Lapse of time cannot justify a nuisance arising from the manufacture of animal mat ter into a fertilizer, as every day's continu ance is a new offence; N. W. Fertilizing Co. v. Hyde. Park, 97 U. S. 659, 24 L. Ed. 1036; nor legalize a public nuisance; Leahan v. Cochran, 178 Mass. 566, 60 N. E. 382, 53 L. R. A. 891, 86 Am. St. Rep. 506 ; Reed v. Birmingham, 92 Ala. 339, 9 South. 161 ; Peo ple v. Min. Co., 66 Cal. 138, 4 Pac. 1152, 56 Am. Rep. 80; Nolan v. New Britain, 69 Conn. 668, 38 Atl. 703; Baltimore v. Imp. Co., 87 Md. 352, 39 Atl. 1081, 40 L. R. A. 494, 67 Am. St. Rep. 344; State v. Holman, 104 N. O. 861, 10 S. E. 758; Meiners v. Brewing Co., 78 Wis. 364, 47 N. W. 430, 10 L. R. A. 586 ; Woodruff v. Min. Co., 18 Fed. where the defendant relied upon a prescrip tive right to cause sewage to pass over cer tain places, an injunction was granted where such places were used as oyster beds and the defendants alleged that the sale of their oysters had been prohlbited; 72 J. P. 404.
It is not a universal principle without ex ception that whatever incorporeal heredita ment may be granted may also be acquired by long and uninterrupted user. On the contrary, it' is well settled that a right claim ed by prescription, must be such as must reasonably be presumed to have been grant ed. An owner of land who is eompas mentis may grant an easement over it which will in effect destroy the usufruct of his property, but no man will be presumed to have made such a grant; Tinicum Fishing Co. v. Car ter, 61 Pa. 21, 100 Am. Dec. 597. It is there suggested that our departure from the com mon law as to the prescription of light and air might well have been put upon this prin ciple; Hoy v. Sterrett, 2 Watts (Pa.) 331, 27 Am. Dec. 313; Wheatley v. Baugh, 25 Pa. 532; 64 Am. Dec. 721; Hazlett v. Powell, 30 Pa. 296 ; Haverstick v. Sipe, 33 Pa. 368. ' A prescriptive claim of common without stint as annexed to a messuage without land has been held bad; 8 Term 396. A plea that the occupiers of a brick kiln for thirty, years had enjoyed as, of right the privilege to take from the plaintiff's close all the clay they' required was overruled, be canse there could arise 'no reasonable pre sumption of such a grant; 5 Q. B. 415. The public cannot acquire a right by an unin terrupted user for , twenty years, with the knowledge of the owner, of his soil on the bezIF., of a navigable river as a landing for property in transit to and from vessels nav igating such river; Post v. Pearsall, 22 Wend. (N. Y.) 425.
Na, right can be acquired by prescription or adverse user to impede or interfere with the waters navigable or floatable stream ;, Collins Ir..ifoward, 65 N. H. 190, 18 Atl. 794; Rhodes v. Whitehead, 27 Tex. 304,
84 Am. Dec. 631. Where one has constructed a dam across a floatable stream, and has al ways maintained it so that logs could go over it, he cannot set up a prescriptive right to obstruct such public use, though the dam has existed for more than twenty years; Trullinger v. Howe, 53 Or. 219, 97 Pac. 548, 99 Pac. 880, 22 L. R. A. (N. S.) 545. Nor can the use of .a water Course be adverse to the rights of itnether so long as there is an abundance of water to supply both; Faulk ner. v. Rondoni, 104 Cal. 140, 37 Pac. 883. The use of the surplus water flowing from a spring is a mere license which can never ripen into a prescriptive right; Jobling v. Tuttle, 75 Kan. 351, 89 Pac. 699, 9 L. R. A. (N. S.) 960; Talbott v. Water CO., 29 gent. 17, 73 Pac. 1111. In Hunter v. Emerson, 75 Vt. 173, 53 Atl. 1070, it is said the open, notorious and continued taking of water from a spring for a period of more than fif teen years is permissive, and not under a claim of right, when it is consistent with another's title, though no express license is given.
Prescription properly applies only to in corporeal bereditaments; Ferris v. Brown, 3 Barb. (N. Y.) 105; Finch, Law 132; such as easements of water, light and air, way, etc.; Tyler v. Wilkinson, 4 Mas. 397, Fed. Cas. No. 14,312; Garrett v. Jackson, 20 Pa. 331; 1 Gale & D. 205, 210, n.; Tudor, Lead. Cas. 114; see Levy v. Brothers, 4 Misc. 48, 23 La. Ann. 425; Oldstein v. Bldg. Ass'n, 44 La. Ann. 492, 10 South. 928; Christ Church v. Lavezzolo, 156 Mass. 89, 30 N. E. 471; a class of franchises; Co. Litt. 114; Arundel v. McCulloch, 10 Mass. 70; Kuhn v. North, 10 S. & R. (Pa.) 401. See Fanny; Herbert, Prescription. The English law knows no positive prescription for corporeal things; for such things, the law provides a statute of limitations; 3 Holdsw. Hist. E. L. 135. _ Corporations may exist by prescription; 2 Kent *277; Stockbridge v. West-Stockbridge, 12 Mass. 400. It is necessary in such case to presuppose a grant by charter or act of parliament, which has been lost; Roble v. Sedgwick, 35 Barb. (N. Y.) 319. It has been held that a railroad company cannot acquire a right of way by prescription ; Narron v. R. Co., 122 N. C. 856, 29 S. E. 356, 40 L. R. A. 415 ; as against an owner who' has not given his consent thereto, though the occupation was lawfully taken under the right of emi nent domain; id.; that it can acquire such right (here by possession and use for 40 years after entry by consent or license); Louisville & N. R. Co. v. Smith, 128 Fed. 1, 63 C. C. A. 1; COgsbill v. R. Co., 92 Ala. 252, 9 South. 512; Midland R. Co. v. Smith, 113 Ind. 233, 15 N. E. 256.