THE LAW OF THE FARM.

APPENDIX (A) OF CASES CHIEFLY DECIDED FROM EASTER TERM, 1859, TO THE END OF HILARY TERM, 1863.

Payment of legacies out of sale of growing crops.-Growing crops are an interest in land within the statute of mortmain (13 & 14 Vic., c. 94), And per Stuart V.C.: "If growing crops pass under a devise of land, how is it possible to say that the legacies which the testator has given to these charities would be paid out of monies arising from the sale of pure personalty, if they were paid out of the sale of growing crops?" (Symons v. Marine Society).

Easement of "grass for a cow" creates no interest in land.—A gift by will, dated in 1838, to J. M." of the house she lives in, and grass for a cow in G field," part of another estate, passes an estate in fee in the house, but does not create a permanent interest in the land of the other estate.

B

And per Sir J. Romilly M.R.: "The grass for a cow was not necessary for the enjoyment of the house; it passed no interest in the land, but merely gave a personal right to Jane Malcolmson by way of easement to pasture a cow on a field given absolutely to another, as long as she thought fit" (Reay v. Rawlinson).

Indivisible contract for interest in land.-In Hodgson v. Johnson (Jurist, April 2, 1859) plaintiff and defendant agreed by word of mouth that plaintiff should become a tenant in his stead, of a brick yard, and take the plant upon a valuation, and that defendant should settle with the landlord for the rent due, and for plaintiff becoming tenant upon the same terms as he held the premises. Plaintiff having entered into occupation, and worked the ground, a distress was put in for rent due from defendant to the landlord; and in an action to recover damages for breach of defendant's promise to pay the rent, it was held by the Court of Queen's Bench that the promise in respect of which the plaintiff sued was part of an indivisible contract for an interest in land within sec. 4 of stat. 29 Car. II. c. 3, and that therefore plaintiff could not recover. And per Campbell C.J.: "The principle of the decision in Green v. Saddington [see Law of the Farm, p. 51] is, that there were in that case two separable contracts not that there was one contract which might be split in two, and that a new consideration was constituted on the part performance of the contract." And per Crompton J.: "I entertain a strong opinion upon Green v. Saddington, where it was thought by the majority of the Court that the contract being executed as far as regarded the land, and the promise sued on relating wholly to money, the plaintiff might recover. That decision can only be defended on the ground that there were two contracts. In this case it is clear that there is only one, and one part of it cannot be severed from the other."

Contract by parol to live at a boarding-house.—Where the defendant agreed by parol with plaintiff, who kept a boarding-house, to pay for the board and lodging of himself and servant, and accommodation for a horse, £200 a year from a given day, terminable by either party at a quarter's notice this was held not to be a contract in or concerning land within the Statute of Frauds, and plaintiff could maintain an action for the breach of it. And per Blackburn J.: "In Inman v. Stamp, (1 Stark, N. P. 12), and Edge v. Strafford, (1 C. and J., 391), there would have been an actual demise, had the contract been executed giving such a right. In the present case, there was no contract that defendant should become tenant or occupier of any specific room, and therefore there was no intention to pass any interest in that room" (Wright v. Stavert).

Right of mortgagee of tenant's fixtures to enter and sever them.-The mortgagee of tenant's fixtures has a right or interest in the land, which the tenant who has mortgaged cannot defeat by a subsequent surrender of the lease to his landlord; and if he does so surrender, the mortgagee has a right to enter and sever such fixtures, and may maintain an action against an incoming tenant who has prevented him from exercising such right, and recover the value of the fixtures as severed. And per Curiam: "This doctrine has been fully adopted and acted on

in modern cases, as in Pleasant v. Benson (14 East, 234), Dd. Bleadon v. Pyke, (5 M. & S., 146), and Pyke v. Eyre (9 B. & C., 909). The question is thus reduced to the inquiry whether the mortgagee's right to sever the fixtures from the freehold is a right or interest' within the meaning of this rule of law, and we are of opinion that it is. Certainly it is an interest of a peculiar nature in many respects, rather partaking of the character of a chattel than of an interest in real estate; but we think it is so far connected with the land that it may be considered a right or interest in it, which, if the tenant grants away, he shall not be allowed to defeat his grant by a subsequent voluntary act of surrender" ((London and Westminster Loan Company v. Drake). The price of fixtures, as such, cannot be recovered under the common count of goods sold and delivered (Lee v. Risdon, Taun. 189); but it would be otherwise if they had been first removed (Wilde v. Waters, 16 C.B., 637; Dalton v. Whittem, 3 Q. B.. 961 [see Law of the Farm, p. 365]; and Pitt v. Shew, -4 B. & Ald., 206).

CHAPTER III.

EASEMENTS.

Free passage of air to a windmill. It was held in error, affirming the decision of the Court of Common Pleas, that a right of free passage of air is not an easement within the meaning of section 2 of the Prescription Act, 2 & 3 W. IV. c. 71. A grant of a free passage of air to a windmill over the soil of another cannot be presumed from twenty years' use of the windmill, for the presumption of a grant only arises in cases where the owner of the servient tenement had it in his power to prevent the enjoyment, and did not; and it is not practically in the power of an owner of neighbouring land to preclude the passage of air to a windmill. And per Wightman J.: "We think, in accordance with the judgment of the Common Pleas and Chasemore v. Richards (7 H. L. Cas., 349, and 29 L. J., N.S., Ex., 81) [see Law of the Farm, pp. 128, 129], that the presumption of a grant from long-continued enjoyment, only arises where the person against whom the right is claimed might have interrupted or prevented the exercise of the subject of the proposed grant. As was observed by Lord Wensleydale, it was going very far to say a man must go to the expense of putting up a screen to window-lights to prevent a light being gained by twenty years' enjoyment" (Webb v. Bird). The ruling of the Court of Common Pleas was affirmed in the Exchequer Chamber.

Prescriptive right to light for windows.-A and B occupied adjoining houses, as tenants to the same landlord, under long leases, which were made on the same day, and to expire at the same time. B, by building on his own premises, obstructed the access of light to a window in A's house, through which the light had passed without interruption for more than twenty years; and it was held by the Court of Exchequer Chamber that A, by the twenty years' user, had acquired a right to the light, and might maintain an action against B for obstructing it, though they occupied these premises as tenants and under the same landlord; and the observations of Coleridge J. and Cresswell J., speaking of the 3rd section of the Prescription Act in Truscott v. Merchant Taylor's Company (11 Ex., 863; and 21 L. J., N.S., Ex., 173), were cited in support of their views. The former learned judge observed: "The third section seems to simplify and almost new found the mode of acquiring the right to access of light. It founds it on actual enjoyment for the full period of twenty years without interruption, unless that enjoyment is shown to have been by consent or agreement expressly made by deed or writing,