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of the covenants, conditions, and agreements hereinafter Way-leave. contained, and on the part of the said C. D., E. F., and

occupier of a piece of land which had heen detached from the yard, had no claim to the right of way. {Bower v. Hill, 2 Bing. N. C. 339; and see further, with regard to ways hy prescription, Sampson v. Applet/ard, 3 Wils. 272; Simpson v. Lewthwaite, 3 B. & Ad. 226; Vallance v. Savage, 5 Moo. & Pay. 576). With respect to the manner in which a way by prescription should be pleaded, see Blockley v. Slater, 1 Lutw. 119; Warren v. Sainthill, 2 Ventr. 185; Rider v. Smith, 3 T. R. 766; Houghton v. Butler, 4 T. R. 364; 1 Wms. Saund. 113 a, n. (1); Bertie v. Beaumont, 16 East, 33; Stott v. Stott, 16 East, 343; Proud v. Hollis, 1 B. & C. 8; Hollis v. Proud, 2 Dow. & Ry. 31; Large v. Pitt, Peake's Add. Cases, 152; Bull. N. P. 74.

Much however of the learning, with regard to the title by pre- —under tne scription to rights of way, is now of little avail; for the recent ^jui^^^^ statute 2 & 3 Will. 4, c. 71, has made uninterrupted user for a 3 Will.4,c. 71) certain length of time a sufficient title to a right of way. By sect, by user. 2 of that statute, it is enacted, that no claim of way over any land, (whether belonging to the crown, or to any ecclesiastical or lay person, or body corporate), when such way shall have been actually enjoyed by any person claiming right thereto, without interruption, for the period of twenty years, shall be defeated or destroyed by shewing only, that such way was first enjoyed at any time prior to such period of twenty years; but such claim may nevertheless be defeated in any other way by which the same before the passing of the act was liable to be defeated; and where such way shall have been so enjoyed as aforesaid for the period of forty years, the right thereto shall be deemed absolute and indefeasible, unless it shall appear that the same was enjoyed by some consent or agreement, expressly given or made for that purpose, by deed or writing. The 4th section of the statute enacts, that each of the above-mentioned periods of years shall be taken to be the period next before some suit or action wherein the claim or matter to which such period may relate shall have been or shall be brought into question; and that no act or other matter shall be deemed to be an interruption within the meaning of this statute, unless the same shall have been or shall be submitted to, or acquiesced in, for one year after the party interrupted shall have had or shall have notice thereof, and of the person making or authorizing the same to be made. The 5th section of the statute relates to the manner in which claims are to be pleaded, and the 6th section declares, that no presumption shall arise from the enjoyment of an easement for any period less than the period specified in the act. The 7th section provides, that the time during which any person, otherwise capable of resisting a claim, shall have been or shall be an infant, idiot, non compos mentis, feme

Way-leave. G. H., their executors, administrators, or assigns, to be obDcmUe; served and performed, he the said A. B. hath granted, de

covert, or tenant for life, or during which any action or suit shall have heen pending, and which shall have heen diligently prosecuted, until abated by the death of any party or parties thereto, shall be excluded in the computation of the periods mentioned, except only in cases where the right or claim is by the act declared to be absolute and indefeasible. The 8th section enacts, that when any land over which4any way shall have been or shall be enjoyed or derived hath been or shall be held under or by virtue of any term of life, or any term of years exceeding three years from the granting thereof, the time of the enjoyment of any such way during the continuance of such term shall be excluded in the computation of the said period of forty years, in case the claim shall within three years next after the end or sooner determination of such term be resisted by any person entitled to any reversion expectant on the determination thereof.

Several cases have already occurred on the construction of this act. Thus, it has been held, that a claim by virtue of an enjoyment for twenty years is not defeated by proof of an agreed alteration in the line of way, nor by a temporary non-user under an agreement between the parties; (Payne v. Shedden, 1 Moo. & Rob. 382); but generally the claimant is bound to shew an uninterrupted enjoyment as of right during the period. (Monmouth Canal Company v. Harford, 1 C, M. & R. 614). The enjoyment must not have been had secretly, or bystealth, or by tacit sufferance, or by permission asked from time to time on each occasion, or on many occasions, but must have been had openly, notoriously, and without particular leave at the time, by a person claiming to use as a matter of right. ( Tickle v. Brown, 4 Ad. & Ell. 369, 382; see, too, Beasley v. Clarke, 2 Bing. N. C. 705). So the enjoyment must be continuous, and, therefore, evidence of unity of possession of the lands from and over which the way passes, (see infra as to the extinguishment of rights of way), at a period within twenty years next before the commencement of the action, will defeat the claim; (Onley v. Gardiner, 4 Mee. & Wels. 496); and so evidence of an obstruction, though not shewn to have been intended expressly against the claimant's right. (Bailey v. Appleyard, 3 Nev. & Per. 267). The period of forty or twenty years' enjoyment is not the period of forty or twenty years next before the act complained of in the declaration, but next before the commencement of the action or suit. ( Wright v. Williams, 1 Mee. & Wels. 77; Richards v. Fry, 3 Nev. & Per. 67).

With regard to the construction of the 8th section of the act, it has been decided that the enjoyment for more than twenty years of a way over land in the possession of a lessee for lives, under a mised, and to farm letten, and by these presents doth grant, Way-lkave. demise, and to farm let, unto the said C. D., E. F., and G. H.,

bishop's lease, gives no right against the bishop or his successors, and that no title by user, which is not valid against the see, can avail against the lessee; consequently, that no claim of a right of way by user can be established against such lands. (Bright v. Walker, 1 C, M. & R. 211). But an owner of land who relies on a life estate to defeat a claim of right of way, by user for forty years, must shew that he is the person entitled in reversion expectant on the life estate. ( Wright v. Williams, 1 Mee. & Wels. 77). But it does not seem that any such proof is required on pleading an estate for life under the 7th section to defeat a claim by user for twenty years. (Id. 100).

With respect to the manner in which claims under the abovementioned statute must be pleaded, and the evidence which may be given on different issues, see all the preceding cases, and Jones v. Brice, 3 Bing. N. C. 52; Colchester v. Roberts, 4 Mee. & Wels. 769.

To return, however, to the general law relating to rights of way. By whom ways It is well settled, that prima facie the grantee of a right of way "i^j re" must himself keep it in repair; (Taylor v. Whitehead, Doug. 745; Rider v. Smith, 3 T. R. 760; 1 Wms. Saund. 323 a, n. (3) ); but the grantor may be liable to repair, either by express contract or by prescription. (Ib.).

A grant of a free and convenient way, as well a horseway as a How a right of footway, as also for carts, waggons, wains, and other carriages what- way may be cxsoever, in, through, over, and along a certain slip of land, with _ license to make and lay causeways, and to use the way for carrying coals and other things, gives the grantee the right to lay a framed waggon-way for the purpose of carrying coals, that being the usual mode of carrying them in the district in question; (Senhouse v. Christian, 1 T. R. 660); but does not empower him to make transverse ways across the slip of land. (Ib.). If a man have a right of way to Blackacre, he cannot use the way for the purpose of driving cattle to Blackacre, and then to a place beyond. (Howell v. King, 1 Mod. 190; Lawton v. Ward, 1 Ld. Rayni. 75; see, too, Monmouth Canal Company v. Harford, 1 C, M. & R. 614). But a right of way terminating in a highway is a right to go to the highway, and to each and every place beyond to which it leads. (Colchester v. Roberts, 4 Mee. & Wels. 769). If the right of way be not general, but by a specific line, that line must not be deviated from even if impassable. (Taylor v. Whitehead, Doug. 745; Bullard v. Harrison, 4 Mau. & Sel. 387). It is not, however, clear, whether this rule applies to a way which the grantor is liable to repair, and which becomes impassable by his neglect. (See 2 Bl. Comm. 36 ; Com. Dig. Chimin,

Way-leave, their executors, administrators, and assigns, Full And Free —of way- way-leave, and right and liberty of way and passage, in

leave;

D. 6; 1 Wms. Saund. 322 a, n. (3)). A prescriptive right of way

for horses, carriages, and pigs, does not necessarily include a right of

drift way, «. e. of a way for horned cattle; (Ballard v. Dyson, 1

Taunt. 279); hut evidence of a right of way for horses, carriages,

and pigs, is evidence to go to the jury of a right of drift way. (Ib.).

A right of carriage-way implies a right of horseway; (lb.); but a

question has been made, whether a right of horseway confers a right

for laden horses. {Tricky v. Yandall, 2 Bing. 26; S. C. J. B. Moore,

55). A right of way for agricultural purposes does not necessarily

include a right of way for general purposes. (Jackson v. Stacey,

Holt, N. P. 455: see, too, Higham v. Rabett, 5 Bing. N. C. 622).

A grant to the owner of some houses of a right of way over a piece

of land which abuttted on them, "with all liberties, powers, and

authorities incident or appurtenant, needful or necessary to the use,

occupation, or enjoyment of the said way or passage," was held to

empower the grantee to put down a flag-stone in front of a door,

which opened out of his house on the piece of land. (Gerrard v. Cooke,

2 Bos. & Pul. N. R. 109).

By what words A way which is appurtenant to land will pass in a conveyance of

in a conveyance the land without any express grant. (Beaudeley v. Brook, Cro. Jac.

of land, a way 189 . .Jvtefofag v. Chamberlain, Cro. Jac. 121). If a man be seised of uppurtenant or .... . ... „

used therewith *wo acres, to which a way is appurtenant, and grant one acre with all

will pass. ways, the way in question will pass. (6 Mod. 3: see, too, Jorden v.

Atioood, 1 Roll. Abr. 936). And it has been said, that if a man seised of Blackacre and Whiteacre uses a way through Whiteacre to Blackacre, and then grants Blackacre with all ways, the way through Whiteacre will pass. (Com. Dig. Chimin, D. 3). It appears, however, to be now settled, that a way which is not appurtenant in law, although, in fact, used or enjoyed with certain land, will not pass in a conveyance of the land by the words, " with all ways thereto belonging or in anywise appertaining." (Barlow v. Rhodes, I Cro. & Mee. 439; S. C. 3 Tyr. 280). But this decision should not, in all cases, be too confidently relied on. (Plowden, 178 a : Hill v. Grainge, Dyer, 130 b: Archer v. Bennett, Moore, 682: Morris v. Edgington, 3 Taunt. 24 ; and see the observations of Chief Justice Tindal, 6 Bing. N. C. 25, and Bright v. Walker, 1 C, M. & R. 211). A way by usage will, however, pass by the words, " together with all ways to the said premises belonging, or therewith or with any part thereof used and enjoyed." (Kooystra v. Lucas, 5 B. & Aid. 830; S. C. 1 Dow. & Ry. 506: see, too, Harding v. Wilson, 2 B. & C. 96; S. C. 3 Dow. & Ry. 387: see, too, Hinchcliffe v. The Earl of Kinnoul, 5 Bing. N. C. 1, 25). So an ancient way, which, though extinguished in law by unity of seisin, (see infra), continued to be used in fact, was held to pass manner hereinafter mentioned, in, through, over, and along Way-leave. the lands and grounds of the said A. B., hereinafter men

in the deed of partition by force of the words, "therewith usually held, used, occupied, or enjoyed." (James v. Plant, 4 Ad. & Ell. 749, reversing the decision in Plata v. James, 6 B. & Ad. 791, and 2 Nev. & Man. 61" : see, too, Clements v. Lambert, 1 Taunt. 205). If one of two existing ways must pass on a conveyance, as a way of necessity, that which is most convenient will pass. (Morris v. Edgington, 3 Taunt. 24; see 5 B. & Ad. 794).

A right of way may be extinguished by non-user, or by unity of How a right of possession. If a way has not been used for twenty years, a release of Jf1^ "^V jC ex" it will be presumed. (3 B. & C. 339; 12 Ves. 265). But this, it is ng;u s e apprehended, assumes that the person entitled to the way has been under no disability, and it may be questioned how far a reversioner would be bound by the non-user of u tenant for years, or for life, or of any owner of a partial estate. If the land to which a way appertains and that over which it passes come into the possession of the same person, this unity of possession operates as an extinction of the right of way, (Heigate v. Williams, Noy, 119: Shury v. Piggott, 3 Bulst. 340: Dell v. Babthorpe, Cro. Eliz. 300: Bloctley v. Slater, 1 Lutw. 119: Wright v. Rattray, 1 East, 377: Morris v. Edgington, 3 Taunt. 24; 4 Ad. & Ell. 761), unless the way be one of necessity; (1 Wms. Saund. 328, n. (6): Buckhy v. Coles, 5 Taunt. 311) ; and even then it is more correct, perhaps, to say that the way is extinguished, and that on a severance a new way of necessity, is created. Unity of possession only suspends the right of way where the party is seised in fee of one parcel of the land, and possessed of the other for a term. (4 Ad. & Ell. 761: Thomas v. Thomas, 2 C, M. & R. 34). The seisin of a releasee to uses does not constitute such a unity of possession as to effect an extinguishment, (4 Ad. & Ell. 766), and, of course, there will be no unity of possession if a lease be subsisting of one of the parcels. (Hinchcliffe v. The Earl of Kinnoul, 5 Bing. N. C. 1).

Where an Inclosure Act enacted that all ways over a certain field, which was allotted to A. B., should be extinguished, but provided that nothing should deprive C. D. of the right of ingress and egress to and from a certain water-course, for the purpose of opening certain hatches, it was held that C. D.'s right of way along the banks of the water-course (which was the shortest) was not extinguished by A. B.'s having made another path to the hatches. (Adeane v. Mortloct, 6 Bing. N. C. 236).

It has been considered that a right of way which has been extin- As to the reguished by unity of possession, will ipso facto be revived on partition v',Iai °f e.x^n" or severance. (1 Jenk. Cent. Ca. 37; Bro. Abr. Extinguishment, pi. ^ way_ * 16; 4 Ad. & Ell. 763). But where a man, being seised of two closes,

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