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OF A COL-
LIERY.

see, within a
certain time
from the end
of the term,
may lead coals
then at bank.

All the coal waggons to be of one measure.

Lessee to have power to determine the term.

Agreement for valuation of the stock and machinery at the commencement and the end of the term, and the payment of the balance by the proper party.

That it shall be lawful for the said C. D., his executors, administrators, and assigns, at any time or times within the space of twelve calendar months next after the expiration or other sooner determination of the said term hereby granted, to have, take, lead, and carry away, and sell or dispose of, all such coals as shall, at the expiration or other sooner determination of the said term hereby granted, be ready wrought and laid above ground at the pit or shaft, pits or shafts, and spouts of and belonging to the said colliery: And It Is Hereby agreed, that all the waggons to be employed in carrying coals from the said colliery shall be of one measure, and in case any alteration shall at any time be made in the size or measure of the said waggons, three calendar months' previous notice in writing of such alteration shall be given to the said A. B., his heirs or assigns, or his or their agent or agents for the time being, or left for him or them at his, her, or their dwelling-house or place of abode, [Power to C. D., his executors, administrators, or assigns, to determine the term at the end of the sixth or any subsequent year, on giving or leaving twelve calendar months' previous notice in writing, as in the last clausesee supra, p. 159]: And It Is Hereby agreed and declared between and by the said parties to these presents, that a fair and proper valuation shall be forthwith made of the several fire and steam-engines, engine-houses, boilers, cylinders, spouts, staiths, waggon and rail ways, and other articles of the fixed stock or materials, of and belonging to the said colliery, and that copies of such valuation, when so made, shall be signed by the person or persons making the same, and also by the said parties hereto, who shall then each take and keep one of such copies so signed as aforesaid, and that at the expiration or other sooner determination of the said term, a similar valuation shall be made of the fixed stock and materials which shall then belong to and be used in the said colliery, and if the amount of the said valuation to be forthwith made as aforesaid, shall exceed the amount of the valuation to be made at the expiration or other sooner determination of the said term, then and in such case the said C. D., his executors, administrators, or assigns, shall and will pay or cause to be paid, to the said A. B., his heirs, executors, administrators, or Of A Col

Liery.

assigns, such sum or sums of money as shall be necessary to make up the difference in the amounts of the said valuations; but if the amount of the said valuation, to be made at the expiration or other sooner determination of the said term hereby granted, shall exceed the amount of the valuation thereof to be forthwith made as aforesaid, then and in such case he the said A. B., his heirs, executors, administrators, or assigns, shall and will pay or cause to be paid to, or permit and suffer the said C. D., his executors, administrators, or assigns, to retain to and reimburse himself or themselves out of the said rents hereby reserved and then remaining unpaid, such sum or sums of money as shall be necessary to make up the difference in the amounts of the aforesaid valuation: And It Is Hereby further agreed and Live and movdeclared between and by the said parties to these presents, be'fo^^t'h that the live and movable stock and materials of and be- valued and paid longing to the said A. B., and now used in and about the gee in puis of said colliery, shall be forthwith properly valued, and that ^tai^tes he the said C. D., his executors, administrators, or assigns, shall and will pay or cause to be paid to the said A. B., his executors, administrators, or assigns, immediately after such last-mentioned valuation shall have been made, the full amount thereof in four bills, to be drawn by the said A. B. upon and accepted by the said C. D., and to be payable respectively at three, six, nine, and twelve months from

the day of last, each of such bills to be drawn for

one-fourth part of the said amount: And It Is Hereby fur- —and to be ther agreed and declared between and by the said parties to stock^cMk)6 these presents, that the live stock and materials of and be- at the end of longing to the said colliery, at the expiration or other sooner pai,i for'by ^e determination of the said term, or then used and employed lessor, in leading and carrying away the coals to be wrought and gotten thereout, and also all the coals which shall be then wrought and gotten thereout, and which shall then be unsold and shall be lying above ground at the pits or shafts and spouts of and belonging to the said colliery, (not exceeding

the quantity of tons), shall, at the expiration or other

sooner determination of the said term hereby granted, be fairly and properly valued as the stock and materials of a

vOL. Iv. N

OF A COL-
LIERY.

Arbitration clauses.

working or current going colliery; and that the said A. B., his heirs, executors, administrators, or assigns, shall and will, within twelve calendar months after such valuation as is lastly hereinbefore directed shall have been made, pay or cause to be paid to the said C. D., his executors, administrators, or assigns, the full amount or sum thereof, and that thenceforth the said live stock and materials and coals shall belong to and be the property of the said A. B., his heirs, executors, administrators, or assigns for ever, according to the different natures and qualities of the same: And &c. [arbitration clauses, supra, p. 159, extending the introductory part so as to meet the case of a disputed valuation]: In Witness &c.

XII.

Way-leave. LEASE of a Way-leave. Reservation of a

Certain Rentof Tonnage Rentsof a
Compensation Rentof a Penal Rent
and of a stated Rent in Coals (a). Usual
Covenants and Clauses.

THIS INDENTURE, made &c. Between A. B., of
&c. [lessor], of the first part; and C. D., of &c, E. F., of

Parties.

Meaning of the (°) A way-leave is a private right of way over auother man's land, term way- and is commonly applied to a right of way granted for the carriage leave. 0£ coa1s an(1 0ther minerals to their place of sale or shipment. It

will, therefore, be convenient to refer to some of the leading authorities on points connected with private rights of way, bearing in mind that much additional light will be derived from a consideration of the cases which relate to lights, water-courses, and other easements, but which our limits will not permit us to notice. The cases, too, which relate to public rights of way may be advantageously consulted.

Title to a right A private right of way over another man's land is an easement, of way; (5 B. & C. 229), and a title to it can therefore be made only by

irrant, express or implied. (1 Wms. Saund. 323, n. (6)). —by express An express grant of a freehold interest in a right of way must be grant;

&c, and G. H., of &c. [lessees], (for and on behalf of them- Way-leavr. selves and the other owners of colliery, in the said

by deed; (Fentiman v. Smith, 4 East, 107; Hewlins v. Shippam, 5 B. & C. 229); and probably the law is the same in the case of a chattel interest. (Co. Litt. 85. a.; 5 B. & C. 229). But a right of way cannot be created by a bargain and sale, for by a bargain and sale nothing but a use passes, and there cannot be a use of a thing not in esse. (Beaudeley v. Brook, Cro. Jac. 189). It is apprehended, however, that the words " bargain and sell" would now be held to imply a grant, for any words which clearly indicate an intention that a right of way shall pass, be they in the shape of a covenant or otherwise, are sufficient to constitute a grant. (Holmes v. Sellers, 3 Lev. 305; LordMountjoy's case, Godb. 17; S. C. 1 And. 307; Moore, 174). But a lease of a .piece of ground, described as abutting on "an intended way of thirty feet wide," does not constitute a grant of a way of that width, it is sufficient that a way of convenient width is left; (Harding v. Wilson, 2 B. & C. 96; 3 Dow. & Ry. 287); and, therefore, the draftsman should always take care that his draft specifies the width of which the way is to bo, in such terms as to bind the grantor. Where land was granted and described as abutting on a certain road, but between which and the road in one part was a narrow slip of land, it was held, that the grantee had a right of way over the slip; (Roberts v. Karr, 1 Taunt. 495); but a grant of a right of way along certain lands from A. to B. does not include a right of making a transverse road. (Senhouse v. Christian,

1 T. R. 560; see, too, Monmouth Canal Company v. Harford, 1 C, M. & R. 614; S. C. 5 Tyr. 85). A right of way may be granted by the award of commissioners of partition over the lands of one party to those of another interested in the partition. (Lister v. Lister, 3 You. & Col. 640).

A title by implied grant may be either by necessity or prescrip- —by necessity, tion. The title by necessity is where the purchaser of land has no ?r 8^,.°?!essarj'7 lawful access to it, but over other land of the vendor, and in that case he obtains such right of way by necessary implication. (Clarke v. Cogge, Cro. Jac. 170; 1 Wms. Saund. 323, n. (6); see, too, Morris v. Edgington, 3 Taunt. 24; Buchby v. Coles, 6 Taunt. 311; Reignolds v. Edwards, Willes, 282). And where a trustee sold land to which there wras no access but over land of his own, a right of way over that land passed to the purchaser by necessary implication. (Hotcton v. Frearson, 8 T. R. 50). And the law is the same between lessor and lessee. (Hinchcliffe v. The Earl of Kinnoul, 5 Bing. N. C. 1). A parson has a right of way by necessity to carry away his tithes. (See Cobb v. Selby, 1 Bos. & Pul. N. R. 466 ; James v. bods,

2 Cro. & Mee. 266; S. C. 4 Tyr. 101). A way of necessity cannot be pleaded without shewing its origin in the unity of possession of Way-leave, county of ), of the other part: WITNESSETH, that,

Witnesseth, for and in consideration of rents hereinafter reserved, and

the lands from and over which it passes; if the origin cannot be shewn, it must be pleaded as a way by prescription. (1 Wms. Saund. 323, n. (6); Bullard v. Harrison, 4 Mau. & Sel. 387). A way of necessity is not acquired by the owner of the lands over which an old way by prescription passed, having destroyed that way; in such case the claimant's remedy is to have the old way restored. (Reig« nolds v. Edwards, Willes, 282). For an old way is not destroyed by

the owner of the land making a new way. (Adeane v. Mortlock, 5 Bing. N. C. 236; see, too, Payne v. Shedden, 1 Moo. & Rob. 382). A way of necessity ceases with the necessity which gave rise to it; as when the grantee purchases lands by which he can get access to his former lands; (Holmes v. Goring, 2 Bing. 76; S. C. 9 J. B. Moore, 166); and although it has been imagined, that under certain circumstances the way will be revived, (see the cases infra), yet it seems that in many instances, what is called a revival, is in fact the creation of a new way by necessity. (See further, with respect to ways by necessity, Com. Dig. Chimin, D. 3; Jorden v. Atvoood, 1 Roll. Abr. 936).

i,y prescrip. The title by prescription is where the right of way has been enjoyed

tion, or an im- without interruption for such time and under such circumstances wMcVhas' aS ^aw requires to make good a title of that nature. Before the ceased to exist; recent statute, (see infra), an uninterrupted enjoyment for twenty years was considered a sufficient presumption of a former grant which had ceased to exist. (Campbell v. Wilson, 3 East, 294; Livett v. Wilson, 3 Bing. 115). But, of course, such a grant could only be presumed where the ownership and circumstances of the property over which the way passed had been such at the commencement of the user of the way, and till within twenty years, as rendered a valid grant feasible. Thus, where, at the commencement of the user, and till within twenty years, the land was in tenancy, and the landlord had no knowledge of the easement enjoyed, no grant could be presumed. (Daniel v. North, 11 East, 372). And so where the land belonged to a rectory, no right of way could be acquired by prescription. (Barker v. Richardson, 4 B. & Aid. 579). Or where unity of possession of the land over which the way passed, and for which it was prescribed, was proved. ( Wright v. Rattray, 1 East, 377; see, however, Codling v. Johnson, 9 B. & C. 933; S. C. 4 Man. & Ry. 671). A man may, however, prescribe for a right of way which passes in part over intervening land of his own. (Jackson v. Shillito, cited 1 East, 381; see, however, Sloman v. West, Palm. 387; S. C. 2 Roll. Rep. 397; Wright v. Rattray, ubi supra). Where a right of way had been attached to a house having a yard, and the occupier of the house had ceased to use it, it was held, that the

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