2 & 3 Will. 4, divisible part of the right alleged, though he failed to prove the residue c. 71, s. 5. (Giles v. Groves, 12 Q. B. 721). Restricting tion to be Since the Jud. Acts, a much wider liberty of amendment has been introduced. R. S. C., Ord. 28, r. 1, provide that all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties. And this wider liberty of amendment has been allowed in pleading prescriptive rights (Budding v. Murdoch, 1 Ch. D. 42; Laird v. Briggs, 19 Ch. D. 22; Bourke v. Alexandra Co., 1877, W. N. 30). As to amending at the trial by pleading lost grant, see Brown v. Dunstable, 1899, 2 Ch. 387; Gardner v. Hodgson's Co., 1900, 1 Ch. 601; Smith v. Baxter, 1900, 2 Ch. 147. 6. In the several cases mentioned in and provided for by the presump- this act, no presumption shall be allowed or made in favour or support of any claim, upon proof of the exercise or enjoyment of the right or matter claimed for any less period of time or number of years than for such period or number mentioned in this act as may be applicable to the case and to the nature of the claim. allowed in support of claims herein provided for. Proviso for disabilities. This section forbids a presumption in favour of a claim to be drawn from a less period of enjoyment than that prescribed by the statute (Bright v. Walker, 1 C. M. & R. 222; ante, p. 8). Compare the refusal of the court to recognise inchoate easements (Battersea v. Commrs. of Sewers, 1895, 2 Ch. 708; Greenhalgh v. Brindley, 1901, 2 Ch. 324). The meaning of this section seems to be that no presumption or inference in support of the claim shall be derived 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 or evidence, so as to preclude a jury from taking it along with other circumstances into consideration as evidence of a grant (Hanmer v. Chance, 4 D. J. & S. 626). Thus acquiescence on the part of the owner of a servient tenement, over which an easement is in fact used in the expenditure of money by the owner of the dominant tenement with a view to such user, might prevent the former from interfering with such user although the easement may not have been enjoyed for the full statutory period (see Rochdale Canal Co. v. King, 2 Sim. N. S. 88; Bankart v. Tennant, 10 Eq. 141). The "interruption " which defeats a prescriptive right under this statute is an adverse obstruction, not a mere discontinuance of user by the claimant himself. In a case under the 1st section, if proof be given of a right of enjoyment at the time of action brought, and thirty years before, but disused during any part of the intermediate time, it is always a question for the jury whether at that time the right had ceased or was still substantially enjoyed. The inference to be drawn from the facts proved on this point is not a presumption within the 6th section. Where a commoner has ceased to use the common during two years of the thirty, having no commonable cattle at the time, but had used it before and after it was held that a jury were justified in finding a continued enjoyment of the right during thirty years (Carr v. Foster, 3 Q. B. 581; see Hall v. Swift, 4 Bing. N. C. 381; Dare v. Heathcote, 25 L. J. Ex. 245). 7. Provided also, That the time during which any person persons under otherwise capable of resisting any claim to any of the matters before mentioned shall have been or 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 which c. 71, s. 7. shall have been diligently prosecuted, until abated by the death 2 & 3 Will. 4, of any party or parties thereto, shall be excluded in the computation of the periods herein before mentioned, except only in cases where the right or claim is hereby declared to be absolute and indefeasible. It is the intention of the act that an enjoyment of thirty years, or twenty years, shall be of no avail against an idiot or other person labouring under incapacity, but that one of sixty or forty years shall confer an absolute title, even against parties under disabilities (see Wright v. Williams, 1 M. & W. 77). This section, it is to be observed, in express terms excludes the time that the person (who is capable of resisting the claim) is tenant for life. During the period of a tenancy for life the exercise of an easement will not affect the fee; in order to do that there must be that period of enjoyment against an owner of the fee (Bright v. Walker, 1 C. M. & R. 222; ante, p. 8). A claim was defeated by proof of an outstanding life estate under this section (Hale v. Oldroyd, 14 M. & W. 739). Under sects. 1, 4 and 7 of this act an enjoyment as of right for thirty years next before the commencement of an action may be proved by showing that the party has enjoyed for several periods amounting together to thirty years, and that during the whole time between such periods, and between the last of them and the action (if such period intervened), the estate over which the right has been exercised was in the hands of a tenant for life (Clayton v. Corby, 2 Q. B. 813). The cases in which the right is declared by the statute to be absolute Cases where and indefeasible are as follows:-By the 1st section, where the right, right is profit or benefit shall have been taken as required for the full period declared of sixty years, the right shall be deemed absolute and indefeasible, un- absolute. less 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 2nd section, where any way or easement, or any watercourse, or the use of any water, shall have been enjoyed as therein mentioned for the full period of forty years, the right thereto is made 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 3rd section, the enjoyment of light for the full period of twenty years without interruption is made absolute and indefeasible, unless it shall appear that the same was enjoyed by some consent or agreement expressly made or given for that purpose by deed or writing. this act. 8. Provided always, and be it further enacted, That when What time to be excluded any land or water upon, over, or from which any such way or in computing other convenient (f) watercourse or use of water shall have been the term of or shall be enjoyed or derived, hath been or shall be held under forty years or by virtue of any term of life, or any term of years exceeding appointed by three years from the granting thereof, the time of the enjoyment of any such way or other matter as herein last before mentioned, during the continuance of such term, shall be excluded in the computation of the said period of forty years, in case the claim shall within three years next after the end or determination of such term be resisted by any person entitled to any reversion expectant on the determination thereof (g). sooner (f) The words of the 2nd section extend to all easements; but the word Omission of "easement" is omitted in the 8th section. There seems reason for thinking easement in that the word convenient has crept into the 8th section instead of the word 8th section. easement,” for, with that exception, the expressions in the two sections 2 & 3 Will. 4, c. 71, s. 8. Replication of life estate. Not to extend to Scotland. are the same. It does not appear why it should be supposed that the legislature would have neglected to protect the interests of reversioners in the case of other easements than ways and watercourses (see Wright v. Williams, 1 M. & W. 77). (g) The 8th section applies expressly to the computation of an enjoyment for forty years; and it would be contrary to all rules of construction to hold that it applies also to the computation of an enjoyment for twenty years (Palk v. Skinner, 18 Q. B. 568). Under the 7th and 8th sections of this act, the time during which the servient tenement has been under lease for a term exceeding three years, is to be excluded from the computation of forty years' enjoyment, but not from the computation of an enjoyment for twenty years (Ib.). The effect of the 8th section is not to unite discontinuous periods of enjoyment, but to extend the period of continuous enjoyment, which is necessary to give a right, by so long a time as the land is out on lease, subject to the condition therein mentioned (Onley v. Gardiner, 4 M. & W. 500). A tenancy for life is excluded from the period of forty years by the 8th section on condition that the reversioner shall bring his action within three years after its determination; a user of forty years confers a primâ facie title, which is good, unless the reversioner pursues his remedy within the three years (Wright v. Williams, 1 M. & W. 77). The word "reversion" at the end of the section does not include remainder (Symons v. Leaker, 15 Q. B. D. 629; see Laird v. Briggs, 16 Ch. D. 440; 19 Ch. Div. 22). Where a replication to a plea of enjoyment of an easement for forty years, under this act, sets up a life estate in order to bring the case within the 8th section of the act, it must show that the plaintiff is the party entitled to the reversion expectant upon such life estate (Wright v. Williams, 1 M. & W. 100). 9. This act shall not extend to Scotland. This act has been extended to Ireland by 21 & 22 Vict. c. 42. Prescription Act has not superseded common law. II. MODES OF CLAIMING INCORPOREAL RIGHTS APART A Whether the Prescription Act, 1832, has superseded the B Of Grants, Express and Implied, of Incorporeal Rights and c Of the Presumption of Lost Grants...24. D Prescription at Common Law...25. E Custom and Usage...31. F Modes of Claiming Profits à prendre...34. A. Whether the Prescription Act, 1832, has superseded the There is nothing in the Prescription Act, 1832, to interfere with a claim of a right of way or other easement by express grant (Bright v. Walker, 1 C. M. & R. 223, ante, p. 8; Livett v. Wilson, 3 Bing. 115; Plant v. James, 4 Ad. & Ell. 749, 765; Blewitt v. Tregonning, 3 Ad. & Ell. 554). Although that statute has facilitated the proof of profits à prendre and easements, it has not superseded the common law; so that a party may elect to proceed either under the statute or according to the common law Prescription. (see Holford v. Hankinson, 5 Q. B. 584; Aynsley v. Glover, 10 Ch. 283). In Onley v. Gardiner (4 M. & W. 496), where the defendant failed in proving a sufficient title under the statute to a right of way in consequence of an unity of possession, the court allowed the defendant to amend his plea, by pleading a right of way immemorially (see Richards v. Fry, 3 Nev. & P. 72; Welcome v. Upton, 5 M. & W. 403, 404; Parker v. Mitchell, 11 Ad. & Ell. 788; Lowe v. Carpenter, 6 Ex. 825). In the case of light, where unity of possession was raised as an objection to the plaintiff's title under the statute, he established his title independently of the statute by proof of enjoyment from time immemorial (Aynsley v. Glover, 10 Ch. 283); Mellish, L.J., remarking that the Prescription Act, 1832, had not taken away any of the modes of claiming easements which previously existed (Ib. 285; see Dalton v. Angus, 6 App. Cas. 814; Smith v. Baxter, 1900, 2 Ch. 146). In Norfolk v. Arbuthnot (5 C. P. Div. 392), and Ecc. Commrs. v. Kino (14 Ch. Div. 213), both the former modes of claiming light were treated as still existing. See contra, Tapling v. Jones, 11 H. L. C. 290; Truscott v. Merchant Taylors' Co., 11 Exch. 863. In the case of tithes, where a party pleads a modus existing from time immemorial, he may proceed just in the same way as he might have done before the Tithe Act, 1832, was passed (Stamford v. Dunbar, 13 M. & W. 822). It is frequently advisable to plead together in the same case alternative Pleading. claims of (1) prescription by statute, (2) prescription at common law, and (3) lost grant. For if on the evidence the enjoyment could not be brought down to the commencement of action, prescription by statute could not be relied upon. Again, if the enjoyment were shown to have commenced within the period of legal memory, prescription at common law could not be relied upon. See Bullen & Leake, Pleadings, 4th ed., Pt. II. 518. The three alternative claims were pleaded together in Bailey v. Stevens, 12 C. B. N. S. 91; Norfolk v. Arbuthnot, 4 C. P. D. 293. See as to pleading lost grant, post, p. 25. In stating a claim under the statute it may be also advisable to plead prescription both for the longer and shorter periods mentioned in sects. 1 and 2 (Stamford v. Dunbar, 13 M. & W. 827); the reason being to meet a possible difficulty arising from failure of proof by reason of interruption, &c. (see Welcome v. Upton, 5 M. & W. 398; 6 M. & W. 536; Hollins v. Verney, 13 Q. B. Div. 304, and cases quoted in the judgment). B. Of Grants, Express and Implied, of Incorporeal Rights; and herein of Licences in Relation to Real Estate. The title to incorporeal rights may arise by grant, whether express or implied. See the decisions in the case of ways (see p. 50, post); water (see p. 71, post); support (see p. 92, post); and light (see p. 99, post). By sect. 49 of the Conv. Act, 1881, the word "grant" is not necessary to convey incorporeal hereditaments; and by sect. 62, easements may be granted by way of use. A right of way, or a right of passage for water (where it does not create Necessity of a an interest in land) is an incorporeal right, and stands upon the same deed to pass footing with other incorporeal rights, such as rights of common, rents, incorporeal advowsons, &c. It lies not in livery, but in grant (Hewlins v. Shippam, rights. 5 B. & C. 229; see Hastings v. N. E. R., 1898, 2 Ch. 674). According Effect of an to the older cases at common law a deed was necessary to create either a freehold interest in an incorporeal right (Hewlins v. Shippam, sup. Blanchard v. Blanchard, 1 Ad. & E. 536), or a leasehold interest (Somerset v. Fogwell, 5 B. & C. 875, a case of a several fishery; Bird v. Higginson, 6 Ad. & E. 824, a right of sporting; Wood v. Leadbitter, 13 M. & W. 843). In accordance with this doctrine, it was held at common law that an agreement, otherwise than by deed, for an incorporeal right, was ; agreement not under seal; older cases at common law; Grants. recent cases. Nature of a licence. Grant of licence: express; implied. Revocation of licences: merely a parol licence revocable at will, though valuable consideration had been given or expense incurred (Fentiman v. Smith, 8 East, 107; Cocker v. Cowper, 1 C. M. & R. 418; Bryan v. Whistler, 8 B. & C. 298; Adams v. Andrews, 15 Q. B. 284; see R. v. Hornden-on-the-Hill, 4 M. & S. 565; Thomas v. Fredericks, 10 Q. B. 775; Smart v. Jones, 33 L. J. C. P. 154). It has, however, been laid down more recently that an agreement for valuable consideration, though not under seal, is sufficient to create a right to an easement, and for the purpose of creating a lawful user is as good as a deed (Dalton v. Angus, 6 App. Cas. 765, 782). And see the earlier cases in equity, where it was held that a parol licence for an easement was irrevocable where expense had been incurred, and there had been acquiescence (Devonshire v. Eglin, 14 Beav. 530; Moreland v. Richardson, 22 Beav. 596; Mold v. Wheatcroft, 27 Beav. 510; Laird v. Birkenhead Co., Joh. 500; Newby v. Harrison, 1 J. & H. 393; Bankart v. Tennant, 10 Eq. 141; Carr v. Benson, 3 Ch. 524. Again, it has been recently suggested that the decision in Walsh v. Lonsdale (21 Ch. Div. 9), may have altered the earlier law in relation to agreements as to sporting rights (Lowe v. Adams, 1901, 2 Ch. 600). And it has been decided that a verbal agreement for an easement may be enforced where there has been part performance (McManus v. Cooke, 35 Ch. D. 681). In a case, however, where there was no writing and no part performance, sect. 4 of the Statute of Frauds prevented the recovery of damages for breach of a verbal agreement giving the right to shoot over land and take away game, such right being treated as real estate (Webber v. Lee, 9 Q. B. Div. 315). Licences in relation to Real Estate. As regards licences generally in relation to real estate: "A dispensation or licence properly passeth no interest, nor alters or tranfers property in anything, but only makes an action lawful which, without it, would have been unlawful" (Thomas v. Sorrell, Vaughan, 351). A licence authorizing the commission of an act illegal by statute was held void (Edwick v. Hawkes, 18 Ch. D. 199). A personal licence, as to enter a house to seize goods, is not assignable (Re Davis, Ex parte Rawlins, 22 Q. B. Div. 193; see Ackroyd v. Smithson, 10 C. B. 164). A personal licence of pleasure cannot be exercised with or by servants; secus, in the case of a licence of profit (Norfolk v. Wiseman, cited 7 M. & W. 77). As to the legal nature of the rights conferred by a railway passenger's ticket, see Butler v. Manchester S. & L. R. Co., 21 Q. B. Div. 207. A licence to be binding on a third party must be by deed, as in the case of a licence to use a common (Hoskins v. Robins, 2 Wms. Saund. 728, and n. 12; Shep. Touch. 330; Monk v. Butler, Cro. Jac. 574; see Perry v. Fitzhowe, 8 Q. B. 757; Ramsey v. Rawson, 1 Vent. 18-25); or a licence to a former tenant to enter to remove chattels after a new tenant is in possession (Roffey v. Henderson, 17 Q. B. 574). But as against the licensor a parol licence is an excuse for a trespass until countermanded (Hewlins v. Shippam, 5 B. & C. 232; Cornish v. Stubbs, L. R. 5 C. P. 339). A parol agreement which is void under sect. 4 of the Statute of Frauds may operate as a licence (Carrington v. Roots, 2 M. & W. 257; Crosby v. Wadsworth, 6 East, 602; compare Webber v. Lee, 9 Q. B. Div. 315). As to parol licence by the Crown, see Harper v. Charlesworth, 4 B. & Č. 590. Where a party places goods of another upon his own close, he gives the owner an implied licence to enter for the purpose of recaption (Patrick v. Colerick, 3 M. & W. 483; Wood v. Leadbitter, 13 M. & Ŵ. 853); but no such licence will be implied to a purchaser of goods to enter the premises of the vendor to take them (Williams v. Morris, 8 M. & W. 488; see Wood v. Manley, 11 Ad. & Ell. 34). As regards the revocation of licences, a mere licence which is not coupled with a grant, and which has not been executed, is revocable whether under seal or not (Wood v. Leadbitter, 13 M. & W. 845). Even licences to do where the licence had been executed and expense incurred by the licensee, executed |