their object, will give to the word the meaning which the parties intended it to bear (u). The length of time which will invest a hereditament with the quality of an appurtenance is not capable of accurate definition, but in order to pass as appurtenant by the assignment of a lease, it should acquire the reputation of being parcel of the premises comprised in the demise (v). Easements and privileges legally appurtenant to property pass by a conveyance of the property simply without any additional words; but easements and privileges may be used or enjoyed with, or may be reputed to appertain to, property, and may be capable of being conveyed with it, without being legally appurtenant; and such easements will not pass by a conveyance of the property simply, or without being expressly mentioned (w). If, however, any right of way or other easement is intended to be demised, the lease should extend to all ways or other easements appertaining to the demised premises, or used and enjoyed with any part thereof(x), because the operation of the word "appurtenances will be restrained to a previously existing right, and will not include, for instance, a right of way over the (u) See Barlow v. Rhodes, 1 Cr. & M. 439, per Lord Lyndhurst ; Morris v. Edgington, 3 Taunt. 24. (v) Higham v. Baker, Cro. Eliz. 16; Jennings v. Lake, Cro. Car. 168. (w) See Davidson's Conveyancing, vol. i. 87; James v. Plant, 4 A. & E. 749, 5 B. & Ad. 791; Barlow v. Rhodes, 1 Cr. & M. 439; Bower v. Hill, 2 Bing. N. C. 339; Thomas v. Thomas, 2 Cr. M. & R. 34; Murley v. M'Dermott, 8 A. & E. 138; Hinchcliffe v. Earl of Kinnoul, 5 Bing. N. C. 1; Onley v. Gardiner, 4 M. & W. 496; Clayton v. Corby, 2 G. & D. 174; Worthington v. Gimson, 29 L. J. Q. B. 116; Suffield v. Brown, 33 L. J. Ch. 249; Crossley v. Lightowler, 36 L. J. Ch. 584; Pyer v. Carter, 1 H. & N. 916; Polden v. Bastard, L. R. 1, Q. B. 158. (x) Whalley v. Thomson, 1 B. & P. 376; Harding v. Wilson, 2 B. & C. 100; Kooystra v. Lucas, 5 B. & Ald. 831; Barlow v. Rhodes, 1 Cr. M. & N. 439. soil of the lessor which had been extinguished by unity of ownership; and such a privilege will not pass to the lessee unless it be a way of necessity, without the introduction of words showing the lessor's intention to create the right or servitude de novo (y). Where there is no right of way, properly so called, but only a road used by the owner who leases the premises, and then accepts a surrender of part with all ways, &c., therewith now used and enjoyed, this does not give the owner a right of way. Such words will revive a right of way which once existed, but which remained in abeyance during the joinder of the dominant and servient tenements, but they will not create a right of way (≈). and reserva After the parcels are set out, exceptions and reser- Exceptions vations are often inserted in favour of the lessor. An tions. exception, being the act of the lessor, is construed strictly against him (a). An exception must consist of some component existing part of the thing demised, capable of being severed and distinguished from it; while a reservation (b) extends to some right or profit 3 Leon. 29, case 57, 54; case 79, which previously had no separate existence, but is to issue from or be derived out of the thing leased. The word "excepting" is often applied both to reservations and exceptions. But as they require remedies wholly different, they should be carefully distinguished (c). The requisites to make a good exception are enumerated in "Sheppard's Touchstone" (d):-1. The exception must be in apt words, as "saving," "excepting," &c. 2. It must be part of the thing demised, as timber trees (e), mines, and quarries; and not of some other thing, as rent-heriot, suit of court, suit of mill, which are reservations (); or liberty of hawking, hunting, fishing, and fowling, which are privileges or rights granted to the lessor, though words of reservation and exception be used (g). But where there was a lease of certain lands, together with all houses, water-courses, &c., excepting "a water-course flowing or descending from" a certain spot, through a meadow; it was held in this peculiar case to be an exception of the water itself, not of the channel through which it flowed (h). 3. It must be part only, and not the greater part. 4. It must be of such a thing as is severable from the thing granted, and not an inseparable incident. Thus if a lease be made of a (c) Com. Dig. tit. Faits (E), 8; Pannell v. Mill, 3 C. B. 625; Fancy v. Scott, 2 M. & Ry. 335; Mitcalfe v. Westaway, 17 C. B. N.S. 658, 34 L. J. C. P. 114; Proud v. Bates, 11 Jur. N.S. 441, Wood, V.C.; Doe d. Douglas v. Lock, 2 A. & E. 743; Wickham v. Hawker, 7 M. & W. 76; Lord Cardigan v. Armitage, 2 B. & C. 197; Bullen v. Denning, 5 B. & C. 842; Goodright d. Peters v. Vivian, 8 East. 190; Moore v. Earl of Plymouth, 3 B. & Ald. 68. (d) Page 77. (e) As to the meaning of timber trees, see "Cragg on Trees and Woods." (f) See Doe d. Douglas v. Lock, 2 A. & E. 743. (g) Wickham v. Hawker, 7 M. & W. 76. See Fancy v. Scott, 2 M. & R. 335; Blatchford v. Plymouth, 3 Bing. N. C. 691; Co. Litt. 47 a, 143 a. (h) Doe d. Egremont v. Williams, 17 L. J. Q. B. 154. See Blatchford v. Mayor of Plymouth, 3 Bing. N. C. 691. rectory except the glebe, the exception is void, for no rectory can exist without a glebe; and so of a manor without the demesnes (). 5. It must be of such a thing as he that doth except may have, and which properly belongs to him. Thus it must be of a particular thing out of a general, and not of a particular out of a particular, as of one acre out of twenty, or of a demise of house and shops, except the shops (j.) It must be certainly described and set down; as if a man grant all his lands in Essex, except his lands in Dale, or excepting one particular acre, such exception is good; but if the exception be of a chamber in a house, or of an acre, without saying which chamber or acre, the exception is void. But an agreement to let a farm, less a stated number of acres, will be supported in equity, though the lands to be excepted are not specified. Thus where a rector agreed to let a farm, except thirty-seven acres (not saying which), and the tenant took possession, but before the lease was executed, disputes arose respecting the lands to be taken by the rector, on a bill being filed against the tenant for non-performance of the agreement, it was held that the rector had a right to select the lands, as the lease had not been executed (k). A lease of lands excepted "all timber, timber trees, and other trees, &c., bushes and thorns, other than such bushes and thorns as should be necessary for the "repairs of the fences," the lessee covenanting to keep the fences in repair, and the lessor to find and provide, if growing on the premises, rough timber stakes and bushes; it was held that the provision as to bushes and thorns necessary for repairs was not an exception out of an exception, but that all trees, bushes, (i) Mabie's case, Winch. 23. (j) 2 Roll Abr. 453, 454; Dorrell v. Collins, Cro. Eliz. 6. See Cudlip v. Rundall, 3 Salk. 156. (k) Jenkins v. Green, 28 L. J. Ch. 817. and thorns were excepted out of the demise, whether part of a fence or not, or whether necessary for repairs or not (1). The same rule as to what is included in the particular thing leased or granted applies to exceptions (m). Therefore an exception of all the wood will be an exception of the soil whereon the wood grows (n), unless it clearly appear that it was merely the intention of the parties to except only the wood itself (o). Thus in Leigh v. Heald (p), by the lease of a tenement described as containing nineteen acres, save and except all timber trees, wood, and underwoods, &c., six acres of the soil, which at the time of the lease were covered with growing wood, were not excepted. The question is, whether the expression extends to the place on which the trees grow, or merely to the trees, and must be governed by the intention, to be collected from the whole of the instrument. A valid exception or reservation out of the demised premises cannot be made to a person who is a stranger to the estate. Thus upon a conveyance of lands in fee by a mortgagee, which was confirmed by the mortgagor, to the purchaser, it was covenanted that it should be lawful for the mortgagor, his heirs and assigns, to search for coal in the premises, and to take and carry away what should be found. It was held that this covenant could not operate as an exception. or reservation in favour of the mortgagor, since he had no legal estate in him, and was in law no more than (1) Jenney v. Brook, 6 Q. B. 323. (m) Shep. Touch. 100. See Hewitt v. Isham, 7 Exch. 77; Liford's case, 11 Co. R. 51 b. (n) Ive v. Sams, Cro. Eliz. 521; Bacon v. Gyrling, Cro. Jac. 296; Whistler v. Paslow, Cro. Jac. 487. (0) Pincomb v. Thomas, Cro. Jac. 524. See Smith v. Bole, Cro. Jac. 458. See (p) 1 B. & Adol. 622. also London v. Southwell, Hob. 304; Wyndham v. Way, 4 Taunt, 316. |