the statute on the ground of concealed fraud, the person bringing the action must show that he, or some person through whom he claims, has been by such fraud deprived of the land which he seeks to recover, and that the fraud could not with reasonable diligence have been known or discovered more than the statutory period before the action ().

A bonâ fide purchaser for valuable consideration who has not assisted in the commission of such fraud, and who at the time of making the purchase had no notice thereof, will not be affected (a); but this saving will not extend to a purchaser for value who contracted through an agent who was aware of the fraud, though the purchaser personally had no knowledge thereof (b).

IMPORTANCE OF THE STATUTES OF LIMITATIONS AS BETWEEN VENDORS AND PURCHASERS.

The Statutes of Limitations do not affect the right of a purchaser under an open contract to have a forty years' title (c). In certain cases a possessory title acquired under the statutes has been forced on a purchaser (d); but having regard to the obvious difficulty of proving a negative, viz., that there never has been an acknowledgment in writing given to the

(z) Lawrance v. Norreys (1890), 15 App. Cas. 210. (a) 3 & 4 Will. 4, c. 27, s. 26.

(b) Vane v. Vane (1873), L. R. 8 Ch. 383.

(c) Cooper v. Emery (1844), 1 Phil. 388; Jacobs v. Revell, [1900] 2 Ch., at p. 869; Nisbet and Potts' Contract, [1905] 1 Ch., at p. 401.

(d) Scott v. Nixon (1843), 3 Dr. & War. 388; Games v. Bonnor (1855), 33 W. R. 64.

original owner (e), it is very difficult for a vendor claiming merely by possession to make out a title without the aid of some special condition. Thus, even when a mortgagee has been in possession for over twelve years, and the equity of redemption is barred, it is more usual for the mortgagee to sell by virtue of his power of sale (ƒ).

THE ACQUISITION OF EASEMENTS BY PRESCRIPTION.

The several lengths of uninterrupted enjoyment which will confer a title in respect of rights of common, ways and watercourses, and the use of lights and other easements, are regulated by the Prescription Act.

The Prescription Act provides that no claim to any right of common or other profit to be taken and enjoyed upon any land, except as in the Act provided, and except tithes, rent and services, shall be defeated after thirty years' enjoyment by showing that profit or benefit was taken or enjoyed at any time prior to such periods of thirty years; and when such right or profit shall have been enjoyed for sixty years, such right shall be deemed absolute and indefeasible, unless taken and enjoyed by some consent or agreement in writing (g).

Right of Way.-No claim to any way or other easement, or to any watercourse, or to the use of any water to be enjoyed over or from any land, shall

(e) Cf. In re Alison (1879), 11 Ch. D., at pp. 290, 295. (f) Ibid., p. 284.

(g) 2 & 3 Will. 4, c. 71, s. 1.

be defeated after twenty years' enjoyment by showing the commencement prior to such period of twenty years; and when the same shall have been enjoyed for forty years, the right shall be deemed absolute and indefeasible, unless taken and enjoyed by some consent or agreement in writing (h).

Right to Light.-When the access and use of light to and for any dwelling-house, workshop, or other building shall have been actually enjoyed therewith for the full period of twenty years without interruption (i), the right thereto shall be deemed absolute and indefeasible, unless shown to have been enjoyed by consent or agreement in writing (k). Inasmuch as by s. 4 of the Act the interruption must be acquiesced in for a year, a right to light is in effect acquired after the expiration of nineteen years and one day. Until, however, the full twenty years have expired, the right is inchoate, and no injunction to restrain interference with this right will be granted (1).

It is not necessary that the building should have been occupied, or indeed fit for occupation, to entitle the owner to maintain an action for the obstruction of its lights (m); but a right to access of light to a

(h) 2 & 3 Will. 4, c. 71, s. 2; Gardner v. Hodgson's Kingston Breweries Co., [1901] 2 Ch. 198.

(i) I.e., adverse obstruction and not mere discontinuance of See Smith v. Baxter, [1900] 2 Ch. 143.

user.

(k) 2 & 3 Will. 4, c. 71, s. 3; but this section does not bind the Crown: Perry v. Eames, [1891] 1 Ch. 658; Wheaton v. Maple & Co., [1893] 3 Ch. 48.

(1) Bridewell Hospital v. Ward, Lock & Co. (1893), 68 L. T.

212.

(m) Courtauld v. Legh (1869), L. R. 4 Ex. 126.

house cannot be acquired under this section by the lapse of time during which the owner of the house or his occupying tenant is also the occupier of the land over which the right would extend (n).

Right to Air.-It has been held that s. 2 of the Prescription Act does not apply to access of air (0); but in the opinion of both Lord SELBORNE and Lord DAVEY it includes easements of every description (p). A right to have air come over a neighbour's land in a particular channel, to a particular place, may be established by immemorial user, and also, it would seem, under the Prescription Act (q); but in the absence of an actual contract, no one can claim a right to have a general current of air over his neighbour's property kept uninterrupted (r).

Interruption. -Each of the before-mentioned periods are to be deemed to be the period next before some suit or action wherein the claim, to which such period may relate, shall be brought in question, and no act shall be deemed an interruption within the meaning of the Act unless the same shall be acquiesced in for one year after the party interrupted shall have notice thereof (s); but in order to

(n) Ladyman v. Grave (1871), 6 Ch. 763.

(0) Webb v. Bird (1861), 10 C. B. (N.s.) 268.

(p) Simpson v. Godmanchester Corporation, [1897] A. C., at p. 709.

(a) Bass v. Gregory (1890), 25 Q. B. D. 481.

(r) Chastey v. Ackland, [1895] 2 Ch. 389; [1897] A. C. 155; but see Cable v. Bryant, [1908] 1 Ch. 259, a case of derogation from grant.

(8) 2 & 3 Will. 4, c. 71, s. 4; Flight v. Thomas (1841), 8 Cl. & F. 231; Bridewell Hospital v. Ward, Lock & Co. (1893), 68 L. T. 212.

negative such acquiescence it is not necessary that the person interrupted should have taken any active steps to remove the obstruction, but it will be sufficient if he has in a reasonable manner communicated to the party causing the interruption that he does not acquiesce in it (t).

No presumption will be allowed in support of any claim upon proof of the exercise or enjoyment of the right or matter claimed for any less period than such period mentioned in the Act as might be applicable to the case and nature of the claim (u).

Provisoes for Persons under Disability and Reversioners. The time during which any person, otherwise capable of resisting any claim, shall have been under disability shall be excluded in the computation of the periods before mentioned (x).

When land or water, upon or over which such way or watercourse shall have been enjoyed or derived, shall be held for any term exceeding three years from the granting thereof, the time of enjoyment during such term shall be excluded in the computation of the period of forty years, in case the claim shall within three years after the determination of such term be resisted by any person entitled to any reversion expectant on the determination thereof (y).

(t) Glover v. Coleman (1875), L. R. 10 C. P. 108; see also Smith v. Smith (1875), L. R. 20 Eq. 500.

(u) 2 & 3 Will. 4, c. 71, s. 6.

(x) Ibid., s. 7.

(y) Ibid., s. 8.