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2 & 3 Will. 4, eight years before the suit (in 1809) a rail was erected, so as to prevent the c. 71, s. 1. enjoyment of pasture, and that afterwards, the rail having been removed, the plaintiff depastured for twenty-eight years; it was held, that the defendant was not bound to prove that the rail was erected adversely to the plaintiff's right, but that the onus lay on the plaintiff to prove affirmatively his actual enjoyment of pasture for thirty years, and that no presumption could be admitted in his favour on proof of enjoyment for a less period. (Bailey v. Appleyard, 8 Ad. & Ell. 161, and note explanatory of case, ib. p. 1; 3 Nev. & Per. 257, note on case; 2 P. & Dav. 1; 2 Jurist, 872.) It was also held, that proof of his enjoyment of pasture for twenty-eight years did not include proof of the right of turning on for twenty years, the latter right being an easement only, a right of a quite different nature, and of which no evidence was given. (16.) Littledale, J., said it is clear that on the first issue no sufficient proof was given under this section. If the claim had been made by virtue of immemorial user, or of a non-existing grant, as was done before the statute, twenty-eight years' enjoyment would have been some evidence; but the late act, while it dispenses with the necessity of setting up such user or grant, and limits proof to a thirty years' enjoyment, requires that such enjoyment shall be proved to the full extent. Here the twenty years' enjoyment was proved in respect of a right, which by the statute requires thirty years to confirm it; that is, the right of pasture. The plaintiff, therefore, was not entitled to recover. (Bailey v. Appleyard, 8 Ad. & Ell. 165, 166.)

How enjoyment may be proved.

Under sects. 1, 4 and 7 of this act, an enjoyment as of right for thirty years next before the commencement of an action, may be proved by showing that the party has enjoyed for several periods amounting together to thirty years, and that during the whole time between such periods, and between the last of them and the action (if such period intervened), the estate over which the right has been exercised was in the hands of a tenant for life. The defendant pleaded, generally, that he had enjoyed as of right for thirty years next before the commencement of the action; the plaintiff replied that a life estate was outstanding for twenty-seven of the said thirty years; the defendant rejoined that such estate did not continue during any part of the said thirty years: and issue was thereupon joined. The defendant proved enjoyment during two periods, amounting together to thirty years; one period before and one after the life estate. It was held, that the defendant's issue was proved, and that as the plaintiff had replied and set up a tenancy for life he excluded the term of such tenancy, and drove the defendant to show thirty years' enjoyment, either wholly before the tenancy for life if it had still subsisted, or partly before and partly after, whereas in this case it had determined. Evidence that during the alleged enjoyment the estates over which, and in right of which, it has been exercised, were held by the same person, disproves enjoyment as of right: the fact, therefore, need not be specially pleaded, but may be proved under a mere traverse of the enjoyment. (Clayton v. Corby, 2 Q. B. 813.)

This section of the act does not prevent a claim to a right of common, &c. from being defeated after thirty years' enjoyment, by showing that such right was first enjoyed at a time when it could not have originated legally. A claim to a right of common over a Crown forest, in respect of a certain tenement being vested on thirty years' uninterrupted enjoyment under this section, may be defeated by showing that the tenement has been inclosed from the waste of a manor only forty years, and that the grant of any right over the forest was made absolutely void by a statute passed previously to the inclosure. It was questioned whether this act has any application to the case in which the establishment of a right by means of this statute would be a violation of the express terms of statutes prohibiting the granting of such a right. (Mill v. New Forest (Commissioner), 18 C. B. 60; 2 Jur., N. S. 520; 25 L. J., C. P. 212.)

The plaintiff claimed a right of common by prescription in respect of a que estate in land, and also by thirty and sixty years' enjoyment by the occupier of the land. The defendant offered evidence that a tenant then deceased, while tenant of the land for years, had declared that he had no

such right in respect of the land: it was held, that the declaration was not admissible, inasmuch as it was in derogation of the title of the reversioner. (Papendick v. Bridgwater, 5 El. & Bl. 166; 1 Jur., N. S. 657; 24 L. J., Q. B. 289.) Lord Campbell, C. J., observed, "it would be very mischievous if it were in the power of a tenant to destroy a profit à prendre belonging to the land which he occupies, or to impose a servitude upon it There is no difference in this respect between destroying an easement and creating one. If the tenant might say that the land enjoyed no right of way, he might also say that it was liable to an easement for taking water, profit à prendre by turbary or other common. It would come to this: that by the tenant's acknowledgment of a servitude, like that in Scholes v. Chadwick, 2 Moo. & R. 507, or for cutting turves or taking away sand, the tenant might create a servitude against the reversioner. That would be very inconvenient, and it is upon the view of the balance of general convenience that the English laws of evidence are founded. In Daniel v. North, 11 East, 372, it was decided that the acquiescence of the tenant cannot prejudice the landlord, and if so, I think, à fortiori, that his declaration cannot." (Papendick v. Bridgwater, 5 Ell. & Bl. 177; see Scholes v. Chadwick, 2 Moo. & R. 507; Reg. v. Bliss, 7 Ad. & E. 550.)

The turning of cattle upon alluvium by the proprietor of land not separated from it by any boundary, although without interruption, was held not to be an assertion of right so acquiesced in as to raise a presumption of title. Lord Chelmsford, L. C., observed, "the effect of acts of ownership must depend partly upon the nature of the property upon which they are exercised. ⚫ If cattle be turned upon inclosed pasture ground, and be placed there to feed from time to time, it is strong evidence that it is done under an assertion of right; but where the property is of such a nature that it cannot be easily protected from intrusion, and if it could it would not be worth the trouble of preventing it, there mere user is not sufficient to establish a right, but it must be founded upon some proof of knowledge and acquiescence by the party interested in resisting it, or by perseverance in the assertion and exercise of the right claimed in the face of opposition." (Att.-Gen. v. Chambers, 4 De G. & J. 55; see pp. 65, 66. See In re Hainault Forest Act, 1858, 9 C. B., N. S. 648.

2 & 3 Will. 4,

c. 71, s. 1.

If the statute be relied on, it ought to be pleaded. (Welcome v. Upton, 6 To what period Mees. & W. 401.) The first section of the statute enacts that no claim to the statute refers. right of common, which shall have been actually enjoyed by any person claiming right thereto, shall be defeated by showing only that it was first taken at some prior time. The 4th section enacts, that the thirty years shall be deemed and taken to be the period next before some suit or action wherein the claim shall be brought into question. The 5th section enacts, that in all pleadings in trespass, it shall be sufficient to allege that enjoyment of common as of right by the occupiers of the tenement in respect whereof the same is claimed for, and during such of the periods mentioned in the act as may be applicable to the cases, and without claiming in the name of the owner of the fee, as is now usually done. Taking these sections together, it has been decided that the period mentioned in the act is thirty years next before some suit or action in which the claim shall be brought into question, and that an allegation of an enjoyment for thirty years next before the times when the trespasses to which the plea relates were committed is insufficient. (Richards v. Fry, 3 Nev. & P. 67; 7 Add. & Ell. 698; Wright v. Williams, 1 Mees. & W. 77.) Plea of enjoyment of a right of common for thirty years before the commencement of the suit was held sufficient, without saying thirty years next before. (Jones v. Price, 3 Bing. N. C. 52.) The proper mode of pleading a profit to be taken out of land is the enjoy ment of the right for the periods mentioned in the first section. (Welcome v. Upton, 5 Mees. & W. 398; 7 Dowl. P. C. 475.)

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

In claims of right of way or other

easement the

periods to be

forty years.

II. WAYS, EASEMENTS, AND WATERCOURSES.

2. No claim which may be lawfully made at the common law, by custom, prescription, or grant, to any way (ƒ) or other easement, or to any watercourse (g), or the use of any water, to twenty years and be enjoyed or derived upon, over, or from any land or water of our said lord the King, his heirs or successors, or being parcel of the Duchy of Lancaster or the Duchy of Cornwall, or being the property of any ecclesiastical or lay person, or body corporate, when such way or other matter as herein last before mentioned shall have been actually enjoyed by any person claiming right thereto without interruption for the full period of twenty years, shall be defeated or destroyed by showing only that such way or other matter was first enjoyed at any time prior to such period of twenty years, but nevertheless such claim may be defeated in any other way by which the same is now liable to be defeated; and where such way or other matter as herein last before mentioned shall have been so enjoyed as aforesaid for the full period of forty years, the right thereto shall be deemed absolute and indefeasible, unless it shall appear that the same was enjoyed by some consent or agreement expressly given or made for that purpose by deed or writing (h). (f) As to the law of ways, see post.

What included

(g) See note on watercourses, post.

(h) This section relates to claims of rights of way, or other easement, or in second section. to any watercourse, or the use of any water to be enjoyed, or derived upon, over, or from any land or water. A claim, by the occupier of a coppermine, to sink pits in his own land for the water pumped out of his mine and for the precipitation of the copper contained in such water, and for that purpose to put iron into the said pits, and to cover the same with the said water, and afterwards to let it off, impregnated with metallic substances, into a watercourse flowing over the land of another, is a claim to a watercourse within this section. (Wright v. Williams, 1 Tyr. & G. 375; 1 Mees. & W. 77.)

An owner of a windmill cannot claim, either by prescription or by presumption of a grant arising from twenty years' acquiescence, to be entitled to the free and uninterrupted passage of the currents of wind and air to his mill. Such a claim is not within this section, which is confined to the rights of way or other easements, to be exercised upon or over the surface of the adjoining land.

This section includes only such easements upon or over the surface of the servient tenement as are susceptible of interruption by the owner of such servient tenement, so as to prevent the enjoyment on the part of the owner of the dominant tenement from ripening into a right. (Webb v. Bird, 10 C. B., N. S. 283, per Erle, C. J.) Erle, C. J., said, " It appears to me, that this section was not intended to give a right, after twenty years, to every sort of enjoyment which may be classed under the general term easement, but that it was meant to apply only to the two descriptions of easement therein specified, viz., the right to a way or watercourse which may be enjoyed or derived upon, over, or from any land or water." He did not think the passage of air over the land of another was, or could, have been contemplated by the legislature when framing that section. They evidently intended it to apply only to the exercise of such rights upon or over the surface of the servient tenement as might be interrupted by the owner, if the right were disputed. It is clear that such was the intention of the legislature, because the section provides that the claim shall not be defeated where there has been actual enjoyment for the period mentioned "without interruption." (Webb v. Bird, 10 C. B., N. S. 282) Byles, J., agreed

that the words "or other easement" in the second section mean any other easement ejusdem generis with a way,-something that is to be exercised upon or over the soil of the adjoining owner, more especially as it is clear, from the next section, that the easement of the access of light is excluded. (lb. p. 286.)

A company incorporated by act of parliament for making and maintaining a canal, and having powers under their act to take water for the purpose of supplying the canal, cannot by user acquire, under this section, a prescriptive right to take the water for any other purpose. An easement to take water to fill a canal ceases when the canal no longer exists. (National Guaranteed Manure Company v. Donald, 4 H. & N. 8; 28 Law J., Exch. 184. See Rochdale Canal Company v. Radcliffe, 18 Q. B. 287.)

The privilege of washing away sand, stone and rubble, dislodged in the necessary working of a tin mine, and of having the same sent down a natural stream through the plaintiff's land, may be the subject of a grant, and may be pleaded as a prescriptive right under this act to a declaration charging the defendants with throwing such stone, sand and rubble into the stream, and thereby filling up its bed within the plaintiff's land, and causing the water to flow over it. Such privilege may also be well pleaded as a local custom. (Carlyon v. Lovering, 1 H. & N. 784; 26 Law J., Exch. 251.)

2 & 3 Will. 4,

c. 71, s. 2.

Easement is the general term for several species of liberties which one Definition of man may have in the soil of another without obtaining any interest in the easements. land itself. (Cro. Car. 419.) Rights of accommodation in another's land, as distinguished from those which are directly profitable, are properly called easements. An easement (from the French word aise, i. e. commoditas) is defined to be a privilege that one neighbour hath by writing or prescription without profit, as a way, or a sink through his land, or such like. (Kitch. 103; Cow. Law Dict. Terms of the Law, tit. "Easement;" 5 B. & C. 229.) The servient tenement is that over which a right claimed by custom, pre- Servient and scription or grant is exercised, and the dominant tenement is that to which dominant tenesuch right is attached. It is essential that the two tenements should belong to different owners; for upon both becoming absolutely vested in the same person the inferior right of easement is merged in the superior title of ownership. (Holmes v. Goring, 2 Bing. 83; 9 Moore, 166.) Where there. is an unity of seisin of the land and of the way over the land in one person, the right of way is either extinguished or suspended, according to the duration of the respective estates in the land and the way. (James v. Plant, 4 Ad. & Ell. 761.)

"A servitude is a charge imposed upon one heritage for the use and advantage of a heritage belonging to another proprietor." (Code Civil, Art. 637.)

Easements are incorporeal rights (Hewlins v. Shippam, 5 B. & C. 221; 7 D. & R. 783) imposed upon corporeal property, and not upon the owner of it, so that on the change of the owner of the servient tenement the right to the easement is still retained by the owner of the dominant tenement.

Public rights of way, liability to repair highways, rights of way, watercourses, and rights of water and other easements are not to be deemed incumbrances within the meaning of the Act for the Transfer of Land (25 & 26 Vict. c. 53, s. 27); nor to be affected by a declaration of title. (25 & 26 Vict. c. 67, s. 29.)

ment.

There are an infinite number and variety of easements. The following Different kinds may be enumerated:-Rights of way. Right to discharge a stream of of easements. water, either in its natural state, or changed in quantity or quality. (Wright

v. Williams, 1 Mees. & W. 77.) Right to receive a flow of water. Right
to discharge rain water by a spout or projecting eaves.
Right to support
from the neighbouring wall, or soil. Right to carry on an offensive trade.
Right to hang clothes on lines passing over the neighbouring soil. (Drewell
v. Towler, 3 B. & Ad. 735.) The right of landing nets on another man's
ground. (Gray v. Bond, 2 Brod. & B. 667.) Right to make spoil banks
upon the surface in working mines. (Rogers v. Taylor, 1 H. & N. 706.)
The right to use a close for the purpose of mixing muck and preparing
manure thereon for an adjoining farm. (Pye v. Mumford, 11 Q. B. 666.)
Right to receive light and air by ancient windows. A right in the occupier

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

Nature of enjoy

ment.

of an ancient messuage to water his cattle at a pond, and to take the water thereof for domestic purposes, for the more convenient use of his messuage, is a mere easement, and not a profit à prendre in the soil of another. Such a right may be claimed by reason of the occupation of an ancient messuage, without any limitation as to the quantity of water to be taken. (Manning v. Wasdale, 1 Nev. & Per. 172; 5 Ad. & Ell. 758. See Fitch v. Rawling, 2 H. Bl. 395.) The right to go on a neighbour's close and to draw water from a spring there; (Race v. Ward, 4 El. & Bl. 702;) or from a pump. (Polden v. Bastard, 11 W. R. 778.) A person may prescribe to an easement in the freehold of another as belonging to some ancient house, or to land, &c. And a way over the land of another, a gateway, watercourse, or washing-place in another's ground, may be claimed by prescription as easements; but a multitude of persons cannot prescribe, though for an easement they may plead custom. (Cro. Jac. 170; 3 Leon. 254; 3 Mod. 294.) In Goodday v. Michell, Cro. Eliz. 441, a way to a common fountain is mentioned as an easement claimable for parishioners by custom. The undertakers of a navigation, in whom the soil of the river is not vested, have a mere easement in the land through which it passes. (9 B. & C. 109; Hollis v. Goldfinch, 1 B. & C. 205.) The licence to make a vault in a parish church, and to have the sole and exclusive use of it, is an easement, which cannot be effectually granted without a deed or a faculty, although the incumbent of a living has no power to grant such a right even by deed, but only leave to bury in each particular instance. (Bryan v. Whistler, 8 B. & C. 288; 2 M. & Ryl. 318.) The right to sit in a pew in a church annexed to a house seems to be an easement. (5 B. & Ald. 361. See Best on Evidence, p. 479, 3rd ed.) A man cannot prescribe to have a necessary easement in the land of another person for himself and his servants to catch fish in his several fishery. (Peers v. Lacy, 4 Mod. 362.) Rent cannot issue out of a mere easement. (Buzzard v. Capel, 8 B. & C. 141; 2 M. & R. 197; 6 Bing. 150; 3 M. & P. 480; 3 Y. & J. 344.) But a payment in respect of an easement may be secured by a covenant or agreement.

The right of an owner of land to the support of the land is one of the ordinary rights of property, analogous to the right to a natural stream, incidental to all land, and not an easement or right acquired by grant or otherwise. (Bonomi v. Backhouse, Ell., Bl. & Ell. 642; Backhouse v. Bonomi, 9 H.L. C. 503.)

The enjoyment of an easement as of right, for twenty years next before the commencement of the suit, within this statute, means a continuous enjoyment as of right for twenty years next before the commencement of the suit, of the easement as an easement, without interruption acquiesced în for a year. It is therefore defeated by unity of possession during all or part of the period of enjoyment, although such unity of possession has its inception after the completion of the twenty or forty years. (Battishill v. Reed, 18 C. B. 696; 25 L. J., C. P. 290.) Where a plaintiff had enjoyed a way as of right and without interruption from 1800 to 1855, when the action was brought, it was held, that his claim under this statute was defeated by an unity of possession from 1843 to 1853. (Ibid.) And such unity of possession need not be specially replied under the 5th section. (Onley v. Gardiner, 4 Mees. & W. 496. See Monmouthshire Canal Company v. Harford, 1 C., M. & R. 631; 5 Tyr. 85; Richards v. Fry, 3 Nev. & P. 367; 7 Ad. & Ell. 698.) To an action of trespass on land, the defendant pleaded, that for twenty, thirty, forty, and sixty years, he and the occupiers of a mill had (as an easement) gone on the land to repair the banks of a stream which flowed to the mill. The replication denied the rights claimed. It appeared that within forty years B. had been lessee of the mill under one landlord, and of land under another: it was held, that this was such a unity of possession as prevented his having an easement on the land. (Clay v. Thackrah or Thackeray, 9 Car. & P. 47; 2 M. & Rob. 244.)

In replevin for taking the plaintiff's cattle, to an avowry damage feasant the plaintiff pleaded in bar under this statute an user for thirty years as of right, and also for sixty years as of right of common of pasture over the locus in quo. At the trial the fact of user by the plaintiff and by other occupiers of his farm was proved; but it appeared that S., from whom the

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