rounded by the lands of other persons, except on the side where they abutted on the lands which were retained in James Pearson's hands. The access to the farm-house and the fields in Feathers's possession at that time was by a farm-road. The line of this road, after quitting the highway, passed through fields retained in the occupation of James Pearson, till it reached one of the 'fields in the occupation of Feathers, at a place called Cod Bridge: it did not there actually enter Feathers's holding, but after skirting it for a short distance, so that there was only the fence between the farm-road and Feathers's field, it re-entered a close in the occupation of James Pearson called the Fold Yard, and then entered the farm-yard of the house occupied by Feathers. This being the state of things in 1825, James Pearson made his will, and by it he bequeathed, inter alia, to his son Abraham, “all those leasehold premises situate at Upper Isle, now in the occupation of George Feathers, and consisting of a messuage, barn, stable, and other outbuildings, and all those seven closes of land," (naming them) " or by whatsoever other names called or known, for and during all the residue of a certain term of 999 years therein created by a certain indenture bearing date the 15th January, 1663, subject to a moiety or half part of the rent thereby made payable thereout ;" and to his son John he bequeathed, as soon as he attained the age of twenty-eight years, and to his executors, administrators, and assigns, all the residue of his leasehold premises at Upper Isle aforesaid, consisting of all those five closes (naming them), "for and during all the residue of the said term of 999 years, subject to the other moiety of the rent made payable thereont." The will makes no mention of any ways whatsoever. The testator died in 1861. PEARSON V. SPENCER. 1861. PEARSON V. SPENCER. 1826 John Pearson, his son, who was the plaintiff, attained the age of twenty-eight years in 1833, and was put in possession by the executors, so that from that time the farm bequeathed to the plaintiff was held separate from that bequeathed to Abraham Pearson. The defendant derived title through Abraham Pearson. It was not disputed, either at the trial or on the argument before us, that inasmuch as the portion of the farm bequeathed to Abraham was surrounded by the property of third persons, so that there was no access to it at all except by crossing the other property of the testator, which he bequeathed to John Pearson, some way of necessity must be given over John Pearson's farm; but the great dispute was, what that way was to be. The plaintiff conceded that the defendant had a right to use the farm-road until it came to Cod Bridge, but contended that when he reached that point where the road was only separated from the defendant's farm by a fence, the defendant ought to pass through the fence into his own field, and after that, to adopt the language of the plaintiff as a witness, the defendant was to "road himself." The issues joined were as to the right of way after passing Cod Bridge through the Fold Yard. It appeared in evidence that when the plaintiff came of age in 1833, and was put in possession by the executors, they remained in possession of Abraham's farm and continued to use the old road as it had been used in the testator's time by Feathers; but the jury have found that this was in consequence of an arrangement to delay settling what the road should permanently be until Abraham came of age. Abraham came of age in 1842, less than twenty years before the commencement of this action. There was contradictory evidence as to what happened then; but it must be taken that the jury be lieved the plaintiff's version, which was that he told Abraham that he must "road himself" from Cod Bridge, and that Abraham assented, only asking for time to do So. We think that this finding disproves the averment that the executors and John Pearson set out the way over the locus in quo, which we think a material part of the eighth plea. It is not necessary, in the view we take of the case, to notice the rest of the evidence, which was very contradictory. The jury found, in answer to questions put by the Judge, that the Fold Way was a convenient but that it was not a necessary way; by way, which we think we must understand them to mean that the defendant's farm could be occupied without using the road further than Cod Bridge; and they further find that the testator, in fact, used the Fold Way up to the time of his death. On the findings, we think that, by the will of James Pearson, a right to use the Fold Way was given to Abraham and his assigns; and, as nothing has since occured to take away that right, the verdict on the ninth plea ought to be entered for the defendant. We do not think that, on a severance of two tenements, any right to use ways, which during the unity of possession have been used and enjoyed in fact, passes to the owner of the dissevered tenement, unless there be something in the conveyance to shew an intention to create the right to use these ways de novo. We agree with what is said in Worthington v. Gimson (a), that in this respect there is a distinction between continuous easements, such as drains, &c., and discontinuous easements, such as a right of way; and Pheysey v. Vicary (b) is an authority (a) 29 L. J. Q. B. 116; 6 Jurist N. S. 1053. (b) 16 M. & W. 484. 1861. PEARSON V. SPENCER. 1861. PEARSON V SPENCER. that the same rule in this respect applies to a will as to a deed. But when, as in the present case, property devised or granted is landlocked, and there is no other way of 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. It seems to us settled by modern authority, that the ground on which the way of necessity is created is, that a convenient way is impliedly granted as a necessary incident. It is observed by Parke B., in Proctor v. Hodyson (a), that the extent of the authority of Holmes v. Goring (b) is that, though it is a grant, it may be construed to be a grant of such a right of way as from time to time may be necessary. He adds, "I should have thought it meant as much a grant for ever as if expressly inserted in a deed, and it struck me at the time that the Court was wrong." We certainly do not feel inclined to extend the authority of Holmes v. Goring (b) so far as to hold that the person into whose possession the servient tenement comes, may from time to time vary the direction of the way of necessity, at his pleasure, so long as he substitutes a convenient way. We think we must hold that the way of necessity, once created, must remain the same way as long as it continues at all. The extraneous facts, therefore, shew that by this devise the testator did intend to create a convenient way of some sort, which, once set out, would continue; but there is a singular absence of authority as to the manner in which it is to be ascertained what is to be the direction of the convenient way thus created. In 2 Rolle's Abridgment, p. 60, "Graunts," Z., pl. 17, it is said that the feoffor who (a) 10 Exch. 824. 828. (b) 2 Bing. 76. grants the landlocked land, and retains the other, which thus becomes the servient tenement, shall assign the way where it is most convenient to himself. Packer v. Welsted (a) was a case where the grantor retained the landlocked tenement, which became the dominant tenement; it is said that he should take a way, and the law should adjudge if it was a convenient way. In each case it seems to have been thought that the person by whose act the way was created was subsequently to select the way, subject only to this, that it should be a convenient way. In the case of a devise it is impossible for the testator, by whose act the way is created, and who is dead, to do any subsequent act of selection; and if the line of the way depends on his intention, it must be discovered from the language of the will, understood with reference to the state of the property. It might be very difficult to state how the way was to be set out, if the premises before severance were so occupied as to afford no indication of what was the usual way in the testator's time, but this can rarely be the case in practice. In general, especially when, as in the present case, there was an occupation by a tenant, there must be an actual existing way by which the premises were used and enjoyed; and we think we best effectuate the intention of the testator by construing the implied grant of a way to be a grant of that way actually used at the time; and that in this case clearly was the Fold Way used by the tenant at the time the will was made, and by the testator up to his death. We cannot find this principle stated in terms as the ground of decision in any case. It will support that part of the decision in (a) 2 Sid. 39. 111. 1861. PEARSON V. SPENCER. |