does some act to show that he means to resume it within a reasonable time."

And Littledale, J., said, "The right 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 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 shorter period than twenty years. 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 these circumstances, I think that the temporary disuse was a complete abandonment of the right."

In a later case where the question was, whether a private right of way, which was inconsistent with the public user thereof, had been released or abandoned, Platt, B., told the jury that no interruption by the public for a shorter period than twenty years would destroy the right. But the Court of Queen's Bench made a rule absolute for a new trial on the ground of

misdirection. In delivering the judgment of the court, Lord Denman, C. J., said, " The question in the cause really was the continuing existence of that private right; or, to put it in other words, whether that right, once well commenced, had been in any way released, abandoned, or destroyed. The mode in which the prosecutor contended that the right must be taken to have come to an end was, by the public user and obstruction, inconsistent, as it was said, with the assertion of the private easement; and this gave occasion to the ruling which is complained of. The learned judge appears to have told the jury that no interruption by the public for a shorter period than twenty years would destroy the right. If this was laid down as a rule of law, or even as a conclusive presumption of fact, we think in the former case it was erroneous, and in the latter would be likely to mislead the jury, as turning their attention to a definite period of time as the ground for decision, when time might in truth be wholly immaterial, or only in part material. The learned judge appears to have proceeded on the ground, that as twenty years' user in the absence of an express grant would have been necessary for the acquisition of the right, so twenty years' cesser of the use, in the absence of any express release, was necessary for its loss. But we apprehend, that as an express release of the easement would destroy it at any moment, so the cesser of use, coupled with any act clearly indicative of an intention to abandon the right, would have the same effect without any reference to time. It is not so much the duration of the cesser as the nature of the act done by the grantee of the easement, or of the adverse act acquiesced in by him, and the intention

in him which either the one or the other indicates, which are material for the consideration of the jury. The period of time is only material as one element from which the grantee's intention to retain or abandon his easement may be inferred against him; and what period may be sufficient in any particular case must depend upon all the accompanying circumstances" (d).

In Stokoe v. Singers (e), the same principle was approved, though, as the evidence in that case was to the effect that the owner of the dominant tenement had not contemplated the abandonment of his right, the decision was in his favour. The facts were as follows: The plaintiff's predecessor was owner of a house in which there were ancient windows. He blocked them up; but the appearance of the premises was such that it was obvious to a spectator from without that there had formerly been windows; and it was disputed whether it would or would not appear that there were still windows there. Nineteen years after this, the defendant, having become owner of the adjoining land, showed an intention of building on it in a manner which would prevent the plaintiff from ever again opening the blocked-up windows. The plaintiff thereupon opened the windows in order to assert his right. The defendant erected a hoarding on his own land so as to obstruct these windows, and for this obstruction the action was brought. Martin, B., told the jury, that, assuming the right had existed, the question would arise whether it had ceased. He explained at considerable length that there were various ways in which

(d) Reg. v. Chorley, 12 Q. B. 518.

(e) 8 Ell. & Bl. 31.

the right might be lost. He stated that the right might be lost by an abandonment, and that closing the windows with the intention of never opening them again would be an abandonment destroying the right, but closing them for a mere temporary purpose would not be so. He also stated that though the person entitled to the right might not really have abandoned his right, yet, if he manifested such an appearance of having abandoned it as to induce the owner of the adjoining land to alter his position in the reasonable belief that the light was abandoned, there would be a preclusion as against him from ever claiming the right. The jury found for the plaintiff. A rule for a new trial was allowed on the ground of misdirection "in directing the jury to find for the plaintiff, unless they were satisfied that the lights referred to in the evidence had been closed with the intention of never opening them again." But the Court of Queen's Bench discharged the rule, saying, " Taking the whole summing up together, it seems to us that the true points were left by the judge to the jury, and found for the plaintiff. We consider the jury to have found that the plaintiff's predecessor did not so close up his lights as to lead the defendant to incur expense or loss on the reasonable belief that they had been permanently abandoned, nor so as to manifest an intention of permanently abandoning the right of using them."

The point was much discussed by the judges during the course of the argument. Lord Campbell, C. J., doubted whether the communication of the intention to abandon destroyed the right until the communication was acted on, when it certainly did. But Erle, J., felt inclined to say, that the intention permanently to

abandon the right to light would destroy the right as soon as communicated to the owners of the servient tenement, without the lapse of any time (ƒ).

To this principle may be referred the cases of Winter v. Brockwell (g) and Liggins v. Inge (h). It has been mentioned in the third section of the second chapter, that these cases have been sometimes supposed to support the doctrine that an easement can be created at law by a parol licence. But the true deduction from them is, that a parol licence from the owner of the dominant to the owner of the servient tenement, to do something on his own premises inconsistent with the easement attached to the dominant tenement, will prevent the owner of the dominant tenement from afterwards complaining of injury by the obstruction of or interference with the easement in consequence of the act for which he has so given licence. The licence is incontrovertible evidence of the abandonment of the right, so far as it is inconsistent with the act for which the licence is given.

In Winter v. Brockwell, the plaintiff, who had an ancient window opening into the defendant's area, gave the defendant leave to cover the area by a skylight. After this was done, the plaintiff brought an action for stopping the access of light and air, and communicating stenches to the plaintiff's house by means of

(ƒ) But no presumption will arise of the abandonment of an easement, which, like a right of way, is acquired by adverse enjoyment, from the mere fact of non-user. The non-user in this case must be the consequence of something which is adverse to the user in order that such a presumption should arise. Ward v. Ward, 7 Ex. 838, per ́

Alderson, B.

(g) East, 308.

(h) 7 Bing. 682.