Grants. 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 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 v. 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 made 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 has been executed and expense incurred by the licensee. Thus where it appeared by entries in the court roll of a manor that the lord had granted a licence to build a cottage on the waste, subject to the payment of an annual rent, and the licence had been executed, and the cottage inhabitated, 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 Hagworthingham, 1 B. & C. 634; Rex v. Warblington, 1 T. R. 241; Rex v. Inhabitants of Standon, 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 Parol licence revocable at law, although executed and expense incurred by licensee. Presumption of But irrevocable in equity where expense has been incurred, and there has been acquiescence. 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 appurtenant 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. Šhippam, 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 at 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. Cowper, 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 Beav. 530. See also Moreland v. Richardson, 22 Beav. 596; Mold v. Wheatcroft, 27 Beav. 510; Laird v. Birkenhead Ry. Co., John. 500; Bell -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 relinquish irrevocably a right which he has acquired in addition to the ordinary rights of property, and thus restore his own and his 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 Herlins 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. Leadbitter, 13 M. & W. 844.) A licence to dig for tin and to dispose of the tin obtained was held to be irrevocable on account of its carrying an interest 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., Exch. 237.) Presumption of Parol licence in some cases irrevocable at law. Licence irrevocable when connected with grant. A parol licence from A. to B. to enjoy an easement over A.'s land, is Mode of revoca tion. Presumption of Grants. What will operate as a licence. 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 he 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.) 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 defendant 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, Exch.) 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. 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, 18 Q. B. 870; Campbell v. Lang, 1 Macq. H. L. C. 451); or to a road termi- Rights of Way. nating in a common. (Rex v. Inhabitants of Wandsworth, 1 B. & Ald. 63.) So it may be a highway, although it is circuitous (Rex v. Lloyd, i Camp. 261; 3 T. R. 265); and although it is only occasionally used by the public, and does not terminate in any town, or in any other public road Rex v. Inhabitants of Wandsworth, 1 B. & Ald. 63); and, on the contrary, it is not necessarily a public highway, although it does lead from one market town to another, or connect any two points by a line which might be advantageously used by the public, or is used by them under certain restrictions. (11 East, 376, n. (a).) When an ordinary highways runs between two fences, one on each side, the right of passage which the public has along it extends primâ facie, and unless there is evidence to the contrary, over the whole space between the fences. (Reg. v. U. K. Electric Telegraph Co., 31 L. J., M. C. 166; 10 W. R. 538; Turner v. Ringwood Highway Board, L. R., 9 Eq. 418.) On an issue, whether or not certain land in a district, repairing its own Evidence of repuroads, was a common highway, it is admissible evidence of reputation tation: (though slight), that the inhabitants held a public meeting to consider of repairing such way, and that several of them, since dead, signed a paper on that occasion, stating that the land was not a public highway, there being at the time no litigation. (Barraclough v Johnson, 8 Ad. & Ell. 99; 3 Nev. & P. 233; see Nicholls v. Parker, 14 East, 331, n. to Outram v. Moorewood.) It is a rule, that evidence of reputation must be confined to general matters, and not touch particular facts; the question in a cause being whether a particular road admitted to exist was public or private, evidence was offered that a person, since deceased, had planted a willow on a spot adjoining the road, on ground of which he was tenant, saying, at the same time, that he planted it to show where the boundary of the road was when he was a boy: it was held, that such declaration was not evidence either as showing reputation, as a statement accompanying an act, or as the admission of an occupier against his own interest. (Regina v. Bliss, 7 Ad. & Ell. 550. See Papendick v. Bridgwater, 5 Ell. & Bl. 166.) If a man opens his land, so that the public pass over it continually, the Presumption of public, after a user of a very few years, will acquire a right of way; and a dedication of party not meaning to dedicate a way, but only to give a licence, should do ways to the public. some act to show that a licence only is intended. The common course is to shut up the way one day in every year. (The Trustees of British Museum v. Finnis, 5 Car. & Payne, 460.) The presumption of a dedication may be rebutted by proof of a bar having been placed across the street soon after the houses forming the street were finished; though the bar was soon afterwards knocked down, and the way has been since used as a thoroughfare. (Roberts v. Carr, 1 Camp. N. P. C. 262, n.; and see Lethbridge v. Winter, Id. 263, n.) But a gate being kept across a way is not conclusive that it is not a public way, as the way may have been granted to the public with the reservation of the right of keeping a gate across it to prevent cattle from straying. (Davies v. Stephens, 7 Carr. & P. 570; Rex v. Bliss, 2 Nev. & P. 464.) A permissive user of a way is not inconsistent with a right to resume the way. In determining whether or not a way has been dedicated to the public, the proprietor's intention must be considered. If it appear only that he has suffered a continual user, that may prove a dedication; but such proof may be rebutted by evidence of acts showing that he contemplated only a licence resumable in a particular event. Thus, where the owner of land agreed with an iron company, and with the inhabitants of a hamlet repairing its own roads, that a way over his land in such hamlet should be open to carriages, that the company should pay him 58. a year and find cinders to repair the way, and that the inhabitants of the hamlet should lead and lay down the cinders, and the way was thereupon left open to all persons passing with carriages for nineteen years, at the end of which time a dispute arising, the passage was interrupted, and the interruption acquiesced in for five years: it was held, that the evidence showed no dedication, but a licence only, resumable on breach of the agreement. (Barraclough v. Johnson, 8 Ad. & El. 99; 3 Nev. & P. 233.) A dedication to the public may be pre |