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tenants suffer an immediate and palpable injury, and their own interest as well as that of the landlord is affected, it is only fair to conclude, that they would duly apprize the latter of the usurpation(a). The circumstance that within a short time previously to the twenty years commencing the way did not exist is likewise immaterial; for the presumption is founded solely on the length of recent enjoyment(b).
But a right of way thus attested is held to be limited and qualified, with regard to the nature and extent of such right, by the mode of actual enjoyment. If the user has been confined to particular purposes, an unrestricted right cannot be pretended. Accordingly, it has been resolved, that evidence of a presumptive right of way for carriages does not necessarily argue a right of way for all manner of cattle(c). And so, in a late case at N. P., where a right of way for agricultural [*]purposes was claimed and proved by the constant practice of carrying corn and manure ; it was held, that such qualified enjoyment did not confer a right to use the way for general purposes, and consequently, that a claim to carry lime, or the produce of a quarry over it, at all times, and for other than agricultural purposes, could not be sustained(d).
Whether a way of necessity be commensurate only with the use made of the premises to which it leads at the time of the conveyance, or extends to all uses
(a) See per Le Blanc, J. 11 (d) Jackson v. Stacy, 1 Holt, East, 375.
455. Cases decided on a similar (6) Campbell v. Wilson, supra. principle are Martin v. Goble, 1
(c) Ballard v. Dyson, 1 Taunt. Camp. 320, and Bealey v. Shaw, 279,
6 East, 208.
to which they may afterwards be applied, remains in some measure doubtful; but it is most probable that the courts would hold the right to be unrestricted. The contrary doctrine, in truth, could proceed only on the supposition, which in general cases it would be monstrous to maintain, that the premises were sold subject to an agreement for their perpetual appropriation to a particular purpose.
It remains to mention, that as twenty years' enjoyment of a right of way unexplained affords the presumption of a grant ; so non-user for such period unless accounted for affords that of a release or surrender of the right(a) (1). The reason, as was said by Lord Erskine, is plain,—that no man possessed of a right, convenient or necessary to him, would for so long a time wholly abstain from the exercise of it(b).
[*]X. As to Rights of Water.—To support a claim to a run of water, evidence must be given either of an actual grant or licence or of long uninterrupted enjoyment, the latter circumstance (if at least of twenty years' continuance and unanswered) being held to afford the presumption of a grant(c). And this presumption will not be rebutted, though the en
(a) See per Abbott, C. J., 2 (c) Per Lord Ellenborough, 6 Barn. and Ald. 791 ; and per Lit- East, 215; per Sir J. Leach, V. tledale, J. 3 Barn. and Cress. 339. C., 1 Sim. and Stu. 203.
(b) See 12 Ves. 265.
(1) Wright v. Freeman, 5 Har. & Johns. 477. Hoffman v. Savage, 15 Mass. 130. Hatch v. Dwight, 7 Mass. 289. Sed vide White v. Crawford, 10 Mass. 183.
joyment appear to have commenced at a time, when the estate from which the water is derived was in the occupation of a lessee, provided only that twenty years have elapsed since the lease terminated(a). It also seems to have been thought, that ineffectual attempts meanwhile to prevent or put an end to the use of the watercourse, serve rather to confirm than weaken the presumption of right(b).
After a possession for the period above specified, the owners of the land, through which a run of water passes, or wherein the spring is situate, are so far bound that not only they cannot lawfully divert the flow, but cannot even cut a drain which tends to diminish the quantity(c).
With regard to rivers and ancient streams the general rule is, that every proprietor of land on either bank is entitled to the benefit of the water as it subsists in its natural state(1). No single proprietor, without [*]the consent of the others, has a right to
(a) Finch v. Resbridger, 2
(6) Ibid. Vern. 390. The same case is re (c) Bush v. Western, Prec. Cha. ported in Gilb. Eq. Ca. p. 3, by 530; Balston v. Benstead, 1 Camp. the name of Lord Guernsey v. 463. Rodbridges.
(1) See Tyler v: Wilkinson, 4 Mass. 397. Hazard v. Robinson, 3 Mason, 272. Reid v. Gifford, 1 Hopk. 416. Gardner v. Trustees of Newburgh, 2 Johns. Ch. 162. Strickler v. Todd, 10 Serg. & Rawl. 63. Anthony v. Lapham, 5 Pick. 175. Manning v. Smith, 6 Conn. R. 289. Strong v. Benedict, 5 Con. 210. Hart v. Chalker,
Bullen v. Reynolds, 2 N. H. R. 255. Curtis y. Jackson, 13 Mass. R. 514. Coulter v. Hunter, 4 Rand, 58. Russel v. Scott, 9 Cowen, 279. Reed v. Goodyear, 17 Serg. & Rawle, 353.
make use of the flow in such a manner as will be to their prejudice. He has power neither to apply it to any purpose which occasions a return of the water on the land above, or a diminution of the quantity below, nor to exercise any trade, or do any other act whatever, by which the water may be deteriorated in quality. But it must not be concluded from these remarks, that for the purpose of establishing a right in any individual landholder to a particular mode of using a river or stream, the agreement of the other landowners whose interests are affected should expressly appear. Consent by implication, it has been determined, will equally avail : and this may be inferred from unmolested continuance of the particular mode of enjoyment for twenty years ; acquiescence for such period, in the present as in other instances of usurped privileges, being equivalent in legal construction to actual permission(a)(1).
But though the common right is capable of being thus abridged and modified in favour of any single proprietor, yet the other proprietors are as before entitled to the free use of such part of the water as continues to flow. And to this it cannot be effectually objected, as proof of a still more enlarged and ex
(a) Bealey v. Shaw, 6 East, lor, 1 Sim. and Stu. 203 ; per 208; Weld v. Hornby, 7 East, Holroyd, J. 2 Barn. and Cress. 195; per Lord Ellenborough, 6 690, 914. East, 214 ; per the Vice Chancel
(1) Ingraham v. Hutchinson, 2 Con. R. 584. Stiles v. Hooker, 7 Cowen, 266. Coulter v. Hunter, 4 Rand, 58. Vide Hepburn v, M.Dowell, 17 Serg. & Rawle, 383.
tensive right in the party acquiring the privilege, that successive appropriations of further portions of the [*]water have at different times been made without molestation ; for as each of such appropriations separately would constitute simply a new encroachment, conjunctively they can never, so long as any part of the element takes its natural course, evidence a right to the whole flow(a).
To repel the right which would otherwise arise from long enjoyment, it may be shown that the parties whose interests have been prejudiced, were until lately incapable by reason of infarcy, coverture, or other legal disability, to give the necessary licence(6) (1). The fact of the appropriation having been made during the existence of a particular estate may also be relied on for the like purpose ; because to establish a permanent right, the acquiescence of those who are entitled to the inheritance is always necessary(c). And if the enjoyment has originated in a written agreement or lease, there can of course be no presumption made in favour of a more extensive claim than what is thus evidenced(d).
(a) Bealey V. Shaw, 6 East, bridges, Gilb. Eq. Rep. 3. 208. See also Martin v. Goble, (c) Bradbury v. Grinsell, 2 i Camp. 320 ; Ballard v. Dyson, Saund. by Wms. note 175. d. 1 Taunt. 279; Jackson v. Stacy, 1 (d) Davis v. Morgan, 4 Barn. Holt, 455.
and Cress. 8. See also Rex v. (b) See Lord Guernsey v. Rod- Hudson, Stra. 909.
(1) Hallv. Vandegrift, 3 Binn. 374. Demerest v. Wyncoop, 3 John. Ch. 129. Mitchell v. Owings, 3 Marsh, 316.