Rejoinder. That before the making of the indenture in the replication mentioned, and when the road was first laid out, neither the said way, nor the right to use the same, was granted by any deed or instrument under seal to any person or persons whatsoever, but the said way was then so laid out and made by the plaintiff and his wife, in exercise of the powers conferred on them by the said Act. And they then duly laid out and appropriated the same for the general improvement of the estate and the accommodation of the tenants and occupiers thereof, and to the intent and purpose that the said tenants and occupiers might enjoy such appropriation and accommodation, and that the defendant as one of such tenants and occupiers, and the said other tenants and occupiers thereupon and thence hitherto have (without any grant thereof by deed) always used and enjoyed the same. Demurrer and joinder therein. M. Smith (with whom was J. P. Norman) argued in support of the demurrer (a).—The plea does not shew any right to the way by grant or otherwise. A public way may be created by dedication; but a private way is an easement which cannot effectually be granted except by deed: Wood v. Ledbitter (b); Gale on Easements, p. 45, 2nd ed. The alleged appropriation could have had no effect except as a mere revocable license. It is suggested that the Act enables the plaintiff and his wife to create without deed such a right as is claimed by the defendant. But the only object of the Act is to put the tenants for life in a position to deal with the property, notwithstanding the limited nature of their interests, and for that purpose it empowers them to do that which might otherwise be waste. [Bramwell, B.-The de (a) Nov. 15. Before Pollock, C. B., Bramwell, B., Watson, B., and Channell, B. MICHAELMAS VACATION, 23 VICT. fendant must contend that the tenants for life could not C. E. Pollock, for the defendant.-The defendant claims a right of way, dedicated to the tenants and occupiers of the estate, under the 8th section of the Act. The pleadings shew that the way was made; that it afforded a convenient access to the sea-shore, and that it was used by the tenants and occupiers of the estate. [Watson, B.-Assuming this to be similar to a highway, that is not a dedication but only evidence of a dedication.] It is said to have been appropriated. The intention of the Act was to give to the tenants for life full and free power for the general im (a) 3 Camp. 284. (b) 1 T. R. 93, note. (c) Citing Lucy v. Levington, 1 Ventris, 176. See further Sir F. Barrington's Case, 8 Rep. 138, 1859. WHITE v. LEESON. 1859. WHITE v. LEESON. provement of the estate which they would not otherwise have possessed. The 8th section enabled them to dedicate the way, as a quasi public way, viz., to dedicate it for the benefit of a particular class of persons, which, but for the statute, could not have been done: Poole v. Huskinson (a); though, perhaps it might have been dedicated for a limited purpose: Marquis of Stafford v. Coyney (b). There was, therefore, good reason for giving the power conferred by the 8th section. [Bramwell, B.-If the tenants for life can grant a right of way which is less than a public right of way, can it be contended that they may not limit it as they please.] In Owen v. Saunders, (c) Lord Winchelsea, Custos Rotulorum of the county of Kent, came into Court, and without deed or writing nominated the plaintiff Owen to be clerk of the peace for that county, quamdiu se bene gesserit. He was admitted, and executed the office. After Lord Winchelsea's death, Lord Sidney was made Custos Rotulorum, and, by deed, nominated the defendant Saunders. Powell, J., held that the common law required a nomination by deed (d) and that, notwithstanding the statutes 37 Hen. 8, c. 1, and 1 W. & M. c. 21, s. 5, the common law should be followed. But the majority of the Court thought that as the 1 W. & M. c. 21, s. 5, empowered the Custos Rotulorum to nominate and appoint, the parol appointment of the plaintiff was good, and their judgment upon that point was upheld on error in the Queen's Bench, and afterwards in the House of Lords. M. Smith, in reply.-In Owen v. Saunders the question arose on public acts of parliament, but this Act is (a) 11 M. & W. 827. (b) 7 B. & C. 257; and see Elwood v. Bullock, 6 Q. B. 383. 411. (c) 1 Ld. Raym. 158. (d) Referring to the Year Book, 21 Hen. 7, c. 37. merely in the nature of a conveyance obtained at the instance of the tenants for life, to which no person, except the tenants for life and those in remainder, is party or privy. [Channell, B., the words "for the general improvement of the estate" are put to limit the power.] Cur. adv. vult. The judgment of the Court was now delivered by WATSON, B.-We are of opinion the plaintiff is entitled to judgment. In right of his wife, tenant for life, he is possessed of the land in question. A private act of parliament enabled them to grant building leases, and contained a clause, as usual, that they might lay out and appropriate, or concur in laying out and appropriating any part of the land authorized to be leased as and for a way or ways, street or streets, avenue or avenues, square or squares, passage or passages, sewer or sewers, or other conveniences, for the general improvement of the estate, and the accommodation of the tenants and occupiers thereof. Land has been appropriated for a way, and a way has been laid out, which on the pleadings must be taken to be not a public way, and not a way over which at the time of its creation a right of way was granted to any one by any instrument under seal, but, as alleged in the rejoinder, a way laid out and made in exercise of the powers of the Act, and laid out and appropriated for the general improvement of the estate, and to the intent that the tenants might enjoy it, whatever that may mean. Two private rights of way have since been granted to tenants on this road. This being so, the defendant being a tenant of the estate under a lease in pursuance of the powers of the Act, contends that, though the way is not public, he is nevertheless entitled, under the provisions of the statute, to use it. Whether he is so entitled 1859. WHITE 0. LEESON. 1859. WHITE v. LEESON. was the question in the case. It must be answered in favour of the plaintiff. The defendant's contention is based on the words "for the general improvement of the estate," and it is supposed that under this expression every road laid out must be a public road, or, at all events, a road for all the tenants of the estate. For this we think there is no foundation. The general improvement of the estate may be promoted by private roads. The statute must have intended that there might be private rights of way granted. Even if not, the defendant would have no right, though the reversioner might avoid the act, as not within the power. But it is clear that land may be appropriated for the purpose, and one or more private ways afterwards granted over it. The argument for the defendant would go to shew that if a square of large houses was set out with an inclosure, all the tenants of the estate must have a right to walk in it, though they lived in cottages at a distance. It would also go to shew that no sewer could be made unless it drained all the houses. plaintiff is entitled to judgment. The Judgment for the plaintiff. |