owner of the soil. It was held, however, that the right was not confined to such ways as were in use at the time of the grant. (Dand v. Kingscote, 6 Mees. & W. 174.) Where a lease of premises described them as abutting on an intended way, thirty feet wide, not then set out, the soil of which was the property of the lessor: and the lessee granted an underlease, describing the premises as abutting on an intended way, without specifying the breadth: it was held, the sub-lessee was entitled to a convenient way only. (Harding v. Wilson, 2 B. & Cr. 96. See Espley v. Wilkes, L. R., 7 Ex. 298.) Under a grant of a free and convenient horseway and footway, and for carts and carriages, &c., over to a certain piece of land, "to carry stone, timber, coal, or other things whatsoever," the grantee may lay a framed way along the land for carrying coals as being the most convenient, but the grantee will not be justified in making transverse roads across the land. (Senhouse v. Christian, 1 T. R. 560.)

It is not competent to a vendor to create rights unconnected with the use and enjoyment of land and to annex them to it, neither can the owner of land render it subject to a new species of burden so as to be binding in the hands of the assignee. A right of way cannot be so granted as to pass to the successive owners of land as such, in cases where the way is not connected in some manner with the enjoyment of the land to which it is attempted to make it appurtenant. (Ackroyd v. Smith, 10 C. B. 164; 14 Jur. 1047; 19 Law J., C. P. 315.) In trespass quare clausum fregit, the defendant justified under a supposed right of way conveyed to them by A.; the plea, after stating the conveyance to A. of a certain close and certain plots, pieces or parcels of land, &c., together with all ways, &c., particularly the right and privilege to and for the owners and occupiers of the premises conveyed, and all persons having occasion to resort thereto, of passing and repassing for all purposes in, over, along and through a certain road," alleged an assignment by A. to the defendant of the said lands, tenements, hereditaments, premises and appurtenances "granted by the former deed," and then averred that the trespasses complained of were committed by the defendants, being owners of the said lands, &c. and in the possession and occupation thereof, in using the right of way for their own purposes; the plaintiffs, after setting out the deed upon oyer, demurred specially to the plea on the ground that the defendants claimed a more extensive right than that granted by the deed, and that if the right as claimed was granted by the deed it was not assignable. It was held, that the grant to A. was not restricted to the use of the way for purposes connected with the occupation of the land conveyed, but that the right in question was not one which inhered in the land, or which concerned the premises conveyed, or the mode of occupying and enjoying them, and therefore did not pass to the defendants by the assignment. (lb.) See further as to the construction of grants of rights of way, Wood v. Stourbridge Railway Company (16 C. B., N. S. 222; Watts v. Kelson, L. R., 6 Ch. 166; Cousens v. Rose, L. R., 12 Eq. 366, and the cases quoted post, p. 80).

Rights of Way.

In an action for obstructing a way, granted by a lease from the defendant Evidence. to the plaintiff, the judge will receive evidence of the state of the premises at the time of granting the lease, and will then put a construction on the lease as to the line along which the way is granted: but he will not receive evidence of the declarations or acts of the parties, either before or after the lease, as showing where the way is or was intended to be; but if it be uncertain on the words of the grant which of two ways is intended, the judge will receive parol evidence to show which the grantor meant to grant. (Osborn v. Wise, 7 Car. & P. 761.) In order to prove a grant of an occupation way through a lane to the defendant's premises, he offered two deeds, which purported to be grants by the owners of the soil of an occupation way through the lane, to tenants of premises situated on the opposite side of the lane from the defendant's premises: it was held, that the deeds were wrongly admitted for that purpose. (Reg. v. Chorley, 12 Q. B. 515. And see Baird v. Fortune, 10 W. R. 2.)

Where premises are demised or conveyed “with a right of way thereto,” Mode of user. it may be a question for the jury what is a reasonable use of such right. (Harkins v. Carbines, 27 L. J., Exch. 44.)

Rights of Way.

Repair of way.

Where a right of way was expressed to be "through the gateway of the plaintiff" (which gateway led to other premises of the plaintiff), and, at the time of the lease, carts could come in to load and unload, and turn round and go out again, but through alterations of the premises, could not do so without slightly trenching upon the plaintiff's premises: it was held, that, in the reasonable use of the right of way, the defendant had a right to do this: and that was what a reasonable user was for the jury. (Ib.) The defendant being entitled by immemorial user to a right of way over the plaintiff's land from field N., used the way for the purpose of carting from field N. some hay stacked there, which had been grown partly there and partly on the land adjoining. The jury found in effect that the defendant in so doing had used the way bona fide, and for the ordinary and reasonable use of field N. as a field. Held, that the mere fact that some of the hay had not been grown on field N. did not make the carrying of it over the plaintiff's land an excess in the user of the right of way. (Williams v. James, L. R., 2 C. P. 577.)

Where a lease reserved to the lessor and his assigns a right of way over certain ground for the purpose of rebuilding and repairing any erections or buildings on adjoining premises which belonged to the lessor, and the defendants who claimed under the lessor had erected a dispensary on the adjoining premises, and proposed to use the way as an access to such dispensary, an injunction was granted restraining the user. (Ardley v. Guardians of St. Pancras, W. N. 1870, p. 203; 39 L. J., Ch. 871.)

A private right of way over waste land, or a line between two points, is not necessarily a right over every part of the land, and the owner of the soil may inclose on each side of it, if the way can be substantially used as conveniently as before the inclosure. (Hutton v. Hamboro, 2 F. & F. 218.) A. granted to B., his heirs and assigns, occupiers of certain houses abutting upon a piece of land about eleven feet wide, which divided those houses from a house then belonging to A., the right of using the said piece of land as a foot or carriage way, and gave him "all other liberties, powers and authorities incident or appurtenant, needful or necessary to the use, occupation or enjoyment of the said road, way or passage:" it was held, that under these words B. had a right to put down a flagstone in this piece of land in front of a door, opened by him out of his house into this piece of land. It was observed by Chambre, J., that the nature of the thing was material in considering the effect of the words. The way was granted for the occupation of a dwelling-house, and the grantee ought to have everything needful for the occupation of his dwelling-house; he ought therefore to have the opportunity of repairing the way in such a manner, that it should not be wet or dirty, when he or his family or his visitors enter. If any inconvenience had been occasioned to the grantor, it might make a difference; but that was not the case here, nor was it to be feared that any right could hereafter be set up in respect of the soil in consequence of this stone having been put down, for the precise extent of the road was pointed out. (Gerrard v. Cooke, 2 Bos. & P. N. R. 109.)

A person having a private way over the land of another cannot, when the way is become impassable by the overflowing of a river, justify going on the adjoining land, although such land, as well as the land over which the way runs, belongs to the grantor of the way. (Taylor v. Whitehead, 2 Dougl. 475; Bullard v. Harrison, 4 Maule & S. 387; 1 Wms. Saund. 322 a, n. (3); Duncombe's case, Cro. Car. 366. See Robertson v. Gauntlett, 16 Mees. & W. 289.) But if a highway be impassable, the public are entitled to pass in another line. (Ib. See Shelford's Law of Highways, pp. 25, 73, 3rd ed.)

The grantee of a way has a right to repair it, as incident to the grant (Com. Dig. Chimin (D. 6); Godb. 53; Gerrard v. Cooke, 2 Bos. & P. Ñ. R. 108; Vin. Abr. Incidents (A.)), and the grantor is not bound to repair (Com. Dig. Chimin (D. 6)), unless by express stipulation or prescription. (1 Saund. 322 a, n.; Rider v. Smith, 3 T. R. 766.) The grantee of a private way is to make it. (Osborn v. Wise, 7 Car. & P. 764.) By common law he who has the use of a thing ought to repair it, unless the grantor has bound himself to do so. (Taylor v. Whitehead, 1 Doug. 720;

Pomfret v. Ricroft, 1 Wms. Saund. 557.) Although at common law Rights of Way. the grantee of a way ought to repair it, that is not a condition incident by law to the grant of a right of way; it is not even an obligation to which the grantee is subject; it is no more than this, that if he wants the way to be repaired he must repair it himself. (Per Coleridge, J., Duncan v. Louch, 6 Q. B. 909, 910. See Ingram v. Morecraft, 33 Beav. 49.)

Where an owner of the soil permits others to pass over it, he is liable for Liability for neg an accident caused by the negligence of himself or his servants to a person ligence, lawfully availing himself of such permission, though he would not be liable for an accident caused by the ordinary risks attaching to the nature of the place, or the business there carried on. (Gallagher v. Humphrey, 10 W. R. 664.) An owner of land, having a private road for the use of persons coming to his house, gave permission to a builder who was engaged in building on the land to place materials upon the road. The builder availed himself of such permission, by placing a quantity of slates there in such a manner that the plaintiff in using the road sustained damage: it was held that the builder was liable to an action. (Corby v. Hill, 4 C. B. (N. S.) 556; 4 Jur. (N. S.) 512; 27 Law J., C. P. 218; Belch v. Smith, 7 H. & N. 736.) The possessors of a cutting, and a bridge over the cutting, who allowed the public to use the bridge, were held not liable for the death of a person who fell into the cutting through the defective condition of the bridge. (Gautret v. Egerton, L. R., 2 C. P. 371.) See the cases, as to negligence, collected, Gale on Easements, 4th ed. 405, n.

Where a person having a right of way over the land of another purchases Extinction of such land, the right of way is extinguished by the unity of seisin and pos- rights of way: session. ( (Heigate v. Williams, Noy, R. 119. See James v. Plant, 4 Ad.

& El. 761, ante, p. 73.)

It does not appear to have been decided what is the precise period re- By unity of quisite to extinguish a right of way by mere non-user. Lord Tenterden seisin.

said, "Oue of the general grounds of a presumption is, the existence of a By abandonment. state of things, which may most reasonably be accounted for by supposing the matter presumed. Thus the long enjoyment of a right of way by A. to his house or close, over the land of B., which is a prejudice to the land, may most reasonably be accounted for by supposing a grant of such right by the owner of the land; and if such right appear to have existed in ancient times, a long forbearance to exercise it, which must be inconvenient and prejudicial to the owner of the house or close, may reasonably be accounted for by supposing a release of the right. In the first class of cases, therefore, a grant of the right, and in the latter a release of it, is presumed." (Doe d. Pentland v. Hilder, 2 B. & Ald. 791.) Littledale, J., expressed a similar opinion. He said, according to the present rule of law, a man may acquire a right of way, or a right of common (except indeed common appendant) upon the land of another by enjoyment; after twenty years' adverse enjoyment, the law presumes a grant made before the user commenced by some person who had power to grant; but if the party who had acquired the right by grant ceased for a long period of time to make use of the privilege granted to him, it may then be presumed that he has released the right. It is said, however, that as he can only acquire the right by twenty years' enjoyment, it ought not to be lost without disuse for the same period; and that as enjoyment for such a length of time is necessary to found a presumption of a grant, there must be a similar non-user to raise a presumption of a release, and this reason may perhaps apply to a right of common or of way. (Moore v. Rawson, 3 B. & C. 339.) Although the grant of an occupation way cannot be presumed from a user of less than twenty years, yet it is not necessary, in order to destroy the right to such an easement, that a cesser of the use for twenty years should be proved. (Reg. v. Chorley, 12 Jur. 822, Q. B.; 12 Q. B. 515.) A cesser of the use for any period less than twenty years, accompanied by an act clearly indicative of an intention to abandon the right, is sufficient to destroy such an easement. (Ib.) See the remarks of Lord Chelmsford, Crossley v. Lightowler (L. R., 2 Ch. 482.)

It was laid down in another case, that where a right of way has been once established by clear evidence of enjoyment, it can be defeated only by dis

S.

G

Rights of Way.

By alteration of dominant tenement.

tinct evidence of interruptions acquiesced in; an unsuccessful attempt on the part of the occupiers of the land, over which the way ran, from time to time, to interrupt such right, will not be sufficient to get rid of it. (Harvie v. Rogers, 3 Bligh, N. S. 444-447. See 12 Ves. 265; Norbury v. Meade, 3 Bligh, 211, 241.)

The discontinuance for upwards of twenty years of the use of an immemorial right of way to a close, because the occupiers had a more convenient access to it over another close, is not evidence of an intention to abandon the right. (Ward v. Ward, 21 Law J., Exch. 334.) Alderson, B., observed in this case, "The presumption of abandonment cannot be made from the mere fact of non-user. There must be other circumstances in the case to raise that presumption. The right is acquired by adverse enjoyment. The non-user, therefore, must be the consequence of something, which is adverse to the user." A parol agreement for the substitution of a new way for an old prescriptive way, and the consequent discontinuance to use the old highway, afford no evidence of the abandonment thereof. (Lovell v. Smith, 3 C. B., N. S. 120.) In this case the plaintiff, having a right of way by prescription more than thirty years previously, agreed with the owner and occupier of the servient tenement, that the use of a portion of that way should be discontinued, and a new one equally convenient substituted for it; Willes, J., said, "I do not think that this court means to lay down that there can be an abandonment of a prescriptive easement like this, without a deed or evidence from which the jury can presume a release of it.” (Ib. pp. 126, 127.) A right of way may be abandoned, and it is always a question of fact, to be ascertained by a jury or by the court from the surrounding circumstances, whether the act amounts to an abandonment or was intended as such. (Cook v. Mayor of Bath, L. R., 6 Eq. 179.)

Where the mode of enjoyment of an easement has been more or less altered, and where an attempt has been made to usurp a greater right than the party was entitled to, it appears that in the case of those easements which depend upon repeated acts of man and require no permanent alteration in the dominant tenement as rights of way, the previously-existing right will not be affected by acts of usurpation. (Gale on Easements, 539, 555, 4th ed., and see Luttrell's case, 4 Rep. 86 a.)

There does not appear to be any direct authority to show whether, if the use of a place, to and from which a way is by express words reserved or granted, be completely changed, the way can still be continued to be used. It has been held, that if a man has a right of way to a close called A., he cannot justify using the way to go to A. and from thence to another close of his own adjoining to A. (1 Roll. Abr. 391, pl. 3; Howell v. King, 1 Mod. 191; Lawton v. Ward, 1 Ld. Raym. 75; and 1 Lutw. 111; Skull v. Glenister, 16 C. B., N. S. 81; 12 W. R. 554.) In trespass quare clausum fregit it appeared that B., being the owner of the locus in quo, and also of certain other land, with houses and a stable, loft and chaise-house, conveyed to A. a part of the premises, consisting of a house and land comprehending the locus in quo, reserving to himself, his heirs, &c., occupiers for the time being of a messuage (not conveyed), a right of way and passage over the locus in quo to a stable and loft over the same, and the space or opening under the loft and then used as a wood-house, and to the chaise-house standing on the side of the locus in quo (the stable, loft, wood-house, and chaisehouse not being conveyed), and also the use of the locus in quo in common with A., his heirs, &c., and their tenants for the time being, it being expressed to be the intent of the parties that the whole of the yard comprehending the locus in quo should be open and undivided, as the same then was, and be used in common by the occupiers of both messuages as the tenants thereof had been accustomed theretofore to use them; afterwards B. built a cottage on the site of the opening under the loft: it was held, 1. That the reservation of the use of the locus in quo did not authorize B. to use it for the purpose of passing to the cottage. 2. That the reservation of the right of way was not limited to a right of passage to the space so long as it was used as a wood-house; but gave a way generally to the space so described while it was open. 3. But that B. was not entitled to use that way for the purpose of passing to a newly-erected cottage on that space.

(Allan v. Gomme, 11 Ad. & Ell. 759; 3 P. & Dav. 581.) Denman, C. J., in giving judgment said, that the case depended upon the legal effect of the reservation. Upon that we are of opinion that, under the terms of this deed, the defendant is not entitled to have the right of way claimed, but that he is to be confined to the use of a way to a place which should be in the same predicament as it was at the time of the making of the deed. We do not mean to say that he could only use it to make a deposit of wood there, for we consider the words 'now used as a wood-house,' merely used for ascertaining the locality and identity of the place called a space or opening under the loft, and we think he might have the benefit of the way to make a deposit of any articles, or use it in any way he pleased, provided it continued in the state of open ground; but we think that he could only use it for purposes which were compatible with the ground being open, and that if any buildings were erected upon it, it was no longer to be considered as open for the purpose of this deed." (Allan v. Gomme, 3 Per. & Dav. 591; 11 Ad. & Ell. 759; see Osborn v. Wise, 7 Carr. & P. 761.) Parke, B., observed, that in Allan v. Gomme, "a more strict rule was laid down than he should have been disposed to adopt, for it was said that the defendant was confined to the use of the way to a place which should be in the same predicament as it was at the time of the making of the deed. No doubt if a right of way be granted for the purpose of being used as a way to a cottage, and the cottage is changed into a tan yard, the right of way ceases; but if there is a general grant of all ways to a cottage, the right is not lost by reason of the cottage being altered." (Henning v. Burnet, 8 Exch. 192.)

A company and the defendant each purchased lands of W., which were separated by a road over which a right of way was reserved to each (the freehold remaining in W.) with a joint obligation to repair.

In the conveyance to the company the land purchased by them was described as containing thirty-one acres or thereabouts, "which, with the abuttals and boundaries thereof, were more particularly described in the map or plan thereof affixed to and forming part of the conveyance, together with full and free liberty, licence and authority for the company, their successors and assigns and tenants, and all persons coming to or going from the same lands and hereditaments, or any part thereof, to use and enjoy, with horses, carts and carriages, or on foot, jointly or in common with others the person or persons for the time being entitled to the like liberties, licences and authorities respectively, the roads or ways leading to and from the same lands and hereditaments as the same roads or ways are described in the said map or plan." At the time of conveyance the land so purchased by the company was separated from the road by a hedge, in which were two gates, one at the upper, the other at the lower end of the road. The company removed the hedge and built a wall with two gates thereon, both at the same distance from the spot where the old gates had stood. The defendant obstructed the access to these new gates by excavating the road to the depth of between four and five feet. It was held, that the defendant was liable to an action at the suit of the company, for that whether the company was justified in altering the position of the gates or not, the company was still entitled to the uninterrupted use of the way as granted to them. (South Metropolitan Cemetery Company v. Eden, 16 C. B. 42.) But it seems that the grant was a general grant of a right of way along the road and every part thereof, and was not limited to a way through the old gates. (16.)

By the 10th section of the General Inclosure Act, 41 Geo. 3, c. 109, the commissioners are directed to set out private roads; and by the 11th section of that act it is declared that all roads, ways and paths, over, through and upon such lands and grounds, which shall not be set out, shall be extinguished. But where a private inclosure act does vary the terms of the above act, if the commissioners in their award do not notice a road running over the inclosed lands, it is, by the operation of that act, extinguished, and the proprietor of the lands over which it runs may stop it up. Thus it was held, that a plaintiff, to whom an allotment was made by a commissioner under an inclosure act, of land over which the defendants had a private