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with had for twenty years been enjoyed at a certain height by the owner of a water-mill supplied by the

was

A

stream; it is resolved, than an action brought by him against the proprietor of lands higher up the stream, for a diversion of the water by deepening and widening the ancient navigable river, could not be maintained (a).

Lastly, it is to be noticed, that as a right to a particular flow or supply of water, or to a certain mode of its occupation, may be gained by long enjoyment, such right may in like manner be afterwards lost by long non-user (b).

To the cases in the three preceding sections we may add the following, principally because the decision proceeded on the same general rule,-viz., that twenty years unmolested use of an easement constitutes primá facie evidence of title. In the case alluded to, it appeared that the owners of a fishery, or their lessees, had for above twenty years, publicly landed their nets on property belonging to a third person, and had at various times repaired and improved the landing-place : under these circumstances, the jury were held to be fully warranted in presuming a grant of the right of landing to the proprietors of the fishery, notwithstanding a total want of evidence on their part to show that the owner of the premises knew of the encroachment (c).

(a) Vooght v. Winch, 2 Barn. and Ald. 662.

(b) Per Lord Erskine, 12 Ves.

(c) Gray v. Bond, 2 Brod. and Bing. 667.

As no improper supplement to this chapter, it may be remarked, that where the acquisition of a right evidenced by long enjoyment, cannot from peculiar circumstances be properly referred to a grant, the courts will adopt such other supposition as agreeing with the facts of the case refers the alleged right to some other lawful origin. Thus the presumption of a reservation is sometimes relied upon;-as in cases, where the asserted right or privilege is connected with or extends over property which formerly belonged to the party claiming or his ancestors. Examples of this are sometimes afforded in the means resorted to for the purpose of supporting rights to open and work mines,-to cut and carry away timber,-and for the lord of a manor to make occasional approvements without the assent of the commoners (a).

(a) Stanley v. White, 14 East, 332; Folkard v. Hemmett, 5 T.

R. 417, n.; Bateson v. Green, Ib. 411.

CHAPTER XVII.

PRESUMPTIONS OF FACT CONTINUED.

Of presumed Dedications of Rights of Road to the

Public.

WHETHER time be necessary to create the presumption of the dedication of a road to the public, is a point on which there has not been a universal concurrence of opinion. Mr. Justice Chambre maintained the negative proposition. He said, that no particular time was necessary for such purpose. A dedication was not, like a grant, presumed from length of time. If the act of dedication were unequivocal, it might take place immediately as where a man builds a double row of houses with a street between opening at each end into an ancient public road, and sells or lets the houses; in such case the street becomes a highway instantly (a).

The instance put by the learned Judge is an extreme case, the strongest perhaps which could be offered in support of his opinion. But even, in such case, it is conceived, a strict application of the rule would be a Before the supposed street were

severe measure.

(a) 5 Taunt. 137. See also per Lord Ellenborough in Rex v.

Lloyd, 1 Camp. 260; and Lade v.
Shepherd, Stra. 1004.

finished, the question of dedication clearly could not arise; for although a way would be requisite while the houses were building for the purpose of carrying materials, it would not be necessary, in order to exclude the public, that such way should be inclosed (a). If so, surely the lapse of a few days or of a few weeks after the completion of the street, before the erection of a gate at one or each end of it, could not amount to decisive evidence of a dedication, or prevent the owner of the soil from confining the general use of the road (as might always have been his intention) to the accommodation of the particular householders (b). It seems unreasonable to contend that the usage becomes so established in this short period as to cause the determination of it to be felt and resented as the deliberate invasion of a public right.

Other Judges have viewed the subject in a very different light from Mr. Justice Chambre: and it is certain, that, in every instance where the question has come distinctly before the courts, time was considered as an important feature in the case. It may therefore be confidently laid down, that whenever a public right of way in a road or street is claimed on the ground of a presumptive dedication, it is essential, in order to establish such presumption, that the owner of the soil has for some considerable period submitted to the general usage.

What precise length of time may be considered de

(a) 5 Taunt. 135, 140, 142.

(b) See Roberts v. Karr, 1 Camp. 262.

monstrative of the land-owner's acquiescence has not yet been determined. In one case (a) six years, and in another before Lord Kenyon (b), where the user begun during the existence of a lease which had since expired, eight years were held sufficient. But these decisions cannot be implicitly relied upon. The incompetency of a lapse of two or three years to afford the presumption of a dedication, has been expressly decided (c); and Lord Kenyon's opinion in the case above referred to has by no means received the gene

If, said the Lord

ral approbation of later Judges (d). C. J. Mansfield, eight or six years be enough to show a relinquishment to the public, why may not one? why not half a year? It would then become necessary for every reversioner coming into possession of his estate after a lease, instantly to put up fences all round to prevent dedications (e). However, it seems not improbable, that where, as in the case put by Mr. Justice Chambre, an intention to dedicate is plainly and significantly shown from the outset, submission to the public usage for six or eight years, or possibly even for a less period, would preclude the owner of the soil from re-asserting his ancient right.

But, under whatever circumstances a road begins to be publicly used, unmolested enjoyment of it for

(a) See the case alluded to by Lord Kenyon in the note 11 East,

376.

(b) Rugby Charity v. Merryweather, 11 East, 376, n.

(c) Rex v. Hudson, Stra. 909;

Wood v. Veal, 5 Barn. and Ald. 454.

(d) See per Heath, J., 5 Taunt. 140; per Holroyd and Best, Js. 5 Barn. and Ald. 457.

(e) See 5 Taunt. 142.

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