acquired must be by the person in possession (y) of, or claiming under the owner of, the dominant tenement; and as such user is evidence of a previous grant, and as the right claimed is in its nature not of a temporary kind, but one which permanently affects the rights of property in the servient tenement, it follows that such grant can only have been legally made by a party capable of imposing such a permanent burthen upon the property (z), i.e., the owner of an estate of inheritance (a), and, therefore, in order that such user may confer an easement, the owner of the servient inheritance must have known that the easement was enjoyed, and also have been in a situation to interfere with and obstruct its exercise, had he been so disposed; his abstaining from interference will then be construed as an acquiescence (b)-contra non volentem agere non currit præscriptio (c).

In the case of Outram v. Maude (d), in 1791 A. obtained a demise from B. of an underground goit or drain to be then constructed in B.'s land, for the purpose of conducting water from A.'s mill so long as an annual rent should be paid by A. to B. In 1836 the demise of 1791 was put an end to, and liberty was given to A., who was at that time yearly tenant from B. of the land through which the goit ran, to change the goit or drain of 1791, and to substitute a new cut for conducting pure and clean water at the like rent. The new cut was made and used for pure water, and the old goit (as the plaintiff alleged) continued to be used for foul water.

In 1866 the land through which the goit ran was sold to C., and in 1867 A.'s yearly tenancy of the land was determined. In an action by A. in 1879 to restrain C. from interfering with his use of the old goit, to which he claimed title by prescription from alleged open and uninterrupted use and enjoyment thereof from 1856, it was held, that until 1867 A. could not acquire an easement in the land of which he was yearly tenant, distinct from the use and enjoyment of such land, as against B. his landlord, and accordingly that, assuming the open and uninterrupted user from 1836 to have been proved, he had failed to establish any title by prescription as against C.

(y) See Gared v. Martyn, 19 C. B. (N.s.) 732; 34 L. J. C. P. 353; 13 L. T. 74: where the lessee or licensee of the right of digging clay, was held to have sufficient interest in the soil to claim a prescriptive right to the flow of water under 3 & 4 Will. 4. c. 71; see Ivimey v. Stocker, L. R. 1 Ch. 396; Outram v. Maude, note (d) infra.

(z) See Att.-Gen. v. Great Northern Rly. Co., [1909] 1 Ch. 778; 78 L. J. Ch. 577; 28 J. P. 41, C. A.

(a) Daniel v. North, 11 East, 372; see Phear, Rights of Water, pp. 80, 85; 1 Wms. Saund. 346; 2 Wils. 258. See also as to rights of lessees of mines, Chamber Colliery Co. v. Hopwood, post, p. 253. n. (q).

(b) Gray v. Bond, 2 Brod. & Bing. 667; 22 R. R. 530.

(c) Gale. p. 215.

(d) 17 Ch. D. 391; 50 L. J. Ch. 783; 29 W. R. 818.

and as

can be claimed when

the servient

owner is

As by the common law, the title to an easement is from a No easement presumed grant by the owner of the servient tenement, only such easements can be claimed by the Prescription Act as could be lawfully claimed at common law, by custom, prescription, under a or grant, no claim can be founded by long user to any easement disability to grant. which the servient owner is under a legal or physical disability to grant. Thus, in the case of Chasemore v. Richards (e), where the action was for intercepting percolating water, the House of Lords held that as no grant could have been made of such percolating water, length of time could raise no presumption of such a grant (f).

So, in The Staffordshire Canal v. Birmingham Canal (g), where a prescriptive claim, by user of forty years, was set up to a use of water which a canal company was not empowered to make by their Act, Lord Chelmsford, L.C., says, "To impose such a servitude upon the water in their canal as that contended for by the appellants, would have been ultra vires of the respondents, consequently length of user could never confer an indefeasible claim upon appellants under the Prescription Act, as no grant of the use of the water could have been lawfully made by the respondents" (h).

and

So, in The Rochdale Canal v. Radcliffe (i), the owners of land within twenty yards of a canal were empowered by statute 34 Geo. 3. c. 78, to take water from the canal for the sole purpose of condensing steam for their engines, such water to be returned to the canal (allowing for inevitable waste) so that no obstruction should accrue to the navigation, the surplus water to go to the Bridgewater Canal. The company sued the defendant for taking more water than was sufficient for condensing steam, and for using it for other purposes. The defendant pleaded a user as a right for twenty years to draw off so much water as was necessary for other purposes. The jury found the twenty years' user as of right, and a verdict was ordered to be entered for the

(e) 7 H. L. C. 349. See also Ewart v. Belfast Guardians, 9 L. R. Ir. 172; ante, pp. 229 et seq.

Where a riparian owner of land adjoining plaintiff's mill and higher up the river abstracted water by pipes and syphons, and thereby interfered with the flow of water to the mill, it was held that he could not justify the abstraction on the ground that if the bank of the river had not been made watertight by the plaintiff (who had the right to repair it) he would have been entitled to the same amount of water by percolation-such a claim was not sustainable under the Prescription Act as a watercourse or otherwise: Roberts v. Fellowes

(1906), 94 L. T. 279.

(9) L. R. 1 H. L. 254; Rochdale Canal v. Radcliffe, 18 Q. B. 287; National Manure Co. v. Donald, 4 H. & N. 8; see also Ellwell v. Birmingham Canal,

3 H. L. 812.

(h) See Brymbo Water Co. v. Lester's Lime Co. (1894), 8 R. 329.

(1) 18 Q. B. 287; 21 L. J. Q. B. 297; see also Manchester Ship Canal v. Rochdale Canal Co., 81 L. T. 472, C. A.; affirmed by H. L. (1902), 85 L. T.

585.

defendant. On a motion by the plaintiffs for judgment, non obstante veredicto, the Court of Queen's Bench held, that the company could not, consistently with the Acts of Parliament regulating their canal, have granted the water for other purposes than that permitted by the statute 34 Geo. 3. c. 78. That an actual grant, if proved, for the purposes mentioned in the plea, would have been illegal and no justification, and, therefore, that the grant for such purposes, implied from twenty years' user, was no legal defence.

The foregoing cases all relate to presumed grants by canal companies of water which they were held unable to grant-a claim, however, by a canal company against riparian owners on a river to take more water from the river than they were entitled to by their Act has been held to be a claim which may be established by prescription (k).

In McEvoy v. Great Northern Railway (1), prior to 1849 the plaintiff's predecessors had enjoyed the right to take water from a natural stream flowing near their holding. In 1849, the defendant railway company, in constructing their line, interfered with or tapped the subterraneous course of this stream, which ceased thenceforward to flow: the water that had supplied it finding its way to the surface at a cutting on the company's line. This water the company conveyed along and away from their line in a new artificial channel. The water of this new stream was not until 1898 used by nor was it of any use to the company. In 1898 the company commenced to make use of this water supply for their own purposes, and the plaintiff, who had been taking the water thereof since 1849 for domestic purposes, brought an action for disturbance of a prescriptive right. The jury found that the new stream was substituted for the old, and that the company had not constructed the new channel until they should require to use the water for their own purposes. Held, that, this new artificial watercourse being made for the benefit of the company on the company's own land, no enjoyment of the water thereof while the water was of no use to the company could create a prescriptive right in the plaintiff; and, further, that the existence of such a right would be inconsistent with the purposes of the incorporation of the company, and with the obligations of the company to provide for the security of their permanent way and the safety of the public; and that the new artificial stream not being the same as the stream formerly in existence, no contract in regard thereto, as an "accommodation work" within section 16 of the Railway Clauses Act, 1845, could be presumed.

(k) Att.-Gen. v. Grand Junction Canal, ante, p. 223.

(1) [1900] 2 Ir. R. 325, C. A.

must be nec

vi, nec clam,

nec precario

The enjoyment which, by length of time, both at common law Enjoyment and under the statute, will confer the right to an easement must be uninterrupted (m), open (n), and of right—nec vi, nec clam, neo precario (o). Where, therefore, the right (p) claimed has been interrupted by any lawful impediment, or where the easement has, either from the mode in which the party enjoys it, or from the nature of the easement itself, been secret, or where again the enjoyment has originated under licence or permission from the owner of the servient tenement, no right will be gained by length of time (q). Under the statute, however, where the right to a watercourse has existed for forty years, it will not be invalidated unless such licence be by deed of writing (r).

In French Hoek Commissioners v. Hugo (8), which was an appeal from a judgment of the Supreme Court of the Cape of

(m) An act of partial interruption may qualify an easement without destroying it. Thus in Rolle v. Whyte (L. R. 3 Q. B. 286; 37 L. J. Q. B. 105; 17 L. T. 560), where a weir was claimed across a river by prescription, and a miller on the banks was proved to have occasionally interrupted it by shutting down a fender, it was held that this did not destroy the right, as there was nothing to prevent a second easement being acquired, as subordinate to one already existing, where the subject-matter admitted of it.

(n) See Angus v. Dalton, 3 Q. B. D. 85.

(0) Civ. Law, 1, ff. de serv. 1. 10, ff.; Co. Litt. 113 b; Bracton, lib. 2, f. 51, f. 52 a. 222 b. See also Chamber Colliery v. Hopwood, 32 Ch. D. 549; 55 L. J. Ch. 859; 55 L. T. 149; Burrows v. Lang, [1901] 2 Ch. 503, post, pp. 264, 277. Where the acquisition of the easement is by grant, the rule nec vi, &c., does not apply: Schwann v. Cotton, [1916] 2 Ch. 460.

(p) Angell, p. 369; see Gaved v Martyn, post, p. 271, where the question of right is fully treated; Mason v. Shrewsbury Rly., L. R. 6 Q. B. 578.

(q) See per Erle, C.J., 17 Q. B. 275; Bright v. Walker, 1 C. M. & R. 219; 40 R. R. 536; Gardner v. Hodgson's Brewery Co., [1901] 2 Ch. 198; 84 L. T. 373; 49 W. R. 421, C. A.; Gale, pp. 204, 208. The defendant in 1834 demised to the plaintiffs the coal under the Chamber Hall Estate for fifty years, with power to sink pits, make soughs, &c., erect engines, and make drains, &c., for supplying such engines with water, and also to do certain other acts on the surface for the better draining and working the demised mines of which the plaintiffs might become lessees under the lands of any other persons. In 1836 the plaintiffs took a lease for thirty-five years of the Oak Colliery from a neighbouring landowner. In 1846 the plaintiffs made a drain about a mile long, chiefly on the Chamber Hall Estate, by which they diverted a small natural stream on the Chamber Hall Estate, and brought it down to the Oak Colliery, where they made reservoirs for the water at considerable expense. They did not ask leave to make the drain, but the defendant's agent saw the work going on and encouraged it. In 1872 the plaintiffs became owners in fee of the Oak Colliery. In 1884, when the lease from the defendant expired, the defendant stopped the drain and diverted the water. The plaintiffs, claiming a right by prescription to the water, commenced this action to restrain him from doing so. The Vice-Chancellor of the County Palatine held that the watercourse was made under the powers of the lease, and he dismissed the action. Held, on appeal, that this dismissal was right, for that if the making of the drain was not authorised by the lease (as to which the Court gave no opinion), it was made and enjoyed, either under the belief of both parties that it was authorised by the lease, or under a comity between landlord and tenant, and that there was no enjoyment as of right so as to give the tenant a right to the water after the lease had expired: Chamber Colliery Co. v. Hopwood, 32 Ch. D. 549; 55 L. J. Ch. 859, C. A.

(r) 2 & 3 Will. 4. c. 71, s. 3; see per Blackburn, J., in Mason v. Shrewsbury Ply., L. R. 6 Q. B. 578.

(s) 10 A. C. 336; 54 L. T. 92; 34 W. R. 18, P. C. See also Breda v. Silberbauer, L. R. 3 P. C 84.

and adverse.

Good Hope, the respondent's predecessor in title in 1820 constructed a watercourse on Crown lands, by means of which he diverted the water of two springs which rose thereon, so that they mingled with the waters of a private stream admittedly belonging to the farm of which the respondent owned a portion. He did so with the licence of those who acted as agents for the Government, in order to have the permanent use of the water for his farm, and continued his user for the period of prescription; after which the respondent applied for and obtained from the Colonial Government a renewal of the licence originally granted to his predecessor.

The Judicial Committee held that the user of the diverted water by the respondent's predecessor was not precarious, and that the act of the respondent had not deprived him of the prescriptive right acquired by his predecessor so as to enable the Crown to give to the plaintiffs in 1881 a title to the said water.

So in Brymbo Water Co. v. Lester's Lime Co. (t), it was held that the fact that an embankment was occasionally out of repair during a term of years, or too low when the water was high (e.g. in a flood), and so allowed water to overflow into other land, could give the owner of that land no prescriptive right to the overflow.

Interruptions, though not acquiesced in for a year, may show that the enjoyment never was of right, but contentious throughout, though, if once the enjoyment as of right has begun, no interruption for less than a year can defeat it (u).

In order, moreover, to raise the presumption of a grant of an easement in a watercourse, the user or enjoyment must have been adverse (x)—that is, have interfered with the enjoyment of the owner of the servient tenement. "By usage," says Cresswell, J., delivering the judgment of the Court in Sampson v. Hoddinot (y), "(a man) may acquire a right to use the water in a manner not justified by his natural right; but such acquired right has no operation against the natural right of a landowner higher up the stream, unless the user by which it was acquired affects the use that he himself has made of the stream or his power to use it, so as to raise the presumption of a grant, and so render the tenement above a servient tenement. If the user of the stream by the plaintiff for irrigation was merely an exercise of his natural right, such user, however long continued, would not render the defendant's tenement a servient tenement, or in any way affect the natural rights of the defendant to use the water. If the user

(t) (1894), 8 R. 329.

(u) Eaton v. Swansea Waterworks Co., 17 Q. B. 269; 20 L. J. Q. B. 482.

(x) Angell, p. 368.

(y) 1 C. B. (N.S.) 611.