2&3 Will. 4, c. 71, s. 2. Replication to right of way, not withstanding user as of right and without interruption. traverse of the enjoyment as of right; and this, whether such licence be granted for a single time of using, or for a definite period. (Ib.) It seems, that where issue is joined on the allegation of an interruption acquiesced in, the party alleging the interruption, having proved a non-user during part of the time, may, in order to show that such non-user was not a voluntary forbearance, give evidence that, two years before the non-user commenced, the party claiming the way paid a consideration for being allowed to use it. (Ib.) A right claimed under this act can only be co-extensive with the user; and an issue on a plea justifying under such a right is an issue, not upon the right, but the user, and differs therefore from an issue or a right claimed by prescription. (Davies v. Williams, 16 Q. B. 546.) To an action for entering and passing over the plaintiff's close, the defendant pleaded a right of way from time immemorial, and an user for forty years and twenty years. An user, in fact, for more than forty years was proved. In 1839 all ways not set out in an award were extinguished by an act of parliament, and this way was not set out: it was held, that it could not be presumed from the user that the award was otherwise than properly made, and that less than twenty years having elapsed since the award, no right had been gained under this section. (Holden v. Tilley, 1 F. & F. 650.) To an action of trespass quare clausum fregit, the defendant pleaded a right of way across the locus in quo for the occupiers of B. field, on foot and with cattle and carriages, enjoyed as of right and without interruption for twenty years before the commencement of the suit under this statute. The replication traversed so much of the alleged right of way as was claimed to be used with carriages, and as to the residue of the plea, set forth an act of parliament (the Trent Navigation Act, 23 Geo. 3, c. 48), under which the Trent Navigation Company, before the commencement of the twenty years, made a haling path for towing vessels along the river across the locus in quo into B. field; that after the commencement of the twenty years, under the powers of another act of parliament (The Dunham Bridge Act, 11 Geo. 4, c. 66), another haling-path was set out nearer to the river, but also across the locus in quo and into B. field, and that thereupon the navigation company abandoned the former haling-path, which thenceforth ceased to be used as such; that, before and at the commencement of the twenty years the occupiers of B. field used and enjoyed as of right and without interruption, by virtue and under the provisions of the first act of parliament, a way along the first-mentioned haling-path across the locus in quo on foot and with cattle, which right of way ceased and determined on the abandonment of that haling-path; but that, from that time until the commencement of suit, the occupiers of B. field, claiming right to the way as a continuation of the right before enjoyed by them under the act of parliament, continued to use the same way, which way, and the use and enjoyment thereof along the haling-path as aforesaid, is the same way and the same use and enjoy. ment thereof as in the plea mentioned, except as to the user with carriages. It was held, on demurrer, that the replication was good, that it disclosed facts showing that the defendant's user, although as of right and without interruption during the twenty years, within the meaning of the 2nd and 5th sections of this statute, was not such as would, previously thereto, have been sufficient to prove a claim by prescription or non-existing grant; and that those facts must be replied specially, and could not have been given in evidence under a traverse of the right of way alleged in the plea. (Kinloch v. Neville, 6 Mees. & W. 795.) Alderson, B., said, "If a parol permission extends over the whole of the twenty years, the party enjoys the way as of right and without interruption for the twenty years; not so, if the leave given be from time to time within the twenty years. The 5th section creates the difficulty. The act, however, does not alter the nature of the right necessary to give a legal title. The party who avers the right must mean such as could be inferred to exist by custom, prescription or non existing grant; and the other party must show, in his answer, that there is no right of that nature. Here the replication states, that within twenty years before the commencement of the suit, the haling-path was shifted, and the previous one abandoned. If so, according to the act of parliament, the defendant's right to use it ceased, So that the replication shows that the defendant could not have exercised the right either by custom, prescription or grant, and is therefore sufficient." Leave was given to amend, by pleading that the defendant had enjoyed the right for forty years. (Kinloch v. Neville, 6 Mees. & W. 806.) It seems that under the 2nd section of this act, prescription for a right, every year, and at all times of the year, to put and turn the party's cattle into and upon a certain close, is too vague, and may be demurred to. If there be no demurrer, and the issue on such plea be tried, the party prescribing and relying on the 2nd section must give proof applicable to some definite easement. And he will fail if the evidence entitle him not to an easement, but to a profit à prendre. (Bailey v. Appleyard, 8 Ad. & Ell. 161.) 2 & 3 Will. 4, c. 71, s. 2. III. LIGHTS. for twenty years have been by 3. When the access and use of light (i) to and for any dwel- Claim to the use ling-house, workshop or other building, shall have been actually of light enjoyed enjoyed therewith for the full period of twenty years without indefeasible, interruption, the right thereto shall be deemed absolute and in- unless shown to defeasible, any local usage or custom to the contrary notwith- consent. standing, unless it shall appear that the same was enjoyed by some consent or agreement, expressly made or given for that purpose by deed or writing (k). (i) See note on law of lights, post. It is to be observed that the actual enjoyment required by this section Period of enjoymust be for twenty years, without interruption, but it is not necessary for ment, twenty the enjoyment, as in the case of profits à prendre under the first section, and years without interruption. of easements under the second section, that it should be had by any person claiming right thereto. (k) To a declaration for obstructing ancient lights, the defendant pleaded the custom of London to build on ancient foundations to any height; that the defendant was possessed of an ancient messuage adjoining the plaintiffs' premises, and towards which the windows mentioned in the declaration looked, and that pursuant to the custom he built thereon, and thereby unavoidably a little obscured the plaintiffs' windows. To this plea the plaintiffs replied that the access of light and air to the windows in question had been enjoyed as of right and without interruption by the respective occupiers of the plaintiffs' messuage for and during the full period of twenty years before the said obstruction, and for and during the full period of twenty years next before the commencement of a suit (or action) wherein the plaintiffs' claim in this action and to the said access and use of light and air was and is brought in question. It was held, Williams, J., dissenting, that the twenty years' enjoyment of the access and use of light to a dwelling-house, &c., under the 3rd and 4th sections of this act, is taken to be the period next before some action or suit wherein the claim shall have been brought in question, and consequently that the replication was good. (Cooper v. Hubbuck, 12 C. B., N. S. 456; 9 Jur., N. S. 575.) The custom to rebuild to any height upon ancient foundations in the city of London is destroyed by this act. (Ib.) According to this section, a claim to the use of light could not have been established unless it had been actually enjoyed for the full period of twenty years before the commencement of the action, but if there has been an enjoyment for nineteen years and a fraction, and then an interruption takes place, the right may be established at the end of the twentieth year, inasmuch as the interruption, under the 4th section, in order to defeat the twenty years' user, must have been acquiesced in or submitted to for a whole year. (Flight v. Thomas, 11 Ad. & Ell. 688; 3 P. & Dav. 442, affirmed by House of Lords, 1 West. 671; 5 Jur. 811; 8 Cl. & Fin. 231. See post, p. 20.) Lord Campbell, C. J., observed, "The decision in Flight 2 & 3 Will. 4, c. 71, s. 3. v. Thomas may establish conclusively that, when an easement has once been The period of twenty years' enjoyment, which confers a right for the access of light under this section, is by the 4th section of this act the period of twenty years next before any suit or action wherein the claim to the right was brought into question, and is not limited to the period of twenty years next before the pending suit or action. (Cooper v. Hubbuck, 12 C. B., N. S. 456; 31 L. J., C. P. 323; 9 Jur., N. S. 575.) This section of the act is retrospective, so that the right to the access of light and air may be acquired by virtue of an enjoyment prior to the passing of the act. (Simper v. Foley, 2 Johns. & H. 555.) An union of the ownership of the dominant and of the servient tenements for different estates does not extinguish an easement of this description, but merely suspends it so long as the union of ownership continues, and upon a severance of the ownership the easement revives. (Ib.) Where a right to an easement of this description is acquired against an owner of a leasehold interest in the servient tenement it is acquired also against the owner of the reversion. (Ib.) This section converts into a right such an enjoyment only of access of light over contiguous land as has been had for twenty years in the character of an easement, distinct from the enjoyment of the land itself, and the statute places this species of negative easement on the same footing in this respect as those positive easements provided for by the other sections. (Harbidge v. Warwick, 3 Exch. 552.) The plaintiff and the defendant occupied houses adjoining each other as tenants under leases, both of which were granted by the same lessor on the same day and both expiring at the same time. The defendant, by building on his own premises, obstructed a window in the house of the plaintiff. Though the latter had had uninterrupted enjoyment of light and air for more than twenty years, it was held that the circumstance of the two houses being held under the same landlord and for the same term did not prevent the one tenant from acquiring an indefeasible right to light as against the other. (Frewen v. Phillips, 11 C. B., N. S. 449; 7 Jur., N. S. 1246; 30 L. J., C. P. 356.) The judgment of the court in this case was founded upon Truscott v. Merchant Taylors' Company (11 Exch. 855), in which case Coleridge, J., said, p. 863: "In this case the Court of Exchequer gave judgment for the plaintiffs below, without argument, on the authority of The Salters' Company v. Jay (3 Q. B. 109). The only question is, whether that case was rightly decided. That depends on the construction of the 3rd section of the Prescription Act, which is addressed merely to the access of light. That section seems to me to simplify and almost new-found the mode of acquiring the right to the access of light. It founds it on actual enjoyment for the full period of twenty years without interruption, unless that enjoyment is shown to have been by consent or agreement expressly made by deed or writing, thus putting the right on a simple foundation and with the simplest exception." And Cresswell, J., said: "In the course of legislation then and since, parliament has been actuated by a desire to settle titles and rights. One object of the Prescription Act was to shorten the time by which persons who had the access and use of light could acquire an absolute right to it. The 3rd section does not say when the access and use of light shall have been enjoyed as of right, because every person has a right to so much light as can come in at his window. The Prescription Act brought this to a simple question; it says that after twenty years' enjoyment without interruption the right shall be deemed absolute and indefeasible." In Salters' Company v. Jay (3 Q. B. 109) and Truscott v. Merchant Taylors' Company (11 Exch. 855) it had been held, that an enjoyment of light for twenty years next before the suit confers an indefeasible right under this section, notwithstanding the local custom of London (confirmed by acts of parliament) that house walls might be raised to any height if upon the ancient foundations; but if an action for obstructing the light were delayed till after the obstruction had continued for a year, the claimant could not rely upon this act, not having enjoyed the light for twenty years next before the suit. See sect. 4, and the custom would in that case prevail. Mere payment of rent by the occupier of a house for the use of lights is not an interruption of the enjoyment within this section. (Plasterers' Company v. Parish Clerks' Company (in error), 6 Exch. 630; 15 Jur. 965; 20 L. J., Exch. Ch. 362.) The occupier of a house paid an annual sum, under a parol agreement, to the owner of the adjoining land for the liberty of keeping the windows open, which looked upon the land, and continued in such active enjoyment for twenty years. It was held, on error, in an action by the occupier against the owner of the adjoining premises for an obstruction to his lights, that the payment so made was no evidence of an interruption of the enjoyment within this section. (Ib.) 2 & 3 Will. 4, c. 71, s. 3. An actual enjoyment of light for twenty years, even under a permission Verbal licence. verbally asked for the occupier of a house, and given by the person having a right to obstruct, is sufficient to confer a right under this section. (Lon don (Mayor) &c. v. Pewterers' Company, 2 M. & Rob. 409.) By the custom of London, which is stated in the case of Wynstanley v. Custom of Lee (2 Swanst. 339, 340), an occupier of a house there had not an absolute London. property in the enjoyment of his share of light, whatever it might be, but the owner of the adjoining house or site of houses might build to any height, and to the obstruction of his light, unless he was precluded by some writing between them. And the custom was not repealed merely by the length of time during which one party enjoyed and the other acquiesced in such enjoyment. (2 Swanst. 341. See Privilegia Londoni, p. 101, cited Mood. & Malk. 351; and see Godb. 183; Yelv. 215; 1 Bulstr. 115; Com. R. 273; 1 Burr. 248; 3 Carr. & P. 317; Shadwell v. Hutchinson, 3 C. & P. 615; M. & M. 350; 2 B. & Ad. 97.) This section extends to the custom of the city of London, authorizing one neighbour to obstruct the access of light to another's messuage, &c., by building on an ancient foundation; therefore in an action for building so as to darken windows which had been enjoyed without interruption for twenty years, the custom of London is no longer a defence. (Salters' Co. v. Jay, 3 Q. B. 109; 2 Gale & D. 414.) The last case is confirmed by Truscott v. Merchant Taylors' Co., 11 Exch. 855; 2 Jur., N. S. 356; 25 Law J., Exch. 173.) IV. PERIODS HOW TO BE COMPUTED. periods to be for claims to 4. Each of the respective periods of years hereinbefore men- Before-mentioned tioned shall be deemed and taken to be the period next before deemed those some suit or action wherein the claim or matter to which such next before suits period may relate shall have been or shall be brought into ques- which such tion, and no act or other matter shall be deemed to be an inter- periods relate. ruption within the meaning of this statute, unless the same shall have been or shall be submitted to or acquiesced in for one year after the party interrupted shall have had or shall have notice thereof, and of the person making or authorizing the same to be made (1). commencement of suit. (1) This section is nothing but an exposition of the proof required to Averment as to establish the right. (Jones v. Price, 3 Bing. N. C. 52.) In a plea under this enjoyment before statute it is sufficient to aver an user of the right for thirty, sixty, twenty or forty years, according to the nature of the case, next before the commencement of the suit, and it is not necessary to allege that it has existed for forty years before the act complained of in the declaration. (Wright v. Williams, 1 Tyr. & G. 375; 1 Mees. & W. 77; Richards v. Fry, 7 Ad. & Ell. 707.) S. C 2 & 3 Will. 4, c. 71, s. 4. How time is to be computed. Twenty years' enjoyment by the occupier, in order to give right under this statute, must be up to the time of the commencement of the suit, not up to the time of the act complained of; and, consequently, an enjoyment of twenty years or more before that act gives only what may be termed an inchoate title, which may become complete or not by an enjoyment subsequent, according as that enjoyment is or is not continued to the commencement of the suit. This apparent absurdity, arising from a strict construction of the act, was fully considered and acted on in the two cases last cited. (Per Parke, B., Ward v. Robins, 15 Mees. & W. 242.) As it is impossible that the acts of user should continue to the very moment of action brought, or that they should be continued within a week or month of that time, Parke, B., thought that, according to the true construction of the statute, some act of that description must take place within each year. (Lowe v. Carpenter, 6 Exch. 832.) Although, under this section, no interruption will prevent a right from being acquired by twenty years' user, unless it has been acquiesced in for a whole year, yet an interruption for a shorter period may have the effect of showing that the enjoyment never was as of right, and thereby of preventing a right being acquired under the first section of this act. (Eaton v. Swansea Waterworks Co., 15 Jur. 675; 20 Law J., Q. B. 482; 17 Q. B. 267; ante, p. 10.) In an action on the case for an injury alleged to be done to the interest of the plaintiff's reversion in certain closes of land, the defendant pleaded an user for forty years before the commencement of the suit. It was objected that they should have averred the user for the allotted period to have taken place before the commission of the act complained of; and, in support of this objection, it was argued, that the court could only look upon the facts as they existed at the time the act complained of was committed; that it was absurd to say that the legality of an act must be ascertained, not by the state of things at the time the act was done, but by something that occurs afterwards. "If a literal construction," it was contended, " is to be put on the 4th section of the statute, an enjoyment of 500 years would give no indefeasible right, because the user is required to be during a period 'next before some suit or action, wherein the claim or matter to which such period may relate shall have been or shall be brought in question.' The language of the 2nd section is clear of all doubt. It says expressly that the claim shall not be defeated, where the way or other matter has been actually enjoyed, by any person claiming right thereto, without interruption for the full period, &c. If the computation be of a period before the commencement of a suit, a party might establish his right, although during the last nine months of the forty years there had been an obstruction to which he submitted; for by the 4th section no interruption can be effectual against the user, unless acquiesced in for a year." Lord Abinger, C. B., in delivering the judgment of the court, said, "It is said for the plaintiff, that although the act in the 4th section expressly states, that the periods of twenty and forty years shall be deemed and taken to be next before the commencement of some suit, wherein the claim shall have been brought in question, yet that this enactment must be construed to mean that the period shall be those years next before the act complained of, on account of the absurdities and inconveniences to which a literal construction of this provision would give rise. One of these alleged absurdities and inconveniences was, that no good title could arise to any incorporeal hereditament mentioned in the statute by virtue thereof, unless some action should have been brought by or against the party claiming it; to which may be added, that one action could not perfect the title to the right, as the act requires an enjoyment for the full period immediately before any action. Another was, that if the act be so construed, the plea justifying under such a right must be on the face of it absurd, as each of the pleas in question is suggested to be, for each justifies an act done at a particular time by the defendant, as being then lawful, and then done because the defendant actually enjoyed the right of doing the same thing for a period of time afterwards; so that it is said the character of the act, whether it be wrongful or rightful, cannot |