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 Best & S. 583, 584.)

Where the owner of two or more adjoining houses sells one of them, the purchaser of such house is, without any express reservation or grant, entitled to the benefit of all the drains from his house; and is, on the other hand, subject to all the drains necessary for the enjoyment of the adjoining house. Such necessity is to be considered with reference to the time of the conveyance, and without reference to whether any other outlet could be made for the drainage. (Pyer v. Carter, 1 H. & N. 916; 26 L. J., Exch. 258. See Ewart v. Cockrane, 4 Macq. H. L. C. 117.) An owner of two adjoining properties, consisting of a tan-yard and a house and garden, made a cesspool in a corner of the garden, and a drain to carry the water into it from the tan-yard, which gradually sloped down towards the garden. Afterwards he sold the two properties to different persons. The conveyances made no allusion to the existence of the drain and cesspool: it was held, that the easement passed by an implied grant with the tan-yard. (Ib.)

A. was owner of the E. estate, adjoining the sea-shore, and let N., part of the estate, to a tenant, with express liberty to take sea-weed from the shore to manure his lands. N. was a farm lying inland, no part of it being nearer than about two miles from the shore. N., while so occupied, was sold to F., and the lands were described in the conveyance as the same are presently possessed by the tenant. No express mention was made of any easement to take sea-weed, and there were only the general words, together with all the appurtenances. F. claimed an easement to go and collect the sea-weed adjoining A.'s estate to manure his lands: it was held, there being no express words of conveyance of such an easement, and the period of prescription not having elapsed, the easement did not pass under the words together with the appurtenances. (Baird v. Fortune, 7 Jur., N. S. 926; 10 W. R. 2; 5 L. T., N. S. 2, H. L.)

Where, at the time of the grant in respect of which the right of way is claimed, there was a way from the house into the garden, and that way continued to exist, another way of necessity, where the deed contains no reservation of a right of way, cannot be claimed on the ground of its being more convenient than the other way. An owner of land built a house on the front of it, with a cottage at the back, the access to the cottage being by a passage through the house. He conveyed the cottage to B. in fee, with the right of passage, and two years afterwards he conveyed the house, with a garden, to D. in fee. From the time the house was built, D. and the prior owners and occupiers of it used a part of the passage, which was included in the ground conveyed to B., for the purpose of passing between the house and the garden and offices, through a doorway opening from that part of the passage into the garden. There was, however, another mode of getting to the garden through a room in the house. Within twenty years of the building of the house, B. blocked up the doorway: it was held, that D. had not, as owner of the house, any right of way over the part of the passage either by grant or necessity. (Dodd v. Burchall, 8 Jur., N. S. 1180; 1 H. & Colt. 113; 31 L. J., Exch. 364.)

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.)

The grantee of a way has a right to repair it, as incident to the grant Repair of way. (Com. Dig. Chimin (D. 6); Godb. 53; Gerrard v. Cooke, 2 Bos. & P. N. R. 109; Vin. Abr.. Incidents (A.)), and the grantor is not bound to repair (Com. Dig. Chimin (D. 6), unless by express stipulation or prescription. (1 Saund. 322, a, n.; Rider v. Smith, 3 T. R. 766.) The grantee of a private way is to make it. (Osborn v. Wise, 7 Car. & P. 764.) By common law he who has the use of a thing ought to repair it, unless the grantor has bound himself to do so. (Taylor v. Whitehead, 1 Doug. 720; Pomfret v. Ricroft, 1

Wms. Saund. 322, b.) Although at common law the grantee of a way ought to repair it, that is not a condition incident by law to the grant of a right of way; it is not even an obligation to which the grantee is subject; it is no more than this, that if he wants the way to be repaired he must repair it himself. (Per Coleridge, J., Duncan v. Louch, 6 Q. B. 909, 910.)

In an action on the case for obstructing a right of way between two specified termini over a close called the Terrace Walk, the way was claimed as appurtenant to a messuage, in general terms, without reference to any obligation to repair. On the trial of an issue joined on a traverse of the right of way, the easement proved was a right to pass forwards and backwards over every part of the close, and not merely between the termini specified in the declaration; and it was shown that the easement was enjoyed under a grant thereof to D., his heirs, tenants and assigns, and to certain other persons, he, they and every of them from time to time contributing and paying a rateable share and proportion towards repairing and amending the Terrace Walk: it was held no variance, the easement proved being only larger than the easement alleged, and not different in kind; and it was also held, that the obligation to repair was not in the nature of condition precedent, and need not be alleged in the declaration. (Duncan v. Louch, 6 Q. B. 904.)

A. granted to B., his heirs and assigns, occupiers of certain houses abutting upon a piece of land about eleven feet wide, which divided those houses from a house then belonging to A., the right of using the said piece of land as a foot or carriage way, and gave him "all other liberties, powers and authorities incident or appurtenant, needful or necessary to the use, occupation or enjoyment of the said road, way or passage:" it was held, that under these words B. had a right to put down a flagstone in this piece of land in front of a door, opened by him out of his house into this piece of land. It was observed by Chambre, J., that the nature of the thing was material in considering the effect of the words. The way was granted for the occupation of a dwelling-house, and the grantee ought to have everything needful for the occupation of his dwelling-house; he ought therefore to have the opportunity of repairing the way in such a mauner, that it should not be wet or dirty, when he or his family or his visitors enter. If any inconvenience had been occasioned to the grantor, it might make a difference; but that was not the case here, nor was it to be feared that any right could hereafter be set up in respect of the soil in consequence of this stone having been put down, for the precise extent of the road was pointed out. (Gerrard v. Cooke, 2 Bos. & P. N. R. 109.)

Under the 9th section of the General Inclosure Act, 41 Geo. 3, c. 109, a road continued as well as a road newly made, under the award of commissioners of inclosure, must be declared by justices in special sessions to be fully completed and repaired, before the inhabitants of the district are liable to repair. (Rex v. Inhabitants of Hatfield, 4 Ad. & Ell. 156.) Parishes are not liable to the repair of any road or occupation way made at the expense of an individual, or of any roads to be set out as a private drift-way or horse-way in any award of commissioners, unless they are made to the satisfaction of the surveyor of the highways and of two justices of the peace. (5 & 6 Will. 4, c. 50, s. 23.) This provision is not retrospective in respect of roads completely public by dedication at the time of the passing of the act (31st August, 1835); but applies to roads then made and in progress of dedication. (Reg. v. Westmark, 2 M. & Rob. 305.)

A road, the soil and freehold of which were in A., ran from a highway to a well. The land upon each side of the road belonged to B. B. built a wall along the high road across the mouth of the road to the well, leaving a stile for foot passengers, and levelled the fences on each side of the road. There was a dispute as to whether those acts of B. had been done twenty years before the action was brought. Upon the trial of an action of trespass brought by A. against B., the jury was unable to agree whether the acts of B. had been done within twenty years, but found that the public, down to the commencement of the action, had exercised a right of way to the well, since the erection of the stile on foot, and before with horses and carriages. The judge thereupon discharged them from a finding upon the time when

B.'s acts were done, and directed a verdict for the plaintiff: it was held (Pigot, C. B., dissenting), that this was a misdirection, and that if B.'s acts were done more than twenty years before the action was brought, A.'s title was barred by the Statute of Limitations, 3 & 4 Will. 4, c. 27. (Tottenham v. Byrne, 12 Ir. Com. Law Rep., N. S. 376.)

Where a person having a right of way over the land of another purchases such land, the right of way is extinguished by the unity of seisin and possession. (Heigate v. Williams, Noy, R. 119.) There is, however, a distinction between a right of way which is of necessity and a right of way which is merely an easement, for in the latter case it is not extinguished by unity of possession. (Sury v. Pigot, 3 Bulstr. 340; Noy, R. 84.)

It does not appear to have been decided what is the precise period requisite to extinguish a right of way by mere non-user. Lord Tenterden said, "One of the general grounds of a presumption is, the existence of a state of things, which may most reasonably be accounted for, by supposing the matter presumed. Thus the long enjoyment of a right of way by A. to his house or close, over the land of B., which is a prejudice to the land, may most reasonably be accounted for by supposing a grant of such right by the owner of the land; and if such right appear to have existed in ancient times, a long forbearance to exercise it, which must be inconvenient and prejudicial to the owner of the house or close, may reasonably be accounted for by supposing a release of the right. In the first class of cases, therefore, a grant of the right, and in the latter a release of it, is presumed." (Doe d. Pentland v. Hilder, 2 B. & Ald. 791.) Littledale, J., expressed a similar opinion. He said, according to the present rule of law, a man may acquire a right of way or a right of common (except indeed common appendant) upon the land of another by enjoyment; after twenty years' adverse enjoyment, the law presumes a grant made before the user commenced by some person who had power to grant; but if the party who had acquired the right by grant ceased for a long period of time to make use of the privilege granted to him, it may then be presumed that he has released the right. It is said, however, that as he can only acquire the right by twenty years' enjoyment, it ought not to be lost without disuse for the same period; and that as enjoyment for such a lengh of time is necessary to found a presumption of a grant, there must be a similar non-user to raise a presumption of a release, and this reason may perhaps apply to a right of common or of way. (Moore v. Rawson, 3 B. & C. 339.) Although the grant of an occupation way cannot be presumed from a user of less than twenty years, yet it is not necessary, in order to destroy the right to such an easement, that a cesser of the use for twenty years should be proved. (Reg. v. Chorley, 12 Jur. 822, Q. B.; 12 Q. B. 515.) A cesser of the use for any period less than twenty years, accompanied by an act clearly indicative of an intention to abandon the right, is sufficient to destroy such an easement. (Ib.) If the owner of land has granted to an individual the easement of an occupation way over it, then the subsequent absolute dedication by him of a footway to the public, in the same place, cannot be presumed, without also presuming, or proving in fact, a release of the easement by the individual; for without the release the owner can only be supposed to have given what he himself had, a right of user not inconsistent with the easement. (lb.) In order to prove a grant of an occupation way through a lane to the defendant's premises, he offered two deeds, which purported to be grants by the owners of the soil of an occupation way through the lane, to tenants of premises situated on the opposite side of the lane from the defendant's premises: it was held, that the deeds were wrongly admitted for that purpose. (Ib.)

It was laid down in another case, that where a right of way has been once established by clear evidence of enjoyment, it can be defeated only by distinct evidence of interruptions acquiesced in; an unsuccessful attempt on the part of the occupiers of the land, over which the way ran, from time to time, to interrupt such right, will not be sufficient to get rid of it. (Harvie v. Rogers, 3 Bligh, N. S. 444-447. See 12 Ves. 265; Norbury v. Meade, 3 Bligh, 211, 241.) It will be observed, that by the 4th section of the statute 2 & 3 Will. 4, c. 71, (ante, p. 17,) no act is to be deemed an interruption, unless the same shall have been acquiesced in for one year after the party

S.

G

Loss of right of way by alteration

of land over which it passed.

interrupted shall have notice thereof, and of the person making or authorizing the same to be made. A prescriptive right of way to a public towing-path on the banks of a navigable tide-river, is not destroyed by that part of the river adjoining the towing-path having been converted by statute into a floating harbour, although such towing-path was thereby subject to be used at all times of the tide; whereas before it was only used at those times when the tide was sufficiently high for the purposes of navigation; and such prescription is not destroyed by a clause in the statute whereby the undertakers of the work were authorized to make a towing-path over land, comprising the towing-path in question, on paying a compensation to the owner of the soil. (Rex v. Tippett, 3 B. & Ald. 193.)

The discontinuance for upwards of twenty years of the use of an immemorial right of way to a close, because the occupiers had a more convenient access to it over another close, is not evidence of an intention to abandon the right. (Ward v. Ward, 21 Law J., Exch. 334.) Alderson, B., observed in this case, "The presumption of abandonment cannot be made from the mere fact of non-user. There must be other circumstances in the case to raise that presumption. The right is acquired by adverse enjoyment. The non-user, therefore, must be the consequence of something, which is adverse to the user." A parol agreement for the substitution of a new way for an old prescriptive way, and the consequent discontinuance to use the old highway, afford no evidence of the abandonment thereof. (Lovell v. Smith, 3 C. B., N. S. 120.) In this case the plaintiff, having a right of way by prescription more than thirty years previously, agreed with the owner and occupier of the servient tenement, that the use of a portion of that way should be discontinued, and a new one equally convenient substituted for it, Willes, J., said, "I do not think that this court means to lay down that there can be an abandonment of a prescriptive easement like this, without a deed or evidence from which the jury can presume a release of it.” (Ib. pp. 126, 127.)

There does not appear to be any direct authority to show whether, if the use of a place, to and from which a way is by express words reserved or granted, be completely changed, the way can still be continued to be used. It has been held, that if a man has a right of way to a close called A., he cannot justify using the way to go to A. and from thence to another close of his own adjoining to A. (1 Roll. Abr. 391, pl. 3; Howell v. King, 1 Mod. 191; Lawton v. Ward, 1 Ld. Raym. 75; and 1 Lutw. 111.) It seems, however, that an alteration of the substance of the thing, in respect of which the right is claimed in such a manner as to occasion any injury or prejudice to the person who supplies the easement, will prevent the acquisition of any additional right of easement. (See Luttrell's case, 4 Rep. 86.) In trespass quare clausum fregit it appeared that B., being the owner of the locus in quo, and also of certain other land, with houses and a stable, loft and chaise-house, conveyed to A. a part of the premises, consisting of a house and land comprehending the locus in quo, reserving to himself, his heirs, &c., occupiers for the time being of a messuage, (not conveyed,) a right of way and passage over the locus in quo to a stable and loft over the same, and the space or opening under the loft and then used as a wood-house, and to the chaise-house standing on the side of the locus in quo (the stable, loft, wood-house and chaise-house not being conveyed), and also the use of the locus in quo in common with A., his heirs, &c., and their tenants for the time being, it being expressed to be the intent of the parties that the whole of the yard comprehending the locus in quo should be open and undivided, as the same then was, and be used in common by the occupiers of both messuages as the tenants thereof had been accustomed theretofore to use them; afterwards B. built a cottage on the site of the opening under the loft: it was held, 1. That the reservation of the use of the locus in quo did not authorize B. to use it for the purpose of passing to the cottage. 2. That the reservation of the right of way was not limited to a right of passage to the space so long as it was used as a wood-house; but gave a way generally to the space so described while it was open. 3. But that B. was not entitled to use that way for the purpose of passing to a newly-erected cottage on that space. (Allan v. Gomme, 11 Ad. & Ell. 759; 3 P. & Dav. 581.) Denman,

C. J., in giving judgment said, that the case depended upon the legal effect of the reservation. "Upon that we are of opinion that, under the terms of this deed, the defendant is not entitled to have the right of way claimed, but that he is to be confined to the use of a way to a place which should be in the same predicament as it was at the time of the making of the deed. We do not mean to say that he could only use it to make a deposit of wood there, for we consider the words now used as a wood-house,' merely used for ascertaining the locality and identity of the place called a space or opening under the loft, and we think he might have the benefit of the way to make a deposit of any articles, or use it in any way he pleased, provided it continued in the state of open ground; but we think that he could only use it for purposes which were compatible with the ground being open, and that if any buildings were erected upon it, it was no longer to be considered as open for the purpose of this deed. Suppose that this piece of ground, instead of being a small quantity, had been a field of many acres, and that B. had sold off the part above mentioned to the plaintiff, reserving to himself this right of way to the land, calling it a field then in pasture or in corn, and had subsequently filled the land with small cottages, or had built a factory or established gasworks, it surely never could be contended that it was the meaning of either of the parties to the deed that there should be a right of way over the yard to those buildings. The supposed intention of the parties cannot indeed be considered; and it can only be determined by the instrument itself what their intention was." (Allan v. Gomme, 3 Per. & Dav. 591; 11 Ad. & Ell. 759; see Osborn v. Wise, 7 Carr. & P. 761.) Parke, B., observed, that in Allan v. Gomme, "a more strict rule was laid down than he should have been disposed to adopt, for it was said that the defendant was confined to the use of the way to a place which should be in the same predicament as it was at the time of the making of the deed. No doubt if a right of way be granted for the purpose of being used as a way to a cottage, and the cottage is changed into a tan yard, the right of way ceases; but if there is a general grant of all ways to a cottage, the right is not lost by reason of the cottage being altered." (Henning v. Burnet, 8 Exch. 192.)

The plaintiff, being owner in fee of some land partly built upon, conveyed to the defendant a dwelling-house, with a coach-house and stable at the back thereof, and a field, together with all ways, waters, easements, &c., to the dwelling-house and field belonging or usually enjoyed therewith, with free liberty of ingress, egress and regress for the defendant with cattle and carriages over the carriage road and footpath leading to the said dwellinghouses, coach-houses and stables in the occupation of F. N. and the defendant. Previously to this conveyance a private road was used for carriages, cattle, &c., from the turnpike road to the defendant's coach-house and stable, and field, from which road there was a gate into the field. The defendant afterwards pulled down his coach-house and stable, and built a wall across the private road near their former site (inclosing a portion of the road which had been conveyed to him in fee), and he also opened a gate at the further corner of his field into the private carriage road, which he used instead of the former gate, and drove cattle and carriages along the road into the field and back again. It was held, that the defendant was liable in trespass, inasmuch as the grant of all ways to the field belonging or usually enjoyed therewith extended only to the user of the way as it existed at the time of the grant through the then existing gate, and the express grant was of a right of way to the dwelling-house, coach-house and stable only. (Henning v. Burnet, 8 Exch. 187.)

A company and the defendant each purchased lands of W., which were Right of way separated by a road over which a right of way was reserved to each (the when not lost by freehold remaining in W.) with a joint obligation to repair. In the con- alteration. veyance to the company the land purchased by them was described as containing thirty-one acres or thereabouts, "which, with the abuttals and boundaries thereof, were more particularly described in the map or plan thereof affixed to and forming part of the conveyance, together with full and free liberty, licence and authority for the company, their successors and assigns and tenants, and all persons coming to or going from the same