or in himself and his ancestors. For, if a man prescribe in a [266] que estate (that is, in himself and those whose estate he holds), nothing is claimable by this prescription but such things as are incident, appendant, or appurtenant to lands; for it would be absurd to claim any thing as the consequence, or appendix of an estate, with which the thing claimed has no connection;" but, if he prescribes in himself and his ancestors, he may prescribe for any thing whatsoever that lies in grant; not only things that are appurtenant, but also such as may be in gross. Therefore, a man may prescribe that he, and those whose estate he hath in the manor of Dale, have used to hold the advowson of Dale, as appendant to that manor; but, if the advowson be a distinct inheritance, and not appendant, then he can only prescribe in his ancestors. So, also, a man may pre

scribe in a que estate for a common appurtenant to a manor; but, if he would prescribe for a common in gross, he must prescribe in himself and his ancestors. 6. Lastly, we may observe, that estates gained by prescription are not, of course, descendible to the heirs general, like other purchased estates, but are an exception to the rule. For, properly speaking, the prescription is rather to be considered as an evidence of a former acquisition than as an acquisition de novo; and therefore, if a man prescribes for a right of way in himself and his ancestors, it will descend only to the blood of that line of ancestors in whom he so prescribes; the prescription in this case being, indeed, a species of descent.' But if he prescribes for it in a que estate, it will follow the nature of that estate in which the prescription is laid, and be inheritable in the same manner, whether that were acquired by descent or purchase; for every accessory followeth the nature of its principal."

1 Litt., § 183. Finch, L., 104.

(8) See 6 Ad. & El., 530.

(9) A prescriptive right in gross, as, for instance, to take the herbage of a particular field, will, of course, until aliened, descend only to the blood of the line of ancestors in which the prescription is made; but such a right may be granted to a stranger, to whose heirs it will descend, like any other purchase, and he and his heirs will then prescribe in the name of the grantor and his ancestors. (6 M. & W., 541.)

(10) The old doctrine was, that a title could only be made to an incorporeal hereditament by express grant or charter, or by prescription; and a claim by prescription, although it might be supported, in the first instance, by evidence of uninterrupted modern usage during a period of thirty years, or even less (3 Nev. & P., 260), yet it was liable to

be rebutted by evidence to the contrary, remote, so that it was subsequent to the referring to any period of time, however year 1189. (Ante, p. 32, n. 29; 1 Cr., M. and R., 894.) And this rule formerreal right rested upon mere evidence of ly applied to every claim to an incorpoof a grant. (Cro. El., 118.) But in modenjoyment, without any direct evidence the proof and support of a prescription ern times, the inconveniences attending induced the courts to sanction a new mode of establishing certain incorporeal rights, by presuming, from sufficient ev idence of enjoyment, a modern grant which has been lost. Evidence of twen ty years' user as of right against the owner of the fee, and those deriving under him, was accordingly held sufficient, if unexplained, to authorize the jury to presume such a grant, even against the crown; and positive proof of the non

existence of such right at any time before the twenty years did not of necessity form any objection to such presumption. (1 M. & Mal., 400; 2 B. & Pul., 206; 11 East, 284; 1 Cr., M. & R., 217, 222, 893; 1 C. P. Coop., 239.) This period of twenty years was adopted in analogy to the provisions of the Statute of Limitations of James I.; but there was no arbitrary rule; enjoyment for a shorter period, supported by corroborative evidence, might be sufficient; while enjoyment for a much longer period, under less favorable circumstances, might be insufficient to raise the presumption. (6 East, 214; 2 Saund., 175.) The presumption of a grant was only resorted to when the evidence was not such as would support a prescription. (3 Ad. & El., 584.) Such presumptions did not always proceed on a belief that the thing presumed had actually taken place, but, as is properly said by Mr. Starkie in his excellent Treatise on Evidence, vol. ii., p. 669 (in 3d ed., vol. iii., p. 911), 'a technical efficacy was given to the evidence of possession beyond its simple and natural force and operation.' And though in theory it was presumptive evidence, in practice and effect it was a bar." (But see 5 Nev. & M., 313.) The liberty of presuming grants in this manner has been somewhat narrowed by the 6th section of the statute 2 & 3 Will. IV., c. 71, which enacts that, in all cases provided for by that act, no presumption shall be allowed in favor of any claim upon proof of enjoyment for a shorter period than that applicable to the case under the act. (Vide infra, and 1 Cr., M. & R., 222.)

strongly opposed by the fact that no use has been made of the subject-matter; but with respect to natural streams user is immaterial, and the diversion of them, however useless they may have been, can only be justified by license or prescription. (See 5 M. & W., 220; 3 Per. & D., 367; 5 B. & Ad., 1.)

The right to air and light stands on a different footing from other incorporeal rights. "Every man in his own land has a right to all the light and air which will come to him, and he may erect, even on the extremity of his land, buildings with as many windows as he pleases. In order to make it lawful for him to appropriate to himself the use of the light, he does not require any consent from the owners of the adjoining land. He therefore begins to acquire the right to the enjoyment of the light by mere occupancy. After he has erected his building, the owner of the adjoining land may afterward, within twenty years, build upon his own land, and so obstruct the light which would otherwise pass to the building of his neighbor. But if the light be suffered to pass without interruption during that period to the building so erected, the law implies, from the nonobstruction of the light for that length of time, that the owner of the adjoining land has consented that the person who had erected the building upon his land shall continue to enjoy the light without obstruction, so long as he shall continue the specific mode of enjoyment which he had been used to have during that period. It does not, indeed, imply that the consent is given by way of grant, for although a right of common (except as In aid of the acquisition of rights to to common appendant), or a right of light and air, and to divert or obstruct way, being a privilege of something ancient streams, it had long been the positive to be done or used in the soil practice to make presumptions of this of another man's land, may be the subkind. With respect to water, it has ject of legal grant; yet light and air, not been seen that every one has a right to being to be used in the soil of the land have the water which passes over his of another, are not the subject of actual land to continue to flow in its ancient grant; but the right to insist upon the channels, and no one can either divert non-obstruction and non-interruption of any part of it from above or dam it up them more properly arises by a covefrom below his land, to his injury (ante, nant, which the law would imply, not p. 18, n. 7). But acquiescence in such to interrupt the free use of light and air. interference during twenty years was The right, therefore, is acquired by mere generally a bar to the right to complain occupancy, and ought to cease when the of it (6 East, 208, 213): a rule to which person who has so acquired it discontinthis qualification must be added, that if ues the occupancy. If, therefore, as in the course of the water has been by an this case, the party who has acquired artificial channel, the owner of the land the right once ceases to make use of the over which it passes does not necessari- light and air which he had appropriated ly acquire a right to its continuance after to his own use, without showing any ina lapse of twenty years, unless he has tention to resume the enjoyment, he appropriated it to some use; because must be taken to have abandoned the the right to such artificial flow of water right." (Per Littledale, J., 3 B. & Cr., must be founded on the supposition of a 340.) The right to have one's house grant, a presumption which would be supported by the abutment of one's

The Prescription Act, 2 & 3 Will. IV., 3. 71.

neighbor's soil is of a similar nature, joyment at the commencement of the

*See 1 C., M. & R., 218; and in illustration, the observations on the Tithe Prescription Act, ante, p. 32, n. (29).

terruption for a period insufficient to to or for any building, during twenty The Preconfer an adverse title under the Statute years, without interruption, and not by scription of Limitations. (6 M. & W., 541.) virtue of any consent or agreement in Act. Nothing is to be deemed an interrup- writing, shall confer an absolute and intion, unless submitted to or acquiesced in defeasible right. (See 11 Ad. & E., 695.) for one year after notice to the party in- Lastly, it is enacted, that in the sevterrupted. So that an enjoyment for eral cases provided for by the act, no twenty-nine years and a fraction, fol- presumption founded on enjoyment for lowed by an interruption not asquiesced a shorter period than that applicable unin for a whole year, constitutes an en- der the act to the case in question, is to joyment for thirty years under the act be admitted. This proviso is, evident(8 Cl. & Fin., 231; 3 Per. & D., 442); ly, only a qualified exclusion of the comand if there be any series of interrup- mon law, which seems clearly, except tions, each for less than a year, the en- so far as these words control it, to be joyment will suffice, although it be taken still applicable, concurrently with the against the will of the owner, who en- statute, as well as to cases which are deavors to interrupt it. (Ib.) not affected by it. (See 6 Scott, 167; 1 C., M. & R., 222; 3 Nev. & P., 72; 4 M. & W., 496; 6 Id., 542.)

The same provisions apply to claims "which may lawfully be made at the common law, by custom, prescription, or grant, to any way or other easement, or to any water-course, or the use of any water," to be enjoyed in solo alieno; except that the periods are respectively twenty and forty years. But there is a further provision, in respect of these rights only, that where the servient tenement has been held for any term, for life, or exceeding three years from the granting thereof, the time of enjoyment during the continuance of such term shall be excluded (see 2 Gale & D., 181) in the computation of the period of forty years, in case, within three years following the determination of the term, the claim shall be resisted by the reversioner. (1 M. & W., 100.) And this provision has been construed to apply also to the period of twenty years. (1 Cr., M. & R., 220; see 3 Scott, 264.)

It has been already observed, that the acquisition of a right to light stands upon a peculiar ground; and, accordingly, it has been made the subject of a distinct provision, containing no qualification or reference to the common law, it being simply enacted, that the "actual enjoyment" (whether as of right or not is immaterial) of the access and use of light

* Therefore, where the enjoyment during part of the period was under an act of Parliament, which ceased to apply, and for the remainder of the period the enjoyment was adverse, the claim was held not to be such as the act contemplated (6 M. & W., 806); but in 1 Cr., M. & R., 220, an enjoyment for twenty years against the lessee of a bishop, being (on account of the lease, see sect. 8) insufficient to confer a right against the bishop, was held to confer no right against the lessee; and one reason given was, that the act being made "for shortening the time of prescription," could

The principal difficulty in applying this statute is to determine what is a sufficient continuous enjoyment as of right to satisfy it. There must be an enjoyment of the easement, &c., as such, and as of right for such continuous period as is applicable to the particular case, next before the commencement of the suit. If the benefit has been enjoyed openly for a year or two, and afterward uniformly by permission asked on each occasion; or if it has been enjoyed secretly and by stealth (3 M. & W., 229) for several years, and then openly, such enjoyment does not count as an enjoy ment under the act. The words as of right can not be confined to an adverse right from all time, as far as evidence shows; for if they were so confined, such enjoyment, once confessed, could not be avoided by replying that it was had by contract, which is not adverse. Again, as the legal right to a way can not pass except by deed, it is plain that the words can not be confined to enjoy. ment under a strict legal right, for then a consent or agreement in writing not under seal (of which the second section speaks) could not account for such enjoyment. The words, therefore, must

not contemplate any enjoyment that
would not give a title, as prescription
does, against all the world. The court
seems to have forgotten that the words
in the body of the act extend the mean-
ing of the word "prescription," in the
title, to all claims that would be sup-
ported by custom, prescription, or infer-
ence of non-existing grant (6 M. & W.,
806; see 5 Id., 203); and, besides, that
if the claim in question is not within the
act, it is then left as a question of pre-
sumption for the jury, at common law.
(3 Nev. & P., 72.)

have a wider sense, and yet they must till the 32d Hen. VIII., was not any cer
have the same sense as the words 'claim- tain period before the commencement
ing right thereto' in the second section, of the suit, but dated from some histor-
otherwise there will be incongruities in ical event fixed from time to time, as the
the construction of the act. It seems, beginning of the reign of Henry I., the
therefore, that the enjoyment as of return of King John out of Ireland, the
right' must mean an enjoyment had, coronation of King Richard I., &c. (First
not secretly, or by stealth, or by strict Real Prop. Rep., 51; Stat. Westm. 2d,
sufferance, or by permission asked from c. 46.) By the stat. 32 Hen. VIII., c.
time to time, on each occasion, or even 2, the time for bringing a writ of right
on many occasions of using it; but an on the seizin of an ancestor was limited
enjoyment had openly, notoriously, with- to sixty years from the commencement
out particular leave at the time, by a of the adverse possession; and for a pos-
person claiming to use it without dan- sessory action on an ancestor's seizin
ger of being treated as a trespasser, a sa the time was fifty years. No person
matter of right, whether strictly legal, was to bring a real action, droitural or
by prescription and adverse user, or by possessory, on his own seizin, after thir-
deed conferring the right, or though not ty years; and real actions by remainder-
strictly legal, yet lawful to the extent of men and reversioners, and avowries and
excusing a trespass, as by a consent or conusances for rents and services, were
agreement in writing not under seal, in limited to fifty years. This statute did
case of a plea of enjoyment for forty [or not limit a right of entry, or an action of
sixty] years, or by such writing, or by ejectment founded on such right; nor
parol consent or agreement, contract, or was the time for exercising such a right
license, in case of a plea of enjoyment limited by the common law, otherwise
for twenty [or thirty] years." (6 Nev. than by the operation of a descent cast,
& M., 238; see 1 C., M. & R., 219, 631; discontinuance, or warranty. (See Vol.
3 Scott, 263; 4 M. & W., 500.)
iii., p. 176, 191.) But the statute 21
Jac. I., c. 16, while it limited all writs
of formedon (i. e., real actions by re-
mainder-men, reversioners, or issue in
tail) to twenty years, also provided that
no person should make entry into any
lands but within twenty years after his
right of entry accrued, with a saving of
the rights of persons under disabilities.

Enjoyment under a parol license during an entire year within the period would, therefore, be an interruption to the continuous enjoyment as of right, contemplated by the act. Again, unity of possession (of which unity of seizin is prima facie evidence) is admissible to show that the enjoyment during any part of the period (not being less than a year) was not enjoyment of the easement, &c., as such. (4 M. & W., 496; 2 Gale & D., 183; 10 M. & W., 699.) (It must not be forgotten that unity of possession of the dominant and servient tenements does not necessarily do more than suspend the easement; an absolute extinguishment can only be effected by unity of seizin or title. 2 C., M. & R., 41.) See further, on this subject, Gale & Whatley on Easements, passim.

Actions in which it was unnecessary to allege any seizin, such as actions of dower, escheat, waste, &c.; the action of quare impedit, by which the right to an advowson is tried; and suits by lay impropriators for tithes, were not subject to any period of limitation. (First Real Prop. Rep., 39, 40.)

The statute of James I. and the previous statutes of limitation did not declare that adverse possession for any time should extinguish the title of the rightful owner, but merely limited his right Somewhat analogous to the creation of to recover by action or entry; and hence incorporeal rights by prescription is the the law of limitation has been treated as acquisition of a legal title to existing her- belonging “ad ordinationem litis,” formeditaments by long enjoyment. At the ing a branch of the practice of the courts, common law, no length of adverse pos- rather than a substantive law of real session seems to have been sufficient to property. (See 2 Scott, 304; 5 Cl. & bar the rightful owner, unless the land Fin., 1.) Accordingly, the subject has was actually recovered from him in a hitherto found a place in the third book real action of a particular form, and he of these Commentaries; but now that took no steps for reversing the judgment the recent statute has declared that lapse within a year and a day; but various of time shall not only bar the forensic statutes were successively passed for remedy, but also shall actually extinlimiting the period for bringing a writ guish the right and title of the person of right (formerly the ordinary mode of out of possession (3 & 4 Will. IV., c. 27, trying the title to real property), which, s. 34),* the law of limitation of rights to

*There is no such provision in the Statute of Limitations of New York.