CLAIM BY PRESCRIPTION. 81 



distinguished from it," but this judgment was over-ruled (see Law of 

 the Farm, pp. 100, 101). Rowhotham Y.Wilson was directed to show the 

 quahfied right to support by a person who acquired the title to the sur- 

 face soil, subject to a covenant, under which the owner of the minerals 

 might work them without liability to an action for damage by the sinking 

 of the surface. Harris v. Rijclinrj, Humpliries v. Brogdcn, Smart v. Morton, 

 and 7'he Caledonian Railway v. Sjjrott, show what arc the rights of 

 support both subjacent and adjacent existing, of common right, and 

 upon the construction of ordinary grants and exceptions in conveyances. 



The case of Rowl)otJiam v. Wilson was taken to the House of Lords, 

 who affirmed the decision of the Court of Queen's Bench, and it was 

 decided that the " right to work mines is an incident to the grant of 

 mines," that though the covenants could not operate as a release of the 

 general right of a surface owner to the support of the subjacent soil, it 

 did operate as a grant of the right to work the mines, and thereby 

 injure the surface, provided such injury was not the result of negligence 

 or unskilfulness (8 L. C. 348 ; L. J. 30 Q. B. 49). 



In 2 & 3 Will. IV., c. 71 (an act for shortening the time of prescrip- 

 tion in certain cases), it is enacted by sec. 1, that claims to right of 

 common and other 2^>'ofils d j^rcndre are not to be defeated after 30 

 years' enjoyment, by showing only that they were first taken and enjoyed 

 at any time prior to the commencement of such 30 years ; and that 

 after 60 years' enjoyment the right is to be absolute, unless the same 

 was taken and enjoyed by some consent or agreement expressly made or 

 given for that purpose by deed or writing. 



Sec. 2 enacts, " That no claim which may be lawfully made at the 

 common law, by custom, prescription, or grant, to any way or other 

 easement, or to any watercourse, or the use of any water to be enjoyed or 

 derived upon, over, or from any land or water of, &c., when such way 

 or other matter as herein last before-mentioned shall have been actually 

 enjoyed by any person claiming right thereto, without interruption, 

 for the full period of 20 years, shall be defeated or destroyed, by 

 showing only that such way or other matter was first enjoyed at any 

 time prior to such period of 20 years ; but nevertheless, such claim 

 may be defeated in any other way by which the same is now liable to be 

 defeated : and where such way or other matter as herein last before- 

 mentioned shall have been enjoyed as aforesaid for the full period of 

 40 years, the right thereto shall be deemed absolute and indefeasible, 

 unless it shall appear that the same was enjoyed by some consent or 

 agreement expressly given or made for that purpose, by deed or 

 writing." 



Sec. 8 enacts, " That when any land or water upon, over, or from 



