paying so much per ton; this was held to be a covenant that ran with the land, and bound the assignees of the interest in the agreement. (c) 4. Where a railway is constructed by several owners of adjoining property in pursuance of some arrangement to that effect, a distinction it seems must be taken according as the agreement is under seal or not. In the former case it would seem to amount to a grant by each party to the agreement, to the others, of a right of way over the former's soil; and then the railway constructed under it would fall under the second class of railways described in the next chapter: in the latter case no one of the contracting parties would, it is conceived, acquire any legal interest in the soil of any of the others, but the whole would rest in agreement only. CAP. II. Of Railways made in pursuance of Way Leaves, &c. I. Nature and Extent of Power given by Way Leave. II. Rights and Liabilities of Owner of Railway constructed under Way Leave. III. Remedies relating to such Railways. 5. I. Way leaves, or powers of granting rights of way over lands sold or demised, as easements reserved to grantors or lessors, are a species of property well known in the north of England, and often of great value and importance. The nature and extent of any such power, and what it authorizes the lessor, &c. or his assignee to do, (which is (c) Hemmingway v. Fernandes, ubi supra. obviously the substantial question that we have here to consider,) must of course depend on the particular terms of the reservation in each case. The reservation, for instance, may be couched in such language, as to vest in the lessor, &c. an unlimited power of granting way leaves over all or any part of the lands demised, &c. without any restriction whatever as to the uses to which the way should be applied; or it may restrict the power to a particular purpose only, and that of a more or less limited character. To determine accordingly what a way leave authorizes in any particular case, whether, for instance, it confers a power of constructing a railway at all, and, if so, one of what kind, in what direction, to what extent and for what purposes, we must look at the terms of the reservation, and consider what is the fair and reasonable import of those terms. (d) was 6. In a deed of the date of 1630 the reservation "of all mines of coal in A., together with sufficient way leave and stay leave to and from the said mines, &c.;" all that it was held to authorize was the making of a railway in such a direction, and of such construction as was reasonably sufficient for the purpose of getting the coals reserved. (c) 7. The plaintiff, it is to be observed, in the above case was precluded by the form of his pleading from contending that some species of railway was not (d) Dand v. Kingscote, 6 M. & W. 174; S. C. 2 Railway Cas. 27; Durham and Sunderland Railway Company v. Walker, Gale & D. 326; S. C. 2 A. & E. N. S. 940; 3 Railw. Cas. 36; Farrow v. Vansittart, 1 Railw. Cas. 602; Burnard v. Wallis, 2 Railw. Cas. 162; S. C. 1 Cr. & Ph. 85; 5 Jur. 813. (e) Dand v. Kingscote, ubi supra. proper and convenient under the terms of the reservation. Had he been in a position to raise the question, its determination, it is conceived, (considering the obvious purpose of a reservation such as that in question,) must have rested on much the same grounds as that actually before the court; viz. whether, under all the circumstances of the case, a railway of some sort was not fairly requisite for the working of the coal in question in a reasonably beneficial manner. 8. So where the reservation was amongst other things "of all the mines under certain demised lands, together with power to dig, win, and carry away the same, with free ingress, egress, and regress, way leave, and passage to and from the same, or to or from any other mines, lands, and grounds, on foot, and on horseback, and with carts and all manner of carriages, and also all necessary and convenient passages, conveniences, privileges, and powers whatsoever for the purposes aforesaid, and particularly of laying, making, and granting waggon ways in and over such lands &c. ;" the only right reserved to the lessors under the above clause was held to be that of making and granting the right of making such ways over the demised lands as were proper for the purpose of getting the excepted mines &c., and consequently that they could neither make themselves, nor authorize any one else to make, a railway for the conveyance of goods and merchandize generally. (ƒ) 9. From this latter case it may be gathered, that (f) Durham and Sunderland Railway Company v. Walker, ubi supra. to give an unlimited way leave, it must be reserved or excepted as a distinct matter of reservation or exception, and not simply mentioned in connection with some previous matter of exception; otherwise the fair conclusion is, that it is meant to be confined to the single object of getting the matters excepted. 10. As the manifest object of such a reservation is to enable the owner of the thing excepted to get it beneficially to himself, and therefore what passes under it must necessarily be a right to such a description of road, as may be reasonably sufficient to enable the owner to do so from time to time; it would seem to follow that a railway, if it answers this description, may be taken to fall within the scope of such a reservation, although no such species of way were in use at the time of the grant &c., or were expressly mentioned in the terms of the reservation. 11. The right of making a railway over the soil of another may be claimed not simply by way of an express reservation, but likewise as an easement appurtenant to land by virtue of twenty years' enjoyment of the same, or as something necessary for the convenient occupation of adjoining closes. To justify the making of a railway on the latter ground, a party must of course be prepared to establish that the railway is necessary for the proper enjoyment and occupation of his property on each side of that which he crosses. (g) And he must take care not to carry the use of it beyond that purpose. (g) Monmouth Canal Company v. Hurford, 1 C. M. & R. To support such a claim on the former ground, twenty years' uninterrupted enjoyment of the easement as of right must be shown; it may therefore be defeated by proof on the other side of such enjoyment being only permissive. (h) 12. II. It is proposed in the next place to speak of the rights and liabilities of an owner of a railway over the land of another. He is of course liable for any injury that may be occasioned by the improper construction or use of such railway to the adjoining property: on the other hand, for any disturbance of the traffic on such railway, he would seem entitled to the like remedies as the owner of an ordinary easement. 13. A grantee of an easement of this kind may take such exclusive occupation of the soil, as to subject himself to the burthens incident to the character of occupier. As where a party took a lease of way leaves, with a liberty of erecting bridges, levelling hills &c., and in pursuance of the powers thus acquired made an inclosed waggon way, (i) excluding all other persons, erected bridges and built two houses on the land for his servants; it was held that he was liable to be rated to the poor for "the ground called the waggon way" Where there is not this exclusive occupation the party is not liable; because what he has is a mere easement, that is not the subject of rate. (k) of a way leave over land 14. Where upon a grant under demise, in addition to a way leave rent, there is likewise a certain sum per acre reserved under a (h) See ante, p. 6, n. (e). (k) Rer v. Jolliffe, 2 T. R. 90. |