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Presumption of

Grants.

there is no doubt but that the principle does not depend on the quantity of
interest granted, but on the nature of the subject matter; a right of cominon
or a right of way can no more be granted for life or for years without a
deed, than in fee simple. (Per Alderson, B., in Wood v. Leadbitter, 13
Mees. & W. 842, 843.) Where a subject is owner of a several fishery in a
navigable river, where the tide flows and reflows, granted to him (as must
be presumed) before Magna Charta, by the description of "separalem pisca-
riam,” it being an incorporeal hereditament, a term for years cannot be
created in it without deed. (Duke of Somerset v. Fogwell, 5 B. & C. 875.)
Where there was an agreement in writing, but not under seal, to let a mes-
suage, together with the full and free and exclusive licence and leave to
hunt, hawk, course, shoot, and sport over a manor, and the tenant entered
and was possessed during the term, it was held, in an action of assumpsit
on the agreement for the rent, on demurrer to a plea, that, not being by
deed, the agreement was void, because an incorporeal hereditament was
agreed to be let, and that the plaintiff was not entitled to recover in respect
of the actual enjoyment of the premises let by the defendant, of which he
had taken possession. (Bird v. Higginson, 2 Ad. & Ell. 696; 4 Nev. & M.
505 ; 1 Har. & Woll. 61 ; 6 Ad. & Ell. 824.) In the case of a written
agreement not under seal, whereby the plaintiff agreed to let land to the
defendant, with a right of sporting, the defendant to make satisfaction to
the plaintiff's tenants for the damage done by game on their farms :
although it was held that the right of sporting did not pass by the agree-
ment, yet that the agreement to make compensation was valid and good
ground for an action, the defendant having had the full benefit of such
agreement. An agreement to execute a conveyance is valid as an agree-
ment, though it does not operate to pass an estate ; and its validity is not
affected by the question whether the subject of the deed be corporeal or
incorporeal. (Thomas v. Fredericks, 10 Q. B. 775; see Smart v. Jones,
33 L. J., C. P. 154; 12 W. R. 430.) A licence to a stranger to use a
common, in effect amounting to a grant of the common of pasture, can
only be by decd. (Hoskins v. Robins, 2 Wms. Saund. 328, and n. 12;
Shep. Touch. 330.) Where the plaintiff in replevin answered an avowry for
damage feasant by a plea of licence from the commoner, who had right of
common for twenty beasts, it was objected, that if the commoner could
license, he could not do so without deed, and of that opinion was the whole
court. (Monk v. Butler, Cro. Jac. 574.). A licence or liberty cannot be
created and annexed to an estate of inheritance or freehold without deed.
(Shep. Touch. 231.) Whatever may be the effect of a parol licence by the
owner of land to fence off part of a common and to build a house thereon,
as against such owner it is clear that a grant of a freehold interest running
with the inheritance cannot be binding on a stranger to the grantor, unless
the grant was by deed. (Perry v. Fitzhowe, 8 Q. B. 757. See Ramsey
v. Rawson, 1 Vent. 18—25.) It seems questionable whether a custom to
demise by parol a right of common can be supported at law. (Lathbury
V. Arnold, 1 Bing. 219; 8 Moore, 72. Sce Rex v. Lane, 1 D. & R. 78; 5
B. & Ald. 488.)

It seems to require a deed to create the right to have light and air come unobstructed from the land of one owner to the newly-opened window of an adjoining owner. (Blanchard v. Blanchard, 1 Ad. & Ell. 536; 3 Nev. & M. 691 ; Blanchard v. Bridges, 4 Ad. & Ell. 195. See post, note on lights.) The plaintiff, a tenant of a house for a term of years, being possessed of certain fixtures, which were his own property, but annexed to the freehold, requested the landlord to purchase them at the expiration of the term, or let them remain for purchase by the incoming tenant, but to be taken away by the plaintiff if the tenant should refuse them. The landlord wrote an answer declining to purchase, but adding “I have no objection to your leaving them on the premises and making the best terms you can with the incoming tenant.” The articles remained unsevered from the freehold until the entry of the new tenant, who came in under demise from the same landlord, but who declined to take them. The plaintiff then (after the tenant had been two months in possession) demanded liberty to enter and remove the fixtures, but the tenant refused permission, and the

plaintiff thereupon brought an action for the hindrance and trover against Presumption of the tenant: it was held, that if the landlord's letter to the plaintiff amounted

Grants. to a licence to take away the articles, yet, not being under seal, it was no valid grant of such privilege as against a new tenant in possession, and not party to the licence. (Roffey v. Henderson, 17 Q. B. 574; 21 L. J., Q. B. 49.) See also Corcor v. Payne, I. R., 4 C. L. 380.

In Thomas y. Sorrell (Vaugh. 351), Vaughan, J., says:-“A dispensation Nature of a or licence properly passeth no interest, nor alters or transfers property in licence. anything, but only makes an action lawful, which without it would have been unlawful. As a licence to hunt in a man's park, to come into his house, are only actions which, without licence, had been unlawful. But a licence to hunt in a man's park and carry away the deer killed to his own use, to cut down a tree in a man's ground, and to carry it away the next day after to his own use, are licences as to the acts of hunting and cutting down the tree, but as to the carrying away of the deer killed and tree cut down, they are grants.” A mere licence is revocable, but that which is called a licence is often something more than a licence; it often comprises or is connected with a grant, and then the party who has given it cannot in general revoke it, so as to defeat his grant, to which it was incident. It may further be observed, that a licence under seal (provided it be a mere licence) is as revocable as a licence by parol; and on the other hand a licence by parol, coupled with a grant, is as irrevocable as a licence by deed, provided only that the grant is of a nature capable of being niade by parol. But where there is a licence by parol, coupled with a parol grant, or pretended grant, of something which is incapable of being granted otherwise than by deed, there the licence is a mere licence; it is not an incident to a valid grant, and it is therefore revocable. Thus a licence by A. to hunt in his park, whether given by deed or by parol, is revocable; it merely renders the act of hunting lawful, which, without the licence, would have been unlawful. If the licence be, as put by Chief Justice Vaughan, a licence not only to hunt, but also to take away the deer when killed to his own use, this is in truth a grant of the deer, with a licence annexed to come on the land : and supposing the grant of the deer to be good, then the licence would be irrevocable by the party who had given it; he would be estopped from defeating his own grant, or act in the nature of a grant. But suppose the case of a parol licence to come on my lands and there to make a watercourse, to flow on the land of the licensee, in such a case there is no valid grant of the watercourse, and the licence remains a mere licence, and therefore capable of being revoked. On the other hand, if such a licence were granted by deed, then the question would be on the construction of the deed, whether it amounted to a grant of the watercourse; and if it did, then the licence would be irrevocable. (Per Alderson, B., Wood v. Leadbitter, 13 Mees. & W. 844, 845.)

Where a personal licence of pleasure is granted, it extends only to the individual, and it cannot be exercised with or by servants, but if there is a licence of profit and not of pleasure it may. (Duchess of Norfolk v. Wixman, Year Book, 12 Hen. 7, 25, and 13 Hen. 7, 13, pl. 2, cited 7 Mees. & W.77.) A plea of leave and licence to erect and maintain a wall upon a given spot is not supported by proof of a licence to erect only. (Alexander v. Bonnin, 6 Scott, 611; 4 Bing. N. C. 799; 1 Arn. 337.)

A mere parol licence is revocable at law at any time, although the licence Parol licence rehas been executed and expense incurred by the licensee. Thus where it vocable at law, appeared by entries in the court roll of a manor that the lord had granted and expense a licence to build a cottage on the waste, subject to the payment of an incurred by annual rent, and the licence had been executed, and the cottage inhabitated, licensee. Lord Ellenborough said :—“A licence is not a grant, but may be recalled immediately, and so might this licence the day after it was granted.” (Rex v. Inhabitants of Hornden-on-the-Hill, 4 Maule & S. 565. See Rex v. Inhabitants of Geddington, 2 B. & C. 129; Rex v. Inhabitants of Hagrorthingham, 1 B. & C. 634 ; Rex v. Warblington, 1 T. R. 211; Rex v. Inhabitants of Standon, 2 Maule & S. 461.)

An agreement to let a party have a trench for water, though given for a valuable consideration, if there be no conveyance, is a parol licence, re

Presumption of

Grants,

vocable at the will of the grantor. (Fentiman v. Smith, 4 East, 107.). The right to a drain running through the adjoining land cannot be conferred by a parol licence, but such interest can only be created by deed. In an action on the case for obstructing a drain, the plaintiff claimed right and title to the drain by virtue of a licence granted to his landlords, their heirs and assigns, to make the drain, and have the foul water pass from their scullery through the drain across the defendant's yard into another yard appartenant to the premises in the plaintiff's occupation': it was held, that the interest as declared upon by the plaintiff being in its nature freehold, and the licence to support it being merely by parol and not by deed, the action was not maintainable. (Hewlins v. Shippam, 5 B. & C. 221; 7 D. & R. 783.) So where the plaintiff sued for an obstruction of a certain drain which had been originally constructed ať the plaintiff's expense on the defendant's land by his consent verbally given : after it had been enjoyed some time, the defendant obstructed the channel, so that the water was prevented running as before ; and it was contended on the part of the plaintiff that the licence so given having been acted' on, could not be revoked by the defendant; but the court held that the plaintiff was clearly not entitled to recover. With regard to the question of licence, the court said, “The case of Hewlins v. Shippam is decisive to show that an easement like the present cannot be conferred except by deed, nor has the plaintiff acquired any other title to the water.” The mere entry into the close of another, and cutting a drain there, cannot confer a right. (Cocker v. Corper, 1 Cr., M, & R. 418.)

The right to be buried in a particular vault was held to be an easement capable of being created by deed only; and therefore a parol agreement not under seal was held to confer no right, though the plaintiff had paid a valuable consideration on the faith of its validity. (Bryan v. Whistler, 8 B. & C. 298; 2 M. & R. 318. See Adams v. Andrews, 15 Q. B. 284.)

A right to come and remain for a certain time on the land of another can be granted only by deed; and a parol licence to do so, though money be paid for it, is revocable at any time, and without paying back the money. To an action of trespass for assault and false imprisonment, the defendant pleaded that, at the time of the supposed trespass, the plaintiff was in a close of Lord E., and that the defendant, as the servant of Lord E., and by his command, molliter manus imposuit on the plaintiff to remove him from the said close, which was the trespass complained of. The plaintiff replied, that he was in the close by the leave and licence of Lord E.; which was traversed by the rejoinder. The evidence was, that Lord E. was steward of the Doncaster races; that tickets of admission to the grand stand were issued with his sanction, and sold for a guinea each, entitling the holders to come into the stand and the inclosure round it during the races; that the plaintiff bought one of the tickets, and was in the inclosure during the races; that the defendant, by the order of Lord E., desired him to leave it, and, on his refusing to do so, the defendant, after a reasonable time had elapsed for his quitting it, put him out, using no unnecessary violence, but not returning the guinea : it was held, that on this evidence the jury were properly directed to find the issue for the defendant. (Wood v. Leadbitter, 13 Mees. & W. 838, where Alderson, B., discusses the cases of Webb v. Paternoster, Palm. 71; Wood v. Lake, Sayer, 3; and Taylor v. Waters, 7 Taunt. 374; which had been relied on in support of the doctrine that a parol licence was irrevocable. The case of Taylor v. Waters was expressly disapproved.)

Where, however, an agreement for valuable consideration has been entered into for the use of an easement, at any rate where the owner of the servient tenement has stood by and allowed the expenditure of money on the faith of such an agreement, a court of equity will not allow him to recall the licence. Thus where the defendant consented to the plaintiff's making a watercourse through his land upon being paid “a proper and reasonable sum;" and the watercourse was made, but no grant executed and no sum arranged; and after nine years user the defendant stopped it up, he was restrained from so doing, and a reference was made to the master to settle a proper compensation. (Duke of Devonshire v. Eglin, 14

But irrevocable in
equity where ex-
pense has been
incurred, and
there has been
acquiescence.

Grants.

Beav. 530. See also Moreland v. Richardson, 22 Beav. 596; Mold v. Presumption of Wheatcroft, 27 Beav.510; Laird v. Birkenhead Ry. Co., John. 500; Bell . V. Midland Ry. Co., 3 De G. &.J. 673; Bankart v. Tennant, L. R., 10 Eq. 141:) A canal company, in consideration of the lessee's expenditure on certain icehouses on the banks of the canal, granted a lease thereof, with licence to take ice from a part of the canal: it was held, that the licence was not exclusive, but that it was a grant of sufficient to enable the lessee to fill the icehouses; and that so long as the lessee was able and willing to take this quantity of ice, the lessors could not derogate from their grant by subsequent licences which would interfere with it. (Newby v. Harrison, 1 John. & H. 393; and see as to mining licences, Carr v. Benson, L. R., 3 Ch. 524.)

And even at common law it appears that a man may in some cases by Parol licence in parol licence relinquish irrevocably a right which he has acquired in addi. some cases irretion to the ordinary rights of property, and thus restore his own and his vocable at law. neighbour's property to their original and natural condition. But in order that a parol licence should have this effect, it seems that the act licensed should be executed, and the necessary consequence of such execution should be, per se, the extinguishment of the right. Thus a parol licence to put a skylight over the defendant's area (which impeded the light and air from coming to the plaintiff's dwelling-house through a window), cannot be recalled at pleasure, after it has been executed at the defendant's expense, at least not without tendering the expenses he had been put to; and therefore no action lies as for a private nuisance arising from the existence of such skylight. (Winter v. Brockwell, 8 East, 308.) Bailey, J., said, “ The case of Winter v. Brockwell, 8 East, 309, is distinguishable from Henlins v. Shippam, 5 B. & C. 221. All that the defendant there did he did upon his own land: he claimed no right or easement upon the land of the plaintiff. The plaintiff claimed a right and easement against him, viz. the privilege of light and air through a parlour window, and a free passage for the smells of an adjoining house through defendant's area ; and the only point decided there was, that as the plaintiff had consented to the obstruction of such easement, and had allowed the defendant to incur expense in making such obstruction, he could not retract that consent without reimbursing the defendant that expense. But that was not the case of the grant of an easement to be exercised upon the grantor's land but a permission to the grantee to use his own land in a way which, but for an easement of the plaintiff's, such grantee would have had a clear right to use it. Webb v. Paternoster, Wood v. Lake, and Taylor v. Waters, were not cases of freehold interest, and in none of them was the objection taken that the right lay in grant, and therefore could not pass without deed.” (5 B. & C. 233.) The court seems to have proceeded upon the same distinction in the following case-where the plaintiff's father gave the defendant leave, by parol, to lower the bank of a river and to erect a weir, whereby a part of the water which before flowed to the plaintiff's mill was diverted: it was held that his son could not maintain an action against the defendants for continuing the weir. (Liggins v. Inge, 7 Bing. 682; 5 M. & P./712. See Blood v. Keller, 11 Ir. C. L. R. 124.)

A licence is also irrevocable when connected with a grant. (Wood v. Licence irreLeadbitter, 13 M. & W. 844.). A licence to dig for tin and to dispose of vocable when the tin obtained was held to be irrevocable on account of its carrying an in- grant. terest in the ore. (Doe v. Wood, 2 B. & Ald. 738.)

In an action of trover for sand, tin ore and gravel, a party claiming ownership in a field granted to the plaintiff a parol licence to search therein for minerals. The plaintiff, acting under this licence, dug pits in the field, and threw up sand and gravel, mixed with ore, which the defendant took away, professing to act under the authority of a third party. Before the defendant took away the sand, gravel and ore, the party who gave the plaintiff the parol licence granted him a similar licence by deed: it was held, that the plaintiff was entitled to maintain an action for the gravel, sand and ore, as against the defendant, who was a wrong-doer. (Northam v. Bowden, 11 Exch. 70; 24 Law J., Esch. 237.)

A parol licence from A. to B. to enjoy an easement over A.'s land, is Mode of revoca

tion.

Grants.

as a licence.

Presumption of countermandable at any time whilst it remains executory; and if A. conveys

the land to another, the licence is determined at once, without notice to B. of the transfer, and B. is liable in trespass if he afterwards enters upon the land. A mere parol licence to enjoy an easement on the land of another does not bind the grantor, after he has transferred his interest and possession in the land to a third person. In order to make the grantee a wrong-doer in such a case he is not entitled to notice from the purchaser of the change of ownership in the soil, as that is a fact which be is obliged to know at his peril. (Wallis v. Harrison, 4 Mees. & W. 538.) A licence for the free admission to a theatre is determined by an assignment of the subject matter in respect of which the privilege is to be enjoyed. (Coleman v. Foster, 1 H. & N. 37.) The locking a gate, through which parol leave has been given to pass, is of itself sufficient notice of revocation of the leave. (Hyde v. Graham, 1 H. & C. 593; 11 W. R. 119. See also Russell v. Harford, L,

R., 2 Eq. 507.) What will operate A parol agreement which is void under the Statute of Frauds, 29 Car. 2,

c. 3, s. 4, may operate as a licence so as to excuse what would otherwise be a trespass, as where the purchaser entered to take away a crop. (Carrington v. Roots, 2 Mees. & W. 257; Crosby v. Wadsworth, 6 East, 602.) Goods which were upon the plaintiff's land were sold to the defendant; by the conditions of sale, to which the plaintiff was a party, the buyer was to be allowed to enter and take the goods : it was held, that after the sale the plaintiff could not countermand the licence. And the defendant having entered to take, and the plaintiff having brought trespass, and the defeudant having pleaded leave and licence and

a peaceable entry to take, to which the plaintiff replied de injuriâ, it was held, that the defendant was entitled to the verdict, though it appeared that the plaintiff had, between the sale and the entry, locked the gates and forbidden the defendant to enter, and the defendant had broken down the gates and entered to take the goods. (Wood v. Manley, 11 Ad. & Ell. 34; 3 P. & D.5.) Alderson, B., approved of this decision, and said it was a case not of a mere licence, but of a licence coupled with an interest. The hay, by the sale, became the property of the defendant, and the licence to remove it became, as in the case of the tree and the deer, put by C. J. Vaughan, irrevocable by the plaintiff. (Vaugh. 351, ante, p. 59.) This case was analogous to that of a man taking another's goods and putting them on his land, in which case the owner is justified in going on to the land and removing them. (Wood v. Leadbitter, 13 Mees. & W. 853; citing Vin. Abr. Trespass H. a. 2, pl. 12; Patrick v. Colerich, 3 Mees. & W. 483. See Williams v. Morris, 11 Law J., N. S. 126, Esch.)

It seems that the crown may, by parol, confer privileges over land so as to deprive itself of the power of treating the party exercising the privilege as a wrong-doer; the actual possession of crown lands, under a parol licence from the crown, entitles the party in possession to maintain trespass against a wrong-doer. Generally speaking, trespass may be maintained by a person in the actual possession of land against a wrong-doer, even where that possession may be wrongful as against a third person. (Harper v. Charlesworth, 4 B. & C. 590; 8 D. & R. 572.)

Highways.

(4.) OF RIGHTS OF WAY, PUBLIC AND PRIVATE.

1. Public Rights of Way and Highways. A right of way may be either public or private. Ways common to all the king's subjects are called highways. (1 Ventr. 189; 1 T. R. 570.) A way leading to any market town, and common for all travellers, and communicating with any great road, is a highway; but if it lead only to a church, or to a house, or a village, or to the fields, it is a private way; whether it be a public or private way is a matter of fact, and depends much on common reputation. (1 Ventr. 189; Hawk. P. C. b. 1, c. 76, s. 1.) The public may have a right to a road as a common street, although there be no thoroughfare (Rugby Charity v. Merryweather, 11 East, 375; Bateman v. Bluck,

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