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§ 331. Prescription thus depends, at the present day, upon the presumption of a previous grant or agreement which has been lost by lapse of time.1 But a grant cannot be presumed with respect to that which in its nature could not be granted, or against a person legally incapable of making it.2 An insane person cannot make a binding grant of his real estate, and no prescription begins to run against him until his death or the removal of the disability.8 So, no presumption of a grant arises, from the adverse enjoyment of an easement, against a minor or married woman.4 In the case of a reversion, the time of prescription does not begin to run against the reversioner, until his interest becomes so vested or he has such knowledge that a permanent easement is claimed as to give him a cause of action, although the tenant for life or years may permit easements to be acquired by user which will be valid during his tenancy.5 Where a company was authorized by act of Parliament to construct
1 Rust v. Low, 6 Mass. 97; Morse v. Copeland, 2 Gray, 305; Edson «. Munsell, 10 Allen, 667, 667.
2 Barker v. Richardson, 4 B. & Aid. 579; Rieard v. Williams, 7 Wheaton, 109; Hill v. Lord, 48 Maine, 96; Ayraud v. Rabin, 19 Martin (La.) 471 ; .laokson v. Johnson, 5 Cowcn, 74.
a Edson v. Munsell, 10 Allen, 557; Currier v. Gale, 3 Allen, 328. The general rule is that an intervening disability between the commencement of the adverse enjoyment and the expiration of the twenty years will not defeat the prescriptive right. Wallace v. Fletcher, 30 N. H. 434; Tracy v. Atherton, 36 Vt. 503; Andrews v. Mulford, 1 Hayw. (N. C.) 322; Mercer r. Selden, 1 How. 37; Peck v. Randall, 1 Johns. 170; Moores v. White, 6 Johns. 300; Pekay v. Darrah, 2 Green (N. J.) 288; Clark v. Richards, 3 Id. 347; McFarland v. Stone, 17 Vt. 165. But the minority of an heir who succeeds to the dominant tenement during the twenty years has been held to interrupt the prescription. Mel via v. Whiting, 13
Pick. 188; Watkins v. Peck, 13 N. H. 300; Lamb v. Crosland, 4 Rich. (S. C.) 630.
4 Reiner v. Stuber, 20 Penn. St. 458; Watkins v. Peck, 13 N. H. 360. See Tyler v. Wilkinson, 4 Mason, 402.
6 Saunders t>. Armeslcy, 2 Sch. & Lef. 101; Baxter v. Taylor, 4 B. & Ad. 72; Barker t\ Richardson, 1 B. & Aid. 578; Wood r. Veal, 6 B. & Aid. 454; Doe v. Reed, Ibid. 232; Gray ». Bond, 2 Bro. & Ring. 007; Dawson i>. Norfolk, 1 Price, 210; Daniel v. North, 11 East, 372; Yard i>. Ford, 2 W. Saund. 175 a.; McGregor v. Wait, 10 Gray, 72; Parker v. Framingham, 8 Met. 200; Lund v. New Bedford, 121 Mass. 286; Wallace v. Fletcher, 30 N. II. 434; Tinsman v. Belvidere Railroad Co., 25 N. J. L. 255; Schenley v. Commonwealth, 36 Penn. St. 29; Reimer v. Stuber, 20 Penn. St. 458. Leasing the servient estate to a tenant after the time of prescription has begun to run would not prevent the acquisition of the right. Cross v. Lewis, 2 B. & C. 686; Mebane o. Patrick, 1 Jones, 23.
and operate a canal for public use, and the defendant pleaded a prescriptive right to draw water therefrom for operating a mill and steam engine erected upon the banks, the court held that such right could not be maintained, for it implied an original grant thereof by the company, which had no right to make such a grant or to use the water for any purpose except for that of a canal.1 In Burbank v. Fay,2 in New York, it was held that, as the canal commissioners could not grant the State canals, no right adverse to the State could be acquired by a private use of the waters of such canals, whether adverse or by permission. In Mayor of Saltash v. Goodman,3 the defendants claimed, as free inhabitants of ancient tenements in a borough, and also as free inhabitants of the borough and as subjects of the realm, to have, without interruption and as of right, the privilege of dredging for oysters in a public navigable river, .and the plaintiffs claimed to be possessed of the soil and a several fishery in the river. The plaintiffs proved a prima facie right to a several fishery, and it was held that the defendants' claim of immemorial user could not be established, being made in respect of a fluctuating body, and that the presumption of a lost royal grant, which alone could incorporate such a body, could not be made in opposition to the right proved by the plaintiffs.
§ 332. The title to an easement by adverse user is to be distinguished from a title to land claimed by adverse possession. In the latter case, a mere verbal protest or prohibition to occupy the premises is not sufficient without entry to defeat the right acquired by disseisin.4 But in the case of an easement, the title rests chiefly on the owner's aequies
1 Rochdale Canal Co. v. Radcliffe, road Co. v. McFarlan, 43 N. J. L. 005,
18 Q. B. 316; Staffordshire Canal v. 021; ante, § 225. Birmingham Canal, L. R. 1 ILL.254; '2 QbH.Y.IiT. See.Tessupv. Loueks,
11 Jur. 71; National Manure Co. v. 56 Penn. St. 350; Cass r. Pennsylva
Donald, 4 H.& N. 8 ; Sappt;. Northern nia Railroad Co., 51 Penn. St. 351. Central Railway Co., 51 Md. 125; 8 5 C. P. D. 431; 7 Q. B. D. 106. Armstrong v. Pennsylvania Railroad 4 Workman v. Curran, 89 Penn.
Co.,38N. J. L. 1; Lehigh Valley Rail- St. 220; Smithy. Miller, 11 Gray, 146;
Bowen v. Guild, 130 Mass. 121.
cence in the adverse use, and the presumption of a grant may be rebutted by proof of declarations without evidence of opposition to the use by suit at law or by forcible resistance.1 Where, for example, an easement in an aqueduct on another's land was claimed by adverse user, and it appeared that the owner of the servient tenement had forbidden his neighbor to enter, and had ordered him off the land while there for the purpose of repairing the aqueduct, it was held that these verbal orders were admissible to show an interruption of the easement, and that it was not necessary to use actual force to eject, in order to break the continuity of possession and use.2 If a suit is brought within twenty years against the occupants of a mill-dam and is compromised, this fact is admissible in evidence to rebut the presumption of an easement by prescription.3 In Kimball v. Ladd,4 the Supreme Court of Vermont held that acts may amount to acquiescence, even when there are verbal objections, and that the owner of a lower mill, who claims the right to have the water come to him through the flume and gates of an upper mill, may acquire a prescriptive right to the continued flow of the water as the upper mill-owner permits it .to run, whatever the latter may say in denial of his claim.
§ 333. Long enjoyment of an easement establishes a right to the easement, but not to the land itself,5 and the acquisition, by adverse enjoyment, of the privilege of ponding back water on another's land does not prevent the latter from conveying the right of soil.6 A riparian proprietor whose title extends usque ad filum aquae, may acquire by
1 Ibid.; Chicago Railway Co. v. ■ 2 Powell v. Bagg, 8 Gray, 441; Hoag, 90 111.339; Stillman v. White Tracy v. Atherton, 36 Vt. 514; InRock Co., 3 Wood. & M. 633, 549; graham v. Hough, 1 Jones, 39. Nichols v. Aylor, 7 Leigh, 546; Field 8 Postlethwaite v. Payne, 8 Ind. v. Brown, 24 Gratt. 74; Tyler v. Wil- 104; Eaton v. Swansea Waterworks kinson, 4 Mason, 397 ; Pierce v. Cloud, Co., 17 Q. B. 267. See Langford v. 42 Penn. St. 102. Where a dam is Poppe, 56 Cal. 73. built under authority from the State, 4 42 Vt. 747.
acquiescence is not presumed on the s Schuylkill Navigation Co. v. Stoe
part of the owner of land flowed by ver, 2 Grant Cas. 462. the dam. Jes9up v. Loucks, 55 Peun. 6 Everett v. Dockery, 7 Jones (N.
St. 350. C.) 390.
prescription the right to maintain a dam across the stream and to abut it on the opposite shore.i If there is no claim of right to the land on which the dam is built, only an easement will be gained; but the erection of a dam on the land of another, and maintaining it, uninterruptedly and under a claim of right to the land for a period of twenty years, with the acquiescence and knowledge of the owner of the land, and during all the same period Mowing the land of a third person above on the stream with his knowledge and acquiescence, gives a title by adverse possession to the land on which the dam is located, and a right by prescription to flow the land of such third person situated above on the stream.2 If a highway extending across a stream is used as a dam for twenty years without interruption on the part of the State, or objection on the part of the owner of land which is flowed by the pond, the latter cannot maintain an action for the injury to his laud.3 In support of a claim of title to the whole bed of a river on which the plaintiffs land bounds, he is entitled to submit to the jury acts of ownership, such as the taking of stones, not only in that part of the river which lies between the lands of the plaintiff and the defendant, but along the bed of the river beyond the defendant's land.4 In Ridgway v. Ludlow,6 in Indiana, it was held that a title acquired by adverse possession to land adjoining an unnavigable lake within the congressional survey carried with it the bed of the lake to its thread, and that the entry of the original owner, within the period of prescription, upon the bed of the lake, from which the water had receded, and the removal therefrom of its natural products, did not affect the claimant's title, these acts not being with his knowledge, or accompanied by any assertion of ownership.
i Bliss V. Rice, 17 Pick. 23; Pratt v. 3 Borden v. Vincent, 24 Pick. 301;
Lamson, 2 Allen, 275, 288; Beidel- Lawrence v. Fairhaven, 5 Gray, 114;
man v. Foulk, 5 Watts, 308; Burn- Perley v. Hilton, 55 N. H. 444.
ham v. Kempton, 44 N. H. 78. 4 Jones v. Williams, 2 M. & W. 326;
3 Trask v. Ford, 39 Maine, 437; Attorney General v. Portsmouth, 25
Chalk v. McAlily, 11 Rich. (S. C.) W. R. 559.
153; Perrin v. Garfield, 37 Vt. 304; 6 58 Ind. 248. See Clarke v. WagThompson v. Androscoggin Bridge, ner, 74 N. C. 791. 5 Maine, 62; Dryden v. Jcpherson, 18 Pick,
§ 334. In order to establish the presumption of a right or easement in the lands or waters of another person, the enjoyment must have been uninterrupted, adverse, and under a claim of right, and with the knowledge of the owner.1 It must have been inconsistent with or contrary to the interests of the owner, and of such a nature that it is difficult or impossible to account for it except on the presumption of a grant from him.2 If the use or enjoyment has been consistent with the continuance of his right or title, no such presumption arises. In order to establish a prescriptive right to a certain flow of water from another's reservoir higher up the stream, the owner of the dam must not have merely permitted the water to flow as demanded without intending to acknowledge any right on the part of the lower proprietor, for so equivocal an act would not justify a presumption of an adverse user or enjoyment.3 So, the erection of a dam across a stream to raise a head of water for the purpose of driving wheels and machinery in a mill, and the cutting of canals, sluices, and water-ways to conduct, apply, and discharge the water, although they may change in some degree the natural flow of the stream and cause a temporary obstruction to the passage of the water, yet, if the}' do not essentially affect the reasonable use of the current by the riparian proprietors above and below for similar purposes, they would not be inconsistent with the rights of such proprietors, and would not be deemed to confer any right or to take away any title or privilege.4 If, on the other hand, the