-

Gray and another v. Bond and another, 2 Brod. & Bing. 672. Notes.

because there was something in the nature of the easement there which makes a difference. A landlord may not see windows thrown out, and a tenant may not feel the inconvenience; and this distinction is referred to by LE BLANC, J. But in the present case, there is reasonable ground to presume the knowledge of the land-owner, and the question was properly left to the jury.

BURROUGH, J. Every case of this sort depends on its own circumstances, and the circumstances here place the point in a very clear light. Every act done by the plaintiffs for forty-six years, on the locus in quo, would have been a trespass, if they had not a right of landing there; but from 1774 to the present time, all these acts have been done openly and the only question is, whether there were any facts from which a Judge could leave it to a jury to presume a grant of the right in question. Undoubtedly, the circumstances were such as could scarcely have occurred without the knowledge of the owner.

RICHARDSON, J.-This is not like a case of injuries arising to an owner from the collusion of his tenant; the question is, whether or no Mr. Preston had knowledge of what was taking place on his land; and I think the case was properly left to the jury.

Judgment for the plaintiffs.

ENGLISH NOTES.

The principle is the same as that applied in Dalton v. Angus (H. L. 1881), 10 R. C. 98 (6 App. Cas. 740).

The case of Gray v. Bond is used here as a more simple application of the principle. The chief difficulty in Dalton v. Angus arose from the suggestion that the right of support was a merely negative easement. It is, however, well shown in the judgment of BOWEN, J. (10 R. C. 111), reinforced by that of Lord WATSON in the House of Lords (10 R. C. 156), that the principle underlying both cases is the

same.

Where the use of the tenement is not essentially public, knowledge of the use by the owner of the tenement charged with the user is an essential element. Gately v. Martin, Limited, 1900, 2 I. R. 269.

The above-cited case of Dalton v. Angus was a case of lateral support for buildings acquired by twenty years' enjoyment. The distinction is made, as to this kind of easement, between the right to lateral support as to land and as to artificial structures or buildings erected thereon. In Gilmore v. Driscoll, 122 Massachusetts, 199, 207, the authorities are reviewed by GRAY, Ch. J., who said that this right is only in the land in its natural condition, and does not include injury to improvements thereon, and who thus expressed doubt whether this right can be acquired by prescription: "It is difficult to see how the owner of a house can acquire by prescription a right to have it supported by the adjoining land, inasmuch as he does nothing upon, and has no use of, that land, which can be seen or known or interrupted or sued for by the owner thereof, and therefore no assent of the latter can be presumed to the acquisition of any right in his land by the former." See White v. Dresser, 135 Massachusetts, 150; Mears v. Dole, id. 508; Adams v. Marshall, 138 id. 228; Cabot v. Kingman, 166 id. 403. The subject has received much attention in this country; and while the decisions are not harmonious, the weight of authority appears to be opposed to the gaining of such right by prescription. See the authorities collected and reviewed in the lengthy note to Larson v. Metropolitan Street Ry. Co. 110 Missouri, 234, 33 American State Reports, 439; Jones on Easements, c. 14; 3 Kent's Commentaries (14th ed.), 437, notes.

As continuity of possession is an essential element in the acquisition of any right by prescription, an occasional user of another's land, in a customary way, for a particular purpose, such as the gathering of seaweed, will not be sufficient to sustain a right by adverse possession. East Hampton Trustees v. Kirk, 68 New York, 459. So, such acts as the payment of taxes, occasional visits to the land to look after it, or an occasional cutting of grass or timber therefrom by a trespasser, though long-continued, are not such user as will give title by adverse possession. Reddick v. Long, 124 Alabama, 260; Fleming v. Katahdin Pulp & Paper Co., 93 Maine, 110; Armstrong v. Hufty (Ind.), 55 Northeastern Rep. 443; Barr v. Potter (Ky.), 57 Southwestern Rep. 478; 1 American Cyclopædia of Law and Procedure, p. 1106. And as the possession must be adverse as well as continuous, the mere user for the feeding of cattle of the land of the seashore, or of salt meadows adjacent to it, which are not always worth the trouble and expense of enclosing them, will not, though continued for a much longer period than twenty years, justify an inference of title in the owner of the cattle. Donnell v. Clark, 19 Maine, 174, 183; Thomas v. Marshfield, 10 Pickering (Mass.), 364, and 13 id. 240; Nye v. Alfter, 127 Missouri, 529; Swan v. Goff, 56 New York Supplement, 690; Whitaker v. Erie Shooting Club, 102 Michigan, 454; Wheeler v. Gorman, 80 Minnesota 462; Stanberry v. Mallory, 101 Kentucky, 49; Murphy v. Welder, 58 Texas, 235. Merely from using what is open to use, without more, raises no presumption that the use is adverse. Thomas v. Marshfield, supra; Hall v. McLeod, 2 Metcalfe (Ky.), 98; Washburn on Easements (4th ed.), 135.

Gray and another v. Bond and another. - Notes.

With respect to the use of shore and banks of navigable waters for the purpose of landing, it appears to be now settled in this country that such right may be acquired by user, so far as travel is concerned, but not the right to use the land as a place of deposit for merchandise, or timber landed from or about to be shipped on vessels; and that the mere user, by the individual inhabitants of a town, of a landing-place is not evidence of possession by the town in its corporate capacity. Green v. Chelsea, 24 Pickering (Mass.), 71; Gould on Waters (3d ed.), ss. 105, 106; Angell on Highways (3d ed.), ss. 132, 143, 152. The open and public exercise of any public right cannot amount to such possession as constitutes a disseisin. Drake v. Curtis, 1 Cushing (Mass.), 395; Tracy v. Norwich & Worcester R. Co., 39 Connecticut, 382; Deering v. Long Wharf, 25 Maine, 51, 65; Boulo v. New Orleans, Mobile & Texas R. Co., 55 Alabama, 480.

As to prescriptive rights in ways, by user of the public as a public right there must be something to show that the way is used as a public way rather than an open private way, since the latter remains private unless use by the public under a claim of right is shown. Sargent v. Ballard, 9 Pickering (Mass.), 251; Durgin v. Lowell, 3 Allen (Mass.), 398; Danforth v. Durell, 8 id. 242; Angell on Highways (3d ed.), ss. 131, 151. As to such user, it is said in a recent case: "It has sometimes been suggested that the comparative amount of rightful private use and of the public use which is without absolute right is an important element in determining whether such public use is under a claim of right. No doubt the amount of such unauthorized use may be considered as tending to show a use under the belief that the way is a public one; but the final test is, not whether it is greater or less in amount than the rightful private use, but whether it is of such a character as to show the assertion or assumption of a right so to use the way, or a use under the belief that such use is a matter of public right. See Weld v. Brooks, 152 Massachusetts, 297; Taft v. Commonwealth, 158 id. 526, 552." And while it is not necessary for each traveller to claim a right of way as one of the public, yet "the fact must exist that the way is used as a public right, and it must be proved by some evidence which distinguishes the use relied on from a rightful use by those who have a right to travel over the private way, and also from a use which is merely casual, or incidental, or permissive." Sprow v. Boston & Albany R. Co., 163 Massachusetts, 330, 340.

An easement by prescription is now usually treated as resting upon the fiction of a lost grant; but a lost grant is not presumed in the case of an easement the origin of which is known. See Edson v. Munsell, 10 Allen (Mass.), 557, 567; Smith v. New York & New England R. Co., 142 Massachusetts, 21, 23; Claflin v. Boston & Albany R. Co., 157 id. 489; Jones on Easements, c. 4. And while the right to draw a seine or net upon another's land is recognized as an easement, the extent of the right, when acquired by prescription, is determined by the previous user. Hart v. Hill, 1 Wharton (Penn.), 124, 138. A right of fishery in another's stream is not an easement, but is a profit à prendre which can be acquired by prescription only as belonging to a particular estate. See Jones on Easements, s. 49 et seq.; Gould on Waters (3d ed.), ss. 24, 184.

Wheelwright v. Walker, 23 Ch. D. 752.- Rule.

VENDOR AND PURCHASER (OF LAND).

[See "CONTRACT," sect. x. "SPECIFIC PERFORMANCE," 6 R. C. 647; see also Nos. 65, 66, 67, 68 & 69, 70 & 71, 72 of " CONTRACT," and notes 6 R. C. 668 et seq., passim ; Nos. 3 & 4, 5, of "LAND," 15 R. C. 254-296; Nos. 3 & 4 of "LANDLORD AND TENANT," and notes 15 R. C. 307 et seq.; Nos. 47 & 48 of " MORTGAGE," 18 R. C. 442-458; "PURCHASER FOR VALUE WITHOUT NOTICE," 21 R. C. 702 et seq.; Nos. 1, 2, & 4 of "SETTLED LAND ACTs," 24 R. C. 42 et seq.]

WHEELWRIGHT v. WALKER.

(1883.)

RULE.

THE tenant for life, under the powers of the Settled Land Acts, has absolute power at his own pleasure (only complying with the requirements of the Acts) to take the land out of settlement and convert it into money: provided that at the time of sale there are in existence trustees of the settlement expressly (whether by the settlement itself or by Order of the Court) appointed for the purposes of the Act, or trustees having a then present and immediate power of sale or power to consent to a sale, and that notice of the intended sale is given (pursuant to sect. 45 of the Act of 1882) by the tenant for life to the trustees.

Wheelwright v. Walker.

23 Ch. D. 752-763 (s. c. 52 L. J. Ch. 274; 48 L. T. 70; 31 W. R. 363).

[752] Settled Land Act, 1882 (45 & 46 Vict. c. 38). - Will made in 1834 creating Trust for Sale by Trustees after Death of Tenant for Life.—Sale of Property by the Reversioner in 1880. — Notice under sect. 45 by Tenant for Life to Trustees of Settlement. Power of Tenant for Life to sell the Fee Simple. J. W., by his will, devised an estate to trustees upon trust to receive and pay the rents to his grandson for life, and after his decease to sell and to stand possessed of the moneys for all the grandson's children. The tenant for life was upwards of seventy years of age, and a widower. He had one child only, a daughter, and she and her husband in July, 1880, contracted

Wheelwright v. Walker, 23 Ch. D. 752, 753.

to sell her reversion in the estate to the plaintiff. The Settled Land Act (45 & 46 Vict. c. 38) came into operation in January, 1883, and the tenant for life at the end of that month advertised the estate for sale under the powers of the Act. The plaintiff brought an action for an injunction to restrain the tenant for life from selling; and to restrain the other defendants, devisees of the legal estate under the will of the survivor of trustees of J. W.'s will appointed by the Court, from executing any assurance of the estate, and on motion for that

Held, that the tenant for life had power under the Act to sell the fee simple and inheritance of the property if he should comply with the provisions of the Act; but held also that there were no trustees to whom he could under sect. 45 give notice; and an injunction was granted to restrain 'him from selling until trustees had been properly appointed for the purposes of the Act.

Held, also, that the plaintiff was entitled to be served with any summons for the appointment of new trustees, and (the plaintiff objecting) that the defendant's solicitor ought not to be appointed.

John Walker, who died in 1836, by his will made in December, 1834, after appointing three executors and trustees, devised to them and the survivors and survivor and the heirs of such survivor the hereditaments and premises called the "Goat House" estate, near Ripponden, Yorkshire, and directed them to let and manage and receive the rents and profits thereof. He gave an annuity for life to a granddaughter (who died in 1853), and directed that after her death the trustees should raise the sum of £500 on mortgage for the benefit of her children, or in default of any to be paid to other persons named. The testator then directed that the trustees should, subject to the annuity and

* mortgage, be seised of the estate in trust for his grand- [* 753] son John Walker (the first named defendant) and his assigns, and should receive and pay the rents to him or them or suffer him or them to receive them, after keeping the premises in good repair, for his life, and after his decease upon trust to sell and dispose of the estate by public auction or private contract, either together or in lots, and at one time or at different times, and should stand possessed of the moneys upon trust for all and every the children or child of John Walker, to become vested as to sons at twenty-one years of age, and daughters at that age or marriage. A mortgage was effected by the surviving trustee of the will in 1853 for the sum of £500.

John Walker was at the commencement of this action a widower upwards of seventy years of age. He had one child, Elizabeth, the wife of Ezra France, and they had three children, all in