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[*]The same presumption will be made in favour of a messuage which is erected even somewhat within the boundary of the owner's premises, if it be so near to the boundary that the light coming to the windows be diminished in any sensible proportion by a structure [*]afterwards raised on the adjacent land; and an action will lie for damages sustained by the obstruc

tion (a).

The presumption from long enjoyment will in no case be rebutted by evidence that the right exercised had not an existence previously to the commencement of the twenty years; for the inference (as was before observed with regard to commonable rights) is deduced simply from the user, and the acquiescence of the opposite party, for so great length of time (6).

As, however, user and acquiescence are both neces-. sary, user alone, although for twenty years and unmolested, if it be not sanctioned by the acquiescence of the party against whom the easement is claimed, is insufficient to raise the presumption of a licence or grant. So that if there be satisfactory proof that the usurpation has been unknown, as the apparent acquiescence is then rebutted (for acquiescence implies notice), and the case therefore is deficient in one of the essential grounds to create a presumption, the claim

was given for the defendant. And principle, see Bealey v. Shaw, 6 it is to be observed, that although East, 208 ; Ballard v. Dyson, 1 a rule for a new trial was after- Taunt. 279 ; Jackson v. Stacy, wards granted by the Court of K. 1 Holt. 455. B., yet it was not for a misdirec (a) Cross v. Lewis, 2 Barn, and tion on the point in question. Mar- Cress. 686. im v. Goble, i Camp. 320.

(6) Darwin v. Upton, 2 Saund. For cases decided on a similar by Serj. Wms, n. 175, s and b.

cannot be sustained. Thus, if the premises over-looked by the windows of an adjacent dwelling house were in lease at the time when the privilege was first exercised, and have continued uninterruptedly since in the hands of the same tenant or his representatives, this will be a decisive answer to any argument grounded solely on the user; and the knowledge and permission of the tenant in such case cannot be urged to prove the landlord's acquaintance with the transaction, because as [*]the tenant suffers no immediate injury to his own possession, and will therefore feel almost as little concern as a mere stranger, it is not to be expected that he should be much on the alert to guard the rights of the reversioner(a).

The presumptive right may also be rebutted by showing, that at the time when the user began, the adjoining proprietor was under a personal incapacity of making a license or grant,-as by reason of infancy or coverture. Proof of absence from the kingdom will likewise have the same effect. Nor can the

presumption be made, if the party who is alleged to have authorized the use of the easement, possessed only a particular interest in the estate prejudiced by it(b).

A particular local usage, or bye-law, will also pre clude the supposition of a right which is claimed on the ground of long enjoyment alone. In the city of London there is a custom, that the owner of an an. cient messuage or of the scite of an ancient messuage,

(a) Daniel v. North, 11 East, (6) Barker v. Richardson, 4 372. See also Cross v. Lewis, 2 Barn. & Ald. 579. Barn. & Cress. 686.

towards or over against which the windows of a neighbouring house front, may build to any height he pleases, notwithstanding a consequent obscuration of the adjacent windows, unless some agreement be proved in restraint of the customary right. In a late case, where the validity and extent of this custom came in question, and it was insisted, after an enjoyment of lights for above a century over a building formerly [*]very low, but which had been lately raised, that a grant of the use of the lights corresponding with the late enjoyment ought to be presumed ; Sir T. Plumer, M. R. said, “he could not accede to that argument. To admit it would be to supersede and abolish the custom, which could no longer be applicable to any case.

The city would then be subject to the same rule as every other part of the kingdom”(a) (1).

As user of the easement confers a right to it, so non-user or abandonment of it will occasion its loss : a presumption is thence afforded, that the right has been either relinquished as needless, or has been released for a valuable consideration(b). And it is not necessary for this

purpose, if the act of relinquishment be clear and indubitable, that the non-user should have continued for the space of twenty years. Thus, if a person entitled to ancient lights pulls down the wall containing them, and builds a plain wall in its stead,

(a) Wynstanley v. Lee, 2 9 Rep. 58. Swans. 333. Sed vide Bland v. (6) Lawrence v. Obee, 3 Camp. Mosely, cited in Aldred's case, 514. See also 12 Ves. 265.

Binney v. Hull, 5

(1) Vide Odiorne v. Wade, 5 Pick. 421. Pick. 503.

unless some contemporary act be done evincing an intention to resume the enjoyment within a reasonable period, the right will be determined from the first(a). And though the abandonment be at first ambiguous,as where the windows are merely filled up, or the house is taken down and not rebuilt,—so that no immediate conclusion is furnished against a design to resume the right, and time therefore becomes requisite to establish the supposition; yet if this state of things continues [*]for two or three years (particularly if the adjoining landowner has meanwhile been induced to build, or a purchaser to buy for the purpose of building), the ambiguity will be explained by what has taken place subsequently, and the claim will be disallowed. Indeed to permit the neglected and apparently deserted right to be afterwards acted on, especially under the circumstance of a building having been erected in the mean time, or of a purchase being made for that purpose, and taking into account the ease with which the presumption of a relinquishment might have been prevented, while it would probably contradict the original intention of the party, would certainly disappoint the manifest requirements of justice(b).

IX. As to Rights of Way.Twenty years' peaceable enjoyment confers also a presumptive title to a

(a) Moore v. Rawson, 3 Barn. & Cress. 332.

(6) Moore v. Rawson, 3 Barn: and Cress. 338, 341.


way(a) (1); the law, which never pre-supposes an act to have been wrongful, assumes that the privilege commenced in a sufficient grant. Evidence to rebut that supposition is of course admissible; and if the usage be shown to have suffered interruption(b), or to have formed the subject of perpetual contest(c), or can be accounted for on the ground of leave, favour, or otherwise than under a claim or assertion of right(d), the legal intendment will fail. But slight circumstances (such for instance as make it merely probable [*]that the user originated in mistake) will not be sufficient to destroy the presumption(e) (2).

Although the land over which the way runs has ever since the commencement of the user been in the occupation of tenants, still the neglect of the landlord to interfere during the above period will effectually conclude him, unless it can be shown, that the tenants acted collusively, or the owner's ignorance be distinctly and positively proved : he is otherwise supposed to have been cognisant of the fact, for as the

(a) Per Lawrence, J. 3 East, 397. 301; per Littledale, J. 3 Barn. and (c) Livett v. Wilson, 3 BingCress. 339 ; per Best, C. J. 3 115. Bing. 118; Keymer v. Summers, (d) Per Le Blanc, J. 3 East, Bull. N. P. 74.

302. (6) Hartwright v. Badham, 11 (e) Campbell v. Wilson, 3 East, Price, 383; particularly pp. 394, 294.

(1) Turnbull v. Rivers, 3 M Cord, 131. Cuthbert v. Lawton, iba 194. Gayety v. Bethune, 14 Mass. 49. Hill v. Crosby, 2 Pick. 466. Commonwealth v. Low, 3 Pick. 408. Lawton. v. Rivers, 2 M Cord, 451,

(2) From a user of thirty five years the jury may presume that a ferry had a legal origin, Trotter v. Harris, 2 Jerv. & Young. 285,

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