may exercise all other rights of ownership not inconsistent with such dedication; and the appropriation, made to and adopted by the public, of a part of the street to one kind of passage and another part to another, does not deprive him at common law of any rights as owner of the land which are not inconsistent with the right of passage by the public. (St. Mary, Newington v. Jacobs, L. R., 7 Q. B. 47.)

The right of the owner of land abutting on a highway to the soil of the highway ad medium filum via is founded on a presumption of law which exists only in the absence of evidence of ownership. (Beckett v. Corpora tion of Leeds, L. R., 7 Ch. 421.) The presumption applies equally to a private as to a public road. (Holmes v. Bellingham, 7 C. B., N. S. 329; 6 Jur., N. S. 534; 29 L. J., M. C. 132.)

Where the boundary of property is described as abutting upon a highway, such boundary must be taken (in the absence of evidence the other way) to extend to the middle of such highway. (R. v. Strand Board, 4 B. & S. 526; 12 W. R. 828.)

The soil in roads set out under an inclosure act does not by presumption of law belong to the adjoining owners. (Rex v. Edmonton, 1 M. & Rob. 24; Rex v. Wright, 3 B. & Ad. 681.) Where the herbage of a road becomes vested by the General Inclosure Act, 41 Geo. 3, c. 109, s. 11, in the proprietors of allotments on each side, no presumption arises that the soil itself belongs to such proprietor. (Rex v. Hatfield, 4 Ad. & Ell. 156.) The ownership of the soil in a road set out under an inclosure act was held to remain in the lord of the manor, for that portion of the soil only is taken from him for which he received compensation and which is allotted to others. (Per Parke, B., Poole v. Huskisson, 11 Mees. & W. 827. See Reg. v. Tything, East Mark, 12 Jur. 332.)

The General Turnpike Act, 3 Geo. 4, c. 126, does not alter the presumption of law that the soil is vested in the owner of the adjacent land to the centre of the highway, nor vest the soil of turnpike roads in the trustees thereof. If the lord of the manor and owner of close A., adjacent to one side of a highway, and also of close B., adjacent to the opposite side, convey both in one deed to one vendee, the soil of the road passes to the vendee, although the acreage of each of the closes comprised within their fences respectively be stated in the conveyances, unless there be sufficient in the deed to show, as by marks on the indorsed map or plan of the property, that the soil of the road was intended to remain in the vendor. (Marquis of Salisbury v. Great Northern Railway Company, 5 C. B., N. S. 174; 5 Jur., N. S. 70; 28 L. J., C. P. 40.)

The ordinary rule of law is, that in the case of the sale of land adjoining a highway the soil of the highway, ad medium filum viæ, passes by the conveyance, and the fact that the land is set forth by admeasurement and referred to in a plan, which includes no portion of the highway, does not prevent the operation of such rule. (Berridge v. Ward, 10 C. B., N. S. 400; 7 Jur., N. S. 876.)

Strips of land lying along a highway, even though indirectly connected with parts of a waste, may well pass under a conveyance of the adjacent inclosure, though the deed purports to state the quantity of acres within the fences that were therein conveyed, if the words "more or less" were added. (Dendy v. Simpson, 7 Jur., N. S. 1058; 9 W. R. 743, Exch. Cham.: Simpson v. Dendy, 6 Jur., N. S. 1197; 8 C. B., N. S. 433.)

The presumption at law is, that waste land adjoining a road belongs to the owner of the soil of the adjoining inclosed land, and not to the lord of the manor (Steel v. Prickett, 2 Stark. 463; Scoones v. Morrell, 1 Beav. 251); whether such owner be a freeholder, copyholder, or leaseholder. (Doe d. Pring v. Pearsey, 7 B. & C. 304; 9 D. & R. 908.) The right to land adjoining either side of the road extends to the centre. (Cooke v. Green, 11 Price, 736.) The ground of this presumption is, that the road has been granted by the owners of the adjoining land, and that their ownership, therefore, extended to the middle of the road. Where the lord of a manor has conveyed land to A. and afterwards other land to B., and it appears that a narrow strip of land passed by one or other of the conveyances, but it is doubtful by which, no presumption arises in favour of A. from the

Rights of Way.

When soil in highway passes

by conveyance.

Ownership of waste adjoining

highways.

Rights of Way.

Balks.

Ditches.

fact that the strip of land lies between a highway and land indisputably comprised in the conveyance to A. (White v. Hill, 6 Q. B. 787.)

The presumption of law, that slips of waste lands adjoining a highway belong to the owner of the adjoining inclosed land, may be rebutted by evidence tending to raise a contrary presumption. In an action by a rector, to recover a slip of land lying between the glebe and a highway, in order to rebut the presumption of ownership arising from contiguity, it was proved that the defendant and those under whom he claimed had occupied the spot in question for more than forty years, and during four or five successive incumbencies, without interruption; and that there were slips of land adjoining the piece in dispute, at either end, also lying between the glebe and the road, which were occupied adversely to the rector: it was held, that the whole case on both sides resting on presumption, it was properly left to the jury to say whether or not the evidence given on the defendant's part rebutted the presumption of law on which the plaintiff's case rested. (Doe d. Harrison v. Hampson, 4 Com. B. 267.)

The presumptive right of the owner of the adjoining land may be repelled by evidence of acts of ownership by the lord of the manor. (Anon. Lofft, 358.) Though primâ facie the presumption is, that a strip of land lying between a highway and the adjoining close belongs to the owner of the close, as the presumption also is, that the highway itself ad medium filum via does, such presumption is confined to that extent; for if the narrow strip be contiguous to, or communicate with, open commons or larger portions of land, the presumption is either done away, or considerably narrowed; for the evidence of ownership, which applies to the larger portions, applies also to the narrow strip which communicates with them. (Grose v. West, 3 Taunt. 39; Headlam v. Hedley, Holt, N. P. C. 463.) Upon a question whether a piece of waste land, between a highway and inclosures, belonged to the plaintiff, the owner of the adjoining inclosure, or to the lord of the manor, it was held, that the lord might give evidence of grants by him of the waste between the road and the other inclosures of other persons at a distance from the spot claimed by the plaintiff, provided such evidence were confined to the road which passed by the spot claimed by the plaintiff. (Doe d. Barrett v. Kemp, 7 Bing. 332; 5 Mann. & R. 173; 2 Bing. N. S. 102. See Stanley v. White, 14 East, 332.)

By an inclosure act waste lands of a manor were to be allotted in certain proportions. A part of the waste land was not portioned out in the award of the commissioners: it was held, that the freehold of such land remained in the lord of the manor, as there was nothing in the act to transfer such freehold. (Packe v. Mee, 9 W. R. 335; Ewart v. Graham, 5 Jur., N. S. 773.)

In a case where it was contended that balks are by presumption of law the property of the owner of the adjoining soil, Taunton, J., said, “Is there such a presumption? the common instance of a presumption of that kind is in the case of roads. Balks are strips of land lying between lands which are private property; if the presumption be as stated, it is at any rate not so familiarly known." (Bailiffs of Godmanchester v. Phillips, 4 Ad. & Ell. 560.) It was held by the court in that case, that in presumption of law balks belong to the owners of the adjacent land, unless the contrary is proved. (Ib.)

Where two adjacent fields are separated by a hedge and ditch, the hedge primâ facie belongs to the owner of the field in which the ditch is not. If there are two ditches, one on each side of the hedge, then the ownership of the hedge must be ascertained by proving acts of ownership. (Guy v. West, Selw. N. P. 1218. See as to acts of ownership of a ditch, Searby v. Tottenham Railway Company, L. R., 5 Eq. 409.) The rule about ditching is this: no man making a ditch can cut into his neighbour's soil, but usually he cuts to the very extremity of his own land; he is of course bound to throw the soil which he digs out upon his own land, and after, if he likes it, he plants a hedge upon the top of it; therefore, if he afterwards cuts beyond the edge of the ditch, which is the extremity of his land, he cuts into his neighbour's land, and is a trespasser; no rule about four feet or eight feet has anything to do with it. (Per Lawrence, J., Vowles v. Miller, 3 Taunt.

138. See the judgment of Holroyd, J., 7 B. & C. 307, 308.) If a tree Rights of Way. grows near the confines of the land of two parties, so that the roots extend into the soil of each, the property in the tree belongs to the owner of the land in which the tree was first sown or planted. (Holder v. Coates, M. & M. 112. See Waterman v. Soper, 1 Lord Raym. 737; Masters v. Pollie, 2 Roll. R. 141; Anon. 2 Roll. R. 255.)

2. Private Rights of Way.

There are four kinds of ways; (Co. Litt. 56 a;)-1, a foot-way-2, a Different kinds of horse-way, which includes a foot-way-3, a carriage-way, which includes ways. both horse-way and foot-way-4, a drift-way. Although a carriage-way comprehends a horse-way and a foot-way (Davies v. Stevens, 7 Carr. & P. 570), yet it does not necessarily include a drift-way. (1 Taunt. 279.) It is said, however, that evidence of a carriage-way is strong presumptive evidence of the grant of a drift-way. (Ibid.)

A way may be granted for agricultural purposes only (Reynolds v. Edwardes, Willes, 282), or for the carriage of coals only (Iveson v. Moore, 3 Ld. Raym. 291; 1 Salk. 15), or for the carriage of all other articles except coals. (Marquis of Stafford v. Coyney, 7 B. & C. 257; Jackson v. Stacey, Holt, N. P. C. 455.) A reservation in a lease of a right of way on foot, and for horses, oxen, cattle and sheep, does not give any right of way to lead manure. The term "leading" implies drawing in a carriage. A grant conferring a right "to lead manure" would be construed according to the usual mode of leading, that is, by drawing in a cart. In case for disturbance of a way, the plaintiffs claimed a right for themselves, &c., on foot to go, return, &c., and also to lead and carry away manure, but proved only a grant of way on foot and for horses, oxen, cattle and sheep. It was held a variance; for the term "lead," so used, implies drawing in a carriage. (Brunton v. Hall, 1 Q. B. 792; 1 Gale & D. 207.) The plaintiffs took issue upon a plea, traversing the whole right claimed in the declaration. The right actually interfered with was that of carrying away manure with a wheelbarrow. It was held, assuming this privilege to be covered by the grant, that the plaintiffs could not, by proving so much of the alleged right, entitle themselves to a verdict on the issue generally. (Ib. See 2 Q. B. 963.) Evidence of an user of a road with horses, carts, and carriages, for certain purposes, does not necessarily prove a right of road for all purposes, but the extent of the right is a question for the jury under all the circumstances. If the way is confined to a particular purpose, the jury ought not to extend it; but if it is proved to have been used for a variety of purposes, the jury may be warranted in finding a way for all. (Cowling v. Higginson, 4 Mees. & W. 245. See Dave v. Heathcote, 25 L. J., Exch. 245; 26 Ib. 164; Hawkins v. Carbines, 27 L. J., Exch. 44; Ballard v. Dyson, 1 Taunt. 279; Jackson v. Stacey, Holt, N. P. C. 455; Allan v. Gomme, 3 P. & Dav. 589, 590.) A finding by the jury of a right of way for carting timber will not support a plea of a right of way for all carts, carriages, horses, and on foot, or even amount to a proof of any one of those rights taken separately so as to admit of the verdict being entered distributively on the issue joined on the plea. (Higham v. Rabbett, 5 Bing., N. S. 622; 7 Scott, 827.)

ways co-existing.

There may be both an occupation way and a public highway over the Public and private same road, for it does not on becoming a highway cease to be an occupation way. (Brownlow v. Tomlinson, 1 Man. & Gr. 484.) The acquiring a right of way by the public does not destroy a previously-existing right of way over the same line; but the private way must be previously existing. A private right of way cannot be proved by evidence of a public right. A right of way had been granted in 1675; there was evidence that for ten years before the commencement of the action for obstructing the right of way, that part of the way had become public. It was held unnecessary to state in the declaration that such part had become public. (Duncan v. Louch, 6 Q. B. 904.) If the owner of land has granted to an individual the easement of an occupation way over it, then the subsequent absolute dedication by him of a footway to the public, in the same place, cannot be presumed, without also presuming, or proving in fact, a release of

Rights of Way.

Private rights of way.

Express reservation of private right of way.

Express grant of private right of

way.

the easement by the individual; for without the release the owner can only be supposed to have given what he himself had, a right of user not inconsistent with the easement. (Regina v. Chorley, 12 Q. B. 515.)

Commissioners of partition may award a right of way over the lands of one party to the lands of another party interested in the partition. (Lister v. Lister, 3 Y. & Coll. 540.)

A private estate act, enabling tenants for life to grant building leases, empowered the lessors to lay out and appropriate any part of the land authorized to be leased as and for a way, street, square, passage, or sewer, or other conveniences for the general improvement of the estate and the accommodation of tenants and occupiers: it was held, that exclusive private rights of way over land so appropriated for a way might be granted to particular lessees, as such appropriation did not confer a right of user by all the tenants and occupiers. (White v. Leeson, 5 H. & N. 53; 29 Ľ. J., C. P. 105; 5 Jur., N. S. 1361.)

A private way is a right which one or more persons have of going over the land of another. This may be claimed by express reservation, or by grant, or as necessarily incident to a grant of land: or it may be claimed by prescription, custom, or by virtue of an inclosure act. (Selw. N. P. 1266, 13th ed.)

A right of way may be claimed by express reservation; as where A. grants lands to another, reserving to himself a way over such land. (1 Roll. Abr. 109, pl. 45; Com. Dig. Chimin (D. 2); and see Earl of Cardigan v. Armitage, 2 Barn. & Cr. 197; 3 Dowl. & R. 414.) Tindal, C. J., in Durham and Sunderland Railway Company v. Walker, 2 Q. B. 967, observed, "A right of way cannot in strictness be made the subject either of exception or reservation. It is neither a parcel of the thing granted, nor is it issuing out of the thing granted, the former being essential to an exception and the latter to a reservation. A right of way reserved (using that word in a somewhat popular sense) to a lessor, is, in strictness of law, an casement newly created by way of grant from the grantee or lessee, in the same way as the right of sporting or fishing." (See Doe d. Douglas v. Lock, 2 Ad. & Ell. 705; Wickham v. Hawker, 7 Mees. & W. 63.) In order to establish an easement claimed by lessors, as in the nature of a grant from the lessee, it would in general be essential to show the execution of the lease by the lessees. (Durham and Sunderland Railway Company v. Walker, 2 Q. B. 967.) Where a lease not under the seal of a lessee contained a clause excepting and reserving from the demise "the fishing with a pathway for the fishermen"; it was held, that such a right was the subject of a grant and not the subject of a reservation or an exception: and that the clause was void as an exception, and not being under seal could not operate as a grant. (Corcor v. Payne, I. R., 4 C. L. 380.)

A way may be claimed by grant, as where an owner of land grants to another person a way through or over a particular close; (Com. Dig. Chimin, D. 3;) so a covenant by an owner of land that another person shall have and use a way amounts to a grant. (Holme v. Seller, 3 Lev. 305.) Where the plaintiff claimed a right of way over the defendant's soil, and it appeared that in the defendant's lease, granting him all ways, without exception or qualification, there was a covenant for contributing with other occupiers of the lessor's property to the keeping up paths, &c. used in common by them, and it was proved that the plaintiff had always used the path in question, and that there was no other path to which the covenant could apply, it was held, that it might be inferred that the defendant took the soil demised to him, subject to the plaintiff's right of way. (Oakley v. Adamson, 8 Bing. 356; 1 Moore & Scott, 510.) Where certain houses, with a piece of ground, part of an adjoining yard, were leased to a tenant, together with all ways with the said premises or any part thereof used or enjoyed before; and at the time of the grant of the lease the whole of the yard was in the occupation of one person, who had always used and enjoyed a right of way to every part of that yard: it was held, that the lessee was entitled to such right of way to the part of the yard demised to him. (Kooystra v. Lucas, 5 B. & Ald. 830; 1 Dowl. & Ryl. 506; Staple v. Haydon, 6 Mod. 3.) If a right of way is appurtenant

to a piece of land which is demised, the right of way passes also without Rights of Way. any special mention of such right. (Skull v. Glenister, 7 L. T., N. S. 827.) Where an underlease described the ground demised and the ways granted by the words "always thereunto appertaining," a road over the soil of the original lessor was held not to pass by those words, although it might have done so by the words "heretofore used." (Harding v. Wilson, 2 B. & Cr. 96.)

In 1728, land was let on a building lease, which expired at Lady-day, 1824. In 1819, the plaintiff, by virtue of a demise from an under-lessee, which expired in 1820, was in possession of a house erected on a part of this land, and under that demise exercised, as all his predecessors had done for more than thirty years, a right of way over a passage on one side of his house as necessary for the use and enjoyment thereof, particularly for repairing the eastern side: the under-lessee's interest expired in 1822; the defendant was in possession of the soil of the passage by virtue of an assignment, in 1791, of the lease of 1728. In 1819, the party possessed of the reversion expectant on the lease of 1728 demised to the plaintiff the house of which he was in possession as above for fifty-seven years and a half, to hold from Lady-day, 1824, together with all the appurtenances to the same belonging, subject to a covenant for repairs. In 1822, the reversioner demised the soil of the passage to the defendant for sixty-one years, to hold from Lady-day, 1824: it was held, that, under the demise of 1819, the plaintiff was entitled to a right of way over the defendant's passage. (Hinchliffe v. Earl Kinnoul, 5 Bing. N. C. 1; 6 Scott, 650. Kavanagh v. Coal Mining Company, 14 Ir. C. L. R. 82.)

See

A. was owner of the E. estate, adjoining the sea-shore, and let N., part of the estate, to a tenant, with express liberty to take sea-weed from the shore to manure his lands. N. was a farm lying inland, no part of it being nearer than about two miles from the shore. N., while so occupied, was sold to F., and the lands were described in the conveyance "as the same are presently possessed by the tenant." No express mention was made of any easement to take sea-weed, and there were only the general words "together with all the appurtenances." F. claimed an easement to go and collect the sea-weed adjoining A.'s estate to manure his lands: it was held, there being no express words of conveyance of such an easement, and the period of prescription not having elapsed, the easement did not pass under the words "together with the appurtenances." (Baird v. Fortune, 7 Jur., N. S. 926; 10 W. R. 2; 5 L. T., N. S. 2, H. L.)

There being two tenants of adjoining premises held under the same landlord, the tenant of one of the premises acquired a right of way to his vaults through the adjoining premises. The landlord sold both premises at one sale, with a condition that they were to be subject to and with the benefit, as the case might be, of all subsisting rights or easements of way or passage, so far as any lot might be affected thereby: it was held, that the vendor, being subject to no liability as to rights of way, the purchaser of one tenement could not enforce a right of way as against the other. (Daniel v. Anderson, 8 Jur., N. S. 328; 31 L. J., Chan. 610; 10 W. R. 366.)

Where a testator being seised in fee of two adjoining closes, A. and B., over the former of which a way had immemorially been used to the latter, devised B. with the appurtenances: it was held, that the devisee could not, under the word "appurtenances," claim a right of way over A. to B., as no new right of way was thereby created, and the old one was extinguished by the unity of seisin in the devisor. (Whalley v. Thompson, 1 Bos. & Pul. 371.) An existing way will pass by the word "appurtenances." (Ib.) Where there is an unity of seisin of the land, and of the way over the land, in one and the same person, the right of way is either extinguished or suspended, according to the duration of the respective estates in the land and the way; and after such extinguishment, or during such suspension of the right, the way cannot pass as an appurtenant under the ordinary legal sense of that word. In the case of an unity of seisin, in order to pass a way existing in point of user, but extinguished or suspended in point of law, the grantor must either employ words of express grant, or must describe the way in question as one "used and enjoyed with the land" which forms the subject-matter of the conveyance. (James v. Plant, 4 Ad. & Ell. 761.)

Where there is unity of seisin,

what words will pass ways which

existed before the unity of seisin.