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The validity of the claim, moreover, may be impeached by showing that the alleged privilege is an encroachment on the rights of the public: and therefore in a recent case, where from a public navigable river not having been used as such for a great length of time, the water of a stream communicating therewith [*]had for twenty years been enjoyed at a certain height by the owner of a water-mill supplied by the stream ; it was resolved, that 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) (1).
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(6).
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 constistutes primâ facie evidence of title. In the case alluded to, it appeared that the owners of a fishery, or
(a) Vooght v. Winch, 2 Barn. and Ald. 662.
(6) Per Lord Erskine, 12 Ves. 265.
(1) Tyler v. Wilkinson, 4 Mason, 397.
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(a) (1):
[*]As no impropersupplement 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 refersthe 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 be. longed 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
(a) Gray v. Bond, 2 Brod. and Bing. 667.
(1) Fitzrandolph v. Norman, Tay. N. C. 131. Arthur v. Arthur, 3 M.Cord, 96. Patton's lessee v. Haynes, 1 Cook, 356.
approvements without the assent of the commoners(a) (1).
(a) Stanley v. White, 14 East, R. 417, n. ; Bateson v. Green, Ib. 332; Folkard v. Hemmett, 5 T. 411.
(1) Ten Broek v. Livingston, 1 Johns. Ch. 357.
Where a river is not navigable the presumption is that the soil is the property of the owners on each side to the middle of the river. Meade v. Haynes, 3 Rand. 33. Ingraham v. Wilkinson, 4 Pick. 268. Claremont v. Carleton, 2 N. H. R. 369. Schrunk v. Schuylkill Nav. Co. 4 Serg. & R. 71.
PRESUMPTIONS OF FACT CONTINUED.
Of presumed Dedications of Rights of Road to the
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)(1).
(a) 5 Taunt. 137. See also Lloyd, 1 Camp. 260; and Lade v. per Lord Ellenborough in Rex v. Shepherd, Stra. 1004.
(1) Where the owner of land had, on making a new road over his property, given his consent thereto on condition of its not being used by coal carts, held that there might be a partial dedication of a highway to the public ; but that even if by law there could not be a re
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 severe measure. Before the supposed street were [*]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 enclosed(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 house holders(6). 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(1).
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 consider
(a) 5 Taunt. 235, 140, 142.
(6) See Roberts v. Karr, 1 Camp. 262.
striction to a public way the grant would amount only to a licence revocable and that after notice a person using it with coal carts would be a trespasser. Marquis of Stafford v. Boyney, 7 B. and Cr. 257. Galatian v. Gardner, 7 Johns. Rep. 106.
(1) Vide Hinkley et al. v. Hastings, 2 Pick. 162.