enjoyment, although such unity of possession has its incep
tion 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 2 & 3 Will. 4, action was brought, it was held, that his claim under this statute was de- 6.71, 8. 2. feated by an unity of possession from 1843 to 1853. (Ib.) And such unity of possession need not be specially replied under the 5th section. (Only 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.)
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.
In 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 Angust, 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, meaning of this section. The exercise, in the first instance, was during a c. 71, 8. 2. 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 Enjoyment as of
be added to the time when he used it as of right. (Winship v. Hudspeth, right.
10 Exch. 5; 21 Law J., Exch. 268.)
The words, “enjoyed by any person claiming right," applied to easements 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 hy 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 Coi
chester, L. R., 2 C. P. 486.) Effect of leave It was said by Alderson, B., that “if a parol permission extends over the being given. 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 Čr., M. & R. 615.) Effect of interrup- 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 IVaterworks 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 Eil. & 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,