of years, had built a workshop for the purposes of his trade, removable as between landlord and tenant, and had opened a window in this building. It was held, that no covenant from the owner or occupier of the adjoining land could be implied under such circumstances (i).

Moreover, under the old law, the rule, that twenty years' uninterrupted possession was evidence from which a jury might presume a grant, had to be taken with the qualification, that the possession was with the acquiescence of him who was seised of an estate of inheritance; for a tenant for life or years had no power to grant any such right for a longer period than during the continuance of his particular estate. If a tenant for life or years permitted another to enjoy an easement on his estate for twenty years or upwards without interruption, and then the particular estate determined, such user would not affect him who had the inheritance in reversion or remainder; but when it vested in possession he might dispute the right to the easement (j).

It was accordingly held in a case where a person had put out lights and enjoyed them for more than twenty years without interruption from the owner of the opposite premises, who was a tenant for years, that the enjoyment of such an easement without the knowledge of the landlord would not affect the latter on the determination of the lease; and, consequently, that a succeeding tenant under the same landlord was not liable to an action for raising his premises, and thereby obstructing the opposite light (k). It was also settled

(i) Maberley v. Dowson, 5 L. J., K. B. 261.

(j) Yard v. Ford, 2 Wms. Saund. 175e.

(k) Daniel v. North, 11 East, 372. Vide as to the application of this

that a tenant could not by his own admission bind his landlord (7). And where lights had been enjoyed for more than twenty years over land part of a glebe, which was then, under 55 Geo. 3, c. 147, conveyed to the defendant, and he built thereon and obstructed the light; it was held, that even if a grant could be presumed, it must have been made by a tenant for life, and therefore was invalid (m).

The rigour of this rule was indeed relaxed in practice by the landlord's knowledge being implied from the circumstances of the case. As in one instance, where a piece of the waste land had been enclosed, Lord Ellenborough laid down, that the continuous view of the steward acting under the same lord without objection might be sufficient ground for the jury to presume a licence (n).

And even more liberal were the suggestions of Shadwell, V.-C., before whom it was argued that a dean and chapter could not grant an easement so as to injure their successors, and that no grant could be presumed against a body who were incapable of making one. The Vice-Chancellor said, "The right which a man has in his own property is materially affected by the manner in which the owners of the adjoining property have dealt with their property. Therefore it does not follow, because the Dean and Chapter of Westminster cannot injure their successors, that the circumdecision, Cross v. Lewis, 2 B. & C. 686 ; 4 D. & R. 234. The same rule has been applied since the Prescription Act to a right of way. Bright v. Walker, 1 C. M. & R. 211.

(1) Reg. v. Bliss, 7 Ad. & E. 554.

(m) Barker v. Richardson, 4 B. & Ald. 579. To the same effect are Wall v. Nixon, 3 Smith, 316; Wood v. Veal, 5 B. & Ald. 454. (n) Doe d. Foley v. Wilson, 11 East, 56.

stance of houses having been built on the adjoining land may not of itself operate as a reason, at law, why the dean and chapter should not have the right to erect the building in question." The same reasoning, he implied, would apply to the crown (o).

Still in very many cases the acquisition of a right to window lights over land occupied by tenants for life or years was difficult, if not impossible. And the general rule of law that enjoyment to give a title to an easement must be neither by force, stealth, or favour," nec vi, nec clam, nec precario," placed other obstacles in the way of its acquisition (p).

In this state of things, in 1832, the statute of 2 & 3 Will. 4, c. 71, known as the Prescription Act, was passed. The object of this act was to shorten the period of prescription, and to make possession a bar or title of itself, instead of having recourse to the intervention of a jury to make it so (q).

The sections of the act which relate to the acquisition of the right to window lights are as follows:

Sect. 3. "When the access and use of light to and for any dwelling-house, workshop, or other building shall have been actually enjoyed therewith for the full period of twenty years without interruption, the right thereto shall be deemed absolute and indefeasible, any local usage or custom to the contrary notwithstanding, unless it shall appear that the same was enjoyed by some consent or agreement expressly made or given for that purpose by deed or writing."

Sect. 4. "Each of the respective periods of years

(0) Sutton v. Lord Montfort, 4 Sim. 564.

(p) Co. Litt. 113b.

(q) Bright v, Walker, 1 C. M. & R. 218.

hereinbefore mentioned shall be deemed and taken to be the period next before some suit or action wherein the claim or matter to which such period may relate shall have been or shall be brought into question, and no act or other matter shall be deemed to be an interruption, within the meaning of the statute, unless the same shall have been or shall be submitted to or acquiesced in for one year after the party interrupted shall have had or shall have notice thereof, and of the person making or authorising the same to be made."

Since the passing of this act, the right to window lights, acquired by occupancy, has become a matter juris positivi, depending on positive enactment; and is no longer to be rested on any supposed presumption of grant or fiction of a licence.

In the great case of Tapling v. Jones (r), Lord Westbury, C., said, "It is material to observe that the right to what is called an ancient light now depends upon positive enactment. It is matter juris positivi, and does not require, and therefore ought not to be rested on, any presumption of grant or fiction of a licence having been obtained from the adjoining proprietor. This observation is material, because I think it will be found that error in some decided cases has arisen from the fact of the courts treating the right as originating in a presumed grant or licence."

And in the same case it was said by Lord Chelmsford, "The courts of law formerly held that where there had been an uninterrupted use of lights for twenty years, it was to be presumed that there was some grant of them by the neighbouring owner, or, in other words,

(?) 11 H. L. Cas. 290; 34 Law J. Rep. N. S., C. P. 342.

that he had by some agreement restricted himself in the otherwise lawful employment of his own land. The Prescription Act turned this presumption into an absolute right, founded upon user on one side, and acquiescence on the other. It was argued that under the act the right to the enjoyment of lights was still made to rest on the footing of a grant; this position seems to me to be contrary to the express words of the statute." By the Prescription Act, then, after twenty years' user of lights, the owner of them acquires an absolute and indefeasible right, which so far restricts the adjoining owner in the use of his own property, that he can do nothing upon his premises which may have the effect of interrupting them."

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Since the passing of this act, the rule before alluded to, that the possession required to confer a right to an easement must be nec vi, nec clam, nec precario," seems no longer to have any application to the acquisition of the right to window lights by occupancy. Force cannot be employed, for the easement is to be acquired by acts done upon a man's own soil. Stealth is out of the question in the case of a continuous easement like this, which, moreover, is what the French Code calls "an apparent servitude," one the existence of which is shown by external works (s). And as to favour, it is to be remarked, that the 3rd section makes the exception in behalf of light of not requiring the enjoyment of it to be "by a person claiming right thereto," in order to draw to itself after the lapse of the prescribed time the character of a right.

(8) Code Civil, 689. "Les servitudes apparentes sont celles qui s'annoncent par des ouvrages extérieurs, tels qu'une porte, une fenêtre, un aquéduc."