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enjoyed or derived upon, over, or from any land or water of our 2 & 3, Will. 4, said lord the King, his heirs or successors,
or being parcel of the c. 71, s. 2.
. Duchy of Lancaster or the Duchy of Cornwall, or being the periods to be property of any ecclesiastical or lay person, or body corporate, twenty years
and forty 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 (9).
(f) As to the modes of claiming an easement by prescription at common Modes of law, and by non
n-existing grant, which were used before the passing of claiming easethis act, see note (3) at the end of the act. The act has provided an addi- ments. tional mode of claiming easements, but has not abolished the former modes. As to the law of ways, see note (t); and as to watercourses, see note (5). As to the right to a pew, which is an easement, see note (6) at the end of the act.
(9) This section relates to claims to any way or other easement, or to any watercourse, or the use of any water to be enjoyed or derived upon, over, or from any land or water.
Easement is the general term for several species of liberties which one Definition man may have in the soil of another without obtaining any interest in the and nature land itself (Cro. Car. 419). Rights of accommodation in another's land, of easements. 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 of another by writing or prescription without profit, as a way, or a sink through his land, or such like (Kitch. 103; 5 B. & C. 229; see Mounsey v. Ismay, 3 H. & C. 4:97). " 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 (Ilewlins v. Shippam, 5 B. & C. 221)'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 casement is still retained by the owner of the dominant tenement. There can be no easement, properly so called, unless there be Şervient and both a servient and a dominant tenement (Rangeley v. Midland R. Co., dominant sted Hawaii 3 Ch. 310). The servient tenement is that over which a right claimed by tenements. V. A3, custom, prescription, or grant is exercised, and the dominant tenement is that to which such 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). The owner of two tenements can have no easement over one of them in respect of the other (Roe v. Siddons, 22 Q. B. Div. 236). 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). An easement must be connected with the enjoyment of the dominant tenement (Ackroyd v. Smith, 10 C. B. 164); and must be an incident of a known and usual kind (Hill v. Tupper, 2 H. & C. 121; 11 W. R. 784). Rent cannot issue out of a mere easement
2 & 3 Will. 4, (Buzzard v. Capel, 8 B. & C. 141 ; 2 M. & R. 197; 6 Bing. 150; 3 M. & c. 71, s. 2. P. 480 ; 3.Y. & J. 344); but a payment in respect of an easement may be
secured by a covenant or agreement. A contract to grant a right of way was held to be a contract for the sale of real estate (Rowe v. London
School Board, 36 Ch. D. 619; see Jones v. Watts, 43 Ch. D. 574). Instances of There are an infinite number and variety of easements. The following
may be enumerated :-Rights of way. Right to hang clothes on lines passing over the neighbouring soil (Drewell v. Towler, 3 B. & Ad. 735). The right to place telephone wires over neighbouring soil (Lancashire Co. v. Manchester, 14 Q. B. Div. 267). Right to move a timber traveller through air over neighbouring land (Harris v. De Pinna, 33 Ch. D. 251). The right of landing nets on another man's ground (Gray y. Bond, 2 Brod. & B. 667). Right to make spoil banks upon the surface in working mines ( Rogers v. Taylor, 1 H. & N. 706; see Ramsay v. Blair, 1 App. Cas. 701); or quarries (Middleton v. Clarence, I. R. 11 C. L. 499). 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). A right to place a pile in the soil of a river for the enjoyment of a wharf (Lancaster v. Ere, 5 C. B. N. S. 717; Cory v. Greenwich, L. R. 7 C. P. 499). A right to place a signpost on a common (Hoare v. Metropolitan Board, L. R. 9 Q. B. 296); or to affix a signboard to the walls of another's house (Moody v. Steggles, 12 Ch. D. 261); or to use a fascia on another's house (Francis v. Hayward, 22 Ch. Div. 177). A right in the occupier of a messuage to water cattle at a pond, and to take water for domestic purposes (Manning v. Wasdule, 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, L. R. 1 Q. B. 156). The right to go on the soil of another to clear a mill stream and repair its banks (Beeston v. Weate, 5 E. & B. 996). The right to conduct water across a neighbour's close by an artificial watercourse (16.) Right to discharge polluted water into another's watercourse (lyright v. Williams, 1 M. & W. 77). Right to discharge rain-water by spout or projecting eaves (Harvey v. Walters, L. R. 8 C. P. 162). Right to receive light by ancient windows (Tapling v. Jones, 11 H. L. C. 290). Right to pollute air by smoke or otherwise (Crump v. Lambert, 3 Eq. 413). A right to use the chimney of another's house for the passage of sinoke (Hervey v. Smith, 1 K. & J. 389; 22 Beav. 299). A right of support from land (Dalton v. dngus, 6 App. Cas. 740); or from buildings (Tone v. Preston, 24 Ch. D. 739 ; Waddington v. Naylor, 60 L. T. 480).
A way over the land of another, a gateway, watercourse, or washingplace 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. Mitchell, Cro. Eliz. 441, a way to a common fountain is mentioned as an easement claimable for parishioners by custom. See Race v. Ward, sup. 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 (Bryan v. Whistler, 8 B. & C. 288). The right to sit in a pew in a church annexed to a house is an easement (5 B. & Ald. 361 ; Hinde v. Chorlton, L. R. 2 C. P. 104 ; Brumfitt v. Roberts, L. R. 5 C. P. 224 ; see Crisp v. Martin, 2 P. D. 15; Halliday v. Phillips, 23 Q. B. Div. 53). The right to a fishing weir in non-tidal waters may be claimed as an easement (Rolle v. Il'hyte, L. R. 3 Q. B. 286; Lecon field v. Lonsdale, L. R. 5 C. P. 657).
Under the 2nd section of the act, a prescription which was pleaded for
a right every year, and at all times of the year, to turn cattle into a Subject- certain close, is too vague (Bailey v. Appleyard, 8 Ad. & El. 161). matter of the The second section refers to easements properly so called, and to rights second sec
which are in some way appurtenant to a dominant tenement (Shuttletion.
worth v. Le Fleming, 19 C. B. N. S. 687). A custom for the freemen of 2 & 3 Will. 4, a town to enter upon another man's land for the purpose of holding horse- c. 71, 8. 2. races there, is not an easement within this section (Mounsey v. Ismay, 3 H. & C. 486). This section includes a claim to support for buildings from land (Dálton v. Angus, 6 App. Cas. 798); or from buildings (Le Maitre v. Davies, 19 Ch. D. 281). It was said by Erle, C. J., that this section was meant to apply only to the two descriptions of easements specified, viz., the right to a way or watercourse, which may be enjoyed or derived on, over, or from any land or water (Webb v. Bird, 1o C. B. N. S. 282, 286). But Lord Selborne was of opinion that the section included other easements (Dalton v. Angus, 6 App. Cas. 798 ; see Buss v. Gregory, 25 Q. B. D. 483). The section does not, however, apply to light (Perry v. Eames, 1891, 1 Ch. 665). A claim to a watercourse within this section includes a claim to send through another's watercourse polluted water (Wright v. Williams, 1 M. & M. 77); or sand and rubble (Carbyon v. Lovering, 1 H. & N. 784); also a claim to have water which would otherwise flow down to the plaintiff's land diverted over other land (Mason v. Shrewsbury Co., L. R. 6 Q. B. 578; see Slo ffordshire Co. v. Birmingham Co., L. R. 1 H. L. 254).
This section includes only such easements upon or over the surface of Easement the servient tenement as are susceptible of interruption by the owner of must be sussuch servient tenement, so as to prevent the enjoyment on the part of the ceptible of owner of the dominant tenement from ripening into a right (Webb v.
interruption. Bird, 10 C. B. N. S. 283). The owner of a windmill accordingly cannot under this section claim by twenty years' user a free passage of air to his mill (16.) Nor can the right of access of air to chimneys over the unlimited surface of a neighbour be acquired (Bryant v. Lefevre, 4 C. P. Div. 172; see as to the passage of air through a defined channel, Bass v. Gregory, 25 Q. B. D. 481). Nor can subterranean water percolating in no known channels be acquired as an casement by user (Chasemo Richards, 7 H. L. C. 349). Nor can the right to annoy neighbours by noise be acquired by user, unless during the user the noise has amounted to an actionable nuisance; the above principle applying to both affirmative and negative casements (Sturges v. Bridgman, 11 Ch. D. 852 ; see Murgatroyd v. Robinson, 7 E. & B. 391).
Where a claim is made under the act, it is incumbent on the claimant Right must to prove that the right founded on the claim by user might at the begin- be capable ning of or during that user have been lawfully granted to him; and of being where such a grant would have been ultra vires and void by reason of an granted. act of parliament, the claim cannot be sustained (Staffordshire, &c. Co. v. Birmingham Co., L. R. 1 H. L. 278). So it has been held that 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 (National Manure Co. v. Donald, 4 H. & N. 8; see Rochdale Canal Co. v. Radcliffe, 18 Q. B. 287; Mill v. New Forest, 18 C. B. 60, ante, p. 4). Compare the case of a grant by a railway company which was held to be ultra vires (Mulliner v. Midland R. Co., 11 Ch. D. 611; and see Ayr Harbour Trustees v. Oswald, 8 App. Cas. 623).
The Prescription Act does not appear to have superseded the common Statute has law. (See note (3) at the end of the act.). As to the difference between not superthe mode of claiming easements under the statute and at common law, seded common see Gale on Easements, 177, n. (d), 6th ed.
Jaw, except It has been decided under the statute 2 & 3 Will. 4, c. 71, that an enjoy- in cases of ment of twenty years, which cannot give a good title against all having
light. estates in the lands in question, will not confer any title at all, even as be- Enjoyment tween the parties having partial interests under leases. Thus, where for under statute. more than twenty years the plaintiff, holding a lease from a bishop of one Bright v. close, enjoyed without interruption a way over another close occupied by Walker. the defendant holding a lease under the same bishop, the question arose whether such an enjoyment gave to the plaintiff a right of way over the
2 & 3 Will. 4, defendant's close, so as to enable him to maintain an action for obstructing c. 71, 8.2. the way. Parke, B., after stating the second section of the act, said,
" In order to establish a right of way, and to bring the case within this secBright v.
tion, it must be proved that the claimant has enjoyed for the full period of Walker.
twenty years, and that he has done so as of right,' for that is the form Nature of the in which, by section 5, such a claim must be pleaded, and the like evienjoyment. dence 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
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. ... 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 ? . . . Whatever construction is put on the seventh section, it admits of no doubt under the eighth. It is quite certain, that an enjoyment of forty years instead of twenty, under the circumstances 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 No title is no doubt but that possession of twenty years gives no title as against gained by the bishop, and cannot affect the right of the See. ... On the fullest user which
consideration we think that no title at all is gained by a user which does does not give not give a valid title against all, and permanently affect the See. valid title
“ Before the statute this possession would indeed have been evidence to against all.
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. • ; . 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.
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 (Bright v. Walker, 1 C. M. & R. 211, 223).
Bright v. Walker was a decision on the part of the section relating to 2 & 3 Will. 4, twenty years' enjoyment (See Harris v. De Pinna, 33 Ch. D. 251). c. 71, 8. 2. And it is clear in general that the tenant of one close cannot as such acquire by twenty years' user a prescriptive easement over another close belonging to the same landlord (Gayford v. Moffatt, 4 Ch. 133; Russell v. Harford, 2 Eq. 507; Bayley v. G. W. R., 26 Ch. D. 441; Daniel v. Anderson, 31 L. J. Ch. 610; see per Jessel, M. R., Sturges v. Bridgman, 11 Ch. D. 850; as to the presumption of a grant in such a case, seo Timmons v. Hewitt, 22 L. R. Ir. 627). Where, however, the user extended to forty years, it was held under similar circumstances that an easement could be acquired (Beggan v. Macdonald, 2 L. R. Ir. 560 ; Fahey v. Dwyer, 4 L. R. Îr. 271, approved by Chitty, J., Harris v. De Pinna, 33 Ch. D. 252). Compare the similar result of sect. 3 in the case of a twenty years' user of light (Frewen v. Phillips, 11 C. B. N. S. 449).
The enjoyment of an easement as of right for twenty years next before Easement the commencement of the suit, within this statute, means a continuous en- must have joyment as of right for twenty years next before the commencement of the been enjoyed suit, of the easement as an easement, without interruption acquiesced in for as such. a year. It is therefore defeated by unity of possession during all or part Effect of of the period of enjoyment, although such unity of possession has its incep- unity of postion after the completion of the twenty or forty years (Battishill v. Reed, 18 C. B. 696). 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 (Ib.) And such unity of possession need not be specially replied under the 5th section (Onley v. Gardiner, 4 M. & W. 496; see Monmouthshire Canal Co. v. Ìlarford, 1 C. M. & R. 631; Richards v. Fry, 7 Ad. & Ell. 698). Easements were defeated by showing unity of possession in Clay v. Thackerah, 9 C. & P. 47, and Wilson v. Stanley, 12 Ir. C. L. Rep. N. S. 345.
The words, “enjoyed by any person claiming right,” applied to ease- Enjoyment as ments in the 2nd section, and “enjoyment thereof as of right," in the 5th of right. section of this act, mean an enjoyment had, not secretly or by stealth, or by tacit sufferance, or by permission asked from time to time on each occasion, or even on many occasions of using it; but an enjoyment had openly and notoriously, without particular leave at the time, by a person claiming to use it, without danger of being treated as a trespasser, as a matter of right, whether strictly legal by prescription and adverse user or by deed conferring the right, or though not strictly legal, yet lawful to the extent of excusing a trespass, as by a consent or agreement in writing not under seal, in case of a plea for forty years, or by such writing or parol consent or agreement, contract or licence, in case of a plea for twenty years (Tickle v. Brown, 4 Ad. & Ell. 369 ; see Bright v. Walker, 1 C. M. & R. 219; ante, p. 8; Arkwright v. Gell, 5 M. & W. 333). In the case of prescription, long enjoyments, in order to establish a right, must have been as of right, and therefore neither by violence nor by stealth, nor by leave asked from time to time (Mills v. Colchester, L. R. 2 C. P. 486 ; see De lu Warr v. Miles, 17 Ch. Div. 591).
An enjoyment which the owner of the servient tenement cannot stop is not an enjoyment as of right (Winship v. Hudspeth, 10 Exch. 5; see Sturgess v. Bridgman, 11 Ch. D. 852; Sanders v. Manley, 1878, W. N. 181).
Where an easement was enjoyed during part of the period in exercise of a statutory right, and, the statutory right having ceased, the enjoyment was continued for the rest of the period, no easement was acquired (Kinloch v. Neville, 6 M. & W. 806). Where a watercourse was made and enjoyed by a tenant, the landlord and tenant both believing that this was authorized by the lease, there was no enjoyment as of right (Chamber, &c. Co. v. Hopwood, 32 Ch. Div. 549).
The use of waste water from a canal was held not to be an enjoyment as of right (Staffordshire Co. v. Birmingham Co., L. R. 1 H. L. 254). It was said by Blackburn, J., that Wood v. Waud (3 Ex. 748) was in effect