FOSTER, J. I.
The plaintiff’s claim to recover damages upon the first two counts in his declaration rests upon an alleged prescriptive right to the use and occupation, in common with the defendant, of the well located upon the premises of the latter.
Prescription may be defined to be — A title acquired by possession had during the time and in the manner fixed by law. “ Prescripts est titulus exusu tempore substantiam capiens ab authoritate legis.” Co. Litt. 113 b. After the lapse of the requisite period, the law adds the right of property to that which before was possession, or, in the case of things incorporeal, a quasi possession only. Gale on Easements *86; Wallace v. Fletcher, 30 N. H. 434.
The manner fixed by the law for the establishment of a prescriptive right to an easement, is by open adverse enjoyment of the right, as an easement and as of right, without interruption, for the full period of twenty years. Gale on Easements *88, *99.
If, therefore, there has been a breach in the continuity of the enjoyment, as of right or as an easement, as where a unity of possession and of ownership occurs at any time during the period, then, although the actual user continues, the continuous user, as of right and as an easement, has been broken, and the title fails ; for, from the very definition of prescription, an enjoyment, iir order to confer a title, must have been uninterrupted, both as to the manner and during the time required by law. Gale on Easements *87, *88; Monmouthshire Canal Co. v. Harford, 1 C. M. & R. 631; Onley v. Gardiner, 4 M. & W. 499.
[330]*330In Mounsey v. Ismay, 3 Hurlstone & Coltman 486, an easement is said to be a privilege which one neighbor hath in the land of another as appurtenant to his land ; whence it was holden, that a custom for the inhabitants of a town to hold races over land is not an easement, and cannot be prescribed for.
“ Easements,” says Washburn, “ answer to the predial servitudes of the civil law, and consist of a right in the owner of one parcel of land, by reason of such ownership, to use the land of another for a special purpose not inconsistent with the general property of the owner. The parcel to whose ownership the right is attached is called the dominant, while that in or over which the right is to be exercised is called the servient estate.” 2 Washburn on Real Prop. 275, *25 ; Washburn on Easements 5. “ There must be two distinct tenements, — the dominant, to which the right belongs ; and the servient, upon which the obligation is imposed.” Gale on Easements 5; Mounsey v. Ismay, above cited.
These elementary definitions of prescription and easement being kept in view, the question before us is readily disposed of.
Prior to April 6,1852, John Stevens, under whom the plaintiff claims title, was the owner in fee both of the plaintiff’s and of the defendant’s farmd. Until that time the plaintiff occupied his present farm by the permission of his father, John Stevens. He had no title nor right there except as a tenant at will, or at sufferance, there being no agreement between the plaintiff and his father that the farm should belong to the plaintiff before he had paid the price required by his father. Possession of land, under an agreement to purchase it, is not adverse until full payment according to the agreement. Drew v. Towle, 30 N. H. 531. Occupying thus, he took water from the well, by the license and permission of the owner of the well. He acquired by this license no greater right than his father had, who gave the license, namely, a right, by unity of possession and title, to draw water from his own well.
No man can have an easement in his own land. If the dominant and servient tenements are the property of the same owner, the exercise of the right, which in other cases would be the subject of an easement, is, during the continuance of his ownership, one of the ordinary rights of property only, which he may vary or determine at pleasure, without in any way increasing or diminishing those rights. The dominant and servient tenements must, therefore, belong to different persons ; immediately they become the property of one person, the inferior right of easement is merged in the higher title of ownership. Gale on Easements 14; Holmes v. Goring, 2 Bing. 83.
The permissive use of the water by the plaintiff prior to April 6, 1852, was therefore not adverse, but by license and indulgence ; and if in any sense it might be regarded as appurtenant to the parcel of land occupied by the plaintiff, it was in no possible sense a right exercised or claimed as a predial service ; it was not a user as of right nor as an easement, and so it was not prescriptive. Possession of land by [331]*331consent of the true owner is not adverse possession. Atherton v. Johnson, 2 N. H. 31; Drew v. Towle, 30 N. H. 531.
Notwithstanding the plaintiff’s previous possession apd user, prescription did not commence until the unity of title and possession was dissolved by the sale to the defendant’s grantor in 1852, since which time twenty years had not elapsed when the present suit was brought. The two years of the plaintiif’s permissive occupation and user prior to April, 1852, cannot be added to the subsequent user in order to make up the period of twenty years and so to perfect his prescriptive title, because the user during those two years was not of the privilege as of right or as an easement, being under license from the owner of the joint estates. See Sargent v. Ballard, 9 Pick. 251, 254.
Tickle v. Brown, 4 Ad. & E. 369, cited by the plaintiif, fails to afford him the support claimed from it. That case was subsequent to Lord Tenterden’s act, or “ the prescription act ” of 2 and 3 Win. IV, ch. 71, which was not intended to supersede the common law with regard to the method of acquiring an easement, but was designed mainly to obviate the difficulty which arose from showing the actual commencement of an enjoyment within the time of legal memory. And the only material change made by the act, pertinent at all (if the act were at all pertinent, as it is not) to the present inquiry, is, that whereas, by the common law, any user during the prescriptive period by the parol license of the owner of the servient tenement would defeat the prescription, — by the act of Wm. IV the right derived from enjoyment for the full period of sixty years “ shall be deemed absolute and indefeasible, unless it shall appear that the same was taken and enjoyed by some consent or agreement expressly made or given for that purpose, by deed or writing which provision of the statute involves the consequence that an enjoyment, under the statute, may, in the case of a written license, be as of right and as an easement, though permissive, unless the claimant, by asking for permission during the period, admits that he has then no right, and so breaks the continuity of the enjoyment for the whole period.” See Gale on Easements *97-*100; Tickle v. Brown, before cited.
In the case -before us, the very commencement of the user, from which the plaintiff claims a prescriptive right, was by parol license merely. Such was the character of the user for two years, when this license was revoked by the sale of the servient tenement to the defendant’s grantor, without reservation of any right or easement therein. “ A license is not a grant, but may be recalled immediately,” said Lord Ellenborough, in The King v. The Inhabitants of Horndon on the Hill, 4 M. & S. 565.
An easement can never be created by parol. Hewlins v. Shippam, 5 B. & C. 221, where the authorities are reviewed ; Shepherd’s Touchstone 231. “ Whatever doubts may formerly have existed as to the creation of easements by express agreement, it seems to be now fully settled that, like all other incorporeal hereditaments, they can be created only by an instrument under seal. Gale on Easements *19.
[332]*332It is therefore quite unnecessary to apply to this case any absurd fiction, or presumption, whereby, after an occupation or user of twenty jrnars, a lost deed is said to be inferable, and required to be inferred by judges and juries who know very well that no deed was ever lost or made, because, upon the plaintiff’s own showing, the commencement of his alleged prescription was not by deed or grant, but by verbal license.
Neither is it necessary nor possible to apply to the case the rule of law, which, independent of any consideration of a presumption of law or fact, has become so firmly establishéd in this country as to have equal authority with a positive statute, that an adverse, exclusive, and uninterrupted enjoyment for twenty years of an incorporeal hereditament, confers a right as effectually as if the same were derived from a deed not lost, nor presumed ever to have existed ; because we have conclusively shown that the plaintiff’s user and enjoyment of the privilege during the whole period of twenty years was neither adverse, exclusive, nor uninterrupted.
It does not appear from the case how long Bissell, the former occupant of the plaintiff’s farm, had used the well, nor is it material, for, even if Bissell had acquired a prescriptive right to an easement therein, it became merged in the higher title of John Stevens, by unity of ownership and possession.
II. The plaintiff was not permitted to show that the well was used for sixty years as a public watering place (there being a trough there and an open bucket). The ruling of the court in this particular was correct.
The use by the public of a spring, for the purpose of watering horses and other cattle, may have ripened into a right, resembling an easement in its mode of enjoyment; but as the existence and validity of such a right depend generally upon some local custom, as suggested in the case before us, quite independent of any express or implied agreement, or grant, or presumption, and excluding the operation of the general rules of law applicable to easements, such proof can but be irrelevant in support of a claim founded solely upon an easement appurtenant to the estate and possession of the claimant. Tyson v. Smith, 6 Ad. & E. 745; Mounsey v. Ismay, before cited; Gale on Easements *14, *99.
It is, moreover, a sufficient answer to the plaintiff’s exception, in the present case, to suggest that he has not brought his action for the disturbance of any such right, and the defendant could not be expected to be prepared, under this declaration, to meet any such proffered evidence.
III. It was competent, material, and important, as tendingto lay the foundation of an estoppel, to show that the plaintiff was present when the deed from Hall to the defendant was executed, and that he knew and understood the contents of the deed.
Having testified, without objection, that he was not present, it was clearly competent for the defendant to exhibit for his inspection the [333]*333deed bearing bis name, as an attesting witness, either for the purpose of refreshing his recollection, testing the strength of his memory, or his confidence in his assertion. 1 Greenl. Ev., secs. 463, 465, 466.
"We understand such a question as was admitted in the present case, accompanied by the exhibition of the deed to the witness, to be in accordance with common practice ; and we are unable to discover that it comes in conflict at all with the rules laid down in the Queen's case, 2 Brod. & Bing. 284.
IV. The instructions to the jury, with regard to the effect of the plaintiff’s silence and conduct at the time of the execution of the deed from Hall to the defendant, were fully in accordance with the rules applicable to the question of estoppel, in like circumstances.
“ The rule of law is clear, that where one, by his words or conduct, wilfully causes another to believe the existence of a certain state of things, and induces him to act on that belief, so as to alter his own previous position, the former is precluded from averring against the latter a different state of things, as existing at the same time.” Lord Denman, C. J., in Pickard v. Sears, 6 Ad. & E. 469.
This preclusion is by operation of what is strictly and most properly called an equitable estoppel, and not a legal estoppel by matter in pais,— the latter being enforced from considerations of public policy, though in some instances subversive of the equity of the particular case ; and hence such estoppels have been said to be odious, and to demand a strict construction. But an equitable estoppel is not odious, and is intended to promote and effectuate equity.
It will be found that great confusion has resulted from oversight of the plain distinction existing between a legal estoppel, founded upon and administered according to strict and technical rules, regardless of the equity of the particular case, and an equitable estoppel, adopted for the very purpose of preventing a party, contrary to the equity of the particular case, from setting up technical legal rules in subversion of that equity. See Drew v. Kimball, 43 N. H. 282, and Horn v. Cole, 51 N. H. 287.
We are considering now a pure equitable estoppel, the principles of which are oftener applicable to estoppels by conduct, as in this case, than to estoppels by reason of express declaration.
The jury were instructed that the plaintiff was estopped if he knew the contents of the deed, and the defendant was ignorant of the plaintiff’s claim to the fixtures, and would not have purchased if he had known of the claim.
The jury found specially that the plaintiff’s failure to disclose to the defendant his claim to the fixtures was an act of gross negligence, but not of bad faith.
According to very common definitions, the elements essential to an estoppel by conduct are (1) a representation or a concealment of material facts ; (2) the representation must have been made with knowledge of the facts ; (3) the party to whom it was made must have been ignorant of the truth of the matter; (4) it must have been made with [334]*334the intention that the other party should act upon it; and (5) the other party must have been induced to act upon it.
And the term “ representation” here employed is used, for convenience, to indicate active and passive conduct, words and silence, acts and concealment. Bigelow on Estoppels 480.
The charge to the jury and the verdict rendered thereupon involve the fact that the jury found the first of these conditions, namely, the concealment; the second, namely,the plaintiff’s knowledge ; the third, namely, the defendant’s ignorance ; and the fifth, namely, the change of the defendant’s position, by reason of the inducement afforded by the plaintiff’s conduct.
As to the other essential element of the estoppel — the intention — the jury have found, specially, an act of gross negligence, and the absence of bad faith on the part of the plaintiff.
By the terms of Lord Denman’s definition, the representation or concealment must be wilful, in order to the establishment of the estoppel; and a wilful concealment would be essential to fulfil the requirement of' the fourth and only remaining condition essential to the establishment of the estoppel.
A wilful concealment would evidently indicate the intention to induce the defendant’s action.
In Freeman v. Cooke, 2 Ex. 654, the term wilful received this construction by Parke, B., namely, — “ Conduct by negligence or omission, where there is a duty cast upon a person -by usage of trade or otherwise to disclose the truth, may often have the same effect ” as a wilful representation. Why? Because it is equitable that it should have the same effect.
In Cornish v. Abington, 4 Hurl. & N. 549, Pollock, C. B.,says,— “ Lord Wensleydale [formerly Baron Parke]-, in Freeman v. Cooke, commenting on the earlier case of Pickard v. Sears, pointed out a limitation of the application of the rule, viz., that ‘in most cases to which the doctrine of Pickard v. Sears is to be applied, the representation is such as to amount to the contract or license of the party making it.’ No doubt, unless the representation amounts to an agreement or license, or is understood by the party to whom it is made as amounting to that, the rule would not apply ; but although the case of Freeman v. Cooke limited the application of the rule to this extent, the court point out that the word ‘ wilfully,’ in the rule as laid down in Pickard v. Sears, means nothing more than ‘ voluntarily.’ Lord Wensley-dale, perceiving that the word ‘ wilfully ’ might be read as opposed not merely to ‘ involuntarily ’ but to ‘ unintentionally,’ showed that if the representation was made voluntarily, though the effect on the mind of the hearer was produced unintentionally, the same result would follow.” The learned chief baron then proceeds to declare the true rule in the following language : “ If any person, by a course of conduct or by actual expressions, so conducts himself that another may reasonably infer the existence of an agreement or license, whether the party intends that he should dó so or not, it has the effect that the party using [335]*335that language, or who has so conducted himself, cannot afterwards gainsay the reasonable inference to be drawn from his words or conduct.
It would seem to be hardly necessary to call in aid of the application of the principles of an equitable estoppel in pais, the proposition that a party has so conducted as to give the Other party a legal license to do a thing.
We find it indeed asserted in this case of Cornish v. Abington, and many other cases, but, with submission, it seems to me an unnecessary interpolation, serving only to confound the distinction to which I have already alluded. It strikes me it were much better to say in fewer words, —A party who negligently or culpably stands by and allows another to contract on the faith and understanding of a fact which he can contradict, cannot afterwards dispute that fact iu an action by or against the person whom he has himself assisted in deceiving.
Such indeed was substantially the rule laid .down by Lord Denman himself, in Gregg v. Wells, 10 A. & E. 90, subsequent to the case of Pickard v. Sears, and serving to define and explain the rule as declared in that case.
In Manufacturers &c. Bank v. Hazard, 30 N. Y. 226, the court held that it was not necessary to the estoppel that the party against whom it had been alleged should have designed to mislead.
The foregoing and many other cases are reviewed and commented upon by Bigelow, in his work on Estoppels, pp. 552-560, and the conclusion of the author is to the effect that gross negligence is equivalent to wilful or intentional'concealment- And see Benjamin on Sales 39.
This limitation or explanation of the principle declared iu Pickard v. Sears, is fully indorsed by Bellows, J., in Odlin v. Gove, 41 N. H. 465, at p. 473, where the language of Judge STORY, in his 1 Eq. Jur. 386, is approved, viz., — “ To justify the application of this cogent moral principle, it is indispensable that the party so standing by and concealing his rights should be fully apprised of them, and should, by his conduct or gross negligence, encourage or influence the purchase ; — for, if lie is wholly ignorant of his rights, or the purchaser knows them ; or if his acts or silence or negligence do not mislead, or in any manner affect the transaction, — there can be no just inference of actual or constructive fraud on his part.”
In the preceding section, Judge Stoey, as an example of an equitable estoppel, instances the case of a man standing by and seeing another execute a deed of conveyance of land belonging to himself, and, knowing the facts, signing his own name as a witness to the deed.
And in Odlin v. Gove it was holden, that whether the party has used reasonable diligence, and whether the person against whom the estoppel is set up has given reasonable notice of his claim, are questions for the jury. See, also, Simons v. Steele, 36 N. H. 73, 79; Davis v. Handy, 37 N. H. 65; Foster v. Bigelow, 24 Iowa 379; Martin v. Zellerbach, 38 Cal. 300.
Indeed, the doctrine seems to be well established by authority that [336]*336the conduct and admissions of a party operate against bim in the nature of an estoppel, wherever, in good conscience and honest dealing, he ought not to be permitted to gainsay them. Thus, negligence becomes constructive fraud, — although, strictly speaking, the actual intention to mislead or deceive may be wanting, and the party may be innocent, if innocence and gross negligence may be deemed compatible ; and in such cases the maxim is justly applied to -him, that where one of two innocent persons must suffer, he shall suffer who by his own acts occasioned the confidence and loss. The application of the maxim to the case before us is obvious. The principle involved in it is kindred to that of an equitable estoppel, the difference being that the application of the estoppel, instead of the maxim, avoids the loss to the innocent party who has been misled by the conduct of another. See 1 Story’s Eq. Jur., secs. 387, 389; Lucas v. Hart, 5 Iowa 415; Commonwealth v. Moltz, 10 Pa. St. 527, 531; Smith v. McNeal, 68 Pa. St. 164.
We are inclined to adopt the views expressed in the cases which we have referred to, as representing the just and reasonable interpretation of the general rule with regard to estoppels by silence or conduct, and to hold that the instructions to the jury in the present case were correct and sufficiently explicit, and that the verdict places the plaintiff in ■the position required by all the conditions of the rule. ,
As between Hall and the defendant, the deed was unquestionably sufficient to convey the well and fixtures ; and it was, as the jury have found under proper instructions, gross negligence on his part to have been silent with regard to' his understanding and claim concerning them.
The result of all these considerations is, that there must be
Judgment on the verdict.