4 boards for brief periods, when little or no injury may be done, does not amount to that open and uninterrupted use which is required. Such boards may be used so continuously as to make them a part of the permanent structure, and by such user a right to flow to the height of such boards may be acquired; but their use only during times of low water, though for more than twenty years, does not justify keeping the water to the height of such boards during the whole year.3 It is a question of fact for the jury whether such user has established the right; and if within twenty years the claimant has been ordered by an upper proprietor to remove the flash boards from his dam, and has acquiesced and admitted that he had no right to use them, the presumption of a grant is defeated. The maintenance of a mill-dam is an act of sufficient notoriety to raise a presumption of knowledge on the part of the land-owner; but the long continued use of a drain beneath different houses would not give rise to such presumption, if the course of the drain was not known to any of the owners of the houses. If the water in a mill-pond gradually subsides in consequence of the decay of the dam, the owner of an adjoining meadow, who has title to the edge of the pond when full, and whose cattle wander from the meadow over the bottom of the pond, does not thereby acquire title by adverse possession to the bed of the pond in the absence of further notice of such a claim to its owner. The raising of grass upon land rendered unfit by overflow for other cultivation, if done openly, constitutes adverse possession.o 6 § 338. Same-Not permissive.-The enjoyment must also be as of right, and not by license or merely permissive.10 "If," 1 Pierce v. Travers, 97 Mass. 306; Marcly v. Shults, 29 N. Y. 346; Hall v. Augsbury, 46 id. 622; Carlisle v. Cooper, 21 N. J. Eq. 596. 2 Ibid. Buck who have no interest and make no 6 Perrin v. Garfield, 37 Vt. 311. See Green Bay & M. Canal Co. v. Kau 3 Ibid.; Marcly v. Shults, 29 N. Y. kauna W. P. Co., 90 Wis. 370. 346. 4 Noyes v. Silliman, 24 Conn. 15; Branch v. Doane, 18 id. 233; 17 id. 402; Pollard v. Barnes, 2 Cush. 191. 5 Sumner v. Tileston, 7 Pick. 198. Evidence of complaints made by those having no interest to others 7 Carbrey v. Willis, 7 Allen, 368; Hannefin v. Blake, 102 Mass. 297. 8 Eddy v. St. Mars, 53 Vt. 462. 9 Merrill v. Tobin, 30 Fed. Rep. 738. See ante, § 22. 10 Cholmondeley v. Clinton, 2 Jac. & W. 1; Bright v. Walker, 1 C. M. & says Chapman, J.,1 "the use of a way is under a parol consent given by the owner of the servient tenement to use it as if it were legally conveyed, it is a use as of right. So an occupation of land under a parol gift from the owner is an occupation as of right. So if under a parol contract by a tenant in common. In such cases the law presumes, after the lapse of twenty years, that a legal conveyance was made. But the character of the use or occupation depends upon the language used and the manner of the enjoyment. If the language is such as to create only a license or a lease, the enjoyment is regarded as permissive, and not as of right, and no title is acquired by it." The long-continued maintenance of pipes for a water supply across a lot of land will not justify the inference of a grant, if the right to the water supply was founded upon a revocable license which has been revoked." Entry upon lands under a contract of purchase cannot be the foundation of an adverse possession, until the contract is renounced;' and if a grant is clear, possession beyond what is granted and admitted cannot be presumed adverse. The owner of a ferry, R. 219; Baker v. Boston, 12 Pick. 184; White v. Chapin, 97 Mass. 101; Kilburn v. Adams, 7 Met. 33; Paine 2. Hutchins, 49 Vt. 317; Blaine v. Ray, 61 Vt. 566; Coffrin v. Cole, 67 Vt. 226; Williams v. Barber, 104 Mich. 31; Postlethwaite v. Payne, 8 Ind. 104; Mebane v. Patrick, 1 Jones (N. C.), 23; Hall v. McLeod, 2 Met. (Ky.) 98; Wiseman v. Lucksinger, 84 N. Y. 31; Hoch v. Manhattan Ry. Co., 13 N. Y. S. 633; Corning v. Troy Iron Factory, 40 N. Y. 191; Babcock v. Utter, 1 Keyes, 115, 391; 1 Abb. Dec. 27; Ingraham v. Hough, 1 Jones, 39; Great Falls W. W. Co. v. Gt. Northern Ry. Co., 21 Mont. 487; Yeager v. Woodruff, 17 Utah, 361; Vaughan v. Rupple, 69 Mo. App. 583; Winter 2. Winter, 8 Nev. 129. The mere fact that the use began in a trespass does not show that it was not continued under a claim of right. Sibley v. Ellis, 11 Gray, 417; Santa Cruz v. Enright, 95 Cal. 105; Ball v. Kehl, id. 606. 1 Stearns v. Janes, 12 Allen, 582. 2 Ashley v. Ashley, 4 Gray, 197; Kimbrall v. Walker, 7 Rich. (S. C.) 422. 3 Sumner v. Stevens, 6 Met. 337; Legg v. Horn, 45 Conn. 415. 4 Leonard v. Leonard, 10 Mass. 281; Ingalls v. Newhall, 139 Mass. 268. 5 Cheever v. Pearson, 16 Pick. 266; Becker v. Church, 115 N. Y. 562; Cronkhite v. Cronkhite, 94 N. Y. 323; Eckerson v. Crippen, 39 Hun, 419; Taylor v. Gerrish, 59 N. H. 569; Pioneer Wood Pulp Co. v. Chandos, 78 Wis. 526; Lambe v. Manning, 171 Ill. 612. 6 Johnson v. Knapp, 150 Mass. 267. See Thoemke v. Fiedler, 91 Wis. 386; Costello v. Harris, 162 Penn. St. 397; Chase v. Middleton (Mich.), 82 N. W. Rep. 612. 7 New York v. Law, 125 N. Y. 380. See Brown v. King, 5 Met. (Mass.) 173. 8 Heermans v. Schmaltz, 10 Biss. 323. who, having opened, as an approach thereto, a lane through his land, which he constantly kept in repair, and which the public used for more than twenty-one years, barred up the lane on ceasing to use the ferry, was held not liable to indictment for obstructing a highway, the public user being merely permissive.1 339. Same-Same.-The presumption of a grant is rebutted if the person prescribing for the easement acknowledges the right of the owner within twenty years, though he does it under a mistake of his own rights. So the asking leave to exercise the right from time to time within the period of prescription breaks the continuity of the enjoyment as of right, inasmuch as each asking of leave is an admission that, at that time, the person so asking had no title; but the right, when fully established by adverse use, is not lost by asking and receiving a license from the original owner, although this may, in case of doubt, be strong evidence that the previous use was not under a claim of right. It is not necessary that there should be an express claim of the right by the person who enjoys it, or an express admission of the right by the owner of the land. If the owner of a dam admits that it has been raised, and promises to restore the former height when another dam is built, he may still gain a prescriptive right in favor of the increased height, as against other persons than the one to whom the admission and promise were made. 1 Root v. Com., 98 Penn. St. 170. 2 Mitchell v. Walker, 2 Aik. (Vt.) 266; New York v. Mott, 15 N. Y. S. 22; Jensen v. Hunter (Cal.), 41 Pac. Rep. 14. 3 Monmouthshire Canal Co. v. Harford, 1 C. M. & R. 614; 5 Tyrwh. 58; Tickle v. Brown, 4 Ad. & El. 369, 382; Beasley v. Clarke, 2 Bing. N. C. 705, 709; Watkins v. Peck, 13 N. H. 360; Willey v. Hunter, 57 Vt. 479; Pierce v. Cloud, 42 Penn. St. 102. Any possession of land which is accompanied by the recognition of a superior title still existing, is not adverse to that title. Griswold v. Butler, 3 Conn. 246. But when a person takes possession under a parol agreement for a purchase, and pays for the land. or 5 Blake v. Everett, 1 Allen, 248; Johnson v. Gorham, 38 Conn. 513; Law v. McDonald, 9 Hun, 23. 6 Lynn v. Thomson, 17 S. C. 129. In Outram v. Maude, 17 Ch. D. 391; 29 W. R. 818, the plaintiff was yearly tenant, from 1791 to 1836, of an underground channel for conducting water from the plaintiff's mill through the There can be no prescription in conflict with a statute.1 A statute which prohibits the discharge of polluting matter into sources of water supply for a city or town prevents the acquisition of a prescriptive right to foul a stream as against such city or town.2 340. Same-Conditions in the negative.-Prescriptions may be upon condition in restraint of the mode in which the prescriptive right is to be enjoyed, or have annexed to them a duty to be performed for the benefit of the person against whom the prescription exists. It was early declared that a custom may be in the negative, but that, by way of prescription, the claim must be affirmative. But it is held, that, if a prescriptive right has been gained to divert a stream from its natural channel, the proprietors below along that channel may claim exemption from having their lands overflowed or their mills injured, by the restoration of the water to its natural course. In Felton v. Simpson, the Supreme Court of North Carolina held that the owner of land protected by a dam which ponded the water in heavy falls of rain until it was drained off by ditches leading from the pond through the plaintiff's land, landlord's land. This demise was determined in 1836, and a demise of a new channel, for pure water only, continued in force until 1867, when it was determined by the defendant, the landlord's successor. The plaintiff, however, continued to use the old channel for foul water from 1836 to 1879. It was held, that, being a tenant, he had not acquired an ease ment by prescription in the old channel, although the user thereof was uninterrupted. 1 See Middleton v. Griffiths, 30 L. T. N. S. 65; Traill v. M'Allister, 25 L. R. Ir. 524; Martin v. Gleason, 139 Mass. 183. 2 Brookline v. Mackintosh, 133 Mass. 215; Bloomington v. Costello, 65 Ill. App. 407. So a statute which requires fishways in dams negatives a prescriptive right to maintain a dam previously authorized without such ways. Parker v. People, 111 Ill. 581. 6 Brook v. Willett, 2 H. Black. 224; Paddock v. Forrester, 3 Man. & G. 903; Gray's Case, 5 Rep. 79; Carlisle v. Cooper, 21 N. J. Eq. 597; Mitchell v. Walker, 2 Aik. (Vt.) 270: Watkins v. Peck, 13 N. H. 360, 375. See Smith v. Musgrove, 32 Mo. App. 241. 4 Colchester v. Goodwin, Carter, 68. As to the distinction between custom and prescription, see ante, § 329. 5 Shepardson v. Perkins, 58 N. H. 354; Middleton v. Gregorie, 2 Rich. (S. C.) 631, 638; Delaney v. Boston, 2 Harr. (Del.) 489; Belknap v. Trimble, 3 Paige, 577; Smith v. Musgrove, 32 Mo. App. 241; Mathewson v. Hoffman, 77 Mich. 420. So of the right to keep the end of an ancient ditch closed which has been closed for twenty years. Drewett v. Sheard, 7 C. & P. 465. 611 Ired. 84. See King v. Chicago R. Co., 71 Iowa, 696. could not gain a prescriptive right to the benefit of this protection, inasmuch as there was nothing which could be granted, and no adverse possession of anything which, without a grant, would expose the party to an action. The submission to the exercise of an easement by the owner of the dominant estate, for his own purposes and in his own way, does not necessarily give the servient owner a right to the continuance of the easement imposed, because it is attended with incidental advantages to the latter; but the former may, if he chooses, cease to exercise it entirely. An active enjoyment for more than the statutory period is not an enjoyment as of right, if during the period it was known that it is only permitted so long as some particular purpose is served. Where a canal company was authorized, but not required, by statute to divert the waters of a stream, which they did for a period of forty years, it was held that the riparian proprietors below on the stream had no right to insist that the diversion should be continued for their benefit, although the natural channel had meanwhile been choked up, and the restoration of the water to that channel caused their lands to be overflowed in times of flood.2 $341. Same-Burden of proof.- In order to make the use of an easement for twenty years conclusive of the right, the person who claims it has the burden of proof to establish that the use was adverse, uninterrupted, and known to the owner of the land, and each of these essential ingredients to the maintenance of the claim may be contradicted and disproved. If 1 Beeston v. Weate, 5 El. & Bk. 986; Magor v. Chadwick, 11 Ad. & El. 571; North Eastern Railway v. Elliot, 1 John. & H. 154; Arkwright v. Gell, 5 M. & W. 203; Wood v. Waud, 3 Exch. 748; Greatrex v. Hayward, 8 Exch. 291; Brymbo Water Co. v. Lesters Lime Co., 8 R. 329; Sparks Manuf. Co. v. Newton (N. J. Eq.), 41 Atl. Rep. 385; White v. Chapin, 12 Allen, 516; Yale v. Brace, 99 Mass. 488; Read v. Erie Ry. Co., 97 N. Y. 341; Canton Iron Co. v. Biwabik B. Co., 63 Minn. 367; Kray v. Muggli (Minn.), 79 N. W. Rep. 964; Dunham v. Joyce, 129 Mo. 5. 2 Mason v. Shrewsbury Ry. Co., L. R. 6 Q. B. 578; Arkwright v. Gell, 5 M. & W. 220; Greatrex v. Hayward, 8 Exch. 291; ante, § 225. In the first of these cases, Cochran, C. J., said that it is in the essence of an easement to divert a stream that it exists for the benefit of the dominant tenement alone; that its exercise for the benefit of that tenement cannot operate to create a new right for the benefit of the servient owner; and that, like any other right, its exercise may be discontinued, if it becomes onerous or ceases to be beneficial to the party entitled. See Peter v. Caswell, 38 Ohio St. 518, 522. 3 Haight v. Price, 21 N. Y. 241; Bradley Fish Co. v. Dudley, 37 Conn. |