Chap. XIII. Effect of Act. Right to a prospect-how acquired. Continuous and apparent So that evidence of enjoyment-e.g., in the case of right of common, for twenty years only will not now raise any presumption. Otherwise the owner of the dominant tenement may still prove his rights over the servient tenement as before-for instance, in case of rights of common, where the title is one of two hundred or three hundred years the statute is not needed, and the title can be rested on the original right before the passing of the statute; the statute only applies to cases where you want to stand upon thirty years' user (n). The statute has not altered the nature of the right, or the principle upon which it is to be determined whether the right has been infringed; but has merely substituted a statutory title for the fiction of a lost grant (o). Thus, as regards the right to light and air, it was contended (p) that enjoyment of free light and air for more than twenty years, gave under the statute an absolute and indefeasible right by way of property to the whole amount which came through the windows into the house. James, L.J., said: "I am of opinion that the statute has in no degree whatever altered the pre-existing law as to the nature and extent of this right. The nature and extent of the right before that statute was to have that amount of light through the windows of a house which was sufficient, according to the ordinary notions of mankind, for the comfortable use and enjoyment of that house as a dwelling-house, if it were a dwellinghouse, or for the beneficial use and occupation of the house, if it were a warehouse, a shop, or other place of business. That was the extent of the easement- -a right to prevent your neighbour from building upon his land so as to obstruct the access of sufficient light and air, to such an extent as to render the house substantially less comfortable and enjoyable. "Since the statute, as before the statute, it resolves itself simply into the same question, a question of degree." A right to a prospect can be acquired only by grant or cove nant, not by prescription, or it may be acquired by contract (q). Besides the implication of a grant from prescription, there is (n) Per Hatherley, L.C., in Warwick (p) Kelk v. Pearson, L. R. 6 Ch. Ap. First Avenue Hotel Co., 24 Ch. D. 282. (9) Notes to Sury v. Pigot, Tudor's L. Ca. on Real Prop. 203. And see ante, p. 158, note. For instance of such right, see Western v. Macdermot, L. R. 1 Eq. 499, and 2 Ch. Ap. 72. easements of implied grant necessity on severance of tenements. implied a grant of certain easements on the sale of one of two or Chap. XIII. more tenements belonging to the same owner, called 'continuous easements and and apparent' easements, on the principle that a man cannot derogate from his own grant (r); and also in case of easements of necessity,' there is implied a grant (s). Continuous' easements are "those of which the enjoyment is or may be continual, without the necessity of any actual interference by man, as a waterspout or right to light and air" (t). Among such continuous easements, drains have been included (u). Discontinuous' easements, on the other hand, are "those the enjoyment of which can only be had by the interference of man, as rights of way, or a right to draw water" (x). An' apparent' easement is not only one which must necessarily be seen, but such as may be seen or known on a careful inspection by a person ordinarily conversant with the subject (y). Questions have arisen in regard to 'continuous and apparent' easements and easements of necessity,' in cases where the owner of one tenement has sold a part and retained a part, or has at the same time sold the whole in parts to different purchasers. It has been decided (2), on the principle that a grantor shall not derogate from his grant, that-(1) on the grant by the owner of a tenement of part of that tenement as it is then used and enjoyed, there will pass to the grantee all those continuous and apparent easements (that is, quasi-easements), or, in other words, all those easements which are necessary to the reasonable enjoyment of the property granted, and which have been and are at the time of the grant used by the owners of the entirety for the benefit of the part granted; and (2), if the grantor intends to reserve any right over the tenement granted, it is his duty to reserve it expressly in the grant, subject to the exception as to ways and other easements of necessity (a). Therefore, where a workshop and an adjacent piece of land were sold and conveyed by one owner to different purchasers at different times, and on the sale and con (r) Ib. 173. (s) Ib. 177; and Wheeldon v. Burrows, L. R. 12 Ch. D. 57. Ante, p. 362. (t) Gale, p. 25, quoting from the Code Civil. (u) Gale, 90; and per Blackburn, J., in Pearson v. Spencer, 4 L. T. (N. S.), 769. (x) Gale, 25. See another explanation, (y) Pyer v. Carter, 1 H. & N. 916. (a) Per Thesiger, L.J., 49. BB Chap. XIII. veyance of the piece of land, which happened first, the vendor had not reserved the rights of access of light to the windows of the workshop, the purchaser of the land could build so as to obstruct its windows (b). On the other hand, it has been subsequently held, that where the owner of a house and land adjacent sells the house and land to different parties at the same time, the conveyance of the house being expressed to be "with all lights," &c., the purchaser of the land could not block up the lights (c). Extinguishment General words. All the above rights of common and profits à prendre and easements may be extinguished by express release, by unity of seisin or ownership of the dominant and servient tenement (d), or by abandonment. In order to establish abandonment, it is not necessary to show any definite period of non-user: the period of time is only material as one element from which the grantee's intention to retain or abandon his easement may be inferred against him; what period may be sufficient in any particular case must depend on all the accompanying circumstances. It is not so much the duration of the cesser as the nature of the act done by the grantee of the easement, or of the adverse act acquiesced in by him, and the intention in him which either the one or the other indicates, which are material (e). Hitherto the law has been that rights of common which were appendant to the lands in respect of which they were exercised, and which were legally appurtenant, would pass by a conveyance of the property simply (ƒ); but if such rights, though reputed to belong to or usually enjoyed with the lands, were not strictly appurtenant to them, they would not pass by the conveyance of the lands merely, though expressed to be with the appurtenances; in order to pass, there must have been an express or a general description of them; hence, the insertion of what are called (b) L. R. 12 Ch. D. 49. (c) Allen v. Taylor, L. R. 16 Ch. D. 355. (d) As to the re-creation of rights thus extinguished or suspended, see James v. Plant, 4 Ad. & Ell. 749; and Kay v. Oxley, L. R. 10 Q. B. 360. (e) Per Lord Denman, C.J., in Queen v. Chorley, 12 Q. B. 519; and see per Lord Chelmsford, L. C. in Crossley v. Lightowler, L. R, 2 Ch. Ap. 482. See further, on extinguishment, the notes to Tyrringham's Case and to Sury v. Pigot, in Tudor's L. Ca. on Real Prop.; and also as to the right of an owner to the natural support of his lands, his right to the support of his buildings from adjacent land, and by other buildings, &c., see Dalton v. Angus, L. R. 6 Ap. Ca. 740, and Bell v. Love, 10 Q. B. D. 547. (ƒ) 1 Da. 91, 'general words' after the parcels in a conveyance, so as to include Chap. XIII. reputed rights and easements (g). Act, 1881. But now, in conveyances made after 1881, these so-called Conveyancing general words' are implied by virtue of the Conveyancing and Law of Property Act, 1881 (h), if and as far as a contrary intention is not expressed in the conveyance. The Act gives a general description of the rights to be included by implication in a conveyance-(1) of land; (2) of land having houses or other buildings thereon; and (3) of a manor. This IV. Rents. Rent is another instance of an incorporeal hereditament. includes, in addition to the rents spoken of previously (i), a rentcharge, thus clearly defined by Littleton (k) :— "If a man by deed indented at this day maketh such a gift in fee Rent-charge. tail, the remainder over in fee; or a lease for life, the remainder over in fee; or a feoffment in fee; and by the same indenture he reserveth to him and to his heirs a certain rent, and that if the rent be behind, it shall be lawful for him and his heirs to distrain, &c.: such a rent is a rent-charge; because such lands or tenements are charged with such distress by force of the writing only, and not of common right. And if such a man, upon a deed indented, reserved to him and his heirs a certain rent without any such clause put in the deed, that he may distrain, then such rent is rent-seck; for that he cannot come to have the rent, if it be denied, by way of distress." By 4 Geo. II. c. 28, the power of distress was made incident also to a rent-seck; but it was still necessary to give expressly the right of entry (1). Remedies. Now, by the Conveyancing and Law of Property Act, 1881 (m), Conveyancing where, under an instrument coming into operation after 1881, if Act, 1881. and as far as a contrary intention is not expressed in it, a person is entitled to receive out of any land, or its income, any annual sum charged on the land or income, by way of rent-charge or otherwise, not being rent incident to a reversion, he shall have, so far as they might have been conferred by the instrument, the following remedies—namely: (1) distress after twenty-one days' arrear, (g) Forms will be found in the books, specially adapted to different kinds of property. A recent instance of the effect of these words is to be found in Kay v. Oxley, L. R. 10 Q. B. 360; and see Bayley v. Great Western Rail. Co., 26 Ch. D. 434. As to what will pass by the several technical words of descrip tion, see 1 Da. 88 et seq., and 2 Da. ii. (h) 44 & 45 Vict. c. 41, s. 6. (i) Ante, pp. 35, 156, 215. (k) S. 217, ed. by Thomas, vol. i. 445. (7) 2 Da. i. 509, note. (m) 44 & 45 Vict. c. 41, s. 44. Chap. XIII. for arrears; (2) entry and possession till payment, after forty days' arrear, for arrears then, or becoming due during possession; and (3) also after forty days' arrear, whether taking possession or not, by deed (n) to demise the land charged to a trustee for a term by mortgage, sale, or demise, or by any other reasonable means, to raise and pay the annual sum and all arrears due or to become due. The last remedy, except that a power to limit a term is given in lieu of one being limited, which is more common (0), is usually inserted in settlements where it is intended to secure an annuity on the land. Escheat. Redemption. Chief rents. Annuities. Formerly there was no escheat of a rent-charge, it being an incorporeal hereditament. But now by the Intestates Estates Act, 1884, the law of escheat will apply where after the 14th August, 1884, a person dies without issue, and intestate in respect of any estate or interest, whether legal or equitable, in any incorporeal hereditament ( p). Also, by the Conveyancing and Law of Property Act, 1881 (q), provision is made for payment to the person absolutely entitled to the rent, or empowered to dispose thereof absolutely or to give an absolute discharge for its capital value, of such sum as is certified by the Land Commissioners to be its value, and redemption thereby of all perpetual annual charges, including a rentcharge, and a 'quit rent' and a 'chief rent,' but not a tithe rentcharge, or rent reserved on a sale or lease, or rent payable under a grant or licence for building purposes. 'Chief rents' are the fixed rents paid by the freeholders of a manor, and, together with those paid by the copyholders, are called 'quit rents' (r), because thereby the tenant goes free of all other services (s). Rent-charges are often used in wills and settlements to secure an annuity, whether for life or years, or in fee. They are created usually under the Statute of Uses, which relates to them as to estates (t). Where an annuity or rent-charge has been granted, otherwise than by marriage settlement, or will, for one or more life or lives, or for any term of years, or greater estate determin (n) See example, 3 Da. ii. 1049. (9) 44 & 45 Vict. c. 41, s. 45; and 45 & 46 Vict. c. 38 (Settled Land Act, (r) Quieti reditus. (s) 2 Bl. 42. (t) 27 Hen. VIII. c. 10, ss. 4, 5; ante, p. 365, note. See instances in Da. Con. Prec. 394 and 465, |