S-Z CLAIM OF IlIGHT TO EASEMENTS. 



which any sucli way or other convenient watcrconrsc or nsed water 

 shall have been or shall be enjoyed or derived, hath been or shall be 

 held nnder or by virtue of any term of life or any term of years exceed- 

 intr three years from the irranting thereof, the time of the enjoyment 

 of any such way or other matter, as herein last before-mentioned during 

 the continuance of such term, shall be excluded in the computation of 

 the said period of 40 years, in case the claim shall within three years 

 next after the end or sooner determination of such term, be resisted 

 by any person entitled to any reversion expectant on the determination 

 thereof." 



According to 7'/cJrJe v. Broim, 4 Ad. & E. 378, the words, " enjoyed 

 by any person claiminrj rigJiV^ applied to easements in sec. 2 of this 

 statute, and " enjoyment thereof as of rigid," in sec. 5, means an enjoy- 

 ment had 7iot secreih/ or hij stealth, or hj tacit sufferance, or hy permissim 

 aslced from time to time, on each occasion or on many, but an enjoyment 

 had openly, notoriously, without particular leave at the time by a person 

 claiming to use, without danger of being treated as a trespasser, as a 

 matter of right, whether the right so claimed shall be strictly legal, as 

 by prescription and adverse user, or by deed, or shall have been merely 

 lawful, BO far as to excuse a trespass. To a plea of 40 or 20 years' 

 enjoyment of a way, a licence, if it cover the whole time, must be 

 pleaded ; but a parol or other licence given and acted on duriny the 

 40 or 20 years, may be proved under a general traverse of the 

 eujojmcnt as of 7-iyht, and this whether such licence be granted for a 

 single time of using or for a definite period (/&.). And semhle that 

 where issue is joined on the allegation of an interruption acquiesced in, 

 the party alleging the interruption having proved a non-user during 

 part of the time, may, in order to show that such non-user was not a 

 voluntary forbearance, give evidence that two years before the non-user 

 commenced, the party claiming the way paid a consideration for being 

 allowed to use it (ib.). 



In Beasley v. Clarice, 2 N. C. 705, the Court of Common Pleas upheld 

 the construction put upon the 5th sec. in Tickle v. Broivn, and ruled 

 that under a plea denying that the defendant had used the way for 

 40 years, as of right and without interruption, the plaintiff is at liberty 

 to show the character and description of the user and enjoyment of the 

 way during any part of the time, as that it was used by stealth, or in 

 the absence of the occupier of the close, and without his knowledge, or 

 that it was merely a precarious enjoyment by leave and licence, or any 

 other circumstances, which negative that it is a user or enjoyment 

 under a claim of right. Monmrmthshire Caned Conqmny v. Harford, in 

 the Court of Exchequer, is another authority for the same construction 



