time immemorial, through a raceway, which was an artificial channel, through land of another, has a right to enter on such land and clear out any obstructions in the ordinary manner doing no unnecessary damage,' and to make repairs and improvements, etc., necessary to its full enjoyment. A right to enter to cleanse a pool and repair a dam is incident to a grant to flow back water upon the grantor's premises,' and to take earth and stones from the bottom of the pond for that purpose. A person with a right to use a well and pump on another's land, each being bound to pay for repairs proportionately, cannot maintain an action against the latter before a request and a refusal to repair. Under the general rule that a lessor, in the absence of an express agreement, is not bound to make any repairs, leases of a farm with "water privileges from the mill-pond for turning a wheel to drive a saddle-tree manufactory," and of "so much of the surplus water of a canal" as might be necessary to propel a mill of a certain kind, have been held not to bind the lessor to keep the mill-dam in repair, and sufficient water in the mill-pond to carry on the factory, or to prevent the latter from abandoning the navigation of the canal, and suffering it to go to decay. A general covenant in a lease of a mill property and land "to

1 Prescott v. White, 21 Pick. 341; White v. Chapin, 12 Allen, 516, 521; Roberts v. Roberts, 55 N. Y. 275.

2 Daniel v. Chaffin, 28 Iowa, 327; Jones v. Adams, 162 Mass. 224; Burris v. People's Ditch Co., 104 Cal. 248.

3 Beals v. Stewart, 6 Lans. 408; Huntington v. Asher, 96 N. Y. 604; 26 Hun, 496. Pico v. Colimas, 32 Cal. 578, while admitting the general principle that a person enjoying an easement in the land of another, may enter thereon to keep it in repair, declared that a water commissioner, under the statute to regulate watercourses, etc., had no authority as such to repair a watercourse, or to make an entry to remove an obstruction. Upon an agreement for letting a farm, lands and mill, the tenant's covenant to repair the "messuages and buildings" includes repair

of the mill-wheel.. Openshaw v. Evans, 50 L. T. N. s. 156.

4 Frailey v. Waters, 7 Penn. St. 221. 5 Miller v. Scolfield, 12 Conn. 335. 6 Doane v. Badger, 12 Mass. 65; Calvert v. Aldrich, 99 Mass. 74, 76.

7 Pomfret v. Ricroft, 1 Wms. Saund. 321, n.; Colebeck v. Girdlers Co., 1 Q. B. D. 234; Hugall v. McKean, 33 W. R. 588; Hollingsworth v. Atkins, 46 La. Ann. 515. Sheets v. Selden, 7 Wall. 416, decided that a lessee, under a water-power lease, providing for an abatement of rent for every failure of water, cannot, having forfeited the estate by non-payment of rent after due proceedings had, set up a claim for repairs to the water-channel made necessary by the landlord's gross negligence. See Oneto v. Restano, 89 Cal. 63.

8 Morse v. Maddox, 17 Mo. 569.
9 Trustees v. Brett, 25 Ind. 409.

keep the mill in good repair," while it may embrace an obligation to keep the tail-race in as good repair as at the date of the agreement to lease, will not relieve the lessee of an obligation to clear the race of such deposits as result from the ordinary use of the mill.1 A bond to build and keep a bridge in repair for four years binds the obligor to rebuild, even if it is washed away by an extraordinary flood, in default of which the damages will be the cost of rebuilding, with the premium requisite to insure it against the perils named in the bond for the time remaining. One who cuts a race-way across a highway is bound to bridge it and to keep the bridge in repair. The owner of a water-mill benefited by a reservoir higher up the stream, who promises to pay his proportionate share of the cost of necessary repairs, if made, is liable on their completion, in an ordinary action upon an account annexed.*

1 Middlekauff v. Smith, 1 Md. 329. See Bird v. Elwes, L. R. 3 Ex. 225; Jones v. De Coursey, 42 N..Y. S. 578; Spencer v. Hamilton, 113 N. C. 49; Sharp v. Parker (108 Ga.), 34 S. E. Rep. 135; Union Water Power Co v. Pingree, 91 Maine, 440.

2 Gathwright v. Callaway County, 10 Mo. 663. Contra, Livingston

40

County v. Graves, 32 Mo. 479, where the bridge was burned, on the ground that the agreement to repair was merely a means to find out if the builder had properly constructed the bridge.

3 West Bend v. Mann, 59 Wis. 69. 4 Mullett v. Bemis, 100 Mass. 92.

SECTION.

CHAPTER XI.

PRESCRIPTION - SEVERANCE OF TENEMENTS.

329. Prescriptive rights, how acquired.

330. Presumption of a lost grant cannot be rebutted by proof

Pleading.

331. Disabilities overcoming the presumption of a grant.

332, 333. Distinction between prescriptive rights in easements and land. 334, Prescriptive right, how acquired - The adverse use must be inconsistent with the prior right.

340. Ibid.

Restricted by conditions, or by negative adverse rights.

341. Ibid.- Burden of proof.

342.

343, 344.

Prescriptive rights limited by the user.

Ibid.— Height of the water held by a dam.

345, 346.

Pollution of water by prescription.

347. Particular use not preventing the acquisition of another right of user by prescription.

348-351. A prescriptive right may be abandoned, or lost by acquiescence. 352. Prescriptive right when the enjoyment is of a temporary nature. 353. Right to flowage without proof of damage.

354.

Severance of tenements - General rules.

355. Implied grants when favored.

356. Nicholas v. Chamberlain.

357, 358. Pyer v. Carter.

359, 360. The effect of simultaneous and non-simultaneous grants. 361. Seymour v. Lewis.

362. Necessity, not convenience, the ground of implied grants.

§ 329. Acquisition of prescriptive rights.-No one can acquire an easement in his own estate. But, in the absence of an express grant of such right from another, an easement in water may arise: first, by prescription; second, upon severance of tenements. With respect to prescriptive rights, it is settled that the owner of land upon the margin of a natural stream may by long user acquire a right to use the water in a manner not justified by his natural rights. The term "pre

Ritger v. Parker, 8 Cush. 145; White v. Chapin, 12 Allen, 516, 518

scription" is strictly applicable only to incorporeal hereditaments and not to land; and, under the ancient rule of the common law, the use of the incorporeal right, in order to support a title by prescription, must have continued immemorially, that is, have had a commencement before the reign of Richard I. Inasmuch as such length of user is now difficult of proof in England, and incapable of proof here, it came to be held that the existence of an earlier right may be inferred from evidence of enjoyment during a less period. It is now generally held that a continued use in a particular manner and without opposition through twenty years, corresponding to the period usually prescribed by statutes of limitations for an entry on lands, is sufficient for the purpose. Under this

Walker, 2 Aik. (Vt.) 269; Shumway v. Simons, 1 Vt. 53; Wakins v. Peck, 13 N. H. 360; Wallace v. Fletcher, 30 N. H. 434; Olney v. Fenner, 2 R. I. 211; Horner v. Stillwell, 35 N. J. L. 307; Townsend v. McDonald, 12 N. Y. 381; Parker v. Foote, 19 Wend. 309; Miller v. Garlock, 8 Barb. 153;

I Wilkinson v. Proud, 11 M. & W. 33; Carlyon v. Lovering, 1 H. & N. 784; Hall on the Seashore (2d ed.), 22; Caldwell v. Copeland, 37 Penn. St. 427, 431; Ferris v. Brown, 3 Barb. 105; Tinicum Fishing Co. v. Carter, 61 Penn. St. 21; Preston v. Hull, 77, Iowa, 309. 21 Black. Com. 75; 2 id. 263; Shreve v. Voorhees, 2 Green. Ch. 25; Bract. lib. 2, ch. 22.

Falmouth v. Innys, Mosely, 87; Hillary v. Waller, 12 Ves. 261; Finch v. Resbridger, 2 Vern. 390; Hill v. Smith, 10 East, 476; Trotter v. Harris, 2 Younge & J. 285; Jackson v. Harvey, 1 Cr. M. & R. 51; Saunders v. Newman, 1 B. & Ald. 258; Bailey v. Applegard, 8 Ad. & El. 161; French Hoek Commissioners v. Hugo, 10 App. Cas. 336; Hazard v. Robinson, 3 Mason, 272, 275; Wallace v. Fletcher, 30 N. H. 444; Rogers v. Mabe, 4 Dev. 180.

Lewis v. Price, 2 W. Saund. 175; Angus v. Dalton, 3 Q. B. D. 85; Clawson v. Primrose, 4 Del. Ch. 643, 657; Ricard v. Williams, 7 Wheat. 59; Coolidge v. Learned, 8 Pick. 504; Sargent v. Ballard, 9 Pick. 251; Melvin v. Whiting, 10 Pick. 295; Barnes v. Haynes, 13 Gray, 188; Blake v. Everett, 1 Allen, 248; Pierre v. Fernald, 26 Maine, 436; Mitchell v.

Campbell v. Smith, 3 Halst. 140; Carlisle v. Cooper, 19 N. J. Eq. 256; Postlethwaite v. Payne, 8 Ind. 104; Smith v. Russ, 17 Wis. 227; Rooker v. Perkins, 14 Wis. 79; Cobb v. Smith, 16 Wis. 661; 38 Wis. 21; Sherwood v. Vliet, 20 Wis. 441; Haag v. Delorme, 30 Wis. 591; Arimond v. Green Bay Co., 31 Wis. 316; Vail v. Mix, 74 Ill. 127; Sheuber v. Held, 47 Wis. 340; Manier v. Myers, 4 B. Mon. 514; Phinizy v. Augusta, 47 Ga. 260; Cuthbert v. Lawton, 3 McCord, 194; Felton v. Simpson, 11 Ired. 84; Griffin v. Foster, 8 Jones, 337; Powell v. Lash, 64 N. C. 456. It is twenty-one years in Ohio and Pennsylvania. Tootle v. Clifton, 22 Ohio St. 247; Buckingham v. Smith, 10 Ohio, 288, 299; Cooper v. Smith, 9 S. & R. 26; Strickler v. Todd, 10 S. & R. 63; Biedelman v. Foulke, 5 Watts, 308; Workman v. Curran, 89 Penn. St. 226. Fifteen years in Vermont and

rule, the use must have assumed its character as adverse twenty years before the right can accrue; but recent acts, acquiesced in by the owner, may go to the jury as evidence that the use has been in derogation of the owner's right for the full term of twenty years. The modern doctrine of prescription has thus become a legal fiction adopted for the purpose of quieting ancient possessions. A right may even be acquired by uninterrupted user and a lost grant presumed, where the origin is traceable to a deed granting the user in a way that would be bad as being the grant of an easement in gross. A prescription differs from a custom in that it is personal, being alleged in the person, as in a man and his ancestors or predecessors in title, while a custom is local and serves for the inhabitants

Connecticut. Norton v. Valentine, 14 Vt. 239; Ford v. Whitlock, 27 Vt. 265; Shrewsbury v. Brown, 25 Vt. 197; Arbuckle v. Ward, 29 Vt. 43; Rogers v. Bancroft, 20 Vt. 250; Ingraham v. Hutchinson, 2 Conn. 584; Parker v. Hotchkiss, 25 Conn. 321; Sherwood v. Burr, 4 Day, 244; Rogers v. Page, Brayt. (Vt.) 169. Ten years in Texas and Alabama. Haas v. Choussard, 17 Texas, 588; Baker v. Brown, 55 Texas, 377; Wright v. Moore, 38 Ala. 593. Five years in California. Campbell v. West, 44 Cal. 646; Grigsby v. Clear Lake Water Co., 40 Cal. 396. And seven years by the statutes of Georgia and Tennessee.

1 Nash v. Peden, 1 Speers, 22. In Lehigh Valley R. Co. v. McFarlan, 43 N. J. L. 605, 617, Depue, J., said: "At common law there was no fixed period of prescription. Rights were acquired by prescription only when the possession or enjoyment was 'time whereof the memory of man ran not to the contrary.' By 20 Hen. III., ch. 8, the limitation in writs of right dated from the reign of Henry II. By 3 Edw. I., ch. 39, the limitation was fixed from the reign of Richard I. By 21 Jac. I., ch. 16, the time for bringing possessory actions was limited to twenty years after the right accrued. These statutes ap

3

plied only to actions for the recovery of land; none of them embraced actions in which the right to an incorporeal hereditament was involved. But by judicial construction an adverse user of an easement for the period mentioned in the statutes, as they were passed from time to time, became evidence of a prescriptive right; and finally, the fiction was invented of a lost grant, presumed from such user to have been once in existence and to have become lost. The fiction of a lost grant seems to have been devised after the statute of James. It was called a lost grant, not to indicate that the fact of the existence of the grant originally was of importance, but to avoid the rule of pleading requiring profert. Alle gation of the loss of the grant excused profert and bringing the instrument into court."

2 Kingston v. Horner, 1 Cowper, 102; Eldridge v. Knott, id. 214; Jackson v. McCall, 10 Johns. 377; Dosoris Pond Co. v. Campbell, 50 N. Y. S. 819; Folsom v. Freeborn, 13 R. L. 200; 26 Sol. J. 122.

3 Simpson v. Godmanchester, [1897] A. C. 696; 73 L. T. 90, 423. See Phillipps v. Halliday, [1891] A. C. 228; Eliot u. Bristol, 72 L. T. 752.