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to carry five thousands spindles, is not limited to a use of the water for a cotton factory.1

Sec. VII.-In What Manner a Right Acquired by Adverse Enjoyment may be Lost.

For the same reason that an incorporeal right may be derived from an adverse use of twenty years, it may be lost by twenty years of non-user. "Seeing," (says Domat) "a service may be acquired by prescription, with much more reason, may a freedom from a service be acquired in the same way. Thus he who had a right to water both by day and night, loses the use of it in the night-time, if he lets it prescribe."" It is also laid down by Bracton, that an incorporeal right may not only be acquired by long enjoyment, but that the same, when so acquired, may be lost by neglect and disuse.3 Ancient windows, which have been obstructed for twenty years, lose their former right ; and so it has been held, that the disuse of a way, for the same

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1 Biglow v. Battel, 15 Mass. Rep. 313; and see ante p. 45, 46; and see Strong v. Benedict, 5 Conn. Rep. 210; Baldwin v. Calkins, 10 Wend. (N. Y.) Rep. 167; Simpson v. Seavy, 8 Green. (Maine) Rep. 138; Rogers v. Bruce, 17 Pick. (Mass.) Rep. 184.

2 Domat's Civil Law, b. 1, t. 12, s. 1. Libertatem servitutum usucapi posse verius est. Dig. L. 4. Itaque si cum tibi servitutem deberem, ne mihi puta liceret, altius ædificare, et per statutum tempus altius ædificatum habuero sublata erit servitus. Dig. de servit, præd, urb. Si is qui nocturnam aquam habet, interdiu per constitutum ad amissionem tempus usus fuerit, amisit nocturnam servitutum, qua usus non est. Idem est in eo qui certis horis aquæ-ductus habens, aliis usus fuerit, nec ulla parte earum horarum. Dig. L. 10. quemad. servit. amitte.

3 See Tyler v. Wilkinson, 4 Mason's (Cir. Co.) Rep. 397; and Wright v. Freeman, 5 Harr. & Johnson's (Maryland) Rep. 477.

4 Lawrence v. Obee, 3 Campb. Rep. 514.

period, affords a presumption of a release or surrender of the right.1

Where the owner of a mill worked by a ground-shot wheel, at a low head of water, altered the wheel to a breast-shot wheel, which required a high head of water, and after that, for twenty years and more, discontinued the use of the breast-shot wheel, and resumed the use of the ground-shot wheel, the discontinuance, it was held, caused the mill-owner to lose his right to the higher head of water.2

Another mode of extinguishment of incorporeal rights, whether acquired by actual or presumed grant, is that of unity of possession; the meaning, application and effect of which, has been already considered.3 With regard to its application to presumed grants, it has been adjudged in Connecticut, that an adverse enjoyment of water of one close issuing from another, cannot exist where there is an unity of seisin and possession of both; and that, therefore, where A and B had adjoining closes, and A, having conducted water from B's close on to his own, enjoyed it in a particular manner, for a less period than that limited for the right of entry upon land, and then conveyed his close in fee-simple to B; and B, after a few days' possession, re-conveyed it to A; after which, A enjoyed the water, in the same manner he had done before, for a period less, but, with the former period, making more than the time limited by the statute: it was held, that A, in consequence of such enjoyment of the water, so interrupted, acquired no right thereto, by user.*

1 2 B. & Ald. 391; 3 B. & Cress. 339. But see White v. Crawford, 10 Mass. Rep. 183; Corning v. Gould, 16 Wend. N. Y. Rep. 531.

2 Drewett v. Sheard, 7 Car. & Payne's Rep. 465, and 32 Eng. Com. Law Rep. 585.

3 Chap. ii. sec. 6.

4 Manning v. Smith, 6 Conn. Rep. 289.

Sec. VIII.-Doctrine of Presumed Grants as Applicable to Public Rights.

The rule we have been considering is not applicable to rights of a public nature; and all encroachments upon privileges which are open to the whole community, though they may have been uninterruptedly prolonged for a period exceeding twenty years, are, nevertheless, liable to be suppressed.' "No laches," said Ch. J. Parsons, "can be imputed to the government, and against it no time runs so as to bar its rights." It has been accordingly adjudged, in Great Britain, in Vooght v. Winch,3 that twenty years' exclusive enjoyment of the water of a river, which is a public highway,* created no title. So great a regard, indeed, is paid to the interests of the great body politic, that if a river ever has been a public highway, (even if it has not been used as such for the period of twenty years, and during the whole time has been in a condition inconsistent with the public use,) the right of the public is not extinguished. An act of the legislature is the only means by which the interest, which the public may have in a watercourse, can be transferred; or the proof of such a very great length of enjoyment, as might furnish ground for the presumption of such a mode of transfer."

1 Weld v. Hornby, 7 East, 195; Carter v. Murcot, 4 Purr. 2163; Birch v. Alexander, 1 Wash. (Cir. Co.) Rep.; Thinmo's Exr. v. Commonwealth, 4 H. & M. (Virg.) 57; Johnson v. Irwin, 3 S. & Rawle, (Penn.) 292. Stoughton (town of) v. Baker et al., 4 Mass. Rep. 522.

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3 Vooght v. Winch, 2 Barn. & Ald. 662.

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As to what rivers are public highways, see post chap. viii.

Vooght v. Winch, ut supra.

Ibid; Chalker et al. v. Dickason et al., 1 Conn. Rep. 382.

CHAPTER IV.

RIGHT TO A WATERCOURSE AS DERIVED FROM PAROL LICENSE.

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Sec. I.-May be thus Derived.

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THAT a limited right to enjoy any privilege identified with the soil may be acquired by parol license, is shown in many cases. In a case, for example, where a person contracted with the owner of a close for the purchase of a growing crop of grass, for the purpose of being mowed and made into hay by the vendee: It was held, that the vendee had such an exclusive possession of the close, that he might maintain trespass against him who entered and took the grass with the consent of the land-owner. The statute of frauds did not expressly and immediately vacate such contracts; and it only precluded the bringing of actions to enforce them, by charging the contracting party on the ground of such contract, and of some supposed breach thereof; which description of action did not properly apply to the one before him, viz. : a general action of trespass, complaining of an injury to the possession, however acquired, by contract or otherwise.2

1 See vol. 2 of Hilliard's Abr. of American Law of Real Property, p. 52, et seq.

2 Crosby v. Wadsworth, 6 East, 602. Parol evidence is admissible, to prove that, (after the execution of a deed giving a right to the watercourse

Sec. II. When Right thus Derived is Revocable.

As a general principle, any interest concerning lands given by parol, is revocable at the pleasure of the grantor. In Dexter v. Hazen,' the defendant gave permission to the plaintiff to pass over his land with teams; and there being no consideration for the license, it was held that it might be revoked at pleasure.

In Fentiman v. Smith,2 in an action on the case for diverting a watercourse from the plaintiff's mill, the declaration in substance stated, that whereas the plaintiff was, and still is lawfully possessed of a certain cotton-mill, with the appurtenances, near to two certain rivulets, the water of which rivulet called the Back Beck, until the interruption complained of, had flowed into, and still of right ought to flow into, the Town Beck, by means of a certain tunnel or goit there above the plaintiff's wear, there erected across the Town Beck, a little above the said mill; and the plaintiff, by reason of his possession of the said mill, during all the time of working the same, of right ought to have had, and still of right ought to have, the use and benefit of both the said rivulets, called the Town Beck and Back Beck yet the defendant, knowing the premises, and to deprive the plaintiff of part of the use and benefit of his said mill with the appurtenances, whilst the plaintiff was so possessed thereof, as aforesaid at, &c.

through the granted land by courses and distances) a verbal agreement was entered into between the parties, for their mutual accommodation, altering the route of the watercourse; provided the agreement had been carried into effect. Le Fevre v. Le Fevre, 4 S. & Rawle, 241.

1 10 Johns. (N. Y.) Rep. 426.

* 4 East, 107.

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