The defendant claims an easement in the plaintiff’s land. He claims a right to flow such lands for the use of his mill, which is supplied with water by means of a dam which the defendant and his grantors had kept up and maintained at its present height for about 25 years before the commencement of this suit. An easement is corporeal right, which may be acquired by grant os cence and use, upon the presumption of a grants common law is termed title by prescription. % always presupposes a grant made beyond the memory, and lost, the acquiescence and use requl or ripen into a title must be continued for a perios bar an action of ejectment, which in this state, sincex of limitations passed April 8,1800, has been, and now is, twenty years, except when brought as a substitute for a writ of right. It must be continued, uninterrupted and adverse. In Tyler v. Wilkinson, (4 Mason's C. C. R. 402,) Judge Story says : “ By our laws, upon principles of public convenience, the term of twenty *476years exclusive uninterrupted enjoyment has been held a conclusive presumption of a grant or right.” But this enjoyment must not be by license, leave or favor, but upon claim of right. (17 Wend. 564. 19 id. 309. 24 Pick. 106. 8 Barb. 155. 2 Kernan, 381.)
There is no doubt or dispute that upon the evidence in this case the defendant’s dam had been erected and used over 20 years before the commencement of this suit. The plaintiff’s counsel claims, however, that the defendant shows no right to flow his land, upon the ground that the dam has been erected and maintained for that time at its present height; that maintaining the dam does not imply a light, or a claim of right, to set back the water on to his land. The defendant proved his answer, or most of it, and though the answer might have been deemed insufficient as a pleading, yet if upon full proof of it the jury Avould be justified in finding for the defendant, the judge was right in receiving the evidence. The answer merely sets up the facts, or the evidence of facts, rather than the proper legal conclusion from those facts. The facts stated in the answer were proper for the jury, and it was for them to draw the proper conclusions from them. The answer states that the dam had been erected upwards of twenty years, and that the defendant and those under whom he claimed had been in the actual and peaceable possession and occupancy of the dam and its appurtenances for upwards of twrenty years, for the purpose of supplying the defendant’s grist mills, and that the dam had been kept up at its present height. And these facts were proved. Upon this evidence, and unless some proof was given by the plaintiff to rebut it, by showing that the defendant’s occupation so far as relates to flow of the water raised by the dam upon his land, was by leave or license or without claim of right, was sufficient to authorize the jury to imply a grant of the easement. The question ivas for the jury, upon the evidence. The burden of proving an adverse possession is on the party claiming the easement. But the use of an easement 20 years, unexplained, will be presumed to be under a claim or assertion of right and adverse, and not by leave or favor of the owner. (3 Kent, 442. *4773 East, 297, 300. 14 Mass. R. 53. 3 Bing. 115.) If a party claiming the easement shows an open and uninterrupted enjoyment for twenty years, as the defendant did here of the dam which involved the back flow of the water on to the plaintiff’s land, proof must come from the other side to show that such use of the defendant’s land was by license or permission, or that it was restrained or limited in point of time. (Finch v. Patridge, 2 Verm. R. 391. Cross v. Lewis, 2 B. & Cress. 686. 8 Barb. 155. 19 Wend. 366.) There being no proof in this case to rebut the presumption of a grant arising from the 20 years’ uninterrupted use of the easement, the charge of the judge, in view of the facts of the case, that they might presume a. grant from some person authorized to make it, and should find a verdict for the defendant, was right. In advising them that they should-find a verdict for the defendant, the judge merely advised them in effect that the legal presumption, upon the evidence, unexplained, was in favor of the defendant’s title by prescription, as claimed. The jury would not have been warranted, upon the evidence, in finding a verdict for the plaintiff, and we should have been bound to set aside their verdict as against the evidence, if they had done so.
But the plaintiff’s counsel claims that prescription, when the defendant claims as part of his time the possession of a grantor who took possession before the revised statutes, must be 25 years. The time of legal memory in Massachusetts is fixed in analogy to the time prescribed for bringing a writ of right. (Melvin v. Whiting, 10 Pick. 295. Kent v. Wait, Id. 138.) But such has never been the rule in this state. The time for the enjoyment of an incorporeal hereditament to ripen a title by prescription has been fixed in this state in analogy with the period limited by the statute for the right of entry upon land, "which was 20 years, in the statute of limitations passed April 8, 1801. (See Rev. Laws of 1813, p. 185, § 3.) The rule was thus applied, before the revised statutes, to cases of flowing lands in mill dam cases, just like this, in Stiles v. Hooker, (7 Cowen, 266,) and Russell v. Scott, (9 id. 279.) In the case in 7 Cowen, Judge Savage states the rule as above. He says : “ A *478grant is presumed from 20 years uninterrupted use of water at a certain height.” The case, I think, upon the whole, was rightly disposed of at the circuit, and the judgment of the special term should be affirmed.
[Monroe General Term, December 1, 1856.T. R. Strong, Welles and Smith, Justices.]