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2 & 3 Will. 4, a decision that an active enjoyment in fact for more than the statutable c. 71, 8. 2. period is not an enjoyment as of right, if during the period it is known

that it is only permitted so long as some particular purpose is served (Mason v. Shrewsbury, &c. R. Co., 6 Q. B. 584; compare Tone v. Preston,

24 Ch. D. 739). Effect of leave It was said by Alderson, B., that "if a parol permission extends over being given. 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 be given from time to time within the twenty years” (Kinlech v. Neville, 6 M. & W. 795). Where the simple issue is, whether there has been a continued enjoyment of a way for twenty years, any evidence negativing the continuance is admissible. “Every time that the occupiers asked for leave, they admitted that the former licence had expired, and that the continuance of the enjoyment was broken " (Monmouthshire Canal Co. v. Harford, 1 C. M. & R. 615),

The plaintiff occupied as tenant certain clayworks. Previous to his occupation a watercourse had been cut by the then occupant from a stream to the works, and there was evidence of this being done with the consent of the owner of the stream on certain terms. A few years after the watercourse was cut the plaintiff took the works, and used the watercourse uninterruptedly for more than twenty years, and he knew nothing of the circumstances under which the watercourse was made. Held, that there was evidence to go to the jury that the watercourse had not been enjoyed by the plaintiff for twenty years as of right (Gaved v. Martyn,

19 C. B. N. S. 732). Effect of in- In questions under this section it is most important to show the nature terruptions. 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 (Eaton v. Swansea Co., 17 Q. B. 275; see Brook v. Archer, 1868, W. N. 5). Seo further, as to interruptions in the

enjoyment, the note to sect. 4, post. Evidence of To support a plea framed on the 2nd section of this statute, of a right

of 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 years (Lawso

vson v. Langley, 4 Ad. & Ell. 890; see Beeston v. I'eate, 5 E. & B. 986). To a plea of forty or twenty years' enjoyment 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 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 (16.). Where issue is joined on the allegation of an interruption acquiesced in, the party alleging tho 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 (10.) 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 on a right claimed by prescription (Davies v. Williams, 16 Q. B. 546). See further, as to evidence of user, the note to sect. 4, post.


2 & 3 Will. 4,

c. 71, 8. 3.


3. When the access and use of light to and for any dwelling- Claim to the house, workshop, or other building, shall have been actually

use of light enjoyed therewith for the full period of twenty years without twenty years

enjoyed for interruption, the right thereto shall be deemed absolute and in- indefeasible, defeasible, any local usage or custom to the contrary notwith- unless shown

to have been standing, unless it shall appear that the same was enjoyed by by consent. some consent or agreement, expressly made or given for that purpose by deed or writing (n).

(h) See note on law of lights, post.

The modes of claiming the easement of light before this act were (1) by Modes of prescription at common law; (2) by presuming a lost grant. It seems to claiming have been considered by Lord Westbury that this section, while providing light. a new mode of claiming the easement, had taken away the former modes. Thus, in Tapling v. Jones (11 H. L. C. 290), he said, “The right to what is called an ancient light now depends upon positive enactment. It is matter juris positivi, and does not require, and therefore ought not to be rested on any presumption of grant or fiction of a licence having been obtained from the adjoining proprietor. Written consent or agreement may be used for the purpose of accounting for the enjoyment of the servitude, and thereby preventing the title which would otherwise arise from uninterrupted user or possession during the requisite period. This observation is material, because I think it will be found, that error in some decided cases has arisen from the fact of the courts treating the right as originating in a presumed grant or licence. It must also be observed, that after an enjoyment of an access of light for twenty years without interruption, tho right is declared by the statute to be absolute and indefeasible; and it would seem, therefore, that it cannot be lost or defeated by a subsequent temporary intermission of enjoyment, not amounting to abandonment.” And see the remarks of Coleridge, J., in Truscott v. Merchant Taylors' Co., 11 Exch. 863. On the other hand, in Aynsley v. Glover (10 Ch. 283) a right to light was established by prescription at common law; Mellish, L.J., remarking that this statute had not taken away any of the modes of claiming easements which previously existed. In Norfolk v. Arbuthnot (5 C. P. Div. 392), and Ecclesiastical Commissioners v. Kino (14 Ch. Div. 213), both the former modes of claiming the easement of light were treated as still existing And Malins, V.-C., expressed his opinion to the same effect (Lanfranchi v. Mackenzie, 4 Eq. 427).

This section of the act is retrospective, so that the right to the access of Section retrolight and air may be acquired by virtue of an enjoyment prior to the spective. passing of the act (Simper v. Foley, 2 J. & H. 555).

The period of twenty years' enjoyment, which confers a right to the Period of access of light under this section, is by the 4th section of this act the twenty years. 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). 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, 8 Cl. & Fin. 231).

There can be no prescription under the statute for light to open ground Nature of the forming a garden (Potts v. Smith, 6 Eq. 311). Compare the case of a enjoyment. timber yard (Roberts v. Macord, 1 M. & Rob. 230). Under the statute light must be claimed in respect of a “building" (Scott v. Pape, 31 Ch.

2 & 3 Will. 4, Div. 554); and a structure for storing timber is not such a “building c. 71, s. 3. (Harris v. De Pinna, 33 Ch. Div. 238). Before the act, light was held

not acquired where the building was not permanent (Maberley v. Dowson, 5 L. J. (K.B.) 261). The right may be acquired for a church (Ecclesiastical Commissioners v. Kino, 14 Ch. D. 213; but see Norfolk v. Arbuthnot, 5 C. P. Div. 392); an unconsecrated chapel (A. G. v. Queen Anne Co., 60 L. T. 759); a picture gallery (16.) The building need not be occupied, or fit for occupation, during the period (Courtauld v. Legh, L. R. 4 Ex. 126); and even where the building has been pulled down, an injunction may be granted if the right has not been abandoned (Ecclesiastical Commissioners v. Kino, sup.) Structural identity between the building which acquires the right, and the building which, after the period, is to enjoy the right, is not necessary (Scott v. Pupe, sup.) The owner of a building having windows with moveable shutters acquires the right if during twenty years he opens the shutters at any time he pleases (Cooper v. Straker, 40 Ch. D. 21).

“Access,” in the section, refers not to access through the aperture of the dominant tenement, but to freedom of passage over the servient tenement. The aperture defines the free area (Scott v. Pape, 31 Ch. Div. 554). The access must be by one and the same definite channel (Harris V. De Pinna, 33 Ch. Div. 238).

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 (Harbidge v. Warwick, 3 Exch. 552). During a period of unity of occupation of the dominant and servient tenements the running of tho twenty years is suspended (Lailyman v. Grave, 6 Ch. 763). There is no such unity of possession of the glebe and the church on the part of the rector as to prevent the acquisition of an easement of light for the church (Ecclesiastical Commissioners v. Kino, 14 Ch. Div. 213). No right can, under this section, be acquired as against the Crown, which is not named therein (Perry v.

Eames, 1891, 1 Ch. 658). Enjoyment as The actual enjoyment required by this section need not be as of right against tenant (Per Cresswell, J., Truscott v. Merchant Taylors' Co., 11 Exch. 855). With for life or respect to enjoyment of light as against a tenant for life or years, it was years. held, before the act, that the acquiescence of lessees or tenants for life in Before the the enjoyment of lights did not bind the landlord or reversioner, unless statute. they had knowledge and acquiesced for twenty years; and a presumption

against the owner of lands was not so easily inferred in the case of light as in cases of rights of way or common, where the tenant suffered an immediate injury (Daniel v. North, 11 East, 370, case of a tenant; Barker

V. Richardson, 4 B. & Ald. 579, case of a rector; see also Cross v. Lewis, Since the 2 B. & C. 686). Since the act it has been said that from the language of statute. sect. 3, it would seem that the legislature contemplated such an enjoyment

as could be interrupted by the adjoining occupier, at least during some part of the time (Harbidge v. Warwick, 3 Exch. 537). It has been held, however, that since this statute, where the right to light is acquired against an owner of a leasehold interest, it is also acquired against the owner of the reversion (Simper v. Foley, 2 J. & H. 555). Pollock, C. B., said it may be, since the Prescription Act, that if a man opens a light towards his neighbour's land, the reversioner may have no means of preventing a right thereto being acquired by a twenty years' enjoyment, unless he can prevail upon his tenant to raise an obstruction, or is able to procure from the other party an acknowledgment that the light is enjoyed only by consent

(Frewen v. Phillips, 11 C. B. N. S. 455; and see Ladyman v. Grave, 6 Enjoyment by Ch. 769). The circumstance of two houses being held under the same tenant for landlord and for the same term does not prevent the one tenant from acyears. quiring an indefeasible right to light as against the other (Freuen v.

Phillips, 11 C. B. N. S. 449; Mitchell v. Cantrill, 37 Ch. Div. 56). Interruption. The enjoyment under this section must be uninterrupted. As to inter

ruptions, see note to sect. 4, post. A fluctuating interruption to light is not sufficient (Presland v. Bingham, 41 Ch. Div. 268). "A hoarding for


the purpose of an interruption may be erected by a railway company 2 & 3 Will. 4, (Bonner v. G. W. R., 24 Ch. Div. 1; see Myers v. Catterson, 43 Ch. c. 71, s. 3. Div. 470).

Mere payment of rent by the occupier of a house for the use of lights is Payment of not an interruption of the enjoyment within this section (Plasterers' Co. rent or verbal v. Parish Clerks' Co., 6 Exch. 630). An actual enjoyment of light for permission twenty years, even under a permission verbally askod for the occupier of does not prea house, and given by the person having a right to obstruct, is sufficient vent acquisi(London v. Pewterers' Co., 2 M. & Rob. 409; see as to a verbal agree

tion of right. ment, Judge v. Lowe, I. R. 7 C. L. 291).

A writing signed by A., the owner of the dominant tenement, but not “Consent or by B., the owner of the servient tenement, declaring that A. would at any agreement.' time block up certain windows at B.'s request, and in the meantime would pay B. sixpence a year, was held to be a sufficient “consent or agreement” within this section (Bewley v. Atkinson, 13 Ch. Div. 283). But where a tenant for years claimed a right to light, and the lease under which he held contained an exception of any right restricting the free use of the adjoining land, this did not operate as an agreement (Mitchell v. Cantrill, 37 Ch. Div. 56).

By the custom of London (which is stated in the case of Wynstanley v. Custom of Lee, 2 Swanst. 339, 340; see Perry v. Eames, 1891, 1. Ch. 658), an occu- London. pier of a house there had not an absolute 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 Londini, p. 101, cited Mood. & Malk. 351; and see Godb. 183; Yelv. 216; 1 Bulstr. 115; Com. R. 273; 1 Burr. 248; 3 C. & P. 317; Shadwell v. Hutchinson, 2 B. & Ad. 97). This section extends to and controls this custom (SaltersCo. V. Jay, 3 Q. B. 109; Truscott v. Merchant Taylors' Co., 11 Exch. 855; see Perry v. Eames, 1891, 1 Ch. 667).


4. Each of the respective periods of years hereinbefore men- Before-mentioned shall be deemed and taken to be the period next before tioned periods

to be deemed some suit or action wherein the claim or matter to which such those next period may relate shall have been or shall be brought into ques- before suit for

claims to tion, and no act or other matter shall be deemed to be an inter

which such ruption within the meaning of this statute, unless the same shall periods relate. 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 ().

(i) This section is nothing but an exposition of the proof required to establish the right (Jones v. Price, 3 Bing. N. C. 52). The enjoyment of the occupier to give right under this statute is enjoyment for thirty, sixty, twenty, or forty years, according to the nature of the case, nest before the commencement of some suit,

and not before the act complained of (Ward v. Robins, 15 M. & W. 242; Richards v. Fry, 7 Ad. & Ell. 707).

În Wright v. Williams (1 M. & W. 98), Lord Abinger, C. B., said, “It How periods is said for the plaintiff that one of the absurdities and inconveniences to mentioned in which a literal construction of this provision would give rise was that no the act to be good title could arise to any incorporeal hereditament mentioned in the computed.

2 & 3 Will. 4, statute by virtue thereof, unless some action should have been brought c. 71, 8. 4. 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 enjoyWright v. ment for the full period immediately before any action. We are of Williams.

opinion, however, that it is impossible to construe the act of parliament as intending that the periods of years therein mentioned should terminate at a different time from that fixed in express and positive terms. If the words of the statute were capable of being modified, so as to avoid an inconvenience plainly and manifestly arising from a strict construction of them, we ought to do so; but here the words are precise and unambiguous, and the mischief suggested is perhaps rather apparent than real; and most cases of grants by prescription before the act passed were of the same nature, and the validity of rights gained by them depended much upon the mode of enjoyment, until that action was brought in which they came in question. . . . It appears to us that the statute in question intended to confer, after the periods of enjoyment therein mentioned, a right from their first commencement, and to legalise every act done in the exercise of the right during their continuance (See R. v. Calow, 3 M. & S. 22).

The period of twenty years referred to in the statute may be the period of twenty years next before any action wherein the claim to the right is brought into question, and is not limited to the twenty years next before the pending action (Cooper v. Hubbuck, 12 C. B. N. S. 456).

Where a right of way was claimed by prescription at common law, it was necessary to show user for at least twenty years as of right; but not necessarily for the twenty years next before the commencement of the suit

(Darling v. Clue, 4 F. & F. 329). Requisite A plea of forty or twenty years' user, under the 2nd and 4th sections of evidence of this statute, is not supported by proof of a user from a period of fifty user during

years before the commencement of the action down to within four years of statutory

it (Parker v. Mitchell, 11 Ad. & Ell. 788). It was said in the earlier period.

cases that 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 ; see Ennor v. Barwell, 2 Giff. 420); and also during the first year (Bailey v. Appleyard, 8 Ad. & Ell. 161). Carr v. Foster (3 Q. B. 581) seemed to intimate that the intermediate time was not so material : (but see De la Warr v. Miles, 17 Ch. Div. 593). The Court of Appeal, however, recently denied any distinction between non-user for a year at the beginning or end or in the middle of the statutory period. Proof of actual user in every year is not essential, but the absence of user for any year will be fatal unless explained in such a way as to warrant the inference of continual actual enjoyment, notwithstanding such temporary nonuser (Hollins v. Verney, 13 Q. B. Div. 314). It was further laid down that no actual user can be sufficient to satisfy the statute, unless during the whole statutory term (whether user be proved in each year or not) the user is enough at any rate to carry to the mind of a reasonable person who is in possession of the servient tenement the fact that a continuous right to enjoyment is being asserted and ought to be resisted if such right is not recognised (Ib. 315).

It was said by Patteson, J., that 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 (Payne v.

Shedden, i M. & Rob. 383). Interruption. A right to an easement was held established under this act which had

only been actually enjoyed for nineteen years and a fraction, and then interrupted during the remainder of the twentieth year and down to the commencement of the action, the action, however, having been commenced within a year from the notice of the interruption (Flight

v. Thomas, 11 Ad. & Ell. 688; 8 Cl. & Fin. 231; see 17 Q. B. 272). The interruption which defeats a prescriptive right under 2 & 3 Will. 4, c. 71, is an adverse obstruction, not a mere discontinuance of user by the

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