It is sometimes said that, in order to acquire a right of user by prescription, the user during the prescriptive must be exclusive,96 but this appears to be so in a very limited sense, if at all.97 For instance, the user of another's

93. 93 Am. St. Rep. at p 722, note to Oregon, etc.. Ditch Co. v. Allen Ditch Co. That if the user is known, it is immaterial whether it is open or notorious, see Fogarty v. Fogarty, 129 Cal 46, 61 Pac. 570.

94. See Trustees of Cincinnati Southern R. Co. v. Slaughter, 31 Ky. L. Rep. 913, 104 S. W. 291; Wells v. Parker, 74 N. H. 193, 66 Atl. 121; Barber v. Bailey, 86 Vt. 219, 44 L. R. A. (N. S.) 98, 84 Atl. 608.

95. Menter v. First Baptist Church, 159 Mich. 21, 123 N. W. 585; Brandon v. Umpqua Lumber & Timber Co., 26 Cal. App. 96, 146 Pac. 46; Callan v. Walters, -Tex: Civ. App. - , 190 S. W. 829.

In Snowden v. Bell, 159 N. C-497, 75 S. E. 721, it is said that the user must be such as to give notice of the claim of right. In Barber v. Bailey, 86 Vt. 219, 44 L. R. A. (N. S.) 98, 84 Atl. 608; Poronto v. Sinnott,

89 Vt. 479, 95 Atl. 647, it is said that the fact that the use is notorious raises a presumption that it is under claim of right.

86. Turner v. Selectmen of Hebron, 61 Conn. 175, 14 L. R. A. 386, 22 Atl. 951; Waters v. Snouffer, 88 Md. 391, 41 Atl. 785; Day v. Allender, 22 Md. 511; Miller v. Gariock, 8 Barb. (N. Y.) 153; Reid v. Garnett, 101 Va. 47, 43 S. E. 182. Sen 22 Am. & Eng. Encyc. Law (2nd Ed.) 1203.

97. It has been said that "it is not necessary that the one who claims the easement should be the only one who can or may enjoy that or a similar right over the same land, but that his right should not depend for its enjoyment upon a similar right in others, and that he may exercise it under some claim existing in his favor, independent of all others." Washburn, Easeland for purposes of passage, if continued for the prescriptive period, may operate to create an easement of a right of way, although the owner of the land also passes upon the same line98 or allows others to pass thereon," nor is it material, in this regard, that an exactly similar easement of passage in favor of another is already existent,1 or is in course of establishment.2 The user of another's land merely as one of the public does not, it is true, although continued for the prescriptive period, ordinarily give an individual right of user,3 but this is either because the circumstances are such as to indicate that the user was permissive,4 or because, assuming the user to be adverse, there is then an adverse user by the public, and the user results in the acquisition of a right by the public5 and not by an ments (4th Ed.) 164. See to the same general effect, Mckenzie v. Elliott, 134 111. 156, 24 N. E. 965; Schmidt v. Brown, 226 111. 590, 80 N. E. 1071; Reid v. Garnett, 101 Va. 47, 43 S. E. 182; Poronto v. Sinnott, 89 Vt. 479, 95 Atl. 647. In Davis v. Brigham, 29 Me. 391, it is said that "the word exclusive in this connection can only mean that the enjoyment of the easement as claimed, whether it be a limited or more general enjoyment, should exclude others from a participation of it."98. Bennett v. Biddle, 150 Pa. St. 420, 24 Atl. 738; Schmidt v. Brown, 226 111. 590, 80 N. E. 1071.

99. Mckenzie v. Elliott, 134 111. 156, 24 N. E. 965; Thompson v. Bowes, 115 Me. 6, 97 Atl. 1; Cox v. Forest, 60 Md. 74; San-ford v. Kern, 223 Mo. 616, 122 S. W. 1051; Nash v. Peden. 1 Speers, 22. So in the case of an irrigation ditch, which was used by others. Silva v. Hawn, 10 Cal. App. 544, 102 Pac. 952.

1. Webster v. Lowell, 142 Mass. 324, 8 N. E. 54; Ballard v. Demmon, 156 Mass. 449, 31 N. E. 635. So it has been decided that the fact that one person has a right of flowage in certain land does not preclude another from acquiring by prescription a right of flowage therein. Davis v. Brigham, 29 Me. 391.

2. Kent v. Dobyns, 112 Va. 586, 72 S. E. 139.

3. Merwin v. Wheeler. 41 Conn. 14; Stevens v. Dennett. 51 N. H. 324; Day v. Allender, 22 Md. 511; Prince v. Welbourn. 1 Rich. L. (S. C.) 58; Rowland v. Wolfe, 1 Bailey L. (S. C.) 56; Reid v. Garnett. 101 Va. 47. 43 S. E. 182; Sassman v. Collins, 53 Tex. Civ. App. 71, 115 S. W. 337; Muncy v. Updyke. 119 Va. 636, 89 S. E. 884.

4. Ante, Sec. 519, note 79. 6. Post, Sec. 533.

Individual. Likewise, although, in order to acquire a prescriptive right to fish in navigable waters, to the exclusion of the public, one's fishing therein during the prescriptive period must be exclusive of the public, in the sense that the public must be prevented by him from fishing at that place,6 this is for the reason that otherwise his fishing would be merely the exercise of a right appertaining to him as one of the public.

Sec.523. Necessity of peaceable user. The user must it is said, in order to ripen into a prescriptive right, be peaceable.7 Just what this means does not clearly appear,8 but it may be presumed to mean that the user is ineffectual if its exercise involves the forcible overcoming of resistance interposed by the landowner or forcible removal of physical obstacles interposed by the latter. The requirement finds its justification, it would seem, in the consideration of the impropriety of allowing one to acquire a right by the continuous repetition of forcible acts of aggression, thus placing a premium upon the commission of such acts, and also in the fact that the necessity of resorting to force in order to accomplish the user clearly demonstrates a lack of acquiescence on the part of the landowner.