They brought a claim against the owner of neighbouring land (including the cottage in which he lived), Gregory, for blocking a ventilation shaft out of Bass' cellar.

The view of the Court was that no man could dictate to his neighbour how he should build his house with respect to the general current of air common to all mankind.

It was said for the defendant that, assuming such a right could exist at law, the Prescription Act did not apply to it, and that upon the evidence a lost grant ought not to be presumed.

In Webb v Bird Erle CJ, expressed an opinion that the second section of the Prescription Act only applied to rights of way and of water.

Perhaps the doctrine has best been stated by Parke, B., in Bright v Walker, who says, at page 217: “For a series of years prior to the passing of this Act (the Prescription Act 1832) judges had been in the habit, for the furtherance of justice and the sake of peace, to leave it to juries to presume a grant from a long exercise of an incorporeal right, adopting the period of twenty years by analogy to the Statute of Limitations.

I am of opinion that the Court ought to presume a lost grant here, and I know no case in which the doctrine could be more properly applied, because it is impossible to suppose that the precise history of two adjoining tenements such as these should have been preserved.

One must look at the state of things existing for a series of years, and then see what is the fair presumption where a person allows an easement of this kind to grow up to the benefit of his neighbour's land and the detriment of his own.