"Where, therefore, the plaintiff had for more than twenty years enjoyed the access of light to his workshop, through a window against which the defendant had, about fourteen months before action brought, erected a permanent building which obstructed it, and the plaintiff had taken no active measures to cause the obstruction to be removed, but had several times, himself or by his tenant, complained of and protested against it; held, that it was a question proper to be left to the jury whether or not there had been such a submission to or acquiescence in the interruption of the enjoyment as to deprive the plaintiff of the right to the light. Semble, that the same sort of evidence of user or enjoyment need not be given in the case of a light as in the case of a claim of a right of way." Ibid.

"An agreement to grant A. a lease, in a form set out in a schedule, of property in the city, as soon as the house then in course of erection by A. on the property should be completed, contained a proviso that nothing therein contained should give A. a right to any easement which did not belong to the premises agreed to be demised as they then existed, nor to any right of light and air derived from over the houses opposite (which belonged to the lessors). The lease subsequently granted was of the land together with the house erected thereon, and all lights, easements, and appurtenances thereto belonging. In accordance with the scheduled form, held, that the grant by the lease of lights and easements was controlled by the antecedent agreement, which was to be read as part of the lease; and that A. was not entitled to restrain the lessees of the opposite houses from building so as to obstruct the access of light and air to his premises from over such houses." Salaman v. Glover, 15 Eq. C. 436.

"Neither the enlargement of ancient windows nor the construction of new windows in their immediate vicinity will affect the right of the owner to protection for his ancient lights." Aynsley v. Glover, 11 Eq. C. 521; affirmed, 12 s. c. 726.

"Where it appeared that the building complained of as seriously obstructing ancient lights was nearly completed when the bill for an injunction was filed, held, that a mandatory injunction would not be granted to restrain the completion and continuance of the building, but the Court directed an inquiry as to damages, though not prayed for in the bill." Stanley v. Shrewsbury, 13 Eq. C. 546.

37. Each of the respective periods of years in the last three preceding sections mentioned shall be deemed and taken to be the period next before some suit or action, wherein the claim or matter to which such period may relate was or is brought into question; and no act or other matter shall be deemed an interruption within the meaning of the said three sections, unless the same has been submitted to or acquiesced in for one year after the party interrupted has had notice thereof, and of the person making or authorizing the same to be made. C. S. U. C. cap. 88, s. 39.

This section is taken from 10 & 11 Vic. cap. 5, s. 4, which was taken from 2 & 3 Will. IV. cap. 71, s. 4.

We have before alluded to the decisions, where it was held that the time should be counted up to the time when the action was brought, not up to the time the trespass was committed.

Parke, B., in Ward v. Robins, 15 M. & W. 237, says: "Such enjoyment, in order to give a right under that Statute, must be up to the time of the commencement of the suit, not up to the time of the act complained of; and consequently, an enjoyment for twenty years or more before that act gives only what may be termed an inchoate title, which may become complete or not by an enjoyment subsequent, according as that enjoyment is or is not continued to the commencement of the suit." Vide also Wright v. Williams, 1 M. & W. 77; Richards v. Fry, 7 A. & E. 698.

"Some suit or action." A question arose as follows: Whether the enjoyment which is to confer the right must be an enjoyment for twenty years next before the suit or action in which the claim is set up, or whether it is enough that the enjoyment has been had for twenty years next

before some other action or suit. Cooper v. Hubbuck, 12 C. B., N. S. 461. Held, Williams, J., dissenting, that the twenty years' enjoyment of the access and use of light to a dwelling house, &c., under the 3rd and 4th section of the Prescription Act, 2 & 3 Will. IV. cap. 71, is to be taken to be the period next before some action or suit wherein the claim shall have been brought in question. Willes, J., there says: "The effect, therefore, is that immediately upon the bringing of such suit or action, the enjoyment, if within the previous sections as to length and otherwise, shall ripen into a right. That becomes necessary immediately upon the bringing of the first suit or action, wherein the claim or matter shall have been or shall be brought in question. If the Statute did not then come into operation, there would be a right without a remedy. If it does, as I think it will be admitted it does, then come into operation, what is its effect? I answer, the creation of a right, not a mere excuse or temporary shift or continuance for the purpose of that suit." See supra.

"Next before some suit or action." With reference to this, it has been decided that the Statute intends that actual user must have been shewn to have continued to within one year of the commencement of a suit or action. In Parker v. Mitchell, 11 A. & E. 788, evidence was given of a way from a period of fifty years till within four or five years before the commencement of the action, and it was held that this evidence was not sufficient to establish an easement. Lord Denham expressed an opinion that absence of evidence of user for two days before the commencement of the action would not prevent the acquisition of an easement. Lowe v. Carpenter, 6 Ex. 825, user for fourteen months held insufficient (a); Haley v. Ennis, 10 Q. B. 404. See also Glover v. Coleman, L. R., 10 C. P. 108.

Ladyman v. Grave, L. R., 6 Chy. App. 768; Carr v. Foster, 3 Q. B. 581. These cases indicate that user is

(a) Goddard on Easements, 129.

sufficient for the acquisition of a prescriptive right, even though there were a period of non-user in the middle, provided the non-user was not in consequence of the adverse act of the servient owner, so as to constitute an interruption.

Mere non-user will not of itself constitute sufficient defence to a claim for a prescriptive right: to have that effect, it must be coupled with some act indicative of abandonment. (a)

If the user be interrupted in one part, the prescriptive right only fails as to that part. Davis v. Williams, 16 Q. B. 546; 20 L. J., Q. B. 330.

Trifling interruptions or alterations in the course of a stream will not prevent prescription. Hall v. Swift, 4 Bing. N. C. 381.

There is constructive enjoyment of the easement, even when there is non-user by agreement, and that will not prevent prescription. (b)

In Wright v. Williams, 1 M. & W. 77, it was determined that the Statute intended to confer, after the periods of enjoyment therein mentioned, a right from their first commencement, and to legalize every act done in the exercise of the right during their continuance.

The rules for computation of prescription periods apply only to cases of easements claimed under the Act. To establish an easement claimed by prescription at common law, it is not essential to produce evidence of user within the last year before action. Darling v. Clue, 4 F. & F.

329.

ACQUIESCENCE.

In 1861, while defendant was building a tannery on land adjoining the plaintiff's premises, the plaintiff encouraged defendant to proceed. The business was commenced the

(a) Moore v. Rawson, 3 B. & C. 332; Stokoe v. Singers, 8 E. & B. 31; 26 L. J., Q. B. 257; Regina v. Chorley, 12 Q. B. 515.

(b) Payne v. Shedden, 1 M. & R. 382; Reignolds v. Edwards, Willes, 282; Carr v. Foster, 3 Q. B. 585.

same year. In 1863 additions were made to the buildings with the plaintiff's knowledge and acquiescence; and the plaintiff made no complaint about the business until 1868, though all this time it had been carried on, and the plaintiff had been residing on the premises adjoining. Held (affirming the decree of the Court below), that by his conduct he had debarred himself from relief in equity on the ground of a tannery being a nuisance. Heenan v. Dewar, 18 Chy. 438; s. c. 17 Chy. 638.

With regard to acquiescence, a good case to notice is Lindsay Petroleum Oil Company v. Hurd, 17 Chy. App. 115. On Appeal to the Privy Council (s. c., 16 Chy. 147), it was held in accordance with the Court below, L. R., 5 P. C. 221.

Nature of licenses is clearly explained in Wood v. Led bitter, 13 M. & W. 838, where it is held that mere licenses may be given by deed as well as by parol. As to acquiescence, see Davies v. Marshall, 10 C. B., N. S. 697; Rochdale Canal Company v. King, 2 Sim., N. S. 78.

The latter case was an application by Rochdale Canal Company to prevent the defendant from taking water from their canal for the purposes of generating steam, when the Canal Company, at the time of the building of the mill, had assisted in laying the pipes to get the water. Held, sufficient acquiescence, so that injunction was not obtained.

Licenses may be acquired by grant. Hewitt v. Isham, 21 L. J., Ex. 35.

Some cases decided in our own courts may be mentioned. Ingalls et al. v. Reid, 15 C. P. 490. An intending purchaser of devised lands, doubting whether a provision made by the testator was in lieu of dower, asked the widow whether she had or claimed dower. Held, that even if her answer was in the negative, it afforded no ground for the purchaser applying to this Court to restrain her action for