tenant for years of a house may prevent the accrual of an easement by taking a tenancy of the adjacent servient land; and he cannot be said to prejudice thereby his landlord's right, because the landlord has no right before the lapse of twenty years (g).-Upon the same principle a tenant in occupation of the alleged dominant tenement cannot maintain a prescriptive claim by any enjoyment over another tenement of his lessor, because all the tenant's rights are derived from his landlord, who could not have an enjoyment as of right of an easement over his own property (h). Such is the position of copyholders claiming rights over the waste of the manor, which is vested in the lord as well as the freehold of the copyhold tenement; their rights are not prescriptive, but appurtenant to Unity of title their tenements by custom of the manor (i).—“ Where a person is trustee of that which is to be the dominant tenement, and is beneficial owner of that which is to be the servient tenement, there is not such a unity of possession as prevents the application of the statute or the application of the doctrine of a lost grant." Thus where a church was vested in the incumbent of the benefice as trustee for the use of the parish, and adjacent glebe land was vested in the incumbent for his own use, it was held that notwithstanding such unity of possession an easement of light over the glebe land might be acquired as appurtenant to the church (j). in trustee. Enjoyment of light as of right. Section 3 of the Prescription Act, providing for the enjoyment of light, omits the expression "as of right,' which occurs in sect. 2 with regard to other easements; and the omission, it is said, is justified because such condition is inapplicable to the negative easement of light, there being no claim of right implied against the adjacent tene Chamber Colliery Co. v. Hopwood, (g) Hatherley, L. C., Ladyman (h) Warburton v. Parke, 2 H. & N. 64; 26 L. J. Ex. 298; Gayford v. Moffatt, L. R. 4 Ch. 133; Daniel v. Anderson, 31 L. J. C. 610. 8 See post, p. 568. Eccles. Commis. v. Kino, L. R. 14 C. D. 213; 49 L. J. C. 529. ment in opening a window for the access of light. The omission, however, is immaterial as regards the actual enjoyment required as the basis of prescription, which must be "in the character of an easement, distinct from the enjoyment of the land itself," for this as for all other easements (k). Sect. 5 of the Act requires that in pleading easements it must be alleged that the enjoyment was "as of right," and no exception is there made of easements of light (1).—Under the above sect. 3 one of two tenants of separate tenements under the same landlord may acquire against the other an easement of light during their tenancies by an enjoyment of twenty years; though the easement would be extinguished upon the tenements reverting in possession to the landlord (m). ment. The rule of the civil law, that possession must not be Secret enjoyclam or secret, “is so far adopted in English law that no prescriptive right can be acquired where there is any concealment, and probably none where the enjoyment has not been open" (n). It is sufficient if the enjoyment is so far open that the owner of the servient tenement has the means of information, if he please to inquire; and he will be taken to know what he might ascertain by inquiry. But if upon inquiry information were improperly withheld, or false or misleading information given, or anything done in order to keep material facts from his knowledge, the enjoyment in such case would be clam or secret, and would not support a prescriptive claim. Thus, in the case of a building erected upon the boundary line of a tenement, the owner of the adjoining tenement must be presumed to have knowledge of the fact that such a building cannot ordinarily stand without lateral support, (k) Harbidge v. Warwick, 3 Ex. 552; Flight v. Thomas, 11 A. & E. 695; Plasterers' Co. v. Parish Clerks' Co., 6 Ex. 630; 20 L. J. Ex. 362. (1) Ante, p. 288. (m) Frewen v. Phillips, 11 C. B. N. S. 449; 30 L. J. C. P. 356; (n) L. Blackburn, Dalton v. An- Enjoyment by licence or agreement. and he must have imputed to him knowledge that an easement of support would be acquired against him unless he interpts or prevents it. But if a building be erected upon examited land so as to require extraordinary support from the sijining hand the right could not be acquired by prescription unless the owner of the servient land knew or had the means of knowing the fact of the excavation y. Where contiguous houses in a street had fallen out of the perpen frular and leaned one upon the other, it was held that their dependence for support was not so manifest and open as to found a prescriptive claim to its continuance An enjoyment by licence asked and given, or by any agreement importing a licence, will not found a prescriptive title. "The asking leave from time to time within the forty or twenty years, breaks the continuity of the enjoyment as of right, because each asking of leave is an admission that, at that time, the asker had no right; and therefore the evidence of such asking within the period is admissible under a general traverse of the enjoy ment as of right. It will follow that not only an asking leave but an agreement commencing within the period may be given in evidence under the general traverse, notwithstanding the words of the fifth section (that if the party rely on any matter not inconsistent with the simple fact of enjoyment, the same shall be specially alleged and shall not be received in evidence on any general traverse or denial of such allegation'); for the party cannot and does not rely on it as an answer to an enjoyment as of right which he confesses, nor as avoiding any such enjoyment during the time covered by the agreement; but as showing that there was not at the time when the agreement was made an enjoyment as of right." A licence or (0) Selborne, L. C., Dalton v. Angus, L. R. 6 Ap. Ca. 801; L. Blackburn, ib. 828. (p) Partridge v. Scott, 3 M. & W. 220. (4) Solomon v. Vintners' Co., 4 H. & N. 585; 28 L. J. Ex. 370. agreement which covers the whole period of enjoyment, and shows a right during all that time, is a matter not inconsistent with the alleged enjoyment and therefore in the words of the statute "the same shall be specially alleged " ("). By the Prescription Act, sect. 2, as to easements gene- Parol licence. rally, enjoyment for forty years gives an absolute title, "unless it shall appear that the same was enjoyed by some consent or agreement expressly given or made for that purpose by deed or writing." And sect. 3 provides the same exception as to the twenty years' enjoyment of lights. In these cases a licence asked and given or an agreement made by parol is not within the exception of the statute, and therefore, if covering the whole period of enjoyment, it cannot be alleged in answer to the claim; but a licence asked or an agreement made within the alleged periods of enjoyment, whether in writing or not, contradicts the allegation of enjoyment as of right and so defeats the claim (s). Where a prescriptive right has been once acquired, it will not be affected by a subsequent act of the dominant owner in asking or accepting a licence, unless it amounts to a surrender of his vested right (t). Where the owner of a house signed a document in Agreement writing to the effect that he had opened certain windows by leave of the owner of the adjacent land, and that he would at the request of him or his heirs or assigns at any time thereafter block up the same, and in the meantime would pay him his heirs and assigns sixpence a year for the indulgence; it was held to be an agreement within the exception of the statute, sect. 3; that it was binding upon the party who signed it, and upon a purchaser of the house with notice of it; and that it might be enforced in equity independently of its effect under the statute. It (r) Per cur. Tickle v. Brown, 4 A. & E. 383; Monmouth Canal Co. v. Harford, 1 C. M. & R. 631; Beasley v. Clarke, 2 Bing. N. C. 705. See Kinloch v. Nevile, 6 M. & W. 795. (8) Tickle v. Brown, supra. (t) French Hock v. Hugo, L. R. 10 Ap. Ca. 336; 54 L. J. P. C. 17. Enjoyment by sufferance. Continuity of enjoyment. was further held upon the construction of the agreement that it remained in force until the request to block the windows was made and acted upon; though if the money were left unpaid for twenty years it would be evidence that the agreement had been abandoned (u). An exception in a conveyance of land, of all "rights restricting the free use of the adjoining land or the conversion of such land at any time hereafter for building" was held to apply only to rights at the time of the conveyance, and not to operate as a consent or agreement within the statute, in respect of future enjoyment and acquisition of such rights (v).—Where the owner of a building which rested on the wall of the servient tenement, had entered into an agreement with the owner of the latter, upon notice given, to make a road over the site of the building; it was held that his enjoyment of the easement for the building was not of right, but determinable at any time under the agreement (w). The exercise and enjoyment of an easement by the dominant owner is sometimes attended with beneficial enjoyment by the servient owner; as in the case of a watercourse discharging into the servient tenement which is beneficial to the latter, or of diverting a watercourse from the servient tenement the flow of which would be prejudicial. But in such cases the servient owner acquires no right to the continuance of the easement and to the incidental advantages arising to him from it, his enjoyment being by sufferance only and not as of right, and subject to withdrawal at any time (x). The enjoyment, both at common law and under the Prescription Act must be continuous during the periods (u) Bewley v. Atkinson, L. R. 13 C. D. 283; 49 L. J. C. 193. (v) Mitchell v. Cantrill, L. R. 37 C. D. 56; 57 L. J. C. 72; cited ante, p. 271. (w) Tone v. Preston, L. R. 24 C. D. 739; 53 L. J. C. 50. (x) Arkwright v. Gell, 5 M. & W. 203; Mason v. Shrewsbury and H. Ry., L. R. 6 Q. B. 578; 40 L. J. Q. B. 293; ante, p. 233. |