c. 71, s. 1. cases (Bailey v. Appleyard, 8 Ad. & Ell. 167; Lawson v. Langley, 4 Ad. 2 & 3 Will. 4, & Ell. 890; Jones v. Richard, 5 Ad. & Ell. 413). The right to receive air, light, or water, passing across a neighbour's land, may be claimed as an easement, because the property in them remains common; but the right to take "something out of the soil" is a profit à prendre, and not an easement (Manning v. Wasdale, 5 Ad. & Ell. 764; Blewitt v. Tregonning, 3 Ad. & Ell. 554; see Sutherland v. Heathcote, 1892, 1 Ch. 484). This section applies only to profits à prendre in the land of another, and has no application to a copyholder's acts on his copyhold tenement (Hanmer v. Chance, 4 D. J. & S. 626). 66 The liberty of fowling has been decided to be a profit à prendre Profits à pren(Davies' case, 3 Mod. 246). The liberty to hunt is one species of aucu- dre. pium, and the taking of birds by hawks seems to follow the same rule. The liberty of fishing appears to be of the same nature; it implies that the person who takes the fish, takes for his own benefit, and may carry them away (Anon., Hardr. 407; Fitzgerald v. Firbank, 1897, 2 Ch. 96; see Grove v. Portal, 1902, 1 Ch. 727). The liberty of hunting is open to more question, as it does not of itself import the right to the animal when taken; and if it were a licence given to one individual, either on one occasion or for a time, or for his life, it would amount only to a mere personal licence of pleasure, to be exercised by the individual licensee. But in the case of a grant by deed-" of free liberty with servants or otherwise to enter lands and there to hunt, hawk, fish, and fowl"-to persons, their heirs and assigns," where it is apparent that not merely the particular individual named, but any to whom they or their heirs choose to assign it should exercise the right, it has been considered that an interest or profit à prendre, was intended to be granted (Wickham v. Hawker, 7 M. & W. 78, 79; see Hooper v. Clark, L. R. 2 Q. B. 200). The property in animals fere nature, while they are on the soil, belongs to the owner of the soil, and he may grant a right to others to come and take them by a grant of hunting, shooting, fowling, and so forth, and such a grant is a licence of a profit à prendre. Substantially it may be reserved by the owner of the fee simple when he alienates, although it is considered that, technically speaking, in such a case it is a re-grant of the right by the alienee of the fee simple to the alienor (Ewart v. Graham, 7 H. L. 344, 345; see Houston v. Sligó, 52 L. T. 870; 55 L. T. 614). A right to cut down and carry away trees growing in a close (Bailey v. Stevens, 12 C. B. N. S. 91), and a right to take stones and sand from the seashore (Constable v. Nicholson, 14 C. B. N. S. 230), have been held to be profits à prendre. A claim to cut and carry away litter was held established as a claim by prescription to a profit à prendre (De la Warr v. Miles, 17 Ch. Div. 535). custom. Except in the case of common claimed by copyholders a profit à prendre Profit à prenin another's soil cannot be claimed by custom, for this among other dre in reasons, that a man's soil might thus be subject to the most grievous another's burdens in favour of successive multitudes of persons like the inhabitants soil cannot be claimed by of a parish or other district who could not release the right (A.-G. v. Mathias, 4 K. & J. 591; Constable v. Nicholson, 14 C. B. N. S. 230; Johnson v. Barnes, L. R. 7 C. P. 604; Bland v. Lipscombe, 4 Ell. & Bl. 713, n. (c); Allgood v. Gibson, 34 L. T. 883; Blewitt v. Tregonning, 3 Ad. & Ell. 554). Claims by custom on the part of "inhabitants" to profit à prendre in another's soil were held bad (Chilton v. London, 7 Ch. D. 735; Rivers v. Adams, 3 Ex. D. 361). Nor can such an indefinite class as "owners and occupiers " claim a profit à prendre by prescription (Tilbury v. Silva, 45 Ch. D. 98). But "inhabitants" were allowed to claim by custom a right to take water from a well, which was an easement (Race v. Ward, 4 E. & B. 702; Smith v. Archibald, 5 App. Cas. 489; see Harrop v. Hirst, L. R. 4 Exch. 43; Dungarvan v. Mansfield, 1897, 1 I. R. 420). See further as to claims to profits à prendre, the note, post, p. 34. (2) Before the passing of this act, a prescriptive claim was a claim of imme- Enjoyment morial right; the evidence in support of it was such as a party might be under the able to give in such a case; and the jury were to draw their inference from section. 2 & 3 Will. 4, c. 71, s. 1. Period of enjoyment. Pleading. In claims of right of way or other easement the periods to be twenty years and forty years. such proof as could be produced. Now in the case of claims under the act, the proof is limited to thirty years. But the party must prove his right for that whole period, and no presumption will be drawn from evidence as to part of that period (Bailey v. Appleyard, 8 Ad. & Ell. 161, and note explanatory of case, ib. p. i). It was also held, that proof of his enjoyment of pasture for twenty-eight years did not include proof of the right of turning on cattle for twenty years; the latter right being an easement only, a right of a quite different nature. The enjoyment under this section must be enjoyment as of right (De la Warr v. Miles, 17 Ch. Div. 591; as to enjoyment as of right, see post, p. 9). A tenant accordingly cannot acquire any right under this section in other land belonging to his landlord (Warburton v. Parke, 2 H. & N. 64). Nor is an enjoyment sufficient which can be referred to an agreement in writing made by the owner of the servient tenement (Lowry v. Crothers, I. R. 5 C. L. 98); but where the acts were done as of right it was immaterial that they were done under a claim of an invalid custom (De la Warr v. Miles, 17 Ch. Div. 585). As to the nature of the evidence to be given in claiming a right under this section to common appurtenant, see Commrs. of Sewers v. Glasse, 19 Eq. 150, 151. The plaintiff claiming a right of common by prescription in respect of his land, the defendant offered evidence that a person then deceased, while tenant of the plaintiff's land, had declared that he had no such right in respect of the land: but the declaration was held not admissible, inasmuch as it was a declaration by a tenant in derogation of the title of the reversioner (Papendick v. Bridgwater, 5 Ell. & Bl. 166; distinguish Blandy Jenkins v. Dunraven, 1899, 2 Ch. 121; and see Scholes v. Chadwick, 2 Moo. & R. 507; Reg. v. Bliss, 7 Ad. & Ell. 550). This section of the act does not prevent a claim to a right of common, &c., from being defeated after thirty years' enjoyment, by showing that such right was first enjoyed at a time when it could not have originated legally. A claim to common over a forest, in respect of a tenement grounded on thirty years' enjoyment may be defeated by showing that the tenement has been inclosed from the waste only forty years, and that a grant of any right over the forest would have been void by statute (Mill v. New Forest, 18 C. B. 60). As to the nature of the enjoyment requisite to support a claim under the act, see further the note to sect. 2, post. The 1st section requires in the case of a right of common or a profit à prendre enjoyment "without interruption for the full period of thirty years"; the most undoubted exercise of enjoyment for twenty-nine years and three-quarters will not be sufficient (Bailey v. Appleyard, 8 Ad. & Ell. 164; see Flight v. Thomas, 11 Ad. & Ell. 688; and compare Battersea v. Commrs. of Sewers, 1895, 2 Ch. 708). Taking the first, fourth, and fifth sections together, the period mentioned in the act is thirty years next before some suit or action in which the claim shall be brought into question (Richards v. Fry, 7 Ad. & Ell. 698; Wright v. Williams, 1 M. & W. 77). See further the note to sect. 4, post. As to pleading the section, see the note to sect. 5, post, and the early cases of Welcome v. Upton (6 M. & W. 401), and Jones v. Price (3 Bing. N. C. 52). 2. No claim which may be lawfully made at the common law (e), by custom, prescription, or grant, to any way or other easement, or to any watercourse, or the use of any water, to be enjoyed or derived upon, over, or from any land or water of our said lord the King, his heirs or successors, or being parcel of the Duchy of Lancaster or the Duchy of Cornwall, or being the property of any ecclesiastical or lay person, or body corporate, when such way or other matter as herein last before mentioned c. 71, s. 2. shall have been actually enjoyed by any person claiming right 2 & 3 Will. 4, thereto without interruption for the full period of twenty years, shall be defeated or destroyed by showing only that such way or other matter was first enjoyed at any time prior to such period of twenty years, but nevertheless such claim may be defeated in any other way by which the same is now liable to be defeated; and where such way or other matter as herein last before mentioned shall have been so enjoyed as aforesaid for the full period of forty years, the right thereto shall be deemed absolute and indefeasible, unless it shall appear that the same was enjoyed by some consent or agreement expressly given or made for that purpose by deed or writing. (e) As to the modes of claiming an easement by prescription at common Modes of law, and by non-existing grant, which were used before the passing of claiming easethis act, see Note II., post, p. 20. The act has provided an additional ments. mode of claiming easements, but has not abolished the former modes (see post, p. 20). As to the law of ways, see post, p. 50; and as to watercourses, see post, p. 71. As to the right to a pew, which is an easement, see post, p. 94. (1) Definition and nature of Easements...5. (2) Subject-matter of the Section...7. (3) Enjoyment under the Section...8. (1) Servient and dominant tenements. Easement is the general term for several species of liberties which one Definition man may have in the soil of another without obtaining any interest in the and nature land itself (Cro. Car. 419). Rights of accommodation in another's land, of easements. as distinguished from those which are directly profitable, are properly called easements. An easement (from the French word aise, i.e. commoditas) is defined to be a privilege that one neighbour hath of another by writing or prescription without profit, as a way, or a sink through his land, or such like (Kitch. 103; Hewlins v. Shippam, 5 B. & C. 229; see Mounsey v. Ismay, 3 H. & C. 497). "A servitude is a charge imposed upon one heritage for the use and advantage of a heritage belonging to another proprietor" (Code Civil, Art. 637). Easements are incorporeal rights (Hewlins v. Shippam, 5 B. & C. 221) imposed upon corporeal property, and not upon the owner of it, so that on the change of the owner of the servient tenement the right to the easement is still retained by the owner of the dominant tenement. There can be no easement, properly so called, unless there be both a servient and a dominant tenement (Rangeley v. Midland R. Co., 3 Ch. 310; see Hawkins v. Rutter, 1892, 1 Q. B. 671). The servient tenement is that over which a right claimed by custom, prescription, or grant is exercised, and the dominant tenement is that to which such right is attached. An easement must be connected with the enjoyment of the dominant tenement (Ackroyd v. Smith, 10 C. B. 164); but may benefit other tenements (Simpson v. Godmanchester, 1897, A. C. 696). It must be an incident of a known and usual kind (Hill v. Tupper, 2 H. & C. 121; 11 W. R. 784). The public right of passage over a highway was said not to be a dominant tenement in respect of which they could acquire an easement of discharging water from the road on to other land (A.-G. v. Copeland, 1901, 2 K. B. 101; see S. C., 1902, 1 K. B. 690). On the other hand, it has been said that a right of way may be appendant to a several fishery in gross (Hanbury v. Jenkins, 1901, 2 Ch. 401; see Edgar v. Fishery Commrs., 23 L. T. 732). It is essential that the two tenements should belong to different owners; for upon both becoming absolutely vested in the same person the inferior right of easement is merged in the superior title of ownership (Holmes v. Goring, 2 Bing. 83). The owner of two tenements can have no easement over one of them in respect of the other (Roe v. Siddons, 22 Q. B. Div. 236; see Bolton v. Bolton, 11 Ch. D. 970). 2 & 3 Will. 4, c. 71, s. 2. Instances of casements. Where there is an unity of seisin of the land and of the way over the land A way over the land of another, a gateway, watercourse, or washingplace in another's ground, may be claimed by prescription as easements; but a multitude of persons cannot prescribe, though for an ea enent they may plead custom (Cro. Jac. 170; 3 Leon. 254; 3 Mod. 294). In Goodday v. Mitchell, Cro. Eliz. 441, a way to a common fountain is mentioned as 2 & 3 Will. 4, an easement claimable for parishioners by custom. See Race v. Ward, c. 71, s. 2. sup. The undertakers of a navigation, in whom the soil of the river is not vested, have a mere easement in the land through which it passes (9 B. & C. 109; Hollis v. Goldfinch, 1 B. & C. 205). The licence to make a vault in a parish church, and to have the sole and exclusive use of it, is an easement (Bryan v. Whistler, 8 B. & C. 288). The right to sit in a pew in a church annexed to a house is an easement (Mainwaring v. Giles, 5 B. & Ald. 361; Hinde v. Chorlton, L. R. 2 C. P. 101; Brumfitt v. Roberts, L. R. 5 C. P. 224; see Crisp v. Martin, 2 P. D. 15; Halliday v. Phillips, 23 Q. B. Div. 53). The right to a fishing weir in non-tidal waters may be claimed as an easement (Rolle v. Whyte, L. R. 3 Q. B. 286; Leconfield v. Lonsdale, L. R. 5 C. P. 657). Under the 2nd section of the act, a prescription which was pleaded for a right every year, and at all times of the year, to turn cattle into a certain close, is too vague (Bailey v. Appleyard, 8 Ad. & Ell. 161). The second section refers to easements properly so called, and to rights which are in some way appurtenant to a dominant tenement (Shuttleworth v. Le Fleming, 19 C. B. N. S. 687). Accordingly, a custom for the freemen of a town to enter on another's land, to hold horse-races there, is not within the section (Mounsey v. Ismay, 3 H. & C. 486). The section extends to other easements besides ways and watercourses (Dalton v. Angus, 6 App. Cas. 798; Simpson v. Godmanchester, 1897, A. C. 709). Thus it extends to support for buildings from land (Dalton v. Angus, 6 App. Cas. 798), or from buildings (Le Maitre v. Davies, 19 Ch. D. 281); and to a right to open locks (Simpson v. Godmanchester, 1897, A. C. 696); and to easements of every description (Ib. 709); except light (Perry v. Eames, 1891, 1 Ch. 665; Wheaton v. Maple, 1893, 3 Ch. 48). A claim to a watercourse within this section includes a claim to send through another's watercourse polluted water (Wright v. Williams, 1 M. & M. 77); or sand and rubble (Carlyon v. Lovering, 1 H. & N. 784); also a claim to have water which would otherwise flow down to the plaintiff's land diverted over other land (Mason v. Shrewsbury_Co., L. R. 6 Q. B. 578; see Staffordshire Co. v. Birmingham Co., L. R. 1 H. L. 254). (2) Subjectmatter of the second sec tion. It has been said that this section includes only such easements as are Easement susceptible of interruption (Webb v. Bird, 10 C. B. N. S. 283; but see must be susDalton v. Angus, 6 App. Cas. 740). The owner of a windmill cannot ceptible of under this section claim by twenty years' user a free passage of air to his interruption. mill (Webb v. Bird, sup.); nor can the right of access of air to chimneys over the unlimited surface of a neighbour be acquired (Bryant v. Lefever, 4 C. P. Div. 172; see as to the passage of air through a defined channel, Bass v. Gregory, 25 Q. B. D. 481; Chastey v. Ackland, 1895, 2 Ch. 389; 1897, A. C. 155). Nor can subterranean water percolating in no known channels be acquired as an easement by user (Chasemore v. Richards, 7 H. L. C. 349). Nor can the right to annoy neighbours by noise be acquired by user, unless during the user the noise has amounted to an actionable nuisance; the above principle applying to both affirmative and negative easements (Sturges v. Bridgman, 11 Ch. D. 852; see Murgatroyd v. Robinson, 7 E. & B. 391). Where a claim is made under the act, the claimant must prove that the Right must right might at the beginning of or during the user have been granted to be capable him; and where such a grant would have been void the claim cannot be of being sustained (Staffordshire Co. v. Birmingham Co., L. R. 1 H. L. 278). So granted. a company incorporated for making a canal, and having powers under their act to take water for the canal, cannot acquire, under this section, a right to take water for any other purpose (National Manure Co. v. Donald, 4 H. & N. 8; see Rochdale Canal Co. v. Radcliffe, 18 Q. B. 287; Mill v. New Forest, 18 C. B. 60, ante, p. 4). Compare the case of a grant by a railway company which was held to be ultra vires (Mulliner v. Midland R. Co., 11 Ch. D. 611; see Re Gonty and Manchester Co., 1896, 2 Q. B. 439; Ayr Harbour Trustees v. Oswald, 8 App. Cas. 623). |