The opinion of the Court was pronounced by
Skinner, Ch. J.It is insisted by the plaintiff’s counsel, that to acquire a prescriptive right, the exercise and enjoyment thereof for no period of time short of that recognized by the ancient common law, i. e. time whereof the memory of man run-neth not to the contrary, is sufficient.
That the principle of presuming a grant by fifteen years’ possession and use, applies to adverse possession, and not to possession received from and held under the owner. That the evidence in this case shows the possession of the defendant and those under whom he claims, to have been a tenancy under the plaintiff and his grantors, and the repairs to the dam are in the nature of, and to be considered as rent.
By repeated decisions of this Court, the law at this time must be considered as well settled here as in England, that in analogy to the limitation of twenty years, affixed by the statute of James, in England, for entry upon lands by the owner, and here by our statute of limitations of fifteen years, applying to all real and possessory actions, a presumptive right, or more properly, the presumption of a grant to incorporeal hereditaments, arises in the same period of time.
This possession, it is contended by the plaintiff, and correctly, must be adverse to the right and claim of the owner or proprietor. But all that is necessary to constitute such adverse possession and use, is, that it must be accompanied by a claim of right on the part of the possessor. From whom that right is claimed to have been derived, whether from the plaintiff or any other, is not material. If the right claimed is a mere tenancy, this perhaps might not be presumed to be a permanent estate. In other words, a possession and use for fifteen years under a claim of this description, may not perhaps raise the presumption of there having been a dural-le lease. It is, however, unnecessary to examine that question, as we consider the evidence before us in the case does not present the claim of the defendant in the light of a tenancy. In the ordinary case of a tenant, the estate which is used and occupied, and from which profits *270are derived, is that of the landlord': In this case, the buildings, &c. and all the expenditures are made by the defendant, and it would be the natural and common (though not the legal) presumption, that at the time the defendant’s grantor erected his mills, &c. he had secured the right to the water by grant, as the whole cost and charge must be a loss, and the establishment useless without it.
The defendant having been in the possession, use, and occupation of the easement for more than fifteen years, the jury may and will presume a grant unless there is something to rebut the presumption.
It is urged, that the fact that the defendant and those under whom he claims, have done, or admitted that they were obliged to do, one quarter the repairs to the dam, is inconsistent with, and contradicts the presumption of a grant. That a conditional grant cannot be presemed. No authority is shown by the plaintiff’s counsel to sustain this position, and from looking into the cases referred to by counsel for the defendant, it appears such right may be claimed by prescription, and consequently a grant may be presumed. If in this case the facts will justify the presumption of a grant at all, whether the right in the defendant is conditional, and liable to be defeated by the non-performance of the condition, or is independent of the duty resting upon him to aid in repairing the dam, may be questionable. We are inclined to consider it of the latter description, and if so, there would be no doubt a grant might be presumed.
The language of the court in charge to the jury is, “If the defendant had used and improved the water more than fifteen years, claiming right thereto, the law presumed a grant.” It may not be perfectly correct to say the law presumes a grant, in as much as it seems to be considered matter of evidence from which the jury are to make the presumption. — 3 East. 302.— 2 Saund. 175, b. c. d. n. 2. — 3 Bing. 115.
The court in the charge further say- — “If the Hamiltons made the contract under a mistake of the facts and their rights, although it was made before the expiration of fifteen years from the commencement of the use of the water, such contract would not remove the presumption of a grant.” It will be recollected the jury were thus charged on request of the counsel for the defendant, and by consent of the plaintiff’s counsel, the latter feeling confident of a verdict in his favour upon the facts. My opinion was then as it now is. The uninterrupted enjoyment of an easement for fifteen years, constitutes the presumption of a grant from the original proprietor.
This enjoyment and use must be with the acquiescence of such proprietor, and accompanied with a claim of right on the part of the occupant. An interruption of the occupant, and a claim of right on the part of the proprietor, or an admission of such right by the occupant, either express or implied, will repel the presumption. $o use and occupation by mistake, will defeat a claim set up on the ground of fifteen years’ enjoyment. *271- — Jackson vs. Wilkinson, 3 Barnwell & Creswell, 413. — 2 Saund. 173, d. ,
In this case there was evidence given tending to show that the plaintiff’s grantor within fifteen years from the commencement of the use of the water by the defendant’s grantor, asserted his right, and denied the right of the latter, and that it was mutually agreed between them, that the latter should for certain considerations hold as tenant of the former.
But it is urged that by reason of the mistake on the part of Hamilton, this agreement can have no effect. The case states that the agreement was made by the Hamiltons under a mistake of the facts and'their rights. Although under such circumstances the agreement may not be such as can be enforced against the Hamiltons, yet it constitutes a claim of right set up on the part of the plaintiff, and an admission thereof on the part of the defendant.
It does not appear from the case what this right of the Ham-iltons was, about which they were mistaken. If it was a right to the use of the water acquired otherwise than by occupancy, that right may remain, the agreement notwithstanding.
But before the fifteen years elapsed, the plaintiff having asserted his claim, and -the defendant having conceded the right, the plaintiff was thereby lulled to security, and under whatever circumstances the defendant may have made the agreement, the presumption of a grant is thereby repelled.
The defendant’s counsel suppose the case is one in which a court of chancery would decree a conveyance, and therefore urge that this Court will presume one. That when chancery will decree a specific performance in favour of a party, a court of law will not give damages against him. Admitting the doctrine correct, there are no facts before the Court by which they would be justified in sustaining the verdict. The case shows that testimony was given tending to prove certain facts; but there is nothing before the Court that could warrant the belief of any thing other than what is supposed necessarily to have been found by the jury. The jury were instructed, that if they found from the evidence that the defendant and those under whom he claimed had occupied the easement, claiming right thereto, for the period of 15 years before the commencement of the suit, they would presume a grant, notwithstanding the agreement of the parties before referred to. The jury, then, from their verdict, are supposed to have found the use and occupancy for more than fifteen years, and if any contract was made between the parties, the same was made by the defendant, or rather Hamilton, from whom he claims, under a mistake of the facts and his rights. Whether a contract was made or not, does not appear, and if made, in what the mistake consisted cannot be learned from the case.
There is nothing before the Court to show under what circumstances the defendant has enjoyed the use of the easement which he claims; we cannot therefore say it would be equita-*272kle or just to render judgment upon the verdict — a new trial therefore must be granted.
Hutchinson, J. being of counsel for the plaintiff, did not sit on the trial.