Odger's English Common Law

DEFENCES. 575
Proof of such, facts may, therefore, sometimes afford a defence
to the action.
Again, the right claimed by the plaintiff must not be in
excess of the right granted to him, or of the enjoyment upon
which he relies as raising a prescription in his favour. The
burden on the servient tenement must not be enlarged. The
right claimed must not be more extensive than the right
granted or the user proved.
Thus proof of a right of way to a shed will not imply a right of way to
a house built afterwards on the same site. 1 A right of way to carry coals
would not necessarily include a right to carry other burdens, and vice
versa
;
2 and a right to drive pigs has been held not to include a right to
drive horned cattle. 3
So where the pollution of a stream has gradually but imperceptibly
increased for more than twenty years the right to pollute will be limited to
the extent of pollution which existed twenty years before action brought. 4
Lastly, an easement may be abandoned
;
5 but mere non-
user does not amount to abandonment. It is always a
question of fact under all the circumstances of the case
whether the act amounts to an abandonment, or was intended
as such. 6 An alteration of the dominant tenement does not
affect the right to an existing easement, provided the burden
of the servient tenement is not increased. 7
II. Profits A Prendre.
We now proceed to deal with profits a prendre—a class of
rights over land which, though different in their nature from
easements, closely resemble them in the mode of their
acquisition and in the remedies for their disturbance or
obstruction. A profit a prendre is a right, which a man may
have, to enter on the land of another and take something off
or out of it and carry it away for his own benefit. This
\ Bayley v. G. W. By. Co. (1884), 26 Ch. D. 434.
2 Iveson v. Moore (1699), 1 Salk. 15 ; Reynolds v. Edwards (1741), Willes, 282.
3 Ballard v. Dyson (1808), 1 Taunt. 279 ; Serf v. Acton Local Board (1886),
31 Ch. D. 679.
* Crossley v. UgMawler (1867), L. R. 2 Ch. 478 ; Melntyre Brothers v. McGavni,
[1893] A 0. 268.
« Bynevor v. Tennant (1888), 13 App. Cas. 279.
« Cook v. Mayor of Bath (1868) , L. R. 6 Eq. 177.
-• Harvey v. Walters (1873), L. R. 8 C. P. 162 ; G. W. By. Co. v. Cefn Cribbwr
Brick Co.. [1894] 2 Ch. 167 ; Boyal Mail Steam Packet Co. v. George $ Branday,
J1900] A. C. 480.