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666 by law; and yet the law will not reserve anything out "of a grant in favour of a grantor, except in case of necessity.' Now the only case in the Court of Appeal "which is suggested as being contrary to this high "authority of two Lord Chancellors is Watts v. Kelson,1 "and no doubt there are observations of Lord Justice "Mellish to the effect that the order of conveyance in point of date is immaterial, that Pyer v. Carter is good sense and good law, and that most of the common law "judges have not approved of Lord Westbury's observa"tions. But, putting aside for the moment that this was "a mere dictum of the Lord Justice during the argument, "I must observe that this is not exactly so, as in White v. "Bass, the judges of the Court of Exchequer had dis

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tinctly, as regards the reasoning of Pyer v. Carter, "overruled that case. No doubt, also, Lord Justice "James says, "I am satisfied with the decision in Pyer "v. Carter.' But in the considered judgment of the "Court, when, if it had been intended to say that "Suffield v. Brown was not law, one would have thought there would have been something distinct upon "the point, there is not one word to the effect of that "which had been said by the Lords Justices during the "argument. All that is said about it is this: Lord "Justice Mellish, who delivered the judgment, after referring to Nicholas v. Chamberlain' said, 'This case "has always been cited with approval, and is identical not "only in principle, but in its actual facts with the case "now before us. It was expressly approved of by Lord Westbury in Suffield v. Brown, where, though he objected to the decision in Pyer v. Carter, in which it "was held that a right to an existent continuous apparent "easement was impliedly reserved in the conveyance by "the owner of two houses in the alleged servient houses,

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1 L. R., 6 Ch. 166, 174.

2 1 H. & N. 916.

3 7 H. & N. 722.

4 4 De J. & S. 185.

5 Cro. Jac. 121.
64 De J. & S. 185.
71 H. & N. 916.

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"yet he seems to agree that the right to such an easement "would pass by implied grant where the dominant tene"ment is conveyed first;' and that is what the Court of Appeal had to decide in Watts v. Kelson. Therefore "Watts v. Kelson is no authority to justify us in overruling Suffield v. Brown, still less for overruling it, supported as it is by the case of Crossley and Sons v. "Lightowler. Thus, then, as it appears to me, stand the "principal authorities on the general rules of law which I "stated at the commencement of this judgment." The Lord Justice then notices a number of other cases3 which were cited to illustrate the exceptions to the second general rule laid down by him at the commencement of his judgment-viz., ways of necessity-and continues: "These cases in no way support the proposition for which "the appellant in this case contends; but, on the con"trary, support the propositions that in the case of a

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grant you may imply a grant of such continuous and "apparent easements, or such easements as are necessary "to the reasonable enjoyment of the property conveyed, "and have, in fact, been enjoyed during the unity of ownership; but that, with the exception which I have "referred to of easements of necessity, you cannot imply "a similar reservation in favour of the grantor of land. "Upon the question whether there is any other exception, "I must refer both to Pyer v. Carter and to Richards v. "Rose; and, although it is quite unnecessary for us to "decide the point, it seems to me that there is a possible 66 way in which these cases can be supported without in any way departing from the general maxims upon "which we base our judgment in this case. I have already pointed to the special circumstances in Pyer v.

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1 L. R., 6 Ch. 166.

2 L. R., 2 Ch. 478.

3 Pennington v. Galland, 9 Ex. 1, 12; Clark v. Cogge, Cro. Jac. 170; Staple v. Haydon, 6 Mod. 1; Chichester v. Lethbridge, Willes, 72, n.;

Dutton v. Taylor, Lutw. 1487;
Davies v. Sear, L. R., 7 Eq. 427,

431.

41 H. & N. 916.
5 9 Ex. 218.

What words necessary to pass an easement not of necessity.

"Carter, and I cannot see that there is anything un-
"reasonable in supposing that in such a case, where the
"defendant under his grant is to take this easement
"which had been enjoyed during the unity of ownership,
"of pouring his water upon the grantor's land, he should
"also be held to take it, subject to the reciprocal and
"mutual easement by which that very same water was
"carried into the drain on that land, and then back
"through the land of the person from whose land the
"water came.
It seems to me to be consistent with reason
"and common sense that these reciprocal easements
"should be implied; and, although it is not necessary to
"decide the point, it seems to me worthy of consideration
"in any after case, if the question whether Pyer v. Carter
"is right or wrong comes for discussion, to consider that
"point. Richards v. Rose, although not identically open
"to exactly the same reasoning as would apply to Pyer v.
"Carter, still appears to me to be open to analogous
"reasoning. Two houses had existed for some time, each
"supporting the other. Is there anything unreasonable
"is there not, on the contrary, something very reason-
"able-to suppose in that case that the man who takes a

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grant of the house first, and takes it with the right of "support from that adjoining house, should also give to "that adjoining house a reciprocal right of support from "his own ?" His lordship concludes his judgment by referring again to the case of Swansborough v. Coventry,1 and by holding that in the present case the fact that the two tenements, though not sold together, were put up at an auction together as part and parcel of one sale, could not affect the question.

With regard to what words are necessary in a conveyance to pass an easement not necessary to the enjoyment of the tenement granted, it has been held that general words, such as "appertaining," " belonging," &c., are insufficient on the severance of tenements to pass such rights as ways, commons, &c.; but in the case of Wardle v. Brocklehurst, it 19 Bing. 305.

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was held that, by the grant of a farm with the usual words "with all watercourses used, occupied, or enjoyed with "the premises," the benefit of a culvert, and a stream of water running through the lands of the vendor to the farm granted, passed; and Lord Campbell says, "The land "must be taken to be conveyed in the state in which it "then was, that is, we must take it that the culvert so bringing down the water and all the watercourses are "granted, not only those which belong and appertain to "the premises, but also those which were used and enjoyed "therewith." This judgment was affirmed in the Exchequer Chamber, and it was held that the defendant was entitled to use the water, not only for the farm which was sold to him, but for a manufactory which he possessed beyond.1

easements.

It should be here noticed that the maxim of law is, that Secondary whosoever grants a thing, is supposed also tacitly to grant that without which the grant would be of no effect;2 and that consequently, upon the grant of an easement, all such secondary easements as are essential for its full enjoyment will pass also without further words of grant.2 Thus, where there is an easement of watercourse over another's land, there is an implied right of going on that land to clear and repair it, and, where there is a right of drawing water, this includes the right of going and returning over the servient owner's land. In executing works necessary for the enjoyment of the easement, nothing of course must be done to alter the accustomed mode of enjoyment in such a manner as to impose a greater burden on the servient tenement. Such secondary

11 E. & E. 1058; see also Watts v. Kelson, L. R., 6 Ch. 175. 2 11 Rep. 52; Angell, p. 278. 3 See Gale, p. 549.

4 Brown v. Best, 1 Wils. 174; Bracton, lib. 4, ff. 232 a, 233 a; Nicholas v. Chamberlain, Cro. Jac.

121; Hinchcliffe v. Earl of Kinnoul,
5 Bing. N. C. 1; see also Pyer v.
Carter, 1 H. & N. 916; Pearson v.
Spencer, 3 B. & S. 761; Dodd v.
Burchell, 1 H. & C. 113; and
American cases in Angell, ch. 5.

No alteration can be made in an ease

ment increasing the restriction.

By prescription.

Prescription

at common law.

easements, forming in most cases one entire right with the principal easement, cease also on its extinction.1

As every easement is a restriction upon the rights of property of the owner of the servient tenement, no alteration can be made in the mode of enjoyment by the owner of the dominant heritage, the effect of which will be to increase such restriction. Supposing no grant to exist, the right must be limited by the amount of enjoyment proved to have been had; but a mere alteration in the mode of enjoyment, whereby no injury is caused to the servient heritage, will not destroy the right.3

5

The existence of the evidence necessary to prove an actual grant of a special right to a watercourse, may be inferred from a long use and enjoyment without interruption. It is laid down in Bracton, that all incorporeal rights or services may be acquired by acquiescence and use, and lost by neglect and disuse. Indeed, all the writers upon the common law of England, as well as the civilians, have recognized the principle, that a right to any incorporeal hereditament may be acquired by lapse of time. This mode of acquisition has been by both denominated prescription, which they say is founded on usage,—longa, continua, et pacifica. They also state that every prescription. supposes a grant once made and afterwards lost; and that, therefore, nothing can be claimed by prescription which in its nature could not have been granted.

Prescription may be defined as "a title acquired by possession had during the time and in the manner fixed by law." By common law an enjoyment to confer a title

1 Civil Law, L. 17, ff. quemad. serv. amit.; Peter v. Daniel, 5 C. B. 563; Beeston v. Weate, 5 E. & B. 986.

2 See Cawkwell v. Russell, 26 L. J., Ex. 34.

3 Luttrell's case, 4 Rep. 86; Hall v. Swift, 6 Scott, 167; 4 Bing. N. C. 381.

4. Angell on Watercourses, p.

351.

5 Lib. 4, xxxviii, sect. 3.

6 Carlyon v. Lovering, 1 H. & N. 784; Rochdale Co. v. Radcliffe, 18 Q. B. 287; see also Ivimey v. Stocker, L. R., 1 Ch. 396.

7 Gale, 151; Co. Litt. 113 b; see also the judgment of Cockburn, C. J., in Angus v. Dalton, 3 Q. B. D. 100, where an elaborate history

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