CONTINUOUS ENJOYMENT OF EASEMENT. 83 



of the act. So in Onghy v. Gardiner it was decided that the enjoyment 

 of an casement as of right for 20 years next before the commence- 

 ment of the suit, within tiie stat. 2 & 3 Will. IV., c. 71, means a con- 

 tinuous enjoyment, as of right for the twenty years next before the 

 commencement of the suit, of the easement as an easement, without 

 interruption, acquiesced in for a year. It is therefore defeated by 

 unity of possession during all or part of the 20 years, and such 

 unity of possession need not be replied specially under the 5th section. 

 Here the defendant in support of his plea proved that about 40 years 

 ago the close now called the Click Head Coppice was a hop-yard, and 

 that at that period hops used to be carried thence over the plaintiff's 

 two closes to the highway, and also that once in every six or seven years 

 hop-poles were carried across them to and from the hop-yard. This use 

 of the premises had, however, long ceased, and the hop-yard was after- 

 wards planted as a coppice, and it appeared that for many years, down 

 to a period of about 15 years before the commencement of the suit, 

 all the three closes had been occupied together : from that period to the 

 commencement of the action the defendant proved a user of the way 

 for all purposes. The plaintiff objected that under these circumstances 

 the plea under the statute was not sustained, for that there had not 

 been an enjoyment as ofriglit, i.e., adversely to the owner and occupier 

 of the closes, over which the way was claimed, for the full period of 

 20 years next before the suit. 



A verdict was found for the defendants, leave being reserved by 

 Patteson J. to the plaintiff to move to enter a verdict for nominal 

 damages. The Court of Exchequer gave the defendant leave to amend 

 by pleading the right immemorially. Parlce B. said, " The enjoyment 

 of the easement must be continuous, and the Court has already inti- 

 mated its opinion to that effect, in tlic case of The llonmouthshire 

 Company v. Harford. That an enjoyment must be of an easement, as 

 such, is a matter on which we feel no difficulty ; and the Court has 

 already put this construction on the act, after some consideration in 

 the case of Briyht v. WaUccr, though the precise point was certainly 

 not in judgment. As to tlie question, whether the proof of unity of 

 possession is admissible under the traverse of the plea, no doubt can 

 be entertained, since the decision of the case of The Monmouthshire 

 Compcmy v. Harford, and its confirmation by the Court of King's 

 Bench in Ticlcle v. Brown, and by the Court of Common Pleas in 

 Beaslcy v. Clarice. The ' simple fact of enjoyment,' referred to in the 

 5th sec, is an enjoyment 'as of riyht^ and proof that there was an 

 occasional unity of possession is as much in denial of that allegation 

 as the occasional asking permission would be." And so it was decided 



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