YEAKLE against NACE, 2 Whart. 123

The opinion of the Court was delivered by Huston, J. It has to me sometimes appeared strange, that statutes of limitation should have met with such difference of construction, not only in different countries or states, but in the same country and court at different periods; and this difference has been so remarkable, that lawyers and judges too have at times spoken of them as entitled to no favour, and again as most beneficial laws; and again other lawyers and judges have said, they were to be understood and applied according to their intent and meaning, without regard to their supposed policy or impolicy.

This latter has been the course of the Supreme Court of the United States, and generally of this court, though for a time it felt trammelled by some English decisions. The difference of opinion has arisen from taking such acts to have been founded on different reasons. Perhaps no one of the reasons for their enactment was the sole one. They can be supported by many reasons. They seem to me however to have their binding force from the power of the legislature: to he imperative in all cases within their letter, and inoperative, with a very few exceptions, on all cases not within their letter.

One of these exceptions is, that where the adverse possession would bar a right of the plaintiff, if he once had such right, to the land itself, it could also bar a right to an easement or an appurtenance united to land—this, provided there has been a possession and use adverse to and inconsistent with such right, or appurtenance, for twenty-one years, a right of way or of water; and the like may remain dormant for a long time, and not be lost, if from the nature of the right and the contract it is apparent that it was not contemplated that the owner of such right should exercise it at an early period, and if the other party has done nothing inconsistent with the existence of such right, as in Butz v.

Ihrie, (1 Rawle, 218.) Where a right has been granted, or reserved, on a conveyance of land, and nothing to show that it was expected or intended that the right should be exercised immediately, ,but on the contrary, that it was to be at the pleasure of the party owning such right, to exercise it at such future time as might suit his interest or convenience,; it will not generally be lost by non user for twenty-one years. Nitzel v.

Paschall, (3 Rawle, 82.) But if the other party does acts inconsistent with and in denial of such right, it will be otherwise; as if a man grants twenty-five feet of front on one of the streets of this city, retaining the title to the adjoining land, and at the same time grants a right to an alley four feet wide, between the lot sold and that retained, expressly reserving the right to build under and over the said alley.

Now the grantor is not bound to build at all, and though he does not for more than twenty-one years, his right' to build under and over the alley is not gone ; but if his vendee of the twenty-five feet should cover those four feet by his building, the whole right of the vendor to those four feet would be gone by the limitation of twenty-one years, unless suit was brought within that time.

In the case before us, when- the tract of Coombe was divided into eleven lots by his executor, it was apparent that except lot No. 1 at one end, and No. 11 at the other end, no road touched these intermediate lots; and a lane was proposed in the terms of sale and in the deeds, to be formed by cutting 20 feet from the end of each lot; and if different persons had purchased, such a lane would have been immediately necessary; but it happened that he under whom Nace claimed, purchased No. 11, with a road along side of it, and Yeakle the plaintiff purchased the other 10 lots, the house being on No. 1, and a road past it: a lane through the intermediate lots became unnecessary to the two purchasers.

If nothing more had occurred, I do not say twenty-one years would have put an end to either party’s right to a lane; but he under whom Nace (the* defendant) claims, immediately enclosed his lot, and has had two fences across, where this lane would have been for 30 years; and during all that time has been cultivating the land over which the lane must have passed.

This was either a direct denial of the plaintiff’s right to a lane, or a possession adverse to his claim of one: twenty-one years adverse possession would have barred his right to the land itself, though he had a deed for it; and twenty-one years’ occupation adverse to the easement, and inconsistent with it, bars the right to a way. Judgment affirmed.