2 Q. B.813. Where an easement has been enjoyed without the knowledge of either party, the user will not establish the right; as where the owner of a house, built twenty years ago on land excavated by a mine, claimed the easement of preventing his neighbour from mining in his own land so as to injure the house, it was held that the period did not begin to run until his neighbour was aware of the excavation under the house. Partridge v. Scott, 3 M. & W. 220. An enjoyment for fifty years down to within a few years before action brought, when it ceased, will not establish a right of way. Parker v. Mitchell, 11 4. & E. 788.

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 the statute; for the agreement to suspend the enjoyment of the right, does not extinguish, nor is it inconsistent with the right. So if, instead of a direct path from A. to B., another track over the plaintiff's land from A. to C., and thence to B., had been substituted by the parol agreement of the parties for an indefinite time, yet the user of the substituted line may be considered as substantially an exercise of the old right, and evidence of the continued enjoyment of it. Per Patteson J., Payne v. Shedden, 1 M. & Rob. 383. So an alteration in part of the channel of a watercourse flowing over the plaintiff's land will not be such an interruption as will defeat the right or destroy the identity of the stream. Semb. Hall v. Swift, 4 New Ca. 381. Nor will an accidental natural interruption, as a dry season, defeat it. S. C. An interruption under this act must be by the owner of the locus in quo (i. e. of the servient land.) Per Parke B. in Onley v. Gardiner, 4 M. & W. 497. Where non-user of a way for a year is proved by the defendant, he may also prove payment of an acknowledgment for the user just before the non-user, in order to rebut the inference of a mere voluntary forbearance on the part of the claimant. Tickle v. .Brown, 4 A. & E. 369.

By sect. 7., where the person, who ought to resist the claim of right, is under certain disabilities, or is tenant for life, the period of disability or of the life estate is to be excluded from the periods of twenty or of thirty years. If therefore any such disability occurs during the twenty or thirty years next before the suit, the claimant must make up the full period by proof of user before it began; and the whole period of twenty or thirty years so made up will be deemed to be next before the suit within the meaning of the act. Thus where defendant pleaded enjoyment of a profit in alieno solo for thirty years, to which the plaintiff replied a tenancy for life for twenty-five years out of the thirty, to which defendant rejoined that the life estate did not continue dur ing the thirty years, and defendant proved an enjoyment from 1761 to 1785, and from 1834 till action brought in 1840, the defendant was held entitled to a verdict. Clayton v. Corby, 2 Q. B. 813. But, semb., such disability will not prevent a legal interruption, submitted to during it, from defeating the claim. Per Cur. ibid.

Under sect. 8. a tenancy for term of life, or of years exceeding three, will be excluded from the computation of forty years (applicable to ways and watercourses), only on condition that the claim is resisted by the reversioner within three years after the determination of the term. Wright v. Williams, 1 M. & W. 77.

In Bright v. Walker, 1 C. M. & R. 219., a way had been used ad versely for twenty years over land in possession of a lessee who held under a lease for lives granted by a bishop, and it was held that this user gave no right as against the bishop, and did not affect the see. It was also held that no right was gained as against the bishop's lessee. The grounds of this decision are thus explained by Parke B. in delivering the judgment of the court; "If the enjoyment takes place with the acquiescence or by the laches of one who is tenant for life only, the question is, what is its effect according to the true meaning of the statute 3 W. 4? Will it be good to give a right against the see, and those claiming under it by a new lease, or only against the termor and his assigns during the coutinuance of the term, or will it be altogether invalid? In the first place it is quite clear that no right is gained against the bishop; 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 is no doubt but that this possession of twenty years gives no title as against the bishop, and cannot affect the right of the see. The important question is, whether this enjoyment, as it cannot give a title against all persons having estates in the locus in quo, gives a title against the lessee and defendants claiming under him, or not at all?"" Upon the fullest consideration, we think that no title at all is gained by an user which does not give a valid title against all, and permanently affect the see. Before the statute this possession would indeed have been evidence to 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, though such a claim was by no means a matter of ordinary occurrence; and in practice the usual course was to state a grant by an owner in fee to an owner in fee. But, since the statute, such a qualified right, we think, is not given by an enjoyment for twenty years. For in the first place the statute is for 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 land in fee. And in the next place the statute no where contains any intimation that there may be different classes of rights qualified and absolute, valid as to some persons and invalid as to others. From hence we are led to conclude that an enjoyment of twenty years, if it give not a good title against all, gives no title at all; and as it is clear that this enjoyment, whilst the land was held by a tenant for life, cannot affect the reversion in the bishop now, and is therefore not good against every one, it is not good as against any one, and therefore not against the defendant."

Right of way, how proved.] The proof of the right will, of course, depend upon the nature of the way claimed, and the foundation of the claim. A private way is usually claimed by grant, prescription, custom,

or by enjoyment, as of right, for twenty or forty years under the statute already referred to.

The particular description of way, as a cart-way, horse-way, or footway, must be proved; and evidence of user of a right of way for all manner of carriages, does not necessarily prove a right of way for all manner of cattle, though it is evidence to go to the jury. Ballard v. Dyson, 1 Taunt. 279. Where a way was stated to be for "horses, coaches, carts, and carriages," and the evidence was that carts of a particular description, and loaded in a particular manner, could not pass along the way, it was held to be no variance. R. v. Lyon, R. & M. 151. Evidence of user of a way with horses, carts, and carriages, for certain purposes, does not necessarily prove a right of way for all purposes, but the extent of the right is a question for the jury under all the circumstances of the case; and where the claimant uses it for all purposes for which he has occasion, it is evidence of a general right of way. Cowling v. Higginson, 4 M. & W. 245. A right of way to "lead" manure implies the use of carts, and is not proved by the grant of a foot-way, and way for horses and cattle. Brunton v. Hall,

1 Q. B. 792.

The termini of the way, as stated in the declaration, must be proved. Thus the claim of a prescriptive right of way from A. over the defendant's close unto D., is not supported if it appear that a close, called C., over which the way once led and which adjoins to D., was formerly possessed by the owner of close A., and was by him conveyed in fee to another without reserving the right of way; for thereby it ap pears that the prescriptive right of way does not, as claimed, extend unto D., but stops short of it. Wright v. Rattray, 1 East, 377. See Simpson v. Lewthwaite, 3 B. & Ad. 226., post, title, "Trespass." The plaintiff might perhaps have alleged and established a right of way towards, but certainly not unto, the terminus. Per Lord Kenyon, 1 East, 381. The words "towards and unto" do not necessarily imply a straight road, but admit of angular deviations. R. v. Marchioness of Downshire, 4 A. & E. 232. Where the defendant in trespass prescribed in his plea for an occupation way from his own close, unto, through, and over the said several closes, in which, &c., to and unto a certain highway," and it appeared at the trial that one of the intervening closes was in the possession of the defendant himself, the prescription was held to be proved. Jackson v. Shillito, cited 1 East, 381. Variances of this kind are now of less importance since the act for the amendment of them, antè, p. 67. If the declaration alleges the way to be enjoyed "by reason" of a messuage, it will not be supported by proof of a right independent of it. Fentiman v. Smith, 4 East, 107. As to presumptive evidence of a grant of way, see antè, p. 22, 23. Hearsay evidence is admissible to prove a public way; but not a private one, see antè, p. 28, 29, 30.

Disturbance by the defendant.] The plaintiff must prove, on a plea of Not guilty, some disturbance by the defendant; and where the action is for a nuisance in a highway, he must prove the special damage if put in issue by the plea. Wilkes v. Hungerford Market Co., 2 New Ca. 8ì.

Defence.

By the rules of H. 4. W. 4., in an action on the case for obstructing a right of way, the plea of the general issue will operate as a denial of the obstruction only, and not of the plaintiff's right of way.

So

The defendant may shew, on a traverse of the right, that it has ceased to exist; as that the way has been extinguished by an inclosure act, &c., or, if claimed by presumed grant, that during the adverse user the land was in the possession of a tenant. If the way is claimed as a way of necessity, the defendant may shew that the plaintiff can approach the place to which it leads over his own land, and that consequently the way of necessity has ceased. Holmes v. Goring, 2 Bing. 76. he may prove that the way was only a way by sufferance during the pleasure of himself and the plaintiff; Reignolds v. Edwards, Willes, 282.; as evidence of which, he may shew that he has kept a gate &c. across the road, or that the plaintiff has paid him a compensation for the use of the way. He may also shew that the right of way has been renounced and abandoned by acquiescing in an obstruction for more than twenty years. Bower v. Hill, 1 New Ca. 555. But where a party was entitled to pass along a navigable drain from his land to the river, and the owner of the land lower down erected a permanent obstruction across the drain, it was held that the circumstance of part of the drain having been impassable for sixteen years from an accumulation of mud, did not deprive the party of his right to sue for such obstruction. Ibid. Where the plaintiff complains of an injury arising from an obstruction in a highway, the defendant may prove that, by using common caution, the plaintiff might have avoided it. Butterfield v. Forrester, 11 East, 60. The defendant may also prove a release of the right by a substantial alteration in the original object of the grant of way: thus where a way is granted to an open piece of ground "now used as a wood-house," the grantee, though not bound to continue to use it as a wood-house, cannot use the way for a dwelling-house built thereupon. Allan v. Gomme, 11 A. & E. 759,

Unity of possession is also an extinguishment of an easement; but where the party has different estates in the two pieces of land, as an estate in fee in the land over which, and a term of years in the land in respect of which, the easement exists, the easement is suspended only, and not extinguished. Thomas v. Thomas, 2 C. M. & R. 34.

The declarations of a previous occupier or tenant of the dominant tenement, that he was entitled to the way only by permission, were not evidence to defeat the claim of a way before 2 & 3 W. 4. c. 71.; but, semb., they are admissible since that act. See Tickle v. Brown, 4 A. & E. 369. 378.; and antè, p. 36.

CASE FOR DISTURBANCE OF WATERCOURSE.

The principal allegations in the declaration are usually, 1. The possession of a mill, meadow, or other tenement, in respect of which the right of water is enjoyed; 2. The right to the water; 3. The disturbance; 4. The damage.

Proof of possession.] This must be traversed, and is not put in issue by a plea of Not guilty; and where the inducement unnecessarily and irrelevantly stated that a close therein mentioned was used as a private road, it was held unnecessary to prove such user. Dukes v. Gostling, 1 New Ca. 588.

Proof of the right to the water.] A traverse of the right does not put in issue the possession of the tenement in respect of which it is enjoyed. Nor does the plea of Not guilty put in issue the wrongfulness of the diversion. Frankum v. Falmouth, 2 A. & E. 453.

The provisions of the Prescription Act, 2 & 3 W. 4. c. 71., which apply to ways or watercourses, have been already referred to, antè, p. 338. 342., and the decisions on the statute upon rights of way are generally also applicable to rights of water.

When the right is enjoyed by some grant or licence unconnected with the land benefited by it, it is a variance to allege the enjoyment by reason of the possession of the land. Fentiman v. Smith, 4 East, 107.; Hewlins v. Shippam, 5 B. & C. 221. So where the plaintiff claimed a watercourse by reason of a mill, and the jury found a disturbance of the right as enjoyed before the erection of the mill, the finding was held not to support the claim. Frenkum v. Falmouth, ubi suprà. The right may be gained though the channel for the water be wholly artificial, and made for a different purpose; as where the owners of a brewery had enjoyed the use of water issuing for twenty years out of the mouth of a disused adit made to drain mines, it was held that the mine owners could not afterwards resume the working of the mines so as to infect the water. Magor v. Chadwick, 11 A. & E. 571. If however the adit water has been used with notice of the intention to resume the workings, or under circumstances from which such notice must be necessarily inferred, or if there be a local custom to resume them at any time, it seems that no right will be thereby gained. S. C., and Arkwright v. Gell, 5 M. & W. 231; and quære, whether such a custom may not be shewn on a traverse of the right? Magor v. Chadwick, 11 A. & E. 572. n. (a).

A right to water is not destroyed by a partial alteration in the direction of the stream by the claimant; Hall v. Swift, 4 New Ca. 381; nor by an interruption occasioned by a dry season, S. C.; nor by an alteration in the machinery of the mill turned by it, if not prejudicial to others entitled to the same water. Saunders v. Newman, 1 B. & A. 258. Where the plaintiff, by oral licence, has permitted the defendant to erect a permanent work which has lessened the supply of water, he cannot