LICENCE TO ERECT A WEIR, 73 



dwelling-honse through a window) cannot le recalled at phasvre, after 

 it has been executed at the defendant's expense, at least not without 

 tendering the expenses he had been put to. Eaylnj J. thus expressly 

 distinguished this case from Heiulins v. Shqipam in his judgment in 

 the latter : " All that the defendant there did he did vpon his own land. 

 He claimed no right or easement upon the plaintiff's. The plaintiff 

 claimed a right and easement against him, by the privilege of light and 

 air through a parlour window, and a free passage for the smells of an 

 adjoining house, through defendant's area ; and the only point decided 

 there was, that as the plaintiff" had consented to the obstruction of such 

 his easement, and had allowed the defendant to incur expense in 

 making such obstruction, he could not retract that consent without re- 

 imbursing the defendant that expense. But that was not the case of 

 the grant of an easement to be exercised upon the grantor's land, but a 

 permission to the grantee to use his own land, in a way in which but 

 for an easement of the plaintiff''s such grantee would have had a clear 

 right to use it." 



Ti7idal O.J. adopted Winter v. Brochvell as the basis of his judgment 

 in Liggins y. Inge, where the predecessors of the plaintiff", who was 

 entitled to a flow of water to his mill over the defendant's land, 

 authorized the latter by a parol licence to cut down and lower a bank, 

 and to erect a weir upon their own land, the eflFcct of which was to 

 divert into another channel the water which was requisite for the 

 working of the plaintiff's mill. Subsequently the plaintiff complained 

 to the defendant of the injurious effects of the weir, and brought an 

 action upon their refusal to remove it and restore the bank to its ancient 

 height ; but the Court of Common Pleas considered that the operation 

 and effect of the licence after it had been completely executed by the 

 defendants, Atas sufficient, without holding it to convey any interest in 

 the water, to relieve them from the burthen of restoring to its former 

 state what has been done under the licence, although such licence was 

 countermanded ; and that consequently they were not liable to an action 

 as wrong doers, for persisting in such refusal. 



His lordship observed, " This is not a licence to do acts which con- 

 sist in repetition, as to walk in a park, to use a carriage-way, to fish in 

 the waters of another, or the like, which licence being countermanded 

 the party is but in the same situation as he was before it was granted ; 

 but this is a licence to construct a work which is attended with expense 

 to the party using the licence ; so that after the same is countermanded, 

 the party to whom it was granted may sustain a heavy loss. It is a 

 licence to do something that in its own nature seems intended to be 

 permanent and continuing ; and it was the fault of the party himself, 



