Odger's English Common Law

PRESCRIPTION ACT, 1832. 571
"with the permission of the owner of the servient tenement
expressly given by deed or writing. In other words, it will
no longer defeat the right, if it appears to have been enjoyed
by the parol licence of the person whose land is affected
by it. 1
There are certain difficulties in proceeding under the Act which did not
exist at common law.
1. The period of the duration of the enjoymertt relied on must immediately
precede the commencement of the action in which the right is contested.
2. Although the acts of user need not necessarily continue down to the
very moment of action brought, yet some act of the kind must be proved
to have taken place in the first and last, and probably in every, year of the
period of prescription.
3. There must be nothing in the facts inconsistent with the user having
been as of right against all persons.
4. A right of claim by user can only be co-extensive with the user.
The right to light stands on a somewhat different footing.
" An owner of ancient lights is entitled to sufficient light
according to the ordinary notions of mankind for the
comfortable use and enjoyment of his house as a dwelling-
house, if it is a dwelling-house, or for the beneficial use and
occupation of the house if it is a warehouse, shop or other
place of business." 2
Section 3 of the Prescription Act
provides that, when such a right shall have been actually
enjoyed for the full period of twenty years without interrup-
tion, it shall be deemed absolute and indefeasible, unless it
shall appear that it was enjoyed by some consent or agree-
ment expressly made or given for that purpose by deed or
writing. 3
" The right to what is called an ' ancient ' light now depends upon
positive enactment. It does not require any presumption of grant or
fiction of a licence having been obtained from the adjoining proprietor.
Written consent or agreement may be used for the purpose of accounting
for the enjoyment of the servitude, and thereby preventing the title which
would otherwise arise from uninterrupted user or possession during the
requisite period. . . . After an enjoyment of an access of light for twenty
1 These sections do not apply to rights of light, which are governed by
s. 3 : Perry v. Eames, [1891] 1 Ch. 658 ; nor do they bind the Crown : Wheaton
v. Maple, [1893] 3 Ch. 48.
2 Per Lord Lindley in Colli v. The Home and Colonial Store/, [1904] A. C. at
p. 208 ; and see the judgment of Lord Davey, ?'i., at p. 204, and Jolly v. Kiiie, [1907]
A. C. 1 ; Davis v. Man-able., [1913] 2 Ch. 421.
s Scott v. Pape (1886), 31 Ch. D. 554 ; Harris v. Be Pinna (1886), 33 Ch. D.
238.