Rights of As a right of way may be created by an express grant, so it may also arise by an implied grant, where the circumstances are such that the law will imply such grant. This right of way has been commonly termed a Implied grant way of necessity, but it is in fact only a right of way by implied grant; of ways of for there seems to be no difference where a thing is granted by express necessity. words, and where it passes as incident to the grant by operation of law (1 Wms. Saund. 323, n.; see 4 M. & S. 387). Where 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 (Pearson v. Spencer, 1 B. & S. 583; Pinnington v. Galland, 9 Exch. 1; Pyer v. Carter, 1 H. & N. 916; see Beaudely v. Brook, Cro. Jac. 189; Howton v. Fearon, 8 T. R. 50). So if the owner of two closes, having no way to one of them but over the other, part with the latter without reserving a right of way, it will be reserved to him by operation of law (Clarke v. Cogg, Cro. Jac. 170; Jordan v. Attwood, Owen, 121; London v. Rigg, 13 Ch. D. 798). On the sale of land to a purchaser who has notice that the adjoining land is to be laid out in building in a manner which will make a right of way over the purchased land necessary to the vendor, such right of way is reserved to the vendor by implication, as a way of necessity (Davies v. Sear, 7 Eq. 427). Instances of ways of necessity. Nature of a way of necessity. Duration of a way of necessity. A way of necessity cannot be pleaded generally, without showing the manner in which the land over which the way is claimed is charged with it (Bullard v. Harrison, 4 M. & S. 387; see 1 Wms. Saund. 323, n. 6). Where there is a private road through a farm, the parson may use it for carrying away his tithe, though there is another public way equally convenient (Cobb v. Selby, 6 Esp. 103; see James v. Dodds, 2 C. & M. 266). Where a man leases lands, reserving the timber, he may enter to show it to a purchaser (2 Rol. Abr. 74, 1, 41; 1 Rol. Abr. 109, 1, 5). So if a man grants to another certain trees in his wood, the grantee may go with carts over the grantor's lands to carry away the trees (Liford's case, 11 Rep. 52 a; Vin. Abr. Incident). A man having a right to wreck thrown on another man's land, has necessarily a right of way over such land to take the wreck (Anon., 6 Mod. 149). Where at the time of the grant in respect of which a right of way was claimed, there was a way which continued to exist, another way could not be claimed as a way of necessity, on the ground of its being more convenient than the former way (Dodd v. Burchall, 1 H. & C. 113). As to a right of way by necessity to land which had escheated to the lord of the manor, see Proctor v. Hodgson, 10 Exch. 824. Where a grantee is entitled to a way of necessity over another tenement belonging to the grantor, and there exist to the tenement granted more ways than one, the grantee is entitled to one way only, which the grantor may select (Bolton v. Bolton, 11 Ch. D. 968). A way of necessity, once created, must remain the same way as long as it continues at all (Pearson v. Spencer, 1 B. & S. 584). The lessee of an inner close has by necessity a right of way suitable to the business for which the lease was made, over an outer close which belongs to the same landlord (Gayford v. Moffatt, 4 Ch. 133). So where land was taken compulsorily for sewage works, the local board acquired a way of necessity for all purposes connected with these works (Serff v. Acton, 31 Ch. D. 679). general, however, a way of necessity is not created for all purposes for which the close to which the way leads may at any time be used; but only such a right of way as will enable the owner of the close to enjoy it in the condition it was in at the time of the creation of the way (London v. Rigg, 13 Ch. D. 798). In A way of necessity is limited by the necessity which created it; and when such necessity ceases, the right of way also ceases; therefore if, at any subsequent period, the party formerly entitled to such way can approach the place to which it led by passing over his own land, by as direct a course as he would have done by using the old way, the latter will cease to exist (Holmes v. Goring, 2 Bing. 76; Reynolds v. Edwards, Willes, Rights of 282; but see Buckley v. Coles, 5 Taunt. 311, and the remarks of Purke, B., Proctor v. Hodgson, 10 Ex. 828; see also Fheysey v. Vicary, 16 M. & W. 491). A right of way (where it does not create an interest in the land) is an Acquisition of incorporeal right, and stands upon the same footing as other incorporeal rights of way rights, such as rights of common, rents, advowsons, &c. It lies not in by grant prelivery, but in grant, and neither a freehold nor a chattel interest in it can sumed from be created or passed otherwise than by deed (5 B. & C. 229; see ante, user. p. 46). 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; see also Livett v. Wilson, 3 Bing. 115). Though an uninterrupted Knowledge of possession for twenty years and upwards be a bar to an action on the owner of fee. 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 (Daniel v. North, 11 East, 372); but if the user has been for a great length of time, it may be presumed that the landlord was aware of it (Davies v. Stephens, 7 C. & P. 570; Jamieson v. Coulter, 21 W. R. 852; Gray v. Bond, 2 Brod. & Bing. 667; see Dawson v. Norfolk, 1 Price, 247). A grant, however, may be presumed from one tenant to another (Timmons v. Hewitt, 22 L. R. Ir. 627). to tion at common law. A private way may be claimed by prescription; as that a man is seised Acquisition of in fee of a certain messuage, and that he, and all those whose estate he right of way has in the same messuage, have from time immemorial had a way (describ- by prescrip ing it, as the case may be) from A way being only an easement, and not an interest, should not be laid as appendant or appurtenant (Yelv. 159). Where a particular tenant relied on a prescriptive right, he must, before the act 2 & 3 Will. 4, c. 71, s. 5, ante, p. 16, 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)). 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 notwithstanding this evidence the right claimed by the defendant's plea might in law exist (Codling v. Johnson, 9 B. & C. 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, p. 16), 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). The user on which the prescription is based must be uninterrupted. Locking a gate across the way is interruption, although the claimant is given a key (Barry v. Lowry, I. R. 11 C. L. 483). As to claim to private rights of way under 2 & 3 Will. 4, c. 71, see ante, pp. 7, 8. A custom that every inhabitant of a certain village shall have a way Acquisition over certain land, either to church or to market, is good, because it is by custom. only an easement, but not a profit (6 Rep. 60 b.; Co. Litt. 110 b.; Cro. Rights of Way. Acquisition by statute. Nature and extent of rights of way acquired by express grant. Eliz. 180; see 2 H. Bl. 393; ante, pp. 23, 24). See, as to à church way, By an inclosure act, all ways over West Field, allotted to B., were to be extinguished from the time of the completion of a new road, with a proviso that nothing in the act should deprive A. of the right of ingress, egress, and regress, to and from a watercourse, for the purpose of rebuilding, or to cleanse the same; this reserved to A. his right of way unimpaired over West Field, for the purposes mentioned in the act (Adeane v. Mortlock, 5 Bing. N. C. 236). A private estate act authorizing the appropriation of land as a way for the general improvement of the estate and the accommodation of tenants and occupiers, was held to authorize the creation of exclusive private rights of way (White v. Leeson, 5 H. & N. 53). 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. & C. 140). Prima facie, the grant of a right of way is the grant of a right of way having regard to the nature of the locus in quo over which it is granted and to the purpose for which it is intended to be used. Both these circumstances may be called in aid in determining whether it is a general right of way, or a footway, or a driftway (Cannon v. Villars, 8 Ch. D. 421; see Osborn v. Wise, 7 C. & P. 761, post). On this principle, a way was held to be a footway in Cousens v. Rose, 12 Eq. 366; and a way for all purposes in Watts v. Nelson, 6 Ch. 166; see also Wood v. Stourbridge Co., 16 C. B. N. S. 222. A way over a private road to land abutting on the private road was not limited to a way through gates which existed at the time of the grant (South Metropolitan Co. v. Eden, 16 C. B. 42). Where there is an express grant of a private right of way to particular land, to the unrestricted use of which land the grantee of the right of way is entitled, the grant is not to be restricted to access to the land for purposes for which access would be required at the time of the grant (Finch 7. G. W. R. Co., 5 Ex. D. 254; United Land Co. v. G. E. R. Co., 10 Ch. 586; Newcomen v. Coulson, 5 Ch. D. 133). In Allan v. Gomme (11 Ad. & E. 759), the grantee of a right of way was 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 grant. This ruling, however, was not approved of by Parke, B. (Hening v. Burnett, 8 Exch. 192), and the case was treated by Stephen, J., as turning on the construction of the particular deed (Finch v. G. W. R. Co., 5 Ex. D. 259). On the construction of a lease the grant of a right of way was restricted to the way existing at the date of the lease (Collins v. Slade, 23 W. R. 199). Where a lease reserved to the lessor and his assigns a right of way for the purpose of rebuilding erections 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, the user was restrained (Ardley v. St. Pancras, 1870, W. N. 203; 39 L. J. Ch. 871; see Sloan v. Holliday, 30 L. T. 757). Compare the ruling as to the extent of an easement to discharge drainage over another's land (Wood v. Saunders, 10 Ch. 582). Under a grant of a free and convenient horse and foot way, and for carts, &c., "to carry stones, timber, coals, and other things whatsoever," the grantee may lay a framed way across the land for carrying coals as being most convenient (Senhouse v. Christian, 1 T. R. 560). In 1630 land was granted excepting and reserving out of the grant all mines of coal with sufficient way leave to the said mines. It was questioned whether under this reservation the coal-owner had now a right to make a railway. 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 M. & W. 174; see Newcomen v. Coulson, 5 Ch. D. 139). Where a lease reserved minerals with authority to work and carry away the same with free way leave to and from the same or to or from any other mines, the reservation only included way leave for the purpose of getting the excepted minerals, and a railway having been made, the proper question for the jury was whether when the road was formed it had become necessary or expedient to make a road for the purpose of getting the excepted minerals; and, if so, whether the road was a proper one for that purpose (Durham R. Co. v. Walker, 2 Q. B. 940; Farrow v. Vansittart, 1 Ry. Cas. 614). Where, however, A. granted land excepting and reserving a waggon or cart road of the width of eighteen feet, to be at all times thereafter kept in repair at his own cost, this reservation did not enable A. to lay down a railroad for carrying coals raised from his neighbouring colliery (Bidder v. North Staffordshire R. Co., 4 Q. B. Div. 212). 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: the sublessee was entitled to a convenient way only (Harding v. Wilson, 2 B. & C. 96; see Espley v. Wilkes, L. R. 7 Ex. 298). Rights of A grant of a right of way over a private road only confers a right to a Reasonable reasonable use of such road, and not necessarily over the whole surface of user. the road (Clifford v. Hoare, L. R. 9 C. P. 362). So in the case of a private way over waste land (Hulton v. Hamboro, 2 F. & F. 218). Where premises are 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. Carbine, 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, 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 (Ib.) As to the construction of " the exclusive use of the gateway," see Reilly v. Booth (44 Ch. Div. 12). Where a right of way is granted for the occupation of a dwelling-house, the grantee ought to have everything needful for the occupation of the house. Such a grantee was held entitled to put down a flagstone in front of a door opened by him out of his house into the land over which the right existed (Gerrard v. Cooke, 2 Bos. & P. N. R. 109). On the construction of the devise of a right of way, it was held limited to the lifetime of the devisee (Pym v. Harrison, 33 L. T. 796). General words reserving a wayleave to a bishop for coal got out of any land were restricted by the context to land belonging to the See (Midgley v. Richardson, 14 M. & W. 495; see Hedley v. Fenwick, 3 H. & C. 349). 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. 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 (Ackroyd v. Smith, 10 C. B. 164; 19 L. J. Č. P. 315; see Thorpe v. Brumfitt, 8 Ch. 650). A grantor having once defined a way cannot alter it (Deacon v. S. E. R. Co., 1889, W. N. 79). In an action for obstructing a way, granted by a lease from the defen- Evidence as dant to the plaintiff, the judge will receive evidence of the state of the to grants. 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 C. & 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 Rights of Nature and extent of rights of way acquired by user. Right to deviate. Repair of way. Liability for negligence. opposite side of the lane from the defendant's premises: it was held, that the deeds were wrongly admitted for that purpose (R. v. Chorley, 12 Q. B. 515; and see Baird v. Fortune, 10 W. R. 2). Where there is a right of way proved by user, the extent of the right must be measured by the extent of the user (Finch v. G. W. R. Co., 5 Ex. D. 258; see Williams v. James, L. R. 2 C. P. 577; Wimbledon Conservators v. Dixon, 1 Ch. D. 362; Bradburn v. Morris, 3 Ch. D. 812). Evidence of an user of a road with horses, carts, and carriages, for certain purposes, does not necessarily prove a right of road for all purposes, but the extent of the right is a question for the jury under all the circumstances. If the way is confined to a particular purpose, the jury ought not to extend it; but if it is proved to have been used for a variety of purposes, the jury may be warranted in finding a way for all (Cowling v. Higginson, 4 M. & W. 245; see Dare v. Heathcote, 25 L. J. Ex. 245; 26 Ib. 164; Hawkins v. Carbines, 27 L. J. Ex. 44; Ballard v. Dyson, 1 Taunt. 279; Jackson v. Stacey, Holt, N. P. C. 455; Higham v. Rabbett, 5 Bing. N. C. 622). When a way to a dwelling-house had been acquired by user, it was held there was no excess of user by reason of a small shop having been opened in the house (Sloan v. Holliday, 30 L. T. 757). The defendant, being entitled by 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 on the land adjoining. The jury found 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 there was no excessive user (Williams v. James, L. R. 2 C. P. 577). 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 M. & S. 387; 1 Wms. Saund. 322 a, n. (3); Duncombe's case, Cro. Car. 366; see Robertson v. Gauntlett, 16 M. & W. 289). But where a private way has been obstructed by the grantor, the grantee may deviate over the grantor's land (Selby v. Nettle fold, 9 Ch. 111). 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.); Newcomen v. Coulson, 5 Ch. D. 143), 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 C. & 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 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 (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 an accident caused by the negligence of himself or his servants to a person 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; Belch v. Smith, 7 H. & N. 736). The possessors of a cutting, and a bridge over the cutting, who allowed the public to use |