§10. But this right to the use of waters, as an easement to the land, may be acquired and lost, or enlarged and abridged, by prescription. A man may diminish the quantity of the water, or corrupt its quality, by the exercise of certain trades; and by such use of the water for a sufficient length of time, he is in law presumed to have acquired it by grant: and this presumption is the foundation of his right by prescription. The time of such use and enjoyment of water necessary to establish such right is twenty years, except in states in which a different period is fixed by statute. (§7.)
§11. It is a general and established doctrine, that an exclusive and uninterrupted enjoyment of water, or of light, or of any other easement, in any particular way, for twenty years, or for any other period which in any particular state is the established period of limitation, is a sufficient enjoyment to raise a presumption of title as against the right of any other person. The enjoyment is deemed to have been uninterrupted, whether it has been continued from ancestor to heir, and from seller to buyer; or whether the use has been enjoyed during the entire period by one person.
§12. As a right may be acquired by use, so it may be lost by disuse; and as an enjoyment for twenty years, or such other period as is prescribed by statute, is necessary to establish a right; an absolute discontinuance of the use for such period will raise the presumption that the right has been released or extinguished. Thus a title to land may pass from its actual owner by non-occupancy for the period above stated; and a title to it may be acquired by an undisturbed occupant who shall hold it in peaceable and uninterrupted possession for the same period.
Chapter LIII.
Leases:--Estates for Life; Estates for Years; Estates at Will; Estates by Sufferance; Rent, &c.
§1. Real estate, the title to which is conveyed by deed, as distinguished from other estates in land, is called an estate of inheritance. An estate of inheritance, that is, an estate in lands that may be transmitted by the owner to his heirs, is a fee. No estate is deemed a fee unless it may continue forever. When it is a pure and absolute inheritance, clear of any qualification or condition, it is called a fee-simple.
§2. An interest in lands which is to continue for a limited period, is usually conveyed by a written instrument called lease. To lease, means to let; but generally to grant the temporary possession of real estate to another for rent or reward. Sometimes the word demise is used for ease. The landlord, or person letting the estate, is called lessor; and the tenant, or person to whom the land is leased, is called lessee. Leases for a term longer than one year, are usually required to be sealed, and in some states, proved and recorded also, as deeds and mortgages.
§3. These limited interests in land are divided into estates for life, estates for years, estates at will, and estates by sufferance. An estate for life is an estate conveyed to a person for the term of his natural life. Life estates held by lease, however, are not common in this country. Another kind of life estate is that which is acquired, not by the acts of the parties, as by lease, but by the operation of law. Such is the right of a husband to the real estate of his wife acquired by her before or after marriage. Such also is the right of dower. (Chap. XLVIII, §6, 7. Chap. LI, §7.)
§4. An estate for years is a right to the possession and profits of land for a determinate period, for compensation, called rent; and it is deemed an estate for years, though the number of years should exceed the ordinary limit of human life. And if a lease should be for a less time than a year, the lessee would be ranked among tenants for years. Letting land upon shares for a single crop is not considered a lease; and possession remains in the owner.
§5. A lessee for years may assign over his whole interest to another, unless restrained by agreement not to assign without leave of the lessor. And he may underlet for any less number of years than he himself holds; but he is himself liable to the landlord.