sections together, it has been decided that the period mentioned in 2&3 Will.4, the act is thirty years next before some suit or action, in which the c. 71, s. 1. 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.) 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.) II. WAYS, EASEMENTS, AND WATERCOURSES. right of way periods to be years. II. That no claim which may be lawfully made at the In claims of common law, by custom, prescription, or grant, to any or other easeway (d) or other easement, or to any watercourse (e), or ment the the use of any water, to be enjoyed or derived upon, over, twenty years or from any land or water of our said lord the King, his and forty heirs or successors, or being parcel of the Duchy of Lancaster or the Duchy of Cornwall, or being the property of any ecclesiastical or lay person, or body corporate, 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, until it shall appear that the same was enjoyed by some consent or agreement expressly given or made for that purpose by deed or writing (ƒ)." (d) As to the law of ways, see post. (e) See note on watercourses, post. (ƒ) This section relates to claims of rights of way, or other ease- What inment, or to any watercourse, or the use of any water to be enjoyed, or cluded in derived upon, over, or from any land or water. A claim, by the second sec occupier of a copper-mine, to sink pits in his own land for the water pumped out of his mine and for the precipitation of the copper contained in such water, and for that purpose to put iron into the said pits, and to cover the same with the said water, and afterwards to let it off, impregnated with metallic substances, into a watercourse flowing over the land of another, is a claim to a watercourse within the second section of the stat. 2 & 3 Will. 4, c. 71. (Wright v. Williams, 1 Tyr. & G. 375; 1 Mees. & W. 77.) tion. Easement is the general term for several species of liberties which Easement. one man may have in the soil of another, without obtaining any 2&3 Will. 4, interest in the land itself. (6 Rep. 52; Cro. Car. 419.) Rights of c. 71, s. 2. accommodation in another's land, 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 by writing or prescription without profit, as a way, or a sink through his land, or such like. (Kitch. 103; Cow. Law Dict. Terms of the Law, tit. "Easement;" 5 B. & C. 229.) Different kinds of easements. Nature of enjoyment. There are an infinite number and variety of easements. The following may be enumerated :-Rights of way. Right to discharge a stream of water, either in its natural state, or changed in quantity or quality. (Wright v. Williams, 1 Mees. & W. 77.) Right to receive a flow of water. Right to discharge rain-water by a spout or projecting eaves. Right to support from the neighbouring wall, or soil. Right to carry on an offensive trade. Right to hang clothes on lines passing over the neighbouring soil. (Drewel v. Towler, 3 B. & Ad. 735.) The right of landing nets on another man's ground. (Gray v. Bond, 2 Brod. & B. 667.) Right to receive light and air by ancient windows. A right in the occupier of an ancient messuage to water his cattle at a pond, and to take the water thereof for domestic purposes, for the more convenient use of his messuage, is a mere easement, and not a profit à prendre in the soil of another. Such a right may be claimed by reason of the occupation of an ancient messuage, without any limitation as to the quantity of water to be taken. (Manning v. Wasdale, 1 Nev. & Per. 172; 5 Ad. & Ell. 758. See Fitch v. Rawling, 2 H. Bl. 395.) A person may prescribe to an easement in the freehold of another as belonging to some ancient house, or to land, &c. And a way over the land of another, a gateway, watercourse, or washing-place 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. Michell, Cro. Eliz. 441, a way to a common fountain is mentioned as an easement claimable for parishioners by custom. 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, which cannot be effectually granted without a deed or a faculty, although the incumbent of a living has no power to grant such a right even by deed, but only leave to bury in each particular instance. (Bryan v. Whistler, 8 B. & C. 288; 2 M. & Ryl. 318.) The right to sit in a pew in a church annexed to a house seems to be an easement. (5 B. & Ald. 361.) A man cannot prescribe to have a necessary easement in the land of another person for himself and his servants to catch fish in his several fishery. (Peers v. Lacy, 4 Mod. 362.) Rent cannot issue out of a mere easement. (Buzzard v. Capel, 8 B. & C. 141; 2 M. & R. 197; 6 Bing. 150; 3 M. & P. 480; 3 Y. & J.344.) The enjoyment of an easement as of right, for twenty years next before the commencement of the suit, within the stat. 2 & 3 Will. 4, c. 71, means a continuous enjoyment as of right for twenty years next before the commencement of the suit, of the easement as an easement, without interruption acquiesced in for a year. It is therefore defeated by unity of possession during all or part of the twenty years. And such unity of possession need not be specially replied under the 5th section. (Onley v. Gardiner, 4 Mees. & W. 496. See Monmouthshire Canal Company v. Harford, 1 C. M. & R. 631; 5 Tyr. 85; Richards v. Fry, 3 Nev. & P. 367; 7 Ad. & Ell. 698.) To an action of trespass on land, the defendant pleaded, that for twenty, thirty, forty, and sixty years, he and the occupiers of a mill had (as an ease ment) gone on the land to repair the banks of a stream which flowed 2 & 3 Will. 4, to the mill. The replication denied the rights claimed. It appeared c. 71, s. 2. that within forty years B. had been lessee of the mill under one landlord, and of land under another: it was held, that this was such a unity of possession as prevented his having an easement on the land. (Clay v. Thackrak or Thackeray, 9 Car. & P. 47; 2 M. & Rob. 244.) According to the true construction of the statute, in order to make a user "as of right," it must be exercised for the period prescribed as of right against all persons, so as to be evidence of a perfect right. But a party has no right of way" as of right" if the exercise for the first seven years was during a period when the owner could not stop him. A plea under this act of a user of a way as of right for twenty years over a close is not supported by proof of a user of the way for part of the twenty years while a party was the landlord and owner as well of the messuage in respect of which the right was claimed as of the close over which it was exercised, and for the rest of the period when the defendant had acquired the freehold of the messuage. In 1823, M. built two adjoining houses, behind each of which was a piece of ground appropriated as a yard, but no wall divided the yards. In 1832, M. permitted the defendant to occupy one of the houses without payment of rent, and he was accustomed to pass over the yard of the other house, which was let from time to time to different tenants, to a public highway. M. continued owner of both houses until his death in December, 1838. In August, 1839, the trustees under his will conveyed the last-mentioned house and the ground behind it to a person through whom the plaintiff derived his title. In September, 1839, the trustees conveyed the other house and ground to the defendant, who continued to occupy it and use the way across the plaintiff's yard without interruption until 1853. It was held, that there was no user of the way "as of right" for twenty years within the meaning of this section. (Winship v. Hudspeth, 10 Exch. 5; 21 Law J., Exch., 268. In questions under this section it is most important to show the nature 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. (Per Coleridge, J., 17 Q. B. 275.) In an action for disturbing a watercourse, which of right ought to flow into the plaintiff's close to irrigate it, a denial of the right was pleaded. On the trial it appeared that the watercourse was not ancient, but that the water had flowed in its present course for more than twenty years past the plaintiff's close. There was evidence, that during that period the plaintiff and those under whom he claimed had been constantly in the habit of drawing off the water to irrigate his close, and that the owners of the watercourse resisted it. On one occasion, when the plaintiff's servant drew off the water, he was summoned before a justice for so doing; the plaintiff's son, by his direction, attended and defended the servant, and paid a fine of one shilling. The conviction was under a local act, from which there was a power of appeal. The plaintiff did not appeal. The conviction was tendered in evidence and rejected. In summing up the judge explained that the enjoyment to defeat an adverse right must be for twenty years without interruption acquiesced in for a year. One of the jury asked what would be the effect in law of a state of perpetual warfare between the parties? Which question the judge did not answer. The jury found that "the watercourse had been enjoyed as of right for twenty years and without interruption for a year," and were directed to find for the plaintiff. It was held that 2&3 Will. 4, interruption, though not acquiesced in for a year, might show that c. 71, s. 2. the enjoyment never was of right but contentious throughout, though if once the enjoyment as of right had begun no interruption for less than a year could defeat it, and consequently that the manner in which the question was left and the verdict found was not satisfactory, and a new trial was granted. (Eaton v. Swansea Waterworks Co., 17 Q. B. 267.) It was also held, that the acquiescence of the plaintiff in the conviction was evidence as an acknowledgment that he did not enjoy as of right, and although its weight might be great or small, it ought not to have been excluded. (1b.) The case of the construc- It has been decided under the statute 2 & 3 Will. 4, c. 71, that an enjoyment of twenty years, which cannot give a good title against all having estates in the lands in question, will not confer any title at all, even as between the parties having partial interests under leases. In an action on the case for obstructing a way claimed from a wharf, in a close called Cliff meadow, through Eacham meadow, over the locus in quo, called the Acre, where the obstruction took place, into a public highway, it appeared that Cliff and Eacham meadows were held under the Bishop of Worcester by a lease for three lives, granted in 1805. In 1809 Roberts purchased the leasehold interest from Davis, and began to make bricks in Cliff meadow, and carried them through Eacham meadow and the Acre into the highway. In 1811 Dalton, the then occupier of the Acre, and the assignee of a copyhold lease for four lives, under the bishop of the close called Acre, put up a gate to obstruct Roberts in carrying bricks. Roberts broke it down, and he and the plaintiff, who claimed under him, continued to carry bricks over the Acre, without interruption, for more than twenty years, when the defendant, claiming as assignee of the bishop's lease, under Dalton, obstructed the way, and for that obstruction the action was brought. No proof was given on either side, that either of the original leases had been surrendered, and therefore the case was considered as if both had continued to the time of the obstruction. The jury found, first, that they would not presume any grant of right of way by the bishop; and secondly, that the plaintiff Roberts had actually enjoyed the way without interruption for more than twenty years, and the only question was, whether such an enjoyment gave to the plaintiff a right of way over the defendant's close, so as to enable him to maintain the action, which question depended upon the construction of the above act, particularly the second section. Parke, B., in giving the judgment of the court, after stating the second section of the act, said, "In order to establish a right of way, and to bring the case within this section, it must be proved that the claimant has enjoyed for the full period of twenty years, and that he has done so as of right,' for that is the form in which, by section 5, (post, p. 17,) such a claim must be pleaded, and the like evidence would have been required before this statute, to prove a claim by prescription or nonexisting 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 as of 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 2 & 3 Will. 4, or ignorance of the parties interested in opposing the claim, and c. 71, s. 2. their agents, during the whole time that it was exercised. So far the Bright v. construction of the act is clear, and this enjoyment of twenty years Walker. having been uninterrupted, and not defeated on any ground above mentioned, would give a good title; 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? Will it be good to give a right against the see, and against those claiming under it by a new lease, or only as against the termor and his assigns during the continuance 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, (see post, p. 22,ĵ it admits of no doubt under the eighth, (see post, p. 23). It is quite certain, that an enjoyment of forty years instead of twenty, under the circumstance 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 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 as against the lessee and the defendant claiming under him, or not at all? We have had considerable difficulty in coming to a conclusion on this point; but on the fullest consideration we think that no title at all is gained by a 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. (See sect. 5 of the act, post, p. 17.) 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. "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 as against every one, it is not good against any one, and therefore not against the defendant. This view of the case derives confirmation from the 7th section. (See post, p. 22.) This section, it is to be observed, in express terms excludes the time that the person (who is capable of resisting the claim to the way) is tenant for life; and unless the context makes it necessary for us, in order to avoid some manifest incongruity or absurdity, to put a different construction, we ought to construe the words in their ordinary sense. That construction does not appear to us to be at variance with any other part of the act, nor lead to any absurdity. During the period of a tenancy for life, the exercise of an easement will not affect the |