References: [1851] EngR 559, (1851) 17 QB 267, (1851) 117 ER 1282
Links: Commonlii
Ratio: Case for disturbing a watercourse which of right ought to flow into plaintiff’s close to irrigate it, On the trial it appeared that the watercourse was not ancient, but that the water had flowed in its present muree for more than twenty years, past plaintiff’s close. There was evidence that during that period plaintiff, and those under whom he claimed, had been constantly in the habit of drawing off the water to irrigate his close, and that the owners of the watercourse resisted it. On one occasion, when plaintiff’s servant drew off the water, he was summoned before a justice for so doing; plaintiff’s son by his direction attended and defended the servant, and paid a fine of 1s. The conviction was under a local Act, from which there was a power of appeal. The conviction was tendered in evidence, and rejected. In summing up, the Judge explained that the enjoyment to defeat an adverse right must be for twenty years, without interruption acquiesced in for a year. One of the jury asked what would be the effect in law of a state of perpetual warfare between the parties? which question the Judge did not answer. The jury found that ”the watercourse had been enjoyed as of right for twenty years, and without interruption for a year,’ and were directed to find for Plaintiff. Held that the evidence was improperly rejected, as the conviction, unappealed against, was, under the circumstances, evidenoe of an acknowledgment by the plaintiff, that the usage, to draw off the water for irrigation, was not as of right: Held also that interruptions, though not acquiesced in for a year, might shew that the enjoyment never was of right, but contentious throughout ; though, if once the enjoyment as of right had begun, no interruption for less than a year could defeat it : and consequently that the manner in which the question was left, and the verdict found, was not satisfactory ; and a new trial was granted.
This case is cited by:
- Cited – Winterburn and Another v Bennett and Another CA (Bailii, [2016] EWCA Civ 482, [2016] WLR(D) 297, WLRD)
The court was asked as to the steps which an owner of land must take to prevent others, who were using the land without permission, acquiring rights over the land. The claimants here had ignored clear signs placed on the land which asserted the . .
(This list may be incomplete)
Jurisdiction: EW
Last Update: 08-Oct-16
Ref: 296875
