adjoining a natural watercourse, and B own a separate parcel on the same watercourse, below and adjoining the land of A; and B has acquired the right of conveying the water through A's land, and afterward purchases A.'s land, and then restores the water to the natural channel, and afterwards sells the lower parcel of land to C, C cannot claim to have the water through the upper parcel, because the right so to have it, has been extinguished by the unity of possession in B. This doctrine, it appears, was discussed as far back as 11 Hen. VII. in a case which was as follows: A was the owner of a tenement to which there was an through the hands of the heir; because, in this case, the purchaser is not presumed to have purchased more or less than all the ancestors possessed. ART. 805. Confusion does not take effect if the heir has only a temporary possession of the estate, subject to the servitude, or enjoying it for the purpose of delivering it to another person to whom it has been bequeathed, or when his right in it terminates at a certain fixed time. ART. 806. If the heir has accepted the succession under benefit of inventory, the confusion does not take effect; and if the heir is obliged to abandon the succession at the instance of the creditors, the servitudes resume their former state. ART. 807. The acquets, which the husband and wife make during the marriage, do not become confused with the private property of each ; and if these acquets are sold during the marriage, the servitudes, active and passive, which existed previous to their being acquired by the husband and wife, continue to exist, without any stipulation to that effect. ART. 808. Except in the cases herein mentioned, and similar cases, services extinguished by confusion do not revive, except by a new contract; with the exception of continuous and apparent servitudes, with respect to which the disposition made by the owner of both estates is equivalent to a title. ART. 809. The renunciation or abandonment of the land extinguishes the servitudes charged on it, of whatever nature they may be, because the owner of the estate to which the servitude is due, is bound to accept the abandonment, which produces in his hand a confusion which puts an end to the servitude. ART. 810. It is not necessary to produce a discharge of the servitude, that the proprietor of the estate which owes it, should abandon the whole estate; it suffices, if he abandon the part on which the servitude is exercised. 2 ancient gutter, running through an adjoining tenement, and afterwards he bought the adjoining tenement, and then sold the first tenement to the plaintiff. It was held, that here, the ancient gutter was not extinguished, by the unity of possession; but that it would have been otherwise, if A, during the unity of possession, had destroyed the gutter, or cut it off.1 In Nicholas v. Chamberlain, it was considered by the Court-" that if one erect a house, and build a conduit thereto in another part of his land, and convey water by pipes to the house, and afterwards sell the house with the appurtenances, excepting the land; or sell the land to another, reserving to himself the house; the conduits and pipes pass with the house, because it is a quasi appendant thereto." Here, it was not admitted that the unity of possession destroyed the right to the easement, because it was annexed to the messuage, and in use at the time of the grant. But if the conduit and pipes had been actually severed before the grant, there could have been no pretence to say that the conduit and pipes passed as appurtenances. The case of Morris v. Edginton,3 though different in its circumstances, has been considered in its reasoning to establish the foregoing conclusion." 4 The above rule as to unity of possession, has been applied in this country. A case in the Circuit Court of the United States in Rhode Island may be thus briefly stated: A owns an upper mill and B a lower mill on the same stream. The lower mill has a dam 1 Surry v. Pigott, Latch. 153, and Popham, 166. ' Nicholas v. Chamberlain, Cro. Jac. 121. 3 Morris v. Edginton, 3 Taunt. 24. See the opinion of Mr. J. Story, in Hazard v. Robinson, 3 Mason's (Cir. Co.) Rep. 172. post Chap. iii. sec. 7. which obstructs the free use of the upper mill. B lowers his dam two feet, and allows it to remain in that state thirty-eight years; and during that period the upper mill is free from obstruction. B then sells the lower mill to A, who afterwards sells it to C. The Court decided, that on the ground of unity of possession, the right of raising the dam two feet was gone, and that the upper mill had acquired a right to use the water, without back flowing.1 But the doctrine of extinguishment by reason of unity of title, is not applicable to the case where one is only tenant in common with another.2 The right to a natural watercourse, it should be observed, is not extinguished by unity of possession, in any case. Thus, in a very ancient case, Whitlocke, J. took the distinction, that where a thing has its being by prescription, unity will extinguish it; but where a thing hath its being ex jure nature, it shall not be extinguished. A watercourse, he said, did not begin by prescription, but ex jure naturæ.3 Hazard v. Robinson, ut supra. Also Hawthorn v. Stinson, 1 Fair field's (Maine) Rep. 224, and Corning v. Gould, 16 Wend. (N. Y.) Rep. 531. Tucker v. Jewett, 11 Conn. Rep. 311. 3 Surry v. Pigott, Poph. 166. CHAPTER III. RIGHT TO WATER AS AN INCORPOREAL HEREDITAMENT UNDER PRESUMED GRANT. Sec. I. Grant Presumed after certain Length of Enjoyment. THE existence of the evidence, which was stated in the preceding chapter1 to be necessary to prove an actual grant of a special right to a watercourse, may be inferred from a long enjoyment, without interruption.2 The foundation of this rule is, that mankind, from the necessity and infirmity of their situation, must, for the preservation of their property and rights, have recourse to some general principle to take the place of individ 1 Sec. 5. * A man who has been in possession of a watercourse for sixty years, may bring a bill in equity against a mortgagee, who foreclosed the equity of redemption, to be quieted in his possession, although he had not established his right at law. [Bush v. Western, Pre. Ch. 530. Vid. Duke of Dorset v. Girdler, Pre. Ch. 531; Hillary v. Waller, 12 Ves. 261, 266.] After a long enjoyment of a watercourse by the plaintiff through the land of another, it was held by the Lord Keeper, that a grant was to be presumed, unless disproved by the other side; and the plaintiff was quieted in his enjoyment by injunction. [Finch v. Resbridger, 2 Vern. 390.] So in Massachusetts, in the year 1798, when the evidence was, that at the time the town of Concord was first settled, one hundred and fifty years before the action was brought, a small stream was reserved for the use of the mill there; that its natural course was through the defendant's estate, and that he had diverted and wasted the water; the Court held, that the use of the stream to the plaintiff's mill for sixty years, without interruption, established his right. [Sullivan on Land Titles, 273.] ual and specific belief; upon which a conclusion can be formed from particular and individual knowledge. The presumption is made for the purpose, and from a principle, of quieting a long possession.2 1 It is laid down in Bracton, that all incorporeal rights, or services, may be acquired by acquiescence and use, and lost by neglect and disuse.3 Indeed all the writers upon the common law of England, as well as the civilians, have recognised the principle that a right to any incorporeal hereditament may be acquired by lapse of time. This mode of acquisition has been by both denominated "prescription," which they say is founded on usage longa, continua, et pacifica. They also state, that every prescription supposes a grant once made, and afterwards lost; and that therefore nothing can be claimed by prescription, which in its nature could not have been granted. To constitute a prescription, according to the old writers on the common law, the enjoyment must have existed time out of mind; or, in other words, its commencement must be proved to be anterior to the reign of Richard I. But in order to make persons on the alert in guarding their rights, and to prevent disputes respecting privileges, that have been long and peaceably enjoyed, the Courts have not required positive testimony that the enjoyment commenced at the remote period we have mentioned, and have even held that forty years' enjoyment is presumptive evidence that the right has existed time out of mind, and consequently is a good prescription. By 1 Hillary v. Waller, 12 Ves. 261, 266. 5 2 Elbridge v. Knott, Cowp. Rep. 215; and see 2 Starkie on Evidence, 1203. 3 Bract. L. 4, c. xxxviii. s. 3. Ibid, L. 2, c. xxii; 1 Bla. Com. 75; 2 Bla. Com. 263. * Hill v. Sinith, 10 East, 476. |