Rights of Way. Nothing is more clear than that under the word "appurtenances," according to its legal sense, an easement which has become extinct, or which does not exist in point of law, by reason of unity of ownership, does not pass. (Grimes v. Peacock, 1 Bulst. 17; Saundeys v. Oliff, Sir T. Moore, 467; Whalley v. Thompson, 1 Bos. & P. 371; Clements v. Lambert, 1 Taunt. 295; Barlow v. Rhodes, 1 Cromp. & Mees. 439. See Worthington v. Gimson, 6 Jur., N. S. 1053; and Tatton v. Hammersley, 3 Ex. 279.) Ways which did not exist before the unity of seisin. Implied grant upon severance of tenements. A question has often arisen, where unity of ownership in land and in a right of way over the land has taken place, as to what subsequent grant by the owner is sufficient to convey the continued enjoyment of the easement as well as the land itself. It seems from these decisions, that, inasmuch as the unity of ownership extinguishes the easement, the right of way cannot pass as simply appurtenant to the land to which it was formerly attached, though it continues to exist in point of user. But though it does not exist as a right, it will pass by a conveyance of the land if proper words be used to pass it, as if all ways" used and enjoyed" with the land are conveyed. Barlow v. Rhodes, 1 Cr. & M. 439; James v. Plant, 4 Ad. & Ell. 749.) The same rule applies where a conveyance purports to be of all waters, watercourses, privileges, easements, advantages and appurtenances to the premises belonging, or in anywise appertaining to or with the same or any part thereof held, used, occupied or enjoyed, or deemed to be so. (Wardle v. Brocklehurst, Ell. & Ell. 1058.) A., being a termor of land, built two houses on it; the whole was then released to him in fee, with all ways, easements, advantages and appurtenances thereunto belonging, or therewith usually used, leased, held, occupied or enjoyed. By his will he devised one house, and the appurtenances thereunto belonging, to B., and the other to C., in similar terms. During A.'s ownership of both, the entrance from the high road to the principal door of the house, afterwards devised to B., was by a set-out carriage drive or sweep, entering from a high road passing immediately in front of the house, afterwards devised to C., to B.'s door, and then returning round an oval garden in front of C.'s house, but at a greater distance from it, to the same point of entrance. B.'s house had a coach-house, opening only into the high road, and a back entrance into the same. After A.'s death, C. made a fence across so much of the carriage drive as passed immediately in front of his house and across the oval garden, leaving the further way to B.'s front door by the same carriage drive open. B. brought trespass, claiming the way as appurtenant to his house and garden: it was held, first, that the way as used in A.'s time, during the unity of ownership in him, immediately in front of C.'s house, did not pass to B. with the house devised to him under the word "appurtenances" in A.'s will. (Pheysey v. Vicary, 16 M. & W. 484.) And it seems that it did not pass as a way of necessity, whether taken in the strict sense, or as a way without which the most convenient and reasonable mode of enjoying every part of B.'s premises could not be had. (Ibid.) The owner of two adjoining closes, A. and B., who had during the unity of possession made and used for his own convenience for agricultural purposes a way across B. to A., executed a conveyance of close A. to a purchaser, with these general words," together with all ways, easements and appurtenances thereto appertaining, and with the same now or heretofore occupied or enjoyed." Held, that as there was no roadway to B. over A. before the unity of possession, the right to use it did not pass under the general words of the conveyance. (Thomson v. Waterlow, L. R., 6 Eq. 36; followed in Langley v. Hammond, L. R., 3 Ex. 161.) If the owner of a house and land makes a formed road over the land for the apparent use of the house, and conveys the house separately from the land with the ordinary general words, it was said by Mellish, L. J. (concurring in the opinion expressed by Bramwell, B., in Langley v. Hammond), that a right of way over such road might pass. (Watts v. Kelson, 6 Ch. 174. See also Geoghegan v. Fegan, I. R., 6 C. L. 139.) The doctrine of an implied grant of easements is only applicable to such as are apparent and continuous; and where contiguous premises held under the same title are at the time of the division of title in such an unfinished state that there are no indications of definite ways or windows, &c., there will be no such implied grant. (Glave v. Harding, 27 L. J., Ex. 286.) As a right of way may be created by an express grant, so it may also arise by an implied grant, where the circumstances are such that the law will imply such grant. This right of way has been commonly termed a way of necessity, but it is in fact only a right of way by implied grant; for there seems to be no difference where a thing is granted by express words, and where it passes as incident to the grant by operation of law. (1 Wms. Saund. 323, n. See 4 Maule & S. 387.) A purchaser of part of the lands of another has a way of necessity over the vendor's other lands, if there be no convenient way adjoining; so if a man having four closes lying together sells three, and reserves the middle close, to which he has no way but through one of those sold, although he did not reserve any way, yet he shall have it as reserved to him by the law. (Clarke v. Cogg, Cro. Jac. 170; Jordan v. Attwood, Owen, 121.) A way of necessity passes by grant or lease of the land, without being expressed; for the land cannot be used without a way. (Beaudely v. Brook, Cro. Jac. 189.) A conveyance of land by a trustee, to which there is no access but over the trustee's land, passes a right of way. (Howton v. Frearson, 8 T. R. 50.) So if the owner of two closes, having no way to one of them, but over the other, part with the latter without reserving a right of way, it will be reserved to him by operation of law. (Ib.) Where property devised or granted is landlocked, and there is no other way of getting at it without being a trespasser, so that it cannot be enjoyed without a way of some sort over the lands of the testator or grantor, it is clear that a way of necessity is created de novo. (Pearson v. Spencer, 1 B. & S. 583.) On the sale of land to a purchaser who has notice that the adjoining land is to be laid out in building in a manner which will make a right of way over the purchased land necessary to the vendor, such right of way is reserved to the vendor by implication, as a way of necessity. (Davies v. Sear, L. R., 7 Eq. 427.) Rights of Way. Implied grant of ways of necessity. A way of necessity cannot be pleaded generally, without showing the manner in which the land over which the way is claimed is charged with it. (Bullard v. Harrison, 4 Maule & S. 387. See 1 Wms. Saund. 323, n. 6.) Where there is a private road through a farm, the parson may use it for Instances of ways carrying away his tithe, though there is another public way equally con- of necessity. venient. (Cobb v. Selby, 6 Esp. 103.) Unless a tithe owner has a right of way to carry tithe off titheable lands within the parish by grant of the owner of the fee, or by prescription, he has, primâ facie, only a right to use such road for that purpose as is used at the time by the occupier to carry off the other nine-tenths; and if he has any further right to use any other way from the particular close, because used by the occupier for other agricultural purposes, or for more convenient use of the close, though not for the purpose of carrying off the crop, that right can only exist while such way continues, without being stopped up by the occupier. A farmer, acting bona fide, has a right to alter the line of road to his farm, in which case the parson must use the substituted road, unless he can show a right by grant or by prescription. (James v. Dodds, 2 C. & M. 266; 4 Tyrw. 101.) Where a man leases lands, reserving the timber, he may enter to show it to a purchaser. (2 Rol. Abr. 74, 1, 41; 1 Rol. Abr. 109, 1, 5.) So if a man grants to another certain trees in his wood, the grantee may go with carts over the grantor's lands to carry away the trees. (Liford's case, 11 Rep. 52, a; Vin. Åbr. Incident.) A man having a right to wreck thrown Rights of Way. Nature of a way of necessity. Duration of a way of necessity. on another man's land, has necessarily a right of way over such land to take the wreck. (Anon., 6 Mod. 149.) In an action for a disturbance of a right of way, it appeared that in 1839 A., being the owner of five closes, two of which, called the Holme Closes, were separated by two of the others from the only available highway, sold the entire property in three lots. M. purchased the Holme Closes, and D. the remaining closes. Over the latter the tenants of A., from the year 1823, used a way for the occupation of the Holme Closes. The deeds of conveyance to the three purchasers were all executed on the same day, but it could not be ascertained in what order of priority they were executed. No special grant or reservation of any particular way was contained in any of them, but in the conveyance to M. there were the usual words, together with all ways, roads, &c., to the closes belonging or appertaining. For several years after the execution of the conveyances, the plaintiff, who occupied the Holme Closes as tenant of M., had used the way in question, but in 1843, the defendant, who had purchased D.'s closes, disputed the plaintiff's right and obstructed the way. It was held, first, that assuming that the conveyance to M. was executed before that of D., the plaintiff was clearly entitled to the way, for where a person having a close surrounded by his land grant the close to another, the grantee has a way over the grantor's land as incident to the grant. (Pinnington v. Galland, 9 Exch. 1; 22 Law. J., Exch. 349.) It was held, secondly, assuming that the conveyance to D. was executed before that of M., the plaintiff was, nevertheless, entitled to the way; for while the property in the Holme Closes remained in A. he had that way of necessity as being the most convenient mode of access to his premises, and it passed by his conveyance to M. under the words "all ways to the closes belonging or appertaining." (Ib. See Pyer v. Carter, 1 H. & N. 916.) Where a plaintiff derived title to a locus in quo under a lease from the owners within the last twenty years (without any reservation of a right of way), and the defendant had within that time occupied part of the locus and taken adjoining premises by a subsequent lease from the original lessors: it was held, that he could not set up a right of way over the land by user or of necessity. (Walter v. Williams, 2 F. & F. 423.) It seems that no right of way by necessity can exist where the title of the parties is by escheat, even assuming that escheat is equivalent to a grant; the only ground on which the lord of a manor can claim a way of necessity is, that he has no other way. (Proctor v. Hodgson, 10 Exch. 824.) Where at the time of the grant in respect of which a right of way was claimed, there was a way from a house into a garden, and that way continued to exist, and the deed contained no reservation of a right of way, it was held, that another way could not be claimed as a way of necessity, on the ground of its being more convenient than the former way. (Dodd v. Burchall, 8 Jur., N. S. 1180; 1 H. & C. 113; 31 L. J., Ex. 364. It is settled by modern authority that the ground on which the way of necessity is created is, that a convenient way is impliedly granted as a necessary incident. It is observed by Parke, B., in Proctor v. Hodgson, 10 Exch. 824, 828, that the extent of the authority of Holmes v. Goring, 2 Bing. 76, is, that though it is a grant, it may be construed to be a grant of such a right of way as from time to time may be necessary. In a recent case the court was not inclined to extend the authority of Holmes v. Goring so far as to hold that the person into whose possession the servient tenement comes may from time to time vary the direction of the way of necessity at his pleasure, so long as he substitutes a convenient way. The court held, that the way of necessity, once created, must remain the same way as long as it continues at all. (Pearson v. Spencer, 1 Best & S. 584.) The lessee of an inner close has by necessity a right of way suitable to the business for which the lease was made, over an outer close which belongs to the same landlord. (Gayford v. Moffatt, L. R., 4 Ch. 133.) A way of necessity is limited by the necessity which created it; and when such necessity ceases, the right of way also ceases; therefore if, at any subsequent period, the party formerly entitled to such way can approach the place to which it led by passing over his own land, by as direct a course as he would have done by using the old way the latter will cease to exist. (Holmes v. Goring, 2 Bing. 76; 9 Moore, 166; Reynolds v. Edwards, Willes, 282. But see Buckley v. Coles, 5 Taunt. 311, and the remarks of Parke, B., Proctor v. Hodgson, 10 Ex. 828. See also Pheysey v. Vicary, 16 M. & W. 491.) Rights of Way. after twenty A right of way or a right of passage for water (where it does not create Presumption of an interest in the land) is an incorporeal right, and stands upon the same grant of way footing with other incorporeal rights, such as rights of common, rents, ad- years' user. vowsons, &c. It lies not in livery, but in grant, and neither a freehold nor a chattel interest in it can be created or passed otherwise than by deed. (5 B. & Cr. 229. See ante, p. 57.) Grants of rights of way are presumed from long enjoyment, where its commencement cannot be accounted for, unless a grant has been made. (5 B. & Ald. 237.) The uninterrupted enjoyment of a right of way for twenty years, in the absence of evidence that it had been used by leave or favour, or under a mistake, was held sufficient to leave to a jury to presume a grant, although the road in question had been extinguished about twenty-six years before, under the award of the commissioners of an inclosure act. (Campbell v. Wilson, 3 East, 294.) So where there had been an absolute extinguishment of a right of way for many years by unity of possession, but the way had been used for thirty years preceding an action for its obstruction, the jury were directed to presume a grant from the defendant. (Keymer v. Summers, Bull. N. P. 74, cited 3 T. R. 157. See also Livett v. Wilson, 3 Bing. 115, ante, p. 56.) Though an uninterrupted possession for twenty years and upwards be a Knowledge of bar to an action on the case, yet the rule must be taken with this qualifica- owner of fee. tion, that the possession was with the acquiescence of the person seised of an estate of inheritance. The mere knowledge of the tenant is not sufficient, otherwise he might collude to the prejudice of his landlord. But presumptions are sometimes made against the owners of lands, during the possession and by the acquiescence of their tenants, in cases of rights of way and of common, because the tenant suffers an immediate and palpable injury to his own possession, and therefore is presumed to be upon the alert to guard the rights of his landlord as well as his own. (Daniel v. North, 11 East, 372.) In every case where the party claiming relies on his want of possession, the question whether he knew or not of the enjoyment is to be determined by the circumstances of the case, and may very properly be left for the consideration of the jury. (Dawson v. Duke of Norfolk, 1 Price, 247; Gray v. Bond, 2 Brod. & Bing. 667.) The user of a way during the occupation of tenants does not bind the landlord, unless he was aware of it; but if the user has been for a great length of time, it may be presumed that he was aware of it. (Davies v. Stephens, 7 Carr. & P. 570.) The knowledge of the owner of the land and his acquiescence may be presumed from circumstances. Thus where the lessees of a fishery had publicly landed their nets on the shore at A. for more than twenty years, and had, at various times, dressed and improved the landing-place, and both the fishery and the landing-place originally belonged to one person, but no evidence was offered to show that he or those who under him owned the shore at A. knew of the landing nets by the lessees of the fishery it was held, that it was properly left to the jury to presume a grant of the right of landing to the lessees of the fishery by some former owner of the shore at A. (Gray v. Bond, 2 Brod. & Bing. 667; 5 Moore, 527.) : A private way may be claimed by prescription; as that a man is seised Prescription. in fee of a certain messuage, and that he, and all those whose estate he has in the same messuage, have from time immemorial had a way (describing it as the case may be) from to A way being only an easement, and not an interest should not be laid as appendant or appurtenant. (Yelv. 159.) Where a particular tenant relies on a prescriptive right, he must, before the act 2 & 3 Will. 4, c. 71, s. 5, ante, pp. 21, 22, have set forth the seisin in fee of the owner, and then have traced his own title from the owner of the fee. (2 Salk. 562; Com. Dig. Chimin (D. 2).) Where in trespass quare clausum fregit, the defendant prescribed in a que estate for a right of way over the locus in quo, and it appeared that the Rights of Way. Custom. Inclosure act. Construction of grants of rights of way. defendant's land had, within fifty years, been part of a large common, and afterwards inclosed under the provisions of an act of parliament, and allotted to the defendant's ancestor, it was held, that notwithstanding this evidence the right claimed by the defendant's plea might in law exist: and the jury having found that in fact it did exist, the court refused to disturb the verdict. (Codling v. Johnson, 9 B. & Cr. 933.) If the lessor enjoy a prescriptive right of way, or any other easement, by virtue of the demised premises, such right will pass to the tenant for life or years. Before the act 2 & 3 Will. 4, c. 71, (see ante, s. 5, pp. 21, 22,) the only distinction between a tenant for years and a tenant for life was that the former in pleading could not prescribe in his own right; but he must have asserted the right through his landlord, or the owner of the freehold. (Cantrell v. Stephens, Styl. 300; Dawney v. Cashford, Carth. 432.) A custom that every inhabitant of a certain village shall have a way over certain land, either to church or to market, is good; because it is only an easement, but not a profit. (6 Rep. 60 b.; Co. Litt. 110 b.; Cro. Eliz. 180. See 2 H. Bl. 393; ante, pp. 30, 31.) By an inclosure act, it was enacted, that all ways over a certain field, called West Field, allotted to B., should be extinguished from the time of the making and completion of a new road, as therein directed, with a proviso that nothing in the act should extend, or be construed to extend, to deprive A., his heirs or assigns, or his or their agents, &c., of the right of ingress, egress, and regress, to and from a watercourse, for the purpose of rebuilding, repairing, opening or shutting the sluices thereon, or to cleanse the same: it was held, that this reserved to A. his right of way unimpaired over West Field, for the purposes mentioned in the act. (Adeane v. Mortlock, 7 Scott, 189; 5 Bing. Ñ. C. 236; 3 Jur. 105.) The dean and chapter of Durham, being seised in fee of lands in that county, demised them, in 1832, to W., by indenture between them and him, containing this clause: "Except and always reserved out of this present lease, indenture or grant, the woods, underwoods, and trees now growing or hereafter to grow upon the said demised premises, and the mines, quarries, and seams of clay within and under the same, with full and free authority and power to cut down, take and carry away the said wood and trees, and to dig, win, work, get and carry away the said mines, quarries, and seams of clay, with free ingress, egress and regress, wayleave and passage, to and from the same, or to or from any other mines, quarries, seams of clay, lands and grounds, on foot and on horseback, with carts and all manner of carriages, and also all necessary and convenient ways, passages, conveniences, privileges, and powers whatsoever for the purposes aforesaid, and particularly of laying, making and granting waggonway or waggonways in and over the said premises or any part thereof, paying reasonable damages for spoil of ground to be thereby done, upon the adjudication of two indifferent persons to be chosen by the parties, always excepted and reserved to the said dean and chapter, their successors, grantees or assigns." It was held, that by this clause the only right reserved to the dean and chapter was that of making and granting the right of making ways over the demised lands for the purpose of getting the excepted wood, mines and minerals. (Durham and Sunderland Railway Company v. Walker, 2 Q. B. 940.) In Farrow v. Vansittart, 1 Railw. Ca. 602, 614, the same construction was put upon a clause in one of the dean and chapter's leases, exactly similar to the one above stated. General words reserving a wayleave to the Bishop of Durham for coals, &c. gotten out of any lands, were restrained by the context to lands belonging to the see. (Midgley v. Richardson, 14 M. & W. 595. See Hedley v. Fenwick, 3 H. & C. 349.) By a deed dated in 1630 the grantor conveyed in fee farm land in the county of Northumberland, " excepting and reserving out of the grant all mines of coals within the fields and territories aforesaid, together with sufficient wayleave and stayleave to and from the said mines, with liberty of sinking and digging pit and pits. It was questioned whether, under this reservation of a sufficient "way leave," the coalowner had now a right to make a railway, for the purpose of carrying coals from the mines for shipment, with cuttings and embankments, and fenced in so as to exclude the |