enjoyment only arises where the person against whom the grant is claimed might have prevented or interrupted the exercise of the subject of the supposed grant."1 "You cannot acquire any rights against others by a user which they cannot interrupt." Nor can a lost grant be presumed where the right claimed is one not known to the law, or where the class of persons claiming it cannot in law possess such a right.

2

“We must bear in mind the cardinal rules of prescription, first, that no length of enjoyment can establish a title which could have no legal origin, as, for instance, of an estate or interest which the law does not recognise ; and next, that antiquity of time justifies all titles and supposeth the best beginning the law can give them.' So that, if evidence be given, after long enjoyment of property to the exclusion of others, of such a character as to establish that it was dealt with as of right as a distinct and separate property in a manner referable to a possible legal origin, it is presumed that the enjoyment in the manner long used was in pursuance of such an origin, which, in the absence of proof that it was modern, is deemed to have taken place beyond legal memory."

(e) A better method, however, of dealing with the difficulty was provided in 1832 by the passing of the Prescription Act. This statute did not abolish any of the methods which previously existed of claiming such rights. But it provided that after user as of right and without interruption, in the case of a profit à prendre for thirty years and in the case of an easement for twenty years, the prima facie right should not be defeated by proof that it commenced at some prior date subsequent to the first year of Richard I.

By the same sections, if the right be enjoyed in the case of a profit à prendre for sixty years and in the case of an easement for forty years, the right becomes absolute and indefeasible, unless it can be shown that such user took place

1 Per Lopes, L. J., in Chastey v. Ackland, [1895] 2 Ch. at p. 397.

2 Per Bowen, L. J., in Harris v. De Pinna (1886), 33 Ch. D. at p. 262. 3 Lord Chesterfield v. Harris, [1911] A. C, 623; Staffordshire, &c., Canal Narigation v. Bradley, [1912] 1 Ch. 91.

Bailey v. Stevens (1862), 12 C. B. N. S. 91; Att.-Gen. v. Mathias (1858), K. & J. 579.

5 Per cur., in Johnson v. Barnes (1872), L. R. 7 C. P. at p. 604; decision affirmed (1873), L. R. 8 C. P. 527.

6 2 & 3 Will. IV. c. 71.

7 Warrick v. Queen's College, Oxford (1871), L. R. 6 Ch. 716, 728; Aynsley v. Glover (1875), L. R. 10 Ch. 283.

s Ss. 1, 2.

with the permission of the owner of the servient tenement expressly given by deed or writing. In other words, it will no longer defeat the right, if it appears to have been enjoyed by the parol licence of the person whose land is affected by it.1

There are certain difficulties in proceeding under the Act which did not. exist at common law.

1. The period of the duration of the enjoyment relied on must immediately precede the commencement of the action in which the right is contested. 2. Although the acts of user need not necessarily continue down to the very moment of action brought, yet some act of the kind must be proved to have taken place in the first and last, and probably in every, year of the period of prescription.

3. There must be nothing in the facts inconsistent with the user having been as of right against all persons.

4. A right of claim by user can only be co-extensive with the user.

The right to light stands on a somewhat different footing. "An owner of ancient lights is entitled to sufficient light according to the ordinary notions of mankind for the comfortable use and enjoyment of his house as a dwellinghouse, if it is a dwelling-house, or for the beneficial use and occupation of the house if it is a warehouse, shop or other place of business." 2 Section 3 of the Prescription Act provides that, when such a right shall have been actually enjoyed for the full period of twenty years without interruption, it shall be deemed absolute and indefeasible, unless it shall appear that it was enjoyed by some consent or agreement expressly made or given for that purpose by deed or writing.3

"The right to what is called an ancient light now depends upon. positive enactment. It does not require any presumption of grant or fiction of a licence having been obtained from the adjoining proprietor. Written consent or agreement may be used for the purpose of accounting for the enjoyment of the servitude, and thereby preventing the title which would otherwise arise from uninterrupted user or possession during the requisite period. . . . After an enjoyment of an access of light for twenty

1 These sections do not apply to rights of light, which are governed by s. 3: Perry v. Eames, [1891] i Ch. 658; nor do they bind the Crown: Wheaton v. Maple, [1893] 3 Ch. 48.

2 Per Lord Lindley in Colls v. The Home and Colonial Stores, [1904] A. C. at p. 208; and see the judgment of Lord Davey, ib., at p. 204, and Jolly v. Kine, [1907] A. C. 1; Davis v. Marrable, [1913] 2 Ch. 421.

3 Scott v. Pape (1886), 31 Ch. D. 554; Harris v. De Pinna (1886), 33 Ch. D.

years without interruption, the right is declared by the statute to be absolute and indefeasible. It cannot, therefore, be lost or defeated by a subsequent temporary intermission of enjoyment, not amounting to abandonment; nor will it be affected or prejudiced by any attempt to extend the access of light beyond that which was enjoyed uninterruptedly during the required period." 1

Thus, where the owner of a dwelling-house containing a window, which under the statute had acquired an absolute and indefeasible right to light, opened two other windows one on each side of the old window, the indefeasible right did not thereby become defeasible; for by opening the new windows the owner of the dwelling-house does no wrong in the eye of the law to his neighbour, who is at liberty to build up on his own land so as to block the new windows, though he must not obstruct the ancient one. In the case of windows" with moveable shutters, which are opened at the owner's pleasure for admission of light, the right is gained at the end of twenty years, if he opens them at any time he pleases during those twenty years, and there is no such interruption of access over the neighbouring land as is contemplated by section 4."2 There can be no prescriptive right to light passing through an ordinary doorway.3

An enlargement of an ancient window, which substantially includes within its area the ancient light, will not cause the loss of the easement, nor will its diminution be evidence of an abandonment as regards the remaining part. Neither will the easement be lost by an alteration in the plane of the dominant tenement, either by advancing or setting it back, provided that the light reaching the new windows be substantially the old cone of light which entered the windows in their former position; and generally the pulling down of a house will not cause the loss of any easements already attaching to it, if it is intended to rebuild it within a reasonable time. But if a building has been pulled down and a new one built in its place, and it cannot be shown that the windows of the new building are in any way identified with the old windows, the easement will be lost.6

(iii.) Lastly, the plaintiff must prove that the defendant has obstructed or prevented the plaintiff's enjoyment of his right. A question often arises as to what amounts to an obstruction. The erection of an iron fence across a right of way would certainly amount to an obstruction. But the erection of a stile with convenient steps across a footpath is no obstruction; indeed, it is rather an admission of the right. No action will lie against the owner of the servient tenement 1 Per Lord Westbury, L. C., in Tapling v. Jones (1865), 11 H. L. Cas. at pp. 304,

305.

2 Per Kay, J., in Cooper v. Straker (1888), 40 Ch. D. at p. 28. Leret v. Gas Light & Coke Co., [1919] 1 Ch. 24.

4 Newson v. Pender (1884), 27 Ch. D. 43.

but

Luttrel's Case (1601), 4 Rep. 86; Bullers v. Dickinson (1885), 29 Ch. D. 155. Fowlers v. Walker (1880), 49 L. J. Ch. 598; (1881), 51 L. J. Ch. 443 ; see Ecclesiastical Commissioners v. Kino (1880), 14 Ch. D. 213.

for merely omitting to repair the way; he is not, as a rule, bound to do anything. It is the duty of the grantee of the right to repair a way or to clean out a watercourse, and he has a right to go upon the servient tenement for such a purpose.

In order to succeed in an action for the obstruction of ancient lights, it is not enough for the plaintiff to prove that owing to the obstruction he enjoys less light; he must show that the obstruction amounts to a nuisance to him, having regard to his previously existing easement of light. In other words, he must prove that it is of such a character as to render his tenement materially less fit for the purposes of business, if it be a place of business.

"Any substantial interference with an owner's comfortable use and enjoyment of his house according to the usages of ordinary persons in the locality is actionable as a nuisance at common law. . . . It is still, as it has always been, a question of nuisance or no nuisance, but the test of nuisance is not -How much light has been taken, and is that enough materially to lessen the enjoyment and use of the house that its owner previously had? but-How much is left, and is that enough for the comfortable use and enjoyment of the house according to the ordinary requirements of mankind?"2

Defences.

There are many matters which a defendant may urge in answer to a prima facie case which the plaintiff has established. For instance, it is open to him to show if he can that the user relied on by the plaintiff was forcible, or secret, or by permission. The Prescription Act makes no change in the old rule that the enjoyment relied upon must have been nec vi, nec clam, nec precario. Hence the action will still be defeated by any evidence which prior to the statute would have been an answer to the claim-as, for instance, by proof that the user could not have been as of right, or that the owner of the servient tenement was during any portion of the period of prescription incapable of making a grant of a right such as the plaintiff claims, eg., that he was a lunatic, an infant or tenant for life. 3

1 Colls v. The Home and Colonial Stores, [1904] A. C. 179.
2 Per Farwell, J., in Higgins v. Betts, [1905] 2 Ch. at p. 215.

3 Prescription Act, 1832 (2 & 3 Will. IV. c. 71), ss. 7, 8.

So a tenant for a term of years cannot acquire by user an easement, such as a right of way over land occupied by another tenant under the same landlord, even if that user has existed for the period of forty years mentioned in section 2 of the Prescription Act.1

Again, it is open to the defendant to prove the existence of an obstruction at the commencement of the period of twenty years or an interruption of the enjoyment (as defined by the statute) at some time during that period. Section 4 of the Act provides that "each of the respective periods of years shall be deemed and taken to be the period next before some suit or action wherein the claim or matter to which such period may relate shall have been or shall be brought in question;" and "no act or other matter shall be deemed an interruption within the meaning of this statute unless the same shall have been or shall be submitted to or acquiesced in for one year after the party interrupted shall have had or shall have notice thereof, and of the person making or authorising the same to be made." It would seem that the person, who asserts that an alleged twenty years' enjoyment of light has been interrupted during that period, is bound to prove that some notice (other than that which arises from the mere existence of a physical obstruction) was given to the person claiming the right by the person by whose authority the interruption was made.3

Where the plaintiff claims a right of way or a right to any watercourse or use of water, if the servient tenement be held for any term of life or for any term of years exceeding three, the time of enjoyment during the continuance of that term is excluded in computing the period of forty years in case the claim should be resisted within three years next after the end or sooner determination of such term by any person entitled to any reversion expectant on its determination.*

1 Kilgour v. Gaddes, [1904] 1 K. B. 457.

2 Glover v. Chapman (1874), L. R. 10 C. P. 108; Mitchell v. Cantrill (1887), 37 Ch. D. 56.

3 Seddon v. Bank of Bolton (1882), 19 Ch. D. 462.

4 S. 8; and see Palk v. Skinner (1852), 18 Q. B. 568, which shows that s. 9 only applies to the period of forty years. A remainderman is not such a person: Symons v. Leaker (1885), 15 Q. B. D. 629.