FEEE PASSAGE OF AIR TO A WINDMILL. 95 



this, an injury to tlic reversion." IJanle J. thus remarked on tliis 

 case in Knlgill v. Moor : " My brother Parlce does not say that it would 

 not be evidence if the party claimed a right of way, and meant to assert 

 it." And i^cr Mauh J. : " To entitle the reversioner to maintain this 

 action, must not the two things concur, viz., an injury of such a nature 

 as will be presumed to be permanent, and the fact of its being evidence 

 against him on a claim of right" {ib). Crcssicell J. also cited Baxter v. 

 Taylor as one in point, as well as Miimford v. Oxford, Worcester and Wol- 

 verham])to)i Railway Comjiany, in his judgment in Simpson v. Savayc, 

 where it was decided that an action cannot le maintained for an injury to 

 a reversion ivMcJi is not of a permanent nature, although it makes the 

 reversion of a less marketable value (26 L. J. C.P. 50 ; 1 C. B.K S. 347). 



In Kidgill v. Moor the declaration in case by a reversioner alleged 

 that the plaintiff was entitled to a right of way for his tenants over a 

 certain close of the defendant ; and charged that the defendant wrong- 

 fully hclced, chained, shut and fastened, a certain cjcde standing in and 

 across the way, and wrongfully kept the same so locked, &c., and 

 thereby obstructed the way ; and that by means of the premises the 

 plaintiff was injured in his reversionary estate. It was held by the 

 Court of Common Pleas, on a motion in arrest" of judgment, that the 

 declaration was sufficient, inasmuch as such an obstruction 7niyU occa- 

 sion injury to the reversion, and it must be assumed after verdict that 

 evidence to that effect had been given. Cressivdl J. said : " Jackson v. 

 Pesked decides that a delaration of this sort is insufficient unless it 

 contain an averment that the acts charged injured the plaintiff's 

 reversionary interest. That case, however, undoubtedly recognizes the 

 validity of a declaration which contains such an averment, and states 

 facts which may or may not amount to such injury of the reversion. 

 Here the declaration alleges certain things to have been done by the 

 defendant, so as to occasion injury to the plaintiff's reversionary in- 

 terest. I agree with my brother MauJe that that is an allegation of 

 fact, and that wc must take it to have been proved if the facts stated 

 could so operate. It is impossible to say that a gate may not be 

 so fastened as to enure as an injury to the reversion." But qnare 

 per MauJe J. : " Could the landlord bring an action alleging an 

 injury to the reversion, where there has been no actual obstruction 

 of the tenant ? " (9 C. B. 364 ; 19 L. J. C. P. 177). 



Free passage of air to a windmill. It was held in error, affirming the 

 decision of the Court of Common Pleas, that a right of free passage of 

 air is not an easement within the meaning of section 2 of the Prescription 

 Act, 2 & 3 Will IV. c. 71. A grant of a free passage of air to a wind- 

 mill over the soil of another cannot le presumed from 20 years' use of the 



