1874 GLOVER บ. COLEMAN. years herein before mentioned [in ss. 1, 2, and 3] shall be deemed and taken to be the period next before some suit or action wherein the claim or matter to which such period may relate shall have been or shall be brought into question; and that no act or other matter shall be deemed to be an interruption, within the meaning of this statute, unless the same shall have been or shall be submitted to or acquiesced in for one year after the party interrupted shall have had or shall have notice thereof and of the person making or authorizing the same to be made." In order to prevent the interruption from working a suspension or destruction of the twenty years enjoyment, it is not necessary that an action should be brought or that active steps should be taken to abate the obstruction: but the submission or acquiescence must be such as to amount to an acknowledgment that the interruption is rightful. [GROVE, J. According to Flight v. Thomas (1), the right is acquired by an enjoyment for a period somewhat short of twenty years, provided there has not been an interruption acquiesced in for one whole year, under s. 4. In that case there was an enjoyment for nineteen years and 330 days, followed by an interruption (not acquiesced in) for 35 days; and it was held that the prescriptive right was gained.] In a note to s. 4, in Gale on Easements, 4th ed. p. 160, it is said :"A plea of enjoyment for such period can be supported only by evidence coming down to the commencement of the suit: Parker v. Mitchell (2); see also Thomas v. Flight (3), per Lord Cottenham, The cases prove this, not only that it is good to lay the right twenty years before the commencement of the suit, but that it is bad if it is not so laid; it is bad if it is laid next before the injury complained of:' see Wright v. Williams (4); Richards v. Fry (5); Ward v. Robins (6), acc. And, in order to support the plea of enjoyment during the period, actual user must be proved in the first and in the last years of the period relied upon. Parker v. Mitchell (2) shews that actual user during the last year, (1) 11 A. & E. 688; affirmed in error, 8 Cl. & F. 231. (2) 11 A. & E. 788. (3) 8 Cl. & F. at p. 242. (4) 1 M. & W. 77. (5) 7 A. & E. 698. (6) 15 M. & W. 237, 242. and Baily v. Appleyard (1) and Carr v. Foster (2) that actual user during the first year must be proved: and the same points were recognised in Lowe v. Carpenter (3), where it was also suggested by Parke, B., that an act of user in every year of the period should be shewn to have taken place, although that opinion is opposed to the suggestion of the Court in Carr v. Foster (2), that, as to the intermediate period, it would not be necessary to shew an act of user in each and every year intervening between the first and last, and that more general evidence of user would suffice." (4) And see the judgment of Willes, J., in Cooper v. Hubbuck. (5) Under s. 3 the right is indefeasible where it has been enjoyed for twenty years without interruption. [GROVE, J., referred to Eaton v. Swansea Waterworks Co. (6), which was a claim of a right to the flow of water.] Section 4 is in aid of the dominant tenement. Lowe v. Carpenter (3), which will be relied on for the defendant, is an authority against the plaintiff so far as affirmative easements go. But here actual enjoyment is shewn up to the last, though interrupted. There was no submission to or acquiescence in the interruption for one year after notice. The first notice which the plaintiff received of the interruption of the enjoyment of the light was by the letter of the 3rd of January, 1873. It may be that Nickling, the tenant, had lost his right to complain; but the plaintiff clearly has not. [BRETT, J. Who is the party whose enjoyment was interrupted?] Both the plaintiff and Nickling; the former in the value of his reversion, the latter in his occupation. The proposition contended for on the part of the defendant is, that no resistance short of bringing an action or abating the obstruction will save the right. Bennison v. Cartwright (7) however, shews that something far short of the bringing an action or (1) 8 A. & E. 161, 778, n. (2) 3 Q. B. 581. (3) 6 Ex. 825; 20 L. J. (Ex.) 374. (4) The claim in Carr v. Foster, 3 Q. B. 581, was of a right of common; in Lowe v. Carpenter, 6 Ex. 825, it was a right of way. (5) 12 C. B. (N.S.) 456; 31 L. J. (C.P.) 323. (6) 17 Q. B. 267; 20 L. J. (Q.B.) 482. (7) 5 B. & S. 1; 33 L. J. (Q.B.) 137. 1874 GLOVER v. COLEMAN. the removal of the obstruction will do; and that it is for the jury to say whether there has been such an amount of resistance or remonstrance against the usurpation as to amount to non-submission or non-acquiescence. The judgment of Vice-Chancellor Kindersley in Gale v. Abbot (1), again, shews that the question whether or not there has been submission to or acquiescence in the interruption is for the jury; and, according to the reservation here, the verdict must stand unless the Court is satisfied that there was no reasonable evidence of non-submission or non-acquiescence on the part of the plaintiff. Bosanquet, in support of the rule. If the question depended upon s. 3 alone, it may be conceded that the defendant would be out of Court. But, taking that section in conjunction with s. 4, the period required for the acquisition of the right is, the full period of twenty years next before action brought,—that is, some action Cooper v. Hubbuck. (2) The question is not whether the easement once gained has been lost or abandoned;' but whether it has ever been gained. The main object of the statute was to confine the evidence and the attention of the Court to a given limit of time next before the commencement of an action. [GROVE, J. An unsuccessful action or suit might be enough.] Be it so. Flight v. Thomas (3), which is not authority, but has now become dogma, seems to go that length. The first case in which it is distinctly laid down that enjoyment for the period mentioned in s. 3 gives only an inchoate right, is Ward v. Robins (4), where Parke, B., says: "Such enjoyment, in order to give a right under that statute, must be made up to the time of the commencement of the suit, not up to the time of the act complained of; and, consequently, an enjoyment for twenty years or more before that Act gives only what may be termed an inchoate title, which may become completed or not by an enjoyment subsequent, according as that enjoyment is or is not continued to the commencement of the suit. This apparent absurdity arising from a strict construction of the Act, has already been fully considered (1) 8 Jur. (N.S.) 987. (2) 12 C. B. (N.S.) 456; 31 L. J. (C.P.) 323. (3) 11 Ad. & E. 688; in error, 8 Cl. & F. 231. (4) 15 M. & W. 237, 242. 1874 GLOVER v. by this Court in the case of Wright v. Williams (1), and the literal interpretation adhered to, the Court intimating its opinion that the mischief of such a construction was rather apparent than real; COLEMAN. and the decision in that case was fully approved of and acted upon by the Court of Queen's Bench in the case of Richards v. Fry." (2) [BRETT, J. This point does not arise if there was evidence of non-acquiescence in the interruption of the enjoyment. In that case, the question should have been left to the jury; and the defendant cannot have a verdict entered for him.] In the case of light, it is difficult to say that there has been enjoyment, if there has been an obstruction. To sustain the prescriptive claim, there must be enjoyment in fact for twenty years before action. An interruption, though for less than a year, prevents the actual enjoyment. Section 6 has some bearing on this question: it enacts that, "in the several cases mentioned in and provided for by this Act, no presumption shall be allowed or made in favour or support of any claim, upon proof of the exercise or enjoyment of the right or matter claimed for any less period of time or number of years than for any such period or number mentioned in this Act as may be applicable to the case and to the nature of the claim." (3) The "party interrupted" means the person who is obstructed in the enjoyment of the light. Here, Nickling had held the workshop during the whole time the window in question was in existence. Glover, the present plaintiff, is not the "party interrupted;" he is merely setting up a right through his tenant. It is enough if the person in actual enjoyment of the light has been obstructed or interrupted. In Parker v. Mitchell (4), a plea of forty or twenty years user (of a way) under the statute, was held not to be supported by proof of user from a period of fifty years before the commencement of the action down to within four years of it; and that, if the evidence go no further, there is no case for the jury. In the course of the argument, Lord Denman, C.J., asks (5): "How can you say that you have proved (1) 1 M. & W. 77. (2) 7 A. & E. 698. (3) See Bright v. Walker, 1 C. M. VOL. X. & R. 211, 222. (4) 11 A. & E. 788. I 2 1874 GLOVER v. COLEMAN. an enjoyment for the forty years? Would it be enough to prove that you had the user so late down as thirty-nine years ago, without proof of user since then ?" So, in Lowe v. Carpenter (1), which was also a claim of a right of way, a plea of forty years' prescriptive right of way was held not to be supported by proof of user for forty years and upwards before the commencement of the action, to within fourteen months of it; and that some act of user must be shewn to have been exercised in the year in which the action is brought; and Parke, B., threw out an intimation that some act of user ought to be shewn to have been exercised at least once a year. [BRETT, J. That suggestion seems to be confined to the case of a right of way.] There must be actual enjoyment for twenty years next before the commencement of an action, and no interruption submitted to or acquiesced in for one year. [BRETT, J. There had been actual enjoyment of the easement for more than twenty years, and an actual obstruction or interruption for more than a year, the plaintiff or his tenant protesting against it during all that time.] And nothing more done. The question is whether merely protesting against or complaining of an interruption, without taking any steps to assert the right or to abate the obstruction, is enough to shew non-acquiescence. It may be that it is not necessary actually to commence an action or suit. Non-acquiescence may possibly be shewn by something short of that. But it must be something tangible, and not a mere grumbling complaint; it must be a substantial assertion of a right to the enjoyment of the light or other easement,-some act for which an action might be brought by the adverse party to try the right. Bennison v. Cartwright (2) does not touch this point: there, the wall which obstructed the way had been knocked down the day before the issuing of the writ. [GROVE, J. BLACKBURN, J., put it rather on the ground that negotiations were going on: and the other judges seem to adopt the same view.] (1) 6 Ex. 825; 20 L. J. (Ex.) 374. (2) 5 B. & S. 1; 33 L. J. (Q.B.) 137. |