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turbary will prima fucie cease. If he show an intention to build another mill or another house, his right continues. But if he pulls down the house or the mill without showing any intention to make a similar use of the land, and after a long period of time has elapsed, builds a house or mill corresponding to that which he pulls down, that is not the renovation of the old house or mill, but the creation of a new thing, and the rights which he had in respect of the old house or mill, dlo not in my opinion attach to the new one. In this case, I think, the building of a blank wall is a stronger circumstance to show that he had no intention to continue the enjoyment of his light than if he had merely pulled down the house. In that case he might have intended to substitute something in its place. Here, he does in fact substitute quite a different thing,
a wall without windows. There is not only nothing to show that he meant to renovate the house so as to make it a continuance of the old house, but he actually builds a new house different from the old one, thereby showing that he did not mean to renovate the old house. It seems to me, therefore, that the right is not renewed as it would have been if, when he had pulled down the old house, he had shown an intention to rebuild it within a reasonable time, although he did not do so eo instanti.
LITTLEDALE, J. According to the present rule of law a man may acquire a right of way, or a right of common (except, indeed, common appendant) upon the land of another, by enjoyment. After twenty years' adverse enjoyment the law presumes a grant made before the user commenced, by some person who had power to grant. But if the party who has acquired the right by grant ceases for a long period of time to make use of the privilege so granted to him, it may then be presumed that he has released the right. It is said, however, that as he can only acquire the right by twenty years' enjoyment, it ought not to be lost without disuse for the same period; and that as
pyment for such a length of time is necessary to found a presumption of a grant, there must be a similar non-user, to raise a presumption of a release. And this reasoning, perhaps, may apply to a right of common or of way. But there is a material difference between the mode of acquiring such rights and a right to light and air. The latter is acquired by mere occupancy; the former can only be acquired by user, accompanied with the consent of the owner of the land; for a way over the lands of another can only be lawfully used, in the first instance, with the consent, espress or implied, of the owner. A party using the way without such consent would be a wrongdoer; but when such a user, without interruption, has continued for twenty years, the consent of the owner is not only implied during that period, but a grant of the easement is presumed to have taken place before the user commenced. The consent of the owner of the land was necessary, however, to make the user of the way (from which the presumption of the grant is to arise) lawful in the first instance. But it is otherwise as to light and air. Every man on his own land has a right to all the light and air which will come to him, and he may erect, even on the extremity of his land, buildings with as many windows as he pleases. In order to make it lawful for him to appropriate to himself the use of the light, he dees not require any consent from the owner of the adjoining land. He therefore begins to acquire the right to the enjoyment of the light by mere occupancy. After he has erected his building the owner of the adjoining land may, afterwards, within twenty years, build upon his own land, and so obstruct the light which would otherwise pass to the building of his neighbor. But if the light be suffered to pass without interruption during that period to the building so erected, the law implies, from the nonobstruction of the light for that length of time, that the owner of the adjoining land has consented that the person who has erected the building upon his land shall continue to enjoy the light without obstruction, so long as he shall continue the specific mode of enjoyment which he had been used to have during that period. It does not, indeed, imply that the consent is given by way of grant; for although a right of common (except as to common appendant) or a right of way being a privilege of something positive to be done or used in the soil of another man's land, may be the subject of legal grant, yet light and air, not being to be used in the soil of the land of another, are not the subject of actual grant; but the right to insist upon the non-obstruction and non-interruption of them more properly arises by a covenant which the law would imply not to interrupt the free use of the light and air. The right, therefore, is acquired by mere occupancy, and ought to cease when the person who so acquired it discontinues the occupancy. If, therefore, as in this case, the party who has acquired the right once ceases to make use of the light and air which he had appropriated to his own use, without showing any intention to resume the enjoyment, he must be taken to have abandoned the right. I am of opinion, that as the right is acquired by mere user, it may be lost by non-user. It would be most inconvenient to hold, that the property in light and air, which is acquired by occupancy, can only be lost where there has been an abandonment of the right for twenty years. I think, that if a party does any act to show that he abandons his right to the benefit of that light and air which he once had, he may lose his right in a much less period than twenty years. If a man pulls down a house and does not make any use of the land for two or three years, or converts it into tillage, I think he may be taken to have abandoned all intention of rebuilding the house; and, consequently, that his right to the light has ceased. But if he builds upon the same site, and places windows in the same spot, or does anything to show that he did not mean to convert the land to a different purpose, then his right would not cease.
In this case, I think that the owner of the plaintiff's premises abandoned his right to the ancient lights, by erecting the blank wall instead of that in which the ancient windows were ; for he then indicated an intention never to resume that enjoyment of the light which he once had. Under those circumstances, I think that the temporary disuse was a complete abandonment of the right.
(Reported 7 Bing. 682.) Tindal, C. J.? It will be unnecessary on the present occasion to consider more than one of the questions which have been argued at the bar; namely, whether the present action, upon the facts stated in the award of the arbitrator, is maintainable against the defendants.
The action is, in point of form, an action of tort, and charges the defendants with wrongfully continuing a certain weir or fletcher, which the defendants had before erected upon one of the banks of the river, and by that means wrongfully continuing the diversion of the water, and preventing it from flowing to the plaintiff's mill in the manner it bad been formerly accustomed to do.
It appeared in evidence before the arbitrator that the bank of the river, which had been cut down, was the soil of the defendants; and that the same had been cut down and lowered, and the weir erected, and the water thereby diverted by them, the defendants, and at their expense, in the year 1822, under a parol license to them given for that purpose by the plaintiff's father, the then owner of his mill; and that in the year 1827 the plaintiff's father represented to the defendants that the lowering and cutting down the bank were injurious to him in the enjoyment of his mill, and had called upon them to restore the bank to its former state and condition ; with which requisition the defendants had refused to comply.
The question, therefore, is, whether such non-compliance, and the keeping the weir in the same state after, and notwithstanding the countermand of the license, is such a wrong done on the part of the defendants as to make them liable to this action.
The argument on the part of the plaintiff has been, that such parol license is, in its nature, countermandable at any time at the pleasure of the party who gave it. That to hold otherwise would be to allow to a parol license the effect of passing to the defendants a permanent interest in part of the water which before ran to the plaintiff's mill; which interest, at common law, could only pass by grant under seal, being an
* See Stokoe v. Singers, 8 E. & B. 31 ; Ecclesiastical Commissioners v. Kino, 14 Ch. Div. 213; Taylor v. Hampton, 4 McCord, 96 ; Hayford v. Spokesfield, 100 Mass. 491.
* The opinion only is given.
incorporeal hereditament, and which, at all events, would be determinable at the will of the grantor since the Statute of Frauds, as being “an interest in, to, or out of lands, tenements, and hereditaments."
If it was necessary to hold that a right or interest in any part of the water, which before tlowed to the plaintiff's mill, must be shown to have passed from the plaintiff's father to the defendants under the license, in order to justify the continuance of the weir in its original state, the dilliculty above suggested would undoubtedly follow. For it cannot be denied that the right to the flow of the water, formerly belonging to the owner of the plaintiff's mill, could only pass by grant, as an incorporeal hereditament, and not by parol license.
But we think the operation and effect of the license, after it has been completely executed by the defendants, is sufficient, without holding it to convey any interest in the water, to relieve them from the burden of restoring to its former state what has been done under the license, although such license is countermanded ; and, consequently, that they are not liable to an action as wrongdoers for persisting in such refusal.
The parol license, as it is stated in the award of the arbitrator, was a license to cut down and to lower the bank and to erect the weir. Strictly speaking, if the license was to be confined to those terms, it was at once unnecessary and inoperative; for the soil being the property of the defendants, they would have the right to do both those acts without the consent of the owner of the lower mill. But as the diversion of part of the water which before flowed to that mill would be the necessary consequence of such acts, it must be taken that the object and effect of such license was to give consent, on the part of the plaintiff's father, to the diverting of the water by means of those alterations.
We do not, however, consider the object, and still less the effect, of the parol license, to be the transferring from the plaintiff's father to the defendants any right or interest whatever in the water which was before accustomed to flow to the lower mill, but simply to be an acknowledg. ment, on the part of the plaintiff's father, that he wanted such water no longer for the purposes of his mill; and that he gave back again and yielded up, so far as he was concerned, that quantity of water which found its way over the weir or fletcher, which he then consented should be erected by the defendants. And we think, after he has once clearly signified such relinquishment, whether by words or acts, and suffered other persons to act upon the faith of such relinquishment, and to incur expense in doing the very act to which his consent was given, it is too late then to retract such consent, or to throw on those other persons the burden of restoring matters to their former state and condition.
Water flowing in a stream, it is well settled, by the law of England, is publici juris. By the Roman law running water, light, and air, were considered as some of those things which had the name of res communes, and which were defined “things, the property of which belong to no person, but the use to all.” And, by the law of England, the person who first appropriates any part of the water flowing through his land to
his own use, has the right to the use of so much as he thus appropriates, against any other. Beuley v. Shaw and Others, 6 East, 207. And it seems consistent with the same principle that the water, after it has been so made subservient to private uses by appropriation, should again become publici juris by the mere act of relinquishment. There is nothing unreasonable in holding that a right which is gained by occupancy should be lost by abandonment. Suppose a person who formerly had a mill upon a stream should pull it down, and remove the works, with the intention never to return. Could it be held that the owner of other land adjoining the stream might not erect a mill and employ the water so relinquished? Or that he could be compellable to pull down his mill if the former mill-owner should afterwards change his determination and wish to rebuild his own?
In such a case it would undoubtedly be a subject of inquiry by a jury, whether he had completely abandoned the use of the stream, or had left it for å temporary purpose only; but that question being once determined, there seems no ground to contend that an action would be maintainable against the person who erected the new mill, for not pulling it down again after notice. And if, instead of his intention remaining uncertain upon the acts which he had done, the former proprietor had openly and expressly declared his intention to abandon the stream, – that is, if he had licensed the other party to erect a mill, — the same inference must follow with greater certainty. Or suppose A. authorizes B., by express license, to build a house on B.'s own land, close adjoining to some of the windows of A.'s house, so as to intercept part of the light: could he afterwards compel B. to pull the house down again, simply by giving notice that he countermanded the license? Still further, this is not a license to do acts which consist in repetition, as to walk in a park, to use a carriage way, to fish in the waters of another, or the like, which license, if countermanded, the party is but in the same situation as he was before it was granted ; but this is a license to construct a work which is attended with expense to the party using the license; so that, after the same is countermanded, the party to whom it was granted may sustain a heavy loss. It is a license to do something that, in its own nature, seems intended to be permanent and continning. And it was the fault of the party himself, if he meant to reserve the power of revoking such a license, after it was carried into effect, that he did not expressly reserve that right when he granted the license, or limit it as to duration. Indeed the person who authorizes the weir to be erected becomes, in some sense, a party to the actual erection of it, and cannot afterwards complain of the result of an act which he himself contributed to effect.
Upon principle, therefore, we think the license in the present case, after it was executed, was not countermandable by the person who gave it, and consequently that the present action cannot be maintained. And, upon authority, this case appears to be already decided by that of Winter v. Brockwell [8 East, 308], which rests on the judgment in