§ 539 a. Adverse enjoyment must be actionable. It seems, that to constitute an adverse enjoyment of an incorporeal hereditament, the act of enjoyment must be of such a character as to afford ground for an action by the other party. It must be either a direct invasion of his vested rights, or else consequently injurious to their free exercise. The foundation of prescriptive title is the presumed grant of the party whose rights are adversely affected; but where it appears that the enjoyment has existed by the consent or license of such party, no presumption of grant can be made. (a) Thus, in the case of lights, if the building in which they are made is erected on the party's own land, and no building stands on the land of the adjoining proprietor, it has been held, that, against the latter, no right is acquired by lapse of time.1

1 Pierre v. Fernald, 13 Shepl. 436. Shepley, J., in delivering the opinion of the court in this case, said: "Nothing in the law can be more certain than one's right to occupy and use his own land, as he pleases, if he does not thereby injure others. He may build upon it, or occupy it as a garden, grass-plat, or passage-way without any loss or diminution of his rights. No other person can acquire any right or interest in it merely on account of the manner in which it has been occupied. When one builds upon his own land immediately adjoining the land of another person, and puts out windows overlooking that neighbor's lands, he does no more than exercise a legal right. This is admitted. Cross v. Lewis, 2 B. & C. 686. By the exercise of a legal right he can make no encroachment upon the rights of his neighbor, and cannot thereby impose any servitude or acquire any easement by the exercise of such a right for any length of time. He does no injury to his neighbor by the enjoyment of the flow of light and air, and does not therefore claim or exercise any right adversely to the rights of his neighbor. Nor is there anything of similitude between the exercise of such a right and the exercise of rights claimed adversely. It is admitted that the defendant cannot obtain redress by any legal process. In other words, that his rights have not been encroached upon; and that he has no cause of complaint. And yet, while thus situated for more than twenty years, he loses his right to the free use of his land, because he

persons using the way, or of an express admission of the right by the owner of the land. Blake v. Everett, 1 Allen (Mass.), 248. Where no contract is shown, and the use came to the knowledge of the adverse party, or was so open and notorious that such knowledge would be presumed, the use will be presumed to have been under a claim of right, unless the contrary is shown. Arbuckle v. Ward, 29 Vt. 43. As this prescription is founded on the presumption of a grant, it follows that twenty years' user will not establish a right by prescription unless the owner of the subject prescribed for is capable of giving by express grant such a right as is claimed by prescription. Rochdale Canal v. Radcliffe, 12 Eng. Law & Eq. 409.

(a) So if the evidence in the case is such that the jury might find that the enjoyment by the party claiming the right was permitted by the party against whom he seeks to enforce the right, then the

court cannot instruct the jury to presume a grant. Demuth v. Amweg, 90 Pa. St. 181. The possession will be presumed to be adverse unless some license or permission is shown. Steffy v. Carpenter, 37 Pa. St. 41. Cf. Lehigh Valley R. R. Co. v. McFarlan, 30 N. J. Eq. 180. It is held that complaints by the owner of the land of the user, and demands that it be stopped, are competent to prove the non-acquiescence of the owner in such use. Chicago, &c. R. R. Co. v. Hoag, 90 Ill. 339.

§ 540. Two kinds of prescription. There are two kinds of positive prescription: the one being a personal right, exercised by the party and his ancestors, or by a body politic and its predecessors; and the other being a right attached to an hereditament held in fee simple, and exercisable only by those who are seised of that estate; and this is termed a prescription in a que estate.1

§ 541. Conditions essential to prescription. Nothing can be claimed by prescription which owes its origin to, and can only be had by, matter of record; but lapse of time accompanied by acts done, or other circumstances, may warrant a jury in presuming a grant or title by record.2 Nor can anything be claimed by prescription, unless it might have been created by grant; nor anything which the law itself gives of common right. Nor can anything be prescribed for in a que estate, unless it is appendant or appurtenant to land, and lies in grant.3

§ 542. Customary rights. Customary rights differ from prescriptive rights only in this, that the former are local usages, belonging to all the inhabitants of a particular place or district; whereas the latter are rights belonging to individuals, wherever they may reside.*

§ 543. Proof. From this view of the present state of the law on this subject, it appears that the plea of prescription will be maintained by any competent evidence of an uninterrupted, exclusive enjoyment of the subject prescribed for during the period of twenty years, with claim of title, and with the actual or presumed knowledge of those adversely interested. (a) The time of did not prevent his neighbor from enjoying that which occasioned him no injury and afforded him no just cause of complaint. The result of the doctrine is, that the owner of land not covered by buildings, but used for any other purpose, may be deprived of the right to build upon it by the lawful acts of the owner of the adjoining land performed upon his own land and continued for twenty years.

"It may be safely affirmed, that the common law originally contained no such principles. The doctrine as stated in the more recent decisions appears to have arisen out of the misapplication in England of the principle by which rights and easements are acquired by the adverse claim and enjoyment of them for twenty years, to a case in which no adverse or injurious claim was either made or enjoyed." And see Parker v. Foote, 19 Wend. 309; Ray v. Lines, 10 Ala. 63.

1 3 Cruise's Dig. tit. xxxi. c. 1, §§ 8, 9 (Greenleaf's ed. 1856).

23 Cruise's Dig. tit. xxxi. c. 1, § 10 (Greenleaf's ed. 1856); Farrar v. Merrill, 1 Greenl. 17; Battles v. Holley, 6 Greenl. 145; ante, vol. i. § 46; Best on Presumptions, § 111.

83 Cruise's Dig. tit. xxxi. c. 1, §§ 11, 17, 18, 19 (Greenleaf's ed. 1856). 4 Id. § 7; Best on Presumptions, § 79.

(a) Where an uninterrupted user for twenty-one years is proved, the jury will be justified in presuming it adverse, un

less that presumption be rebutted by proof of license or agreement. Steffy v. Carpenter, 37 Pa. St. 41. Ante, § 539, n.

enjoyment by a former owner, whose title has escheated to the State by forfeiture, cannot be added to the time of enjoyment by the grantee of the State, to make up the twenty years; but the times of enjoyment by those in privity with the claimant, as in the relation of heir and ancestor, or grantor and grantee, may be thus joined.1 (a)

§ 544. Same subject. If the evidence of the claim extends over the requisite period of time, the prescriptive title will not be defeated by proof of slight, partial, or occasional variations in the exercise or extent of the right claimed. Thus, if a watercourse is prescribed for to a fulling-mill, but the party has converted it into a grist-mill; 2 or, if the subject of prescription be a towing-path along the banks of a navigable river, and it has been converted by statute into a floating harbor,3-the right is not thereby lost: for, in the former case, the substance of the right is the mill, and not the kind of mill to which the same propelling power was applied; and, in the latter case, the use made by the public was essentially the same as before, namely, for facility of navigation. So, proof of the exercise of the right whenever the party had occasion to do so, as, for example, the right to take clay to make bricks, is sufficient, without showing that it was in fact exercised at all times of the year, though it is so alleged in the plea. Thus, also, the plea will be supported by proof of a right, larger than the right claimed, if it be of a nature to include it.5 (b) And if the prescription is for a common appurtenant to a

1 Sargent v. Ballard, 9 Pick. 251.

2 Lutterel's Case, 4 Co. 86.

And see Blanchard v. Baker, 8 Greenl. 253.

Rex v. Tippett, 3 B. & Ald. 193; Codling v. Johnson, 9 B. & C. 933.

4 Clayton v. Corby, 8 Jur. 212; 2 Ad. & El. N. s. 813.

5 Bailey v. Appleyard, 8 Ad. & El. 167; Bailiffs of Tewksbury v. Bicknell, 1 Taunt. 142; Welcome v. Upton, 6 M. & W. 540, per Alderson, B.; Buskwood v. Pond, Cro. El. 722.

(a) An adverse occupation of a fishery by A for a number of years, but afterwards abandoned, cannot be added to a subsequent occupation by B, to give B a prescriptive right, although A, after such abandonment, released all his right in the fishery to B. Nor will the occupation thereof by B for several years, while in the employment of A, give B any rights by prescription against C, although A claims adversely to C. McFarlin v. Essex Company, 10 Cush. 304. See also Sawyer v. Kendall, Id. 241; Kilburn v. Adams, 7 Met. 33.

(b) When a right of way to certain lands exists by adverse use and enjoyment only, although evidence of the exercise of the right for a single purpose will not prove a right of way for other purposes, yet proof that it was used for a variety of purposes, covering every purpose required by the dominant estate, in its then condi tion, is evidence from which may be inferred a right to use the way for all purposes which may reasonably be required for the use of that estate while in the same condition. Parks v. Bishop, 120 Mass. 340 Sloan v. Holliday, 30 L. T.

house and twenty acres, it will be supported by proof of a right appurtenant to a house and eighteen acres.1 But the prescription, being an entire thing, must be proved substantially as laid; 2 and therefore a variance in any part, material or essentially descriptive, will be fatal. Thus, if the prescription is for common for commonable cattle, and the evidence is of common for only a particular species of commonable cattle; or, if the prescription pleaded is general and absolute, but the proof is of a prescriptive right coupled with a condition: or subject to exceptions; 5 or if the right claimed is of common in a certain close, and it appears that the claimant has released his title in part of the land: 6 in these, and in the like cases, the plea is not supported.

§ 545. Defeated by interruption. The claim of a prescriptive right may be defeated by evidence showing that it has been interrupted within the legal period; but this must be an interruption of the right, and not simply an interruption of the use or possession. (a) Thus, if estovers for a house be by prescription, and the house be pulled down and rebuilt, the right is not lost.8 Nor will the right be destroyed by a tortious interruption, nor by a dis

1 Gregory v. Hill, Cro. El. 531; Rickets v. Salwey, 2 B. & Ald. 360.

2 See ante, vol. i. §§ 63, 67, 71, 72; Paddock v. Forrester, 1 Dowl. N. C. 527; Drewell v. Towler, 3 B. & Ad. 735.

8 Bull. N. P. 59. And see Rex v. Hermitage, Carth. 241.

Gray's Case, 5 Co. 78 b; Lovelace v. Reignolds, Cro. El. 563; Paddock v. Forrester, 3 M. & G. 903.

5 Griffin v. Blandford, Cowp. 62.

6 Rotherham v. Green, Cro. El. 593.

7 Co. Lit. 114 b; 2 Inst. 653, 654; Canham v. Fisk, 2 C. & J. 126, per Bayley, B.; Carr v. Foster, 3 Ad. & El. N. s. 581.

84 Co. 87; Cowper v. Andrews, Hob. 39.

(N. S.) 757; Williams v. James, L. R. 2 C. P. 577; Dare v. Heathcote, 25 L. J. (N. s.) Exch. 245. But if the character and condition of the dominant estate are substantially altered, as in the case of a way to carry off wood from wild land, which is afterwards cultivated and built upon, or of a way for agricultural purposes, to a farm which is afterwards turned into a manufactory or divided into building lots, the right of way cannot be used for new purposes, required by the altered condition of the property, and imposing a greater burden upon the servient estate. Atwater v. Bodfish, 11 Gray (Mass.), 150; Parks v. Bishop, 120 Mass. 340; Wimbledon Commons v. Dixon, I.. R. 1 Ch. Div. 362; Willes, J., in L. R. 2 C. P. 582. So if the prescription is for the right to empty a drain upon another's land, if

during the twenty years the drain has been enlarged, deepened, or varied in its course and termination, the claim cannot be supported. Cotton v. Pocasset Manuf. Co., 13 Met. (Mass.) 429, 433.

(a) In order to constitute such interruption of the enjoyment of a right as will prevent the acquisition of a title by prescription, a mere assertion of exclusive right is not enough; there must be some act which will prevent the use of the easement, at least for the time being. So placing a gate in an alley-way, which any one could use who chose, is not enough. Demuth v. Amweg, 90 Pa. St. 181. bringing a suit for trespass against the party claiming such a right of way, is a sufficient interruption of the enjoyment to stop the acquisition of an easement. Ferrell v. Ferrell, 57 Tenn. 329.

But

continuance by the lease of a terre-tenant.1 It may also be defeated by proof of unity of title to the easement and to the land to which it was attached, where both titles are of the same nature and degree; (a) or, by evidence of the final destruction of the subject to which the right was annexed; 2 or, by showing that its commencement and continuance were by the agreement and consent of the adverse party, or by his express grant, within the legal period. But proof of an older grant will not defeat the claim, if it appear to be in confirmation of a prior right. And if the exercise of the right claimed was by consent of one who had only a temporary interest in the land, as, for example, a tenant for life, his negligence in not resisting the claim will not be allowed to prejudice the owner of the inheritance. The acquiescence of the owner, however, may be inferred from circumstances; 5 and where the time has once begun to run against him, the interposition of a particular estate does not stop it.6

§ 546. Usage and its effect. It is hardly necessary to add, that, though the usage proved may not be sufficiently long to support the claim of a right by prescription, yet, coupled with other circumstances, it may be sufficient to support the plea of title by a lost grant, which the jury will be at liberty, and sometimes be advised, to find accordingly.7

1 2 Inst. 653, 654.'

2 Co. Lit. 114 b; 3 Cruise's Dig. tit. xxxi. c. 1, §§ 35, 36 (Greenl. ed. 1856); 6 Com. Dig. 83, tit. Prescription, G; Morris v. Edgington, 3 Taunt. 24.

8 Addington v. Clode, 2 W. Bl. 989; Biddulph v. Ather, 2 Wils. 23; Best on Presumptions, § 87.

Bradbury v. Grinsell, 2 Saund. 175 d, note by Williams; Daniel v. North, 11 East, 372; Barker v. Richardson, 4 B. & Ald. 579; Runcorn v. Doe, 5 B. & C. 696; Wood v. Veal, 5 B. & Ald. 454. See also Gale & Whateley on Easements, pp. 108117. So if it was by mutual mistake. Campbell v. Wilson, 3 East, 294.

5 Gray v. Bond, 2 B. & B. 667.

6 Cross v. Lewis, 2 B. & C. 686; Best on Presumptions, § 89.

7 Bealey v. Shaw, 6 East, 208; ante, vol. i. §§ 17, 45, and cases there cited; Best on Presumptions, §§ 86-90; Gale & Whateley on Easements, pp. 93-95.

(a) Easements which are apparent and continuous, though they lie dormant during the unity of title, revive when the dominant and servient estates are severed. Hurlburt v. Firth, 10 Phila. (Pa.) 135.

If the easement is not destroyed by

such unity of title, yet the time during which such unity lasts cannot be included by the party claiming the easement by prescription, so as to make out twenty years' enjoyment. Mansur v. Blake, 62 Me. 38.

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