84 PROOF OF USER. 



by the Coui-t of Common Pleas in BattisliiU v. Read that the enjoyment 

 of an easement as of right, for 20 (or 40) years next before the com- 

 mencement of tlie suit, within stat. 2 & 3 Will. IV., c. 71, means a 

 conlinuous enjoyment, as of riylit, for 20 (or 40) years next lefore the 

 eommoncoment of the snit, of the easement as an easement, withont 

 interruption, acquiesced in for a year ; and such right is defeated by 

 unity of possession during all or part of the period of enjoyment, 

 though such unity of possession has its inception after the completion 

 of the 20 (or 40) years. 



In Clayton v. CorJjij the Queen's Bench considered Ongley v. Gar- 

 diner decisive on the point, that unity of possession was receivable in 

 evidence under traverse of the first plea (which pleaded the enjoyment 

 of a right by the defendant to dig clay for 60 years in the locus in quo 

 for the use of the kiln), because it went to show that the enjoyment 

 •was not as of right. And in a plea under this statute it is sufficient to 

 allege that the user had existed for 40 years lefore the commencement 

 of the suit, and it need not be alleged to have been for 40 years before 

 the act complained of in the declaration ( Wright v. Williams) ; and a 

 replication of a life estate to a plea of enjoyment for 40 years under it, 

 must shoW' that the plaintiff is the person entitled to the reversion ex- 

 pectant on the determination of such life estate {ih.) A plea of 20 

 years' enjoyment of a way, under stat. 2 & 3 Will. IV., c. 71, s. 2, must 

 be supported by user for that period down to the commencement of the 

 action {Parlccr v. Mitcltcll) ; and proof of user commencing 40 years 

 ago, but discontinued four or five years before the commencement of 

 the action, is insufficient {ih.). And to support a plea framed on this 

 section, of a right of way enjoyed for 40 years, evidence may be given 

 of a user for more than 40 years (Lawson v. Langley). When an 

 easement has been enjoyed for 19 years and a fraction, and is then in- 

 terrupted by the owner of the soil, the easement may still be acquired 

 under this statute at the end of the twentieth year ; for the interruption 

 to defeat 20 years' user must have been acquiesced in or submitted to 

 for a whole year {Flight v. Thomas). And as to pleading 20 years' 

 possession of a mixen, see another case between the same parties (10 

 Ad. & El. 59). 



Warlurton v. Parlce was a case of replevin for taking the plaintiff's 

 cattle. To an avowry, damage feasant, plaintiff pleaded in bar, under 

 the above statute, a user for 30 years as of right, and also of GO years 

 as of right, of common of pasture over the locus in quo. At the trial 

 the fact of user by the plaintiff and other occupiers of his farm was 

 proved ; but it appeared that S., from whom the ]»laiutiff and defend- 

 ant derived their title, was for more than GO years before, and until 



