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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.1 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.2

1 Gathwright v. Callaway County, agreement to repair was merely a

10 Mo. 663. Contra, Livingston County means to find out if the builder bad

». Graves, 32 Mo. 479, where the bridge properly constructed the bridge, was burned, on the ground that the * Mullett v. Bemis, 100 Mass. 92. CHAPTER XL 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.1

PRESCRIPTION. — SEVERANCE OF TENEMENTS.

BECTIOM.

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 the modes of acquiring an easement and land by prescription.

334. Prescriptive right, how acquired.—The adverse use must be inconsistent with the continuance of the prior right. 335, 336. Ibid. — It must be continuous for the necessary period.

337. Ibid. — It must be open and notorious. 338, 339. Ibid. — It must not be permissive.

340. Ibid. — It may be restricted by conditions, or by negative adverse

rights.

341. Ibid. — Burden of proof.

342. Prescriptive rights limited by the user. 343, 344. Ibid. — Height of the water held by a dam. 345, 346. Pollution of water by prescription.

347. The grant of a particular use does not prevent the acquisition by the grantee of another right of user by prescription. 348-351. A prescriptive right may be abandoned, or lost by acquiescence.

352. Prescriptive right not acquirable when the enjoyment is of a tem

porary nature.

353. Statutory right to flow another's land, whether acquirable without

proof of damage.

354. Severance of tenements. — General rules.

355. Implied grants when favored.

356. Nicholas v. Chamberlain. 357, 358. Pyer t>. Cartev.

369, 300. The effect of simultaneous and non-simultaneous grants.

361. Seymour v. Lewis.

362. Necessity, not convenience, the ground on which implied grants are

upheld.

§ 329. No one can acquire an easement in his own estate.1 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 "prescription " is strictly applicable only to incorporeal hereditaments and not to land;2 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 l.3 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.4 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.6 Under this rule, the use must have assumed

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§ 330. According to some decisions, long-continued and uninterrupted possession is merely evidence from which a jury would be justified in presuming a grant;2 but, by the

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Lehigh Valley Railroad Co. v. McFarlan, 43 N. J. L. 006,017, 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., c. 8, the limitation in writs of right dated from the reign of Henry II. By 3 Edw. I., c. 39, the limitation was fixed from the reign of Richard I. By 21 Jac. I., c. 16, the time for bringing possessory actions was limited to twenty years after the right accrued. These statutes applied 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. Allegation of the loss of the grant excused profert and bringing the instrument into court."

2 Wallace i>. Fletcher, 30 N. H. 446, citing Keymer v. Summers, B. weight of authority in this country, while the presumption of a lost deed may be rebutted by contradicting'or explaining the facts upon which it rests, yet it cannot be overcome by proof in denial of a grant.1 The adverse enjoyment of the water in a stream for a less period than twenty years is not sufficient to warrant a presumption of a grant, and no superior right in the stream is acquired by mere priority of occupation.2 If, therefore, a mill-dam is newly erected above an ancient mill on the same stream, the owner of the ancient mill cannot lawfully increase the height of his dam to a level with the wheel of the new mill, and thus obstruct it by backwater.3 If the plaintiff in his declaration relies upon a prescriptive right to use the water, he cannot recover by proving only that the defendant's dam flows back the water on his mill-wheel, and that his rights as a riparian proprietor are thus infringed.4 So, upon the other hand, a plea of a general right to a watercourse is not sustained by proof of a particular right acquired by adverse enjoyment,6 nor can the defendant, in an action for diverting a watercourse, avail of a right so acquired, unless set up in his answer.6

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Wright v. Howard, 1 Sim. & Stu. 203; Mason v. Hill, 3 B. & Ad. 304; 5 B. 4 Ad. 1. The right to flow land by a pond created by a dam attached to an ancient mill-site, is a prescriptive right in a que estate. Sargent v. Gutterson, 13 N. H. 467.

Prescott v. Phillips, cited 6 East, 283; Rex v. Wardroper, 4 Burr. 2024; Tyler i). Wilkinson, 4 Mason, 397; Gilman v. Tilton, 5 N. II. 231; Campbell v. Smith, 3 Halst. 140; Sherwood v. Burr, 4 Day, 244; Buddington v. Bradley, 10 Conn. 213; Davis v. Fuller, 12 Vt. 178; Pugh v. Wheeler, 2 Dev. & Bat. 50.

3 Sumner v. Tileston, 7 Pick. 198; ante, c. 7.

* Rudd v. Williams, 43 111. 385.

6 Darlington v. Painter, 7 Penn. St. 473; Wetmore v. Robinson, 2 Conn. 529.

6 Matthews v. Ferrea, 45 Cai. 51.

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