of Best on Presumptions (p. 103), who, in referring to the expression of Lord Ellenborough, above cited, that it is "a conclusive presumption," remarks, that it would be "an expression almost as inaccurate as calling the evidence a bar," "whereas, the clear meaning of the cases is, the jury ought to make the presumption and act definitively upon it, unless it is encountered by adverse proof.”1 Whatever discrepancy there may be between the language of the different cases, it will probably be found to have arisen from the courts not making a distinction between the ancient doctrine of prescription which was, from its very nature conclusive, as it went back beyond the period of evidence, and the modern doctrine of prescription, which is another name for presumption, and which, like all legal presumptions of evidence, is subject to be negatived or controlled by other evidence.2 The propriety of this criticism will more clearly appear, when the effect of even slight circumstances in controlling the inferences to be drawn from mere length of enjoyment, comes to be considered. And many questions which it had been somewhat difficult to decide, between the ancient doctrine of prescription and the modern one of presumed grant, have been settled in England by the statutes 3 and 4. Wm. IV. ch. 71, fixing a time of prescription in certain cases, and prescribing what shall be required to be proved, to establish the rights to such easements as water, light, and the like. 19. While, in the case of an easement created by grant, the language made use of by the parties limits and defines their respective rights, in the case of prescription the only way of determining these rights is by referring to user, or mode and extent of enjoyment of what is claimed for the requisite period of time. Thus there are, as will be seen hereafter, a variety of kinds of way known to the law, and whether a man has acquired a footway, a horseway, or a carriageway by prescription, would depend upon the evidence of the mode 1 Best, Presump. § 88; Bright v. Walker, 1 C. M. & R. 217; 3 Stark. Ev. 3d ed. 911; Wms. Saund. 175 c, n.; Lamb v. Crosland, 4 Rich. 356, 543, where it is said Judge Story did not make the proper distinction between a proper prescription and a presumption of a non-existing grant, the latter of which arises after twenty years enjoyment, the former goes beyond legal memory. 2 Washburn, Easements, 66 et seq. and cases cited. 3 Bright v. Walker, 1 C. M. & R. 217; 1 Greenl. Ev. § 17, n. 1; Tud. Lead. Cas. 114. In Massachusetts, rights to light and air cannot be acquired by prescription. Mass. Gen. Stat. ch. 90, §§ 32, 33. in which he may have enjoyed it, and it may, in fact, have been used for so many purposes as to justify a jury in finding that the easement is a general right embracing all these.1 [*42] *20. As user thus becomes so important in determining questions of prescriptive right, the law has been careful in defining the circumstances which must concur in connection with the actual enjoyment of any of these privileges, called easements, to give them the legal character and incidents of an easement. To give a user this effect, it must be uninterrupted, in the land of another, by the acquiescence of the owner, for a period of at least twenty years (or the period of limitation of the State where the land lies), under an adverse claim of right, while all persons concerned in the estate in or out of which it is derived, are free from disability to resist it, and are seised of the same in fee and in possession during the requisite period. Where all these circumstances concur, it raises a prima facie evidence of a right to such easement acquired by a grant which is now lost. Though, in regard to the easement of light, some of these propositions may have to be somewhat modified, especially as to the adverse character of the enjoyment.2 Many of the cases make use of the term "adverse enjoyment," which is substantially the same as its being enjoyed under a claim of right against the owner of the land, out of which the easement is derived. And all the cases concur in the doctrine that the right must be exercised adversely to that of the land-owner, since no length of enjoyment by his permission and under a recognition of his right to grant or withhold it, at his pleasure, will ripen into an easement. The inference of a grant, if raised at all, is derived from a claim on the one side, and a yielding on the other, of that which can properly be created only by grant. Thus in Miller v. Garlock, an uninterrupted enjoyment of a way across another's lands for twenty years, unexplained, was presumed to be under the claim and assertion of a right adverse to the owner, not only giving title by prescrip 1 Cowling v. Higginson, 4 M. & W. 245; Brunton v. Hall, 1 Gale & D. 205, 210, and note; s. c. 1 A. & E. N. s. 792. 2 Bract. Lib. 2, ch. 23, § 1; Smith v. Bennett, 1 Jones (N. C.), 372; Colvin v. Burnet, 17 Wend. 546; Pierre v. Fernald, 26 Me. 440; Sargent v. Ballard, 9 Pick. 251, 255; French v. Marstin, 4 Fost. (N. H.), 440; Okeson v. Patterson, 29 Penn. St. 22; Parker v. Foote, 19 Wend. 309; Hart v. Vose, 19 Wend. 365; Luce v. Carley, 24 Wend. 451; Mebane v. Patrick, 1 Jones (N. C.), 23; Pierce v. Selleck, 18 Conn. 331. 8 Miller v. Garlock, 8 Barb. 153. tion, but raising a presumption of a grant. And in Bowen *v. Team, the court say: "The owner of the soil by pre- [*43] scription, which is another name for adverse possession, held for twenty years of an easement, is supposed to grant a way, &c." 2 It is no objection to the acquiring of an easement by adverse enjoyjoyment, that it began by permission, if claimed adversely during the requisite period, as a matter of right. Thus, where the grantee of a piece of land on receiving his deed, agreed with the grantor that he, the grantor, might continue to use a way across it as he had been accustomed to do, it was held that he might show this, after enjoying the way for twenty years, as evidence that he did it under a claim of right.3 21. To constitute such an adverse enjoyment as will give a party an easement in another's land, it must be had while there is some one to whom such use is adverse. It must, moreover, be open, and such as the owner is presumed to be cognizant of. If stealthily done, it would not give a right. And it has been held, that mere passing across open unenclosed land would not gain a right of way, without something to show that by so doing a right to such use was asserted, though, in some cases, the use of a way across even wild lands has been held to give an easement therein.7 This would, pro bably, depend upon the nature of the use, and how far it indicated that it was done in the exercise of a claim of right. The enjoyment of the natural flow of water through the land of the owner of the soil, is not deemed adverse so as to give him a technical easement therein, and the same would be true of light and air in connection with lands or tenements, if there had not grown up, by the common law of England, a right to prevent another from interrupting their enjoyment in connection with a dwelling-house, shop, •[*44] 1 Bowen v. Team, 6 Rich. L. 298, 302; Townsend v. McDonald, 2 Kern. 381, 391. 2 Warren v. Jacksonville, 15 Ill. 236; Pue v. Pue, 4 Md. Ch. Dec. 386; Hoy v. Sterrett, 2 Watts, 327, 330; Garrett v. Jackson, 20 Penn. St. 331; Onley v. Gardiner, 4 M. & W. 496, 500; Tickle v. Brown, 4 A. & E. 369; Monmouthshire Canal Co. v. Harford, 1 C. M. & R. 631. 8 Ashley v. Ashley, 4 Gray, 197; Arbuckle v. Ward, 29 Vt. 43. Hoy v. Sterrett, 2 Watts, 327; Hurlbut v. Leonard, Brayt. 201; Manning v. Smith, 6 Conn. 289; Felton v. Simpson, 11 Ired. 84. * Onley v. Gardiner, 4 M. & W. 500; Tickle v. Brown, 4 A. & E. 369. 6 Watt v. Trapp, 2 Rich. 136; Gibson v. Durham, 3 Rich. 85. 7 Reimer v. Stuber, 20 Penn. St. 458. and the like, after the ordinary period of prescription, as will be hereafter explained.1 22. Upon somewhat the same principle that applies in respect to acquiring an easement of light and air, the owner of the soil has a right to support the same against that of an adjacent owner, so that the latter may not dig so near to the line of his land as to cause the soil of the former to fall into the excavation thus made, provided the owner of such soil has not done any thing to increase the weight to be sustained. He has not, as will be seen, a right to make use of the land of the adjacent owner, to sustain buildings which he may erect on his own land.2 23. Where one was accustomed to turn his eattle upon his own land to depasture the same, between which and a beach there was no fence, and they were in the habit of going on to this beach to feed, there was held not to be such an adverse enjoyment of the right, as to give him an easement to feed his cattle upon the beach. And one test whether an easement may have been gained by an enjoyment which is adverse or not, is whether it is injurious to the right of others. If it is not, it will not, ordinarily, lay a foundation for a prescription, though, as hereafter shown, this is not always true.1 Nor will such enjoyment be adverse, in the sense of the law, unless it is with the knowledge of the owner of the estate in which it is sought to claim an easement.5 If, therefore, it can be shown that the enjoyment of the right or privilege claimed, during any part of the time in which it was said to have been gained by user, was by permission of the [*45] *owner of the land, the idea of its being adverse, and as of right, and therefore an easement, is negatived. And an admission to this effect after the expiration of the twenty years, may operate to defeat a claim of its being an easement. So an offer, 1 Sury v. Pigot, Poph. 166; Tud. Lead. Cas. 104, 105; Moore v. Rawson, 3 B. & C. 332; Parker v. Foote, 19 Wend. 309; Cross v. Lewis, 2 B. & C. 689, 690. 2 Wyatt v. Harrison, 3 B. & Ad. 871; Napier v. Bulwinkle, 5 Rich. 324. See post, pl. 46. 8 Donnell v. Clark, 19 Me. 174. 4 Donnell v. Clark, 19 Me. 174;.Wheatley v. Baugh, 25 Penn. St. 528. 6 Daniel v. North, 11 East, 370; Hogg v. Gill, 1 McMull. 329; Nash v. Peden, 1 Speers, 17; Hoy v. Sterrett, 2 Watts, 330; Washburn, Easements, 111. Bright v. Walker, 1 C. M. & R. 211, 219; Sargent v. Ballard, 9 Pick. 251, 255; Church v. Burghardt, 8 Pick. 327; Beasley v. Clark, 2 Bing. N. c. 705; Tickle during the alleged period of prescription, by the owner of the dominant tenement to purchase the right of the servient one, would rebut the presumption of an easement gained by twenty years enjoyment.1 Another illustration of the principle that one may not, by enjoyment of a privilege, acquire a right to claim it as an easement, or maintain an action for being deprived of it, if it has not been adverse, is found in the case of one owning land upon a stream, the waters of which had been so regulated and controlled by a dam and mill above, belonging to another, as to prevent their overflowing this land for more than twenty years. After this, the mill-owner removed his dam, and the waters in the stream, thereupon, at times flowed over and damaged the land as they had formerly done. It was held that, as the enjoyment of this protection to the land had been in no sense adverse to the proprietorship of the mill and dam, it created no easement to have the water controlled by them, and the land-owner was without remedy for the injury he sustained by their removal.2 24. In addition to the use being adverse on the part of the dominant estate, to create an easement, it should have been enjoyed by the acquiescence of the owner of the servient estate, he knowing of such use and not objecting thereto, per patientiam veri domini qui scivit et non prohibuit, sed permisit de concessu tacito. Thus where the owner of land, while upon the same, forbid an adjacent owner of land from entering upon *his land and doing acts of repair to an [*46] aqueduct which the latter had laid in the land of the former, it was held to be evidence to rebut any supposed acquiescence, by which the one who had used the aqueduct might have acquired a right of easement by the use of the same.1 25. In the next place, the enjoyment must be continuous and uninterrupted for the requisite term of time. Of course this must be according to the nature of the easement, as there must obviously be a different degree of continuity in ever so frequent use of a mere pas v. Brown, 4 A. & E. 369; Monmouthshire Canal Co. v. Harford, 1 C. M. & R. 614, per Lord Lyndhurst; Onley v. Gardiner, 4 M. & W. 500. 1 Watkins v. Peck, 13 N. H. 360. 2 Felton v. Simpson, 11 Ired. 84. Bract. Lib. 2 c. 23, § 1; Sargent v. Ballard, 9 Pick. 251, 254; Colvin v. Burnet, 17 Wend. 564; Pierre v. Fernald, 26 Me. 440. ♦ Powell v. Bagg, 8 Gray, 441; Washburn, Easements, 112; Eaton v. Swansea Waterworks Co. 17 A. & E. n. s. 267, 269. |