The chief object of the Prec. 71, was to dispense with

sumptive period began (f). scription Act, 2 & 3 Will. 4, the intervention of a jury, and to make the finding of the lost grant a rule of law (g).

Much difficulty has occurred in the construction of this act, and it is very important to consider to what extent it alters the old law relating to the rights now under discussion. But it has not superseded the common law, and a claimant may, it seems, proceed either under the statute or as before the act was passed (h).

The act begins with a preamble reciting that the expression "time immemorial" is considered to include and denote the whole period from the reign of King Richard I, whereby the title to matters that have been long enjoyed is sometimes defeated by showing the commencement of such enjoyment.

The second section enacts, that no claim to any way or other easement, or to any watercourse, or the use of any 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 by showing only that such way or other matter was first enjoyed at any time prior to such period; 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 shall have been so enjoyed for the full period of forty years, the right shall be deemed absolute and indefeasible, unless it shall appear that the same was enjoyed by some consent or agreement expressly given or made for that purpose by deed or writing.

By the fourth section, each of the periods shall be that next before some suit or action wherein the claim shall be

(ƒ) Campbell v. Wilson, 3 East, 224; Mayor of Hull v. Horner, Cowp. 102; Doe d. Fenwick v. Reed, 5 B. & A. 232; Codling v. Johnson, 9 B. & C. 933; Penwarden v. Ching,

1 Moo. & M. 400.

(g) Bright v. Walker, 1 Cr. M. & R. 217.

(h) See Onley v. Gardiner, 4 M. & W. 496.

brought into question; and no act or other matter shall be deemed to be an interruption, unless the same shall be submitted to or acquiesced in for one year after the party interrupted shall have notice thereof, and of the person making or authorizing the same to be made.

It is provided, that in all actions and other pleadings it shall be sufficient to allege the enjoyment as of right by the occupiers of the tenement in respect whereof the claim is made, without claiming in the name or right of the owner of the fee. But no presumption shall be allowed in respect of any less period of years than that applicable to each case under the act.

The time during which any person otherwise capable of resisting any claim shall be an infant, idiot, non compos mentis, feme covert, or tenant for life, or during which any action or suit shall have been pending, and shall have been diligently prosecuted, shall be included in the computation of the periods, except in cases where the right or claim is by the act declared to be absolute and indefeasible.

When any land or water, subject to any way or other easement (i), has been held under any term of life, or any term of more than three years from the granting thereof, the term of enjoyment during the continuance of such term shall be included in the computation of the period of forty years, in case the claim shall, within three years after the end or sooner determination of such term, be resisted by any person entitled to the reversion. But no allowance is made for disabilities in computing this period, as in the shorter period.

Thus, the rights now mainly in question, rights of way and water, cannot be defeated after twenty years' enjoyment by merely showing their origin prior to that period, but in any other way by which they could before have been defeated; that is, by proof of grant or licence, written or parol, for a certain period, or of the absence or ignorance of the parties affected. But where there has been enjoyment (i) See 1 Mee. & W. 77.

for forty years the rights are absolute, unless there has been consent in writing.

The statute does not recognize different classes of rights, qualified and absolute, valid as to some, and invalid as to others. An enjoyment of twenty years, therefore, gives no title at all, if it does not bind all. Thus, such an enjoyment against a tenant for life or for years of church lands will not affect him, as it cannot affect the reversion of a bishop (k).

The words, "as of right," do not mean an adverse right, but an open and uninterrupted enjoyment. The preceding words of the act are, "claiming right thereto without interruption."

Where the right is declared to be indefeasible, the time of any tenancy for life, and of the term exceeding three years, are not computed in the period of forty years; but the latter period opens and shuts, according to circumstances, till the full number of years is completed (1). But the claim must be resisted within three years from the end of any such tenancy or term.

In all cases of prescription want of title to the right may arise from concealment, either in the privacy of its exercise, as by using a road by right, or by the nature of the right itself, as in unseen excavations of soil (m).

Unity of possession is also insufficient to raise any acknowledgment of right, for such a claimant enjoys, not the easement, but the soil itself (n); and unity destroys the effect of any previous user by breaking the continuity (0),

There may be an intermission of right, as in rights of way; but there must be no effectual interruption (p). The

(k) Bright v. Walker, 1 Cr. M. & R. 220.

(1) Brightv. Walker, supra; Clayton v. Corby, 2 Ad. & E., N. S., 813; Pye v. Mumford, 11 Ad. & E., N. S., 666.

(m) See Chap. XI.

(n) Bright v. Walker, 1 Cr. M. &

R. 211.

(0) Onley v. Gardiner, 4 M. & W. 496.

(p) Carr v. Foster, 3 Ad. & E., N. S., 581; Hall v. Swift, 3 Bing. N. C. 381.

continuity of the enjoyment depends on the nature of the right, but in no case must it be broken by any adverse conduct on the part either of the claimant or the landowner (q). Thus, express accepted parol permission from the latter destroys the chain of evidence of right (r).

Before the statute, any admission, written or unwritten, was sufficient to repel a right, however long it had been enjoyed. But the statute only permits a parol licence to be effectual with respect to the first period of twenty years. When the enjoyment has continued for forty years, the right can in this respect only be rebutted by proof of its enjoyment by express consent in writing.

The enjoyment must be proved for the whole period, and the period is entire, and defined by reference to suit or action (s). It is not sufficient to prove for a full period of twenty years, if the last four or five years are not favourable (t). But an authorized deviation of way for a part of the time will not affect the right (u).

The payment of rent does not amount to interruption. There must be an actual discontinuance of the enjoyment by reason of some substantial obstruction. Where there has been actual enjoyment there can have been no such interruption. But such a payment may be tendered as proof of a parol licence, when that would be available (x).

An interruption, under the statute, in order to be effectual, must be acquiesced in for one year. But it may be made at any time before the period expires. Thus, an enjoyment for nineteen years, and a small part of another

(q) Tickle v. Brown, 4 Ad. & E. 383; Beesley v. Clark, 2 Bing. N. C. 705.

(r) Monmouthshire Canal Co. v. Hereford, 1 Cr. M. & R. 614.

(s) Bailey v. Appleyard, 8 Ad. & E., N. S., 167; Wright v. Williams, 1 M. & W.77; Flight v. Thomas, 8 Cl. & Fin. 242; Lowe v. Carpenter, 20

L. J., N. S., Exch., 374.

(t) Payne v. Shedden, 1 Moo. & R. 382; 3 Ad. & E., N. S., 585. (u) Reg. v. Chorley, 12 Ad. & E., N. S., 515.

(x) Plasterers' Company v. Parish Clerks' Company, 20 L. J., N. S., Exch., 362.

year, may establish a right, if an action is brought before the interruption has lasted one whole year (y).

Although the interruption must be submitted to for a year to repel a right, yet evidence of an interruption for a shorter period may be given, to show that the enjoyment never was of right, and therefore required no disturbance for the longer period (z).

All rights of way and water, and other easements, may be released by deed, or by any decisive act of abandonment or cessation proved by parol or written evidence (a).

There may also be an implied release by merger produced by a union of title to the two tenements. But there must be an estate in fee in both; if not, the right will be revived on severance (b). If it be once extinguished, any similar right after severance is considered to be of new creation (c).

An original right will not be destroyed by any undue excess of enjoyment, nor will it be affected by any immaterial alteration (d). But the right of alteration must impose no additional burthen on the land. If the excess cannot be separated from the original right, this right would seem to be altogether suspended till its actual restoration. That event would operate to revive the old right, unless the acts of usurpation have shown an intention to abandon it altogether (e).

A distinction as to the mode of discharging an easement has been drawn between rights continuous and intermittent. In a case before the late act, it was said by Littledale, J.,

(y) Flight v. Thomas, 8 Cl. & Fin. 242; Parker v. Mitchell, 11 Ad. & E. 788.

(z) Eaton v. Swansea Waterworks Company, 20 L. J., N. S., Q. B., 482. (a) Co. Litt. 264 b; Liggins v. Inge, 7 Bing. 693; Moore v. Rawson, 3 B. & C. 332.

(b) Ibid. 313 a, b; Rex v. Inha

bitants of Hermitage, Carthew, 239; Buckley v. Coles, 5 Taunt. 311.

(c) Holmes v. Goring, 2 Bing. 83. (d) Hall v. Swift, 6 Scott, 167; Bridges v. Blanchard, 4 Ad. & E. 176.

(e) Garritt v. Sharp, 3 Ad. & E. 325.