It is not necessary that the dominant and servient estates should be contiguous or adjoining in order to have a right of way by prescription. (19 C. J. 864 (§ 3), B, and cases cited; 9 R. C. L. 738, and cases cited.) It is true that when the easement is established, as you look back at it, it is supposed to rest upon a lost grant; but the elements of the easement are the continued use of the right of way upon the servient premises under claim of right in behalf of the dominant estate. The loss of a supposed grant is a fiction, resorted to in old times in order to ease the conscience of the chancellors and give them something on which to stand in avoiding a technical rule of practice, but no evidence as to a grant is required. The conclusion as to a grant rests upon the idea that if there had not been a grant the owner in due time would have put an end to the wrongful occupation. (19 C. J. 873 (§ 18), 2, note 81, and cases cited; 9 R. C. L. 771, § 32, and cases cited.)
The question is purely one of fact and I am content with the decision of the trial court except the right of passage to and fro from the highway to the lake must be limited to *90occasions and for the purpose of going to and coming from the premises on Valcour Island described in the complaint. I favor a modification of the judgment accordingly, and its affirmance as so modified, without costs.
Judgment reversed on the law and facts and new trial granted, with costs to the appellant to abide the event. The court disapproves of the following findings of facts numbered 5, 6, 12.