CHAPTER V.

THE LOSS OF RIGHTS ACQUIRED BY PRESCRIPTION AT
COMMON LAW.

may be lost.

A TITLE gained by prescription or by custom may be How a prelost by an interruption in the right, as when the interest scriptive title of the claimant in the right, and his interest in the land out of which the right is claimed, are coextensive(a); or by loss of the subject-matter in or to which the right is claimed (b); or by taking an absolute and independent grant of a similar right (c); or where the interruption is equal with the seisin, as enjoyment for ten years and disturbance by another ten years in alternis vicibus (d).

A prescriptive right founded on the user by the an- Non-user cestor or the predecessor of the claimant will be lost by alone. the mere non-user of the right for a period of sixty years (e).

abandon,

Non-user, coupled with some act of the claimant in- Coupled with dicating his intention to abandon the right permanently, intention to as a disclaimer (f) or otherwise (g), or an acquiescence by him in an obstruction to the right, or in the exercise adversely by another person of a similar right (h), would extinguish the right. For the right is acquired by adverse enjoyment. The non-user, therefore, must be the consequence of something which is

(a) Co. Litt. 114 b.

(b) 4 Rep. 88 a.

(c) Finch, bk. 1, c. 3, s. 23; 6 Rep. 45; Com. Dig. Præscription, G.

(d) Bro. Stat. Lim. 42, 43. (e) 32 Hen. 8, c. 2, ss. 1, 6; Bevil's case, 4 Rep. 8.

(f) 3 Bli. 241.

(g) See Moore v. Rawson, 3 B. & C. 332; Liggins v. Inge, 7 Bing. 693; 12 Q. B. 519.

(h) See Rogers v. Brooks and Ux., 1 T. R. 431, n.; 1 Bing. N. C. 555; Ward v. Ward, 7 Ex. 839.

Resumption

Disuser of

adverse to the user(i). Therefore where a person exercised adversely for thirty-six years a prescriptive right, a right to sit in a pew in a church, he was held, apparently by analogy to the Statute of Limitations, to have acquired, against the person who claimed the right before the commencement of such adverse exercise, the right to sit in the pew (k). And as an express release of the right would destroy it at any moment, so the cesser of use, coupled with any act clearly indicative of an intention to abandon the right, would have the same effect without any reference to time. It is not so much the duration of the cesser, as the nature of the act done by the claimant, or of the adverse act acquiesced in by him, and the intention in him which either the one or the other indicates, which are material for the consideration of a jury (1). The intention, however, should be communicated to (m), and acted upon (n) by, the person against whom the right is claimed.

But even after non-user of the right the person enafter non-user. titled to it may, within a reasonable time (o) — which however is not defined (p)—and, where he has had no occasion to exercise the right, even after a very long time(7), manifest his intention to resume the right(r). Public rights even, although not lost by mere obstrucpublic rights, tion(s), may be lost by disuser for a long period of time, and may be extinguished either by act of parliament, or by a writ of ad quod damnum and an inquisition thereon, or by natural causes; and in favour of long enjoyment, an extinguishment of such a right by one or other of these means may be presumed (†).

(i) Per Alderson, B., Ward v. Ward, 7 Ex. 839.

(k) Rogers v. Broeks and Ux., 1 T. R. 431, n.

(7) 12 Q. B. 519.

(m) Per Erle, C. J., Stokoe v. Singers, 8 E. & B. 31.

(n) Per Denman, L. C. J., Ib. (0) See Moore v. Ranson, 3 B. & C. 332.

(p) Per Erle, C. J., Stokoe v. Singers, 8 E. & B. 31.

(g) Ward v, Ward, 7 Ex. 839.

(r) See Moore v. Rawson; Liggins v. Inge; Cook v. Mayor, &c. of Bath, L. R., 6 Eq. Ca. 177.

(s) Vide Vooght v. Winch, 2 B. & Ald. 662.

(1) Rex v. Montague, 4 B. & C. 598.

intention.

The authorities upon the subject of abandonment Abandonment have decided that a mere suspension of the exercise of a question of a right is not sufficient to prove an intention to abandon it. But a long-continued suspension may impose upon the person claiming the right the necessity to show that some indication was given, during the period that he ceased to use the right, of his intention to preserve it. The question of abandonment of a right is one of intention, to be decided upon the facts of each particular case. Previous decisions are only so far useful as they furnish principles applicable to all cases of the kind (u).

not lost.

A title, says Lord Coke, being once gained by pre- When a prescription or custom, cannot be lost by interruption of scriptive title the possession for ten or twenty years. . . . and when a prescription or a custom doth make a title of inheritance it cannot be waived or annulled by payment or other matter in pais(x).

A prescriptive title is not lost by taking a grant of a similar right in confirmation of a former one of the same kind (y), or where the right extends over two descriptions of land, and the grant is of the right over only one of them (z); or by an alteration in the mere quality of the thing to which the right is annexed (a), or by the mere non-user for sixty years by the claimant himself (b). And when made in a que estate (c), or for an easement (d), or privilege by way of discharge (e), or to enable persons who cannot prescribe, as a corporation, to implead and be impleaded, is not within the 32 Hen. 8, c. 2.

(u) Crossley v. Lightowler, 36 L. J., Ch. 584; Cook v. Mayor, &c. of Bath, supra.

(x) 1 Inst, 114 b, 352 a; 2 Ib. 653.

(y) See the authorities cited, 13 M. & W. 339, 340; Earl Carnarvon v. Villebois, Ib. 313; The Mayor, &c. of Truro v.. Reynalds, 8 Bing. 275.

(z) Earl Carnarvon v. Villebois, supra.

(a) 4 Rep. 87 a; Luttrel's case, Ib. 86; Cowper v. Andrews, Hob. 89; Com. Dig. Præscription, G.

(b) 32 Hen. 8, c. 2; Bevil's
case, 4 Rep. 8.

(c) Bro. Stat. Lim. 35, 40.
(d) Ib. 36, 42.

(e) Ib. 39, 41.

Non-user as evidence.

Period of non

user.

As regards different rights.

So unless the right and the title to the land in which the right exists be co-extensive (ƒ), or if the right be a natural one, e. g. a watercourse, which necessarily commences neither by prescription, nor by assent, but ex jure naturæ, and is neither an interest in, nor a profit out of, land (9), unity of possession will not produce an extinguishment of the right.

Mere non-user, however, although it will not in general affect a title gained by prescription or by custom, and is not, per se, an absolute bar to the right (h), may be evidence, although evidence only, to support a plea of a non-existing release (i). Mere non-user cannot affect a custom, where the question, whether it should be put in force or not, does not appear to have arisen (k).

From mere non-user, however, and more especially from adverse user, a conclusion against the right arises (7). A long intermission of the right would be a strong piece of evidence against the continuance of the right, but the effect of the intermission on the right would be for a jury to determine (m).

As to what period of mere non-user is sufficient to warrant the presumption of an abandonment or an extinguishment of the right, the authorities are not very precise. A vast number of years (n), and a long or a considerable period of time (o), have been mentioned.

In the case of mere non-user a distinction as to the time may arise according to the nature of the right; as where it is a profit à prendre, or an easement, which has been defined to be "a privilege that one neighbour hath of another, by writing or prescription, without

(f) Co. Litt. 114 b; 9 Jur., N. S. 422.

(g) Shury v. Piggott, 3 Bulstr. 339.

(h) Dogherty v. Beasley, 1 Jones, Ir. Rep. 123.

(i) Ib.; 3 Bli. 245; 3 Q. B., N. S. 588; Moore v. Rawson, supra.

(k) Scales v. Key, 11 Ad. & E, 819.

(1) 4 Q. B. 326.

(m) 3 Q. B., N. S. 588.
(n) 3 Bli. 245.

(0) See Moore v. Rawson, 3 B. & C. 332; Rex v. Montague, 4 Ib. 598; 3 Q. B. 588.

profit," and, according to the examples given, in the land of the other (p); or "a right which one man has to use the land of another for a special purpose" (q); or not strictly either a profit à prendre or an easement, as the right to the natural flow of water, which is a right jure naturæ (r), and neither depending on prescription (s), nor lost until an adverse easement in or to the water has been acquired (t); and the right to light and air, although sometimes designated an easement (u). And such right, not being to be used on the soil of the land of another, like a right of way, or of common, is not the subject of actual grant, may be considered to arise from an implied obligation in favour of the claimant to the light or the air not to interrupt the free use of them (x). Nor is such right a servitnde, which is sometimes defined as a real right, jus in re, existing in the property of another (y), and is then synonymous with easement, but in the Roman law has a signification which would embrace the rights just mentioned. This right has been said to be in the nature of a servitude (z), a quasi servitude.

A profit à prendre and an easement may be claimed Profits à either by prescription, by custom, or by express grant, easements, prendre and or by long enjoyment from which a grant is presumed, and cannot be lost by mere non-user for less than twenty years (a). For as enjoyment of these rights for such a length of time is necessary to found a presumption of a grant, there must be a non-user for a like period to raise a presumption of a release (b).

(p) Termes de la Ley, tit. Easement; 8 Rep. 46 b.

(q) 3 Kent's Com. 576, 10th ed. (r) See 3 Bulstr. 339; Rawstron v. Taylor, 11 Ex. 382; 7 E. & B. 299; 7 H. L. C. 370, 379, 382; Stokoe v. Singers, 8 E. & B. 31,

(8) 3 Bulst. 339; Poph. 166; 1 Wils. 174; 7 H. L. C. 382.

(t) See Stokoe v. Singers,

supra.

(u) See Gale on Easements.
(x) See Moore v. Rawson, 3 B.
& C. 332.

(y) Kent's Com. 576, 10th
ed. citing Toullier.

(z) Per Erle, C. J., Stokoe v. Singers, 8 E. & B. 31,

(a) See Moore v. Rawson, supra; 3 C. B., N. S. 120.

(b) Per Littledale, J., Moore v. Rawson, 3 B. & C. 322.