commissioners, made in pursuance of the Acts, after due enquiries and evidence. And the Act of 1845 declares, that immediately after such allotment and inclosure of the lands shall have been made, or from such other time as shall be fixed after proper notice, the common or other rights, which it is the object of the inclosure to commute, shall be extinguished accordingly; and it directs that copies of the award shall be deposited with the clerk of the peace for the county, and also with the churchwardens of the parish, so that recourse thereto may be freely had by any person interested in the premises.

So long as the policy which produced the Inclosure Act of 1845, and its numerous amendments, continued to receive popular approval, the process of inclosure went on rapidly under its provisions. Year after year, sometimes twice in a single session, Parliament passed a short Act authorising the carrying out of inclosure schemes recommended by the Inclosure Commissioners, until the disappearance of open spaces, especially in the neighbourhood of large towns, began to inspire thoughtful people with a doubt whether the vaunted policy of the Inclosure Acts was really for the benefit of the nation. It was generally believed that, apart from questions of public health, the rights of the poorer commoners had been somewhat neglected in the awards of the commissioners. Popular feeling began to manifest itself. The formation, in the year 1865, of the Commons Preservation Society, marks the turn of the tide. Statutes, passed with the object of hindering the rapid extension of that process which Parliament had hitherto been so anxious to promote, began to make their appearance. One of the earliest was the Metropolitan Commons Act of 1866, which expressly forbade the commissioners to entertain any proposal for the inclosure of a common within the Metropolitan Police District, and provided an elaborate machinery for the conversion of such commons into public parks and gardens. And this policy became general ten years later, when the

S.C.-VOL. I.

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Commons Act, 1876, enacted that any common lands, in lieu of being inclosed, might be appropriated as open land, and regulated for the public use; and expressly provided, that any encroachment on, or inclosure of, a village green or recreation ground, having a known and defined boundary, should be a public nuisance, and summarily punishable before the magistrates. A civil jurisdiction is also thereby given to the county court of the district in the matter of any such nuisance, and that court may accordingly, as the justice of the case requires, grant injunctions or make orders of removal or abatement. So that the elaborate provisions of the Inclosure Act, 1845, though nominally unrepealed, have become almost a dead letter.

II. [The second species of incorporeal hereditaments which we propose to consider are ways, or the right of going over another man's ground. And by ways we do not here mean highways, which are common to the public, but private ways, in which one man has an interest and a right, whilst another is owner, or at least occupant, of the soil of the ways. Such ways may be grounded on special permission, as when the owner of land grants, by deed, to another man the liberty of passing over his (the grantor's) land, to go to church, to market, or the like; or they may be by prescription, i.e., by implied grant, as if all the owners and occupiers of such a farm have long used to cross such a ground for such a particular purpose.] But it has recently been stated, by great authority, that there can be no such thing as a true right of way, or any other easement, held in gross, i.e., independently of the claimant's interest in some dominant tenement, for the benefit of which the easement is claimed (0). At first sight this rule appears to be inconsistent with the wellknown cases in which jura in alieno solo have been recognised as exercisable by the inhabitants of a particular

(0) Rangeley v. Midland Rail. Co., (1868) L. R. 3 Ch. App. 311.

district, or other indefinite body (p). It is, however, probable, that this latter class of rights are not true incorporeal hereditaments at all, but merely personal privileges, incapable of being transferred. [A right of way may also arise of necessity; as if A. grants to B. a piece of ground in the middle of his field, he at the same time tacitly and implicitly gives him a way to come to it (q), for that is necessary to its enjoyment. In like manner, a tenant at will has, after the determination of his interest by the lessor, free entry, egress, and regress into the land, in order to cut and carry away his emblements. For when the law gives a right, it gives everything necessary to the exercise of the right (r).]

III. Watercourses are the third species of incorporeal hereditaments, a watercourse being the right which a man has to the benefit of the flow of certain water. It is distinguishable from the right of merely using the water flowing over one's own soil, which is incident as of course to the property in the soil itself; for the right to a watercourse involves the right to have the course of the water kept free from any interruption or disturbance to the prejudice of the claimant of the right, whether by diversion of the water, or any obstruction of its flow, or its pollution by any offensive commixture. This right belongs primâ facie to every occupier of land over which a stream passes (s) for though running water, air, and light are all publici juris, yet to a certain extent they are subject to appropriation by force of an actual occupancy. And he who is in possession of any soil, is primâ facie in possession also of the free course of the streams which flow over its surface (t); but streams underground

(p) Fitch v. Rawling, (1795) 2 H. Bl. 393; Hall v. Nottingham, (1875) L. R. 1 Ex. D. 1.

(q) Clarke v. Cogge, (1606) Cro. Jac. 170; Hinchliffe v. Lord Kinnoul, (1838) 5 Bing. N. C. 24, 25.

(r) Co. Litt. 55 a, 56 a.

(s) Sury v. Pigot, (1626) Poph. 166; Miner v. Gilmour, (1855) 12 Moo. P. C. 156.

(t) Sampson v. Hoddinott, (1857) 1 C. B. (N.S.) 590.

(including wells and springs) are ordinarily of too uncertain a character to admit of this appropriation (u). Moreover, the natural right, where it exists, may be divested by express agreement between the parties interested, or by long usage, which is evidence of some antient agreement of that description. And therefore my general claim to have the water of such a stream flowing freely and without disturbance over my land, may be successfully opposed by my neighbour, if he can prove that (by some grant of mine or of my ancestors) he is authorised to keep up a mill or the like, and thereby to cause an obstruction in the flow of the stream, or if he can establish a title by long usage to do so. For he has then by grant or by prescription a watercourse for such special purpose, to which the general right I might otherwise have had by occupancy has become subordinate.

IV. Lights, otherwise called antient lights, are a fourth species of incorporeal hereditaments, the term being used to express a man's right to have the access of the sun's rays to his windows, free from any obstruction by the occupier of adjoining land. For the element of light, like that of water, is capable to a certain extent of appropriation by mere occupancy, a man on his own land having (in the absence of rival claims) a right to a reasonable amount of the light which would naturally to him. He may even erect a house on the boundary line of his property, and so as to overlook his neighbour, with as many windows as he pleases; and by force of some grant, or by prescription, he may be or become entitled to maintain these windows in freedom from all obstruction. But in the absence of any grant, and before any prescriptive right has arisen, it is competent

come

(u) Chasemore v. Richards, (1857) 2 H. & N. 168; Ballard v. Tomlinson, (1885) 29 Ch. D. 120

to the owner of the adjoining land, by a wall or otherwise, to intercept or to obstruct the light, and so to prevent the easement from arising (x).

V. [Franchises, otherwise called liberties, are a fifth species of incorporeal hereditaments, a franchise being a royal privilege, or branch of the Crown's prerogative, subsisting in the hands of a subject (y). Franchises, therefore, being derived from the Crown, must either arise from royal grant, or be held by prescription, which pre-supposes such a grant (2). And they may be vested. either in natural persons or in bodies politic; in one man or in many. But the same identical franchise that has before been granted to one cannot be bestowed on another; for that would prejudice the former grant.

To be a county palatine is a franchise vested in a number of persons; and to have a bailiwick or liberty exempt from the sheriff of the county, and wherein the grantee only and his officers are to execute process, is a franchise. There are also many franchises exercisable by lords of manors, as annexed to their manors, e.g., to hold a court leet, or to have waifs, wrecks, estrays, treasuretrove, royal fish, and forfeitures, the nature of all which franchises will more particularly appear when we come to speak of the Crown's prerogatives (a). So also there may be a franchise to have a fair, market, ferry, or the like, with the right of taking toll there; or to have forest, chase, park, warren, or fishery. Among franchises, there are many which belong, in point of arrangement, to other parts of the present treatise; but to some more particular notice is due in this place.

1. And, first, as to fairs, markets, and ferries. A man may have a right to hold a fair or market, or to keep a

(x) Blanchard v. Bridges, (1835) 4 A. & E. 176; Bonner v. Great Western Rail. Co., (1883) 24 Ch. D. 1.

(y) Finch, Discourse, 164.

(~) Co. Litt. 114; Goodman v. Mayor of Saltash, (1882) 7 App. Ca. 633.

(a) Vide post, bk. iv. pt. i. ch. vii.