AVOIDANCE OF REGISTRATION DESIRABLE.

370. With regard to good average titles, it is the interest of all parties to avoid reference to the Court, because, as good unquestionable titles need no reference (355), the very fact of referring them, or proposing to refer them, is at once suggesting a doubt of their validity.

INEVITABLE UNCERTAINTY OF MODERN TITLES.

371. It will be seen, on examination, that, in the present state of the law, there is no such thing as an absolute title to any fee simple; in case of fraud (334) an order of the Court becomes of no effect (359), and a blunder or omission (330) may be accidentally or wilfully kept out of sight, without any imputation of fraud (332), though equally fatal to the validity of a title, even though to some extent guaranteed by the Court.

QUALIFYING PROVISION.

372. It is true that, when six months have elapsed after the Court has decreed the validity of a title, and the title should be by subsequent proceedings proved to have been improperly certified by the Court (359), it is provided that should any certificate of the Court be annulled, varied, or cancelled, in consequence of such proceedings it

"Shall not prejudice or affect the title of any person, who, before any such annulling or variation, shall have acquired a title under the same declaration, as a purchaser for valuable consideration, of the said Court, or of any estate or interest therein; " but

REVIVING CLAIMANT.

373. If a title is cancelled, it must be in favour of a party claiming, in respect of a right prior to the original proceedings, who must then become entitled to the property; yet

374. Irreconcilable Conditions.-The Act does not hint how rights are to be adjusted between the old "party" and the " purchaser for valuable consideration," both of whom, it is clear, cannot hold the property at the same time.

PROSPECTIVE WORTHLESSNESS OF REGISTRATION. 375. The certificate of title issued by the Court, may be any time rendered worse than worthless-indeed, a direct instrument of fraud -by any subsequent unregistered disposition of the property which the holder may carelessly or wilfully make (363).

REASONABLE PROBABILITY THE ONLY SECURITY.

376. In judging of a title to land, all the circumstances and probabilities must be taken into account, as the only justification for venturing to make purchase of an estate; and

IMPORTANCE OF RELIABLE AGENTS.

377. As no modern title to land can be, in itself, entirely beyond suspicion, it is obvious that purchasers of landed estates cannot be too cautious to avoid dealings with any but professional men, whose integrity is unqualified, and whose reputation is of more consequence than the casual gains arising out of disreputable practices.

SPECULATIVE CONDITIONS.

378. A purchase of a landed estate, effected with or through a stranger, of whose character there is no evidence, so far from being "the best of all security," is about the most speculative investment a man can make, even though the deeds are handed over, and are all quite genuine, and, on the face of them, unimpeachable.

LEGISLATIVE EFFORTS.

379. Weakness of Legislation.—The great weakness of the Acts of 25 and 26 Vic. cannot be cured by anything short of an Act to enforce registration of all conveyances; but,

380. Difficulties of Legislation. The endless technicalities which have been introduced by lawyers, originally for the purpose of evading or shuffling out of feudal obligations, have rendered the provision of compulsory registration a gigantic undertaking for any legislator to cope with; so that it may be considered hopeless.

381. Mischief of Legislation.-Recent legislation, in reference to real property, has confessedly made matters worse than before; for,

STABILITY OF FEUDAL TENURE.

382. The wisdom of the principle of feudal tenure stands justified, in face of the additional confusion which every attempt to abrogate it has invariably produced.

383. Necessary Development of Feudal Tenure.-Practical experience, and candid consideration, and unprejudiced judgment, are in favour of the complete and uniform application of the feudal principle, duly adjusted to those circumstances of national government, which every day tend towards the transfer, more and more, of the powers and privileges of the Crown to the Imperial Parliament.

FUTILITY OF “FREE TRADE."

384. Every attempt to establish what is called "free trade in land," has hitherto been, and must continue to be, futile.

FOLLY OF ATTEMPTS TO RESTORE ALLODIUM.

385. Allodial tenure (27) failed in former ages, and, the nearer we approach to it again, the greater will be the failure of attempted reforms.

NECESSARY DIRECTION OF TRUE REFORM.

386. There is nothing for it but to return, advisedly, and with a good grace, to what has been recently called, by a high legal authority, "the ancient symmetry of the laws of real property," under which all the greatest nations of Europe for the first time flourished and became consolidated; which ancient symmetry was so unwisely impaired by the most important Act of Parliament ever passed, 12 Car. II. c. 24 (89), and which ancient symmetry can only be restored by first retracing the steps taken by that Act.

INCORPOREAL HEREDITAMENTS.

387. All Incorporeal rights, which of necessity pass with landed property, are called either appendant or appurtenant; those rights which are associated with, but independent of the property, are called incorporeal hereditaments in gross.

388. Seignory.-Seignory is the appendant right which the lord of a manor exercises over the business and tenants of the manor, according to the customs and the tenure.

389. Rights of Common.--Rights of common are appendant, whether those of the lord or the tenant, particulars of which appear under the head of commons (436).

WAYS AND WATERS.

390. The right of way or water, which the holder of one estate has to pass over or derive through another estate, is an appurtenant hereditament.

EXTENT OF RIGHT.

391. The manner of using a right of way is governed by custom or usage; it may be used alone, or in company, on foot or on horseback, with carriages or cattle.

392. Way of Necessity.-Wherever a purchaser discovers that he has

no right of access to his property, by prescription or otherwise, he has, spontaneously, a right of access through some other portion of the manor or property, out of which his purchase has arisen, and such is called a way of necessity.

393. Prescriptive Right-of-Way.-When an occupier has enjoyed the use of a way for twenty years; though his right may have been objected to and protested against, if it has not been effectually resisted, or judicially pronounced against, the right becomes permanent; yet,

TENANTS FOR LIFE CANNOT MAKE PRESCRIPTION.

394. If a right-of-way is in the first instance submitted to by a tenant for life, though it may be thence enjoyed for considerably more than twenty years, during the occupation of the tenant for life, the right may be denied, and the way closed, by the succeeding reversioner, immediately upon taking possession.

395. Lapse of Prescription.-If a right has existed in a way, from time immemorial, and such way is closed for a clear year, the ancient right lapses, as though the way had never existed.

ROADS ACROSS COMMONS.

396. When a road across a common, leading from one town to another, has been in existence from time immemorial, it becomes a highway, and is open to all men ; but,

RESTRICTED RIGHTS-OF-WAY.

397. A common road which terminates upon a farm, or in a village, or at a church, is only of right the property of the inhabitants habitually using it; therefore,

398. Necessity for Habitual Use.-Any person claiming a rightof-way along a path or road, other than a highway, must prove that it is necessary for his habitual convenience or enjoyment; and

399. Custom.-Common ways, like all other ways, are only usable according to a custom established; thus,

RESTRICTIONS TO SPECIAL PURPOSES.

400. A path which is used by the inhabitants of a house or village, for the purpose of passing to or from church, may or may not be restricted to their use for that purpose only, whether it be across common lands or not; and

401. Bounded Rights-of-Way.-A road leading to a particular spot or place only, must not be used for proceeding on the way to another spot beyond that place; thus,

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402. The Blackacre Case.-When a defendant made a practice of driving cattle to Blackacre, and thence to another place beyond, he was restrained, upon proof that the road was immemorially used for the purpose of getting to Blackacre only; it was held that if he desired to get beyond Blackacre, he must proceed by another road.

RIGHTS OF DEVIATION.

403. When a path or road is impassable, any person who has a right that way may deviate upon the adjoining land.

404. Across Fields.-A plaintiff sued, because a defendant did not keep to the path across a certain field; the defendant pleaded that the path was not in a fit state to traverse, and that he went as near the path as the state of the ground would reasonably permit; the verdict was for the defendant.

RIGHT TO BREAK DOWN FENCES.

405. When a road is impassable, any passenger may break down the fences, and proceed inside the fields for the whole distance over which the road is impassable.

RIGHTS OF WATER.

406. If a stream passes from the estate of A into that of B, the right of B in the customary water of that stream is governed by the usage of twenty years previously; but,

407. Right of Stoppage or Diversion.-As in the case of a road (394), a stream which has arisen upon the estate of a life tenant, during his occupancy, may be stopped or diverted by the succeeding reversioner, immediately upon taking possession; and

408. Lapse of Prescription.—When a stream, which has maintained a certain course from time immemorial, is diverted or stopped for a clear year, all rights in its original course cease.

LIGHTS.

409. The right to light derived across an adjoining estate is governed, like roads and streams, by the usage of twenty years, with a like proviso concerning life tenants (394), and the same rule as to the origin or extinguishment of such a right (393), as more fully set forth under the head of Landlord and Tenant (a).

RENT CHARGES.

410. Any holder of a fee simple may grant to any person a rent charge upon his estate, either for the grantor's life, or in tail, which is an appurtenant hereditament.

(a) See "Landlord and Tenant."