2 & 3 Will. 4, c. 71, s. 2. (3) Enjoyment under section, Bright v. No title gained by user which does not give valid title against all. 6 Under the Prescription Act, 1832, an enjoyment of twenty years, which cannot give a good title against all having estates in the lands in question, will not confer any title at all, even as between the parties having partial interests under leases. Thus, where for more than twenty years the plaintiff, holding a lease from a bishop of one close, enjoyed without interruption a way over another close occupied by the defendant holding a lease under the same bishop, such enjoyment did not give to the plaintiff a right of way over the defendant's close (Bright v. Walker, 1 C. M. & R. 211). Parke, B., said, "In order to establish a right of way, and to bring the case within section 2 it must be proved that the claimant has enjoyed for the full period of twenty years, and that he has done so as of right,' for that is the form in which, by section 5, such a claim must be pleaded, and the like evidence would have been required before this statute to prove a claim by prescription or non-existing grant. Therefore, if the way shall appear to have been enjoyed by the claimant, not openly, and in the manner that a person rightfully entitled would have used it, but by stealth, as a trespasser would have done; if he shall have occasionally asked the permission of the occupier of the land; no title would be acquired, because it was not enjoyed as of right.' For the same reason it would not, if there had been unity of possession during all or part of the time; for then the claimant would not have enjoyed, as of right,' the easement,' but the soil itself. So it must have been enjoyed 'without interruption.' Again, such a claim may be defeated in any other way by which the same is now liable to be defeated; that is, by the same means by which a similar claim, arising by custom, prescription, or grant, would now be defeasible; and therefore it may be answered by proof of a grant or of a licence, written or parol, for a limited period, comprising the whole or part of the twenty years, or of the absence or ignorance of the parties interested in opposing the claim, and their agents, during the whole time that it was exercised. . . . But if the enjoyment take place with the acquiescence or laches of one who is tenant for life only, the question is, what is its effect, according to the true meaning of the statute? .. Whatever construction is put on the seventh section, it admits of no doubt under the eighth. It is quite certain, that an enjoyment of forty years instead of twenty, under the circumstances of this case, would have given no title against the bishop, as he might dispute the right at any time within three years after the expiration of the lease; and if the lease for life be excluded from the longer period, as against the bishop, it certainly must from the shorter. Therefore, there is no doubt but that possession of twenty years gives no title as against the bishop, and cannot affect the right of the See. On the fullest consideration we think that no title at all is gained by a user which does not give a valid title against all, and permanently affect the See. "Before the statute this possession would indeed have been evidence to support a plea or claim by non-existing grant from the termor in the locus in quo to the termor under whom the plaintiff claims. But we think that since the statute such a qualified right is not given by an enjoyment for twenty years. For in the first place, the statute is for the shortening the time of prescription, and if the periods mentioned in it are to be deemed new times of prescription, it must have been intended that the enjoyment for those periods should give a good title against all, for titles by immemorial prescription are absolute and valid against all. They are such as absolutely bind the fee in the land. In the next place, the statute nowhere contains any intimation that there may be different classes of rights, qualified and absolute, valid as to some persons and invalid as to others. "Of course nothing that has been said by the court, and certainly nothing in the statute, will prevent the operation of an actual grant by one lessee to the other, proved by the deed itself, or upon proof of its loss, by secondary evidence; nor prevent the jury from taking this possession into consideration, with other circumstances, as evidence of a grant which they may still find to have been made, if they are satisfied that it was made in point of fact" (Ib. 223). The act has not created a class of easements which could not be gained by prescription at common law, or 2 in other words, has not created an easement for a limited time only, or available only against particular owners or occupiers of the servient tenement. Such easements can only be created since the act, as before the act, by grant or agreement (Wheaton v. Maple, 1893, 3 Ch. 65). Bright v. Walker was a decision on the part of the section relating to twenty years' enjoyment (see Harris v. De Pinna, 33 Ch. D. 251). And (apart from questions respecting light under section 3; as to which, see p. 12, post) it is clear in general that the tenant of one close cannot as such acquire by twenty years' user a prescriptive easement over another close belonging to the same landlord (Gayford v. Moffatt, 4 Ch. 133; Russell v. Harford, 2 Eq. 507; Bayley v. G. W. R., 26 Ch. D. 441; Daniel v. Anderson, 31 L. J. Ch. 610; see per Jessel, M.R., Sturges v. Bridgman, 11 Ch. D. 855; as to the presumption of a grant in such a case, see Timmons v. Hewitt, 22 L. R. Ir. 627). Where, however, the user extended to forty years, it was held under similar circumstances that an easement could be acquired (Beggan v. Macdonald, 2 L. R. Ir. 560; Fahey v. Dwyer, 4 L. R. Ir. 271, approved by Chitty, J., Harris v. De Pinna, 33 Ch. D. 252). & 3 Will. 4, c. 71, s. 2. session. The enjoyment of an easement as of right for twenty years next before Easement the commencement of the suit, within this statute, means a continuous en- must have joyment as of right for twenty years next before the commencement of the been enjoyed suit, of the easement as an easement, without interruption acquiesced in as such. for a year. It is therefore defeated by unity of possession during all or Effect of part of the period of enjoyment, although such unity of possession has its unity of posinception after the completion of the twenty or forty years (Battishill v. Reed, 18 C. B. 696). Where a plaintiff had enjoyed a way as of right and without interruption from 1800 to 1855, when the action was brought, it was held, that his claim under this statute was defeated by an unity of possession from 1843 to 1853 (Ib.). And such unity of possession need not be specially replied under the 5th section (Onley v. Gardiner, 4 M. & W. 496; see Monmouthshire Co. v. Harford, 1 C. M. & R. 631; Richards v. Fry, 7 Ad. & Ell. 698). Easements were defeated by showing unity of possession in Clay v. Thackrah, 9 C. & P. 47, and Wilson v. Stanley, 12 Ir. C. L. Rep. N. S. 345. The words in section 3, "enjoyment as of right," must have the same Enjoyment as sense as the words in section 2, "claiming right thereto" (Tickle v. Brown, of right. 4 Ad. & Ell. 382). They do not mean rightful apart from the act (Gardner v. Hodgson's Co., 1900, 1 Ch. 596). An enjoyment which the owner of the servient tenement cannot stop is not an enjoyment as of right (Winship v. Hudspeth, 10 Exch. 5; see Sturges v. Bridgman, 11 Ch. D. 852; Sanders v. Manley, 1878, W. N. 181). It was said by Lord Denman that the words "enjoyment thereof as of right," must mean an enjoyment had, not secretly or by stealth, or by tacit sufferance, or by permission asked from time to time on each occasion, or even on many occasions of using it; but an enjoyment had openly and notoriously, without particular leave at the time, by a person claiming to use it, without danger of being treated as a trespasser, as a matter of right, whether strictly legal by prescription and adverse user or by deed conferring the right, or though not strictly legal, yet lawful to the extent of excusing a trespass, as by a consent or agreement in writing not under seal, in case of a plea for forty years, or by such writing or parol consent or agreement, contract or licence, in case of a plea for twenty years (Tickle v. Brown, 4 Ad. & Ell. 369; see as to this dictum, Gardner v. Hodgson's Co., 1900, 1 Ch. 599; 1901, 2 Ch. 217; and see Beasley v. Clarke, 2 Bing. N. C. 705; Bright v. Walker, 1 C. M. & R. 219; ante, p. 8; Arkwright v. Gell, 5 M. & W. 333). In the case of prescription, long enjoyments, in order to establish a right, must have been as of right, and therefore neither by violence nor by stealth, nor by leave asked from time to time (Mills v. Colchester, L. R. 2 C. P. 486; see De la Warr v. Miles, 17 Ch. Div. 591). The enjoyment must be "nec per vim, nec clam, nec precario" (Co. Litt. 113b). It is not sufficient if it be "clam," as where there was c. 71, s. 2. 2 & 3 Will. 4, no open and visible enjoyment of an unusual support for a dock from underground rods (Union Co. v. London Dock Co., 1901, 2 Ch. 300); or if it be " precario," as in the case of an artificial watercourse constructed for a temporary purpose (Burrows v. Lang, 1901, 2 Ch. 502). Effect of interruptions. Evidence of user. Claim to the use of light enjoyed for twenty years indefeasible, unless shown by consent. Where an easement was enjoyed during part of the period in exercise of a statutory right, and, the statutory right having ceased, the enjoyment was continued for the rest of the period, no easement was acquired (Kinloch v. Neville, 6 M. & W. 806). Where a watercourse was made and enjoyed by a tenant, the landlord and tenant both believing that this was authorized by the lease, there was no enjoyment as of right (Chamber v. Hopwood, 32 Ch. Div. 549). The use of waste water from a canal was held not to be an enjoyment as of right (Staffordshire Co. v. Birmingham Co., L. R. 1 H. L. 254; compare Bankart v. Tennant, 10 Eq. 141; McEvoy v. G. N. R., 1900, 2 Ir. R. 325). It was said by Blackburn, J., that Wood v. Waud (3 Ex. 748) was in effect a decision that an active enjoyment in fact for more than the statutable period is not an enjoyment as of right, if during the period it is known that it is only permitted so long as some particular purpose is served (Mason v. Shrewsbury, &c. R. Co., 6 Q. B. 584; compare Tone v. Preston, 24 Ch. D. 739; see Gaved v. Martyn, 19 C. B. N. S. 732). Where the simple issue is, whether there has been a continued enjoyment of a way for twenty years, any evidence negativing the continuance is admissible. "Every time that the occupiers asked for leave, they admitted that the former licence had expired, and that the continuance of the enjoyment was broken" (Monmouthshire Co. v. Harford, 1 C. M. & R. 615). In the case of twenty years' enjoyment it was said by Alderson, B., that if a parol permission extends over the whole of the twenty years, the party enjoys the way as of right and without interruption for the twenty years; not so, if the leave be given from time to time within the twenty years (Kinloch v. Neville, 6 M. & W. 795). In the case of forty years' enjoyment, it was said by Cozens-Hardy, J., that a parol licence is of no moment unless applied for and granted within the period; in which case it may probably be used to negative the enjoyment as of right (Gardner v. Hodgson's Co., 1900, 1 Ch. 600). Where annual payments were made by the plaintiff during the whole forty years, they were treated by the majority of the C. A. as having been made for permission to use the way during each successive year, and accordingly there was no claim as of right (S. C., 1901, 2 Ch. 198). No interruption for less than a year breaks the period when once the enjoyment as of right has begun. But interruptions acquiesced in for less than a year may show that the enjoyment never was of right (Eaton v. Swansea Co., 17 Q. B. 275; see Brook v. Archer, 1868, W. N. 5). See further, as to interruptions in the enjoyment, the note to sect. 4, post. To support a plea framed on the 2nd section of this statute, of a right of way enjoyed for forty years, evidence may be given of user more than forty years back (Lawson v. Langley, 4 Ad. & Ell. 890; sce Beeston v. Weate, 5 E. & B. 986). As to pleading licences, see Tickle v. Brown, 4 Ad. & Ell. 369; Davies v. Williams, 16 Q. B. 546. See further, as to evidence of user, the note to sect. 4, post. 3. When the access and use of light to and for any dwellinghouse, workshop, or other building, shall have been actually enjoyed therewith for the full period of twenty years without interruption, the right thereto shall be deemed absolute and indefeasible, any local usage or custom to the contrary notwithstanding, 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. As to the law of light generally and the modes of claiming it apart from the act, see post, p. 99. (1) Period of Twenty Years...11. (2) Subject-matter of the Section...11. (3) Nature of the Enjoyment...11. (4) Custom of London...12. 2 & 3 Will. 4, c. 71, s. 3. (1) The period of twenty years is, by the 4th section, the period next before Period of any action wherein the claim to the right was brought into question, and twenty years. is not limited to the period next before the pending action (Cooper v. Hubbuck, 12 C. B. N. S. 456). If there has been an enjoyment for nineteen years and a fraction, and then an interruption takes place, the right may be established at the end of the twentieth year, inasmuch as the interruption, under the 4th section, in order to defeat the twenty years' user, must have been acquiesced in or submitted to for a whole year (Flight v. Thomas, 8 Cl. & Fin. 231). But the court will not interfere to protect the inchoate right before the expiration of the full twenty years (Battersea v. Commissioners of Sewers, 1895, 2 Ch. 708; Bridewell v. Ward, 62 L. J. Ch. 270). It was said that this right was not an interest in land or easement known to the law (Greenhalgh v. Brindley, 1901, 2 Ch. 328). Compare, however, the compensation granted in such a case (Re London and Tilbury R. Co., 24 Q. B. Div. 326; Barlow v. Ross, Ib. 38ì. (2) No right can, under this section, be acquired as against the Crown Subjectwhich is not bound thereby (Perry v. Eames, 1891, 1 Ch. 658; Wheaton matter of the v. Maple, 1893, 3 Ch. 48). There can be no prescription under the statute section. for light to open ground forming a garden (Potts v. Smith, 6 Eq. 311). Compare the case of a timber yard (Roberts v. Macord, 1 M. & Rob. 230). Under the statute light must be claimed in respect of a "building" (Scott "Building." v. Pape, 31 Ch. Div. 554); and a structure for storing timber is not such a "building" (Harris v. De Pinna, 33 Ch. Div. 238). Before the act, light was held not acquired where the building was not permanent (Maberley v. Dowson, 5 L. J. (K. B.) 261). The right may be acquired for a church (Ecclesiastical Commissioners v. Kino, 14 Ch. D. 213; but see Norfolk v. Arbuthnot, 5 C. P. Div. 392); an unconsecrated chapel (A. G. v. Queen Anne Co., 60 L. T. 759); a picture gallery (Ib.); a greenhouse (Clifford v. Holt, 1899, 1 Ch. 698). The building need not be occupied, or fit for occupation, during the period (Courtauld v. Legh, L. R. 4 Ex. 126; Collis v. Laugher, 1894, 3 Ch. 659). And even where the building has been pulled down, an injunction may be granted if the right has not been abandoned (Ecclesiastical Commissioners v. Kino, sup.). Structural identity between the building which acquires the right, and the building which, after the period, is to enjoy the right, is not necessary (Scott v. Pape, sup.). 66 Access," in the section, refers not to access through the aperture of "Access." the dominant tenement, but to freedom of passage over the servient tenement. The aperture defines the free area (Scott v. Pape, 31 Ch. Div. 554). The access must be by one and the same definite channel (Harris v. De Pinna, 33 Ch. Div. 238). (3) The question whether there has been an "actual enjoyment" of light is Nature of the a question of fact depending on the circumstances of each case (Smith v. enjoyment. Baxter, 1900, 2 Ch. 138). Continuous user is not necessary (Cooper v. "Actual Straker, 40 Ch. 26). The owner of a building having windows with enjoyment." moveable shutters acquires the right if, during twenty years, he opens the shutters at any time he pleases (Ib.). Boarding over apertures for inore than a year was such a discontinuance of user as prevented the acquisition of a right (Smith v. Baxter, sup.). See Hollins v. Verney (13 Q. B. Div. 314) and other cases, post, p. 13. This section converts into a right such an enjoyment only of access of light over contiguous land as has been had for twenty years in the character of an easement, distinct from the enjoyment of the land itself (Harbidge v. Warwick, 3 Exch. 552). During a period of unity of occupation of the dominant and servient tenements the running of the twenty years is suspended (Ladyman v. Grave, 6 Ch. 763). There is no such unity of 2 & 3 Will. 4, c. 71, s. 3. years. possession of the glebe and the church on the part of the rector as to prevent the acquisition of an easement of light for the church (Ecclesiastical Commissioners v. Kino, 14 Ch. Div. 213). The actual enjoyment required by this section need not be as of right (Truscott v. Merchant Taylors' Co., 11 Exch. 855; Frewen v. Phillips, 11 C. B. N. S. 449). Enjoyment as Before the act the acquiescence of lessees or tenants for life in the against tenant enjoyment of lights did not bind the landlord or reversioner, unless they for life or had knowledge and acquiesced for twenty years (Daniel v. North, 11 East, 370, case of a tenant; Barker v. Richardson, 4 B. & Ald. 579, case of a rector; see also Cross v. Lewis, 2 B. & C. 686). Since the act it has been held that where the right to light is acquired against an owner of a leasehold interest, it is also acquired against the owner of the reversion (Simper v. Foley, 2 J. & H. 555; see Harbidge v. Warwick, 3 Exch. 557). Pollock, C.B., said it may be, since the Prescription Act, that if a man opens a light towards his neighbour's land, the reversioner may have no means of preventing a right thereto being acquired by a twenty years' enjoyment, unless he can prevail upon his tenant to raise an obstruction, or is able to procure from the other party an acknowledgment that the light is enjoyed only by consent (Frewen v. Phillips, 11 C. B. N. S. 455; and see Ladyman v. Grave, 6 Ch. 769). Enjoyment by lessee for years. Interruption. Payment of rent or verbal permission. "Consent or agreement by writing." (4) Custom of The right to light cannot, under this section, be acquired for a term of years (Wheaton v. Maple, 1893, 3 Ch. 65). Where the servient tenement was occupied by a lessee, and the reversion on the lease was vested in the Crown (which was not bound by the section), no right was acquired against the Crown's lessee (Ib.). With respect to enjoyment of light by a lessee for years, it is settled that where two tenements are held under several leases from the same landlord, one lessee can, under the section, acquire an indefeasible right to light over the adjoining tenement, not only as against the other lessee, but also against the lessor (Frewen v. Phillips, 11 C. B. N. S. 449; Wheaton v. Maple, 1893, 3 Ch. 65; Robson v. Edwards, 1893, 2 Ch. 146). A lessee was prevented from acquiring a right to light against his landlord by a reservation of the right to obstruct light contained in the lease (Haynes v. King, 1893, 3 Ch. 439); but not by the exception in the lease which occurred in Mitchell v. Cantrill, 37 Ch. Div. 56. "Interruption" in the section bears the same meaning as in sect. 4, and refers to adverse obstruction, not discontinuance of user (Smith v. Baxter, 1900, 2 Ch. 138). A fluctuating interruption to light is not sufficient (Presland v. Bingham, 41 Ch. Div. 268). A hoarding for the purpose of an interruption may be erected by a railway company (Bonner v. G. W. R., 24 Ch. Div. 1; see Myers v. Catterson, 43 Ch. Div. 470). Mere payment of rent by the occupier of a house for the use of lights is not an interruption of the enjoyment within this section (Plasterers' Co. v. Parish Clerks' Co., 6 Exch. 630; see Gardner v. Hodgson's Co., 1901, 2 Ch. 215). An actual enjoyment of light for twenty years, even under a permission verbally asked for by the occupier of a house, and given by the person having a right to obstruct, is sufficient (London v. Pewterers' Co., 2 M. & Rob. 409; see as to a verbal agreement, Judge v. Lowe, I. R. 7 C. L. 291). A writing signed by A., the owner of the dominant tenement, but not by B., the owner of the servient tenement, declaring that A. would at any time block up windows at B.'s request, and in the meantime would pay B. sixpence a year, was a sufficient "consent or agreement by writing" within this section (Bewley v. Atkinson, 13 Ch. Div. 283). So, in the case of a lessee claiming the right to light, a reservation in the lease of the right to obstruct was a sufficient agreement" (Haynes v. King, 1893, 3 Ch. 439); but an exception in the lease of any right restricting the free use of adjoining land was not sufficient (Mitchell v. Cantrill, 37 Ch. Div. 56). By the custom of London (which is stated in the case of Wynstanley v. Lee, 2 Swanst. 339, 340; see Perry v. Eames, 1891, 1 Ch. 658), an |