to and into the said road called Wellesley Road." The deed BYRNE J. then concluded with covenants for title in respect of the grant of footway. In 1870 John Drummond purchased the fee simple in the plot of land of which he was a yearly tenant, such tenancy having continued up to that time. John Drummond died in 1880, having devised his residuary estate (which included the fee simple in this plot) to William Drummond, who died in 1884, leaving all his estate to Elizabeth Drummond. By a deed dated November 14, 1894, her devisees conveyed to E. B. Staples in fee this land, "together with such right of footway now belonging to the vendors as tenants or occupiers of the premises hereby conveyed or otherwise at all times over and along the footpath of the width of six feet granted by" the indenture of March 13, 1869. as was By a lease dated May 29, 1895, E. B. Staples demised the same land to W. McIlroy, together with the same right of way, for a term of ninety-nine years. Under a scheme approved by Her Majesty in Council on July 15, 1881, it was provided that the above-named charity should be administered, under the name of the Whitgift Foundation in Croydon, by the governing body thereby constituted, who were the plaintiffs in the action mentioned below. The plaintiffs having commenced to build a wall dividing the three-acre field from the land of McIlroy, the latter promptly knocked it down, claiming a right of access from his land to, and a right of way across, the three-acre field, to Wellesley Road. The plaintiffs then brought an action against McIlroy, claiming a declaration that he was not entitled to the right of way, and an injunction restraining him from trespassing or entering on their land or destroying or interfering with their walls or fences. The action was tried before Byrne J. Eve, Q.C., and Badcock (John Henderson with them), for the plaintiffs. John Drummond was only tenant from year to year of the land adjoining the plaintiffs' land when the grant of a 1897 RYMER V. MCILROY 1897 RYMER v. BYRNE J. right of way was given to him, and notwithstanding the grant was to him and William Drummond, their "heirs and assigns," the effect of the grant was not to give him an easement in fee. The grant could only give an interest in the easement coextensive with John Drummond's then existing interest in the dominant tenement, and that interest came to an end by merger in 1870. MCILROY. as accessory to a In an early case 2, pl. 5, where a An easement as such can only be claimed tenement: Gale on Easements, 6th ed. p. 8. there cited from the Year Books, 21 Edw. 3, right of way over land to a mill was granted, and the grantee was not then seised of the mill, but afterwards purchased it, it was held that the purchase of the mill would not enable the purchaser to maintain an action for disturbing him in the way against the grantor of the way. No right of way in perpetuity is created by using the words "heirs and assigns": Lord Dynevor v. Tennant. (1) So far as the grant was for a period extending beyond the then existing interest of John Drummond in the dominant tenement, it was a grant of an easement in gross and invalid. There is no magic in the use of the words "heirs and assigns," and they do not help the defendant. The defendant is not the heir or assign of the Drummonds or either of them; he is only a lessee deriving title from the purchase of the freehold which John Drummond acquired in 1870. [They also referred to Ackroyd v. Smith. (2)] Rentoul, Q.C., and Turrell, for the defendant. The words of the grant and covenant of the right of way shew an intention to convey a several right of way to each of the Drummonds attaching to their several interests in the tenements. The grant of the land by the Drummonds and their grant of the easement must be taken as one transaction, and the plaintiffs cannot insist on the grant to them and insist that their grant and covenant is bad as a grant of an easement in gross. There is nothing to prevent a man covenanting that another shall have a right of way as long as he is owner of or interested BYRNE J. in a tenement. Lord Dynevor v. Tennant (1) has no application; it only points to what the words "heirs and assigns" referred in that case. Eve, Q.C., in reply. BYRNE J. This action is brought to determine the question whether the defendant is entitled to a right of way over the land of the plaintiffs, on a footpath thereon, to the land of which he is the lessee. On the statement of claim the plaintiffs' land, which formerly belonged to John and William Drummond, is coloured green, and in 1869 they conveyed it to the hospital. At that time the Drummonds were entitled to certain plots of land abutting on the west side of the green land, and these two plots are coloured pink on the plan. One of these plots was held for a term of years, which expired in 1878. The other was then held by John Drummond as tenant from year to year. This piece is marked C on the plan, and the defendant is now the lessee of this piece. As part of the same bargain, the hospital granted, and covenanted for, a right of way to the Drummonds across the green land to C and the other plot, and the question is, What is the effect of this grant and covenant? The conveyance to the hospital was dated March 12, 1869, and it recited the seisin of the Drummonds, the contract for sale of the green land, and that it had been agreed on the treaty for the purchase that the hospital should grant the right of way to the Drummonds, "their heirs and assigns." [His Lordship read the recital, and continued :-) The recited deed of grant and covenant had already been prepared, and had on it a plan shewing a footpath, coloured yellow, extending from Wellesley Road along the north part of the green land to a point exactly coterminous with the land coloured pink. The deed of grant and covenant recites the conveyance including the boundaries of the green land; and as to this VOL. I. 1897. (1) 13 App. Cas. 279. 2 P 1 1897 RYMER 2. MCILROY. RYMER v. MCILROY. BYRNEJ. recital, it may be observed that it describes the land as being 1897 bounded on the south and north by lands "belonging to" Robinson and Eastty, whereas it is stated that on the west it is partly bounded by land "in the occupation of " the Drummonds. The deed then recites the recital in the deed of conveyance with reference to the deed of grant and covenant, and the operative part states that in pursuance of the agreement referred to in the recitals, and in consideration of the previous conveyance, the hospital does "covenant and grant with and to the said John Drummond and William Drummond, their heirs and assigns," in respect of the right of way. [His Lordship read the covenant, and continued:-] I pause here to observe that the deed clearly was intended to operate as a covenant as well as a grant, and to say that I accept the suggestion of counsel that the "tenants and occupiers" must be tenants and occupiers of John and William Drummond, or of their or one of their heirs or assigns. The covenant clearly refers to the path coloured yellow on the green land, and to that path only. Then follow covenants for title including a covenant for further assurance. The short point is this. John Drummond was the tenant from year to year of the plot marked C, and in 1870 he acquired the fee simple in the plot. The defendant claims as lessee of that plot from persons who purchased from owners of the fee claiming under John Drummond. The other plot was held under a lease which has expired, and no question arises as to the right of way to that piece. The plaintiffs say that, as John Drummond was only tenant from year to year when the grant and covenant was entered into, the grant was only intended to give him a right of way while that tenancy continued, and not to give him a right in respect of any extended interest which he might acquire. But in my judgment that is not the true construction, having regard to the words "heirs and assigns," and looking at the whole tone and tenour of the deed, and the fact that John Drummond shortly afterwards acquired the fee. The true construction is that, so long as the Drummonds, or either of them, or the heirs or assigns of either of them were interested, this right of way was to subsist. The 1897 RYMER MCILROY. probability is, and it is not an unnatural inference to draw, BYRNE J. that it was within the contemplation of the parties that the Drummonds might obtain the fee simple in one or more of the plots in which they had then only a limited interest, and that in that case the right of way should continue. I can see nothing illegal in such an agreement, and if that is the contract no such doctrine as that the covenant was with the reversioner, who has destroyed the reversion, arises. The case cited from the Year Books is admittedly no authority in the present case, for there the grantee of the right of way had no interest in the mill at the time when the right of way was granted. Lord Dynevor v. Tennant (1) does not involve the present point, and assuming it decides that you must regard a right of way as having been made with reference to the existing interest in the dominant tenement, that does not preclude the question raised in this case as to the effect of a particular grant or contract where a larger interest in the dominant tenement is subsequently acquired. The action must be dismissed. Solicitors for plaintiffs: Prior, Church & Adams, for Drummonds, Robinson & Till, Croydon. Solicitor for defendant: W. C. Goulding. (1) 13 App. Cas. 279. F. E. |