Obligation of servient owner. gives the right to maintain the well or the pump and to do what is necessary to keep it in order (h).—Upon this principle the right to build a bridge over a railway was held to give the accessory right to do everything reasonably necessary for the principal right of building the bridge, as to place scaffolding upon the soil of the railway, and for workmen to cross the line (i). So a right of building upon the surface would in general carry the accessory right of excavating the necessary foundations and disposing of the material excavated (j). There is no implied obligation upon the servient owner to repair for the benefit of the dominant owner, or to do anything beyond suffering the easement. "The additional obligation to repair could only be imposed upon the owner of the servient tenement by an express stipulation to that effect in the instrument creating the easement; or by some prescriptive right to the repair as well as to the easement." Nor, in general, are repairs done by the servient owner upon his own property any evidence of obligation on him to repair; as they must be presumed to be done for his own convenience, and not in consequence of any obligation (4).-The servient owner can do nothing upon his tenement that obstructs the right of the dominant owner to repair. Thus in the case of an easement of water supply through pipes the owner of the land was restrained from building over the pipes in such a manner as would prevent access for cleaning and repairing them (7). But the dominant owner is only entitled to such access as is reasonably necessary to repair the work, and not to any particular mode of access in one direction rather than another (m). (h) Pomfret v. Ricroft, 1 Wms. Saund. 321; Lord Blackburn, Smith v. Archibald, L. R. 5 Ap. Ca. 512. (i) Clarence Ry. Co. V. Great Northern Ry. Co., 13 M. & W. 706. (j) Robinson v. Milne, 53 L. J. C. 1070. (k) Stockport Highway Board v. Grant, 51 L. J. Q. B. 357; ante, p. 211. (1) Goodhart v. Hyett, L. R. 25 C. D. 182; 53 L. J. C. 219. (m) Birkenhead v. London & N. W. Ry., L. R. 15 Q. B. D. 572; 55 L. J. Q. B. 48. Prescription-distinction of easements by prescription and grant. Enjoyment required for prescription-enjoyment as of right-in right Secret enjoyment. Enjoyment by licence or agreement-by sufferance. Continuous enjoyment-voluntary discontinuance-impossibility of enjoyment-unity of possession. Enjoyment for period next before action. Interruption of enjoyment--submission of dominant owner. Presumption from enjoyment short of prescribed period. Disabilities of servient owner-suspension of computation-interruption during disabilities-exclusion of tenancy for life or years. Prescription is the title to an easement derived from Prescription. continued use and enjoyment. Easements, being incorporeal hereditaments incapable of possession, are said to lie in grant; and prescription imports a grant as the origin of title. Corporeal hereditaments, being held in possession, are not the subject of prescription; but present possession of a corporeal hereditament is presumptive evidence of title, and continued possession by the Statutes of Limitation bars adverse claims (a). An easement derived from prescription is defined and Distinction of easements by limited exclusively by the evidence of use and enjoyment; prescription for though a grant is implied in law, the usage alone and grant. indicates the nature and extent of the right impliedly granted (b). On the other hand an easement created by Easements by express grant is defined and limited exclusively by the terms of the grant; and evidence of usage is not admissible to control the clear words of the grant. Evidence may be given of the state and circumstances of the tenements at (a) Co. Lit. 113b; ante, p. 185. (b) Ballard v. Dyson, 1 Taunt. 279; ante, p. 206. grants. of grant. the time of the grant in order to apply the language. Only if the language of the grant be obscure or doubtful, or if it be expressed in general terms, is evidence of the usage under it admissible to construe and explain the Construction grant, though not to control it (c).-Again, in the construction of a grant the maxim is applied that a grant must be construed most strongly against the grantor. But with prescriptive easements derived from use only, where there are no words to construe, the presumption of right is always against the grantee; who can claim nothing beyond what the usage proves (d). Accordingly, an express grant of a way is construed presumptively to mean a general way for all purposes; but a prescriptive claim of a way is limited by the purposes for which the way has been in fact used (e). Upon the same principle an express grant of a drain for building land was construed to be general and not restricted to the use of the houses then built (f). Prescription at common law. Prescription is regulated partly by the common law and partly by the Prescription Act. Prescription at common law originally required a use and enjoyment of the right from "time immemorial," or, as it was expressed, "during time whereof the memory of man runneth not to the contrary." Proof of use and enjoyment during living memory was accepted as presumptive evidence of the same having continued from time immemorial; but proof of a commencement or of any interruption of the use at any time however remote defeated the immemorial preTime imme- sumption. The time required to establish a title to land was equally indefinite until limited from time to time by morial. (c) Chad v. Tilsed, 2 B. & B. 403; Wood v. Saunders, L. R. 10 Ch. 582; 44 L. J. C. 514; De la Warr v. Mills, L. R. 17 C. D. 535; 49 L. J. C. 487. (d) Willes, J., Williams v. James, L. R. 2 C. P. 581; 36 L. J. C. P. 259; Wood v. Saunders, L. R. 10 Ch. 584; 44 L. J. C. 519; New Windsor v. Stovell, L. R. 27 C. D. 672; 54 L. J. C. 116. (e) Ante, p. 206. (f) New Windsor v. Storell, L. R. 27 C. D. 665; 54 L. J. C. 116. statutes; of which the Statute of Westminster, 3 Edw. I. c. 39 (a.d. 1275) fixed the date for alleging seisin in a writ of right at the beginning of the reign of Richard I., A.D. 1189. By an equitable extension of this statute the same date was adopted by the Courts for the prescriptive title of easements and other incorporeal hereditaments; and evidence of commencement or interruption before that date became inadmissible (g). Accordingly, the production of a grant or other title destroyed the prescriptive title by showing the true origin; unless it could be shown that the grant was in confirmation of an earlier right, or that it was earlier than the above date (h).—Subsequent statutes limited various periods instead of the fixed date of the statute of Edward I. The statute 32 Hen. VIII. c. 2, limited the writ of right to sixty years, and possessory actions to fifty years, after the right first accrued. The statute 21 James I. c. 16, A.D. 1623, limited the possessory action of ejectment for the recovery of land to twenty years after the right accrued. But these statutes were not extended by the Courts to incorporeal hereditaments and easements in the same manner as the earlier statute of 3 Edw. I.; and immemorial prescription at common law was still required to date, presumptively at least, from the reign of Richard I. (i). In order to meet the cases where a prescriptive claim Non-existing was defeated by proof of commencement or interruption grant. within legal memory, the Courts introduced the legal fiction of a later grant, the non-existence of which in point of fact might be attributed to loss or other causes. The use and enjoyment which was insufficient in duration to maintain an immemorial prescriptive title then became available as secondary evidence of the lost or non-existing grant. Twenty years of uninterrupted enjoyment was generally adopted as the ground upon which the grant of an easement could and ought to be presumed, by analogy to the same limit appointed by statute for the protection from adverse claims of the possession of the land itself. The presumption cannot be rebutted by evidence merely that no grant was in fact made, any more than such evidence can be used to rebut immemorial prescription. For the presumption arises from the fact of the use and enjoyment, which must be attributed, if possible, to a rightful origin, and therefore to a grant as being technically the only legal origin of the right. But the presumption may be rebutted, or rather it does not arise, if it appears that the use and enjoyment of the easement, was not of such a kind as would found a prescriptive title, as where it is secret or precarious or wrongful. The presumption may also be rebutted by showing that a grant was legally impossible; as by reason of the incapacity of the grantor or other circumstances of the claim (j).— According to the above doctrines, where a way had been used as of right for twenty years without interruption, it was held that a grant of the right might be presumed ; although it appeared that twenty-six years before there had been an Inclosure Act extinguishing all former rights of way over the spot in question (). So it was held that a grant might be presumed from twenty years' enjoyment, though it appeared that before that time there had been a union of the possession of the dominant and servient tenements during which all easements and appurtenant rights (j) Lord Blackburn, Dalton v. Angus, L. R. 6 Ap. Ca. 812. But see Brett, L. J., De la Warr v. Miles, L. R. 17 C. D. 591, who there says: "The doctrine with regard to the presumption of lost grants is at the present moment the subject of much controversy. For my part I have always been of opinion, that if a judge is asked to find the fact of a grant and to say that it has been lost, he must have ground for believing that it was so." (k) Campbell v. Wilson, 3 East, 294. |