evidence to show that the landlord's steward had notice of the user. In the more recent case, however, of Jarvis v. Dean,(x) it appeared that the public had been in the habit for four or five years of passing up and down an unfinished street leading to some fields in which houses were built, and communicating with a public road on the other side, and that, although the new street was neither paved nor [ *137 ] lighted, the inhabitants had paid highway rates and

*paving taxes. On this evidence, Best, C. J. told the jury, that if they thought the street had been used for years as a public thoroughfare, with the assent of the owners of the soil, they might presume a dedication; and the jury having found accordingly, the court refused a new trial.

§ 103. Upon the whole, the public are favoured in questions of this nature; and it is said, that, when a road has once been a king's highway, no lapse of time or cessation of user will deprive the public of the right of passage whenever they please to resume it. (y)

§ 104. The next subject calling for attention here is the presumption of the surrender or extinguishment of incorporeal rights by non-user. This is altogether unaffected by the prescription acts,(z) and the general principles are thus stated by Lord Tenterden in Doe d. Putland v. Hilder: (a) "The long enjoyment of a right of way by A. to his house or close, over the land of B., which is a prejudice to the land, may most reasonably be accounted for, by supposing a grant of such right by the owner of the land; and if such a right appear to have existed in ancient times, a long forbearance to exercise it, which must be inconvenient and prejudicial to the owner of the house or close, may most reasonably be accounted for by supposing a release of the right. In the first class of cases, a grant of the right, and in the latter a release of it, is presumed." The cases on this subject are not, however numerous, and the length of time necessary to raise presumptions of this nature cannot be considered as clearly settled. It is undoubtedly much influenced by the nature of the claim and accompanying *circumstances. In the case of Eldridge v. Knott, (b) it [ *138 ] was held that refusal to pay a quit-rent, of very small

amount, followed by non-payment for thirty-four years, was no ground for presuming a release or extinguishment of the rent; Aston, J., observing, "A presumption from mere length of time, which is to support a right, is very different from a presumption to defeat a right: here the presumption is to defeat the right of the lord to a small payment of half a crown within the fifty years limited by the statute; and therefore, upon mere length of time, unaccompanied with other circumstances, such limitation ought not to be altered and another set up. Besides, in this case, there is reason to say, that a different foundation of refusal than that which it is contended should be presumed appears which is, that the tenant had defeated the lord in a lawsuit depending between them." But in the subsequent case of Simpson v. Gutteridge, (c) where two fee farm rents were created by letters-patent

(x) 3 Bing. 447, (13 Eng. Com. Law Reps.) See R. v. Hudson, 2 Str. 909, and Harper v. Charlesworth, 4 B. & C. 574, (10 Eng. Com. Law Reps.)

(y) Per Gibbs, J., in R. v. St. James, Taunton, 2 Selw. N. P. 1362, 9th ed. (z) Gale & Whatley on Easements, p. 354.

(b) Cowp. 214.

(a) 2 B. & Ald. 791.

(c) 1 Madd. 609.

of King James I., and it was shown that no notice was taken of the claim from 1706 to 1816, and there was no proof of any claim in respect of them having been made previously to 1706, it was held that an extinction might be presumed.

§ 105. With respect to the presumed extinguishment of easements from cessation of enjoyment, the following principles are laid down by Messrs. Gale and Whatley :(d) "Though the law regards with less favour the acquisition and preservation of these accessorial rights than of those which are naturally incident to property, and therefore does not require the same amount of proof of the extinction as of the original establishment of the right, yet, as an easement, when once

created, is perpetual in its nature, being attached to the [ *139 ]

inheritance, and passing with it, it should seem that some

acquiescence on the part of the owner of the inheritance must be necessary to give validity to an act of abandonment. If any alteration be made in the disposition of the dominant tenement, an alteration of a permanent nature evincing an intention of ceasing to take the particular benefit, the right to the easement is of course put an end to." Now easements are divided into continuous and intermittent, (e) the former being those of which the enjoyment is or may be continual, without the necessity of any actual interference by man, as waterspouts, the right to air, light, &c.; and the latter being those of an opposite description, such as rights of way, &c. With respect to continuous easements, the correct inference from the cases seems to be, that there is no time fixed by law during which the cessation of enjoyment must continue, in order to raise the presumption of an abandonment; but it is a question for the jury to take all the circumstances of the case into their consideration, in order to see if there has been an intention to renounce the right;(ƒ) and the fact of alteration of the dominant *tenement is said to be primâ facie evidence of such intention.(g) Neither, as it seems, is it [ *140 ] requisite that the owner of the servient should have done any act after the change to assert the freedom of his tenement from the easement,(h) although such an act unopposed by the owner of the dominant tenement would be very strong, if not conclusive, evidence in favour of the extinguishment.(i)

§ 106. With respect to easements of the intermittent kind, there are some expressions to be found in the books strongly favouring the notion, that, in order to raise the presumption of extinguishment from

(d) Gale and Whatley on Easements, pp. 353, 354, 355.

(e) Gale and Whatley, p. 16.

(f) Id. 360, citing Moore v. Rawson, 3 B. & C. 332, (10 Eng. Com. Law Reps.), and Lig. gins v. Inge, 7 Bing. 693, (20 Eng. Com. Law Reps.) In Moore v. Rawson, 3 B. & Č. 341, (10 Eng. Com. Law Reps.), Littledale, J., says, "I think, that, if a party does any act to shew that he abandons his right to the benefit of light and air which he once had, he may lose his right in a much less period than twenty years. If a man pulls down a house, and does not make any use of the land for two or three years, or converts it into tillage, I think he may be taken to have abandoned all intention of rebuilding the house, and, consequently, that his right to the light has ceased. In this case I think that the owner of the plaintiff's premises abandoned his rights to the ancient lights, by erecting a blank wall instead of that in which the ancient windows were; for he then indicated an intention never to resume that enjoyment of the light which he once had." See that case generally, and Lawrence v. Obee, 3 Camp. 514.

(g) Gale and Whatley, p. 360.

(h) Id. 360.

(i) Id. 362.

non-user alone, it must have reached the full period of twenty years,(k) in analogy to the Statute of Limitations, and the rule established respecting title by lost grant ;(7) and it is said to have been expressly held in America, that a right of way is not lost by a non-user for less than twenty years.(m) It certainly seems clear that slight intermittence of the user, or slight alterations in the mode of enjoyment, will not be sufficient to destroy the right when circumstances do not show any intention of relinquishing it;(n) but then, on the other hand, a much shorter period than twenty years, when it is accompanied by circumstances such as disclaimer or other *indication of inten

[ *141 ] tion to abandon the right, will be amply sufficient to raise the presumption of extinguishment.(0)

(k) Gale and Whatley, 378, 379, 380, citing Doe d. Putland v. Hilder, 2 B. & A. 791, per Lord Tenterden; Moore v. Rowson, 3 B. & C. 339, (10 Eng. Com. Law Reps.) per Littledale, J.; and Holmes v. Buckley, 1 Eq. Ca. Abr. 27.

(1) See supra, art. 88.

(m) Gale and Whatley, 380, citing Emerson v. Wiley, 10 Pickering R. 210.

(n) Gale and Whatley, 380; citing Payne v. Shedden, 1 M. & Rob. 382; Hall v. Swift, 6 Scott, 167; 4 Bing. N. C., (33 Eng. Com. Law Reps.) cited supra, art. 90, and art. 98, n. (t).

(0) Gale and Whatley, 381; Norbury v. Meade, 3 Bligh. 241, 242; Harvie v. Rogers, 3 Bligh., N. S., 447. The following observations are taken from The Law of Easements, by Messrs. Gale and Whatley, pp. 385 et seq. "The Prescription Act (2 & 3 Will. 4, c. 71, s. 4) enacts, that an interruption which shall be acquiesced in for a year after the party claiming such right shall have had notice of the interruption, and of the authority under which the same is made, shall prevent a right being acquired.' The statute contains a similar provision, applying in terms to the extinction of an easement already acquired, whether by express grant, or by prescription only; but it would be a great anomaly if any less interruption could extinguish a right than that required to break the continuity of enjoyment in acquiring one. There is, however, no case in which the construction of this act has come in question, which decides, that, supposing the right to have been once established, any such interruption would be sufficient to defeat it; but it seems, that, by a probably unintentional consequence of the enactment, wherever an easement is claimed by prescription only, however long the period during which it may have been enjoyed, and although, from its position, it may have been coeval with the very land to which it is attached, a single instance of interruption as defined by the statute will be sufficient to defeat it; at all events, unless the right has been established by some previous action. The statute, as has been already men. tioned, enacts, that the respective periods, the evidence of enjoyment during which shall confer an easement, shall be taken to be those next before some suit or action, wherein the claim or matter to which such period may relate shall have been brought into question.' If this provision is to be taken strictly, if the plaintiff has acquiesced in a year's interruption during the period requisite to confer the easement immediately preceding the bringing an action, his right is gone. Thus, for instance, if the right to have a stream run on in its accus. tomed course be an easement, it is vested in the owners of the adjacent land by the simple fact of its having so run on from time immemorial: and even if a manifest act of appropriation is requisite to confer a right of action for an interference with the stream, yet it is clearly established that a single act, however recent, is sufficient; and, upon that being done, the party has a right to have the stream flow in its accustomed course, unless an easement to divert it has been acquired by some neighbouring owner, which can only be obtained in the same manner as any other easement. Suppose, then, that before any mill has been established on a stream, or any overt act of appropriation has been exercised, one of the parties on the banks of the stream erects a mill, by which he materially interferes with the ordinary course of the stream, and he is allowed to continue such mill without interference during a year, though all the other parties interested in the stream have been fully aware of his proceedings; if, after that time, such parties on the stream, being desirous of availing themselves of the benefit of its natural course, should bring an action, founding their right upon the continued course of the stream during the requisite period next before the commencement of the suit, it appears they must be defeated; for, during that period, there has been interruption for a year acquiesced in by them.' And this further incidental consequence, at variance with the general principles of the law of easements, would arise, that the party so interrupting and appropriating an excessive quantity of the stream for a year, without opposition, though he could not, strictly speaking, acquire the

*§ 107. So licenses may be presumed, and as a general rule, from a much shorter period than twenty years.(p) [ *143 ] Thus, in the case of Doe d. Foley v. Wilson,(q) where an inclosure had been made from the waste about twelve or thirteen years before action brought, and which was seen from time to time by the steward of the same lord of the manor, and there was no evidence of his having made any objection to it, it was held to have been properly left to the jury to presume a license from the lord to inclose, and that the defendant could not be treated as a trespasser without receiving notice to throw up the land again. So, in Ditcham v. Bond, (r) where, in answer to an action for breaking and entering the plaintiff's dwellinghouse, the defendant pleaded leave and license, and shewed that the plaintiff kept a billiard-room in the house, where all persons were permitted to play at certain prices, and that he entered the house for the purpose of going to the billiard-room, it was held by "Lord [ *144 ] Ellenborough at Nisi Prius that the plea was supported.(s) §108. We next proceed to consider the numerous important presumptions of facts, made in support of title or beneficial enjoyment. The general principle governing this subject is thus clearly stated by

right, would in fact obtain the power to continue such excessive user; for there would be no longer any person in a situation to contest the legality of his enjoyment, as all those whose interest in the stream would otherwise have entitled them to complain of the diversion would be precluded by having acquiesced in the interruption; nor could they acquire, by any subsequent enjoyment, a right to more water than the interruption had left. This objection would apply equally whether they brought an action for the obstruction, or by their own act abated it: if they brought the action, they must prove the uninterrupted enjoyment as the foundation of their right to maintain it; if defendants in an action of trespass for the actual abatement, they must justify themselves by the same proof. Whether an overt act of appropriation (if such act be necessary in order to maintain an action for a diversion of the stream) be done before or after the interruption, is immaterial for this purpose, as the right which is affected by the interruption is altogether independent of such act of appropriation. It can scarcely be contended, that by the term 'acquiescence' in the statute any affirmative act of assent is required, provided the party has had the requisite notice of the interruption. One anomalous consequence, if the above construction of the law be correct, would be, that the party interrupting would be fully supplied with the means of defence against any action brought against him for the interruption; yet, as the diversion would invest him with no new right, he might be deprived of the benefit resulting from it without having any legal means of redress. In various classes of easements, the owner of the servient has the full period required for their acquisition given him by law to consider what steps he shall take to preserve his own rights; but, in this case, a single year alone is allowed him. It is true, that, in the case of windows, for instance, the rights which the owner of the servient tenement seeks to protect are the common law rights of property, whereas the right to a watercourse is an easement; but the right to water flowing in an ancient channel must frequently be of as high antiquity, and is often of quite as much value, as any other right of property: it differs, as has been already remarked, from most other ease. ments, in being so necessarily attached to the inheritance as to approximate in its qualities to the ordinary rights of property. It may not be unimportant to remark, that if, at the time of the decision of Mason v. Hill, (3 B. & Ad. 304; 23 Eng. Com. Law Reps.) ; 5 B. & Ad. 1, 27 Eng. Com. Law Reps.) the statute had been in force, and the conclusions above given are correctly deduced from it, that case must have been decided in favour of the defendant, who had interrupted the course of the stream for a period considerably exceeding a year, and, for any thing that appears to the contrary, without opposition of any kind on the part of the plaintiff, who was fully aware of the interruption."

(p) Phil. & Am. Ev. 478; Doe d. Earl of Dunraven v. Williams, 7 C. & P. 332, (32 Eng. Com. Law Reps.) (q) 11 East, 56.

(r) 3 Camp. 524.

(8) See, also, the case of Goodtitle d. Parker v. Baldwin, 11 East, 488, where a license was presumed from the crown. On the subject of license to use easements, rights of way, &c., under the stat. 2 & 3 Will. 4, c. 71, vide supra, art. 98, n. (t).

JANUARY, 1845.—7

Tindal, C. J., in Doe d. Hammond v. Cooke :(t) "No case can be put in which any presumption (semble, any artificial presumption) has been made, except where a title has been shewn by the party who calls for the presumption, good in substance, by wanting some collateral matter to make it complete in point of form. In such cases, where the possession is shewn to have been consistent with the fact directed to be presumed, and in such cases only, has it ever been allowed." Presumptions of this kind are entitled to additional weight, if the possession would otherwise be unlawful, or incapable of satisfactory explanation.(u) On the other hand, the terms in which the presumption will be brought under the notice of the jury are considerably influenced by the nature of the document or other matter to be presumed, the facility or difficulty of adducing more direct proof, and also by the right in question being one favoured or not by law. (x) § 109. There is hardly a species of act or document, public or private, that will not be presumed in support *of posses[ *145 ] sion. Even acts of parliament may be thus presumed,(y) as also will grants from the crown,(z) letters-patent, (a) writs of ad quod damnum and inquisitions thereon, (b) bye-laws of corporations,(c) fines and recoveries, (d) the enfranchisement of copyholds, (e) endowment of vicarages, (f) exemption from tithes, (g) consent of ordinary to composition deeds, (h) &c. So, likewise, the disseverance of tithes by the requisite parties previous to the restraining statutes,(i) copyhold customs,(k) admittance to,() and surrender of, copyholds,(m) and lawful executorship,(n) will be presumed from lapse of time. So, in one case, it was held that *induction might be pre[ *146 ] sumed from fifteen years' undisturbed possession ;(o) and where a chapel has existed from time immemorial, proof of the celebration of the rites of baptism, marriage, and burial is presumptive

(t) 6 Bing. 179, (19 Eng. Com. Law Reps.) See, also, Greenleaf, L. E., art. 46, p. 52; 3 Stark. Ev. 935, 3rd ed. (u) Greenleaf, L. E., art. 46, p. 51.

(x) See the cases collected infra.

(y) Lopez v. Andrew, 3 M. & Ryl. 329, n.; Eldridge v. Knott, Cowp. 215; Viscountess Stafford v. Lewellin, Skinn. 78.

(z) Mayor of Hull v. Horner, Cowp. 102; Gibson v. Clark, 1 Jac. & W. 159; Read v. Brookman, 3 T. R. 158.

(a) Read v. Brookman, 3 T. R. 158; Pickering v. Stamford, 2 Ves. jun. 583.

(b) R. v. Montague, 4 B. & C. 598, (10 Eng. Com. Law Reps.)

(c) Case of Corporations, 4 Co. 78 a.

(d) Read v. Brookman, 3 T. R. 159, per Buller, J., citing Haselden v. Bradney, T., 4 Geo. 3, C. P. See Doc d. Fenwick v. Reed, 5 B. & A. 232, 7 Eng. Com. Law Reps.) (e) Roe d. Johnson v. Ireland, 11 East, 280.

(f) Crimes v. Smith, 12 Co. 4; Parsons v. Bellamy, 3 E. & Y. 832; Cope v. Bedford, Palm. 426; Wolley v. Brownhill, M'Clel. 317; Inman v. Whormby, 1 Y. & J. 545; Apperley v. Gill, 1 C. & P. 316, (11 Eng. Com. Law Reps.) On the subject of the endow. ment of chapels of ease, see Dixon v. Metcalfe, 2 Eden, 360; Ambl. 528.

(g) Mead v. Norbury, 2 Price, 351, and the cases there cited; Bayley v. Drever, 1 A. & E. 449, (28 Eng. Com. Law Reps.); Rose v. Calland, 5 Ves. 186. It seems that the presumption cannot be made from non-payment of tithes, unless accompanied by other circum

stances.

(h) Sawbridge v. Benton, 2 Anst. 372. In that case there had been an acquiescence of four centuries.

(i) Countess of Dartmouth v. Roberts, 16 East, 334.

(k) Doe d. Mason v. Mason, 3 Wils. 63.

(1) Watkins on Copyholds, 269, ed. 1797.

See Rawlinson v. Greaves, 3 Bulst. 237.

(m) Knight v. Adamson, 2 Freem. 106; Wilson v. Allen, 1 Jac. & W, 620. (n) R. v. Barnsley, 1 M. & Selw. 377.

(0) Chapman v. Beard, 3 Anst. 942.