plaintiff and the defendant derived their title, was for more than sixty years before and until within thirty years seised in fee of the plaintiff's farm, and during the same period had an estate for life in the land over which the right of common was claimed, but never had actual possession of the dominant tenement, except by the tenant. More than thirty years before action, he joined with a remainder-man in making a conveyance of the servient tenement for making a tenant to the præcipe for the purpose of suffering a recovery, in order to raise money on mortgage; but no recovery was suffered, and S. continued possessed until twenty-eight years before the action, when the property was sold, and all community of title had ceased: it was held, that, although there was no unity of seisin to extinguish an easement or to prevent its existence, the facts precluded an enjoyment as of right within the meaning of this act. The title to the tenements was such that there could not, in point of law, have been an enjoyment of the right of common for the period of sixty years as of right, for S. being owner in fee of the farm, and also tenant for life and occupier of the common, the rights of the tenants over the common were derived from him, and as he could not have an enjoyment as of right against himself within the meaning of the statute, so neither could his tenants. (Warburton v. Parke, 2 H. & N. 64; 26 L. J., Exch. 298.)

According to the true construction of the statute, in order to make an user "as of right," it must be exercised for the period prescribed as of right against all persons, so as to be evidence of a perfect right. But a party has no right of way "as of right" if the exercise for the first seven years was during a period when the owner could not stop him.

A plea under this act of an user of a way as of right for twenty years over a close is not supported by proof of an user of the way for part of the twenty years while a party was the landlord and owner as well of the messuage in respect of which the right was claimed as of the close over which it was exercised, and for the rest of the period when the defendant had acquired the freehold of the messuage.

In 1823, M. built two adjoining houses, behind each of which was a piece of ground appropriated as a yard, but no wall divided the yards. In 1832, M. permitted the defendant to occupy one of the houses without payment of rent, and he was accustomed to pass over the yard of the other house, which was let from time to time to different tenants, to a public highway. M. continued owner of both houses until his death in December, 1838. In August, 1839, the trustees under his will conveyed the last-mentioned house and the ground behind it to a person through whom the plaintiff derived his title. In September, 1839, the trustees conveyed the other house and ground to the defendant, who continued to occupy and use the way across the plaintiff's yard without interruption until 1853. It was held, that there was no user of the way "as of right" for twenty years within the meaning of this section. The exercise, in the first instance, was during a period when the owner could not stop him, and therefore he gained no right during that time. The time when he used the way not of right could not be added to the time when he used it as of right. (Winship v. Hudspeth, 10 Exch. 5; 21 Law J., Exch. 268.)

In questions under this section it is most important to show the nature of the user, and of the interruptions, as bearing on the question, whether the enjoyment was as of right. For though no interruption less than a year breaks the period when once the enjoyment as of right has begun, yet interruptions acquiesced in for less than a year may show that the enjoyment never was of right. (Per Coleridge, J., 17 Q. B. 275.)

In an action for disturbing a watercourse, which of right ought to flow into the plaintiff's close to irrigate it, a denial of the right was pleaded. On the trial it appeared that the watercourse was not ancient, but that the water had flowed in its present course for more than twenty years past the plaintiff's close. There was evidence, that during that period the plaintiff and those under whom he claimed had been constantly in the habit of drawing off the water to irrigate his close, and that the owners of the watercourse resisted it. On one occasion, where the plaintiff's servant drew off the water, he was summoned before a justice for so doing; the plaintiff's son,

2 & 3 Will. 4,

c. 71, s. 2.

2 & 3 Will. 4, C. 71, s. 2.

User as of right.

by his direction, attended and defended the servant, and paid a fine of one shilling. The conviction was under a local act, from which there was a power of appeal. The plaintiff did not appeal. The conviction was tendered in evidence and rejected. In summing up the judge explained that the enjoyment to defeat an adverse right must be for twenty years without interruption acquiesced in for a year. One of the jury asked what would be the effect in law of a state of perpetual warfare between the parties? Which question the judge did not answer. The jury found that "the watercourse had been enjoyed as of right for twenty years and without interruption for a year," and were directed to find for the plaintiff. It was held that interruption, though not acquiesced in for a year, might show that the enjoyment never was of right but contentious throughout, though if once the enjoyment as of right had begun no interruption for less than a year could defeat it, and consequently that the manner in which the question was left and the verdict found was not satisfactory, and a new trial was granted. (Eaton v. Swansea Waterworks Co., 17 Q. B. 267.) It was also held, that the acquiescence of the plaintiff in the conviction was evidence as an acknowledgment that he did not enjoy as of right, and although its weight might be great or small, it ought not to have been excluded. (Ib.)

The plaintiff and the defendant occupied contiguous portions of land. For more than forty years, and as far back as living memory went, the occupiers of the plaintiff's land had been in the habit of passing over the defendant's land to a brook which lay on the other side of that land, and of damming up the brook when necessary, so as to force the water into an old artificial watercourse which ran across the defendant's land to the plaintiff's land. That was done for the purpose of supplying their cattle with water whenever they wanted it, except when the owners of the defendant's land used the water as they did at certain seasons of the year for irrigation. It was held, that upon this evidence the jury was warranted in inferring an user as of right by the occupiers of the plaintiff's land, of the easement on the defendant's land, and that for the interruption of such easement the plaintiff might maintain an action against the defendant. (Beeston v. Weate, 5 Ell. & Bl. 986.)

The plaintiff was possessed of a mill on the river Calder, and the defendant of a mill on the river Hebble, which flowed into the Calder at a point above the plaintiff's mill. The declaration complained that the defendant threw, placed and deposited into and upon the bed of the Hebble, and on the banks and side thereof at and near to the defendant's mill, large quantities of cinders and ashes, &c. which fell and were washed down and carried into the Hebble, and so were floated and passed with the water into the Calder and unto and into the plaintiff's mill-pond, and unto and into the plaintiff's part of the bed and channel of the Calder, filling them up and obstructing the working of his mill. The plea was as to the throwing, placing and depositing the cinders and ashes, that the defendant had been the occupier of the mill on the river Hebble for more than twenty years before the doing of the acts complained of, and that during all that time large quantities of cinders and ashes, &c. were necessarily produced at the mill, being the refuse of the ash-pit of the engine and the sweepings of the mill; and that, being such occupier, he enjoyed as of right and without interruption the privilege and easement of throwing, placing and depositing upon the bed and channel of the Hebble, and the banks and sides and near to his mill, all such quantities of cinders and ashes, &c. as were produced in the mill. The plea alleged that the cinders and ashes, &c. were produced in the defendant's mill, and justified the grievance in the lawful exercise of the privilege and easement. It was held, after verdict, that supposing the defendant to claim the banks and bed of the Hebble on and in which the cinders and ashes had been deposited as in his own occupation, or that the banks and bed were in the occupation of some third person against whom a valid right by way of easement had been gained, in either view the plea failed to show any right of easement as against the plaintiff. (Murgatroyd v. Robinson, 7 Ell. & Bl. 391; 3 Jur., N. S. 615; 26 Law J., Q. B. 233.) It was held also, that even if it were taken that an easement in the bed and banks of the Hebble had been alleged and proved, and as a

natural consequence that the deposit on the bed of the Calder was necessarily established, still as it was consistent with the plea that no perceptible deposit had been occasioned on the plaintiff's part of the bed of the Calder for twenty years, the plea was insufficient to show a claim to an easement of depositing cinders and ashes on the plaintiff's part of the bed of the Calder. (16.) But it was questioned whether, if such a claim had been alleged, it could be considered as a valid claim to an easement within the meaning of this section. (Ib.)

2 & 3 Will. 4,

c. 71, s. 2.

tion of the above

It has been decided under the statute 2 & 3 Will. 4, c. 71, that an enjoy- The case of ment of twenty years, which cannot give a good title against all having Bright v. Walker estates in the lands in question, will not confer any title at all, even as be- on the constructween the parties having partial interests under leases. In an action on section. the case for obstructing a way claimed from a wharf, in a close called Cliff meadow, through Eacham meadow, over the locus in quo, called the Acre, where the obstruction took place, into a public highway, it appeared that Cliff and Eacham meadows were held under the Bishop of Worcester by a lease for three lives, granted in 1805. In 1809 Roberts purchased the leasehold interest from Davis, and began to make bricks in Cliff meadow, and carried them through Eacham meadow and the Acre into the highway. In 1811 Dalton, the then occupier of the Acre, and the assignee of a copyhold lease for four lives, under the bishop of the close called Acre, put up a gate to obstruct Roberts in carrying bricks. Roberts broke it down, and he and the plaintiff, who claimed under him, continued to carry bricks over the Acre, without interruption, for more than twenty years, when the defendant, claiming as assignee of the bishop's lease, under Dalton, obstructed the way, and for that obstruction the action was brought. No proof was given on either side, that either of the original leases had been surrendered, and therefore the case was considered as if both had continued to the time of the obstruction. The jury found, first, that they would not presume any grant of right of way by the bishop; and secondly, that the plaintiff Roberts had actually enjoyed the way without interruption for more than twenty years, and the only question was, whether such an enjoyment gave to the plaintiff a right of way over the defendant's close, so as to enable him to maintain the action, which question depended upon the construction of the above act, particularly the second section. Parke, B., in giving the judg ment of the court, after stating the second section of the act, said, "In order to establish a right of way, and to bring the case within this section, it must be proved that the claimant has enjoyed for the full period of twenty years, and that he has done so as of right,' for that is the form in which by section 5, (post, p. 21,) such a claim must be pleaded, and the like evidence would have been required before this statute, to prove a claim by prescription or non-existing grant. Therefore, if the way shall appear to have been enjoyed by the claimant, not openly, and in the manner that a person rightfully entitled would have used it, but by stealth, as a trespasser would have done; if he shall have occasionally asked the permission of the occupier of the land, no title would be acquired, because it was not enjoyed 'as of right.' For the same reason it would not, if there had been unity of possession during all or part of the time; for then the claimant would not have enjoyed, as of right,' the easement,' but the soil itself. So it must have been enjoyed without interruption.' Again, such a claim may be defeated in any other way by which the same is now liable to be defeated; that is, by the same means by which a similar claim, arising by custom, prescription, or grant, would now be defeasible; and therefore it may be answered by proof of a grant or of a licence written or parol for a limited period, comprising the whole or part of the twenty years, or of the absence or ignorance of the parties interested in opposing the claim, and their agents, during the whole time that it was exercised. So far the construction of the act is clear, and this enjoyment of twenty years having been uninterrupted, and not defeated on any ground above mentioned, would give a good title; but if the enjoyment take place with the acquiescence or laches of one who is tenant for life only, the question is, what is its effect, according to the true meaning of the statute? Will it be good to give a right against the see, and against those claiming under it by a new lease, or

2 & 3 Will. 4, c. 71, s. 2.

Bright v. Walker.

only as against the termor and his assigns during the continuance of the term? or will it be altogether invalid? In the first place, it is quite clear that no right is gained against the bishop. Whatever construction is put on the seventh section, (see post, p. 26,) it admits of no doubt under the eighth (see post, p. 28.) It is quite certain, that an enjoyment of forty years instead of twenty, under the circumstance of this case, would have given no title against the bishop, as he might dispute the right at any time within three years after the expiration of the lease; and if the lease for life be excluded from the longer period, as against the bishop, it certainly must from the shorter. Therefore, there is no doubt but that possession of twenty years gives no title as against the bishop, and cannot affect the right of the see.

The important question is, whether this enjoyment, as it cannot give a title against all persons having estates in the locus in quo, gives a title as against the lessee and the defendant claiming under him, or not at all? We have had considerable difficulty in coming to a conclusion on this point; but on the fullest consideration we think that no title at all is gained by a user which does not give a valid title against all, and permanently affect the see.

"Before the statute this possession would indeed have been evidence to support a plea or claim by non-existing grant from the termor in the locus in quo to the termor under whom the plaintiff claims, though such a claim was by no means a matter of ordinary occurrence; and in practice the usual course was to state a grant by an owner in fee to an owner in fee. (See sect. 5 of the act, post, p. 21.) But we think that since the statute such a qualified right is not given by an enjoyment for twenty years. For in the first place, the statute is for the shortening the time of prescription, and if the periods mentioned in it are to be deemed new times of prescription, it must have been intended that the enjoyment for those periods should give a good title against all, for titles by immemorial prescription are absolute and valid against all. They are such as absolutely bind the fee in the land. In the next place, the statute nowhere contains any intimation that there may be different classes of rights qualified and absolute, valid as to some persons and invalid as to others.

"From hence we are led to conclude, that an enjoyment of twenty years, if it give not a good title against all, gives no title at all; and as it is clear that this enjoyment, whilst the land was held by a tenant for life, cannot affect the reversion in the bishop now, and is therefore not good as against every one, it is not good against any one, and therefore not against the defendant. This view of the case derives confirmation from the 7th section. (See post, p. 26.) This section, it is to be observed, in express terms excludes the time that the person (who is capable of resisting the claim to the way) is tenant for life; and unless the context makes it necessary for us, in order to avoid some manifest incongruity or absurdity, to put a different construction, we ought to construe the words in their ordinary sense. That construction does not appear to us to be at variance with any other part of the act, nor lead to any absurdity. During the period of a tenancy for life, the exercise of an easement will not affect the fee; in order to do that, there must be that period of enjoyment against the owner of the fee.

"The conclusion, therefore, at which we have arrived is, that the statute in this case gives no right from the enjoyment that has taken place; and as sect. 6 forbids a presumption in favour of a claim to be drawn from a less period than that prescribed by the statute, and as more than twenty years is required in this case to give a right, the jury could not have been directed to presume a grant by one of the termors to the other by the proof of possession alone. Of course nothing that has been said by the court, and certainly nothing in the statute, will prevent the operation of an actual grant by one lessee to the other, proved by the deed itself, or upon proof of its loss by secondary evidence; nor prevent the jury from taking this possession into consideration, with other circumstances, as evidence of a grant which they may still find to have been made, if they are satisfied that it was made in point of fact." It was therefore decided that the plaintiff was

not entitled to recover, and a nonsuit was entered. (Bright v. Walker, 4 Tyrw. 508, 513; 1 Cr., Mees. & Rosc. 211, 223.)

A lease was made in 1775, by A. to B., which comprised two closes, Blackacre and Whiteacre. A mill was subsequently built on Blackacre, which was supplied by a stream through Whiteacre; and S., a tenant of the mill under B., and subsequent tenants, enjoyed this right of water from 1818. In 1836, C., who was entitled to the reversion expectant on B.'s lease, appointed Whiteacre to K. for life from the expiration of that lease, retaining Blackacre. The lease of 1775 expired in April, 1840. K., in 1841, demised Whiteacre to the defendant; and, in 1843, C. demised Blackacre to the plaintiff, with the right to water sufficient for the mill as enjoyed by S. In an action for the diversion of the water, commenced in June, 1860, there was evidence of uninterrupted enjoyment from 1818 to 1860; it was held that, as during the lease of 1775 there was a unity of possession in B., the enjoyment by his tenant pending that lease was not an enjoyment "as of right" within the meaning of this act. (Wilson v. Stanley, 12 Ir. Com. Law Rep., N. S. 345.) It was held also, that the user for more than twenty years since April, 1840, conferred no title to the easement under this section, the reversion of the servient tenement during that period being vested in the tenant for life. (lb.) Pigott, C. B., said, that according to the exposition of this statute in Bright v. Walker, two results follow from its enactments, first, a presumptive title founded on a presumed grant cannot now be established at all by proof of long uninterrupted possession; and secondly, the presumptive title which the statute has given the means of establishing can only be applied where the enjoyment has been such as to bind all estates, comprising the whole fee simple in the servient tenement. (76. p. 351.)

2 & 3 Will. 4,

c. 71, s. 2.

To support a plea framed on the 2nd section of this statute, of a right of Evidence of user. way enjoyed for forty years, evidence may be given of user more than forty years back. If evidence of user beyond forty years were to be excluded, it might be that, after the case had been established as far as thirty eight years back, a discontinuance of proof might occur as to the two or three preceding years, and the party might fail because he was unable to carry his case on without going to the distance of forty-one. (Lawson v. Langley, 4 Ad. & Ell. 890.)

A plea of forty or twenty years' user, under the 2nd and 4th sections of this statute, is not supported by proof of a user from a period of fifty years before the commencement of the action down to within four years of it; and if the evidence go no further there is no case for the jury. In an action of trespass quare clausum fregit the defendant pleaded a right of way for twenty and forty years respectively, under the second section. Evidence was given of user, in support of these pleas, more than fifty years ago, but there was a failure to show that the user continued for the last four or five years before the commencement of the action. A verdict was found for the plaintiff on motion for a new trial the rule was refused. (Parker v. Mitchell, 3 P. & Dav. 655; 11 Ad. & Ell. 788.) This was considered a correct decision. Pleas of twenty and forty years' user respectively under this act are not supported by proof of user for forty years and upwards before the commencement of the action to within fourteen months of it. Some act of user must be shown to have been exercised in the year in which the action was brought. (Lowe v. Carpenter, 6 Exch. 825.) And Parke, B., intimated that some act of user ought to be shown to have been exercised in the year in which the action was brought. (Ib. See post, s. 6, p. 26, n. (n).)

If there be ten years' enjoyment of a right of way, and then a cessation under a temporary agreement for another ten years, yet this may be a sufficient enjoyment of the old right for twenty years to make it indefeasible under this statute, for the agreement to suspend the enjoyment of the right does not extinguish it, nor is it inconsistent with the right. (Payne v. Shedden, 1 M. & Kob. 383.) To a plea of forty or twenty years' enjoy ment of a way, a licence, if it cover the whole time, must be pleaded. (Tickle v. Brown, 4 Ad. & Ell. 369.) But a parol or other licence, given and acted on during the forty or twenty years, may be proved under a general