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(9) A, the owner of a house, sells B a factory built on adjoining land. B is entitled, as against A, to pollute the air, when necessary, with smoke and vapours from the factory.

(1) A, the owner of two adjoining houses, Y and 2, sells Y to B, and retains Z. B is entitled to the benefit of all the gutters and drains common to the two houses and necessary for enjoying Y as it was enjoyed when the sale took effect, and A is entitled to the benefit of all the gutters and drains common to the two houses and necessary for enjoying Z as it was enjoyed when the sale took effect.

(1) A, the owner of two adjoining buildings, sells one to B, retaining the other. B is entitled to a right to lateral support from A's building, and A is entitled to a right to lateral support from B's building.

(j) A, the owner of two adjoining buildings, sells, one to B, and the other to C. C is entitled to lateral support from B’s building, and B is entitled to lateral support from C's building.

(k) A grants land to B for the purpose of building a house thereon. B is entitled to such amount of lateral and subjacent support from A's land as is necessary for the safety of the house.

(1) Under the Land Acquisition Act, 1870, a Railway Company compulsorily acquires a portion of B's land for the purpose of making a siding. The Company is entitled to such amount of lateral support from B's adjoining land as is essential for the safety of the siding?

(m) Owing to the partition of joint property, A becomes the owner of an upper room in a building, and B becomes the owner of a portion of the building immediately beneath it. A is entitled to such amount of vertical support from B’s portion as is essential for the safety of the upper room.

(n) A lets a house and grounds to B for a particular business. B has no access to them other than by crossing A's land. B is entitled to a right of way over that land suitable to the business to be carried on by B in the house and grounds.

14. When right to a way of necessity is created under Direction section 13, the transferor, the legal representative of the testa- of way of

necessity. tor, or the owner of the share over which the right is exercised, as the case may be, is entitled to set out the way; but it must be reasonably convenient for the dominant owner. When the person so entitled to set out the

way

refuses or neglects to do so, the dominant owner may set it out 2.

1 Elliot y. N.E. Ry. Co., 10 H. L. Ca. 356, per Lord Chelmsford.

• Gale, 148, 575: Goddard, 377 9.

There can only be one way of necessity, Goddard, 317.

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Acquisition 15. Where the access and use of light or air? to and for
by
scription. any building have been peaceably enjoyed therewith, as an

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easement 4, without interruption, and for twenty years 5,

and where support from one person's land, or things affixed thereto, has been peaceably received by another person's land subjected to artificial pressure, or by things affixed thereto, as an easement 4, without interruption, and for twenty years?,

and where a right of way or any other easement has been peaceably " and openly & enjoyed 3 by any person claiming title thereto, as an easement“, and as of right', without interruption, and for twenty years,

the right to such access and use of light or air), support or other easement shall be absolute 10.

Each of the said periods of twenty years shall be taken to be a period ending within two years next before the institution of the suit wherein the claim to which such period relates is contested 11.

Explanation 1.- Nothing is an enjoyment within the meaning of this section when it has been had in pursuance of an agreement with the owner or occupier of the property over which the right is claimed, and it is apparent from the agreement that such right has not been granted as an ease

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1 That there cannot be in England a prescriptive right to free access of air see Bryant v. Leferer, 4 C. P. D. 172, following Webb v. Bird, 13 C. P., N. S. 841. ? Gale, 209. 3 See Expl. I.

Onley v. Gardiner, 4 M. & W. 500.

3 The Act does not here say 'as of right, because every person has a right to so much light as can come in at his windows. See Truscott v. Merchant Tailors' Co., 11 Exch. 864, per Creswell J.

• See Explanations II and III.

? See Angus v. Dalton, L. R., 3 Q. B. D. 85: on appeal, 6 App. Ca. 740: Lemaitre v. Davis, 19 Ch. Div. 281.

& i. e. not exercised by stealth or in the night, Gale, 212.

Goddard, 227. For an enjoyment to be 'as of right' there must be an adverse exercise of the right as against the servient owner, 15 Beng. 361, per Markby J., and Tickle v. Brown,

4 A. & E. 382. Enjoyment under a license from the servient owner will not suffice, Gale, 213.

10 No custom can be admitted to override these provisions, 3 Bomn. 174

11 This paragraph applies, not to the owner of the servient tenement, but to the claimant of the easement. Although an easement may have been enjoyed for twenty years, and thus the right has become indefeasible by prescription, if its enjoyment has been foregone for a period of two years before suit, the right is lost, N. W. P. 1875, p. 295, per Turner J. It had been said, obiter, that a grant of an easement might be presumed from a twelve years' user, 5 Mad. H. C.6; and in a suit brought in 1878 a right to divert the flow of water into a par. ticular channel by erecting a dam across a stream was established by proof of the exercise of the right for eighteen years prior to 1871; 5 Mad. 253

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ment, or, if granted as an easement, that it has been granted for a limited period, or subject to a condition on the fulfilment of which it is to cease.

Explanation 11.Nothing is an interruption within the meaning of this section unless where there is an actual cessation of the enjoyment by reason of an obstruction by the act of some person other than the claimant, and unless such obstruction is submitted to or acquiesced in for one year after the claimant has notice thereof and of the person making or authorising the same to be made.

Explanation 111.Suspension of enjoyment in pursuance of a contract between the dominant and servient owners is not an interruption within the meaning of this section.

Explanation IV.-In the case of an easement to pollute water, the said period of twenty years begins when the pollution first prejudices perceptibly the servient heritage 2.

When the property over which a right is claimed under this section belongs to Government this section shall be read as if, for the words 'twenty years,' the words 'sixty years' were substituted.

Illustrations. (a) A suit is brought in 1883 for obstructing a right of way. The defendant admits the obstruction, but denies the right of way. The plaintiff proves that the right was peaceably and openly enjoyed by him, claiming title thereto as an ment and as of right, without interruption, from ist January, 1862, to ist January, 1882. The plaintiff is entitled to judgment.

(6) In a like suit the plaintiff shows that the right was peaceably and openly enjoyed by him for twenty years. The defendant proves that for a year of that time the plaintiff was entitled to possession of the servient heritage as lessee thereof and enjoyed the right as such lessee. The suit shall be dismissed, for the right of way has not been enjoyed as an easement' for twenty years.

(c) In a like suit the plaintiff shows that the right was peaceably and openly enjoyed by him for twenty years. The

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i Cal. 430. The interruption intended is an adverse one, not an in. terruption by unity of possession, Ladyman v. Grave, L. R., 6 Chan. App. 768.

? Goldsmith v. Tunbridg Wells Improrement Commrs., L. R., 1 Eq. 161: 1 Ch. App. 349: Goddard, 309312.

defendant proves that the plaintiff on one occasion during the twenty years had admitted that the user was not of right and asked his leave to enjoy the right. The suit shall be dismissed, for the right of way has not been enjoyed as of right for

twenty years. Exclusion 16. Provided that, when any land upon, over or from which in favour of reversioner any easement has been enjoyed or derived has been held under of servient or by virtue of any interest for life or any term of years exceedheritage.

ing three years from the granting thereof, the time of the enjoyment of such easement during the continuance of such interest or term shall be excluded in the computation of the said last-mentioned period of twenty years, in case the claim is, within three years next after the determination of such interest or term, resisted by the person entitled, on such determination, to the said land 1.

Illustration. A sues for a declaration that he is entitled to a right of way over B's land. A proves that he has enjoyed the right for twenty-five years; but B shows that during ten of these years C had a life interest in the land; that on C's death B became entitled to the land ; and that within two years after C's death he contested A's claim to the right. The suit must be dismissed, as A, with reference to the provisions of this section, has only

proved enjoyment for fifteen years. Rights 17. Easements acquired under section 15 are said to be which cannot be acquired by prescription, and are called prescriptive rights. acquired None of the following rights can be so acquired scription.

(a) a right which would tend to the total destruction of the subject of the right, or the property on which, if the acquisition were made, liability would be imposed ?;

(6) a right to the free passage of light or air to an open space of ground 3 ;

(c) a right to surface-water not flowing in a stream and not permanently collected in a pool, tank or otherwise +;

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1 There is no proviso for minority, idiocy, lunacy or other disability.

2 Hyde, 125: Roberts v. Macord, 1 Moo. & Rob. 230.

i Suth. Civ.R. 230, and compare Dyce v. Lady James Hay, 1 Macqueen, Sc. Ap. 305, where the easement claimed was so large as to preclude the ordinary use of the property by its owner : Gale, pp. 4 note, 20:

: 4 prescriptive right may be a quired to the surplus water of a tank flowing through a channel, whether natural or artificial, 4 Cal. 633, fol. lowed in 7 Mad. 534. But a prescriptive right to throw back water and keep it standing on the lard of

Goddard, 325.

(d) a right to underground water not passing in a defined channel 1. 18. An easement may be acquired in virtue of a local Customary

easements. custom . Such easements are called customary easements".

Illustrations. (a) By the custom of a certain village every cultivator of village land is entitled, as such, to graze his cattle on the common pasture. A having become the tenant of a plot of uncultivated land in the village breaks up and cultivates that plot. He thereby acquires an easement to graze bis cattle in accordance with the custom.

(6) By the custom of a certain town no owner or occupier of a house can open a new window therein so as substantially to invade his neighbour's privacy. A builds a house in the town near B's house. A thereupon acquires an easement that B shall not open new windows in his house so as to command a view of the portions of A's house which are ordinarily excluded from observation, and B acquires a like easement with respect to A's house'.

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19. Where the dominant heritage is transferred or devolves, Transfer of

dominant by act of parties or by operation of law, the transfer or devolu

heritage tion shall, unless a contrary intention appears, be deemed to passes

easement. pass the easement to the person in whose favour the transfer or devolution takes place 5.

Illustration. A has certain land to which a right of way is annexed. A lets the land to B for twenty years. The right of way vests in B and his legal representative so long as the lease continues.

another exists only in the case of water flowing in a defined stream, and cannot apply to surface-water not flowing in such a stream, though it might ultimately, if not arrested, flow into a tank, 7 Mad. H. C. 46, 47, per Innes J.

1 Goddard, 298. Of course a tenant cannot acquire a prescriptive right in land belonging to his landlord. But he might acquire one in land of his lessor against another tenant to whom that land happened to be leased ; and such easement would be coextensive with the period during which the tenements were jointly leased, Goddard, 15.

3 The custom must of course be

reasonable and certain.
3 Goddard, 26, 110, 242.

The right of tin-streamers in Cornwall is an English example of a customary easement.

* As to rights of privacy in India and in France see 5 Ben. 676, 681: 3 Mad. H. C. 141. That they exist in the towns of Gujarát, see 9 Bom. H.C. 266 : 8 Bom. H. C., A. C. J. 87: 6 ibid. 143 : 5 ibid. 42. And in the N. W. Provinces, see 4 Agra, 253. In England the law does not recognise any right to undisturbed privacy, Goddard, 110.

5 Gale, p. 88. See Transfer of Property Act, sec. 6, cl. (©), supra, p. 748.

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