Unity of seisin.

V. Thompson, 1 Bos. & Pul. 371.) An existing way will pass by the word appurtenances." (Ib. See post, p. 78.)

Where there is an unity of seisin of the land, and of the way over the land, in one and the same person, the right of way is either extinguished or suspended, according to the duration of the respective estates in the land and the way; and after such extinguishment, or during such suspension of the right, the way cannot pass as an appurtenant under the ordinary legal sense of that word. In the case of an unity of seisin, in order to pass a way existing in point of user, but extinguished or suspended in point of law, the grantor must either employ words of express grant, or must describe the way in question as one "used and enjoyed with the land" which forms the subject-matter of the conveyance. (James v. Plant, 4 Ad. & El. 761.) Estates A. and B., formerly distinct, became vested in coparceners. Before that time a right of way had been enjoyed from A. over B., and after the unity of seisin the way always continued to be used. The parceners, for the purpose of making partition, conveyed to a releasee to uses the messuages, tenements, lands, &c. (of which the estates consisted), and all houses, outhouses, ways, easements, &c., to the said several messuages or tenements, lands, &c., belonging or appertaining or therewith usually held, used, occupied or enjoyed; to have and hold the messuages, &c., called A. with the buildings, lands, &c., thereunto belonging, and their appurtenances, to the releasee, to the use of S. in fee; habendum, as the estate B., in similar terms; with respect to the parcels, to the releasee to his own use in fee, in order that he might become tenant to the præcipe in a recovery: it was held, that the deed sufficiently showed an intention that a right of way (which was admitted to have been used up to the time of the deed) from the high road over B. to A. and back, for the convenient use of A. by the occupiers of A., should pass to the uses limited as to A.; that by the word "appurtenances" in the habendum as to A., interpreting that clause with reference to the other parts of the deed, the way in question did pass; and that the releasee to uses, having no estate in A., interpreting that clause with reference to the other parts of the deed, the way in question did pass; and that the releasee to uses, having no estate in A., had not such seisin of the soil as would extinguish the right of way by unity of seisin. (James v. Plant, 4 Ad. & El. 749; 2 Nev. & M. 517.)

Nothing is more clear than that under the word "appurtenances," according to its legal sense, an easement which has become extinct, or which does not exist in point of law, by reason of unity of ownership, does not pass. (Grimes v. Peacock, 1 Bulst. 17; Saundeys v. Oliff, Sir T. Moore, 467 ; Whalley v. Thompson, 1 Bos. & P. 371; Clements v. Lambert, 1 Taunt. 205; Barlow v. Rhodes, 1 Cromp. & Mees. 439; ante, p. 50. See Worthington v. Gimson, 6 Jur., N. S. 1053.)

If the grantor wish to revive or create such a right, he must do it by express words, or introduce the terms "therewith used and enjoyed:" in which case easements existing in point of fact, though not existing in point of law, would vest in the grantee. (Per Parke, J., 2 Nev. & Mann. 522.)

A question has often arisen, where unity of ownership in land and in a right of way over the land has taken place, as to what subsequent grant by the owner is sufficient to convey the continued enjoyment of the easement as well as the land itself. It seems from these decisions, that, inasmuch as the unity of ownership extinguishes the easement, the right of way cannot pass as simply appurtenant to the land to which it was formerly attached, though it continues to exist in point of user. But though it does not exist as a right, it will pass by a conveyance of the land if proper words be used to pass it, as if all ways "used and enjoyed" with the land are conveyed. (Barlow v. Rhodes, 1 Cr. & M. 439; James v. Plant, 4 Ad. & Ell. 749.) The same rule applies where a conveyance purports to be of all waters, watercourses, privileges, easements, advantages and appurtenances to the premises belonging, or in anywise appertaining to or with the same or any part thereof held, used, occupied or enjoyed, or deemed to be so. (Wardle v. Brocklehurst, Ell. & Ell. 1058.)

If a right of way is appurtenant to a piece of land which is demised, the

right of way passes also without any special mention of such right. (Skull

v. Glenister, 7 L. T., N. S. 827.)

A., being a termor of land, built two houses on it; the whole was then Extinguishment released to him in fee, with all ways, easements, advantages and appurte- by unity of ownernances thereunto belonging, or therewith usually used, leased, held, occupied ship. or enjoyed. By his will he devised one house, and the appurtenances thereunto belonging, to B., and the other to C., in similar terms. During A.'s ownership of both, the entrance from the high road to the principal door of the house, afterwards devised to B., was by a set-out carriage drive or sweep, entering from a high road passing immediately in front of the house, afterwards devised to C., to B.'s door, and then returning round an oval garden in front of C.'s house, but at a greater distance from it, to the same point of entrance. B.'s house had a coach-house, opening only into the high road, and a back entrance into the same. After A.'s death, C. made a fence across so much of the carriage drive as passed immediately in front of his house and across the oval garden, leaving the further way to B.'s front door by the same carriage drive open. B. brought trespass, claiming the way as appurtenant to his house and garden: it was held, first, that the way as used in A.'s time, during the unity of ownership in him, immediately in front of C.'s house, did not pass to B. with the house devised to him under the word "appurtenances" in A.'s will. (Pheysey v. Vicary, 16 M. & W. 484.) And it seems that it did not pass as a way of necessity, whether taken in the strict sense, or as a way without which the most convenient and reasonable mode of enjoying every part of B.'s premises could not be had. (Ib.)

In an action for trespass for breaking and entering a close called the Hencroft, the defendant pleaded that C., being owner in fee of the said close, granted to W. H., by indenture, a way over the said close for the occupiers of a certain dye-house, and that the defendant, being in the occupation of the dye-house, committed the said trespass. The plaintiff claimed oyer of the indenture, and set it out in his replication. By the indenture C. granted, bargained, &c., to W. H. all those newly-erected buildings standing and being partly on the said close called the Hencroft, and partly on B. C., together with all and singular outhouses, edifices, buildings, roads, ways, &c., and appurtenances, with the said premises usually held, occupied and enjoyed, the said C. reserving to himself exclusively the said Hencroft, with the rights, privileges and appurtenances within and to the same belonging: it was held, on special demurrer, that the plea was bad, in omitting to aver that the way had been usually held, occupied or enjoyed with the Hencroft. (Tatton v. Hammersley, 3 Exch. 279; 18 L. J., Exch. 162.) It was held also, that no right of way was granted by C. over the Hencroft. (Ib.)

Commissioners of partition may award a right of way over the lands of one party to the lands of another party interested in the partition. (Lister v. Lister, 3 Y. & Coll. 540.)

A right of way or a right of passage for water (where it does not create an Presumption of interest in the land) is an incorporeal right, and stands upon the same foot- grants of way. ing with other incorporeal rights, such as rights of common, rents, advowsons, &c. It lies not in livery, but in grant, and neither a freehold nor a chattel interest in it can be created or passed otherwise than by deed. (5 B. & Cr. 229. See ante, p. 58.) Grants of rights of way are presumed from long enjoyment, where its commencement cannot be accounted for, unless a grant has been made. (5 B. & Ald. 237.) The uninterrupted enjoyment of a right of way for twenty years, in the absence of evidence that it had been used by leave or favour, or under a mistake, was held sufficient to leave to a jury to presume a grant, although the road in question had been extinguished about twenty-six years before, under the award of the commissioners of an inclosure act. (Campbell v. Wilson, 3 East, 294.) So where there had been an absolute extinguishment of a right of way for many years by unity of possession, but the way had been used for thirty years preceding an action for its obstruction, the jury were directed to presume a grant from the defendant. (Keymer v. Summers, Bull. N. P. 74, cited 3 T. R. 157.) Where a defendant pleaded a grant of a right of way by deed subsequently lost, and

Knowledge of owner of the fee.

By prescription.

the plaintiff in his replication traversed the grant, and at the trial there was conflicting testimony as to the uninterrupted user of the way, a direction by the judge to the jury to find for the defendant, if they thought he had exercised the right of way uninterruptedly for more than twenty years by virtue of a deed, and to find for the plaintiff if they thought there had been no way granted by deed, was held to be right. (Livett v. Wilson, 3 Bing. 115.) Though an uninterrupted possession for twenty years and upwards be a bar to an action on the case, yet the rule must be taken with this qualification, that the possession was with the acquiescence of the person seised of an estate of inheritance. The mere knowledge of the tenant is not sufficient, otherwise he might collude to the prejudice of his landlord. But presumptions are sometimes made against the owners of lands, during the possession and by the acquiescence of their tenants, in cases of rights of way and of common, because the tenant suffers an immediate and palpable injury to his own possession, and therefore is presumed to be upon the alert to guard the rights of his landlord as well as his own. (Daniel v. North, 11 East, 372.) In every case where the party claiming relies on his want of possession, the question whether he knew or not of the enjoyment is to be determined by the circumstances of the case, and may very properly be left for the consideration of the jury. (Dawson v. Duke of Norfolk, 1 Price, 247; Gray v. Bond, 2 Brod. & Bing. 667.) The user of a way during the occupation of tenants does not bind the landlord, unless he was aware of it; but if the user has been for a great length of time, it may be presumed that he was aware of it. (Davies v. Stephens, 7 Carr. & P. 570.) The knowledge of the owner of the land and his acquiescence may be presumed from circumstances. Thus where the lessees of a fishery had publicly landed their nets on the shore at A. for more than twenty years, and had, at various times, dressed and improved the landing-place, and both the fishery and the landing-place originally belonged to one person, but no evidence was offered to show that he or those who under him owned the shore at A. knew of the landing nets by the lessees of the fishery: it was held, that it was properly left to the jury to presume a grant of the right of landing to the lessees of the fishery by some former owner of the shore at A. (Gray v. Bond, 2 Brod. & Bing. 667; 5 Moore, 527.)

There being two tenants of adjoining premises held under the same landlord, the tenant of one of the premises acquired a right of way to his vaults through the adjoining premises. The landlord sold both premises at one sale, with a condition that they were to be subject to and with the benefit, as the case might be, of all subsisting rights or easements of way or passage, so far as any lot might be affected thereby: it was held, that the vendor, being subject to no liability as to right of way, the purchaser of one tenement could not enforce a right of way as against the other. (Daniel v. Anderson, 8 Jur., N. S. 328; 31 L. J., Chan. 610; 10 W. R. 366.)

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

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 what was a reasonable user was for the jury. (Ib.)

A private way may also be claimed by prescription; as that a man is seised in fee of a certain messuage, and that he, and all those whose estate he has in the same messuage, have from time immemorial had a way (describing it as the case may be) from to. A way being only an easement, and not an interest should not be laid as appendant or appurtenant. (Yelv. 159.) Where a particular tenant relies on a prescriptive right, he must, before the act 2 & 3 Will. 4, c. 71, s. 5, ante, pp. 21, 30, have set forth the seisin in fee of the owner, and then have traced his own title from the owner of the fee. (2 Salk. 562; Com. Dig. Chimin, (D. 2).) Unity

of possession of the land to which the way is claimed as appurtenant, with the land over which the way lies, extinguishes the way; for it is an answer to the prescription, and the way is against common right. (1 Roll. Abr. 935; 3 T. R. 157; 5 East, 295; Whalley v. Thomson, 1 Bos. & Pull. 371; Buckhy v. Coles, 5 Taunt. 311.) But where in trespass quare clausum fregit, the defendant prescribed in a que estate for a right of way over the locus in quo, and it appeared that the defendant's land had, within fifty years, been part of a large common, and afterwards inclosed under the provisions of an act of parliament, and allotted to the defendant's ancestor, it was held, that not. withstanding this evidence the right claimed by the defendant's plea might in law exist: and the jury having found that in fact it did exist, the court refused to disturb the verdict. (Codling v. Johnson, 9 B. & Cr. 933.) If the lessor enjoy a prescriptive right of way, or any other easement, by virtue of the demised premises, such right will pass to the tenant for life or years. Before the act 2 & 3 Will. 4, c. 71, (see ante, s. 5, pp. 21, 30,) the only distinction between a tenant for years and a tenant for life was, that the former in pleading could not prescribe in his own right; but he must have asserted the right through his landlord, or the owner of the freehold. (Cantrell v. Stephens, Styl. 300; Dawney v. Cashford, Carth. 432.)

A custom that every inhabitant of a certain village shall have a way over By custom. certain land, either to church or to market, is good; because it is only an easement, but not a profit. (6 Rep. 60 b.; Co. Litt. 110 b.; Cro. Eliz. 180.

See 2 H. Bl. 393; ante, pp. 31, 32.)

A right of way may be claimed by express reservation; as where A. grants By express reserlands to another, reserving to himself a way over such land. (1 Roll. Abr. vation. 109, pl. 45; Com. Dig. Chimin, (D. 2); and see Earl of Cardigan v. Armitage, 2 Barn. & Cr. 197; 3 Dowl. & R. 414.) Tindal, C. J., in Durham and Sunderland Railway Company v. Walker, 2 Q. B. 967, observed, "a right of way cannot in strictness be made the subject either of exception or reservation. It is neither a parcel of the thing granted, nor is it issuing out of the thing granted, the former being essential to an exception and the latter to a reservation. A right of way reserved (using that word in a somewhat popular sense) to a lessor, is, in strictness of law, an easement newly created by way of grant from the grantee or lessee, in the same way as the right of sporting or fishing." (See Doe d. Douglas v. Lock, 2 Ad. & Ell. 705; Wickham v. Hawker, 7 Mees. & W. 63.) In order to establish an easement claimed by lessors, as in the nature of a grant from the lessee, it would in general be essential to show the execution of the lease by the lessees. (Durham and Sunderland Railway Company v. Walker, 2 Q. B. 967.)

The dean and chapter of Durham, being seised in fee of lands in that county, demised them, in 1832, to W., by indenture between them and him, containing this clause: "except and always reserved out of this present lease, indenture or grant, the woods, underwoods, and trees now growing or hereafter to grow upon the said demised premises, and the mines, quarries, and seams of clay within and under the same, with full and free authority and power to cut down, take and carry away the said wood and trees, and to dig, win, work, get and carry away the said mines, quarries, and seams of clay, with free ingress, egress and regress, wayleave and passage, to and from the same, or to or from any other mines, quarries, seams of clay, lands and grounds, on foot and on horseback, with carts and all manner of carriages, and also all necessary and convenient ways, passages, conveniences, privileges, and powers whatsoever for the purposes aforesaid, and particularly of laying, making and granting waggonway or waggonways in and over the said premises or any part thereof, paying reasonable damages for spoil of ground to be thereby done, upon the adjudication of two indifferent persons to be chosen by the parties, always excepted and reserved to the said dean and chapter, their successors, grantees or assigns." Four different constructions of this clause were suggested: first, that the meaning was to reserve to the dean and chapter an unlimited power of granting wayleaves over all or any part of the lands demised, without any restriction whatever as to the uses to which the ways should be applied: secondly, if that were considered too wide a construction, then it was contended that the clause authorized the granting of wayleaves for the purpose of carrying

Grants of rights

of way in refer

ence to mines.

When right of way did not pass.

coals and minerals from whatever mines they might have been raised and gotten thirdly, it was argued that at all events the dean and chapter had, under the reservation, the power of granting wayleaves for the transport of their own mines and minerals, whether raised from under the lands demised or from any other lands: and, fourthly, it was contended that the deed in fact gave no power to the dean and chapter, except that of making ways and granting wayleaves for the purpose of getting the coal and minerals excepted in the demise. The Court of Exchequer Chamber were all of opinion that the fourth, which is the most limited construction, is the correct one, and that the only right reserved to the dean and chapter is that of making and granting the right of making ways over the demised lands for the purpose of getting the excepted wood, mines and minerals. (Durham and Sunderland Railway Company v. Walker, 2 Q. B. 940.) In Farrow v. Vansittart, 1 Railw. Ca. 602, 614, the same construction was put upon a clause in one of the dean and chapter's leases, exactly similar to the one above stated.

An act of parliament for inclosing the moors and commons within the manor of Lancaster, in the county of Durham, contained a saving of all the seignoral rights of the Bishop of Durham, as lord of the manor, and also provided that the bishop and his successors, and their lessees and assigns, should at all times thereafter work and enjoy all mines and quarries lying under the said moors and commons, together with all convenient and necessary ways and wayleaves over the same, and full and free liberty of making and using any new roads or waggonways over the same, and for that purpose to remove obstructions, &c., and of winning and working the said mines and quarries belonging to the see and bishopric of Durham, wheresoever the same should be, and of leading and carrying away all the coals, minerals, &c., to be gotten thereout, or out of any other lands and grounds whatsoever, &c. It was held, that this clause entitled the bishop to carry over the lands inclosed under the act, not only coals and minerals got within or under those lands, but also those got out of any other mines belonging to the see of Durham; but not to carry coals, &c., got out of other mines worked by the bishop, but not belonging to the see. It was held, also, that an allegation, that a certain colliery was within and parcel of the manor, was not a sufficient allegation that it was a colliery belonging to the see. (Midgley v. Richardson, 14 Mees. & W. 595.)

By a deed dated in 1830, the grantor conveyed in fee farm land in the manor of A., in the county of Northumberland, "excepting and reserving out of the grant all mines of coals within the fields and territories of A. aforesaid, together with sufficient wayleave and stayleave to and from the said mines, with liberty of sinking and digging pit and pits; with a covenant by the grantees, that they, their heirs and assigns, "should give such accustomed recompence for digging and breaking the ground within A. aforesaid, in which any pits should thereafter happen to be sunk and wrought, as formerly had been usually given and allowed there in like cases.' By another deed, of the same date, the same parties conveyed in fee farm, to other persons, land in the manor of H. (adjoining A.), with a like exception, reservation and covenant. It was questioned whether, under this reservation of a sufficient "wayleave," the coalowner had now a right to make a railway, for the purpose of carrying coals from the mines for ship. ment, with cuttings and embankments, and fenced in so as to exclude the 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. It was held, also, that, under the reservation in the former deed, the coalowner could not carry over A. coals got in H., although part of the same mineral field. (Dand v. Kingscote, 6 Mees. & W. 174.)

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