with the fact of there having been no grant, the presumption does not arise. ()' When the property is of such a nature that it can not be easily protected against intrusion, and, if it could, it would not be worth the trouble, proof must be given of constant uninterrupted user and enjoyment of the privilege, with the knowledge and acquiescence of the party interested in resisting intruders, in order to raise a presumption of a grant. (¿)1 According to the ancient law of prescription, the enjoyment was not uninterrupted, wherever it was had and exercised in spite of the remonstrance or prohibition of the owner of the fee. (k) And whenever there was evidence to show that the user and enjoyment were had and exercised by permission, and (h) Doe v. Reed, 5 B. & Ald. 236. Livett v. Wilson, 3 Bing. 118. Boyle v. Tamlyn, 6 B. & C. 337. (i) Att.-Gen. v. Chambers, 5 Jur. N. S. Ch. 145; 4 De G. Mc. & G. 206. Att.Gen. v. Jones, 33 L. J. Exch. 249. (4) “Interrumpi poterit per denuntiationem et impetrationem diligentem et per talem interruptionem nunquam acquirit possidens ex tempore liberum tenementum."-Bract. lib. 4. fol. 51, cap. 22. 1 Stillman v. White Rock Co., 3 W. & M. (U. S.) 549. "In all cases where the right is claimed by prescription, the exercise of the right for the period requisite for it to ripen into a title, must be continuous and unbroken. By this it is not meant that the user must be constantly exercised, but that it must be as continuous as the right claimed. Thus a person in order to acquire a right of way by prescription over another's land, for the purposes of drawing wood, hay, or other crops, need not cross the lands every day in the year, but only so often as his necessity or convenience requires. He need not go there more than once a year for such purposes, but his user must be commensurate with the right claimed, and the right will be measured by the user, and will not exist for any other purpose, or to any greater extent. Brooks v. Curtis, 4 Lans. (N. Y.) 283; Atwater v. Bodfish, II Gray (Mass.) 152; McCullum v. Germantown Co., 54 Penn. St. 40; Horner v. Stilwell, 35 N. J. 307; Noyes v. Morrill, 108 Mass. 307; Stiles v. Hooker, 7 Cow. (N. Y.) 266; Rexford v. Marquis, 7 Lans. (N. Y.) 251. Thus, a person by using a waterway to bring goods to a tavern, until the user had ripened into a right, is restricted to the use and purpo-e for which the right was acquired, and it would only exist for the tavern; McCollum v. Germantown Co., 54 Penn. St. 40; so a person acquiring a right of way for the drawing of wood from a certain lot, can only use it for that purpose, and the right ceases when the wood is all cut from the lot; Atwater v. Bodfish, ante; so where a right of way to draw wood across another's land during the winter months, it is restricted to that season and purpose, and can not be used for that purpose during the summer months, nor for any other purpose at any time; Brooks v. Curtis, ante; Wright v. Moore, 38 Ala. 593; so, a person who erects a dam of a given height which, if maintained in a tight condition, would flood the land of an upper owner, can not by using the dam in a leaky condition for the requisite period, acquire the right to flood the lands by rendering the dam tight. Stiles v. Hooker, ante. grace and favor, there was no user and enjoyment as of right, and no prescriptive title could be gained thereby, however notorious and long continued might have been the user and enjoyment. (7)1 The general principle with regard to prescriptive rights founded on the presumption of a grant is, that a grant will not (2) "Si autem precaria fuerit et de gratià, quæ tempestive revocari possit vel intempestive, ex longo tempore non acquiritur jus."-Bract. lib. 4, fol. 221. Ante, pp. 80, 81. 'In order to acquire a prescriptive right to do any particular thing, the right must be exercised as of right, and adversely to the owner of the fee, and the enjoyment of it must be absolute and uninterrupted during the requisite period, and not dependent upon a precarious permission from the owner of the estate sought to be burdened with the servitude, and must be such an invasion of the rights of the servient owner, that he could maintain an action against the person exercising it at any time during the period of its exercise, until it is perfected into a right. Delahousie v. Judice, 13 La. An. 587: Stokes v. Appomattox Co., 3 Leigh. (Va.) 318; Garringer v. Summers, 2 Ind. (U. S.) 229; no length of user exercised under a license from the owner of the estate will ripen into a right. The user must be in defiance of the owner of the estate, and must be exercised as of right in opposition to his right, and strictly adversely thereto. It must be exercised with the intention and purpose of acting as owner, Apiscimur possessionem corpore et animo, neque per se animo aut per se corpore," L. 3, sec. 1, de acq. vel amit poss., expresses the rule in its full force. Sims v. Davis, 1 Cheves (S. C.) 1. "No legal possession," says Mr. Gale in his excellent work on the Law of Easements, p. 62, Am. Ed., "is acquired by a man walking across the land of his friend, or using a private way, thinking it to be a public one, or unless he would do the act in defiance of opposition." If it is done by the express permission of the owner, no right is acquired, because the user is not adverse nor as of right, nor with the intention to possess himself of it. All his acts are covered by the license, and in recognition of the title of the owner of the estate. They are not in defiance of the owner, nor do the acts invade the owner's rights, but are subservient to it. The rule applicable to such cases was well expressed by WARDLAW, J., in Napier v. Bulwinkle, 5 Rich. (S. C.) 311, thus: "When the enjoyment is in its nature hidden, or although it was apparent, there is no ready means of resisting it within the power of the servient owner; assent is not implied, and the influence of twenty years user, therefore, not acknowledged. In a more recent case, when the question arose as to a right to the support of adjoining soil for the buildings of the plaintiff claimed to have been acquired by twenty years' user; Mitchell v. The Mayor of Rome, 49 Ga. 19; TRIPPE, J.. very clearly and forcibly expressed the rule thus "Statutes of limitations," said he "apply to cases where one is in the adverse possession of property, that may be claimed by another. The one can not be adverse unless exercised in denial of the title, and in derogation of the right of another. It can not be adverse to another, unless he has a right of action on account of a wrong done him." See also McGregor v. Waite, 10 Gray (Mass.) 75; Watkins v. Peck, 13 N. H. 360; Edson v. Munsell, 10 Allen (Mass.) 557; Wallace v. Fletcher, 30 N. H. 153; Tracey v. Atherton, 36 Vt. 503; Schaal Dint v. Lynch, 33 Conn. be presumed against an ignorant man, and, therefore, if an easement or profit à prendre has been enjoyed on land let on lease, the landlord is not to be prejudiced in his rights, and the inheritance burdened through the laches or acquiescence of the tenants in matters affecting the inheritance, without the knowledge, and privity, and sanction of the landlord. ()' "The foundation," observes Lord ELLENBOROUGH, "of presuming a grant against any party is, that the exercise of the adverse right on which such presumption is founded was against the party capable of making the grant, and that can not be presumed against him, unless there was some probable means of his knowing what was done against him." () But when the user and enjoyment are had and exercised under circumstances of notoriety, a jury may infer the landlord's knowledge and acquiescence in such user and enjoyment. Thus, where the lessees of a fishery had for sixty-four years been in the constant habit of landing their nets openly on a river-bank in the occupation of a tenant, and had from time to time sloped and pared the bank, and exercised various other acts of ownership upon the land, it was held that a jury was justified in inferring that the landlord knew of and acquiesced in the enjoyment of the easement. (0) And where there had been an uninterrupted enjoyment for thirty-eight years of the free access of light and air to windows over and across land held on lease, it was held (m) See the observations of Lord Wynford, Benest v. Pipon, I Knapp, P. C. 70. Davies v. Stephens, 7 C. & P. 570. Deeble v. Lineham, 12 Ir. C. L. R. 16. "Si autem fuerit seisina clandestina, scilicet in absentiâ dominorum vel illis ignorantibus, et, si scirent, essent prohibituri, licet hoc fiat de concensu vel dissimulatione ballivorum, valere non (n) Daniel v. North, 11 East, 374- No right can be acquired against an estate, unless the owner is in a position to resist it. Napier v. Bulwinkle, 5 Rich. (S. C.) 311; Mitchell v. The Mayor of Rome, 49 Ga. 19. Therefore, if the owner is under any legal disabilities that prevent him from asserting his rights, as if he is a minor; Meham v. Patrick, 1 Jones (N. C.) 26; Watkins v. Peck, 13 N. H. 360; a married woman; McGregor v. Waite, 10 Gray (Mass.) 75; or an insane person; Edson v. Munsell, 10 Allen (Mass.) 557; no prescriptive right can be acquired except by a user for the requisite period after the disability ceases to exist. So, if the servient estate is in the possession of a tenant for life; McGregor v. Waite, ante; Wood v. Veal, 5 B. & S. 454; Harper v. Charlesworth, B. & C. 574; or for a term ; Wood v. Veal, ante, no right can be acquired against the estate which was commenced during the tenancy. that the landlord's knowledge of and acquiescence in the enjoyment of the visible and apparent easement was fairly to be presumed, in the absence of evidence to the contrary. (p) 1 If the user and enjoyment have been had and exercised with the sufferance and permission of the tenant, but in spite of the remonstrance, protest, or objection of the owner of the fee, no right can be gained by such an enjoyment, for there can be no presumption of a grant under such circumstances. Proof of immemorial enjoyment of the privilege claimed was, in ancient times, essential to the legal presumption of a grant; but for a long series of years before the passing of the Prescription Act, judges were in the habit, for the furtherance of justice and the sake of peace, to leave it to juries to presume an ancient grant of an easement or profit à prendre from an interrupted enjoyment of the privilege as of right for twenty years, adopting that period by analogy to the Statute of Limitations. 152. Of the Prescription Act.-The uninterrupted enjoyment for twenty years of an incorporeal right, for which juries were allowed to presume an ancient grant, was not a bar or title in itself; for if the commencement of the enjoyment within what was called the period of legal memory could be shown, the presumption of an ancient grant in times long since passed away was rebutted, and the right,defeated. To remedy this inconvenience, and make that period of enjoyment of an incorporeal right a bar or title of itself, which was so before only by the intervention and inference of a jury, the statute 2 & 3 Wm. 4, c. 71, was passed in the year 1832, for shortening the time of prescription in certain cases. (p) Cross v. Lewis, 2 B. & C. 686. I When the act is of such a nature, and is exercised in such a manner that its exercise is apparent to any one coming to the vicinity, and when it is so notorious as to become a matter of common knowledge in the community, knowledge of the owner will be presumed. Thus, in Perin v. Garfield (37 Vt. 311), the court held that the maintenance of a mill-dam is such a matter of common notoriety that knowledge on the part of the owner will be presumed. Ingraham v. Hough, I Jones (N. C.) 42; Smith v. Miller, 11 Gray (Mass.) 148; Blake v. Everett, 1 Allen (Mass.) 248; Beasley v. Clark, 2 Bing. (N. C.) 705. But, even in such a case, the user must be such that the landlord could maintain an action therefor. It must be an injury to the estate, and not a mere infringement of a possessory right. Atkins v. Boardman, 2 Met. (Mass.) 477; Bolivar, &c. Co. v. Neponsett, &c. Co., 16 Pick. (Mass.) 247; Simpson v. Savage, 1 C. B. (U. S.) 347. This statute, commonly called "The Prescription Act," recites (s. 1) that the expression "time immemorial, or time whereof the memory of man runneth not to the contrary, was, by the law of England, in many cases considered to include and lenote the whole period of time from the reign of King Richard I., whereby the title to matters that had been long enjoyed was sometimes defeated by showing the commencement of such enjoyment, which was productive of injustice; it is therefore enacted that no claim which may be lawfully made at the common law by custom, prescription, or grant to any right of common, or other profit or benefit, to be taken or enjoyed from or upon any land, except such matters and things as are therein specially provided for; and except tithes, rent, and services, shall, where such right, profit, or benefit has been actually taken and enjoyed by any person claiming right thereto without interruption for the full period of thirty years, be defeated or destroyed by showing only that such right, profit, or benefit was first taken and enjoyed within the time of legal memory, but that such claim may be defeated in any other way by which the same was then liable to be defeated; and when such right, profit, or benefit has been so taken and enjoyed for the full period of sixty years, the right thereto shall be deemed absolute and indefeasible, unless it shall appear that the same was taken and enjoyed by some consent or agreement expressly made or given for that purpose by deed or writing. By the same statute (s. 2) it is enacted that no claim which may be lawfully made at common law, by custom, prescription, or grant, to any way or other easement, or to any watercourse, (2) or the use of any water, to be enjoyed upon, over, or from any land or water, when such way or other matter 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, water, 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 was then liable to be defeated; and when such way or other matter shall have been so enjoyed, as aforesaid, for the full period of forty years, the (4) A claim to have water kept di the section. Mason v. Shrewsbury and verted is a claim to a watercourse within Hereford Railway, ante, p. 64. |