Such is the origin and history of the rule of law we are now considering, in England. The same rule has been adopted and frequently applied by the Courts of our own country. In Ricard v. Williams, in the Supreme Court of the United States,1 the opinion of the Court in relation to twenty years' possession, was that there was no difference in the doctrine, whether the grant relates to corporeal or to incorporeal hereditaments; and the Court declared, that it was in general the policy of Courts of Law to limit the presumption of grants to periods analogous to those of the statutes of limitation, in cases where such statutes did not directly apply. 2 The case of Hill v. Crosby, in the Supreme Court of Massachusetts, was respecting a way; and the action was for the disturbance of a way over a river, by throwing down the abutment of a bridge which the plaintiff had rebuilt. Several of the facts had a tendency to prove an adverse user of the way for more than twenty years by the plaintiff; but the question whether they would warrant the presumption of a grant, was not referred to the consideration of the jury. The counsel for the defendant admitted, that in England a grant might be presumed from an adverse enjoyment of twenty years unexplained; but they con probably no individual knew that the plaintiff's spring was fed by water percolating through the strata in the close occupied by the plaintiff. But Lord Ellenborough observed, early in the trial, that the only question was, whether the diminution of the supply of the water to the plaintiff had been caused by the drain dug by the defendant; and (he said) there could be no doubt but that twenty years' exclusive enjoyment of water, affords a conclusive presumption of right in the party enjoying it. Ricard v. Williams, 7 Wheat. (U. S. Sup. Co.) Rep. 59. 2 Hill v. Crosby, 1 Pick. Rep. 466. That the presumption of a grant is not negatived by the statute requiring conveyances to be recorded—see Mathews on Pre. Ev. p. 6, note (a). tended, that that principle was inapplicable in Massachusetts, in consequence of the statute of 1783, which requires a conveyance of any interest in land, to be by deed and to be recorded; and the statute of 1786, which provides for laying out private ways, and making them matters of record. The last statute, the counsel contended, negatived the principle, that twenty years' enjoyment shall afford a presumption of a grant, in providing, that where the boundaries of a private way, &c. cannot be determined, fences or buildings fronting on it, which have been upheld for more than forty years, shall be taken to be the boundaries. Parker, C. J. after remarking that in point of law, the facts did not shew a title to the way in the plaintiff, observed, "The continued use of the way and bridge by the plaintiff's father and himself, for more than twenty years, the keeping up and repairing of the bridge, and the passing the river in the same place in a boat, when the bridge was down, show a continuity of possession sufficient to warrant a presumption of a grant ; and we have no doubt, a right to an easement may be so proved in this country, as well as in England. But here, as well as there, the possession to be attended with this consequence must be adverse; and whether it were, or not, is always a fact to be ascertained by the jury." It is deemed unnecessary to cite every American case in which the rule has been recognised and applied; but the cases in relation to water privileges, admitting and approving the general principle upon which was determined the case of Bealy v. Shaw, will be seen referred to in the note below.1 1 Tyler v. Wilkinson, 4 Mason's (Cir. Co.) Rep. 397; Haight v. Proprietors of Morris Aqueduct, 4 Wash. (Cir. Co.) Rep. 601; Cooper v. It was said by the Court, in Ricard v. Williams,' that where the circumstances of the case are very cogent and full, there is no absolute bar against the presumption of a grant within a period short of the statute of limitations. This is in accordance with what Lord Ellenborough advanced in Bealy v. Shaw, viz. "Less than twenty years' enjoyment may, or may not, afford such a presumption, according as it is attended with circumstances to support or rebut the right." But in Gayette v. Bethune,2 in Massachusetts, the Court seemed to be of opinion that an enjoyment for any period short of twenty years, would not give a right.3 Sec. III.-The Enjoyment must be Adverse. In order to raise the presumption of a grant, the enjoyment must have been adverse. As to what is, or is not, an adverse enjoyment, will depend upon the facts Smith, 9 S. & Rawle, (Penn. Rep.) 26; Strickland v. Todd, 10 S. & Ricard v. Williams, 7 Wheat. Rep. 59. 2 Gayett v. Bethune, 14 Mass. Rep. 55. 3 In Haight v. Morris Aqueduct, 4 Wash. (Cir. Co.) Rep. 607, it seemned to be considered by the Court, that an enjoyment short of twenty years, under particular circumstances, may create the presumption of a grant. 1 and circumstances of the case, which, of course, are to be ascertained by the jury.' If the enjoyment is shown to have originated in mistake, or by favor, or license; or if it was commenced and continued in any manner which does not indicate an assertion of right, the enjoyment is not adverse; and consequently the presumption is not raised. But the enjoyment without interruption for the length of time prescribed for the right of entry of land, is so strong evidence of a right, that the jury should not be directed to consider small circumstances as founding a presumption that it arose otherwise than by grant. These principles appeared to be well settled by the opinions of the several Judges in the case of Campbell v. Wilson, to which we refer the reader as an important guide in determining to what extent the enjoyment is to be regarded as adverse. 2 Occasional interruptions of the use, will not always be conclusive of a superior right to control and limit the entire use at discretion. In Tyler v. Wilkinson,* the law has been laid down by Mr. J. Story, as follows: "The nature, object and value of the use are very material ingredients to explain and qualify the effect of such interruptions. It is not, for instance, to be presumed, that valuable mills will be erected to be fed by an artificial canal from a river, and the stream be indispensable for the support of such mills, and yet, 1 Per Parker, C. J. in Hill v. Crosby, 1 Pick. (Mass.) Rep. 466; and see also, Daniel v. North, 11 East, 371: Gray v. Bond, 2 Brod. & Bing. 667. 2 Campbell v. Wilson, 3 East, 294. 3 Case for disturbing a ferry. Plaintiff proved a user of thirty-five years: the defendant proved interruptions at various times. The Judge having left the question to the jury, who found for the plaintiff, the Court refused to disturb the verdict. 2 Younge & Jervis, 285. Trotter v. Harris. 4 Tyler v. Wilkinson, 4 Mason's (Cir. Co.) Rep. 404. that the right to the stream is so completely lodged in another, that it may be cut off, or diminished, or suspended, at pleasure; but, if there should not be water enough for the progressive wants of all, the riparian proprietor should reserve to himself the power of future appropriation for his own exclusive use. In such cases, reasonable presumption must be made from acts in their own nature somewhat equivocal and susceptible of different interpretations. The interruptions may arise from resistance to an attempt by the canal-owner to extend the reach of his dam further into the river for the purpose of appropriating more water, or from a desire to prevent undue waste, in dry seasons, to the injury of the riparian proprietor. But the presumption of an absolute and controlling power over the whole flow, a continuing power of exclusive appropriation from time to time, in the riparian proprietor, as his wants or will may influence his choice, would require the most irresistible facts to support it. Men who build mills, and invest valuable capital in them, cannot be presumed, without the most conclusive evidence, to give their deliberate assent to the acceptance of such ruinous conditions." It is by no means necessary, as by some has been supposed, that the enjoyment should, in the first instance, be such as to subject the party to an action. It is sufficient, if the enjoyment is inconsistent with some right which the party might assert, and which he has forborne to assert. This position is proved by the cases respecting the admission and obstruction of light. It is by no means actionable for a man to build a house adjoining the vacant land of his neighbor; yet the enjoyment of the light without obstruction, is inconsistent with the right of building which the neigh |