S6 IMMEMOEIAL EIGHT OF WAY. 



laches of its officers, that which the Crown itself could not confer 

 directly. I am clearly of opinion that Lord TenterderCs act does not 

 give the claimant the right he claims." And per Cresswell J. : " It 

 seems to be imagined that because you caunot defeat a claim which 

 may be lawfully made at the common law, by custom, prescription, or 

 grant, to any right of common or t)tlicr profit a prendre, by showing 

 onJi/ that such right or profit was first taken or enjoyed at any time 

 l>rior to the period of 30 years, therefore you cannot defeat it all. I do 

 not find that stated in Lord TenterderCs act. There is no attempt in 

 this case to defeat the claim by showhig only its origin, but by showing 

 that it never could have had a legal origin." 



Under 2 & 3 Will. IV., c. 71, s. 2, the privilege of washing away sand, 

 stone, and rubble, dislodged in the necessary working a tin mine, and 

 of having the same sent down a natural stream, running through the 

 plaiatift''s laud, may be the subject of a grant, and may be pleaded as 

 a prescriptive right to a declaration charging the defendants with 

 throwing such stone, sand, and rubble into the stream, and thereby 

 filling up its bed within the plaintiff's land, and causing the water to 

 flow over it {Carhjon v. Lovcring). Such privileges may also be well 

 pleaded as a local custom {;ib.). And see Murgatroijd v. Rolinson, 

 where it was doubted by the Court of Queen's Bench, whether if a 

 claim had been sufficiently alleged in the defendant's plea to deposit 

 cinders on the plaintiff's part of the bed of the river Calder, it could be 

 considered as a valid claim to an easement within the meaning of the 

 same section. 



An immemorial right of way is not lost hg non-user for upwards of 20 

 years, the user having been discontinued merely by reason of the party's 

 having had a more convenient way {Ward v. Ward) ; and per Alderson 

 B. : *' The presumption of abandonment cannot be made from the mere 

 fact of non-user ; there must be other circumstances in the case to raise 

 that presumption. The right is acquired by adverse enjoyment. The 

 non-user, therefore, must be the consequence of something which is 

 adverse to the user. Here the owners of the Stubbing Pits did not use 

 the way in question, for the simple reason that they had a more easy 

 and convenient means of access to that part of their property. If the 

 owner of that close were now precluded from recovering the original 

 right, he would be without any means of access to his property." And 

 per rattcson J.: "If there be 10 years' enjoyment of a right of way, 

 and then a cessation under a temporary agreement for another 10 years, 

 yet this may be a sufficient enjoyment of the old right for 20 years to 

 make it iudefca-sible under Stat. 2 & 3 Will. IV., c. 71 ; for the agree- 

 ment to suspend the enjoyment of the right does not extinguish, nor 



