Odger's English Common Law

570 DISTURBANCE OF EASEMENTS, &C.
enjoyment . . . only arises where the person against whom
the grant is claimed might have prevented or interrupted
the exercise of the subject of the supposed grant." 1 "You
cannot acquire any rights against others by a user which they
cannot interrupt." 2 Nor can a lost grant be presumed where
the right claimed is one not known to the law, or where the
class of persons claiming it cannot in law possess such a
right. 3
" We must bear in mind the cardinal rales of prescription, first, that no
length of enjoyment can establish a title which could have no legal origin,
as, for instance, of an estate or interest which the law does not recognise ;
and next, that ' aufciquity of time justifies all titles and supposetli the best
beginning the law can give them.' So that, if evidence be given, after
long enjoyment of property to the exclusion of others, of such a character
as to establish that it was dealt with as of right as a distinct and separate
property in a manner referable to a possible legal origin, it is presumed
that the enjoyment in the manner long used was in pursuance of such
an origin, which, in the absence of proof that it was modern, is deemed to
have taken place beyond legal memory." 6
(e) A better method, however, of dealing with the difficulty
was provided in 1832 by the passing of the Prescription
Act. 6
This statute did not abolish any of the methods which
previously existed of claiming such rights. 7 But it provided
that after user as of right and without interruption, in the
case of a profit d prendre for thirty years and in the case of
an easement for twenty years, the prima facie right should
not be defeated by proof that it commenced at some prior
date subsequent to the first year of Eicbard I. 8
By the same sections, if the right be enjoyed in the case
of a profit d prendre for sixty years and in the case of an
easement for forty years, the right becomes absolute and
indefeasible, unless it can be shown that such user took place
1 Per Lopes, L. J., in Chastey v. Ackland, [1895] 2 Ch. at p. 397.
2 Per Bowen, L. J., in Harris v. De Pinna (1886), 33 Ch. D. at p. 262.
8 Lord Chesterfield v. Harris, [1911] A. C. 623; Staffordshire, $c, Canal Navigation
v. Bradley, [1912] 1 Ch. 91.
* Bailey v. Stevens (1862), 12 C. B. N. S. 91 ; Att.-Gen. v. Mathias (1858), i
K. & J. 579.
5 Per cur., in Johnson v. Barnes (1872), L. R. 7- C. P. at p. 604 ; decision
affirmed (1873), L. E. 8 C. P. 527.
e 2 & 3 Will. IV. c. 71.
? Warrick v. Queen's College, Oxford (1871), L. It. 6 Ch. 716, 728 ; Aynsley v.
Glover (1876), L. R. 10 Ch. 283.
s Ss. 1, 2.
4