the tenant's acknowledgment of a servitude, like that in Scholes v. Chadwick, 2 Moo. & R. 507, or for cutting turf 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.

6

"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.' Atty.-Gen. v. Chambers, 4 De G. & J. 55; sce pp. 65, 66. See In Re Hainault Forest Act, 1858, 9 C. B., N. S. 648.

"This section of the Act does not prevent a claim to a right of common, &c., from being defeated after thirty years' enjoyment, by shewing 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 shewing 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 Commis sioners, 18 C. B. 60; 2 Jur., N. S. 520; 25 L. J., C. P. 212.

"In replevin for taking the plaintiff's cattle, to an avowry damage feasant the plaintiff pleaded in bar under this Statute a 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 had 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 thẹ 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., Ex. 298.

"Where there had been actual and uninterrupted enjoyment of a right to cut turf for sixty years, but the enjoyment appeared to be referable during the whole period to an agreement in writing made by a tenant for life of the servient tenement, and acquiesced in and acted on by the successive owners of that tenement, it was held that although the tenant for life who made the agreement and the next succeeding tenant in tail had both died before the sixty years began to run, no prescriptive right had been gained under this section. Lowry v. Crothers, I. R., 5 C. L.

98.

"The 1st section requires in the case of a right of common or a profit à prendre, enjoyment without interruption for the full period of thirty years;' the most undoubted exercise of enjoyment for twenty-nine years and three-quarters will not be sufficient. Bailey v. Appleyard, 8 Ad. & Ell. 164; see Flight v. Thomas, 11 Ad. & Ell. 688. Taking the first, fourth and fifth 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 Ad. & Ell. 698; Wright v. Williams, 1 Mees. & W. 77.

"If the Statute be relied on it ought to be pleaded. Welcome v. Upton, 6 M. & W. 401. 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 enjoyment of the right for the periods mentioned in the first section. Welcome v. Upton, 5 Mees. & W. 398; 7 Dowl. P. C. 475." (a)

35. No claim which may lawfully be made at the common law by custom, prescription or grant, to any way or other easement, or to any water-course, or the use of any water to be enjoyed, or derived upon, over, or from any land or water of our said Lady the Queen, her heirs or successors, or being the property of any ecclesiastical or lay person or body corporate, when such way or other matter as herein last before mentioned, has been actually enjoyed by any person claiming right thereto without interruption for the full period of twenty years, shall be defeated or destroyed by shewing only that such way or other matter was first enjoyed at any time prior to the 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 has been so enjoyed, as aforesaid, for the full period of forty years, the right thereto shall be deemed absolute and indefeasible, unless it appears that the same was enjoyed by some consent or agreement expressly given or made for that purpose by deed or writing. C. S. U. C. cap. 88, s. 37.

This section is taken from 10 & 11 Vic. cap. 5, s. 2, which was taken from 2 & 3 Will. IV. cap. 71 (Imp. Act), s. 2. The leading case in the Canadian Reports on this section is Bowlby v. Woodley, 8 Q. B. 318. Chief Justice Robinson delivered the judgment of the Court. Draper, J., was with him except with regard to the pleadings, and Burns, J., concurring with the Chief Justice, the defendant succeeded.

In this case, defendant had used a mill dam for more than twenty years while it belonged to the Crown, and after the survey, as in the eighth section of 10 & 11 Vic. cap. 5, is necessary, and which is the 42nd section of this Act.

The learned Chief Justice Robinson held that the Statute fully granted the easement. All easements, even by prescription, are supposed to be granted either expressly or impliedly.

(a) Shelford's Real Property Statutes, pp. 2-5.

The question of the retrospective effect of the Act was also taken into consideration, and decided on the general principle mentioned in the remarks of Bayley, J., supra.

In delivering the judgment of the Court, the learned Chief Justice uses the following words: "I consider that the right or privilege used by the defendant of backing water on the land, is an easement coming within the second clause of our Statute, because it is an easement to which a title may be acquired by custom, prescription or grant, and certainly as against the Crown by grant as against an individual; that the evidence, shewing an uninterrupted enjoyment for twenty years next before this action brought, without any permission obtained or asked, and enjoyed openly, not covertly or by stealth, as the fact must have been from the very nature of the easement itself, we are to take it that the defendant enjoying it and claiming right thereto, that this case being made on the one side and nothing shewn to rebut it on the other, the Statute leaves nothing necessary to be found by the jury, but establishes the right as a legal consequence." (a)

Draper, J., refers, in support of his technical objection, to Pye v. Mumford, 12 Jur. 579; Clayton v. Corby, 2 Q. B. 813 (Eng. Rep.) See also the case of Stuart v. Spence, 10 Q. B. 486, more especially referred to subsequently.

The Prescription Act, although it has given some increased facilities to a party claiming an easement, has not superseded the common law, but allowed him an election either to proceed under the Statute, or according to the common law, or both.

Nor is the title by lost grant put an end to any more than the title by prescription is abrogated by it; indeed, so far as the preamble may be permitted to afford an indication

(a) Cases cited: 5 Tyr. 85; 11 Ea. R. 374; 5.B. & C. 232; 8 East. 309; 4 B. &. Al. 580. Gale on Easements, 6, 108; 1 C. M. & R. 217.