acquiesced in for a year. here (d).

There has been none such

Where an obstruction to an ancient light had existed for more than twelve months, but the defendant had promised to remove the obstruction, and twelve months had not elapsed from the date of that promise before proceedings were taken, Kindersley, V. C., held, that there had not been such an interruption of the enjoyment for twelve months as to deprive the plaintiff of his remedy (e). And in a case upon the second section of the act, it was held by the Court of Queen's Bench, that acts of resistance to an interruption, within twelve months of bringing the suit, and before the interruption has been interrupted for a year, prevented the plaintiff's right under the Prescription Act being ousted by the fourth section (f).

By the terms of the fourth section, an interruption of the enjoyment, in whatever period of the twenty years it may occur, cannot be deemed an interruption within the meaning of the act, unless it be acquiesced in for a whole year. Hence follows the somewhat curious result, that a statutory title to the right to window lights may be gained by enjoyment for nineteen years and a portion of a year followed by an inter

(d) Plasterers' Company v. The Parish Clerks' Company, 6 Ex. 635. Lord St. Leonards remarks (in his Treatise on the Real Property Statutes, 2nd edit. p. 174), that the question was not brought before the court on the bill of exceptions, whether the payment might not be made use of to show that this was not such an enjoyment as was contemplated by the statute as capable of conferring the right. This point was, however, decided in The Mayor of London v. The Pewterers' Company, 2 Moo. & R. 409, ante, p. 27.

(e) Gale v. Abbott, 8 Jur. N. S. 987.

(f) Bennison v. Cartwright, 33 Law J. Rep. N. S., Q. B. 137.

ruption for the remaining portion of the last was decided by the House of Lords (g).

Lastly, it must be observed that, by the terms of the fourth section, the prescribed number of years during which enjoyment of an easement must be had in order to acquire a statutory title thereto must be the years next before action brought (h).

And, as a corollary to this rule, in a case where the defendant justified under the Prescription Act for turning water impregnated with metallic substances into the plaintiff's watercourse, it was held that a plea alleging forty years' enjoyment before the commencement of the suit was sufficient, and that enjoyment for that period before the commission of the act complained of need not be alleged (i).

It has also been held, upon the words of the third and fourth sections of the act, the twenty years' enjoyment before any suit or action in which the plaintiff's claim to light and air is brought in question is sufficient to confer the statutory right, and not of necessity twenty years' enjoyment before the suit or action then in progress. "I think the intention was to give enjoyment under the act the same effect as the evidence which would sustain a prescriptive claim before the act, except that the terminus of the statutory enjoyment must be a

(g) Flight v. Thomas, 11 Ad. & E. 688; 8 Cl. & F. 231.

(h) Parker v. Mitchell, 11 Ad. & E. 788; Richards v. Fry, 7 Ad. & E. 698; Ward v. Robins, 15 M. & W. 237; Lowe v. Carpenter, 6 Ex. 825. In this case Parke, B., suggested that some act of user ought to be shown to have occurred once at least in every year of the prescribed number. But this, if so in any case (which may be questioned), would, of course, not apply to a continuous easement. (i) Wright v. Williams, 1 M. & W. 77.

suit or action which discloses the nature of the claim, and gives an opportunity of litigating it. I need hardly refer to authorities (j) to show that the evidence to sustain a prescriptive claim before the act need not have come down to the commencement of the suit, nor to any defined period (k).

To support a claim to the statutory right, enjoyment during the whole period prescribed by the statute must be proved; and it is not allowable for a jury to infer enjoyment for the whole period from proof by the claimant of enjoyment for a part of the period (7).

But evidence of enjoyment before the required period is admissible in order to prove enjoyment during the period. And in a case where a claim of a right of way under the second section was thus supported by proof of enjoyment more than forty years back, Littledale, J., said, "If evidence of user beyond forty years were to be excluded, it might be that, after the case had been carried as far as thirty-eight years back, a discontinuance of proof might occur as to the two or three remaining years, and the party might fail, because he was unable to carry his case on without going to the distance of forty-one years (m).

The statutory right may be acquired by one tenant

(j) Vide Ward v. Ward, 7 Ex. 838.

(k) Cooper v. Hubbuck, 12 C. B., N. S. 470, per Willes, J. In this judgment, Erle, C. J., and Byles, J., concurred, but Williams, J., dissented from it.

(1) Bailey v. Appleyard, 8 Ad. & E. 161, note at p. 778.

(m) Lawson v. Langley, 4 Ad. & E. 890. And Lord Denman, C. J., was apparently of opinion that proof of user of the way at any time, however remote, could hardly be excluded. This decision is plainly at variance with the dictum of Parke, B., in Lowe v. Carpenter, 6 Ex. 825, before referred to in n. (h).

against another under the same lessor. This was decided by the Court of Exchequer Chamber in the case of Frewen v. Philips (n).

And the result of the decision of the case of Jacomb v. Knight (o), when Romilly, M. R., said, "The rule as to unity of possession only meant, that when A. and B., being the owners of two separate freeholds, let them both to the same tenant, the one tenement could not acquire any right of easement over the other," seems to be, that a tenant can acquire the statutory right against his landlord.

The words in the third section of the act, "any local usage or custom to the contrary notwithstanding," appear to refer especially to the custom of the city of London prior to the passing of the act. According to this custom, the owner of any house within the city of London was entitled to raise it or to build on its site any height he pleased, notwithstanding that by so doing he might obstruct his neighbour's ancient lights.

The first allusion to this custom is found in the case of Hughes v. Keeme (p), in which three points were decided :

(1.) That, there being no custom, it is not lawful

(n) 11 C. B., N. S. 449.

(0) 32 L. J. Rep., N. S., Ch. 601, 3 L. R. 49. The decision, however, seems to be put by his Honour on the ground of contract.

(p) Caltrop. 1; Yel. 215; 1 Bul. 115; God. 183. The second point was decided in Bland v. Moseley, in the King's Bench in 29 Eliz. cited 9 Rep. 58b; and Caltrop. 6. There the custom of York was pleaded, that a man might build on a void piece of ground so as to obstruct his neighbour's ancient lights, and it was adjudged that the custom was nought. For that one prescription could not take away another, and also there might have been a grant to have those windows by the owner of the land before time of memory.

to erect a new house upon a void piece of ground, whereby the old lights of an ancient house may be stopped.

(2.) That the custom of London will not enable a man to erect a new house upon a void piece of ground, whereby the old lights of an ancient house may be stopped, for prescription against prescription will never be allowed by the law.

(3.) That if the new house be only erected on the ancient foundation, without enlargement either in longitude or latitude, howsoever it be made so high that it stoppeth up the lights of the old house, yet he is not subject unto any action, because the law authoriseth a man to build as he may upon his ancient foundation.

At the period when this case was decided, the custom of London appears to have been almost identical with the common law. The only difference seems to have been, that by the custom of London the existence of a building prevented the imposition by prescription of any obligation on the owner of that building to refrain from interfering with the enjoyment of window lights by his neighbour. This was possibly because the existence of the building was considered evidence that no such uninterrupted enjoyment had been had by the neighbour since the time of legal memory as was required to confer the prescriptive right.

But after the introduction of the doctrine that a grant of window lights might be inferred from enjoyment for twenty years, the custom became of very great importance, as excluding the application of the doctrine within the city of London. The custom of the city of London in this behalf, as in respect of the