The mere suspension of the exercise of a prescriptive right is By non-user. not sufficient to destroy the right, without some evidence of an intention to abandon it; but a long-continued suspension may render it necessary for the person claiming the right to show that some indication was given during the period that he ceased to use the right of his intention to preserve it (y). Thus where the owner of an old pond had an acquired right to draw water for it from a well, and had disused the old pond for forty years, and during that time drew water for three new ponds; it was held that the right to draw water for the old pond was not destroyed, as it was impossible to conceive that he intended to abandon the right, when he was actually drawing water into three new ponds instead of into the old one (z). So a right of way along a stream has been held not to be lost if the owner allows part of it to be choked with mud, even though it may be impassable for sixteen years; for the mud may be removed if the way is required (a). In Tilbury v. Silva (b), Kay, J., held that the abandonment by a holder of copyhold lands of a right claimed to fish in the waters of the manor for four years before action brought, was a bar to that right under section 4 of the Prescription Act (2 & 3 Will. 4. c. 71). 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 (c). tenement. Where the dominant tenement is altered in such a way as will By alteration make it incapable any longer of the perception of the particular of dominant easement," or where the alterations are of such a permanent character as will evince an intention on the part of the dominant owner to abandon it, the easement will be extinguished, although the abandonment has not existed for twenty years. Thus, in Crossley v. Lightowler (d), where the owners of dye works had a privilege or easement of pouring foul dye water into a river, it was held, that though the mere non-user of this easement was not in itself a proof of abandonment of it, without some evidence of intention to abandon it, yet the non-user of the mills for twenty years, and the fact that they had been allowed to go to ruin, was sufficient to destroy the right. (y) Crossley v. Lightowler, L. R. 2 Ch. 478; 3 Eq. 279. (z) Hale v. Olroyd, 14 M. & W. 789. See per Wood, V.-C., in Crossley v. Lightowler, L. R. 3 Eq., p. 293. (a) Bower v. Hill, 1 Bing. N. C. 549; 41 R. R. 630. (b) 45 Ch. D. 98; 62 L. T. 254; post, Chap. VI. (e) Eaton v. Swansea Waterworks Co., 17 Q. B. 26; 20 L. J. Q. B. 482. (d) L. R. 2 Ch. 478; L. R. 3 Eq. 279; see Reg. v. Chorley, 12 Q. B. 518; Ward v. Ward, 7 Ex. 838; Mason v. Hill, 5 B. & Ad., at p. 16; 39 R. R. 354; Liggins v. Inge, 7 Bing. 693; 33 R. R. 615. By express release. By merger. By licence. Abandon ment of enjoyment. renunciation. 2. To the disposition by the owner of two tenements, the merger by the union of them. 3. To the easement of necessity, the permission to do some act which of necessity destroys it. 4. And to the acquisition by prescription, abandonment of user." (0) An express release at law to be effectual must be by deed, but in equity an easement may be lost by agreement or acquiescence (p). Easements are also extinguished by operation of law if the seisin of the dominant and servient tenements are united in one and the same person (q). Unity of possession only suspends an easement-it requires unity of seisin to destroy it (r). A natural right to water coming from another tenement is not destroyed by unity. There is a difference," says Whitelock, J., in Sury v. Piggott (8), “between a way or common and a watercourse. These begin by private right, by prescription, by assent as a way or common, being a particular benefit to take part of the profits of the land. This is extinct by unity; because the greater benefit shall drown the less. A watercourse doth begin ex jure naturæ, having taken this course naturally, and cannot be averted." (t) It has already been stated, that a licence by the dominant owner to do an act incompatible with the existence of an easement, may work its extinguishment, even when the licence is by parol (u). When a prescriptive right is once acquired it cannot be lost by any subsequent act not amounting to a surrender, even though such act would have, previous to the acquisition of such right, rendered the user precarious (x). (0) Where an easement is granted for a particular purpose by Act of Parliament, the easement ceases when the particular purpose is accomplished. Thus, where a canal company, who had a right to take water from a canal, were reconstituted a railway company by Act of Parliament, it was held that they could not grant away their right to the water, for as they had ceased to require it for their canal, the right to take it ceased: National Manure Co. v. Donald, 4 H. & N. 8; 28 L. J. Ex. 185. (p) Gale on Easements, p. 512; Goddard on Easements (6th ed., 1904), pp. 555 et seq.; see Fisher v. Moon, 11 L. T. (N.s.) 623; Waterlow v. Bacon, L. R. 2 Eq. 514; Johnson v. Wyatt, 9 Jur. (N.S.) 1334; Davies v. Marshall, 10 C. B. (N.s.) 697; Soloman v. Glover, 10 W. N. 117; and ante, pp. 221 et seq. (q) Goddard on Easements, pp. 552, 567; Gale, pp. 18, 156, 180, 516; see ante, pp. 232 et seq. (r) Thomas v. Thomas, 2 C. M. & R. 34; 41 R. R. 678; Simper v. Foley, 2 John. & H. 555; James v. Plant, 4 A. & E. 761; 43 R. R. 465; Co. Litt. 313 a. (s) 3 Bulst. 339; Poph. Rep. 166. (t) See Bright v. Walker, 1 C. M. & R. 219; 40 R. R. 536; and Goddard on Easements, p. 524. (u) Ante, p. 225. (x) French Hoek Commissioners v. Hugo, 10 App. Cas. 336; 54 L. T. 92; see also Breda v. Silberbauer, L. R. 3 P. C. 84. The mere suspension of the exercise of a prescriptive right is By non-user. not sufficient to destroy the right, without some evidence of an intention to abandon it; but a long-continued suspension may render it necessary for the person claiming the right to show that some indication was given during the period that he ceased to use the right of his intention to preserve it (y). Thus where the owner of an old pond had an acquired right to draw water for it from a well, and had disused the old pond for forty years, and during that time drew water for three new ponds; it was held that the right to draw water for the old pond was not destroyed, as it was impossible to conceive that he intended to abandon the right, when he was actually drawing water into three new ponds instead of into the old one (z). So a right of way along a stream has been held not to be lost if the owner allows part of it to be choked with mud, even though it may be impassable for sixteen years; for the mud may be removed if the way is required (a). In Tilbury v. Silva (b), Kay, J., held that the abandonment by a holder of copyhold lands of a right claimed to fish in the waters of the manor for four years before action brought, was a bar to that right under section 4 of the Prescription Act (2 & 3 Will. 4. c. 71). 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 (c). tenement. Where the dominant tenement is altered in such a way as will By alteration make it "incapable any longer of the perception of the particular of dominant easement," or where the alterations are of such a permanent character as will evince an intention on the part of the dominant owner to abandon it, the easement will be extinguished, although the abandonment has not existed for twenty years. Thus, in Crossley v. Lightowler (d), where the owners of dye works had privilege or easement of pouring foul dye water into a river, it was held, that though the mere non-user of this easement was not in itself a proof of abandonment of it, without some evidence of intention to abandon it, yet the non-user of the mills for twenty years, and the fact that they had been allowed to go to ruin, was sufficient to destroy the right. (y) Crossley v. Lightowler, L. R. 2 Ch. 478; 3 Eq. 279. (z) Hale v. Olroyd, 14 M. & W. 789. See per Wood, V.-C., in Crossley v. Lightowler, L. R. 3 Eq., p. 293. (a) Bower v. Hill, 1 Bing. N. C. 549; 41 R. R. 630. (b) 45 Ch. D. 98; 62 L. T. 254; post, Chap. VI. (e) Eaton v. Swansea Waterworks Co., 17 Q. B. 26; 20 L. J. Q. B. 482. (d) L. R. 2 Ch. 478; L. R. 3 Eq. 279; see Reg. v. Chorley, 12 Q. B. 518; Ward v. Ward, 7 Ex. 838; Mason v. Hill, 5 B. & Ad., at p. 16; 39 R. R. 354; Liggins v. Inge, 7 Bing. 693; 33 R. R. 615. By encroachment. An encroachment by the dominant owner, which will render the easement necessarily more onerous to the servient tenement, will have the effect of destroying the easement (e); but a mere alteration, causing no injury to the servient heritage, will not destroy the right (f). Thus, in Cawkwell v. Russell (g), where the plaintiff had a prescriptive right to send waste water down the defendant's drain, and sent down also foul water from his privies, the Court held that defendant had a right to stop the whole drain, as the encroachment could not be prevented in any other way; but in the subsequent case of Hill v. Cock (h), where the plaintiff increased a prescriptive right to water by lengthening a gutter, the defendant was not held justified in stopping this extensive user, by means which altogether prevented plaintiff's enjoyment of the water. (e) Bealey v. Shaw, 6 East, 208; 8 R. R. 466; Brown v. Best, 1 Wils. 174; Crossley v. Lightowler, L. R. 2 Ch. 478; Att.-Gen. v. Birmingham, 4 K. & J. 528; Att.-Gen. v. Kingston, 13 W. R. 888. (f) Luttrel's Case, 4 Rep. 86; Hall v. Swift, 6 Scott, 167; 44 R. R. 728; and cases cited ante, pp. 258-264; Harvey v. Walters, L. R. 8 C. P. 62; Thomas v. Thomas, 2 C. M. & R. 34; 41 R. R. 678. (g) 26 L. J. Ex. 314. (h) 26 L. T. (N.s.) 185. CHAPTER V. OF CANALS, WATER SUPPLY, AND DOCKS. Ir is proposed in the present chapter to treat of the rights, duties and liabilities of-I. Canal Companies; II. Water Companies; and III. Dock Companies. All such bodies are either combinations 'of adventurers incor- These bodies porated under Acts of Parliament in order to supply a public are but subwant for their own profit, or are public bodies invested with the individual like powers for the public benefit. In both cases, however, they enterprise. are but substitutes for individual enterprise. "It is well observed," says Blackburn, J. (a), "by Mr. Justice Mellor in Coe v. Wise (b), of corporations like the present, formed for trading and other profitable purposes, that though such corporations may act without reward to themselves, yet in their very nature they are substitutions on a large scale for individual enterprise. And we think that, in the absence of anything in the statutes (which create such corporations) shewing a contrary intention in the legislature, the true rule of construction is that the legislature intended that the liability of corporations thus substituted for individuals should, to the extent of their corporate funds, be co-extensive with that imposed by the general law on the owners of similar works. If, indeed, the legislature has by express enactment or necessary intendment enacted that they shall not be subject to such a liability, there is an end of the question." Rights and duties of bodies exer cising statu Since these bodies are almost universally incorporated by Act of Parliament, and derive all their powers to interfere with the rights of private property from the special enactment creating them, it will be well to note some of the general principles tory powers. regulating the liability of companies exercising statutory powers. Where the legislature has authorised certain persons to effect a certain purpose, and has given them the powers necessary to effect it, they may exercise those powers to their full extent (a) Delivering the opinion of the judges in the House of Lords in Mersey Docks Co. v. Gibbs, L. R. 1 H. L. 93; 11 H. L. Cas. 686. (b) 5 Best & Sm. 440; 4 New Rep. 354. |