This section is from the book "Dart's Treatise On The Law And Practice Relating To Vendors And Purchasers Of Real Estate", by J. Henry Dart . Also available from Amazon: A treatise on the law and practice relating to vendors and purchasers of real estate.
(s) Swansborough v. Coventry, (1832) 9 Bing. 305; 2 L. J. N. S. C. P. 1ll; Compton v. Richards, (1814) 1 Pri. 27; Allen v. Taylor, (1880) 16 Ch. D. 355; 50 L. J. Ch. 178; and see and distinguish Watson v. Troughton, (1883) 48 L. T. 508. See also Goddard, 8th ed., 264, 265.
(t) Barnes v. Loach, (1879) 4 Q. B. D. 494; 48 L. J. Q. B. 756; and see Goddard, 267.
(u) Quictce v. Chapman, 1903, 1 Ch. 659; 72 L. J. Ch. 373.
There is no natural right of uninterrupted access of air to the chimneys of a house (x), or to a windmill (y) or other building (z). Nor can a right to air be acquired under the Prescription Act (a), as the presumption of a grant only arises in cases where the owner of the servient tenement had it in his power to prevent the enjoyment. But it may be acquired by express or implied grant (b); and the right to have an uniterrupted flow of air from over the land of another in a definite direction to a definite place can be established by immemorial user or user which may have had for its origin some lost grant or agreement (c).
Right to air.
Claims of right of way, water, watercourse, or any other easement (except light which becomes absolute and indefeasible after twenty years' enjoyment (d)), become prima facie valid after twenty years' uninterrupted enjoyment; and cannot be defeated by mere proof of such enjoyment having commenced at any prior period; but, until forty years' uninterrupted enjoyment, they remain liable to be defeated in any other way in which they might have been defeated before the passing of the Act; e.g., "by proof of a grant, or of a licence, written or parol, for a limited period, comprising the whole or part of the twenty years, or of the absence or ignorance of the parties interested in opposing the claim, and their agents during the whole time that it was exercised" (e). After forty years' uninterrupted enjoyment, such easements become absolute and indefeasible, unless proof be given of the enjoyment having been under some consent or agreement expressly given or made for that purpose by deed or writing (f). After the end of the twenty years, and before the end of the forty, a grant may still be presumed by a jury (g), notwithstanding that the enjoyment is shown to have originated in an agreement by parol or writing not under seal (h), but no such presumption is admissible if the dominant and servient tenement have during the whole period been in the hands of lessees, holding under the same landlord (i); or if the owner of the servient tenement was incapable of rightfully granting the easement: e.g., if such grant would have been a breach of trust (k), or in contravention of an Act of Parliament (l).
Easements other than light.
(x) Bryant v. Lefever, (1879) 4 C. P. D. 172; 48 L. J. Ch. 380; and see Cable v. Bryant, 1908, 1 Oh. 259.
(y) Webb v. Bird, (1863) 13 C. B. N. S. 841; 31 L. J. C. P. 335.
(z) Chastey v. Ackland, 1895, 2 Ch. 389; 1897, A. C. 155; 64 L. J. Q. B. 523; 66 L. J. Q. B. 518.
(a) Potts v. Smith, (1868) 38 L. J. Oh. 58; 6 Eq. 311; and see Hall v. Lichfield Brewery Co., (1880) 49 L. J. Ch. 655; 43 L. T. 380; Harris v. He Pinna, (1886) 33 Ch. D. 238; 54 L. T. 38, 770.
(b) Bass v. Gregory, (1890) 25 Q. B. D. 481; 59 L. J. Q. B. 574; Cable v. Bryant, 1908, 1 Ch. 259.
(c) Chastey v. Ackland, sup.; Bass v. Gregory, sup.; and see Aldin v. Latimer, etc. Co., 1894, 2 Ch. 537; 63 L. J. Ch. 601; Colls v. Home and Colonial Stores, 1904, A. C. at p. 183.
(d) Sup. p. 358 et seq.
A right of way pre-supposes a more or less defined track (m). A road may be a common highway, though it is only occasionally used by the public, or is circuitous, or does not terminate in a town, or in some other public road (n); and a very short continuous user by the public, openly and as of right, is sufficient to raise a presumption of its dedication to their use (fit). But in the case of the user of rough tracks (e.g., tracks leading to the seashore) where the user does no injury to the owner, the Court will be slow to presume dedication (p); and where the road is a cul de sac, there must usually be evidence of expenditure of public money or of exercise of acts of control by the local authority (q).
Rights of way; public way.
(e) Per Parke, B., in Bright v. Walker, (1834) 1 C. M. & R. 219; 3 L. J. N. S. Ex. 250; Wheaton v. Maples, 1893, 3 Ch. 48; 62 L. J. Ch. 963; and see Gardner v. Hodgson's Kingston Brewery, 1903, A. C. 229; 72 L. J. Ch. 558, where the payment of an annual sum, the origin of which was unknown, was held to negative the inference of a prescriptive title.
(f) Prescription Act, 1832, s. 2.
(g) See Bright v. Walker, (1834) 1 C. M. & R. at p. 222; 3 L. J. N. S. Ex. 250; Wheaton v. Maples, 1893, 3 Ch. 48; 62 L. J. Ch. 963; Banna v. Pollock, (1900) 2 Ir. R. 664; Kilgour v. Gaddes, 1904,1 K. B. 457; 73 L. J. Ch. 233; and see Brocklebank v. Thompson, 1903, 2 Ch. 344, 350; 72 L. J. Ch. 626, as to twenty years' user being good evidence to create presumption of immemorial custom for inhabitants of parish to use a churchway. See also Farquhar v. Newbury R. D. C, 1908, 2 Ch. 586; 1909, 1 Ch. 12.
(h) Dewhirst v. Wrigley, (1838) 1 C. P. Coop. 329.
(i) Kilgour v. Gaddes, 1904, 1 K. B. 457; 73 L. J. Ch. 233.
(k) Rochdale C. Co. v. Radcliffe, (1852) 18 Q. B. 287; 21 L. J. Q. B. 297; cf. Creyke v. Level of Hatfield Chase, (1896) 12 T. L. R. 383.
(l) Neaterson v. Peterboro' R. D. Co., 1902, 1 Ch. 557; 71 L. J. Ch. 378; and see Jones v. Llanrwst U. D. ,C, 1911, 1 Ch. 393; A.-g. v. Iewes Corp., 1911, 2 Ch. 495.
(m) Robinson v. Cowpen Local Board, (1894) 63 L. J. Q. B. 235.
In order to constitute a valid dedication to the use of the public there must be an intention to dedicate, and user is itself evidence of such intention (r), and it is also essential that (there should be a terminus a quo and a terminus ad quern (s). The presumption may be rebutted by evidence of the owner's intention that the public should only have a permissive user, as, e.g., by his arbitrarily closing the way for one day in each year (t), or by showing that the state of the title was such that a binding dedication was impossible (u). But mere non-user for any number of years will not destroy (x), or prevent the public from resuming (y), the right to a public way; though it may be evidence that no such right ever existed.