and has been actually enjoyed by the person claiming right thereto without interruption for the full period of twenty years, is not to be defeated or destroyed by merely showing the commencement prior to that period, but may be defeated in any other way by which the same is liable to be defeated; but when taken and enjoyed for the full period of forty years, and not by some consent or agreement expressly given or made for the purpose by some deed or writing, is absolute and indefeasible (c). From the periods of thirty years and twenty years respectively fixed by the last statute, however, is excluded the time during which any person, otherwise capable of resisting the claim, has been an infant, idiot, non compos mentis, feme coverte, or tenant for life, or any action or suit has been pending and diligently prosecuted until abated by the death of any party or parties thereto (d). The time so excluded, however, from those two periods is not to be excluded in the two periods of sixty years and forty years respectively (e). But from the period of forty years is to be excluded the time during which the land or water subject to the claim has been held for life, or for a term of years exceeding three from the granting thereof, in case, within three years next after the end or sooner determination of the term of such holding, the claim be resisted by any person entitled to any reversion expectant on such determination (ƒ). a The enjoyment for the prescribed period must be of right which can be lawfully claimed, otherwise no user of it, for however long a period, can give it validity. Therefore a right claimed without limit in alieno solo (g), (c) 2 & 3 Will. 4, c. 71, s. 2. (d) Ib. s. 7. See Bright v. Walker, supra; Clayton v. Corby, 2 Gale & D. 174; Palk v. Skinner, 18 Q. B. 568; Wright v. Williams, 1 M. & W. 77. (e) Ib. (f) Sect. 8. See Bright v. Walker, supra; Wright v. Williams, supra; Palk v. Skinner, supra. (g) See Att.-Gen. v. Mathias, 4 Jur., N. S. 630, and cases there cited. indefeasible after forty years. Times excluded from these periods. The enjoy ment must be of right, -and during the whole period. Light. or which cannot be created by the person against whom it is claimed (h), cannot be sustained under this statute. Showing that the right, when claimed against the Crown, could not be granted by the Crown because restrained from creating it, is not showing only such commencement of it as is not to defeat or destroy it within the statute (i). The simple fact of enjoyment is not sufficient to give the right, but the enjoyment must be by a person claiming right thereto, who must show that he does so claim it (k), and must be during the whole of the prescribed period, so as to be valid against all persons having estates in the locus in quo, and unless so enjoyed gives no title against any one (7). The access and use of light to and for any dwellinghouse, workshop or other building, when actually enTwenty years. joyed with the building for twenty years without interruption, and not by consent or agreement expressly made or given for the purpose by deed or writing, is absolute and indefeasible (m). How acquired. This right may be acquired by virtue of enjoyment prior to the passing of the act (n). This right is acquired against the owner of a leasehold interest in the servient tenement, and also against all the world, and therefore against the owner of the reversion, and the merger of such interest in the reversion of such tenement leaves the rights of the owner of the dominant tenement unaltered (o). The building with which light and air are to be "actually enjoyed" need not be occupied, nor even fit for occupation, during the statutory period assigned (p). exercise for In all the periods fixed by the last statute all pre- Presumption sumption, upon proof of the exercise or enjoyment of from proof of the right or matter claimed for any less time or number less period of years than the periods so fixed, is excluded (q). This provision is meant only to encounter presumptions from an exercise of the right during such an imperfect period that it was exercised in older times (7), and to exclude all presumption or inference in support of the claim from the bare fact of user or enjoyment for less than the prescribed number of years; but when there are other circumstances in addition, the statute does not take away from the fact of enjoyment for a shorter period its natural weight as evidence, so as to preclude a jury from taking it, along with other circumstances, into consideration as evidence of a grant (s). The effect of the claim is, that a claimant, proving enjoyment for less than the specified time, shall not, on that ground, carry back his right to a period before that which his proof extends to (t). excluded. The enjoyment of the several rights for the respective The enjoyperiods is to be without interruption-not intermis- ment to be uninterrupted. sion (u); but nothing is an interruption within the meaning of the statute unless submitted to, or acquiesced in, for one year after the person interrupted has had, or has, notice both of the interruption and of the person making, or authorizing the making, of it (x). The sect. 4 speaks of the party interrupted. The statute seems to contemplate interruption of the right, not of the period (y). (p) Courtauld v. Legh, L. R., 4 Ex. 126; 38 L. J., Ex. 45; 17 W. R. 466. (q) Sect. 6. See Bright v. Walker, 4 Tyr. 502; Bailey v. Appleyard, 3 Nev. & P. 257. (r) Per Lord Denman, C. J., Carr v. Foster, 3 Q. B., N. S. 581. (s) Per Lord Westbury, C., Hanmer v. Chance, 34 L. J., N. (t) Per Lord Denman, C. J., (u) Carr v. Foster, supra. (y) Per Parke, B., Flight v. What is such enjoyment. Interruptions. The enjoyment without interruption necessarily imports such a user as could be interrupted by some one "capable of resisting the claim” (x). Interruption must clearly mean an obstruction by the act of some other person than the claimant, and not a cessation either by him of his own accord (y), or from mere natural causes (z), or a cesser or intermission, or anything denoting a mere breach of time (a). There must be an overt act indicating that the right is disputed (b). Interruptions within the last twenty years, and subsequent to the right proved to exist long before, will not defeat it, and, when they are made upon only part of the land subject to the right, do not necessarily affect the right upon the remainder (c). An interruption within the meaning of the act, to be effectual, must exist for not less than one year, and may be at any time. during the period (d). The natural and obvious meaning of the words as to the interruption submitted to, &c. for one year is, that an obstruction shall not be effectual unless the party shall allow it to continue for one year without any act on his part to show that he resists it (e); and construing these words according to their plain meaning, it does not follow that an interruption is acquiesced in for a year unless a suit or action be brought within that time, and the year is to be reckoned rather from when the act was done than from when the writ was issued (ƒ). But interruptions acquiesced in for less than a year may be of great weight as evidence on the question, whether there ever was a commencement of an enjoy (x) Per Cur., Arkwright v. Gill, 5 M. & W. 233. (y) Per Patteson, J., Carr v. Foster, 3 Q. B., N. S. 581. (z) See Hall v. Swift, 4 Bing. (a) See Hall v. Swift, supra. (c) Welcome v. Upton, 6 M. & W. 536; Davies v. Williams, 16 Q. B., N. S. 546. (d) Flight v. Thomas, 8 Cl. & F. 231; 7 Q. B., N. S. 275. Per Coleridge, J. (e) Per Mellor, J., Bennison v. Cartwright, 5 B. & S. 1. (f) Per Blackburn, J., Ib. ment of right. Such interruptions are explanatory of what the user really was (g), and may show that the enjoyment never was of right (h). The interruption, if . submitted to for more than a year from notice of it, but less than that time from a promise given to remove it, will not affect the right (¿). Acquiescence must be by the claimant in the act of Acquiescence. another person (k). local customs. The 2 & 3 Will. 4, c. 71, abolishes all local cus- Abolition of toms (1). The sects. 1 and 2 are in the negative. The sect. 3 is in the affirmative, but contains the non obstante clause (m). But this of course would not, even as to light, affect the custom in those cases where an obstruc tion of the right continues for one year. user to affect these rights. As the acquisition of things incorporeal, quæ in jure Length of nonconsistunt, is by the mere exercise of the rights, so the loss of them may arise by non-user or non-exercise of them. But during what time, and under what circumstances, the rights will be so lost, no precise rule can be stated. The time and the circumstances may have a different effect according to the nature of the right. The periods of limitation fixed by the 2 & 3 Will. 4, Effect of 2 & 3 c. 71, are only for the establishment of rights which Will. 4, c. 71, on these rights. may be lawfully acquired at the common law, by custom, prescription or grant. But such rights may be lost, not, however, under legislative provision, or in general by the acquisition of them by one person against another, as in the case of corporeal hereditaments, or of tithes, or of rent, under the 2 & 3 Will. 4, c. 27, and independent of the owner of the property subject to such rights, though sometimes they may be so lost (n), but (9) Per Lord Denman, C. J., 17 Q. B., N. S. 274. (h) Per Coleridge, J., Ib. 275. (i) Gale v. Abbot, 8 Jur., N. S. 987. (k) See 3 Q. B., N. S. 587. (2) 1 L. R., Ch. Ap. 299. (m) See Salters' Co. v. Jay, 3 Q. B. 109; Truscott v. Merchant Taylors' Co., 11 Exch. 855. (n) See Rogers v. Brooks, 1 T. R. 431, n. |