between D and the spot marked "Gate," and I suppose also that the gate opens on to a public road. On these suppositions I am inclined to think that B has acquired a right of way between these points. The fact of the user having been only occasional would not prevent the acquisition of such a right by B. Lindley, L.J., in the case of Hollins v. Verney, says: "It is not required to be put in use every minute-but "the user must be such that, having regard to the nature of the right "in question, it cannot be said that the owner has not used it at any "time when he might reasonably have required to do so."

On the other hand, the mere opening of the door by B and going on to the land of A with no particular object in view, and irrespective of an association with some definite right of way such as I have referred to above, would be too vague for prescription, and would probably be found to be a trespass by B upon the land of A.

S. B. SAUNDERS, Professional Associate.

Reply to Query CLXXIV. (Vol. VI.,

p. 240).

PURCHASED FEEDING STUFFS-ARE HORSES CATTLE?

(A.)

It is not usual to allow compensation for feeding stuffs consumed by horses. The only instance in which I have known it done was where the chief stock of the farmer consisted of a stud of brood mares and their produce.

When the Agricultural Holdings Act of 1883 was in Committee of the House of Commons, an effort was twice made to get "horses" included amongst the stock coming under the Act, but it was defeated each time by a large majority. The chief argument against the proposal was that horses are part of the machinery of the farm. Also that horses would include hunters and horses kept and let out for hire.

There has been no legal decision under that Act as to whether or not the word "cattle " includes horses, but there have been cases under other Acts in which the word "cattle" has been held to cover severally horses, pigs, and asses. Probably much depends upon whether or not the word is used separately or, as in the Agricultural Holdings Act, in direct conjunction with other kinds of stock. In the Fertilisers and Feeding Stuffs Act the word is interpreted as meaning, inter alia, sheep, goats, swine, and horses.

F. PUNCHARD, Fellow.

(B.)

This is a point which is constantly cropping up in the settlement of the claims of an outgoing tenant, and one which frequently leads to heated discussion without leading to any definite conclusion. Whatever may be the legal definition of the word "cattle," it is obvious that the framers of the Act of 1883 in drafting this clause evidently had in

their minds the exclusion of horses, otherwise they would have been mentioned along with the animals enumerated. The solid excrement of the horse contains less water than that of neat cattle, and hence possesses greater manurial value. Where the corn is used for the feeding of horses constantly employed on the land, an allowance is generally made; when fed to horses otherwise employed, the manurial value is struck out. Half the cost of purchased corn and other feeding stuffs consumed during the last year of the tenancy is liberal; oneeighth of the cost for the last two years more nearly represents the manurial value.

GILBERT MURRAY, Fellow.

SECTION IV.

LAW CASES.*

(518.)

RAPIER v. LONDON TRAMWAYS COMPANY.

[NOVEMBER 1ST, 2ND, 3RD, 8TH, AND 9TH, 1892; AND MAY 12TH 15TH, AND 16TH, 1893.]

Nuisance from Smell-Tramway Company-Stables-Statutory Powers —Noise― Abating Nuisance before Trial-Injunction—Damages.

The defendants were a tramway company, who were empowered by their Act to lay down and construct two lines of tramway according to deposited plans, together with the works and convenience connected therewith. The Act gave no compulsory powers for taking lands, and made no special mention of building stables. The defendants constructed the lines, and built some large blocks of stables near the plaintiff's house for the horses employed in drawing the cars. The plaintiff complained of the smell caused by the stables, and brought an action for an injunction to restrain the defendants from using the stables so as to cause a nuisance :

Held (affirming the decision of Kekewich, J.), that although horses were necessary for the working of the tramways, the company were not justified by their statutory powers in using the stables so as to be a nuisance to their neighbours, and that it was no sufficient defence to say that they had taken all reasonable care to prevent it.-(L.R. [1893] 2 Ch., p. 518.)

Vendor and Purchaser-Agreement for Purchase of Property-Decree for Specific Performance, with Declaration that Plaintiff entitled to lien on Property-Rescission of Agreement.

A vendor of freehold property obtained a decree for specific performance of the contract entered into by him for the sale of the property, which decree contained a declaration that he was entitled to a lien upon

* This Section is intended primarily as a clue only to Reported Cases.

the property in respect of the balance of purchase money due to him from the purchaser, with liberty to apply to enforce such lien in case of default on the part of the purchaser in payment of such balance. The purchaser made default in payment of the balance, and the vendor moved for a rescission of the agreement in lieu of attempting to enforce the lien.

Held (following the unreported case of Hudson v. Williams (1891), H. 1622), that the agreement might be rescinded.-(L.T., Ch.D., vol. lxviii., N.S., p. 634.)

(520.)

THE ETHERLEY GRANGE COAL COMPANY, LIMITED, APPELLANTS, v. THE AUCKLAND

BOARD, RESPONDENTS.

DISTRICT HIGHWAY

Highways-Extraordinary Traffic-Excessive Weight-Extraordinary Expenses-Highways and Locomotives (Amendment) Act, 1878 (41 & 42 Vic. c. 77), s. 23.

[FEBRUARY 3RD, 6TH, AND MAY 19TH, 1893.]

The appellants were summoned for having caused extraordinary traffic and excessive weight to be conducted over a certain highway, whereby extraordinary expenses were incurred in repairs. The appellants carted coal from their colliery along the road in question to a railway station. Before this traffic was so conducted, the cost of repairing one portion of the road was not more than £10 per mile per annum, and of the second portion £15 per mile, but since the appellants' traffic the cost on each was not less than £45 per mile, though the cost of repairing roads in the neighbourhood did not exceed £20 per mile, and the cost of another part of the same road (on which the appellants' carts did not travel) was only £15 per mile. Owing to the loaded carts having to travel downhill, the appellants were able to, and did, load their carts excessively. Prior to the traffic in question the first portion of the road was a bye-lane, used and made up only for ordinary agricultural traffic and some light landsale coal traffic; and the second portion of the road was used and made up for the ordinary light traffic of the district, and no part of the road was made up for such traffic as the coal traffic of the appellants, though the coal trade was the staple trade of the district. The justices having found that the traffic was " extraordinary on both portions of the road, and the weight "excessive" on the first portion, within the meaning of sect. 23 of the Highways and Locomotives (Amendment) Act, 1878:

Held (on the authority of Reg. v. Ellis and Whitebread v. The Sevenoaks Highway Board, that the justices were right in their con

clusion; that extraordinary traffic is something different from excessive weight, and that it must be extraordinary in kind as well as in degree, the comparison being made, not betweeen the use complained of and the use of other roads in the neighbourhood, but between the use complained of and the ordinary use of the same load previously.—(L.T., Q.B.D., vol. lxix., N.S., p. 286.)

(521.)

BROOME v. WENHAM.

[MARCH 8TH, 9TH, AND 16TH, 1893.]

Manor-Rights of Common-Freeholds of the Manor-Enfranchisments -Release of Seignorial Rights.

The plaintiffs were respectively the owners in fee simple of two properties in the parish of W., situated on the north side of a lane used by them as the nearest way to the village and railway station. A short distance from the plaintiffs' properties the lane became a patch of green and then forked off into two branches. The defendant was the owner of a property situated between the two branches, the southern boundary of which adjoined the patch of green with a fence between.

The defendant had attempted to inclose the patch of green adjoining the end of his property, and by so doing had interfered with one of the branches of the lane.

The plaintiffs thereupon brought an action against him, claiming an injunction to restrain him from inclosing any part of the patch of green, on the ground (inter alia) that the patch of green was waste of the manor of W., and that they had rights of common of pasture and turbary thereon. It appeared that down to 1881 the plaintiffs' properties were freeholds of the manor of W. At that date the seignory thereof was released. The plaintiffs alleged that their predecessors in title, freehold tenants of the manor, were entitled in respect of the two properties and over the wastes of the manor, including the patch of green, to rights of common of pasture and turbary thereon.

The question, however, was whether the rights claimed by the plaintiffs had not been destroyed by the deed of enfranchisement, by which the lord of the manor had released all rents and services due to him by the freeholders.

Held, that, although rights of common annexed to copyholds were extinguished on enfranchisement, there was no similar doctrine with reference to the extinguishment of rights of common on the release of seignorial rights due by the freeholders of a manor; and, accordingly, that the plaintiffs' rights of common had not been extinguished by the enfranchisement in 1881.

Held, therefore, that they were entitled to the injunction claimed.— (L.T., Ch.D., vol. lxviii., N.S., p. 651.)

R