In reply, plaintiff takes issue on the first and second pleas. To the third, denies that Wallace was seised in fee in manner and form alleged: concluding to the country, and issue. To the fifth, plaintiff accepts the £3 in satisfaction, and acquits defendant, &c. To the fourth, plaintiff new assigns other and different trespasses, committed in the said close, than those mentioned in the fourth plea; to which defendant pleads a prescriptive right, by reason of twenty years' uninterrupted enjoyment, as of right, &c., to put, place or lay, within the usual water-mark of said pond, and within that part of said close described in the first plea; the same not exceeding ten acres, a dam, &c.; and so justifies. Plaintiff replies de injuriâ.

Though not clearly expressed, I think it must now be taken that the new assignment means other trespasses within the limits stated in the first plea, and that the fifth plea relates only to trespasses beyond those limits; if not, the one is not consistent with the other. In the application of the evidence to the pleadings, it appears that the newly-made embankment, in extension, or to the north and east of the first or earlier embankment made upon plaintiff's lot No. 19, but both being within the limits specified in the first plea, constituted the trespass complained of as newly-assigned. The defendant does not plead title thereto by non-existing grant. But, according to the late decisions, it would be open to him to prove his title under the second plea of not possessed, or not plaintiff's close-Whittington v. Boxall (5 Q. B. 139), Jones v. Chapman (2 Ex. R. 803). But the evidence does not prove title to the land, or the estate in the land. The account rendered by Jones to Henry, in which he charges £50 for land for mill-pond, would not pass the estate; nor would the exception or mention thereof in Jones's deed to Herchmer have that effect; and Henry says that he did not receive any other grant or conveyance. Of course the bond from Jones to Macdonald, from whom Henry purchased lot No. 20, would not pass the estate. Even if the existence and contents of such instrument appeared more clearly than they do, I see no sufficient ground therefore for holding the defendant, or those deriving title and holding under Henry, seised of an estate in the locus in quo. No paper title is traced to the defendant, nor does he justify under any one who had

such a title, even if he could set up the jus tertii under the second plea; nor was twenty years' possession shewn, if that would do. It follows, that under the deed from Jones to Herchmer and Herchmer to plaintiff the latter became seised and possessed of the whole of lot No. 19, including the locus in quo, subject, however, to an easement subsisting in favor of the owners of lot No. 20 and the mill, to overflow the same to the extent of ten acres. The plaintiff does not, however, deny the right stated to have been acquired in the fourth plea, to some extent; meaning to the extent of the first or original wing-dam erected on lot No. 19 by Henry, and maintained thereon by his successors to the mill: but the plea to the new assignment limits the locus in quo to something beyond that, and applies to the recent or new embankment. Then, as to that embankment: Its legality, I think, depends, not on title to the land, for the evidence does not establish that; but upon the consideration whether it was merely a repair, or was in fact an addition, and more than a reparation.

I think that, as against plaintiff (holding as he does under Jones), the mention of the right to overflow is evidence of a grant of such an easement by Jones to the occupants of lot No. 20, but the grant of an easement only. He conveyed to Herchmer, subject to an agreement whereby permission was granted to the proprietors of the mill, &c., to overflow lot No. 19, not exceeding ten acres, should the same be necessary for the maintenance of the mill in water.

I think that, coupled with the other evidence, this may be taken to admit a grant. It says, "whereby permission was granted, and the grant of permission would be a grant of the right or easement. The defendant does not however, in pleading, rely upon the grant of an easement only, or upon a right to enter and repair as incident to such easement. Then, as to the easement itself, it only permitted the overflow, not exceeding ten acres, so far as necessary to maintain the mill in water. That grant existed as far back as 1819, at the latest, and perhaps as far back as 1817, or still earlier; but it contains no permission to erect an embankment or dam upon any part of lot No. 19 in order to cause the overflow of ten acres, or to maintain the mill in water. Henry, however,

construed his right otherwise, and did enter and erect a part. of his dam upon lot No. 19; and having maintained it there, and caused back-water thereby upon some other parts of the said lot No. 19 for upwards of twenty years, the right to do so has been acquired by lapse of time and the Statute of Limitations; but only to the extent so enjoyed. On the other hand, though the grant originally authorised the overflow of ten acres (whether by a dam or embankment placed upon lot No. 20 only, or partly upon both lots Nos. 19 and 20), still such right, if not exercised within twenty years, would be lost by lapse of time, as it might have been acquired in the absence of any grant; consequently, the easement must now be limited to the extent overflowed within twenty years from the time of the grant, and cannot be extended. Although the excess does not go beyond ten acres, the lapse of time exceeding twenty years must, I think, be taken conclusively to establish that it was not necessary to overflow more than was overflowed within twenty years to maintain the mill in water; in other words, the defendant cannot now extend his works, or even upon lot No. 20 erect a dam that should cause the overflow of plaintiff's lot to a greater extent than it had been overflowed within twenty years after the right to do so first accrued. I think the right may be lost or abandoned by non-user, or it might be acquired by usage exceeding twenty years.

If it turned upon the exercise of the easement, therefore, the defendant could not, at the time when, &c., overflow for the first time land that had been previously dry; much less could he enter on such dry land to raise for the first time additional embankment or dam to retain the water. At the same time, however, I am of opinion that, having the right to overflow a part of plaintiff's lot, the defendant had, as incident to that right, legal authority to enter upon the plaintiff's close and repair breaches that might have been made in the natural state of the soil. I think he was entitled to repair and preserve the natural state of the soil, so as to keep it in statu quo, but not to add to its natural level, so as to cause additional overflow or backwater. If so, then I think defendant does establish under his plea to the new assignment a right

to overflow the plaintiff's close to a certain extent, by reason of twenty years' enjoyment, &c.; and, so far as that overflow extended, he had a right to enter and repair.

The plaintiff does not deny this; but, deeming it as meant to be covered by the fourth plea, he waives that and new assigns additional or other trespasses, which reduces the case to the consideration whether the defendant has done more than repair breaches so as to maintain the soil in that part of plaintiff's close in its natural state, not adding thereto or causing extra overflow of the waters, or has added to or raised the natural level of the soil and placed additional embankments on plaintiff's close, not in necessary repair of breaches in the natural soil, but in order to increase the quantity of the overflow on plaintiff's close; or, at all events, disturbing or incumbering his close beyond the limits, or to an extent not sanctioned by twenty years' previous usage, or necessary to effect repairs. It may be remarked that the plea to the new assignment does not allege that the trespasses complained of were committed within the usual water-mark; but, after alleging the necessity for so doing, he adds, that he did necessarily commit the trespasses newly-assigned, not saying they were the identical or the same.

However, taking the substance of the issue to be, not whether it was within the usual water-mark of the pond, but whether the defendant had acquired the right under the statute, as pleaded, it was for the jury to decide upon the fact whether it was a mere repair required to sustain the pond in the state it had been for twenty years before, or an encroachment or excess beyond what twenty years' enjoyment sanctioned: and they have found for the plaintiff; and the evidence, though conflicting, seems to warrant such finding.

As to the argument that Henry having possessed or overflowed part of the ten acres, was constructively possessed of the whole ten acres, I do not think (for reasons already given) that the facts warrant that view. Neither, on the other hand, do I think that, the original mill having been burnt down and the mill rebuilt, destroyed or abridged or suspended, the rights acquired by the occupants of lot No. 20 to overflow a part of lot No. 19 not exceeding ten acres. But

3 D

VOL, V.

I think that the extent to which such right can be asserted and maintained depends upon the extent to which it was in fact exercised within twenty years after it accrued, and that a partial exercise of it, as by overflowing eight or nine acres, did not keep alive the right to extend the overflow at any time

so as to cover ten acres.

On the whole, I think that as to a portion of the trespasses complained of the defendant was not repairing breaches that he was legally entitled to repair, but did otherwise commit acts of trespass upon plaintiff's close not legalised by twenty years' previous enjoyment, and that the rule should be discharged. Smith v. Loyd (25 Eng. Rep. 492, Exch.); Statute of Limitations.

Per Cur.-Rule discharged.

SPARROW V. CHAMPAGNE.

Ordnance lands-Leaschold lands-Sale of.

In debt on a lease, it was proved the plaintiff held under the last of several assignments of a yearly lease from the principal officers of Her Majesty's ordnance. A judgment was obtained against the plaintiff, and his interest in the lot sold under a writ of Fi. Fa. against goods and chattels. Plaintiff afterwards demised the said lot to defendant, and on nonpayment of rent brought his action on the lease.

Held, that the interest of plaintiff was a chattel interest, and might be sold under Fi. Fa. against goods and chattels-See 7 Vic. ch. 11, sec. 7; and that the lease to defendant being made after such seizure and sale, plaintiff was not entitled to recover.

Declaration states that on the 3rd of March, 1853, plaintiff demised to defendant a messuage and premises for the term of three years, from 1st of May, 1853, at a yearly rent of £24, payable monthly in advance, in equal proportions; that defendant entered and was possessed from thence until the 30th of June, 1854, when, to wit, £30 for fifteen months' rent ending 31st of July, 1854, became payable, wherefore an action hath accrued, &c.

Pleas-First. Never indebted; to the country, and issue. Second. That plaintiff did not demise modo et forma, &c. ; to the country, and issue.

Third. As to £3 for one and a half months' rent, to wit, on the 15th of June, 1853, defendant paid the same to plaintiff, in full satisfaction of so much, &c.-Verification.

Fourth. As to residue, being rent for thirteen and one half