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 ensements. 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 in 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

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 bad 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 exereised, 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 addled 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. (lb.)

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.)

It has been decided under the statute 2 & 3 Will. 4, c. 71, that an enjoyment of twenty years, which cannot give a good title against all having estates in the lands in question, will not confer any title at all, even as between the parties having partial interests under leases. In an action on 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 judgment 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.

The case of Bright v. Walker tion of the above section.

on the construc