of common, see Minet v. Morgan, 11 Eq. 284; Warrick v. Queen's College, Of Rights of 3 Eq. 683.

As to the law of common in general, see Bac. Abr. Common; Com. Dig. Common; Cruise's Dig. tit. XXIII.; Woolrych on Rights of Common, 2nd ed.

Common.

(3.) OF THE PRESUMPTION OF GRANTS OF EASEMENTS; AND OF LICENCES.

exercise

during twenty

years.

For a long series of years prior to the passing of the act 2 & 3 Will. 4, Presumption c. 71, judges have been in the habit, for the furtherance of justice, and at common for the sake of peace, to leave it to juries to presume a grant from a long law of grant exercise of an incorporeal right, adopting the period of twenty years, by of incorporeal analogy to the Statute of Limitations, 21 Jac. 1, c. 16 (Holcroft v. Heel, 1 rights from Bos. & P. 460; 2 Saund. 175 a; Campbell v. Wilson, 3 East, 294; Read v. Brookman, 8 T. R. 151; Cowp. 110; Hillary v. Waller, 12 Ves. 266). Such presumption did not always proceed on a belief that the thing presumed had actually taken place, but, as said by a learned author (2 Stark. on Ev. 669), "a technical efficacy was given to the evidence of possession beyond its simple and natural force and operation; and though in theory it was mere presumptive evidence, in practice and effect it was a bar." The act 2 & 3 Will. 4, c. 71, is intended to make that possession a bar or title of itself, which was so before only by the intervention of a jury (Bright v. Walker, 1 C. M. & R. 217; see ante, p. 8).

A presumption of a grant is raised upon the general principle, that what has been done should be presumed to be rightly done; ex diuturnitate temporis omnia presumuntur solemniter esse acta (Co. Litt. 6 b). In applying this principle to a right of way, if it be found that the act has been often repeated, with the knowledge of the persons acting upon an adverse right, it affords a strong presumption in favour of the right so exercised. The same principle is applied to presumption in the case of light or of flowing water (3 B. & C. 621, 622). If there has been an uninterrupted possession of light, water, or any other easement for twenty years, it affords a ground for presuming a right by grant, covenant or otherwise, according to the nature of the easement, and if there is nothing to rebut the presumption, a jury may be directed to act upon it (Yard v. Ford, 2 Wins. Saund. n. (2); Cross v. Lewis, 2 B. & C. 686; Livett v. Wilson, 3 Bing. 115; see Williams v. Morland, 2 B. & C. 914, and the cases there cited). The rule was subject to this qualification, that the possession was with the acquiescence of him who was seised of an estate of inheritance; for a tenant for life or years has no power to grant any such right for a longer period than during the continuance of his particular estate (2 Wms. Saund. 174, n. (2); Daniel v. North, 11 East, 372; Barker v. Richardson, 4 B. & Ald. 579; Wood v. Veal, 5 B. & Ald. 454). But if the easement existed previously to the commencement of the tenancy, the fact of the premises having since been for a long period in the possession of a tenant will not defeat the presumption of a grant (Cross v. Lewis, 2 B. & C. 686).

A grant of mines will not be presumed against an express reservation of them, although the owner had allowed the person in possession of the surface to expend money in working them (Norway v. Rowe, 19 Ves. 156). The production of an express grant of the right to hold a market on Thursdays and Saturdays, precluded the presumption of a lost grant of a right to hold the market on other days (4. G. v. Homer, 14 Q. B. Div. 245).

In order to obviate the difficulty of proving an immemorial usage, it Pleading a formerly became a practice to plead a right of way by what was termed a non-existing non-existing grant (Blewitt v. Tregonning, 3 Ad. & Ell. 551); that is, a grant. feigned grant by deed (supposed to be lost) from a former freeholder of

Presumption the land, in or upon which the easement was exercisable, to a former of Grants. freeholder of the tenements in respect of which it was claimed, but it was necessary that the names of the parties to, and the date of, such supposed grant should be stated (Hendy v. Stephenson, 10 East, 55); but profert of the deed was excused if it was averred that the deed had been lost by time and accident (Read v. Brookman, 3 T. R. 151; see further as to such pleas, Livett v. Wilson, 3 Bing. 115; Doe v. Read, 5 B. & Ald. 232; Cowlisham v. Cheslyn, 1 Cr. & Jerv. 48; Chitty, Pl. 597, 6th edit.; Mounsey V. Ismay, 3 H. & C. 486; Bryant v. Foot, L. R. 2 Q. B. 181).

How far
Prescription
Act has
superseded

common law.

Necessity of a deed to pass incorporeal rights and easements.

The doctrine of presuming a lost grant was recognised by Lord Blackburn in Angus v. Dalton (6 App. Cas. 811; see Bass v. Gregory, 25 Q. B. D. 484). The growth of the doctrine was traced in the same case when before the Queen's Bench by Cockburn, C. J. (3 Q. B. D. 103 et seq.), who treated it as a presumption liable to be rebutted by evidence. The question what evidence is admissible for this purpose was considered in the same case by the Court of Appeal (4 Q. B. Div. 162); Thesiger and Cotton, L. JJ., holding that the presumption could not be rebutted by mere proof that no grant was in fact made (4 Q. B. Div. 172, 186); Brett, L. J., holding that such evidence would be admissible (4 Q. B. Div. 201; see opinion of Bowen, J., on this point, 6 App. Cas. 783). As to the application of the doctrine to the case of a faculty, see Halliday v. Phillips, 23 Q. B. Div. 48.

There is nothing in the act 2 & 3 Will. 4, c. 71, to interfere with a claim of a right of way or other easement by express grant (Bright v. Walker, 1 C. M. & R. 223, ante, p. 8; Livett v. Wilson, 3 Bing. 115; Plant v. James, 4 Ad. & Ell. 749, 765; Blewitt v. Tregonning, 3 Ad. & Ell. 554). Although that statute has facilitated the proof of profits à prendre and easements, it does not appear to have superseded the common law, so that a party may elect to proceed either under the statute or according to the common law (See Holford v. Hankinson, 5 Q. B. 584; Aynsley v. Glover, 10 Ch. 283). In Onley v. Gardiner (4 M. & W. 496), where the defendant failed in proving a sufficient title under the statute, in consequence of an unity of possession, the court after argument, in which it was held that such unity defeated the title under the statute, allowed the defendant to amend his plea, by pleading a right of way immemorially (See Richards v. Fry, 3 Nev. & P. 72; Welcome v. Upton, 5 M. & W. 403, 404; Parker v. Mitchell, 11 Ad. & Ell. 788; Lowe v. Carpenter, 6 Ex. 825). In the case of light, where unity of possession was raised as an objection to the plaintiff's title under the statute, it was held that he had established his title independently of the statute by proof of enjoyment from time immemorial (Aynsley v. Glover, 10 Ch. 283; Lanfranchi v. Mackenzie, 4 Eq. 426). See, however, Tapling v. Jones (11 H. L. C. 290), where Lord Westbury laid down that the right to what is called an ancient light now depends upon positive enactment. It is a matter juris positivi, and does not require, and therefore should not be rested on, any presumption of a grant. (See also Truscott v. Merchant Taylors' Co., 11 Exch. 855; Frewen v. Phillips, 11 C. B. N. S. 449.)

It is frequently advisable to plead together in the same case pleas of prescription by the statute, of prescription at common law, and of a nonexisting grant (Bullen & Leake, Prec. Plead. 517, 4th ed.) These pleas were pleaded together in Bailey v. Stevens, 12 C. B. N. S. 91; Norfolk v. Arbuthnot, 4 C. P. D. 293.

In the case of tithes, where a party pleads a modus existing from time immemorial, he may proceed just in the same way as he might have done before 2 & 3 Will. 4, c. 100, was passed (Stamford v. Dunbar, 13 M. & W. 822).

A right of way, or a right of passage for water (where it does not create an interest in land) is an incorporeal right, and stands upon the same footing with other incorporeal rights, such as rights of common, rents, advowsons, &c. It lies not in livery, but in grant, and a freehold interest therein cannot be created or passed otherwise than by deed (Hewlins v. Shippam, 5 B. & C. 221). A term for years cannot be created without

of Grants.

deed in an incorporeal hereditament (14 Vin. Abr. tit. Grant (Ga); 2 Roll. Presumption Abr. 63, tit. Grant (G); Co. Litt. 85 a; 5 B. & C. 882; Wood v. Leadbitter, 13 M. & W. 842, 843), such as a several fishery (Somerset v. Fogwell, 5 B. & C. 875; Neill v. Devonshire, 8 App. Cas. 135), or a right of sporting (Bird v. Higginson, 6 Ad. & Ell. 824). Where by a written agreement not under seal, the plaintiff agreed to let land to the defendant, with a right of sporting, the defendant to make satisfaction for the damage done by game, it was held that the right of sporting did not pass, but that the agreement to make compensation was good ground for an action, the defendant having had the full benefit of such agreement. An agreement to execute a conveyance of an incorporeal hereditament is valid as an agreement, though it does not operate to pass an estate (Thomas v. Fredericks, 10 Q. B. 775; see Smart v. Jones, 33 L. J. C. P. 154). A licence to a stranger to use a common can only be by deed (Hoskins v. Robins, 2 Wms. Saund. 328, and n. 12; Shep. Touch. 330; Monk v. Butler, Cro. Jac. 574). A licence or liberty cannot be created and annexed to an estate of inheritance or freehold without deed (Shep. Touch. 231). Whatever may be the effect of a parol licence by the owner of land to fence off part of a common and to build a house thereon as against such owner, it is clear that a grant of a freehold interest running with the inheritance cannot be binding on a stranger to the grantor, unless the grant was by deed (Perry v. Fitzhowe, 8 Q. B. 757; see Ramsey v. Rawson, 1 Vent. 18--25). It seems questionable whether a custom to demise by parol a right of common can be supported at law (Lathbury v. Arnold, 1 Bing. 219; see R. v. Lane, 5 B. & Ald. 488). It requires a deed to create the right to have light and air come unobstructed from the land of one owner to the newly-opened window of an adjoining owner (Blanchard v. Blanchard, 1 Ad. & Ell. 536; Blanchard v. Bridges, 4 Ad. & Ell. 195; see post, note on lights). Where a landlord by letter authorized a tenant whose term had expired to enter on the land for the purpose of removing certain articles: it was held, that the landlord's letter, not being under seal, was no valid grant of such privilege as against a new tenant in possession, and not party to the licence (Roffey v. Henderson, 17 Q. B. 574). See also Corcor v. Payne, I. R. 4 C. L. 380.

By sect. 49 of the Conv. Act, 1881, the word " grant" is not necessary to convey incorporeal hereditaments; and by sect. 62, easements may be granted by way of use.

In Thomas v. Sorrell (Vaugh. 351), Vaughan, J., says:-"A dispensation Nature of a or licence properly passeth no interest, nor alters or transfers property in licence. anything, but only makes an action lawful, which, without it, would have been unlawful. As a licence to hunt in a man's park, to come into his house, are only actions which, without licence, had been unlawful. But a licence to hunt in a man's park, and carry away the deer killed to his own use, to cut down a tree in a man's ground, and to carry it away the next day after to his own use, are licences as to the acts of hunting and cutting down the tree, but as to the carrying away of the deer killed and tree cut down, they are grants." A mere licence is revocable, but that which is called a licence is often something more than a licence; it often comprises or is connected with a grant, and then the party who has given it cannot in general revoke it, so as to defeat his grant, to which it was incident. It may further be observed, that a licence under seal (provided it be a mere licence) is as revocable as a licence by parol; and on the other hand, a licence by parol, coupled with a grant, is as irrevocable as a licence by deed, provided only that the grant is of a nature capable of being made by parol. But where there is a licence by parol, coupled with a parol grant, or pretended grant, of something which is incapable of being granted otherwise than by deed, there the licence is a mere licence; it is not an incident to a valid grant, and it is therefore revocable. Thus a licence by A. to hunt in his park, whether given by deed or by parol, is revocable: it merely renders the act of hunting lawful, which, without the licence, would have been unlawful. If the licence be, as put by Chief Justice Vaughan, a licence not only to hunt, but also to take away the deer when

of Grants.

Presumption killed to his own use, this is in truth a grant of the deer, with a licence annexed to come on the land: and supposing the grant of the deer to be good, then the licence would be irrevocable by the party who had given it; he would be estopped from defeating his own grant, or act in the nature of a grant. But suppose the case of a parol licence to come on my lands, and there to make a watercourse, to flow on the land of the licensee, in such a case there is no valid grant of the watercourse, and the licence remains a mere licence, and therefore capable of being revoked. On the other hand, if such a licence were granted by deed, then the question would be on the construction of the deed, whether it amounted to a grant of the watercourse; and if it did, then the licence would be irrevocable (Per Alderson, B., Wood v. Leadbitter, 13 M. & W. 844, 845).

Parol licence
for easement

now enforce-
able where

A verbal agreement or licence for an easement may now be enforced where there has been part performance (McManus v. Cooke, 35 Ch. D. 681; see the earlier cases in equity deciding that a parol licence was irrevocable where expense had been incurred and there had been acquiescence, Devonpart perform-shire v. Eglin, 14 Beav. 530; Moreland v. Richardson, 22 Beav. 596; Mold v. Wheatcroft, 27 Beav. 510; Laird v. Birkenhead R. Co., Johns. 500; Bell v. Midland R. Co., 3 De G. & J. 673; Bankart v. Tennant, 10 Eq. 141; Newby v. Harrison, 1 J. & H. 393; and see as to mining leases, Carr v. Benson, 3 Ch. 524).

ance.

Earlier cases
in equity.

Cases at law.

Parol licence

in some cases

Formerly at common law a parol licence was as a rule revocable at any time, although the licence had been executed and expense incurred by the licensee (R. v. Hornden-on-the-Hill, 4 M. & S. 565; see R. v. Geddington, 2 B. & C. 129; R. v. Hagworthingham, 1 B. & C. 634; R. v. Warblington, 1 T. R. 241; R. v. Standon, 2 M. & S. 461). An agreement to let a party have a trench for water, though given for a valuable consideration, if there was no conveyance, was held a parol licence (Fentiman v. Smith, 4 East, 107; Hewlins v. Shippam, 5 B. & C. 221; Cocker v. Cowper, 1 C. M. & R. 418). The right to be buried in a particular vault was held to be an casement capable of being created by deed only; and therefore a parol agreement not under a seal was held to confer no right, though the plaintiff had paid a valuable consideration on the faith of its validity (Bryan v. Whistler, 8 B. & C. 298; see Adams v. Andrews, 15 Q. B. 284). But even at law it was formerly held that a man might in some cases by parol licence relinquish irrevocably a right which he had irrevocable at acquired in addition to the ordinary rights of property. Thus a parol licence to put a skylight over the defendant's area (which impeded the light and air from coming to the plaintiff's dwelling-house through a window), could not be recalled at pleasure, after it had been executed at the defendant's expense, at least not without tendering the expenses he had been put to (Winter v. Brockwell, 8 East, 308). So where the plaintiff's father gave the defendant leave, by parol, to lower the bank of a river and to erect a weir, whereby a part of the water which before flowed to the plaintiff's mill was diverted: it was held that his son could not maintain an action against the defendants for continuing the weir (Liggins v. Inge, 7 Bing. 682; see Blood v. Keller, 11 Ir. C. L. R. 124). A licence was also irrevocable when connected with a grant (Wood v. Leadbitter, 13 M. & W. 844). A licence to dig for tin and to dispose of the tin obtained was held to be irrevocable on account of its carrying an interest in the ore (Doe v. Wood, 2 B. & Ald. 738; see Northam v. Bowden, 11 Exch. 70; and as to the nature and effect of a licence to dig coal, see Sutherland v. Heathcote, 1892, 1 Ch. 475).

law..

Licence
irrevocable

wwwhen con-
nected with

grant.

Mode of
revocation.

A parol licence from A. to B. to enjoy an easement over A.'s land is countermandable at any time whilst it remains executory; and if A. conveys the land to another, the licence is determined at once, without notice to B. of the transfer (Wallis v. Harrison, 4 M. & W. 538). A licence for the free admission to a theatre is determined by an assignment of the subject-matter in respect of which the privilege is to be enjoyed (Coleman v. Foster, 1 H. & N. 37). The locking a gate, through which parol leave has been given to pass, is of itself sufficient notice of revocation of the leave (Hyde v. Graham, 1 H. & C. 593; see Russell v. Harford, 2 Eq. 507).

A licensee who has placed goods on the land with reference to which Presumption the licence has been granted, is entitled upon revocation of the licence to of Grants. a reasonable time to remove the goods (Cornish v. Stubbs, L. R. 5 C. P. 334; Mellor v. Watkin, L. R. 9 Q. B. 400).

A parol agreement which is void under the Statute of Frauds, 29 Car. 2, What will c. 3, s. 4, may operate as a licence so as to excuse what would otherwise operate as a be a trespass; as where the purchaser entered to take away a crop licence. (Carrington v. Roots, 2 M. & W. 257; Crosby v. Wadsworth, 6 East, 602). Goods which were upon the plaintiff's land were sold to the defendant; by the conditions of sale, to which the plaintiff was a party, the buyer was to be allowed to enter and take the goods: it was held, that after the sale the plaintiff could not countermand the licence. And though the plaintiff had, after the sale, locked the gates and forbidden the defendant to enter, the defendant could break down the gates and enter to take the goods (Wood v. Manley, 11 Ad. & Ell. 34; see Vaugh. 351, and ante, p. 47). This case was analogous to that of a man taking another's goods and putting them on his land, in which case the owner is justified in going on to the land and removing them (Wood v. Leadbitter, 13 M. & W. 853; citing Vin. Abr. Trespass, H. a. 2, pl. 12; Patrick v. Colerich, 3 M. & W. 483; see Williams v. Morris, 11 L. J. Exch. 126).

Where a personal licence of pleasure is granted, it extends only to the individual, and cannot be exercised with or by servants; but if there is a licence of profit and not of pleasure, it may (Norfolk v. Wixman, cited 7 M. & W. 77).

It seems that the Crown may, by parol, confer privileges over land so as to deprive itself of the power of treating the party exercising the privilege as a wrong-doer; the actual possession of Crown lands, under a parol licence from the Crown, entitles the party in possession to maintain trespass against a wrong-doer. Generally speaking, trespass may be maintained by a person in the actual possession of land against a wrong-doer, even where that possession may be wrongful as against a third person (Harper v. Charlesworth, 4 B. & C. 590).

(4.) OF RIGHTS OF WAY, PUBLIC AND PRIVATE.

1. Public Rights of Way and Highways.

A right of way may be either public or private. Ways common to all Highways. the king's subjects are called highways (1 Ventr. 189; 1 T. R. 570). Whether a way be a public or private way is a matter of fact, and depends much on common reputation (1 Ventr. 189; Hawk. P. C. b. 1, c. 76, s. 1). The public may have a right to a road as a common street, although the road does not terminate in a town or public road, but terminates in a common (R. v. Wandsworth, 1 B. & Ald. 63), and although there be no thoroughfare (Rugby Charity v. Merryweather, 11 East, 375; Bateman v. Bluck, 18 Q. B. 870; Campbell v. Lang, 1 Macq. H. L. C. 451; Souch v. East London R. Co., 16 Eq. 108; Vernon v. S. James, 16 Ch. D. 449). See Woodyer v. Hadden (5 Taunt. 125), where a court, which was no thoroughfare, was held not a highway. There may be a highway over a cul de sac in a town, which is repaired by the public: but quare whether the doctrine applies to a long tract of land in the country, on which public money has not been expended (Bourke v. Davis, 44 Ch. D. 123). So a road may be a highway, although it is circuitous (R. v. Lloyd, 1 Camp. 261; 3 T. R. 265). A road is not necessarily a highway, although it does lead from one market town to another, or connect any two points by a line which might be advantageously used by the public, or is used by them under certain restrictions (11 East, 376, n. (a)). A footpath across a churchyard may be a "churchway," to which the right is in the parishioners, or else a common highway (Batten v. Gedye, 41 Ch. D. 507).

S.

E