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: 3 

] " STEVENS AND SONS, UMITED, 119 t 180, CHAlfCEBY LAITE, LONDOIT. 



Chitty's Statutes. New Edition. — The Statutes of 

I^actical Utility, from the Earliest Times to 1894, indiuiTe. Arranged in Alpha- 
betical and Chronological Order; with Notes and Indexes. Fifth Bdition. By 
J. M. LELT, Barrister-at-Law. UVoU. Soyal^vo, 1894-5. Friee £1Z .IZn. ehth. 

%* Anvuai. Sttpplbxents, 1895, ehihy bt. ; 1896, dothy 10«.; 1897, 0/OM, 5«.; 

1898, elothy Is, 6d. 

Woodfall's Law of Landlord and Tenant. — ^With a full Col- 

lection of Precedents and Forms of Procedure; containing also a Collection of 
Leading Propositions. Sixteenth Edition. By J. M. LELY, Barrister- at- Law. 
Eoyal 8ro. 1898. Frice 38f. cloth, 

Williams' Law and Practice in Bankruptcy. — By the 

Kight Hon. Sib BOLAND L. YAUGHAN WILLIAMS, a Lord Justice of Appeal. 
Seventh Editioft. By EDWARD WM. HANSELL, Barrister-at-Law. BoyaiSvo, 

1898. Friee 30». eloth. 

Whitehead's Church Law. — Being a Concise Dictionary 

of Statutes. Canons, Begulations, and Decided Cases affecting the Clergy and Laity. 
Second Edition, By BENJAMIN W^HITEHEAD, Barrister-at-Law. Demy 8w. 

1899. Frice lOs, M. eloth. 

Odgers' Principles of Pleading, Practice and Procedure in 

CiTil Actions in the High Court of Justice.— 7!^ir<; Edition, By W. BLAKE 
ODGEBS, LL.D., Q.C., Author of " A Digest of the Law of Libel and Slander." 
J)emy 8vo. 1897. Friee 12«. 6d, eloth, 
** The student or practitioner who desires instruction and practical guidance in our modem system 
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Smith's Manual of Common Law. — For Practitioners and 

students. Comprising the Funda mental Principles, with useful Practical Bules 
and Decisions. By JOSIAH W. SMITH, B.C.L., Q.C. Eleventh Edition, By C. 
SPUBLIXO, Barrister-at-Law. Demi/Svo, 1898. FHee Ifu. cloth. 

Hood and GhaUis' Conveyancing and Settled Land Acts, 

and some recent Acts affecting Conveyancing. With Conmientaries. By H. J. HOOD 
and H. W. CHALLIS. Fifth Edition. By H. W. CHALUS, assisted by J. I. 
STERLING. Barristers-at-Law. Boyal Svo, 1898. Friee 18«. eloth. 

Greenwood's Manual of the Practice of Conveyancing, 

showine the present Practice relating to the Daily Routine of Conyevancing in Soli- 
citors' Offices. To which are added Concise Common Forms in Conveyancing. — 
Ninth Edition. Edited by HARRY GREENWOOD, M.A., LL.D., Barrister-at- 
Law. Royal %vo, 1897. Frice TXie, eloth. 
" We should hke to see it placed by his principal in the hands of every articled clerk. One of the 
most useful practical works we have ever seen." — Law Sitidenls* Journal, 

Robinson's Employers' Liability under the Workmen's 

Compensation Act, 1897, and the Employers* Liability Ac t, 18 80. With Rules 
under the Workmen's Compensation Act, 1897. By ARTHUR ROBINSON, 
Barrister-at-Law. Second Edition. Including Precedents of Schemes of Compen- 
sation under the Workmen's Compensation Act, 1897, certified by the Registrar of 
Friendly Societies. Bv the Author, and J. D. STUART SIM, Barrister-at-Law, 
Assistant Registrar of Friendly Societies. Eoyal l2mo, 1898. FtHce Is, 6d. cloth, 

Jervis on the Office and Duties of Coroners. — With Forms 

and Precedents. Sixth Edition. By R. E. MELSHEIBiER, Barrister-at-Law. 
Foet Svo. 1898. Firiee lOs, 6d, eloth, 

Freeth's Acts relating to the new Death Duty, called the 

Estate Duty. With an Introduction dealing with the other Deatii Duties, a Digest, 
copious Notes, and an Appendix, containing the Estate Duty Forms and the Rules 
regulating Proceedings in England and Ireland in Appeals under the Acts. Second 
Edition. Thoroughly Revised and Enlarged. Bv E. FREETH, Deputv- Controller 
of Legacy and Succession Duties. Demy Svo, 1897. Frice I2s. 6d, cloth. 
** The offldu position of the autiior renders his opinion on questions of procedure of great value." — 
Solieitort^ Journal, 

Harris' Hints on Advocacy. — Conduct of Cases Civil and 

Criminal. Classes of Witnesses and Suggestions for Cross-examining them, &o^ &o. 
By RICHARD HARRIS, one of Her Majesty's Counsel. Eleventh Edition. Eoyal 
l2mo. 1897. Friee 7s. Qd. eloth. 
f\^ " A very oomidete Manual of the Advocate's art in Trial by Jury." — Solicitor^ Journal. <^ 

*0* A large stock of Second' hand Law Reports and Text-books on Sale. 



DIGEST 



OF THE 



LAW OF PEOPEETY IN LAND 



Paet III. 



USES AND PROFITS OF LAND 



A DIGEST 



OF 



THE LAW OF 



USES AND PROFITS 



OF 



LAND 



BY 

STEPHEN MARTIN LEAKE 

BABBI8TEB-AT-LAW 



LONDON : 

STEVENS AND SONS, 119, CHANOEET LANE, 

1888. 



/ 

y 



ucnsmonxi 

FBZRTBD BT 0. V. BOWOBTH, QBBAT NEW SSBXSBS^ FJKL'i'lUt LANS, B.C. 



I 

I 



PREFACE. 



The present work forms the third Part of a Digest of the 
Law of Property in Land, of which the two preceding 
Parts have been abeady published in a separate volume. 
Li the Introduction to that volume the plan of the whole 
work, and the position in it of the present Part, was fully 
explained. It is therefore sufficient here to repeat that, 
according to the arrangement there proposed, Part I. treats 
of the Sources of the law of property in land ; Part II. treats 
of the various Estates and Limitations of interest in land ; 
Part m., contained in the present volume, treats of the 
beneficial Uses and Profits of which land is legally capable, 
and the appropriation of them to the various estates and 
interests which may be held in land ; Part IV. is intended to 
treat of the Transfer of Property in land in all its branches; 
and the concluding Part V. is intended to explain the 
modifications of all the preceding law required by reason of 
the various conditions and capacities of Persons. 

The first Part of the present volume, imder the title of 
"Uses and Profits of Land," contains the law relating to land 
in general, as regards the terms of description, the identifica- 
tion and the boundaries of property; and the general doctrines 
of the possessory rights and liabilities of tenants of limited 
estates, with special reference to the law of Waste and Repair, 
It then gives the application of the law to tlie specific pro- 
ducts of land, namely, Timber, Crops, Minerals, Game ; also 
to things connected with land, namely. Houses and Buildings, 



"VI PREFACE. 

Fixtures, Title Deeds, and Heirlooms. It then gives separately 
the law relating to Waters, namely, Inland waters, standing 
and flowing ; the Sea and Tidal waters ; the Sea shore ; and 
Fisheries. — The second Part, under the title of " Uses and 
Profits in Land of Another," contains the law of Easements, 
in general and in detailed application to Ways, Lights, 
Water, Support, and Fences ; including the general law of 
Prescription. It treats separately the law of Profits d, prendre, 
in application to Commons, Mining, and other profitable 
rights ; and the law of Hents, Annuities, and the Tithe Kent- 
charge, with their attendant remedies, including the law of 
Distress. — ^There is added, lastly, under the title of Public 
Uses of land, the law of Highways and Bridges, and of Local 
Customary uses of land. 

The several matters above specified are, for the most 
part, to be found treated in separate works, with fuller 
explanation and illustration than is here given. But it is 
conceived that some advantage may be offered, both to the 
student and to the practitioner, by treating them collectively, 
in due relation to one another and to the rest of the law of 
real property ; and in this view it is hoped that the present 
volimie will be foimd a useful compendium of kindred 
matters, which have not hitherto been presented in a 
collected form. 

Mr. Robert Marshall Middleton, of the Inner Temple 
and the South-Eastem Circuit, has assisted in carrying this 
volimie through the press, by carefully revising the proof 
sheets, examining and verifying the authorities, and com- 
piling the copious index; services which have greatly 
improved the work in accuracy and usefulness ; and which 
the author desires here thankfully to acknowledge. 

S. M. L. 

December, 1888. 



TABLE OF CONTENTS. 



PAaa 

INTRODUOTION 1 



PART I. 

USES AND PROFITS OP LAND. 



CHAPTER L 

LAND IN GENERAL. 

TenoB of defiGriptian-rland — ^water — ^manor — messuage ^appurte- 
nants — ^rents, profita and uses 6 

Tenement — hereditament — corporeal and incorporeal — reversionary 

estates 8 

Identification of land, by name — ^by the occupation — by map . . 9 

Boundaries — duty of tenant to preserve — commission to ascertain 

— copyholds— encroachments 10 

Properhr in land above and below the surface— partition of surface 

and substratum 12 



CHAPTER n. 
POSSESSORY RIGHTS AND LLABILITIES OF TENANTS. 

Tenant in fee simple — fee subject to executory interests — equitable 

waste 15 

Tenant in tail — special tail— after possibility of issue extinct — under 

Settled Land Act 16 

Tenant for life or for years — liability for waste . . . .18 

Action of waste — damages — limitation of action — action of waste by 

or against executor — waste by stranger — vis major . . .19 

Tenant for life or years without impeachment of waste— equitable 
waste-— covenants relating to use of land demised — implied con- 
tract of tenant 22 

Tenant at will— tenant of copyhold — ^waste by copyholder . . 26 

Tenants of equitable estates — special trusts 26 



»•• 



TIU TABLE OF CONTEXTS. 

CHAPTER in. 

TBEES, WOODS AXD TDCBER. 

TAOE 

Property in trees — grant of trees as separate pr upertjr — fioenoe to 

take trees — contract of sale of trees ...... 29 

Lease with exception of trees .31 

Construction of grants and exceptions of trees .... 32 

Distinction of timber and other trees 32 

Bight of tenant to cut timber — timber estate — trees not timber — 

underwood, &c. — amamental and shelter trees .... 33 
Bight to cut trees for repairs or fuel, &c. — extent of right — ^tenant 

at will and copyholder 36 

Property in timber cut by tenant — timber cat in nnnwgifm with re- 
versioner— property in trees not timber 37 

Trees severed by wind or accident 39 

Timber cut by order or sanction of Court — application of prooeedfl 
— exercise of jurisdiction— statutory powers to sdl timber — 
Settied Land Act 40 



CHAPTER IV. 
GBOWING CBOPS. 

Emblements or growing crops — pass to executor— may be taken, in 

execution — may be distrained 44 

Tenant's right to emblements — tenant for years — toiant from year 

to year — tenant at will — at sufferance — ^wrongful possession . 46 

Growing crops pass with land by conveyance — by devise . . 49 

Sale of growing crops separately — Statute of Frauds — ^Bills of Sale 

Act 49 



CHAPTER V. 

MTNTES AND MINEBAI^. 

Property in minerals — separate property in minerals — ^power to sell 
minerals separately ......... 51 

Licence to get minerals — distinction of licence and property — con- 
struction of grant or licence— exclusive licence — remedies of 
licensee 63 

Belative risrhts of owners of surface and minerals — bright of support 

for surface 65 

Lease of minerals — right of lessee to the minerals .... 65 

Bights of tenants for life or years to take minerals — open mines . 67 

Mines opened by order of Court — by trustees under powers of wn^king 

mining leases — under Settled Land Act 61 

Minerals in copyhold tenements — special customs — ^minerals in free- 
holds of manor — minerals in waste of manor .... 62 

Minerals under railways — severance of access to minerals — super- 
fluous land 66 

Construction of terms, minerals, mines, and quarries ... 67 

Prerogative of gold and silver — grants of royal mines — treasore 

trove — ^prerogative of ealtpetro— public rights of mining . . 70 



TABLE OP (CONTENTS. IX 

CHAPTER VI. 

GAME AND WILD ANIMALS. 

PAGB 

Property in game and wild animals — trespass in pursoit of g^ame . ' 73 
Ghune laws— penalties on trespasser — on occupier — game defined — 

noxious animals—tame animals 75 

Right to game as separate propertj—contracts relating to taking 

game — Ground Game Act— licence to sport .... 78 

Construction of grants and leases as to the game — ^indlosnre awards 81 

Rating of game as a separate tenement 82 

Forests— forest law — charter of the forest — chase— park — ^wazren — 

grant of manor with warren 83 

CHAPTER Vn. 

HOUSES AND BUILDINGS. 

Property in land— includes houses and buildingfs — ^house includes 

land on which it is built — appurtenants — Lands Clauses Act . 87 

Partition of house into separate tenements — relative rights of part 

owners 90 

Liability of tenant for waste and repair of houses and buildings — 
permissive waste — charge of repair— incumbent of benefice — 
tenant t< without impeachment of waHte*' .... 92 

"Waste in houses and buildinj»'H— new buildings — reasonable use — 

superior force— accidental iiro— suspension of rent ... 94 

Covenant of lessee to repair — exoi'ptions of fire and other accidents — 
implied contract for tenant- like use — liability of landlord to 
repair — ^implied warranty of demised premises — covenant of 
lessor to repair — ^insurance against fire 97 

Repairs and improvements of setUed estates — jurisdiction of Courts 

Settled Land Act 100 



CHAPTER Vni. 

FIXTURES. 

Fixtures defined — fixtures pass with the land — to purchaser— -to 

lessee for Uf e or years — to mortgagee 103 

Fixtures upon land of another 107 

What things are fixtures — fixtures for use of land-^buildingfs and 
constructions upon land — fixtures for trade or business — 
machinery — fixtures for domestic use — furniture — accessories 
to fixtures — movable buildings and constructions . . . 108 

Tenant's fixtures — tenant in fee simple— tenant of limited estate — 
trade fixtures — domestic fixtures — ornamental fixtures and fur- 
niture — agricultural fixtures — ^Agricultural Holdings Act — right 
of removcu during tenahcy 112 

Covenants for removal of fixtures — covenants to leave fixtures . 117 

Fixtures as subject of action — of execution — of distress for rent — in 

bankruptcy of tenant — disclaimer of lease by trustee .119 

Fixtures assigned separately from the tenement — Statute of Frauds — 

Bills of Sale Acts 121 



X TABLE OF CONTENTS. 

CHAPTEE IX. 

TITLE DEEDS ; HEIRLOOMS. 

TAOE 

Propertj in title deeds — ^freehold — leasehold — ^mortgages— deed box 

— ^larceny of deeds 124 

Kight of purchaser to deeds — lessee — mortgagee .... 125 

Custody of deeds — as between tenant for life and reversioner — 
trustee and cestui que trust — control of custody by Court — 
concurrent interests in sarae deeds — nale of land in lots . .127 

Production of deeds for inepection— privilege of mortgagee — cove- 
nant for production — liroduction under Conveyancing Act, 1881 130 

Separate property in deeds— deposit of deeds as security — ^lien of 

solicitor — adverse possession of deeds 133 

Heirlooms— chattels settled as heirlooms — sale of heirloomfl — Settled 

LandAcf 136 



CHAPTEE X. 
INLAND WATER. 

Section 1. — Staiidinq Waxes. 

Property in standing water — ^riparian ownership . . . .139 

Water percolating below the surface — right of oraining off water — 
druning water from streams — draining mines — ^subsidence from 
draining — pollution of percolating water 140 

Water artificially collected — liability for escape of water— escape by 

accident or superior force — ^water collected in houses . . 143 

Extraordinary floods 146 

Section 2. — ^Runnino Watkb. 

Property in natural streams — remedies of riparian owner — streams 

below the surface 148 

Rights of ordinary uiso by riparian owners — diverting water for 

extraonlinary use 149 

Rights acquired in excess of riparian rights — rights acquired by 

non-riparian owners 151 

Property in bed of stream — change of bed — encroachment on bed . 153 

Public navigable river — riparian rights upon navigable river — 
obstructions to navigation — change of course — private navig- 
able river — towing path 156 



CHAPTEE XI. 

SEA AND TIDAL WATERS ; SEA SHORE. 

The sovereignty of the sea — Admiralty iurisdiction — ^The Territorial 

Waters Act — civil jurisdiction of the Admiralty . . .169 

Arm of sea — tidal rivers — right of navigation 161 

Property of Crown in sea shore — grants of sea shore— limits of sea 

shore — jurisdiction over sea d^ore — public rights over sea shore 163 
Prerogative rights and duties — protection of sea shores— commis- 
sioners of sewers — sea walls 167 

Ports — prerogative of Crown — statutory authority — port dues . 169 

Wreck of the sea — prerogative of Crown — ^franchise of wreck — Re- 

c^iverd of Wreck 172 



TABLE OF OOKTBNTS. Xl 

CHAPTEH Xn. 

INLAND AND SEA FISHERIES. 

PAOB 

Fishery in island waters— inland non- tidal rivers . . . .174 
Fishery in land of another — several fishery — ^£ree fishery and 

common of fishery — qualified fishery . . '. . .175 

Fishery in the open sea — Sea Fisheries Acts 177 

Fishery in arms of the sea and tidal waters — Crown g^rants of 

fii^ery — prescriptive fishery — ^non-tidal waters . , ,178 
Fishing weirs— in navigable rivers— in private rivers . . .181 
Koyal fish— salmon- oysters and shell fish 182 



PART II. 

USES AND PEOFITS IN LAND OF ANOTHER. 



Ihtbosugtion 186 

CHAPTER I. 

EASEMENTS. 

Section I. Easements in general 189 

II. Specific easements 203 

III. Creation of easements 262 

rV. Extinction of easements 306 

y. Remedies for easements 313 



SiicnoN I. Easements in oeneeax 



J. 



Easements appurtenant to land — dominant and servient tenement — 

easement in gross 189 

Conditions of appurtenancy 190 

Positive and negative easements 192 

Lticenoe to use land — revocation of licence — notice of revocation — 

licence not assignable . . 194 

Licence coupled with grant — parol grant — grants irrevocable — and 

assignable 197 

Easements admissible in law — specific easements — particular ease- 
ments — claims not admitted as easements — covenants concerning 
use of land 199 

Sbotion II. Spbgzfio Easeicents. 

{ 1. Ways.— §2. Light.— §3. Air.— §4. Water.— §5. Support.— §6. Fences, 

i 1. Wats. 

Ways general and limited 203 

Ownership of land subject to way 204 

Limitation of ways by grant— construction of grant as to purposes 

of way — as to mode of use 206 

Limitation by prescription 206 

Ways impliedly limited to service of dominant tenement. . . 207 

Direction and width of way — deviation 208 

Construction of ways — ^repair of ways 21Q 



• • 



Xn TABLE OF CONTEKTS. 



{ 2. LiaHTS. 

PlOB 
Eaa0ment of light arifling hy prescription — ^bj grant — is acquired 

onlj for houfies and bnild^gs 211 

Limits of eaaement— obstraction — building to angle of forty-fiye 

decrees — town and conntiy buildings 213 

Use of light in dominant tenement — unoccupied tenement — conyer- 

sion of tenement to new use 215 

Alteration of ancient lights — enlarging ancient lights — additional 

light from different direction 216 

§ 3. Ath. 

Distinction of air and light as subject of easement . . . .218 
Easement cannot be claimed for passage of air . . . .219 
Nuisance of pollution of air— nuisance of noise— noxious trades — 

nuisance of railway — remedy of reversioner .... 220 
Easement of diffusing noxious vapours and noises .... 224 

§ 4. Wateb. 

Kights of riparian owner in natural stream 225 

Easement of diverting stream through artificial watercourse — limits 
of casement — use of the water— maintenance and repair of 
water-course — liability for non-repair ..... 226 

Easement of discharging water or other matters— liability for nui- 
sance — exception of natural use of land 229 

Limits of easement — discharge in excess— maintenance and repair 

of watercourse— alteration of discharge 231 

Artificial stream — riparian owners upon artificial streams — perma- 
nent artificial streams 232 

Easement of discharging rain-water from eaves of house . . 234 

f 5. SUFFOBT. 

Easement of support of surface by subjacent land — presumption of 

easement upon severance of surface 236 

Grant of easement of support— construction of grants and reserva- 
tions of minerals— mining leases — minerals under railways . 237 

Extent of easement — substitution of artificial support . . . 242 

Support by adjacent tenement — implied upon severance of tene- 
ments — extent of casement — artificial support .... 243 

Support of building by subjacent and adjacent land — ^by grant — by 
prescription — extent of support— injury by disturbance of sup- 
port of building 245 

Support of building by adjoining building — implied g^ant— pre- 
scription — repair of servient building — injury from adjoining 
building 249 

Support of upper story of house — repair of roof .... 262 

{ 6. Fences. 

Obligation of fencing land — trespass of cattle 253 

Kight to have fence maintained upon adjoining land — grant — ^pre- 
scription 254 

Extent of right and liability— damages recoverable . . . 257 

Ownership of fence — party walls • 268 

Fencing of mines — fencing of railways— level crossings . . . 260 



TABLE OF CONTENTSL Xm 



SsonoN m. Gbbation op Easexents. 

i 1. Grant. — § 2. Presoription. 

i 1. Gbaitt. 

PAOB 

Eaaements- created by mnt or preeoription — grant hj deed— parol 
grant — Statute of fVauds — exception or reeerration of ease- 
ments — easements taken under liands Glauses Act . . • 262 

Implied grant of necessary easements — ^way of necessity . . 266 

Implied grant of apparent and continuous easements —no easement 
implied in derogation of grant — easements implied upon simul- 
taxieous grant of two tenements 269 

Gkant of tenement '*with appurtenants" — ^grant of easements 
" used and enjoyed *' with tenement — construction of grants — 
easements reviyed after unity of possession — Gonyeyancing Act, 
1881 276 

Implied grant of rights accessory to easements — right of main- 
tenance and repair — obligation of servient owner . . 279 

§ 2. Fbesobzption. 

Fnsoription — distinction of easements by prescription and grant . 281 
Prescription at common law — time immemorial — non- existing g^nt 282 
The Prescription Act — prescription for ways, watercourses, and 

other easements— prescription for lights 285 

Enjoyment required for prescription— enjoyment as of right — in 
right of fee of dominant tenement against fee of servient tene- 
ment—during unity of possession — enjoyment of light as of 

right 287 

Secret enjoyment 291 

Enjo^ent by licence of agreement — by suiferance . . 292 

Gontmuous enjoyment — voluntary discontinuance — ^impossibility of 

enjoyment — unity of possession* 294 

Enjoyment for period next before action 297 

Interruption of enjoyment — submission of dominant owner . . 299 
Presumption from enjoyment short of prescribed period . . .301 
Disabilities of servient owner — suspension of computation — inter- 
ruption during disabilities — exclusion of tenancy for life or 
years 302 

SiscfnoN rV. ExTziranoN of Eassieezhs. 

Release — ^presumpticm from disuse 305 

Abandonment — ways — flights — water easements .... 305 
Extinction of easement by unity of title of dominant and servient 
tenements — suspension of easement during particular estate — 
unity of legal title only 310 

Section V. Kbicedies fob Ea b kmt jntb. 

Action for damages — nominal damage — disturbance of easement — 

compensation under Lands Glauses Act 313 

Action by reversioner — ^repeated actions for continuanoe of dis- 
turbance 315 

Injunction — statutory and equitable jurisdiction — ^principles of 
granting injunction — manoatory injunction to remove nuisance 
—delay or acquiescence — interlocutory injunction . . .317 

Injunction against obstructing lights 321 

Abatement of nuisance to easement — abatement of nuisance to 
servient tenement — exercise of easement in excess — ^notice to 
abate nuisance— unnecessary damagpe 322 



XIT TABLE OF CONTENTS. 

CHAPTER IL 

FROFITS A PRENDRE. 

PAOB 

Section I. Ftofits & prendre in general 326 

H. Creation of profits 346 

nL Extinction of profits ....... S55 

rV. Remedies for profits 367 

SzcnoH I. Pbofhs A Fbksbbb ts oeskral. 

Profits k prendre^in gross and appurtenant — conditions and limits 

of appurtenancj — ^land cannot be appnrtenant to land , . 326 
Licence to get minerals — ^to cut trees and tmf — ^to take game <m«l 

fish — to take water 329 

Pasture of land — herbage of land 331 

Commons — common of pasture — in g^roes — appurtenant — cattle 
levant and eouehant — stinted commons — unstinted conunons — 

^eep walk — pannage 332 

Common appendant — commonable cattle . '. . . 336 

Common of vicinage— indosure 333 

Common fields — lammas lands . 340 

Common of estovers— common of turbary 34 1 

Common of copyholders — ^profits of copyhold tenement . . . 343 

Rights of oonunon of lord — statutory compensation . . . 344 

SscnOH n. CbEAXION of PBOFIIS A PfiSHDBS. 

Grant of profits h, prendre — Statute of Frauds — ^profits appurtenant 346 

Exceptions and reservations of profits sL prendre .... 347 

Rights accessory to profits k prendre— rights accessory to mining I 348 

Titie by prescription at common law 3^0 

The Prescription Act— profits appurtenant— profits of copyhold 

. tenements 35O 

Profits in gross— corporate rights 352 

Prescriptive usage must be lawful — certain — continuous . , * 353 

Skotioh m. Eatihiotiok of Pbofzib a Pbsztdbb. 

Release— release of profits in part of the land— presumption of 

release from non-user 35- 

Alteration in donfinant tenement^severanoe of dominant tenement 

•r-exhaustion of servient tenement ..... 355 

Unity of title of profit and servient land-— unit^ of title in part of 
file land — common appendant apportionable — unity of title in 
lord of manor— -re-grant of copyhold tenements . , 359 

Approvement and indosure of wastes— Statutes of Merton and of 
"Westminster 2— construction of the statutes— leaving suffidenoy 
of pasture . • • • . ... . . . .360 

Approvement against copyholders— ^>ecial customs to inclose . . 364 

Approvement against turbary and other commons . . i ' 355 

JncJOBure under Acts of Parliament ] ^ 3gg 

Section IV. Rksdedies fob Peqfits A Pbendsb. 

Remedies for exclusive profits— minerals— pasture .... 367 
Remedies of commoner— action for surcharging common— distress 

of cattle damage feasant — remedies against lord . . . 353 

Abatement of nuisance to common— nuisance created by lord . . 369 

Bill of peace concerning common rights 370 



TABLE OF CONTENTS. XT 

m 

CHAPTER rCL 

RENTS. 

Section I. Creation of rents 372 

II. Extinction and apportionment of rents . . . .406 
Hi. Bemedies for rent . . 423 

Seotion I. Gbisaxzon of Rents. 

{ 1. Rent seryioe — § ^. Rent charge and annuity — § 3. Tithe rent 

charge. 

§ 1. Rent Sebyioe. 

Rent — ^rent servioe— distress — ^rent charge — ^rent seek—distress by 

statute 372 

Reservation of rent service — hj deed or wUl — reservation to 

stranger 375 

Reservation of rent upon grant in fee simple — upon grant of parti- 
cular estate — ^upon lease for years — tenancy at will — ^tenancy 
under agreement for lease 376 

Attornment of mortgagor as tenant to mortgagee — lease by mort- 
gagor in possession 378 

Limitations oi rent service — construction of limitations . . . 380 

Rent of incorporeal hereditaments— rent of personal chattels . . 881 

Fee farm rents — ^rents of assize — quit rents — apportionment — ^re- 
demption 383 

§ 2. Rent chabqe and AmnnTT. 

Rent charge— grant of rent charge — grant of distress— Bills of Sale 

Act, 1878 386 

Reservation of rent upon ^frant in fee — upon assignment of term — 

severance of rent service and reversion 387 

Limitations of rent charg^e — estate tail — disentailment . . . 388 

Seisin, entry and occupancy of rent 390 

Rent as real or personal estate — arrears of rent .... 391 

Annuity 392 

Annuity charged upon land— upon rents and profits of lands . . 393 
Limitation of annuity — in fee — for life — annuity for maintenance — 

trust to buy annuity — gift of annual income .... 394 
Charge of annuity in administration of assets upon real or personal 

estate 396 

Registration of annuity and rent charge 397 

{ 3. ' Tithe Rent ohabqe. 

Tithe rent charge — Commutation Act 398 

Valuation and apportionment of tithe 398 

Com average — vuuation of rent charge 399 

Discharge of tithe and substitution of rent charge .... 400 

Remedy by distress — ^by writ of possession — no remedy by sale . 400 

Extraordinary tithe — Redemption Act 402 

Tith^ rent charge as freehold estate — tithe rent charge upon copy- 
hold 402 

Merger of tithe rent charge 403 

G^mnt or lease of land subject to rent charge — liabilibr of tenant to 

pay rent charge— contribution from co-owners of land charged 403 

AsseesmeDt of tithe rent charge for rates and taxes . . 405 



Xn TABLE OF CONTENTS. 



SeOIZOH H. SXTUrtTlON AlTD APPOBTIOinCSNT OF BbVIB. 

TASK 

Bdeaae of rent— diBcharge of land from rent 406 

Merger of rent in the poaseesLon of the land charged — ^poaseesion of 
part of the land— possession for limited estate — ^possession by 

act of law . 407 

Merger of rent service — ^merger of reversion to which rent incident 409 
Eviction of tenant by lessor — eviction by title paramount — eviction 

of gn^antor of rent charge 410 

Apportionment of rent— by partition of the rent — hy partition of 

the reversion — ^partition by act of law — partition by tenant . 411 
Apportionment of conditions — under the Conveyancing Act, 1881 . 415 
Apportionment of rent to time at common law — in equity — appor- 
tionment by terms of limitation 416 

Apportionment by statute — between lessor and lessee — ^between 

successive owners of rent 417 

Apportionment Act, 1870 — ^rent apportioned between real and per- 
sonal estate — between tenant for life and remainderman — be- 
tween assignor and assignee of lease 418 



SEcnoir m. "RKiTRnTTifl fob 'Rest, — (1) Distbess. 
{ 1. Distress — { 2. Things dislirainable— § 3. Wrongful distress. 



§ 1. DiSZBESS. 

Bemedies for rent in arrear — distress 422 

Conditions of right of distress — rent certain in amount — ^rent pay- 
able at certain time — distress for services .... 423 

Bent in arrear — ^limitation of arrears — under express trusts— of 

rent in bankruptcy — of rent of agricultural holdings . . 426 

Distress during tenancy — possession after determination of lease — 
by custom of the country — holding over after demand of pos- 
session — after giving notice to quit 428 

Distress upon denused tenement— upon servient tenement — ^npon 

common 430 

Distress off the demised tenement — distress of goods fraudulently 

removed 432 

Distress by bailiff — ^bailiffs to be certificated 434 

Distress to be taken in daytime — ^breaking into tenement — ^breaking 

inner doors — ^taking possession of goods 435 

Bemoval and impounding distress— impounding on the premises- 
public and private pounds — feeding impounded cattle — ^liability 
of distrainor for state of pound 437 

Statutory power of selling distress — sale upon the premises — con- 
struction of statutes, as to notice of distress — time of sale — 
appraisement — ^price — charges — sale of distress optional — 
t^der of rent before sale 439 



{2. ThINQB DlBTBATNABT.TC. 

Things distrainable — fixtures 444 

Animals 445 

Perishable goods— com and hay — growing crops . • • . 445 



TABLE OF CONTENTS. XVU 

PAOB 

Thingfs in perRonal use 448 

Implements of trade—beasts of plough— condition of privilege . 448 
€U)ods of stran^r distrainable — exceptions in favoar of trade — ^goods 
deliyered for working — tools and implements of trade — agricul- 
tural implements 449 

Gk)ods delivered to agent for selling— for safe keeping — for carrying 

— conveyances used for privileged goods 462 

Cattle taken in to feed 454 

Protection of the goods of lodgers 464 

GK>od8 in custody of the law — goods taken in execution — liability of 

sheriff after notice of rent due 466 

Goods in possession of receiver — goods in bankruptcy — goods of 

company under winding up 468 

§ 3. Wbosqful Disieess. 
/ f * 

^ "Wrongful distress 460 

Illegal distress — distress taken in illegal manner— distress where no 

rent due — distress after tender of rent due^second distress for 

same rent — separate distresses 460 

Irregular distress— trespass ab initio — ^actions for irregular distresses. 4 63 

Excessive distress — value of distress taken — distress for excessive 

claim . . . ' 466 

Rescue — pound breach 466 

Replevin — jurisdiction of sheriff — jurisdiction of County Court — 

securily to prosecute — avowry and cog^nizance — writ of eapias 

in withernam 467 

Section IV. Remedies fosRexvt, — (2) Action and Re-entbt. 

Action for rent — suspended by distress — injunction against distress 

pending action 471 

Action of debt for rent — debt from privity of estate — action by exe- 
cutor for arrears of rent — ^rent a specialty debt . . . .472 
Covenant to pay rent — privity of contract . .• . . .474 

Action for use and occupation 474 

Condition of re-entry on non-payment of rent — demand of payment 
— ejectment — relief against condition — condition of entry to 

take profits 476 

Summary proceedings for recovery of possession . . . .478 
Jurisdiction to grant a receiver or sale — ^remedies under Conveyanc- 
ing Act, 1881 . > 479 



CHAPTEE IV. . 

PuBLio Uses of Land. 

Section I. Highways ... 482 

II. Local customs ,. 649 

Section I. Hiqhwats. 

} 1. Highways in general — } 2. Origin and extinction of highways 
— { 3. Maintenance and repair of highways — § 4. Remedies 
relating to highways. 

L. b 



XVUl TABLE OF OONTEKTS. 

§ 1. HlGHWATS IN QEmSRAL, 

Pablio rights — general and local ^32 

Highway— different kinds of highway— cattle way— railway-^ 

nayigable river- towing path ^ ^33 

Public way without thoroughfare— pablic commons and open spaces 486 
Ownership of soil of highway— land at sides of highway— indodi^ 

up to highway — conveyance of land abutting on highway 437 

Rights of ownership of highway— trespass on highway . . ' 490 
Ownership of highways under statutes— Turnpike Acts— Public 

Health Act— Metropolis Local Management Act— campensation 

for highways taken .g. 

Limits of highway— termini— width— deviation . . [ * 493 

Use of highway by public— public meetings— excessive traffic— loco- 
motive engines— tramways — telegraphs .... 495 

Special use of highway by adjoining owner— access to and from ad- 
joining tenement— use of highway for service of adjoining tene- 
ment—use of public river by riparian owner . 497 

Fencing land adjoining highway-cattle straying through defect of 

fences — fencmg nuisances on adjoining land , . kqi 

§ 2. Oeioin ash ExTmcnoN op Hiohwats. 
Origin of highways— highways by statute . ' ir^« 

Defication of highway- dedication by act of o^er- dedication 

presumed from public use— presumption rebutted kiu. 

Dedication by owner in fee-by reversioner-presumptioi of title U> 

dedicate— dedication by corporate body . cft7 

Acceptance of dedication by pubUc— adoption by parish ' * * fin» 
Dedication for limited time--to limited publio-for limitCd us^ ' 609 
Dedicatiou subject to obstructions-gates— ploughing— markets an<i 

fairs— public way subject to private way e,^ 

Highway subject to toll— toU thorough— toU traverse— toU of 

ferry and other tolls- prescription for toll on hiirhwav— eitPT«« 
. tions from toll-distress for toll-rating of ^jj^^^'^^y-^^emp- 
Extinction of highway— stopping and diverting hiirhwayB at com * 

mon law-by statute-destruction of way f^'^y^ ^^ ^^- 



512 
516 



519 
521 

522 



§ 3. Maintenance and Repaib op Hiqhwatb. 

Liability of parish to repair at common law— liability of townshin 
or district by custom .... ^ 

Bepair of n^w highways-turnpike roads-private ways made pubUc 
by order of justices ....#. a' **v 

Conditions of liability of parish under the Highway Act— certificate 
of lustices— highways not repairable by the parish— hijrhwavs 
declared unnecessary . . 

Repair under Highway Acts— highway board— district fund ' * 623 

Main roads— transfer of main roads to county council— delegation 

to district council * g«. 

Improvement of highways— statutory powers of improvement ' 626 

Liability to repair by prescription— by tenure of land— by indosure 

— discharge of liability by tenure or otherwise . . 628 

Bepair of bridges— Statute of Bridges— construction of statute ! 630 

New bridges- repair of new bridges— conditions of repair by county 

— improvement of bridges "^ ^go 

Bridges built under statutes— canal bridges — railway bridges- 
turnpike road bridges •••«.... 634 

Transfer of bridges to county councils ] 53g 

What structures are county bridges— approaches to bridges— road- 
"way of bridges— property in bridges— ferry , . , ,536 



• 



TABLE OP CONTENTS. XlX 



{ 4. RE1CEDIE8 SELATINa TO HiaHWATS. 

PAQB 

Indictment for non-iepair — against surveyor of highways — against 

highway authority 538 

Action against eoon^ or parish — action for non-repair ag^ainst 
surveyor — against highway authority— ^against person or body 
corporate 639 

Summary remedies for non-repair — against surveyor — against high- 
way board — order of county authority to repair . . .641 

Indictment for nuisance — nuisances upon highway .... 642 

Action for nuisance — special damage— action against surveyor — 

against local board — abatement of nuisance .... 544 

Summary remedies for nuisances — penalties for wilful obstruction — 

encroachment on sides of highway — removal of nuisance . . 646 



Section II. Local Custoicb. 

liocal customs — custom and common law — custom and statute law — 

custom and prescription — local usages of trade . . .549 

Usage as evidence of custom — immemorial usage — ^Prescription Act 562 

Usage as of right 554 

Certointy of usage as to place— custom limited to locality . . 554 

Certainty of usage as to persons 556 

Certainty of usage as to the rights created 557 

Beasonableness of usage— usage against law — customs held reason- 
able— usage repugnant to ownership . . . . . 557 
Customs to take profits of land — claims to profits by custom dis- 
allowed — profits subject to toUs or fees — customs of mining . 560 
Customs to take profits by presumed Crown gprant — no presumption 
of statute— customs to take profits under grant to corporation — 

customs supported as charitable usee 565 

Customs of manors— customary rights to profits of copyhold tenants 

— freehold tenants— occupiers 568 



62 



TABLE OF CASES. 



Abbot V. Weekly, 659. 
Abson V. Fenton, 210. 
Absor 9. French, 494, 495. 
Aokrojd v. Smith, 187, 191, 197, 

199. 
Acton V. Blundell, 141. 
Adams v. Clutterbuok, 78, 79. 

V, Grane, 452. 

Addington v, Clode, 283. 
Ainalie, re, 40, 42. 
Alchome v. Gomme, 379. 
Aldred'B Case, 202, 220. 
Allan V. Gomme, 206, 306. 

V. Gott, 396. 

Allen V. Bryan, 472. 

9. Ormond, 484, 612. 

V. Taylor, 271, 274. 

Allhusen v. Brooking, 78, 80. 
AUnutt r. Pott, 606. 
Allwood r. Hey wood, 127. 
Anderson v. Midland Ky., 377, 378. 

r. Oppenheimer, 92, 146. 

Andrews v. Dixon, 456. 

V. Hailes, 12. 

Anglesey v. Hatherton, 653. 
Angus V. Dalton, 202, 246, 247, 248, 

250, 263, 283, 286, 299. 
Anon., 390, 449, 628. 

r. Cooper, 374. 

Anworth v. Johnson, 92. 
Arden v. PuUen, 99. 
Ardley r. St. Pancras, 206, 210. 
Ards r. Watkin, 412. 
Arkwright v. Evans, 260, 564. 

V, Gell, 233, 294. 

Arlett V. Ellis, 344, 358, 363, 364, 

365, 370. 
Armitt v. Garnett, 466. 
Armory v, Delamirie, 72. 
Armytage, re, 109, 110, 123. 
Arnold v. Blaker, 611. 

V. Holbrook, 488, 494, 611, 646. 

Amsby v. Woodward, 476. 



ArundeU v. Falmouth, 345. 
Ashdown Forest Case, 84* 
Ashmead v. Ranger, 37. 
Ashmore v. Hardy, 433. 
Aspden v. Seddon, 52, 187, 239, 

240. 
Aspindall v. Brown, 503. 
Aston V. Aston, 23, 24. 
Astry V, Ballard, 68. 
Atkinson v. Baker, 124. 

V. Teasdale, 868, 369. 

Attack V. Bramwell, 435, 436, 461. 
Attersollv. Stevens, 22, 23, 56. 
Att.-Gen. v. Acton, 324. 
V, Biphosphate Co., 505, 506, 

609. 

V, Chambers, 163, 165. 

V, Coventry, 383, 431. 

p. Dorking, 232, 324. 

V. Fullerton, 10. 

V. Gauntlett, 288. 

r. Great Eastern Ry., 150, 156. 

V, Homer, 611. 

V. Jones, 164. 

V. Lonsdale, 166, 166, 162. 

V. Marlborough, 16, 17. 

V. Mathias, 328, 561, 663. 

V, Mylchreest, 63. 

V. Nichol, 214, 314, 321. 

V, Parsons, 86. 

V. Shrewsbury, 643. 

V. Stephens, 11. 

r. Terry, 166, 157, 163, 543. 

V, Tomline, 12, 26, 63, 67, 68, 

167. 

V, Thames Consorv., 500. 



A.-G. Straits Settlement 17. Wemyss, 

157, 166, 500. 
Aubin V. Daly, 394. 
Aubrey r. Fisher, 33. 
Auriol V. Mills, 474. 
Austerberry r. Oldham, 613. 
Austin V, Amhurst, 352, 670. 



TABLE OF CASBS^ 



Avdand «. Lucas, 496. 
Aynfllex «. Gkfrer, 215, 217, 286, , 
297, 302, 311, 319, 320. 



Bach 9. Meata, 433. 
Back 9. Holmes, 495, 544, 546, 547 
Backhonae r. BomMni 243, 245. 
Bacon r. Smith, 19, 92. 
Badger v. Ford, 260, 364. 

r. Sooth Yorkshire Rj., 158. 

Badkm w. Powell, 438. 

Bagge r. Mawbj, 463. 

Bapall 9. Yillar, 49. 

Bagot V. Bagot, 34, 35, 38, 40, 41, 

60, 61. 
Bagott w, Orr, 178, 183. 
Bagshaw «. Buxton Board, 546, 548. 
BaSej 9. Appleyard, 299. 

^ 9. Badham, 401, 480. 

9. Jamieson, 486, 518. 

9. Steyena, 80, 191, 327, 328, 

329, 330. 

9. Williamson, 496. 

Bain v. Brand, 104, lOo, 113. 
Baizd 9. Williamson, 144, 230. 
Baker 9. Baker, 393. 

9. Brereman, 288, 556. 

9. Gostling, 388. 

9, Holtzapfel, 97. 

9, Sebright, 35, 42. 

Ball 9. Herbert, 158. 485. 

9. Raj, 223, 225. 

Ballacorkish Mining Co. 9. Hazrison, 

54, 141, 142, 242. 
BaUazd 9. Dyson, 204, 206, 207, 281, 

484. 

9. Tomlinson, 140, 143, 229. 

Bamford 9. Tumley, 222. 
Bannalyne 9. Leader, 131. 
Banne Fishery Case, 179. 
Banner r. Lowe, 417. 
Bannister 9. Hyde, 436. 
Barber 9. Dixon, 341. 

. 9. Whiteley, 253, 256, 362. 

Barclay, f», 109, 114, 120. 

9, CoUett, 128. 

. . 9. Raine, 132. 

Barker, re, 100.^ 

V. Davie, 76, 78. 

Barkshire r. Grubb, 269, 276, 278. 
Barlow 9. Rhodes, 276, 278. 
Barnes 9. Loach, 216, 263, 274, 275, 

308. 

. 9. Mawflon, 64, 355. 

, 9. Southsea Ry. Co., 89. 

^ 9, Ward, 502. 

Barradongh r. Johnson, 505, 506. 



BaixnigtaB, re, 38, 39, 57. 
Baningtoa's Case, 30, 84, 330. 
Barum r. Daves, 10. 

9. Mayiiard, 199. 
. rv, 201. 
r. Block, 486, 546. 

9. Boige, 511. 

V. Hotehidn, 34, 35, 40. 

Batcn's Case, 13, 235, 322, 323. 
Bateson r. Green, 363. 
Bathishill r. Reed, 235, 317. 
Bathorstr. ICacpberaon, 541, 545. 
Batthjanr r. Walford, 93 



231 
Baxter r. Bower, 218, 319. 

r. Taylor, 303, 507. 

Bayley r. Bradley, 476. 

r. Great Western Ry., 272, 276, 

307. 
Baylies 9. BayEes, 27. 
BaVlis r. Trsfien-Amhorst, 191, 333, 

3:i4, 335, 341, 354, 557. 
Bayliss r. Fisher, 465. 
Baynes r. Smith, 448. 
Bamton r. Morgan, 410. 
Bead^ r. Perry, 214, 320. 
Beadsworth 9. Torkington, 566. 
Bealey r. Shaw, 152. 
Bean r. Bloom, 342, 353, 569. 
Beaidman r. Wilson, 377. 
Bearpark r. Hutchinson, 391. 
Beasley r. Clarke, 293. 
Beaochamp c. W^inn, 6, 8, 85, 330. 
Beaufort r. Bates, 109. 

r. Swansea, 6, 164. 

Beaomont's Trusts, 52. 
Bcavan r. DeUhay, 429. 
Beck r. Denbigh, 441. 

r. Rebow, 104, 111. 

Beckett r. Leeds, 487. 
Beddington r. Atlee, 273, 279, 812. 
Beddow r. Beddow, 318. 
Bedford r. Dawson, 266. 

r. Sutton Coldfield, 401, 431. 

Beer r. Beer, 381, 414. 
Beeston r. Weate, 227. 
Belaney r. Ffrench, 135. 
Bell r. Quebec, 156, 157, 500. 

r. Waidell, 658, 559. 

9. Wilson, 67, 68, 69. 

Bellew r. Langdon, 370. 
Benfieldidde r. Consett Lron Co., 239. 
Benjamin 9. Storr, 499, 544, 545. 
Bennett r. Glossop, 131. 

9. Reeve, 336, 338, 358. 

Bennington r. Groodtitle, 331. 

c. Taylor, 563. 

Bennion r. Cartwiighi, 295, 301. 
Benson 9. Chester, 334, 335, 356. 



TABLE OF CASES. 



••• 



Bentlej, r^, 28. 

Berkeley's Will, 101. 

Berridge v. Ward, 489. 

Berriman v. Peacock, 35, 39. 

Betts V. Thompson, 363, 371, 670. 

Bevil's Case, 467. 

Bew, re J 427. 

Bewick v, Whitfield, 40. 

Bewlej V, Atkinson, 294. 

Bibby r. Carter, 246. 

Biokett f . Moms, 15*5. 

Bidder t^. North Staffordshire By., 

208, 210. 
Biggins f. Gciode, 441, 464. 
Bignell f;. Clark, 439. 
Bignold V. Giles, 395. 
Binstead v. Buck, 446. 
Birch 9. Dawson, HI. 

V, Sherratt, 394. 

Birch Wolfe v. Birch, 39. 

Bird V. Higginson, 78, 264, 347. 

Birkbcck v. Paget, 79. 

Birkenhead v. London & N. W. By., 

280. 
Birmingham v. Allen, 243, 244. 
Birmingham Banking Co. v. Boas, 

213, 271, 272. 
Birrellr. Bryer, 161. 
Bishop V. Bryant, 441. 

r. Elliott, 110. 

Bishop Auckland S. A. v. Bishop 

Auckland Iron Co., 221. 
Bisset V. Caldwell, 448. 
Blackburn v Edgley, 89. • 
Blackett v. Lowes, 37. 
Blackmore v. Mile End, 645. 
Blackpool Pier Co. v. Fylde Union, 

169, 166. 
Blades v. Arundale, 466. 

V. HIggs, 74. 

Blake f . Bunbury, 28. 
Blanchard v. Bridges, 271, 300. 
Bland v, Lipsoombe, 180, 662. 
Blantyre v. Clyde Navigation, 167. 
Blewett r. Tregonning, 109, 661. 
Blewitt V. Boberts, 394, 396. 
Blight f . HartnoU, 391. 
Bliss v. Collins, 412. 

r. HaU, 220, 225. 

Bllsset V. Hart, 514. 

Blundell v. Catterall, 166, 169, 178. 

Blnnden's Case, 425. 

Bodwell V. Bodwell, 393. 

Bolton V. Bolton, 268, 276. 

Bonner r. Great Western By., 2124 

Bonomi «. Backhouse, 237, 243. 

Boodle V. Campbell, 411. 

Booth V. Aloook, 272. 

^— V. Coulton, 394. 



Booth V. Smith, 407. 
Boraston v. Green, 429. 
Bough ton, re^ 136. 

V, Boughton, 396. 

r. Jewell, 132. 

Boulcott V, Winmill, 363, 864. 

Bowen v. Jenkin, 368. 

Bower r. Hill, 192, 306, 307, 318,316. 

r. Peate, 245, 249. 

Bowes V. Law, 319. 

Bowles' Case, 17, 18, 19, 23, 38, 40, 

95. 
Bowlston r. Hardy, 86. 
Bowser f^. Maclean, 63, 63. 
Box V. Jubb, 146. 
Boyd V. Shorrock, 109. 
Boyle f. Tamlyn, 266, 256, 312. 
Bradbee v, Christ's Hospital, 261, 

259, 499. 
Bradbum v. Foley, 662, 658. 

V. Morris, 204, 207, 496. 

Bradbury v. Wright, 376, 383. 
Bradshaw v. Eyre, 360. 
Brain, r«, 477, 664. 

V, Thomas, 664. 

Braithwaite v. Cooksey, 429. 
Brantom v, Griffits, 50. 
Brassington v, Brassington, 136. 
Brecon Markets Co. v, Neath By., 

613. 
Brett 9. Beales, 513. 

V. Clowser, 272, 276. 

Brewer v. Brown, 259,-498. 
Bridges, Case of, 528, 632. 

f». Smyth, 428. 

Bridge water v. Edwards, 384. 
Bright V. Walker, 288, 289. 
Brigstocke v. Brigstooke, 69, 421. 
Bristow ff .* Cormican, 162. 
Broadbent v. Kamsbottom, 141, 149. 

V. Wilks, 657, 560. 

Broadwater Estate, re, 102. 
Broder v. SaiUard, 144, 235. 
Bromfield v. Kirber, 339, 340. 
Brook, ^ar^., 116, 121. 

V. Willet, 336. 

Broom v. Hore, 414. 

Brown's Will, 138. 

Brown v. Alabaster, 268, 272. 

V, Arundell, 462. 

V. Daun, 436. 

r. Glen, 435. 

i;. Shevill, 451. 

V. Tucker, 358. 

V. Wales, 11. 

Browne's Will, 396. 
Browne v, Lockhart, 131. 

V, Powell, 462. 

V. Robins, 248, 



TABLE OF CASES, 



Brownlow v. Tomlinson, 512. 
Brownrigg 9. Pike, 392, 421. 
Brnoe r. Helliwell, 82. 
Braerton's Case, 409, 414. 
Bnunfitt V. Roberts, 201. 
Bnmton r. Hall, 204, 206. 
Bryan v. Whistler, 201. 

■ r. Winwood, 12. 

Bryant v. Lefever, 201, 219, 220. 
Bzydges v. Stephens, 35. 
Bubb 9. Yelverton, 20. 
Bucoleuch v. Metropolitan Board, 

203, 266. 

V. Wakefield, 64, 237, 508. 

Buchanan 9. Andrew, 239. 
Bu(^ ^. Nurton, 7. 
Bnckhurst's Case, 124, 125, 129. 
Backland v, Butterfield, 105, 109, 

115. 
Bnckley r. Howell, 41, 52. 

V, Taylor, 425. 

Bull, ez p., 427. 

Bnllaid v. Harrison, 209, 267. 

Bullen r. Denning*, 18, 31, 32. 

Bnllers v, Dickinson, 216, 217. 

Bullock V, Dommitt, 97. 

Bulwer v. Bulwer, 46, 47. 

Bunhury v. Hewson, 93. 

Bunch V, Kennington, 448. 

Burdett, re, 122. 

Burgess v. Northwick Board, 492, 

498, 527. 
Bume r. Richardson, 428. 
Burt 9. Haslett, 110, 118. 

9. Moore, 367. 

Burton 9. Gainer, 133. 

Bury 9. Lancashire & Y. Ry., 535, 

537. 
Bush 9. Steinman, 499. 
9. Trowbridge Waterworks Co., 

149. 
Bussey v. Storey, 515, 519, 521. 
Buszard 9. Capel, 328, 382, 431. 
Bute 9. Glamorgan Canal, 10. 
Butler 9. Hunter, 249. 

9. Manchester & L. Ry., 195. 

Butt's Case, 381, 386, 391. 
Butt 9. Imperial G-as Co., 202. 
Buttery 9. Robinson, 393. 
Buxton 9. North Eastern Ry., 261. 
Byerley 9. Windus, 201. 



Cadogan 9. Armitage, 349. 
Caledonian Ry. v. Sprot, 242, 246. 

9. Walker's Trustees, 497. 

Campbell 9. Wazdlaw, 58, 60, 61, 

62. 
9. Wilson, 284, 288. 



Cane r. Martin, 135. 

Canham 9. Fisk, 148. 

Cannon 9. YiUan, 205. 

Canterbury 9. Att.-Gren., 97. 

Cape 9. Scott, 339, 369. 

Capel 9. Buszard, 7, 382. 

Capital Tire Ins., re, 135. 

Capron 9. Capron, 421. 

Carlisle v. Graham, 155, 157, 178. 

Carlyon 9. Lovering, 229, 287, 564« 

Carr 9. Benson, 54, 69, 330. 

9. Erpoll, 136. 

9. Foster, 296, 299, 302, 355. 

9. Lambert, 334, 337, 357. 

Carriage Supply Assoc., r», 460, 
Carrington v. Roots, 50, 198. 
Carruti^ers 9. HoUis, 257, 258. 
Carstairs 9. Taylor, 92, 146. 
Carter v. Carter, 466. 

9. Muroot, 180, 181. 

CasUemain 9. Crayen, 93. 
Cavey v. Lidbetter, 220, 222. 
Cawkwell 9. RusseU, 231, 232, 323, 

324 
Chad 9. Tilsed, 282. 
Chadwick 9. Marsden, 231. 

9. Trower, 248, 249, 252. 

Chamber Colliery Co. 9. Hopwood. 

290. 
Chandler 9. Doulton, 465. 
Chandos 9. Talbot, 33. 
Channon 9. Patch, 39. 
Chaplin 9. Chaplin, 390. 
Chapman & Hobbs, re, 373. 
Chapman v. Cowlan, 335. 

9. Ghitoombe, 404. 

Chaid 9. Tuck, 6. 

Charles v, Finchley Board, 232. 

Charman 9. South Eastern Ry., 262, 

502. 
Chasemore 9. Richards, 141. 
Chatfield 9. Berchtoldt, 391. 
Chauntler9. Robinson, 99, 251. 
Cheesman v, Hardham, 334, 338, 

'340. 
Cheetham 9. Hampson, 255. 
Chesham, re, 138. 
Chester Mill Case, 182. 
Chetham 9. Williamson, 54, 329, 

348. 
Chichester 9. Donegall, 131. 
Child 9. Chamberlain, 438. 

9. Heam, 257, 262, 502. 

Clulton 9. London, 336, 556, 561, 

565, 566, 667. 
Cholmeley 9. Paxton, 17, 23, 24, 

41. 
Christchorch Inclosure Act, re, 328, 

343, 567, 568. 



TABLE OF CASES. 



Christie v. Barker, 405, 414, 472. 

9. GrosUng, 137. 

Church V. Tame, 283. 
Chuicbill 9. Evans, 253, 260. 
Churchward v. Ford, 475. 

V. Studdy, 75. 

City Brewery Co. r. Teimant, 218, 

219, 322. 
Clarence Ry. Co. v. Great Northern 
• Ry. Co., 280. 
Clark V. Oaskarih, 447. 

r. London School Board, 266. 

V. Tinkler, 339. 

Clarke r. Clark, 214. 

V. Millwall Dock Co., 451. 

V, Rugge, 268. 

V. Somerset Commiss., 231. 

r. Thornton, 102. 

Clarkflon v. Woodhouse, 359, 365, 

366. 
Clayering v. Clavering, 59, 60. 
Clayton r. Corby, 289, 303, 327, 328, 

354. 
Clennell v. Read, 466. 
Cleveland v. Meyrick, 68. 
Clifford V. Hoare, 204, 209, 314. 

Climiev. Wood, 106, 113. 

Clough V, French, 473. 

Clowes V. Staffordshire Potteries Co., 
149, 317, 318. 

Clun's Case, 372, 416, 425. 

Coal Consumers* Ass., re, 459. 

Coatsworth v, Johnson, 378. 

r. Cochrane, ex p., 458. 

Cocker v. Cowper, 196. 

V. Musgrove, 456, 457. 

Cockerell v, Cholmeley, 17, 23, 24, 
41. 

Cocks r. Gray, 450, 453. 

Cocksedge v. Fanshaw, 515, 565. 

Codling r. Johnson, 192. 

Colbome v. Wright, 412. 

Colchester r. Brooke, 157, 162, 163, 
179, 485, 546. 

Colebeck v. Girdlers' Co., 91, 99, 
251, 262. 

Colegrave v. Dias Santos, 104. 

Coleman i;. Bathurst, 81. 

Collins V. Harding, 413. 

Coltness Iron Co. v. Black, 66. 

Colton V. Smith, 514. 

Combe's Case, 381, 550. 

Compton r. Richaids, 274. 

Constable's Case, 160, 172. 

Constable v. Constable, 4*21. 

V. Nicholson, 562. 

Coode V. Jones, 434. 

Cook V. Bath (Mayor of), 307. 

V. Herle, 389. 



Cooke V. Chiloott, 319. 

V. Forbes, 221. 

Cooper V. Crabtree, 224, 316. 

V. Emery, 126, 132. 

V. Hubbuck, 298. 

V. Marshall, 370. 

If. Walker, 511. 

Cope V. Marshall, 370. 

Copland v. Maxwell, 81. 

Corbet's Ca.se, 339, 340, 341, 366. 

Corbetto. Hill, 91. 

Corley v. Hill, 502. 

Cornish v. Stubbs, 49, 118, 196. 

Comwell f . Sanders, 352. 

Cony r. Great Western Ry., 261. 

Cory V. Bristow, 195, 200. 

Cotsworth V. Betieon, 467. 

Coupland v. Hardingham, 502. 

Courtauld v. Legh, 215, 295, 314. 

Courtier, re, 101. 

Cousens v. Rose, 206. 

Coverdale v, Charlton, 332, 367, 492, 

511. 
Cowin, re, 128. 

V. Gravett, 128. 

Cowh&m V. Slack, 285, 344, 350, 

360. 
Cowley r. Wellesley, 34, 60. 

Cowling V. Higg^nson, 207. 

Cox's Trusts, 420. 

Cox V. Burbidge, 254. 

V, Glue, 332, 368. 

V. Gk)dsalve, 49. 

V. Knight, 475. 

F. Mousley, 332. 

Crabtree v. Robinson, 435. 

Cramer v. Mott, 436, 449. 

Crisp f. Martin, 201. 

V. Platcl, 131. 

Crispe V. Belwood, 514. 

Croft V. Rickmansworth, 527. 

Cralling t'. Tuffnall, 112. 

Crompton v. Lea, 144. 

Crosby v. Wadswortb, 198, 367. 

Crosier v. Tomkinson, 451, 453. 

Cross V. Barnes, 100, 106. 

r. Lewis, 213, 285, 300. 

Crossley v, Lightowler, 229, 273, 
306, 310, 314. 

V, Wadsworth, 50. 

Crowhurst v. Amersham Burial 
Board, 13, 29, 258. 

Crowther v. Ramsbottom, 466. 

Crump V. Lambert, 221, 222, 224. 

Cubitt V. Maxse, 503, 504, 508. 

V, Porter, 259. 

Cullwick V. Swindell, 106. 

Cumberland r. The King, 634. 

Cupit V. Jackson, 479. 



ZXVl 



TABLE OF CASES. 



Oumers' Co. v. Oorbett, 217, 274, 

319. 
Cortis V. Daniel, 64. 

V. Wheeler, 377. 

Cuthbert v. Kobinflon, 7, 89, 275. 



Bacre v. Tebb, 86. 

Daglish, ex p., 118, 123. 

Dalton V. Angus, 193, 194, 201, 212, 

236, 237, 243, 245, 247, 249, 250, 

283, 284, 285, 286, 291, 292. 

t;. Whittem, 119, 444. 

Daljv. Beckett, 61. 

Band v. Kingsoote, 208, 210, 349. 

Daniel v. Auderdon, 276, 290, 291. 

V. Graoie, 424. 

V. HansUp, 327, 336. 

V. Stepney, 386. 

Darby v. Harris, 445. 
Dare v. Heathcote, 207, 295. 

V. Tucker, 132. 

Darley Main Coll. r. Mitchell, 243. 
DarviU v. Roper, 69. 
Darwin v. Upton, 285. 
Dashwood r. Ayles, 8. 
Dayies v. Davies, 92, 98. 

V. Powell, 78, 445. 

V. Sear, 268, 272. 

V, WiUiams, 204, 288, 300, o23, 

325, 370. 
Davis, re, 457. 

V. Dysart, 127. 

V. Eyton, 46. 

V. Morgan, 264, 296, 310, 347. 

r. Trehame, 240. 

Davison r. GiU, 491. 

Dawes r. Hawkins, 210, 495, 505, 

609, 516. 
Dawson v. Cropp, 463. 

V. Midland Ry., 257, 261. 

r. Robins, 8, 382. 

V. Willoughby, 520, 555. 

Day r. Day, 396. 

r. Brownrigg, 9, 318. 

Dearden v. Evans, 63, 109. 

De la Warr v. MUes, 84, 282, 284, 

288, 333, 336, 342, 353, 561, 570. 
De Morgan v. Metrop. Board, 495. 
Dench r. Bampton, 26. 
Dennett v. Pass, 408. 
Dent r. Auction Mart Co., 214, 218, 

314, 318, 321, 322. 
Denton r. Denton, 27, 41. 
Devonshire v. Elghin, 196. 
— V, Lodge, 85. 



Devonshire v. PattinBon, 6, 163, 175, 
176, 180. 

D'Ejmoourt r. Gregory, 106, 110, 
111, 112, 138. 

Dicken v. Hamer, 58. 

Dickinson r. Grand Junction Gsoal, 
141, 148, 226. 

Dietrichsen v. Giubelei, 25, 92. 

Dimes v. Petley, 546. 

Direct U.S. Cable Co. 9. Anglo- 
American TeL Co., 161. 

Ditoham v. Bond, 463. 

Dixon V. Caledonian Ry., 65. 

V. Metrop. Board, 146. 

V. "White, 237, 238. 

Dod V. Monger, 436, 467. 

Dodd V. Burchall, 268, 272. 

V. Hohne, 248, 249. 

Dodds V. Thompson, 374, 385. 

Doe r. Aldcrson, 55. 

V. Benham, 425. 

V. Bettison, 23. 

V, Bevis, 332. 

r. BiUett, 425. 

V. Bond, 20, 96. 

V, Burlington, 18, 26, 94. 

V. Burt, 10, 90. 

V, Collins, 6. 

V. Darby, 428. 

V. Hilder, 305. 

V. Horsley, 478. 

V. Jones, 12, 92, 95. 

V. Keeling, 223. 

r. Kemp, 488. 

V. Lakeman, 7. 

V. LlandafP, Bishop of, 403. 

V. Lock, 32, 54, 78, 265, 348, 

375. 

V. McKaeg, 49, 196. 

V. Maisey, 48. 

v. Masters, 477. 

V. Meyler, 411. 

V, Pearsey, 258, 488. 

V. Roe, 131. 

V. Webster, 0. 

V. Wilson, 37, 196. 

V. Wood, 53, 66, 329. ' 

Doherty v. Allman, 20. 

Doidge i;. Carpenter, 335. 

Donaldson v. Donaldson, 88. 

Doran v. Wiltshire, 24, 43. 

Doubitofte v. Curteene, 382, 423. 

Dovaston v. Payne, 257, 484, 491, 
601. 

Dowglass V. Kendal, 329. 

Downshire v. Sandys, 36. 

Drake v. Trefusis, 88. 

Drewell v. Towler, 200, 204. 

Dmitt r. Christchurch, 390. 



TABLE OF CASES. 



XXYU 



l>rury v. Kent, 327, 336. 
Duberley v. Page, 364, 365. 
Dudden v. Glutton Union, 142. 
Dudley Corp., re, 247, 279. 
Dudley v. Warde, 113, 114. 
Dugdale r. Bobertson, 238. 
Dumerg^e V. Rumsey, 117, 120. 
Duncan r. Louch, 204, 209, 211, 

487, 612. 
DDunoombe's Case, 494. 
Duncombe r. Mayer, 128. 
Dunraven v. Llewellyn, 337. 
Dnppa V Mayo, 392, 426, 473. 
Durell V. Pritchard, 319. 
Durham and Sunderland By. tf. 

Walker, 80, 206, 208, 265. 
Dyers' Co. v. King, 217. 
Dyke, ezp., 121. 
Dynevor«. Tennant, 192, 311. 



Eadon v. JefPoock, 56, 240. 

Eagle r. Charing Cross Ry., 266, 315. 

Eagleton v. Gutteridge, 436. 

Eardley v. Granville, 26, 53, 63, 64. 

East V, Harding, 37. 

East India Co. v, Vincent, 196. 

Easton v. London, 127. 

V, Richmond Highway Board, 

489, 493, 548. 
Eaton V. Southby, 48, 429, 448, ^57. 
Ecoles. Com. v. Kino, 214, 216, 290, 

309, 312. 321, 322. 
Edrich's Case, 392. 
Edridge v. Hawker, 478. 
Edwiuds V. Halinder. 252. 

V, Warwick, 417. 

Ed wick V. Hawkefl, 478. 

Egerly*s Case, 496. 

Egremont Board v. Egpremont Lx)n 

Co., 130. 
Elias V. Snowdon Slate Co., 59, 60. 
EUard f . Hill, 335. 
Elliot r. North Eastern Ry., 143, 

242, 244. 
Elliotson V. Feetham, 225. 
EUiottr. Bishop, 114, 115, 118. 
Ellis V. Bromley Board, 60, 349. 

V. Loftus Iron Co., 253, 254. 

V, London & S. W. Ry., 262. 

— V. Manchester Carriage Co., 274. 

V, Rowles, 369. 

V, Taylor, 443. 

r. Woodbridge, 484. 

EUway v. Davis, 664. 

Elwes V, Brigg Gas Co., 72, 107. 

V. Mawe, 105, 109, 113, 115. 

Elwood V. Bullock, 511, 556. 



Elworthy v. Sandford, 126. 
Ely, Case of Isle of, 167. 

(Dean of) v. Warren, 570. 

Embleton v. Brown, 165, 179. 
Embrey v. Owen, 148, 150, 314, 315. 
Emerton v, Selby, 334. 
Emmorsont;. Ind, 131. 
Empsonv. Soden, 108, 114. 
England «. Cowley, 435. 
Epping Forest Case, 84. 
Errington v. Metrop. Ry., 65. 
Erskine v. Adeane, 255, 257. 
Espley V, Wilkes, 277. 
Etherton v, PoppleweU, 438, 464. 
Evans v. Bioknell, 128. 

V, EUiott, 462. 

V. Manchester, &o. Ry., 144, 

146, 229. 

r. Roberts, 44, 45, 60. 

V. Walker, 396. 

V. Williamson, 49. 

Ewart V. Cochrane, 270. 
Ewer V. Moyle, 413, 414. 
Exeter r. Warren, 170, 171, 514. 
Exhall Coal Co., re, 459. 
Exmoath v. Praed, 137. 
Eyton V, Mold, 82. 



Pain V. Ayers, 130, 132. 

Fairfax r. Derby, 390. 

Faithfull, re, 135. 

Fane v. Fane, 138. 

Farewell v, Dickenson, 382. 

Farrant v. Thompson, 104, 119. 

Farrer r. Nelson, 79. 

Farrow v. Rees, 127. 

Faversham Free Fishers, re, 179, 

662, 666. 
Fawcett r. Strickland, 366. 
9. York and Midland Ry., 2^2, 

491, 502. 
Fay V, Prentice, 13, 235. 
Feamley v. Ormsby, 646. 
Fell V. Whittaker, 465. 
Fentiman v. Smith, 196. 
Ferguson v. Smith, 92. 
Ferrand v. Wilson, 17, 34, 42. 
Field V, Adames, 448. 

V, Brown, 42. 

Filliter v. Phippard, 97. 

Finch r. Great Western Ry., 206, 

206, 208. 
Findon v. McLaren, 452. 
Fineux v. Hovenden, 651. 
Finlinson r. Porter, 232. 
Finney r. Grioe, 104, 111, 115. 
Firth V, Bowling Iron Co., 258. 



XXVUl 



TABLE OF CASES. 



Firih V. FnrviB, 462, 467. 
Fisher v. Algrar, 441. 

V. Dickson, 104, 113. 

r. Prowse, 511. 

9. Wren, 344, 570. 

fitch V, Kavling, 556, 659. 
Fitzwalter*B Case, 178. 
Fleet V. Metrop. As}'luni, 220. 
Fletcher r. Great Western Ry., 241. 

V. Smith, 144, 228, 230. 

Flights. Glossop, 91. 

V. Thomas, 225, 291, 300, 301. 

Foiston V. Crachroode, 343, 555, 568. 
Foley V. Bumell, 136. 
Folkard v. Hemmett, 364. 
Forbes t>. Eccles. Commifs., 559. 
Ford V. Lacey, 155. 

r. Tynte, 35, 78. 

Foreman r. Canterbury, 540, 545. 
Forests, Case of, 84, 85. 
Foster r. Crabb, 129. 

r. Smith, 393. 

V. Wright, 154, 165, 175. 

Fowkes V, Joyce, 450, 454. 
Fowler r. Sanders, 499, 512, 658. 
Fowlers r. Walker, 308, 309. 
Fox r. Amhurst, 334, 335, 341. 

1'. Clarke, 250. 

Frances v. Ley, 136. 
Francis t*. Hayward, 200. 

V, Wyatt, 453. 

Frechette v. St. Hyacinthe Co., 151, 

232. 
Free Fishers of Faversham, re, 179, 

562, 666. 
Freeman r. Edwards, 386, 408, 450. 

V. Head, 520. 

French v. Phillips, 466. 
French Hoek r. Hugo, 142, 293. 
Frewen v. PhilUps, 291, 303, 304. 
Friend v. Shaw, 479. 
Frith V. Cameron, 101. 
Fritz V. Hobaon, 499, 545. 
Fryar v. Johnson, 201. 
Fryman's Ebtate, 458. 
Fuller, ex p., 135. 



GambrcU v. Falmouth, 463. 
Gammeirs Case, 183. 
Gannr. Whitstable, 162, 163. 
Gard r. Callard, 657. 

V, London Sewers Com., 90. 

Gardiner v. Williamson, 404, 411, 

423. 
Garfit r. Allen, 37P. 
Gamer r. Hannyngton, 127. 
Gaxston Co. r. Hickie, 169. 



Garth v. Cotton, 23, 24, 38, 39. 
Gaskdn v. Balls, 318, 319. 
Gas Light Co. v. Hardy, 452. 
Gateward*8 Case, 288, 343, 351, 

551, 655, 5C0, 661, 568. 
Gaunt V. Fynney, 221, 222. 
GaTed 9. Martyn, 233, 234, 564. 
Gawan, exp.y 109, 120. 
Gayford r. Moffatt, 267, 268, 290. 

V. NichoUs, 245, 248. 

Geams r. Baker, 79. 

General Share Co. r. Wetley Bride 

Co., 477. 
Gentf. Harrison, 23, 38, 41. 
Gerard v. Boden, 394. 
Gerrard v. Cooke, 210. 
Gerring v. Barfield, 500. 
Gery v, Redman, 488. 
Gibson v. Hammersmith By., 104. 

r. Iveson, 451. 

V. Kirk, 475, 476. 

V. Preston, Mayor of, 540. 

r. Wells, 26. 

GifPord V, Yarborough, 165, 555. 
GUes r. Spencer, 423, 426, 450. 
Gill V. Dickinson, 239. 

t'. Eyton, 131. 

Gilman r. Elton, 452. 
Gimbart v. Pelah, 437. 
Gisboum v. Hurst, 453. 
Glasgow V. Fane, 66. 
Glegg, ex p,, 121. 
Glover v. Coleman, 301. 

V. Coles, 448. 

V. Lane, 361, 363. 

Glyn V. Thomas, 466. 
Godfrey v. Little, 11. 
Goodday v. Michell, 560. 
Goodhart v. Hyett, 228, 279, 280. 
Goodman r. Saltash, 179, 189, 351, 

352, 515, 554, 562, 566, 566, 667. 
Groodright v. Vivian, 18, 31. 
Goodson r . Richardson, 319,491, 500. 
Goodtitle v. Alker, 491. 

V. Chester, 87. 

V. Jones, 27. 

Groodwin v. Cheveley, 601. 
Gordon v. Woodford, 30, 33. 
Gorely, ex p., 100. 
Gorton r. Falkner, 448, 452. 
Gott r. Gandy, 99. 
Gould, exp,, 116, 117. 

V. Bradstock, 436. 

Growan, ex p.^ 114. 

V. Christie, 56. 

Graham v. Edge, 459, 473. 

V, Ewart, 82. 

Grand Junction Canal r. Petty, 485, 

608. 



TABLE OF CASES. 



XXIX 



Grand Junction Canal p. Shugar, 141. 
Grand Sorrej Canal v. Hall, 608, 

612. 
Grant, r», 393. 

V. Gunner, 361, 365. 

Grantham v. Hawley, 49. 
Grayea v. Hicks, 479. 

V. Weld, 44, 46. 

Gray's Case, 354, 569. 
Gray r. Bond, 200, 349. 

r. suit, 429, 433. 

Greasly v. Codling, 544. 

Great Eastern Ry . r. Hackney Board, 

490. 
Great Northern Ry. v. Eastern 

Counties Ry., 485. 
Great Western Ry. r. Bennett, 65, 

241. 

V, Swindon Ry., 14, 266. 

Ghvathead r. Morley, 82. . 
Gtreatrex v. Hayward, 233. 
Greaves v. Tofield, 397. 
Green v. Duckett, 438, 462. 
Greenaway v. Hart, 381. 
Greene v. Cole, 18, 19, 95. 

V. Foster, 127. 

Greenwood r. Homsey, 308, 321. 

r. Roth well, 131. 

GrifSn r. Scott, 437. 
Griffinhoofe v. Daubuz, 405. 
Grif&th, re, 420. 
Griffiths r. Hatchard, 130. 
Grimstead v. Marlowe, 561. 
Grimwood r. Moss, 428, 429, 477. 
Grose v. West, 487, 488. 
Groevenor v. Hampstead Junction 

Ry., 89. 
Gioucott r. Williams, 260. 
Grove's Trusts, 395. 
Grymes v. Boweren, 114. 
Gullett 9. Lopes, 340. 
Gully V, Smith, 546. 
Gundry v. Feltham, 77. 
Gwyn V. Hardwicke, 486, 518. 



Habergham v, Vincent, 8. 
Hadesdon v. Grissell, 370. 
Hadfield*s Case, 390. 
Hadley v. Taylor, 502. 
Haines t;. Welch, 47, 429. 
Hale V. Oldroyd, 228. 
HaHday v. Phillips, 201. 
Hall V. Ball, 126. 

r. Burgess, 475. 

r. Byron, 64, 334, 360, 363. 

- — V. Comfort, 379, 387. 
V, Harding, 334, 369. 



Hall V, Lichfield Brewery, 218, 219. 

V. Lund, 270. 

V. Nottingham, 659. 

V. Swift, 296. 

Halien r. Runder, 121. 
Halsey's Case, 493. 
Hamer v. Eiiowles, 248. 
Hamilton v, Graham, 53, 64. 
Hammersmith Ry. v. Brand, 223. 
Hammerton v. Honey, 559. 
Hampstead Vestry v. Cotton, 490. 
Hanmer v. Chance, 63, 301, 342, 344, 

352, 654. 
Harbidgev. Warwick, 289, 291. 
Harding v. Wilson, 209, 276, 277. 
Hargreaves v, Diddams, 180, 181, 

562. 
Harker v. Birkbeck, 55, 367. 
Harnett r. Maitland, 19, 26, 92. 
Harper r. Taswell, 441. 
Harrington v, Harringpton, 137. 
Harris, ex p., 455. 
V. Be Pinna, 13, 213, 219, 220, 

235, 296. 

r. Franconia, 159, 160. 

V. Jenkins, 205, 208. 

ff. Mobbs, 493, 543. 

V. Ryding, 91, 238, 252. 

Harrison's Trusts, 34. 
Harrison v. Good, 223. 

V. Harrison, 33, 40. 

r. Parker, 107, 196, 637. 

Harrop r. Hirst, 551, 563. 
Harrow School v. AJdorton, 20. 
Hart V. Leach, 443. 

V, Windsor, 99. 

Hartnall v. Ryde Commiss., 541. 
Harvey v. Pocock, 449. 

V. Walters, 235. 

Haskett v. Baiss, 214. 
Hasluck V, Pcdley, 421. 
Hassellr. Gowthwaite, 389, 391, 478. 
Hastings, re, 474. 

r. Ivall, 164. 

Hatfield Forest Case, 84. 
Havergill r. Hare, 389, 478. 
Hawken v. Shearer, 260. 
Hawkins v. Carbines, 210, 324. 

V, Kelly, 416. 

V. Wallis, 200. 

V. Walrond, 442. 

Hawtry v. Butlin, 123. 
Hay t'. Palmer, 41G, 417. 
Hayward v. Cannington, 328. 
Healey v. Batley, 505, 507, 623. 
Heath v, Bucknall, 217, 309. 

V. Crealock, 134. 

V. Elliott, 253, 339. 

Heawood v. Bone, 455. 



TABLE OF CASES. 



Heelifl v. Blain, 390. 

Hellard v. Moody, 61. 

Hellawellf'. Eastwood, 110, 111, 120, 

445, 470. 
HeUier v. Silcoz, 475. 
Helming v. 'Bumet, 208. 
Henson v. Gardiner, 371. 
Herlakenden's Case, 18, 19, 32, 94, 

95, 110. 
Heme r. Bembow, 92. 
Hervey v. Smith, 224. 
Heslop V. Metcalfe, 135. 
Hewlins r. Shippam, 196, 263. 
Hext V. Gill, 65, 67, 68, 69, 238, 242, 

349. 
Heydon v. Smith, 26, 36, 37. 
Hickman r. Thorn, 341, 366. 
Higginbotham v. Hawkins, 20, 21. 
Higham v. Rabett, 204. 
Hill V. Grange, 7. 

V, Metrop. Asylum, 220. 

r. Midland Ry„ 14, 266. 

V, Smith, 613, 553. 

V. Tupper, 187, 194. 

Hilton V. Granville, 660. 
Hitchin, re^ 106. 
Hitchman v. Walton, 105. 
Hix V. Gardener, 558. 
Hoare v. Metrop. Board, 191, 200. 
Hobson V. Todd, 368. 
Hoddesdon r. Gresil, 369, 370. 
Hodgkins v. Robson, 408. 
Hodgkinson r. Ennor, 229. 
Hodgson V, Field, 232. 

fj. Gascoign, 49. 

Hoe V. Taylor, 331. 

Holden v, Weekes, 68, 93. 

Holder v. Goatee, 29. 

Holdsworth, ex p., 128. 

Hole V. Barlow, 222. 

Holford V. Bailey, 6, 174, 176, 176, 

346. 

• V. Hankinson, 288. 

Holker v. Porritt, 152, 227. 

HoUand v. Bird, 462. 

V. Hodgson, 106, 108, 109, 110, 

111. 

V. Falser, 426. 

r. Worley, 321. 

Holliday v. Wakefield, 66. 

HoUins V. Yemey, 295, 298, 300, 301. 

Hollis V. Carr, 474. 

r. Glaridge, 136. 

HoUoway v. Berkeley, 414. 
Holmes v, Bellingham, 204, 487. 

r. Goring, 269. 

V. Milward, 6. 

Honywood r. Honywoo'd, 33, 34, 88, 

39, 40, 41. 



Hooper v. Boome, 67, 487, 490. 

V. Bjunsbottom, 126. 

Hopcraft v. Keys, 428. 
Hope V. Siddell, 135. 
Hopkins r. Helmore, 426. 
— *- r. Robinson, 346. 
Horn r. Baker, 120. 
Hornby r. Silvester, 618. 
Home V. Mackenzie, 162. 
Homer v. Cadman, 496, 644, 646. 

V. Whitechapel, 511. 

Horsfordv. Webster, 444, 460, 454. 
Horton r. Bott, 131. 

V. Hall, 480. 

Hoskins v. Knight, 457. 

V. R'jbins, 336, 344. 

Hotchkin's Estate, 102. 
Hotchkys, re^ 28. 92, 93, 101. 
Hounsell r. Smyth, 502. 
House Property Co. v. Horse Nail 

Co., 224. 
How r. Strode, 341. 
Howarth v. RothweU, 393. 
Howel V. Hanforth, 417. 
Howell V. King, 208. 
Howitt V. Nottingham Tramway Co., 

545. 
Howton V, Frearson, 267. 
Hudd V. Ravenor, 443, 471. 
Hudson V. Macrae, 180, 562. 

V. Tabor, 167, 168, 256. 

Hughes V. Coles, 427. 

r. Perdval, 260. 

HuU and Selby Ry., r^, 166. 
HuUr. Homer, 170, 171. 
Humfrey v. Gery, 426. 
Humphries v. Brogden, 91, 237, 242, 

262. 

V, CousinB, 229, 232. 

Hunt V. Cope, 410. 
V. Hunt, 820. 

V, Peake, 248. 

Hunter v. Nookolds, 426. 
Huntley r. Roper, 414. 

V. Russell, 18, 93, 96, 112. 

Hurdman v. North Eastern Ry., 144, 

230, 235. 
Hussey v. Hussey, 42. 
Hutchins v. Chambers, 449, 462, 463, 

465, 466. 

V, Scott, 437. 

Hutohinson r. Copestake, 217. 
V. Kay, 109. 



Ibbotson V, Peat, 79, 221. 
Hlingworth v, Bolmer Board, 641. 
Inchbald v, Robinson, 222, 224. 



TABLE OF CASES. 



Indflrmanr v. Barnes, 502. 

Isemberg v. East JjidiBL Ho. Co., 319. 

laherwood r. Oldknow, 381. 

Ivatt V. Mann, 335. 

Ivay V. Hedges, 99. 

Ive^s Case, 32. 

lyeaon v. Moore, 544. 

Ivie V, Ivie, 128. 

iTimey v, Stocker, 234, 564. 

l2od r. (Norton, 97. 



Jackson, ex p.^ 379. 
Jackson v. Newcastle, 215. 
Jacob V. King, 443, 468. 
Jamee v. Hayward, 511, 543, 646. 

V. John^n, 613, 514. 

V, Plant, 276, 278, 311. 

V. The Queen, 564. 

V, Young, 564. 

Jarvis v. Dean, 605, 607. 
Jeffrey v. Neale, 404. 
Jeffries r. Williams, 246. 
Jegon V, Vivian, 66. 
Jemott V, Cowley, 478. 
Jenison v. Lexington, 376, 391. 
Jenkins r. Harvey, 171, 283. 

V. Jackson, 222, 271, 319. 

V. Milford, 27, 28. 

Jenner r. Morgan, 416. 

V, Morris, 129. 

V. YoUand, 449. 

Jesser v. Gifford, 316. 
Jewel's Case, 381. 
John V, Jenkins, 433. 
Johnson v. Barnes, 332, 335, 352, 
356, 567. 

V. Paulkner, 446, 447, 450. 

V, Johnson, 7. 

V, Jones, 379, 411. 

V. Lyttle*8 Iron Agency, 477. 

V. ^ham, 443, 462. 

V. Wyatt, 309, 318, 320, 321. 

Johnstone v. Hudlestone, 430. 
Jolly V. Arbuihnot, 378. 
Jones V. Bird, 248. 

V. Carter, 477. 

V. Chappell, 18, 95, 224. 

— V, Cwmorthen Slate Co., 68. 

— V. Dangerfield, 94. 

V. Feetiniog Ry., 223. 

f>. Flint, 50, 346. 

V. Hill, 25, 92. 

r. Ogle, 420. 

V, Price, 297. 

V. Reynolds, 347. 

V. Richard, 8, 328, 332, 335, 

336, 344, 367. 



Jones t;. Robins, 267, 339, 340. 

r. WiUiams, 153, 199, 323, 325, 

347. 



Kay V, Oxley, 278. 

Kaye v. Powell, 27. 

Keane r. Reynolds, 549. 

Kearsley v. Philips, 378, 450. 

Keech v. Hall, 48. 

Keen v. Priest, 449, 461. 

Keighley*s Case, 168. 

KeightW r. Birch, 442. 

Kelk V. Pearson, 214, 287, 319, 321. 

Kelsack v. Nicholson, 133. 

Kelsey v. Kelsey, 480. 

Kemp V. Sober, 223. 

Kennedy v. Green, 131. 

Kenrick v. Guilsfield, 83. 

V. Pargiter, 344, 369. 

Kensit v. Great Eastern Ry., 149, 

160, 163. 
Kent V. Worthing Loc. Board, 546. 
Kenyon v. Hart, 74, 76. 
Keppell V. BaUey, 187. 
Kerford v. Seacombe Ry., 89. 
Kerr v. Middlesex Hospital, 395. 
Kerry v. Derrick, 7, 388. 
Kevill V. Davies, 416. 
Kcyse v. Powell, 63. 
Kidgill V. Moore, 316. 
Kimber v. Paravicini, 94. 
Kimpton v, Bellamy, 359. 
King, The v. Barnes, 516. 

V. Barr, 507. 

V, Bridekirk, 620. 

— r. Buckingham, 610. 

V, Bucks, 633, 637, 538. 

r. Churchill, 335. 

V. Cross, 600. 

r. Cumberworth, 504. 

— V. Davie, 666. 
V, Derbyshire, 636. 

r. Devon, 626, 532, 533, 634, 

636. 

V, Downshire, 486, 518. 

V. Ecclesfield, 619, 665, 567. 

V. Edge Lane, 604. 

V. Ellis, 177. 

V. England, 442. 

DL Essex, 168. 

V, Eyre, 616. 

V. Flecknow, 494. 

V. Hatfield, 487, 619, 520, 528. 

r. Hendon, 631. 

V. Homdon on Hill, 196. 

V. Hudson, 606. 

V. Indcdon, 642. 



xxxu 



TABLE OF CASES. 



Eang, The v. Joliffei 553, 558. 

— V. Jones, 499. 
p. Kent, 533. 

V, Kemson, 528, 534. 

— V. Kingsmoor, 520. 

— — V. Kings* Newton, 520. 
— — V. Lancashire, 533, 535. 

V. Leake, 508, 509, 619. 

r. Lindsey, 531. 

V, Liverpool, 521. 

V, Lloyd, 48G, 605. 

V. London, Mayor of, 658. 

V. Londonthorpe, 112. 

V. Lyon, 504. 

-^ V. Machynlleth, 520, 529. 

V, Mashiter, 566. 

V, Mellor, 609. 

V. Mersey Nav. Co., 490, 

V. Middlesex, 621, 633. 

r. Netherthong, 621, 533. 

V. Nicholson, 516. 

V, Northampton, 510. 

r. Old Alresford, 175. 

1;. Otley, 112. 

V. Oxfordshire, 535, 636. 

■ r. Pagham Commiss., 168. 

— r. Pappineau, 542. 

— V, Pendenyn, 520. 

r. Piddletrenthide, 8, 330. 

V, Rosewell, 323. 

V, RosseU, 163, 499, 517, 543. 

V. St. Benedict, 621. 

V* St. Diinstan, 110. 

V. St. George, 521. 

V. St. Giles, 620, 528. 

V, Salop, 484, 631, 636. 

V. Severn Ry., 168, 484. 

V. Sheffield, 620, 621. 

V, Stead, 512. 

f . Stoughton, 494, 529. 

r. Sutton, 539. 

V. Thomas, 490. 

V. Tindall, 543. 

V, Tippett, 296, 486. 

— — V. Tolpuddle, 8. 

— r. Wandsworth, 539. 

V, Ward, 163, 495, 617, 543. 

V. Warkworth, 362, 567. 

r. Webb, 543. 

V. Westbeer, 125. 

1;. West Biding, 521, 531, 532, 

633, 536, 536. 

V. Whitney, 536. 

V, Whixley, 331. 

V. Wmter, 509. 

V. Wright, 494. 

«. Yarborough, 165. 

Kingsbury v. Comns, 47. 
Eintock v, Nevile, 293. 



Kinlyside v. Thornton, 25. 
E^ino V, Rudkin, 321. 
Kitohin, re^ 379. 
Knatchboll's Estate, 102. 
Knight's Case, 413,415. 
Knight, re, 379, 424. 

p. Bonghton, 416. 

V. PuEsell, 260. 

V. Woore, 563. 

Knoll's Case, 92. 
KnoUes* Case, 391, 392. 
Knowles v. Blake, 467. 
Kooystra v. Lucas, 276. 
Krohl 9. Boirell, 320. 



Lade «. Shepherd, 490, 491. 

Ladyman r. Grave, 289, 290,297, 304. 

Laing v, Whaley, 194. 

Laird v. Briggs, 303. 

Lake v. Plaxton, 363. 

Lambert v. Austin, 390. 

Lancashire v. Rochdale, 525. 

Lancashire Cotton Co., re, 459. 

Lancashire & Y. Ry. v, Knowles, 242. 

Lancashire Telephone Co. r. Man- 
chester, 107. 

Lancaster v. Eve, 107, 108, 191, 203. 

V. Newton, 625. 

Lane r. Stanhope, 6. 

r. Tyler, 450. 

Lanfranchi v. Mackenzie, 214, 215. 

Langdale v. Briggs, 128. 

Langley v. Hammond, 272, 278. 

Lascellea v. Onslow, 357, 360, 363, 
364, 365. 

Latham, re, 121. 

Laughter v. Humphrey, 383. 

Lavery v. Purssell, 31. 

La vies, re, 121. 

Lawrence v. Jenkins, 256, 257, 258. 

V. Lawrence, 421. 

r. Obee, 308. 

Lawson v. Langley, 302. 

Lawton v. Lawton, 45, 114. 

V. Salmon, 113. 

V, Ward, 208. 

Layboum r. Crisp, 557. 

Leader v. Homewood, 116. 

r. Moody, 91. 

Lear v, Caldecott, 463. 

r. Edmonds, 443, 471. 

Leathee v. Loathes, 127, 129. 

Leconfield v. Dixon, 82. 

r. Lonsdale, 181, 182. 

Lee Conserv. v. Button, 158, 486. 

Lee V. Gaskell, 121. 

1;. Riley, 264. 



TABLE OF CASES. 



yyanii 



Lee V. RisdoA, 119, 121. 
Leech v, Gheetham, 100. 
r. Scshweder, 202, 203, 212, 267, 

271, 286, 319, 322. 
Jjeeds V. Cheetham, 97. 

V. Powell, 6, 11, 384, 431, 479. 

V. 3trafford, 11. 

Leek Gommias. v. Stafford, 625, 627. 
Legh V. Heald, 32. 

9. Hewitt, 662. 

Lehain r. PhUpott, 443, 471. 

Leigh's Estate, 88; 101. 

Leigh V, Jack, 490. 

Leke's Case, 257. 

Lemaitre r. Davis, 247, 249, 250, 287. 

Le Neve v. Mile End, 611. 

LeslieNs Settlement, 88. 

Xieyi V. Lewis, 476. 

Liewis, ex p., 496. 

Lewis V. Braithwaite, 67, 63. 

r. Fothergill, 60. 

V. Swansea, 490, 616. 

Liddy «. Kennedy, 476. 

Xaford's Case, 18, 30, 31, 32, 110, 

111, 232, 349. 
IJggins V. Inge, 309, 310. 
Lightbound r. Bebington Local 

Board, 269, 490, 498. 
Liogham v. Warren, 471. 
Lisbume v. Dairies, 12. 
Livesey v. Harding, 131. 
Livingstone r. Bawyard's Goal Go., 

56. 
LleweUin, r«, 24, 43. 
Llewellyn v, Ser^jy 10. 
Lloyd's Banking Co., «rj9.. Ill, 112. 
Lloyd V. Jones, 8, 180, 662. 

V. Powis, 345. 

r. Bosbee, 430. 

Lookwood V. Wood, 615, 560, 551, 

662. 
Logan V. Barton, 484. 
London Brewery Co. v. Tennant, 

214. 
London k Brighton By. t*. Truman, 

223. 
London Corp. r. Biggs, 268, 269. 
London Loan Go. v, Drake, 117. 
London & S. W. By. v. Flower, 99. 
London & Y. Bank v. Belton, 464. 
Longbottom r. Berry, 106, 106, 109, 

110, 111. 
Longfstaff v. Meagoe, 105. 
Lonsdale v. Bigg, 74, 331. 
Loosemore v, Tiyerion By., 67. 
Lord V, Wardle, 125. 
Lord Advocate v. Blantyre, 164. 

V, Lovat, 183. 

V, Young, 164. 

L. 



Longhborough Highway Board t. 

Gorzon, 624, 639, 641, 642. 
Love V. Bell, 238. 
Lovelace r. Beynolds, 354, 669. 
Lovell fj. Smith, 210, 306, 307. 
Lowe V, Carpenter, 297, 300. 

V, Govett, 166. 

Lowen v, Kaye, 648. 
Lowndes p. Norton, 41. 
Lucas, r^, 422. 

p. Tarleton, 464. 

Lumley v. Simmons, 436. 
Lnndy Granite Co., re, 469. 
Loahington v. Boldero, 36, 38, 40, 42. 
Luttrell's Case, 228, 368. 
Lyddal p. Weston, 71. 
Lydep. Bussell, 114, 116. 
Lyell p. Kennedy, 130. 
Lyme Begis p. Henley, 628, 541. 
Lynne p. Moody, 466. 
Lyon p. Fishmonger's Co., 164, 167, 
497, 600. 

p. Tomkies, 442, 464. 

p. Weldon, 442, 464. 

Lyons p. Elliott, 449, 461, 453. 



McDonall p. Lord Advocate, 183. 
Mackenzie p. Bankes, 140. 
Mo£[innon p. Penson, 640. 
Mackintosh p. Trotter, 119. 
Maclean p. Donn, 434. 
McManns p. Cooke, 196, 265. 
Macey p. Metrop. Board, 266. 
Machel p. Danton, 376. 
Maddock p. Wallasey Board, 166, 

166, 606, 610. 
Magg^son p. Bowes, 404. 
Map'or p. Chadwick, 234. 
Mamfold p. Pennington, 338. 
Mainwarinff p. Giles, 201. 
Makin p. Watkinson, 99. 
Malcohnson p. O'Dea, 178, 179, 180. 
Maldon (Mayor of) p. Woolvet, 183. 
Malton Board p. Malton Manure 

.Co., 221. 
Manchester Warehouse Co. p. Carr, 

96, 97. 
Mann p. Brodie, 503, 506. 

p. Copland, 396. 

Mannall p. Fisher, 180. 
Manners p. Mew, 134. 
Manning p. Wasdale, 331, 563. 
Mannox p. Greener, 7. 
Mansel p. Norton, 46. 
Manserge p. Campbell, 396. 
Manwood r. Myme, 36. 
Marfell p. South Wales By., 261. 



TABLE OF CASES. 



Marker v. Kenriok, 25. 
Marlborough, re^ 138. 
Marlborough v. St. John, 37. 
Marshall v. Green, 31. 
V. Schofidd, 383. 

V. Ulleswater Nav., 6, 107, 

166, 174, 497, 500. 

Maraham v. Hunter, 360. 
Martin v. Gilham, 98. 

V. Goble, 216. 

V, Porter, 66. 

Martyr «. Bradley, 111, 118. 

V. Lawrence, 10, 90, 277. 

Mary's Case, 369. 
Mason, rt, 393. 
Maaon and Taylor, re, 136. 
Mason r. Cssar, 369. 

V. HUl, 310, 314. 

V. Shrewsbury Ry., 226, 233, 

234, 287, 294, 810. 
Master v. Hansard, 267. 
Masters v. Green, 454, 331. 
Mather v. Eraser, 106, 109. 
Matson v. Baird, 262. 
Matts r. Hawkins, 259. 
Maundy v. Maundy, 388. 
Maxwell r. Martin, 354. 
Maynell i^. Saltmarsh, 645. 
Medway Nav. Co. v. Bomney, 148, 

160. 
Mellor V. Spateman, 336, 666. 

V, Watkins, 196. 

Mennie v. Blake, 467. 
Mercer v. Woodgate, 511. 
Merchant Taylors* Co. v. Tmscott, 

287. 
Meny v. Green, 72. 
Metrop. Ass. v. Brown, 111, 112. 

V. Fetch, 316. 

Metrop. Board r. London & K. W. 

By., 231. 

V. McCarthy, 157. 

Metrop. Distr. Ky. & Cosh, re, 14, 

66, 67, 266. 
Meux V. Jacobs, 106. 
Michell V. WUton, 393. 
Micklethwait v. Micklethwait, 36. 

r. Newlay Bridge Co., 164, 

489. 

V, Winter, 67. 

Middleton v. Lambert, 616. 
Midland Ry. v. Checkley, 67, 69. 
t^. Haunchwood Brick Co., 66, 



67. 



p. Miles, 66. 

V, Robinson, 65, 66, 241. 



Mildmay's Case, 16. 
Mildmay V. Mildmay, 41. 
V, rage, 183. 



Miles V. Etteridge, 366. 

V. Furber, 453. 

V. Rose, 162. 

Mill V. Hawker, 649. 

V. New Forest Commia., 328, 

363. 
Millechamp v. Johnson, 659. 
Miller v. Green, 447. 

V. Miller, 68, 69. 

V. Warmington, 10. 

Mills V, Auriol, 474. 

V. Colchester, 564, 657, 663. 

Miner €7. Gilmonr, 161. 
Mines, Case of, 70, 71. 
MinshaUt;. Lloyd, 116, 119. 
MitcheU v. Cantrill, 271, 291, 294. 
Mogg V. Yatton, 332. 
Moir V. Munday, 446, 466. 
Mollineux v. Powell, 20. 
Monk, re, 93, 94. 

Monmouth Canal v. Harford, 293. 
Moody and Yates, re, 373. 
Moody V. Steg^les, 191, 200. 
Moore's Bankmg Co., ex p., 109, 

110, 123. 
Moore v. Hall, 216. 

r. Lambeth Waterworks, 511. 

V. Plymouth, 8, 78, 81, 330. 

V. Rawson, 212, 306, 308. 

Morant v. Chamberlain, 611. 

Morgan, re, 134. 

Morgan v. Abergayenny, 78. 

V, Crawshay, 664. 

V. Hardy, 98. 

Morley v. Clifford, 327, 336. 

V. Pincombe, 445. 

Morrioe v. Baker, 323. 
Morris v. Dimes, 86, 330. 

V. Edgington, 368. 

Morrish, re, 121. 

Morse v. Webb, 334, 358. 

Iftorton V. Palmer, 465. 

V, Woods, 379. 

Moss p. James, 109, 116, 117, 118. 
Mott V. Shoolbred, 224, 499. 
Mounsey v Dawson, 468. 

V. Ismay, 199, 654, 559. 

Mountjoy's Case, 64, 329. 
Muffett, re, 396. 

Mulliner v. Midland Ry., 14, 508. 
Mundy v, Rutland, 240, 241. 
Murchie v. Black, 243, 246, 248, 

274. 
Murgatroyd v. Robinson, 287. 
Murly V. McDermott, 269. 
MusgraTe v. Emmerson, 374. 

V, Forster, 81. 

f>. Inolosure Commis., 845, 

359. 



TABLE OF CASES, 



XXXV 



Muakett v. Hill, 63, 198, 199, 329. 
Jtfaspiatt V, (Gregory, 460, 463, 
464, 



Nargattr. Kias, 449, 461. 

Naah v. Lucas, 436. 

National Manure Co. <?. Donald, 310. 

National Mercantile Bank, ^ p., 49. 
60. , y ^^ f 

National Provincial Ass. v. Pruden- 
tial Ass., 213, 216, 217. 

Naylorr. Collinge, 112, 118. 

Neale v. Mackenzie, 411. 

Neill V. Deyonshire, 176, 179, 180. 
483, 562. 

Nelson v, Liverpool Brewery Co., 
261. 

Ness V. Stephenson, 466. 
Nevill r. Hamerton, 362. 
New City Club, re, 459, 460. 
New River Co. v, Johnson. 141. 
New Windijor *. Stovell, 282. 
Newby v. Harrison, 320. 
Newoomen v. Coulson, 192, 206, 210. 
Newman*s Estates, 43, 88, 101. 
Newmans. Anderton, 382. 
Newport Marsh Trustees, ex p., 566. 
Newson v. Pender, 217, 308. 
Newton v. Beck, 134. • 

Niblet V. Smith, 444. 
Nicholas v. Chamberlain, 270. 
Nioholl V, Allen, 614, 632. 
^icholls V, Hawkes, 396. 
Nichols V, Chapman, 336, 341. 

V. Marsland, 146. 

Nicholson, re, 136. 

V. Williams, 169, 171. 

Nicklin v. Williams, 243. 
Nicol V. Beaumont, 209, 494. 
Nield V. London & N. W. Ry., 147. 

V, Smith, 397. 

Nitro-Phosphates Co. r. London 

& St. K. Docks Co., 146, 167. 
Noel 9, Ward, 127. 
Norburyr. Elitohin, 160. 
Norfolk V. Arbuthnot, 16. 

V. Wiseman, 197. 

Normanton Ota Co. v. Pope, 247, 

493. 
Norris v, Harrison, 418. 
North 9. Strafford, 11. 
North Eastern Ry. v. Crossland, 

244, 246. 
North Western Ry. v. Elliott, 246. 
Northam v. Hurley, 228. 
Northfield v. Nightingale, 433. 
Northumberland r. ]£>ughton, 179. 



Northwick v. Stanway, 366. 
Norton v. London & N. W. Ry., 
268. ^ ' 

Nottingham v. Lambert, 613, 614. 
Nowel v. Smith, 267. 
Nuttal V. Staunton, 429. 
Nuttall V. Braoewell, 161, 163, 227. 



Oak Pito CoUiery, re, 422, 432, 469. 
Oats V. Frith, 380. 
Ognel's Case, 392, 472. 
Ohrby v. Ryde Commiss., 641. 
Ohind*s Case, 46. 

V. Burdwiok, 47. 

0*Neil r. City Finance Co., 431. 
Onley v. Gardiner, 289, 297, 299, 

303, 304. 
Ord, re, 396. 
Original Hartlepool Coll. v. Gibb, 

167, 485, .'iOO. 
Orme*s Case, 390. 
Ormerod v, Todmorden Mill Co., 

149, 152, 153 
Orr-Ewing v. Colquhoun, 160, 166, 

156. 
Outram r. Maude, 289. 
Owen V, Legh, 447. 
Oxley V. James, 377. 



Packer v, Gibbins, 97. 

p, Welsted, 268. 

Paddock v. Forrester, 364, 669. 
Pad wick v. King, 77. 
Paget V. Foley, 426. 

1>. Gee, 416. 

V, Huish. 396. 

Pain V. Patrick, 614, 616, 638. 
Palgrave v. Windham, 466. 
Palk V. Shinner, 302, 304. 
Palmer's Case, 199. 
Pahner's WiU, 62. 
Pannellv. Mill, 78, 81, 86. 
Parish v. Sleeman, 404. 
Parker t>. First Avenue Hotel Co., 
214. 

V, Harris, 426. 

V. Mitchell, 297. 

Parkin v, Cresswell, 137. 
Parkins r. Hinde, 404. 
Parkyns v. Preist, 496. 
Parmenter v. Webber, 377, 888. 
Parr v. Lovegrove, 126. 
Parrett Nav. Co. v. Stower, 467. 
Parrott v. Palmer, 26. 
Parry v. Duncan, 433. 

c2 



TABL£..OF CASES. 



Parry 9. Thomas, 666. 
Parsons v. Gingell, 453. 

V. St. Mathew, 640. 

Pattridge v. Sooti, 244, 245, 248, 292. 

Pasooe V. Pascoe, 388. 

Patch 1;. Ward, 131. 

Patching v. Bamett, 396. 

Paton r. Sheppard, 111. 

Patrick v, Stubbs, 362, 363. 

Pattison v. Gilford, 79. 

Paul V, Summerhayes, 75, 77. 

Pawson V. Pawson, 395. 

Payne, exp.^ 60. 

V. Partridge, 614, 615, 538. 

Peacock v. Purvis, 457. 

Pearoe «. Scotoher, 162, 180, 662. 

Peardon v. UnderhOl, 355, 365. 

Pearly v. Smith, 417. 

Pearson v. Helliwell, 393. 

V. Spencer, 263, 267, 268, 272, 

276. 
Pelham v. Piokersgill, 515. 
Pennant's Case, 428. 
Pennell v. Dysart, 127. 
Pennington «. Brinsop Goal Co., 149, 

230, 314, 318. 
Penny and S. E. By., re, 202. 
Penruddock's Case, 235, 322, 325. 
Penry v. Brown, 109. 
Penryn (Mayor of) v. Hobn, 163. 
Penton v. Robart, 114. 
Peppin V. Shakespear, 342. 
Perrot v. Perrot, 19, 20, 33, 38. 
Perry v. Fitzhowe, 196, 197, 322, 

325, 370. 
Petch V. Tutin, 49. 
Peter v, Kendal, 514. 
Peto r. Pemberton, 408. 
Peyton v. Mayor of London, 249, 251. 
Pheysey v. Vicary, 267, 268, 272, 

276, 311. 
Philips V. Brydges, 27. 

r. Robinson, 126. 

Phillips V. Barlow, 41. 
— - V, Bridge, 477. 

V, Evans, 131. 

V. Henson, 465. 

V. Homfray, 22. 

V. Jones, 404. 

V. Salmon, 364. 

r. Smith, 34, 35. 

V. Whitsed, 431, 466. 

Philpott V. Dobinson, 412. 
Pickering v. Noyes, 86, 130. 
Pidgeley v. Bawling, 33. 
Pigot V. Bullock, 23, 38. 
Piggott V. Birtles, 443, 446, 448, 449, 

466. 
Pilgrem r. Pilgrem, 134. 



PiUdngrton v, Dalton, 425. 

Pilkington's Case, 462. 

Pilton, ex p., 479. 

Pinchin v. Blackwall By., 14, 266. 

Pindar v. Wadaworth, 20, 368. 

Pinnington v. Galland, 267, 268. 

Pitt V. Shew, 119, 441, 443. 

Placet;. Fagg, 111. 

Plant V. Cotterell, 136. 

Plasterers* Co. v. Parish derks' Co., 

291, 296, 299. 
Plimmer v. Mayor of Wellington, 

196. 
Plumstead Board v. British Land 

Co., 490. 
Polden tf. Bastard, 263, 269, 272, 277. 
Pollen, exp.f 457. 
Pollock V. Pollock, 421. 

V. Stacy, 377. 

Pomfret v. Bicroft, 91, 211, 228, 251, 

252, 267, 280, 331. 
Pool Board v. Gunning, 496. 
Poole's Case, 114, 116, 119, 120. 
Poole V. Adams, 100. 

V, Heron, 396. 

r. Huskisson, 607, 510. 

Popplewell r. Hodkinson, 142, 143, 

242 244 
PorUand v. Hill, 63, 64, 343, 550, 

553, 569. 
Potter V. North, 332, 344, 434, 570. 
Potts V, Smith, 201, 212. 
Poultney v. Holmes, 388. 
Pountney v, Clayton, 66, 67, 241. 
Powell V. FaU, 223. 

9. Powis, 336, 371. 

V, Salisbury, 268. 

Powers V. Bathuist, 507. 

Powley V. Walker, 25. 

Powys r. Blagrave, 28, 93, 101. 

Pojmter i*. Buckley, 464. 

Pratt r. Vizard, 125. 

Preece v, Corrie, 377, 388. 

Preecott v. Boucher, 392, 473. 

Press V. Parker, 90. 

Pretty v. Solly, 64. 

Price V. Neamt, 196. 

Prichard r. Powell, 389. 

Priddle's Case, 403. 

Proctor 9. Hodgson, 267, 268, 269. 

Proud 9. Bates, 54. 

V. Hollis, 208. 

Proudlove 9. Twemlow, 447. 
Pughr. Arton, 116, 117. 

f . Yaughan, 27. 

Pulbrook 9. Ashby, 387. 
Punnett, exp.^ioe, 379. 
Punsany 9. Leader, 336. 
Puseyt'. Pnsey, 136. 



TABLE OF CASES. 



Pyer p. Carter, 26d, 270. 
Pjne r. Dor, 38, 39. 



Queen, The, p. Alnwick, 362, 667. 

1^. Ardsley, 620, 656. 

V. Aflhby FolvUle, 621. 

V, Bagge, 623. 

17. Bamber, 618, 627. 

9. Bamoldswick, 261, 620. 

V, Battle, 82. 

V, Bradfield, 606, 612, 521. 

V. Backlugh, 529. 

r. Cambrian Ry., 8. 

V. Carr, 160. 

r. Chorley, 306, 612, 643. 

9, Cluworth, 626. 

V. Cmmingham, 161, 162. 

V. Danoan, 639, 643. 

V. Durham, 614. 

V. East Mark, 608. 

r. Ely, 528, 632, 634. 

V, Farrer, 641, 648. 

V. Fobbing, 168. 

V. French, 604, 621. 

V. Graham, 496. 

— — V, €k-eenhow, 618, 627. 

r. Heage, 619. 

V. Heanor, 641. 

V. Hockworthy, 347. 

V. Hornsea, 618, 627. 

V, Ipstones, 641. 

— V. Johnson, 643. 

V, Keyn, 169, 160. 

p. Kitchener, 496. 

r. Lee, 641. 

r. Lincoln, 637. 

V. Longton Gas Co., 491, 499, 

600, 611. 
r. Lordamere, 604, 609, 612, 

621. 

V. Metrop. Board, 141. 

r. Mosson, 166. 

— V. New Sarom, 632. 
V, North, 88. 

v. North and South Shields 

Ferry, 616. 

V, Northumberland, 70. 

V. Petrie, 606, 608. 

V. Poole, 624, 639. 

V. Poulter, 216, 316. 

V. Pratt, 264, 491. 

V, Bead, 76. 

9. Bollett, 620. 

r. Russell, 643. 

r. Saintiff, 484. 

V. Salisbury, 616. 

r. Slade, 446. 



Queen, The v, Southampton, 632, 

633, 634, 637, 639. 

V. Stimpson, 180. 

9. Strand Union, 489. 

i;. Stretford, 626. 

f^. Thurlstone, 82. 

V. Townley, 76. 

V. Train, 496. 

9, United Kingdom Telegraph 

Co., 493, 497. 

V. Wakefield, 624, 639, 642. 

9. Williams, 405. 

9. Wilson, 623. 

9, Young, 648. 

Queen's Coll. v. Hallett, 20, 96. 
Quinoy, exp,^ 111. 
Quinn, ex p,, 136. 



Race f7. Ward, 330, 331, 660, 663. 
Rameshur Singh v. Koonj Pattuk, 

234. 
Ramsay 9. Blair, 63, 68. 
Ramsden v, Dyson, 196. 

9. Manchester Ry., 492. 

Rand 9. Vaughan, 433. 
Randall r. Rigbv, 472, 474. 
Rangeley v. Midland Ry., 190, 266, 

483. 
Rashleigh r. Master, 417. 
Rawstron 9. Taylor, 141. 
Raymond 9. Fitch, 31. 
Rayner r. Preston, 100. 
Rede t^. Burley, 461, 46-4. 

9, "Farr, 476. 

Reece v. Miller, 162, 180. 
Regent' Stores, r^, 460. 
Reignolds v. Edwards, 210, 307. 
Rexubaw 9. Bean, 217. 
Reynish v. Martin, 417. 
Reynolds v. Barford, 467. 
Rhodes 9. Airedale Commiss., 166. 
Richardson, r^, 126, 134. 

9, Watson, 6. 

Richards 9, Fry, 298. 

9» Kessick, 627. 

V. Noble, 26. 

9, Rose, 249. 

V, Squibb, 334. 

9, Swansea Improv. Co., 89. 

Rickards r. Bennett, 614, 616. 
Ricket 9. Metrop. Ry., 202, 644. 
Ricketts v. East India Docks Ry., 

267, 261. 

9, Salwey, 334. 

Rider 9. Smith, 211, 256. 
Ridge, r^, 27, 61, 62. 
Rlgby 9. Bennett, 244, 246. 



XXXVIU 



TABLK OF CASES. 



Biren v. Adams, 6*54, 660, 561, 665. 
BiTis V. Watson, 383, 412. 
'Boberts, rg, 121. 

V. Great Western Ry., 261. 

V, Hunt, 609, 623. 

r. KaiT, 277, 607. 

V. Maoord, 201, 212. 

9. Richards, 160, 162, 234. 

r. Roberts, 60. 

V. Snell, 412. 

Robertson v. Ghintlett, 210. 
Robinson v. Dnleep Singh, 6, 336, 

362. 

r. Litton, 16. 

V. Hilne, 68, 70, 280. 

V. Walter, 453. 

Roden v. Eyton, 441, 442, 465. 
RodweU V. Phillips, 44, 46, 60. 
Roffey V. Henderson, 121. 
Rogers r. Allen, 177, 180. 

V. Birkmire, 431. 

V. Brenton, 64, 66, 70, 367, 

563, 668. 

V, Parker, 447, 464. 

V. Taylor, 349, 657. 

Rokeby v, Elliot, 60. 
RoUason, re, 463. 
Rolle r. Whyte, 181, 182. 
Rolls V. St. George, 492. 
Rooth V. Wilson, 267. 
Rope V, Rngge- Price, 664. 
Roper V, Roper, 396. 
Rose V. Groves, 600. 

V. Miles, 644. 

Rosenberg r. Cook, 67. 
Ross V. Fedden, 92, 146. 
Rosse V, Wainman, 66, 67. 
Rotherham v. Green, 356. 
Ronse v. Bardin, 208, 493. 
Rowbotham v. Wilson, 65, 237, 239. 
Rowe V. London School Board, 265. 

V. Shilson, 484. 

Rnffey r. Henderson, 197. 

Rugby Charity v. Meryweather, 486, 

606. 
Rununens v. Hare, 133. 
Russell V. East Anglian Ry., 468. 

• V. Men of Devon, 639. 

V. Shenton, 99, 229, 261. 

V. Watts, 212, 273, 274. 

Rust 9. Victoria Dock Co., 167, 317. 

Ryan v. Shilcock, 435. 

Bylands v. Fletcher, 144, 229, 230. 



Sacheverell v. Froggatt, 881, 392. 
Sacheverill r. Porter, 264, 327. 
Sadgrove v. Eixby, 363, 370. 



Sa£Pery v. Elgood, 386, 391, 431, 

450. 
Saint V. Pilley. 117. 
St. Albans v. Skipwith, 18. 
St. Helen's Smelting Co. v. Tipping, 

220, 221, 222. 
St. Mary, Newington v. Jaoobs, 490, 

498. 
Salisbury v. Gladstone, 63, 344, 352, 

353, 668. 
V. Great Northern Ry., 489, 

491. 
Salmon v. Matthews, 382, 414, 424. 

V. Smith, 410. 

Saltash v. Goodman, 176, 179, 554, 

562. 
Salters' Co. r. Jav, 287. 
Saltpetre, Case of, 72. 
Salvin v. North Branoepeth Coal 

Co., 220. 
Sampson v, Hoddinott, 160, 152, 

233, 316. 
Sanders, re, 434. 

v. Davis, 48, 106, 116. 

Sandford v, Oarke, 611, 546. 
Sandwich v. Great N. Ry., 160, 151. 
Saner v. Bilton, 96, 97, 98. 
Sankey Brook Coal Co., re, 386, 450. 
Sapsford v. Fletcher, 466. 
Saunder's Cane, 68. 

«. Newman, 228. 

Savery v. Dyer, 395. 
Savile v. Scarborough, 137. 
Saville's Case, 17. 
Sayers v, Collyer, 317, 320. 
Scales V. Key, 663. 
Scarsdale v. Curzon, 137. 
Scholes V. Hargreaves, 334. 
Scott V. Howa^, 91. 

r. Jackman, 130. 

r. Pape, 213, 216, 217, 218, 308, 

309. 
Scottish Widows' Fund v, Craig, 480. 
Sooyell V. Boxall, 30, 45, 50. 
Scratton v. Brown, 166. 
Seagram v. Knight, 21, 33, 38, 41, 

42. 
Seaman v, Vawdrey, 356. 
Searby v. Tottenham Ry. Co., 259. 
Seddon v. Bank of Bolton, 301. 

V. Smith, 51, 

Selby V. Greaves, 91, 383, 424. 

V. Nettlefold, 210. 

V, Robinson, 666, 561. 

Sellers v. Matlock Looal Board, 221, 

498. 
Semayne's Case, 435, 470. 
Senhouse v. Christian, 208, 210. 
Serff V, Acton Board, 205, 267, 269. 



TABLE OF CASES. 



XXXIX 



Sergeant, «rp., 434. 

Se-wiird v. Baker, 616. 

Sewers Commiss. v. Glasse, 83, 84, 

339, 365, 371, 670. 
Seymour 9. Courtenaj, 176, 177, 348. 
Shadwell v. HutchiDBon, 316, 317. 
Shakeepear v, Peppin, 366. 
Sharp V. Fowle, 456, 464. 
Sharrod r. London & N. W. B., 602. 
Shaw f7. Jersey, 472. 
Sheen v, Kickie, 119. 
Sheffield Bolldiiig Soc. f^. Harrison, 

111. 
Sheffield «. Eden, 136. 

r. Harrison, 109. 

Shelley v. Shelley, 137. 
Shepherd «. Payne, 653. 
Sheppard r. Wilson, 417. 
Shernird v. Sherrard, 417. 
ShiiUtot^. Hobson, 125, 134. 
Shireff v. Hastings, 474. 
Shotts Iron Co. v. Inglis, 221. 
Shrewsbury's Case, 26, 92. 
Shnttleworth 9. Le Fleming, 330, 

861. 
Siddons v. Short, 246. 
Simmons v. Norton, 18, 36. 
Simper v. Foley, 303, 311. 
Simpson «. Dendy, 488, 489. 

V. Hartopp, 445, 448, 461. 

V. Savage, 224. 

— V. Scales, 486. 

r. Wells, 653. 

Singleton v. Williamson, 268. 
Six Carpenters' Case, 462, 463. 
Skingley, re, 93, 98. 

Skull V. Glenister, 208. 
Sloper V. Saunders, 476. 
Smart r. Jones, 196, 329, 347. 

V. Morton, 238. 

Smith V. Archibald, 280, 663. 

r. Ashforth, 438, 412, 464, 466. 

V. Bamaby, 390. 

V. Baynard, 257. 

— V. Beaufort, 131. 

V. Brownlow, 371. 

r. Darby, 65, 240. 

V. Day, 320, 321. 

9, Gk)odwin, 463. 

V, Great Western Ry. Co., 56. • 

V, Kemp, 176. 

V, Kennck, 144, 230. 

r. Lloyd, 356. 

V. Malings, 410. 

9. Marrable, 99. 

V, Hartin, 6. 

V. Musgrave, 144, 230. 

r. Owen, 202. 

9. Ridgway, 7. 



Smith 9. Russell, 466, 467. 

f . Shepherd, 431, 614, 616. 

9. Smith, 320. 

r. Surman, 31. 

9. Wright, 467. 

Smyth, ex p., 416. 

Sneesby v. Lancashire & Y. Ry., 261. 

Snow V. Whitehead, 144, 229. 

Sollory V. Leaver, 393, 480. 

Solme 9. Bullock, 342. 

Solomon 9, Vintners Co., 260, 292. 

Soltau 9. De Held, 222, 644. 

Somerset v. Fogwell, 174, 176, 176, 
178, 263, 346. 

Souch V. East London Ry., 486. 

South Kensington Stores, re, 422. 

South Metrop. Cemetery 9. Eden, 
208. 

Southport Banking Co. 9, Thompson, 
106, 122. 

Sowerby 9. Coleman, 666, 669, 560. 

9. Fryer, 37, 93, 

V. Smith, 82, 86. 

Spackman 9. Foster, 136. 

Spedding 9. Fitzpatrick, 603, 606. 

Speer«. Crawter, 10, 11. 

Spencer's Case, 382, 474. 

Spioer 9. Barnard, 77. 

Spike v. Harding, 10, 11. 

Spooner 9. Brewster, 136. 

Spoor 9. Green, 56, 358. 

Squire v. Campbell, 10. 

Stafford 9. Buckley, 382, 393, 394. 

r. Coyney, 510. 

Staffordshire and W. Canal 9, Bir- 
mingham Canal, 233. 

Staightv. Bum, 217, 218, 309, 322. 

Stammers 9. Dixon, 332. 

Standard Bank 9. Stokes, 269, 260. 

Standen 9, Chrismas, 26. 

Stanford 9, Roberts, 129. 

Stanley t;. Shrewsbury, 319. 

9. White, 30. 

Stannaries, Case of, 663. 

Stansfeldv. Portsmouth, 117. 

Star 9. Rookesby, 263, 266. 

Stedman 9. Smith, 259. 

Steel 9, Houghton, 667, 661. 

9. Prickett, 488, 494. 

Steele v. Midland Ry., 89. 

Stelfox 9, Sugden, 393. 

Stephens, ex p.^ 121. 

Stevens 9. Bishop, 406. 

9, Whistler, 490, 491. 

9. Woodward, 92, 146, 262. 

Stevenson 9. Lambard, 410. 

Steward v. Lombe, 106, 112. 

Stockport Highway Board 9. Grant, 
211, 261, 280. 



1 



TABLE OF CASES. 



StoAport WaterworiEB r. Potter, 162, 

230, 231. 
Stodrton Iran Co., rt^ 379. 
Stokes r. Cheek. 396. 

9. Heron, 395. 

Stokoe r. Singen, 308. 
StGoe r. Teoril, 149. 
Storej r. Bobizison, 448. 
Stooriiion r. Lei^, 52, oS. 
Slndumr. Thomas. 426. 
Strojan r. Knovles, 248. 
Stnkdej *. Butler, 349. 
Stnrges r. Bridirmim, 193, 225. 
Stjant r. Stoker. 360. 
SuffieJd, rr, 458. 

c. Brown, 200, 270, 273. 

Sumner r. Bromilow, 117, 118. 
Sunbolf r. Alford, 448. 
Sutdiffe r. Booth, 234. 
Sutherland w. Boes, 156. 
Sutton, rr, 458. 

w. Moody, 74. 

r. Temple, 99. 

Swain r. Ayrett, 78. 

Swainston r. Finn, 266. 

Swale Brick Co., re, 423, 426, 444. 

Swann r. Falmouth, 437. 

Swans, Case of, 75. 

Swansborou^h r. CoTentry, 274. 

Swansea (Majrorof) r. Thomas, 410, 

413,474. 
Swansea Bank r. Thomas, 421. 
Swayne's Case, 37. 
Swindon Waterworks r. Wilts and 

Bei^ Canal, 150, 153. 
Swinfen r. Baoon, 430. 
Swire c. Leaoh, 453. 
Sym^s Case, 327. 
Symons v. Leaker, 304. 



Taher, re, 395. 
Talbot's Case, 409, 414. 
Talbot V. Shrewsbury, 473. 
Tancred v. Leyland, 466. 
Taplin v. Florence, 195, 198. 
Tapling r. Jones, 212, 216. 
Taylerr. Waters. 194, 195, 265. 
Taylerson v. Peters, 429. 
Taylor r. Devey, 560. 

V. Martindale, 394. 

■ r. Mostyn, 56. 
— V. Parry, 64.' 

V. Pendleton, 195. 

17. St. Helens, 142, 228, 232. 

V Shafto, 240. 

r. Taylor, 394. 

r. Timson, 201. 



Taykr r. Wldtdiead, 209, 494. 

466. 



Teal r. Auty, 30. 

Temple r. Thrin^, 137. 

Tenant r. Ooldwin, 229, 270, 273. 

Tenham r. Herbert, 371. 

Tew r. Jones, 475. 

Thames Cooserr. r. Inland Berenae, 

195. 
Thecd r. I>ebenham, 214, 215. 
Thomas, rv, 564. 

r. Fredzicks, 78. 

r. Harries, 438, 462. 

r. Mirehonse, 456. 

9. Owen, 7, 89, 272, 275. 

r. Sorrell, 194, 198. 

r. SyWester, 472, 473. 

r. Thomas, 235, 311. 

Thompson r. Mashiter, 453. 

V. Pettitt, 119. 

r. Sunderiand Gas Co., 493. 

r. Thompson, 473. 

r. Wood, 464. 

Thomson r. Waterlow, 278. 
Thorn r. Woolcomhe, 377, 409. 
Thornton r. Adams, 433, 460. 
Thorpe r. Brumfitt, 191 . 
Thwaites r. Wilding, 455, 462. 
Tickle r. Brown, 288, 293, 296. 
Tidd r. Lister, 27. 
Tin, ezp., 458. 
Tillett 9. Ward, 501. 
Timmins v. BowUson, 430. 
Toddr. Flight, 251. 
Toleman and England, me, 135. 
ToUemache r. Tollemache, 42. 
Tomlinson r. Day, 41 1, 476. 
Tone Conserr. v. Ash, 566. 
Tone r. Preston, 287, 294. 
Tooker 9, Annealey, 23, 40, 41, 42. 
Topham v. Greenside Bnck Co., 107, 

122. 
Torriano r. Young, 92, 98. 
Touch 9. East London By., 492. 
Toule 9. Jackson, 452. 
Tourle r. Band, 127. 
Traders' Co., r», 459. 
Trafford r. The King, 147. 
Trappes r. Harter, 106. 
Trotter r. Harris, 514. 

9. Maclean, 56. 

Truman r. Lon d on, Brighton By., 
484, 496. 

9. Wal^ham, 513. 

Tucker 9. Linger, 63, 68, 552, 562. 

9. Newman, 235, 303. 

Turner r. Cameron, 109, 444, 475. 
9. Bingwood Highway Board, 

490, 494, 516. 



TABLE OF CASES. 



zU 



Turner v. Spoooor, 202, 216. 

V. Tomer, 394. 

r. Walflh, 508. 

V. Wzigbt, 16. 

Tatill 9. West Ham, 6i8. 
Tatton 9. Darke, 436. 
Twyiuon «. Fiokard, 418. 
Tynell v. Clark, 420. 
TyTiingham*B Gaae, 328, 88?, 838, 

342, 367, 368, 369. 
Tyrwhitfe v. Wjnne, 61, 866. 
1^90019, Smith, 662, 666, 668, 668. 



Underhay 9. Bead, 379. 
United £and Go. 9. Great Eastern 
Bj., 206. 



Vaisey 9. Beynolda, 49. 
Valentine r. Irenny, 827. 
Vane 9, Bamazd, 24, 94. 
Vaepor v. Edwazda, 489. 
Vanghan v. Buralem, 136. 

9. Tafl Vale Ry., 223. 

Velthaaen v. Ormslej, 162. 

Veonor, at p., 617. 

Vemon 9. St. James, 221, 486. 

9. Vemon, 416.' 

Vioken 9, Pound, 396. 
Vincent v. Gkxison, 378. 
— 9, QoTdxm, 473, 474. 

9. Spioer, 23. 

Viner 9. Vanghan, 68, 60. 
Voiser, «rp., 379, 424. 
Voog£t 9, Winch, 616. 
Vowles 9. MiUer, 268. 



Wade and Thomas, re, 127. 
Wade 9, Marsh, 377. 

9. Wilson, 28. 

Wadmore v. Dear, 8. 

Wadsworth, rv, 186. 

Wake V. Hall, 107, 108, 114, 664. 

Wakefield 9, Kewbon, 136. 

Waldo 9. Waldo, 41. 

Walker's Case, 410, 414, 472, 474, 

476. 
Walker v. Brewster, 222. 

9. Homer, 646. 

WaUaoe v. King, 441, 464. 
Wallasey Locu Board r. Oraccy, 

543, 544. 



Wallington r. Hoskins, 496. 
Wallis 9. Harrison, 197. 

9. SaTiU, 462, 463. 

Walls 9. Atdheson, 476. 

Walmaley 9. Mihie, 106, 109, 110, 

111. 
Walsh 9. Lonsdale, 78, 378, 424, 

426. 
Walter 9. Bumball, 442. 

9. Selfe, 220. 

Walton 9. Waterhouse, 97. 
Wandsworth 9. United Telephone 

Co., 13, 492, 497. 
Wanshroogh 9. Maton, 112. 
Warbnrton 9. Faxl^ 290. 
Ward 9. Greswell, 178. 

9. Qtey, 396. 

9. Bobins, 298. 

9. Ward, 296, 307. 

Waidle 9. Brookleharst, 270, 276. 
Ware 9. London and Brighton By., 

14. 
Warren 9. Matthews, 181. 

9. Bndall, 93, 129. 

Warrick 9. Queen's Goll., 337, 838, 

371, 668, 569, 670. 
Warwicker 9. Bretnall, 100. 
Washbom 9. Black, 438. 
Waterfall 9. Penistone, 106. 
Waterman 9. Soper, 29. 
Watherell 9. Howells, 108. 
Watson 9. Gray, 259. 
Watts 9. Kelson, 228, 269, 270, 272, 

276. 
Webb 9. Bird, 201, 202, 219, 286. 

9. Jiggs, 376, 472. 

9. Lymington, 127. 

9. Paternoster, 194. 

9. Bossell, 409. 

Webber 9. Lee, 79, 80, 198, 346. 
Weekly 9. Wildman, 335, 561, 566. 
Weeks 9. Spurke, 341. 
Weeton 9. Woodcock, 117. 
Welcome 9. Upton, 300, 331, 335, 

852. 
Wells 9. Pearcy, 340, 366. 

9. Watling, 368. 

Wentworth 9. Clay, 364. 
West 9. Blakeway, 119. 

9. Lassells, 413. 

9. Moore, 49. 

9. White, 222. 

West Cumberland Iron Co. 9. Kexi- 

yon, 146, 151, 230, 236, 237. 
West Norfolk Farmers* Co. 9. Arch- 
dale, 167. 
West Biding 9. The Queen, 626. 
Westbury 9. Powell, 551. 
West<»L 9. Arnold, 259. 



h. 



TABLE OF CASES. 



r.To 



Rr^ 147. 
27* 278- 
r. Kajkr. 409, 4^ 4d: 
r. BonovR, 27S» 274. 



Whilster r. PfeAb>w« 32. 



r. Fcct«» 47S. 
Wliite r. BsM, 27^. 

r. Coll mm. 367- 

r. Furnace* o^'i. 

r. HndkT Bond, »44. 

r. JaaM.'4ML 

r. W«C 3yO. 



Wbitdic^ r. Fufrea^ 142. 
Whitebnue V. Wc 

66. 
Whitelockv. Hntckinna, 3M. 
Whitfield r. Bewit. 38. 
Whitliam r. Kenhaw, 20. 
Wbitiogr and Loonei, rv, 126. 
WbiUock** Gue« 381. 
WbitmoTp r. Empaon, 120. 

r. HmnpikZMB* 11. 

WoarwDod, iv, 137. 



By 



64, 7S, SO. 
197, 199, 26o, 34S. 
Wigfoid 9. Gill, 325. 
Wiggiesworth v. BalliaoB, 46. 
Wisrnun r.Ftyer, 206, 3U. 
Wi&*8 Gbse, 358, 359, 413. 
Wilde, ry, 123. 
Wilde w. Waters, 109, 119. 
WOder w. Speer, 439. 
Wilkea w. Broadbcnt 560. 
Wilkma r. Bar, 493, 499, 543. 

r. Jodrelt 395. 

WiUdnscm's Estates. 52. 
Wilkinson p. Hall, 430. 

r. Proud, 52, 53. 

WilUams, ex. p., 379. 
Willianis r. Adams, 548. 

r. Bolton, 39. 

r. Haywaxd, 388, 410. 

V. Holmes, 425, 452. 

r. James, 205, 206, 207, 208, 



282, 324. 

c. Moriand, 315. 

V. Morris, 198. 

w. Phillips, 328, 367. 

r. Wflcox, 157, 162, 163, 182. 

r. Williams, 17. 

Willingale «. Maitland, 561, 565, 

567. 
Willis, r#, 379, 387. 

V. Paridnson, 11. 

r. Watney, 10. 

Willooghby p. Backhom>e, 465. 

rTWinoughby, 405. 

Wiiwn r. Barnes, 568. 



. WiOmm r. Fiack-Hattan, 99L 

r. HanMB. 417. 

I v.Hoare,567. 

I V. Xadcredi, 330, 343. 

' V. Maddiaon, 395. 

r 258. 

215, 295, 322. 
WaddA 144, 230. 
Willes^ 328, 364. 
W Dtshtai r. GottxeD, 104, 112. 
WimfalediA Gbnsenr. «. Dixon, 207, 

in,268. 
Winch V. Thames Consintsni.j, loS. 

485,486. 
WiDcfaflSter p. Knight, 20, 22. 
Windaar (Dean of) v. Gorcr, 381, 

424. 
Wmar. Ingilbj, 119. 
413. 
p. Broekwdl, 309. 

I r. 110080167, ^7- 

! WmtariKitham v. Derhj, 645. 
! Wntarfaonme p. Monan, 443, 464. 
I Wise r. Metealfe, 93. 
Wiw sn p. Booker, 257. 
WoDasfeon r. Hakewill, 377. 
Wood r. Caaxfca, 451, 452. 

r. Gaynon, 93. 

V. He««tt, 107, 191, 200. 

V. Lske, 194. 

V. Leadfaitter, 194, 195, 196, 

198,263. 

r. Mankj, 198. 

r. Nann« 436. 

p. Saonden, 231, 282. 

r. Veal, 486, 507. 

r. Wand, 148, 229, 233, 234, 

314. 
Woodcraft r. ThompaoD, 437. 
Woodham, rr, 447. 
Woodhooae r. Walker, 19, 21, 22, 

92, 93. 
Woods p. Dntrant, 438. 
Woodyer r. Hadden, 208, 486, 498, 

505,506. 
WooUey r. A.-G. Victoria, 71. 

Chnrdiwaidiais 9. 
, 163. 
Woriedfl« p. KingsweD, 360. 
WannaU r. Mnxeen, 7, 894. 
WoTthington v. Gimson, 272, 276. 
Wright r. Dewe^ 457. 

p. Hobert, 567. 

p. Howard, 152. 

r. Pitt, 564. 

r. Bobotham, 129. 

r. Wallasey Board, 90. 

r. Williams, 229, 287, 298, 

;i04. 



TABLE OF CASES. 



xliii 



Wyatb V. Hanison, 245. 
Wyndham 9. Way, 32. 
Wynn's Estates, 62. 
Wynne v. Humbeoreton, 128. 



Yarmouth 9. Eaton, 171, 514. 
Yates, re, 107, 123. 
Yates V. Maddan, 394. 

V. Task, 215. 

r. Yates, 393. 

Yea V, Field, 129. 
Yearworih v. Pieroe, 109. 



Yellowly v. Gower, 23, 92, 100 

381. 
Yonge V. Furae, 396. 
York V. Pilkingfton, 371. 
Yoikahire Ins. Go. v, Clayton, 8, 

13. 
Yorkshire Bnilding Co. v, Mullan, 

379. 
Young 9. Davis, 540. 
V, Spencer, 18, 95. 



Zetland v. Glover Inooip. Perth, 
154. 



INTEODIJOTION. 



A FORMER voluiue of a proposed Digest of the Law of 
Property in Land, after having given a short abstract of 
the Sources of the Law, treated of Estates in Land. An 
estate was there explained to be a right to the possession 
of land for a limited duration of time ; and for the pur- 
poses of defining the various estates allowed by law, and 
of stating the rules regulating the limitation and order of 
jBuocession of estates, land was there considered only in 
regard to its qualities, as a subject of property, of pert 
manenoe and continuous use; being the qualities which 
give the power of portioning out the possession into 
estates or successive limited durations of time. But no 
consideration was there given to any complications which 
might arise in applying the doctrine of estates, so derived, 
to the specific uses and profits which in fact constitute the 
beneficial elements of property in land. The use and 
enjoyment of land was there considered merely as flow- 
ing on unitedly and uniformly during each successive 
estate, and as, therefore, admitting of a substitution of 
ownership at any moment of time, without any difficulty 
in ascertaining the rights of successive owners {a). 

The present volume proceeds to consider land in regard 
to the actual beneficial elements which make it valuable as 
a subject of property. Land here appears as a complex 
subject, having many distinct uses and profits, some of 
which sufficiently conform to the above abstract conditions 
of permanence and continuity, but others vary from them, 
more or less. For instance, the profit of land derived 

(0) See the Introdnction to Volume I. 
L. » 



Z INTRODUCTTON. 

from the natural products of growth on the sur&oe is more 
accurately described as recurrent than as continuous. With 
some kinds of produce, as annual crops, it is unif onnlj 
recurrent, subject only to the variations of cultivation and 
of the seasons ; with other kinds of produce, as wood and 
timber, it is recurrent at longer and less regular intervak. 
Again, the profit of land for some purposes is neither ocm- 
tinuous nor recurrent ; as in the getting and removing of 
minerals and portions of the soil itself ; the profit then 
consists in taking away the substance of the property, 
which can only be done once for all. Only for such pur- 
poses as require mere space can the use of land be described 
with perfect accuracy as uniform and permanent. 

It is obvious that the principle of measuring out estates 
by successive intervals of limited duration, upon the 
assumption that the enjoyment of the subject of property 
is uniform and concurrent with the continuance of the 
estate, cannot be applied strictly to those uses and profits 
which fail in satisfying this assumption ; and tiiat conse- 
quentiy modifications are necessary to correct the irregulBr 
and uncertain distribution of the benefits which would 
occur, in regard to such uses and profits, upon the substita- 
tions of ownership. A tenant for life or for years, for 
instance, during his tenancy might exhaust the land and 
its resources by working out the mines and cutting down 
the timber, and thus leave it permanently impoverished to 
his successor ; or, on the other hand, he might till and sow 
the land, and be unable to take the crop before the expirsr 
tion of his estate. It becomes necessary, therefore, in 
order to secure the rights of successive owners, that provi- 
sion be made by law for the purpose of securing to a 
present tenant the fruits of proper management and culti- 
vation, and at the same time of securing his sucoessor 
agaiast the risks of permanent waste and deterioration. 

Accordingly it is now purposed to treat successively tiie 
various uses and profits of land which are recognized in 
law as subjects of property ; and concurrently to asoertain 



INTRODUCTION. O 

the quantity or degree of tlie uses and profits appropriated 
by law to different estates. The fee simple being the 
largest estate known to the law, and therefore including 
every beneficial incident allowed by law, it is purposed to 
consider how far the full enjoyment is modified and re- 
stricted in appropriation to the particular estates of fee 
tail, terms for life and for years, or other less interests in 
the land, and what securities are provided for the due 
enjoyment by each in succession. These topics occupy 
the first Part of the present volume under the general title 
of " Uses and Profits of Land." 

Again, the various uses and profits of land are con- 
sidered above as collectively forming one entire subject 
of property, united in the ownership for the time being, 
though subject to substitutions of ownership from time 
to tune. But it will appear that some uses and profits 
are capable of being appropriated in separate ownership to 
one person concurrently with the possession of the same 
land by another person for all other purposes. In other 
words, the land and its possession may belong to one 
person, whilst at the same time some special use or profit 
of the land not involving possession of the land itself may 
be assigned in separate ownership to another person ; so 
far infringing upon the integrity of the full ownership 
and enjoyment of the former. Property of this kind is 
exemplified by rights of way, rights to the access of light, 
and other like rights of use, which, imder the term " Ease- 
ments," one person may be entitled to enjoy over the land 
of another. Such also are the rights of taking from the 
land minerals, stone, turf, herbage, and other like profits, 
known in law as " Profits d prendre^^^ which may be severed 
in ownership from all other uses and profits of the land and 
held as separate subjects of property. These rights are 
treated in the second Part of this volume under the title 
of '^ Uses and Profits in Land of another." 

b2 



( 4 ) 



PART I. 

USES AND PE0FIT8 OF LAND. 

Chapter I. Land in general. 

11. Possessory rights and liabilities of Tenants, 

m. Trees, Woods, and Timl)er, 

* 

IV. Ghx)wiiig Crops. 

y. Mines and Minerals. 

VI. Game and Wild animals. 

VII. Houses and Buildiogs. 

Viil. Fixtures. 

IX. Title-deeds and Heirlooms. 

X. Inland waters. 

XI. Sea and Tidal waters and Sea shore. 

XII. Fisheries. 



( 5 ) 



CHAPTEE I. 
LAND IN GENEEAL. 

TemiB of desGription — ^land — ^water — manor—messuage — appurtenants 

— rents, profits and uses. 
Tenement — hereditament — corporeal and incorporeal — reyersionary 

estates. 
Identification of land, hy name — ^by the occupation — by map. 
Boundaries — duty of tenant to preserve — commission to ascertain — 

copyholds — encroachments. 
Property in land above and below the surface — partition of surface and 

sub-stratum. 

Land as the subject of property, including all the bene- 
ficial uses and profits of which it is capable, may be de^ 
scribed in conveyances, wills and legal proceedings by the 
general term "land"; or by terms indicating the condi- 
tion of the land, as arable, meadow, pasture, wood. It 
may also be described by special terms referring to the 
legal condition of the property, as manor, honor, forest, 
park, warren, farm ; or to the buildings upon it, as castle, 
haU, grange, messuage, house; or to other distinctive 
characteristics, as close, curtilage, garden, orchard. The 
terms of description are construed with reference to the 
context of the instrument and the circumstances to which 
it is applied (a). — "Water" is not in general a sufficient Water, 
description of the land upon which the water rests ; but it 
may appear from the context and circumstances that it is 
so used and intended; the proper description is "land 
covered with water" (6). The term "fishery" has been 
held sufficient to pass the soil of a lake, where the con- 

(a) Go. lit. 4, 5 ; 19 b. {b) Co. Lit. 4 a, b. 



6 



VSES AND PROFITS OF LAND. 



Manor. 



TVftrren. 



Farm. 



veyance was made by livery of seisin and with a reserva- 
tion of rent ; both which circumstances are inapplicable to 
the incorporeal property in a mere right of fishery (r). 
— " Manor " is sufficient to pass all rights comprised in the 
manor designated ; so that the demesne lands pass to the 
grantee, together with all seignorial rights, rents, services 
and casualties (rf). — "Warren" may be taken, according 
to the intention of the instrument, to mean the land itself 
used as a warren ; or it may mean merely the franchise of 
warren, that is, the right of taking certain wild animals in 
the land of another, without possession of the land itself. 
The term " warren of conies " has been taken to pass the 
soil, in accordance with the intention shewn in the deed of 
conveyance {e). — "Farm" primeirily means land demised 
to a lessee, and refers to the interest of the lessor ; but it 
may also mean the interest of the lessee (/). A devise by 
will of " farms " in conjunction with other real estate, upon 
limitations applicable to real estate only, was held not to 
include a leasehold farm of the testator {g). — " Close " in 
the ordinary sense denotes an inclosure or piece of land 
inclosed with boimdaries ; but it may from the context or 
circumstances receive a wider meaning (A). 

" By the grant of a messuage or house, the orchard, 
garden and curtilage do pass, and so an acre or more may 
p«ws by the name of a house" ; but it is a question of evi- 
dence in applying the deed or instrument of conveyance, 
what is parcisl of or appurtenant to the house (t). 
Appurtenant. — ^It is a general rule that land cannot pass under the 



Meflsoageor 
houae. 



(c) Marshall y. UUeaicaUr Nav, 
Co,, 3 B. & S. 732 ; 82 L. J. Q. B. 
139; Solford y. Bailey, 8 Q. B. 
1000 ; 13 Q. B. 426 ; Ikponshire y. 
Fattinson, L. R. 20 Q. B. D. 263 ; 
67 L. J. Q. B. 189. 

(rf) JDuke of Leeds y. Fowell, 1 
Vefl. sen. 172 ; Duke of Beaufort y. 
Swansea, 3 Ex. 425. 

(e) Bcbinaon y. Duleep Singh, 
L. R, U C. D. 798; 48 L. J. C. 
758 ; Beauehamp y. Wltm, L. B. 6 
H. L. 236 ; 38 L. J. C. 656. 



(/) Plowden, 195 ; Lasie y. Stmt- 
hope, 6 T. B. 345. 

{g) Holmes y. Milward, 47 Tu J. 
C. 622. 

(h) Richardson y. Watson, 4 B. & 
Ad. 787. 

(i) Co. Lit. 5 & ; 56 & ; Plowdesi, 
171; Smith Y. Martin, 2 Wms. 
Sannd. 400; Chard Y,Tuek,Z'L&tm, 
214 ; Gro. Eliz. 89 ; Doe y. CoUine, 
2 T. R. 498 ; Doe y. Webster, 12 A. 
& £. 442. 



CHAP. I. LAND IN GENEKAL. / 

mere description of an ^^ appurtenant" of a honfie or land, 
unl^s it is in fact appurtenant in the sense above stated ; 
and in that case it would pass" as being included in 
the house or land described, without mention of appur- 
tenants {k). But the word "appurtenant" may be used 
in a deed or will with reference to the context and circum- 
stances as intending other land lying near to, or usually 
held or occupied with, the house or land described in the 
instrument ; and it is then construed according to the 
meaning intended (/). 

A grant or devise of " rents and profits" of land passes Bents, profits 
the land itself (m) ; and a devise of " rents" may pass land, "^^ ^'*^' 
according to a common use of the word "rents" for 
land (w). A devise of the " income" of land is equivalent 
for this purpose to a devise of the rents and profits (o) ; 
and a charge upon the income of land is primd facie a 
charge upon the corpus of the land (p). — ^A grant of 
" the profit" of land is sufficient to pass the land itself, 
" for what is the land but the profits thereof P for thereby 
vesture, herbage, trees, mines and all whatsoever parcel 
of that land doth pass." But the grant of a particular 
profit, as the vesture or herbage of the land, or the 
com, grass, underwood and the like presumptively passes 
only the right of entering upon the land and taking 
it, and not the land itself. "So if a man grant to another 
to dig turves in his land and to carry them at his will and 
pleasure, the land shall not pass, because but part of the 
profit is given" (^).r— " A grant of the exclusive use of 
land is a grant of the land" (r)« So the exclusive use 

{k) Co, lit. 121 b ; Suck y. 826 ; L. B. 36 C. D. 346. 

KurtoHy 1 B. & P. 63 ; Smith ▼. (ft) Kerry y. J)erriek, Gro. Jao. 

Bidppov, L. B. 1 Ex. 331; 36 104. 

L. J. M^ 198. (o) Mannosp y. Cfremer, L. B. 14 

(/) Plowden, 170, 171, Sill y. Eq. 466. 

Orange; Thomas y. Owen, L. B. (p) Wormald y. MueeeHf L. B. 

20 Q. B. D. 225 ; 67 L. J. Q. B. 17 C. D. 167 ; 60 L. J. 0. 776 ; 

198 ; Outhbert y. Bobimon, 61 L. J. and see ante, yol. i. p. 274. 

G. 238. (g) Co. lit. 4 b. 

(m) Jhe y. Zakemanf 2 B. & Ad. (r) Ter eur, Capel y. Buisard, 6 

42 ; Johnton y. Johneon^ 66 L. J. C. Bing. 169. 



8 



USES AND PROFITS OF LAND. 



Tenenietiit. 






of land for all purposes to which the land is in fact 
applicable, is presumptive evidence of the entire owner- 
ship ; as in the case oi an exclusive pasturage of sheep 
upon a mountain sheep walk, upon which no other act 
of ownership had been exercised («). 

The term "tenement" means primarily whatever may 
be the subject of tenure ; " it includes, not only all cor- 
porate inheritances which are or may be holden, but also 
all inheritances issuing out of any of those inheritances, or 
annexed to or exerciseable within the same, though they 
lie not in tenure; as rents, commons, or other profits 
whatsoever granted out of land" (/). It is used as includ- 
ing separate profits granted out of land in the Statute De 
DonU ; all such profits are within the statute and may be 
entailed, as a right of hunting and taking game {u). It 
is used in a similar meaning in the Statute of Frauds, 
s. 5, prescribing the form of wills (?;) ; also in the Settle- 
ment Acts, as a right of pasturing cattle (t^), or a right of 
warren (x) ; and in the Acts relating to the qualification of 
parliamentary electors, as the tolls of a bridge or ferry (y). 
— ^The word " tenement" is also used in a popular sense 
for a dwelling house or building, and may be so taken in 
construing Acts of Parliament (2). 

"An hereditament is by much the largest and most 
comprehensive expression ; for it includes not only lands 
and tenements, but whatsoever may be inherited, be it 
corporeal or incorporeal, real, personal or mixed" (a). — 



(•] Jone» Y. Eiehardy 5 A. & E. 
413. 

{{) Ck>. Lit. 60; 19 &; Dawwn 
T. Eobifu/L. &. 2 G. P. D. 38 ; 46 
L. J. 0. P. 62. 

(11) Co. Lit. 19 h ; Moore y. P/y- 
mouth, 7 Tannt. 614. 

(r) Habergham y. Vincent^ 2 Vee. 
jmi. 232. 

(tc) The T\ng y. TolpuddU^ 4 
T. R. 671. 

(x) The Ttng y. TiddUtrenthide, 3 
T. R. 772; Beauehamp y. Wwn^ 



L. R. 6 H. L. 242 ; 38 L. J. C. 
556. 

(y) Wadmore y. Bear, L. R. 7 
0. P. 224 ; 41 L. J. C. P. 49. 

(«) Daahwood y. Aylee. L. R. 16 
Q. B. D. 301 ; 56 L. J. Q. B. 8; 
Twrkehire Ine, Co, y. Clayton, L. R. 
8 Q. B. D. 423 ; 61 L. J. Q. B. 82. 

(a) Lit. 8. 9 ; Co. Lit. 6 a ; Lloyd 
Y. Jonee, 6 C. B. 81 ; Cockburn, 
0. J. The Queen y. Cambrian iy., 
L. R. 6 Q. B. 427; 40 L. J. Q. 
B. 169. 



CHAP. I. LA19D IN GENERAL. 



Things are distinguished as corporeal and incorporeal 
according as they are capable or incapable of actual pos- 
session. The corporeal include land itself and all parts of 
land that are capable of separate possession, as the surface 
and substratum. The incorporeal include all uses and 
profits of land which may be held and enjoyed as separate 
subjects of property, while the land itself remains in the 
possession of another. '^Incorporeal hereditaments are 
principally advowsons, tithes, commons, ways, offices, 
dignities, franchises, corodies or pensions, annuities and 
rents" (6). 

The terms lands, tenements, hereditaments, and other Reversionary 
general words descriptive of the subject of property, serve 
also to pass all estates and interests in the property so 
described, whether in possession or reversion. Thus by a 
grant of " lands and tenements," a reversion or remainder 
which the grantor has in land, or in rent issuing out of 
land, will pass. So, '^ if a man has a reversion in a mill 
and grants * all Ms milly the reversion will pass." " And if 
land, be known by the name of a house, then the reversion 
of the same land may pass by the name of the house. 
And if six acres are known by the name of a manor, then 
the reversion of them may pews by the name of the 
manor" (c). 



estates. 



Land is usually identified in a deed or instrument by identification 
the proper name, by which it is known. There is no ex- *^* ^*^^* 
elusive property in the use of a name for a house or land ; ^"^®* 
nor are there any means of preventing the mere use of the 
same name by others (c?). The naming of streets and 
numbering of houses in the metropolis is regulated by the 
provisions of the Metropolis Local Management Act, giving 
authority for that purpose to the Metropolitan Board of 
Works (c), — ^Land is sometimes described by reference to Occupation. 



{b) 2 Blackst. Com. 20. 

(e) Perkins, ss. 114, 116, 540. 



id) Day v. Brownrigg, L, R. 10 
C. D. 294 ; 48 L. J. 0. 173. 
{e) IS&lOViot. 0. 120, s. 141. 



10 



USES AND PROFITS OF LAND. 



Map. 



the occupation^ as having been lately or being now in the 
occupation of a certain named person; such descriptions 
are taken generally as intended for the purpose of identi- 
fying the property only, and not of limiting or extending 
the operation of the instrument (/). — Land may be more 
exactly identified by setting out the abuttals or boundariee; 
and this in modem conveyances is usually done by refer- 
ence to a map or plan with a schedule of the parcels 
annexed to the deed or instrument (g). 



Boundariee. 



Duty of 
tenant. 



Gommifldon 
to ascertain 
boundaries. 



The boundaries of adjacent properties, as between inde- 
pendent owners, are protected by the ordinary legal 
remedies against adverse entry and possession, and for the 
recovery of land. There is no special obligation upon such 
owners, and no special jurisdiction of the Court in regard 
to the boundaries. " The Court will not interfere between 
independent proprietors and force one of them to have his 
rights tried and determined in any other way than the 
ordinary legal mode. Confusion of boundaries furnishes, 
per 8€y no ground for the interposition of the Court" (A). 
But in certain relations of adjacent owners there arises a 
special obligation to preserve the boundary ; as in that of 
landlord and tenant. " A tenant contracts among other 
obligations resulting from that relation, to keep distinct 
from his own property during his tenancy, and to leave 
clearly distinct at the end of it, his landlord's property, 
not in any way confounded with his own"(/). This 
obligation is enforced by a special jurisdiction of the 
Court to issue a commission to ascertain the boundaries 
if possible ; and if it be found impossible, to set out so 



(/) Martyr v. Lawrenee, 2 D. J. 
& S. 261 ; JDoe y. Burt, 1 T. R. 
701. 

{g) Llewellyn y. Jersey, 11 M. & 
W. 183 ; Barton ▼. Dawes, 10 C. B. 
261 ; Squire y. Campbell, 1 M. & 
Or. 478 ; WillU y. JFatney, 51 L. J. 
0. 181. 



(A) Eldon, L. 0. Speer y. Orawter, 
2 Mer. 417 ; JfiUer y. JTarminyton, 
1 J. & W. 492 ; Bute y. Qlamoryem 
Canal, 1 PhiU. 684. As to fendng 
boundaries, Be&posi, p. 263. 

(t) Eldon, L. C. A,'G, y. FuUer- 
ion, 2 y. & B. 264 ; Spike y. Mard- 
ing, L. R. 7 C. D. 871 ; 47 L. J. 
G. 323. 



CHAP. 1. LAND IN GBNERAL. 11 

much of the tenant^s own land as shall be equal in value 
to that originallj granted or leased (j). By consent of the 
parties the Court will direct an inquiry in chambers to ascer- 
tain the boundaries; and the Court will grant discoverj 
and inspection of documents in aid of the jurisdiction (A;). 
'^ The relief is founded on misconduct analogous to a breach 
of trust. If the person having such particular interest suffers 
the boundaries to be confused, so that the reversioner or 
remainderman cannot tell to what land he is entitled, the 
Court will give relief by compelling the person who has 
occasioned the difficulty to make good, out of that which 
may be considered a common fund, that portion of it which 
belongs to anotiier" (/). The obligation runs with the 
land, and the relief is given not only against the person 
guilty of the neglect, but against all those who claim xmder 
him, either as volunteers or purchasers. But in order to 
claim the relief it is essential to establish by admission or 
by evidence that the party charged in fact possesses the 
land lost by confusion of boundaries. It is not sufficient 
to show that he has acquired and holds a part of the estate 
with which it has been confused, without showing that the 
part which he holds contains the part which is lost (m)- 
— ^The same obligation exists in copyhold tenure. The Tenant of 
copyholder who holds freehold land of the same manor is ^^^ ^ ' 
bound to keep the boimdaxies distinct, and in case of con- 
fusion, the lord is entitied to have a commission to ascer- 
tain the boundaries, or to set out as much of the freehold 
as is of equal value with the copyhold lost. ^' The con- 
fusion of boundaries does not infer any negligence on the 
part of the lord; for the tenant is in possession of the 
land"(n). 

(/) Spger V. Crawter, 2 Her. 418 ; L. J. 0. 890. 

Willis Y. Far kituon, 2 Mer, 607; 1 (tn) A.-O, v. SUphtna, supra; 

Swanst. 9. Godfrey y. Littls, 2 Bum. & M. 

{k) Broicn v. Wales, L. R. 15 630. 

£q. 142 ; 42 L. J. C. 46 ; Spike v. (») Leeds y. Strafford^ 4 Yes. 180; 

Mardinj, supra. See North y. Straffordy 3 P. Wms. 

(/) (hnmworth, L. C. A,-0. y. 150 ; see Leeds y. Foujell^ 1 Vee. 

Stephens, 6 D. M. & G. 133 ; 25 sen. 172. 



12 



USES AND PROFITS OF LAND. 



Encroach- jt jg ^ eeneral rule that an encroachinent made by a 

ments. ° . ... . 

tenant advancing the boundary over adjoining land is 
presumed to be an accretion to the demised land, which 
must be given up to the landlord at the end of the term {o). 
Consequently the Statute of Limitations has no applica- 
tion against the landlord during the continuance of the 
tenancy (jo). The doctrine applies equally whether the 
encroachment is made upon other land of the lessor or upon 
land of a third party (q). And it applies to land which 
the tenant is enabled to take possession of by virtue of 
his position of tenant, though not strictly adjoining to 
the boundaries of the demised land : as land separated 
merely by a road or stream, or an inclosure from an ad- 
Encroach- jacent waste or common (r). Upon the same principle it 
h^er on^^^' was held that where a copyholder extended his tenement 
waste. by an encroachment upon the adjoining waste of the 

manor, there being a custom in the manor for the lord to 
grant waste as copyhold, the encroachment was an accretion 
to the original copyhold ; the presumption being in favour 
of a legal title, and of that most favourable to the lord («). 
But where the lord took a surrender and made a re-grant 
of the original tenement without the accretion, it was held 
that he had precluded himself from claiming it (/). 

"Profeety in Property in land as defined and limited by superficial 

and bdow the boundaries presumptively carries with it everything oon- 

sortace. tained beneath the surface, as mines and minerals, also the 

space above the surface with whatever use can be made of 

it{u). Therefore, if an owner of land build anything 



(o) Bryan v. Wimcoodi 1 Taunt. 
208; Doe v. Jonet, 15 M. & W. 
680 ; Zisbume v. J)avieSf L. R. 1 
O. P. 269 ; 35 L. J. C. P. 193. 

ip) Whitmore v. Humphries, L. R. 
7C. P. 1; 41 L.J. C. P. 43. 

{q) Andrews v. Hailes, 2 E. & B. 
349. 

(r) Andrews y. Hailes ; Zishume 
V. Baviesy supra. 



(«) A.'G. y. Tomline, L. B. 6 
0. D. 760 ; 46 L. J. C. 654. 

(0 S. a on appeal, L. R. 16 
C. D. 160 ; in which case the Conrt 
of Appeal thought it doubtful 
whether the doctrine of encroach- 
ment hj a tenant operating for the 
benefit of the lancUord ajyplied at 
all to copyhold tenure. 

(») Go. Lit. 4 a. 



CHAP. I. LAND IN GENERAL. 13 

projeoiing over the boundary, as the oomioe or eaves of a 
honsey it is prtmd facte wrongful to the owner of the 
adjoining land, by encroaohing upon his space and prevent* 
ing him from building above the level of the projection. 
The remedy of the latter is either by himself abating the 
nuisance, or by bringing an action for damages and for an 
injunction to remove it ; and in such action the encroach* 
ment imports in law a nominal damage, without allegation 
or proof of any special damage arising from it {x), — "By 
the right of abating a nuisance the owner of a close can 
justify cutting ofE the branches of trees which grow over 
the boundary from the adjacent land ; and in a case where 
a person had turned a horse into his field, which was 
poisoned and died in consequence of eating branches of 
yew growing over the boundary, it was held that he might 
recover the loss from the owner of the trees (y). Upon the 
same principle the owner of a house or land may prevent 
the carrying of telegraph wires through the air over his 
property (s). 

Land may be divided into separate properties by hori- Partition of 
zontal as well as vertical partition, and the surface and the J^^ horizon- 
strata beneath the surface may be appropriated and held 
as separate tenements, as in the case of mines and minerals 
held in separate ownership. Upon this principle a house 
may be divided into flats and let in separate tenements, 
which for all ordinary legal purposes may be regarded as 
separate houses (a), — Under the Lands Clauses Consolida- Lands Glanaes 
tion Act, 1845, 8 & 9 Vict. c. 18, which .provides for rail- -^^• 
way and other companies acquiring land for the purposes 
of their undertakings, the word "land" is taken in the 
ordinary sense as including the whole space above and 

(x) Baten't Case, 9 Co. 63 b ; Faif {z) Wandwoorth v. United TeU' 

▼. Prentice, I C. B. 828 ; Earrie v. phone Co., L. R. 13 Q. B. D. 904 ; 

Be Finna, L. B. 33 C. D. 260 ; 56 63 L. J. Q. B. 449. 

L. J. C. 348. - (tf) Torkehire Ins. Co. v. Clayton, 

(y) CrowhuretY.Amsrsham Burial L. B. 8 Q. B. D. 421; 61 L. J. 

Board, L. B. 4 Ex. D. 6 ; 48 L. J. Q.B.82. Ab to mines and minerals, 

. 109. 9^ poet, p. 61. 



laiicL 



14 USES ANT) PROFITS OP LAND. 

below the surfaoe; and a railway company, although 
requiring only a portion of mich space for the purpose 
of a tunnel or a bridge, are bound to take the whole ; eiaOy 
haying taken it, the space not required for the tunnel or 
Sai>erfliioiis bridge does not become ^'superfluous land," which the 
company is directed by the Act, s. 127, to sell (b). But 
the company's special Act may give the power of making 
only a tunnel through the land or a bridge Over it, with- 
out taking the space above and below (c). 

(jb) Re Metropolitan District By, 258 ; Ware v. London and Brighton 

and Cosh, L. B. 13 G. D. 607 ; 49 By,, 62 L. J. C. 198. 

L. J. C. 277 ; Finehin v. Blacktoall {e) EiU v. Midland By,, L. R. 21 

By,, 6 D. M. & Or, 861 ; 24 L. J. C. D. 143 ; 61 L. J. C. 774 ; Qrtai 

O. 417 ; Mulliner v. Midland By., Western By, y. Swindm By., L. B. 

L. B. 11 C. D. 611 ; 48 L. J. 0. 9 Ap. Ca. 787. 



( 15 ) 



CHAPTEE n. 

POSSESSORY BIGHTS AND LIABILITIES OF 

TENANTS. 

Tenant in fee simple — ^fee sabject to exeoatory interestB — equitable 
waste. 

Tenant in tail — special tail — after possibility of issue extinct — under 
Settled Land Act. 

Tenant for life or for years — Pliability for waste. 

Actiotn of waste— damages — ^limitation of action — action of waste by or 
against executor — ^waste by stranger — vU mqfor. 

Tenant for life or years without impeachment of waste— equitable 
waste — covenants relating to use of land demised — impUed con- 
tract of tenant. 

Tenant at will — ^tenant of copyhold — ^waste by copyholder. 

Tenants of equitable estates — special trusts. 

Tenantinfeesiinpleabflolute, in possession, haflthe largest Temmtinfee 
right to the uses and profits of the land that is allowed "™^ ®* 
by law. He may cut timber and any other trees, open and 
work mines and take soil and minerals, build and pull down 
houses, as he pleases ; by right of absolute ownership he 
may commit waste and destruction of the inheritance (a). 
— ^Tenant in fee simple, subject to an executory use or Fee subject to 
devise, has all the legal rights and incidents of a fee jj^^^ 
simple ; but the Court will protect the future interest so 
far as to restrain the tenant in possession from such exer- 
cise of his strict legal rights as would unduly prejudice 
the future possession. Though he would as tenant in fee 
simple be entitled to cut and take aU timber and other 
trees, he would be restrained from cutting such timber as 
is not ripe for cutting, and such timber and other trees as 

(a) Duke qf Norfolk v. Arbuihnotf L. B. 4 G. P. D. 306 ; 48 L. J. 
0. P. 746. 



16 USES AND PROFITS OF LAND. 

* are ornamental to the estate. He would also be restrained 
generally from acts of mere wilful destruction (b). Such 
an injunction was granted against a tenant in fee subject 
to an executory devise in the event of his leaving no issue 
at his death ; also against a tenant in fee subject to an 
executory devise to take efiEect upon his death under 
twenty-one; in. accordance vnth the presumed intention 
of the testator in such cases that the estate should pass 
over to the future devisee without material deteriora- 
EquitaUe tion (c). — The wilful waste and deterioration of the pro- 
^^ ' . perty which is thus restrained in the interest of the 

successor, though not actionable at common law, is tech- 
nically known as " equitable waste." 

Tenant in taU. Tenant in tail in possession has all uses and profits 
of the land, as fully as tenant in fee simple absolute. He 
may cut timber, open mines, pull dovm houses, as he 
pleases, vrithout being impeachable for waste or destruc- 
Tenant in tail tion. For a tenant in tail by taking proper proceedings for 
executory barring the entail has the power of acquiring to himself a 
devise. fee simple absolute, discharged of all remainders and re- 

versions, and of aU executory interests that may be limited 
to take effect in defeasance of the estate tail. Therefore 
in right of his capacity of acquiring such enlarged estate, 
he can exercise the same rights of use and enjoyment as 
if he had acquired it. He has, in this respect, fuller 
dominion over the land than tenant in fee simple ; inas- 
much as the latter cannot discharge his estate from execu- 
tory limitations, and therefore in exercising his rights of 
Sale of timber ovmership, he is bound to respect them (d). But though 
t^, ^ tenant in tail in possession is not impeachable for waste, and 
may take any profits from the land, as trees or minerals, 
and sell them and take the proceeds, yet he cannot effec- 
tually convey them before taken without barring the 

(b) TumerY.JFriffhtf JohnB, 7^0; {d) Ante, p. 16 ; A.-G.t, Duke 
29 li. J. C. 598. of Marlborwgh, 3 Madd. 498 ; Mild^ 

(c) lb, ; Hobxnwn v. Lxttmy 3 Atk. may's Case^ 6 Go. 41a. 
209. 



CHAP. II. POSSESSORY RIGHTS OF TENANTS. 17 

entaiL If he conveys them by an ordinary deed, not operat- 
ing in bar of the entail, and they are not taken during his 
life, the property in them descends with the estate to the 
heir in tail, and the purchaser has no longer any claim. 
A tenant in tail in possession may authorise another to cut 
trees or to take minerals ; but such authority conveys no 
inter^t until executed, and is determined by his death (e). 
— Tenants of estates entailed in perpetuity without power Perjyetual 
of barring the entail, which is the case of estates tail with ^^ 
reversion in the Crown, and of certain estates tail that 
have been settled inalienably by Act of Parliament, have 
the same absolute rights and are not restrainable even from 
equitable waste (/). — ^An infant tenant in tail, though 
incapacitated generally from alienation, has similar rights, 
and cannot be restrained from taking timber, minerals, or 
other profits (^). 

Tenant in special tail is in the same position as regards Tenant in 
possessory rights as a tenant in tail general. — Tenant in ^^^ ., . 
special tail "after possibility of issue extinct" is in the lityof isaue 
position of a tenant for life only, in that the estate tail ®^^^°*- 
must terminate at his death, nor can he enlarge it into a 
fee simple ; but he retains the privilege incident to the 
estate tail of not being impeachable for waste at law. 
Courts of equity regarding him merely as a tenant for life 
-without impeachment of waste restrain him from commit- 
ting equitable waste. A tenant in this position may cut 
timber and take the timber when cut for his own use, pro- 
vided the cutting is not equitable waste (h). — By the Settled Settled Land 
Land Act, 1882, 45 & 46 Vict. c. 38, ss. 3, 58, a tenant in ^"^^ 
tail, and a tenant in tail after possibility of issue extinct^ 
in possession, have the powers of a tenant for life under 
the Act, enabling them to sell the settled land or any part 

{e) CholmeUy v. Paxton, 3 Bing. Wihon, 4 Hare, 374. 

211 ; S. C, Cockerelly. Cholmeley, (A) Lit. ss. 32, 33; Co. Lit. 27 b; 

10 B. & C. 564. Bowles* C<ue, 11 Co. 79 ; A.-G. v* 

(/) A.-G, V. Duke of Marl' Duke of Marlborough^ 3 Madd. 638 ; 

hwwigh, 3 Madd. 498. WiUiatru v. Williame, 12 East, 209; 

(y) Wigram, V.-C. Ferrand v. 15 Ve». 428. 



18 



USES AND P&OFITS OF LAND. 



Tenant for 
life or for 
years. 



Waste. 



thereof, or any right or privilege over the same ; sabject 
to the provisions of the Act as to the proceeds. 

Tenant for life or for years, in possession, has all tlio 
ordinary uses and profits that accrue continuously, or 
periodically, or occasionally from time to time, during' the 
term ; but he has no right of taking or destroying any- 
thing that is permanent and part of the inheritance, as 
trees, soil, minerals, or houses and buildings, and he is, 
in general, impeachable for "waste" or destruction (»)- — 
Waste is described as of two kinds, namely, " voluntary or 
actual, and permissive." The former consists in acts of 
wilful destruction, as cutting down trees, pulling do-wn 
houses and the like. Permissive waste is caused by neg^li- 
gence only, as by suffering houses to be uncovered whereby 
the rafters or other timbers of the house are rotten ; or by 
suffering walls of the sea or rivers to be in decay, 
whereby the land is overflowed and unprofitable (J). 
" No act can be waste which is not injurious to the 
inheritance"; and an act may bo injurious and actionable 
" either, first, by diminishing the value of the estate, or, 
secondly, by increasing the burthen upon it, or, thirdly, 
by impairing the evidence of title" (k). Accordingly 
such acts as ploughing up ancient meadow and removing 
fences qxq primd facte acts of waste, and are actionable (/). 
— Waste can only be committed of the land demised ; 
therefore where trees were excepted from a lease, it was 
held that cutting the trees was not technically waste, 
upon which a forfeiture could be claimed, though it might 
be a trespass upon the possession of the trees (m). 



(f) HerlaAtndeH^M Ca»e^ 4 Co. 626; 
Liftyrd^B Case, 11 Co. 48 a ; Bowles* 
Case, 11 Co. 816. 

{j ) Co. Lit. 53 a. See post, p. 92. 

(k\ Fer cur. Doe v. Burlington^ 6 
B. « Ad. 617 ; Toung v. Spencer ^ 
iO B. & C. 145; Huntley y. Ruuell, 
13 Q. B. 572. Jessel, M. B. Jones 
y. Chappell, L. B. 20 £q. 541 ; 44 



L. J. C. 658. 

(/) Co. Lit. 63 b ; Greene v. Cok, 
2 Wms. Saund. 259, n. (11) ; Sim- 
mons T. Norton^ 7 Bingr. 640; St, 
Albans V. Skipwith, 8 Beav. 354. 

(m) Goodright v. VivioKy 8 East, 
190 ; see Bullen v. Denning. 6 B. & 
C. 842. 



CriAP. II. POSSESSORY RIGHTS OF TENAN1«. 19 

The action for waste at oommoii law lay against tenant Action of 
in dower, tenant by the curtesy, and guardian, the tenancy ^***®- 
in these eases being created by the law ; but no action 
lay against lessee for life, or for years, or at will, because 
they came in by the act of the lessor, and, it was said, he 
might have provided against waste in the lease. The 
waste, however, though not actionable, did not change 
the property in the trees or minerals wasted, which re- 
mained in the lessor (n), — The action was extended to 
tenants for life and for years by the Statute of Marl- 
bridge, 52 Hen. 3, c. 23, enacting that " fermors, during 
their terms, shall not make waste sale nor exile of houses 
woods nor of anything belonging to the tenements that 
they have to ferm, without special licence had by writing 
of covenant making mention that they may do it." The 
term " fermors " comprehends aU such as hold by lease for 
life or lives or for years, by deed or without deed. Tenant 
at will was not affected by the statute and remained as at 
common law(<?). — ^A special action was given by the 
Statute of Gloucester, 6 Edw. I., c. 5, for the recovery 
of the place wasted and treble damages. This action,* in 
common with other real actions, was aboKshed by the 
statute 3 & 4 WiU. IV., c. 27, s. 36 ; leaving the common 
law remedy by an action for damages, which was extended 
to tenants for life and for years by the above-mentioned 
Statute of Marlbridge(j9). Accordingly an action may 
now be brought to recover damages for waste against the 
tenant for life or for years, by the person having the 
immediate vested estate in reversion or remainder, for life 
or for years, in fee or in tail ; and such person may recover 
damages for the waste done, which is assessed according to 
his interest in the property {q). — ^An injunction may be 

(«) 2 Co. Inst. 299; 4 CJo. 62*, Mailland, 16 M. & W. 262; per 

fferlakenden'9 Case; Bowies' Case, 11 cur. Woodhouse v. Walker , L. R. 5 

Co. 81 4. Q- B. D. 406 ; 49 L. J. Q. B. 611. 

(o) 2 Inst. 144, 299. {q) Co. Lit. 63a; 2 Wms. Saund. 

(o) 2 Wms. Sannd. 262 o, Oreene 262 a ; see Perrot v. Ferroty 3 Atk. 

V. CqU; Parke, B., Harnett v. 9\\ Bacon x. Smith, I Q.^'B. Ub, 

C2 



20 



USB8 A3XD PROFITS OF LAND. 



claimed against oontinued or threatened waste (r) ; also a 
daim maj be made for an aocount of the proceeds of 
waste, as the proceeds of timber wrongfully cut or of 

Damages. minerals wrongfully taken (h). — ^The measure of damages 
is the diminished present value of the reversion, and not 
the cost of restoring the property to its unwasted condi- 
tion (t). In cases of merely nominal damage it was the 
practice of the Courts of common law to enter the judg- 
ment for the defendant, in order to avoid the consequence 
under the Statute of Gloucester, of forfeiture and treble 
damages (u) . Accordingly it is said : '^ The waste must be 
something considerable ; for if it amount only to twelve- 
pence or some such petty simi, the plaiatiff shall not 
recover in an action of waste ; nam de minimis non curat 
lex " (t?). " Trees to the value of three shillings and four- 
pence hath been adjudged waste; and many things to- 
gether may make waste to a value "(tr). Upon this 
principle the Court will not grant an injunction unless the 
waste charged is "of a substantially injurious character; 
and if the waste be really ameliorating waste, which results 
in benefit and not in injury, or if it be so small as to be 
indifferent, the Court will not interfere to prevent it " (j?). 
The limit of actionable waste is sometimes fixed in value 
by agreement in the lease (t/). — Waste is actionable imme- 

Limitation of diately it is committed, without waiting till the end of the 
tenancy; although possibly the waste might be repaired 
and the land restored by the tenant during his tenancy (s). 
Consequently the Statute of Limitations runs from the 
time of committing the waste, whether the claim be made 



action. 



(r) Perrot v. Ferrot, 3 Atk. 94; 
Judicature Act, 1873, 36 & 37 
Vict. c. 66, B. 25 (8). 

(«) Bp, Winekeater v. Knight ^ 1 
P. Wms. 406 ; Higginbotkam v. 
Hawkint, L. R. 7 Ch. 679 ; 41 
xj. J. G. 828. 

{i) Whit ham v. Ka'ahatc^ L. R. 
16 Q. B. D. 6L3. 

(f<) Harrow School v. Ald^rton, 2 
fi. & P. 86 ; jHr cur^y Pitidzr v. 



Wadsworth, 2 East, 164. 

{v) 3 Blaokst. Com. 228. 

(«') Co. Lit. 64 «. 

{x) Dohertg v. AllmaHj L. R. 3 
Ap. Ca. 7*24 ; Bubb v. Teicerton, 
L. R. 10 Eq. 465 ; 40 L. J. C. 38 ; 
Mollineux v. Fowell, 3 P. Wms. 
268, D. 

(y) Doe V. Bond, 5 B. & C. 855. 

(z) QneetCt CoiL v. Malkii, U 
£a«t, 4S9. 



CHAP. U. POSSESSORY RIGHTS OP TENANTS. 21 

for damages, or for an account of the proceeds of the 
waste (a). But waste in non-repairing under a special 
obligation to repair may be a continuing cause of action 
until the end of the tenancy (i). 

The action of waste by the rule of common law died 
with the person, either of the reversioner of the land 
wasted or of the tenant who committed the waste ; so that 
** the heir of the reversioner cannot recover damages for the 
waste done in the life of the ancestor " (c). But by statute Action by 
3 & 4 Will. IV. c. 42, s. 2, " An action may be maintained 
by the executor or administrator of any person deceased, 
for any injury to the real estate of such person committed 
in his lifetime for which an action might have been main- 
tained by such person, so as such injury shall have been 
committed within six calendar months before the death of 
such deceased person, and provided such action shall be 
brought within one year after the death of such person ; 
and the damages when recovered shall be part of the per^ 
Bonal estate of such person." — By the same statute, Action 
sect. 2, an action for waste, committed by the deceased ^^^ of de ' 
tenant in his lifetime, may be maintained against his o«M«d tenant 
executors and administrators, '^ so as such injury shall have 
been committed within six calendar months before such 
person's death, and so as such action shall be brought 
within six calendar months after such executors or admin- 
istrators shall have taken upon themselves the administra- 
tion ot the estate of such person." If the action of waste 
to recover damages for the injury to the reversion be 
barred by the death of the tenant, no claim can be made 
against his estate in respect of indirect profit derived from 
the waste, as the saving of expense by not repairing a 
house, or the gain of ploughing up meadow land ; but an 
action may be brought to recover property, or the proceeds 

(a) Seagram y. Knight, L. R. 2 {b) Woodhoute y. Walker, L. R. 

Gh. 62S; 36 L. J. C. 310; Higgin- b Q. B. D. 404 ; 49 L. J. Q. B. 

hatham y. Sawkim, L. R. 7 C. 609. 

676; 41 L. J. G. 828. (e) 2 Inat. 306. 



22 



USES AND PROFITS OF LAND. 



Waste by 
stranger. 



Vumtrjor, 



or value of property, actually acquired to the estate of the 
deceased tenant, as timber cut and minerals got and sold 
by him {d). Waste in non-repairing under a liability to 
repair gives a continuing cause of action de die in diem up 
to the day of the death of the tenant ; and an action may 
be brought for it within the six months after the takm^ 
out of administration {e). 

The tenant is responsible for acts of waste committed by 
a stranger, though without his knowledge or consent ; for 
it is his duty to protect the property, and he can, at least, 
recover full damages for the injury to his possessory right. 
" It is presumed in law that he may withstand it, et qui 
non obstat quod obstare potest facei*e videtur^^ (/). — But the 
tenant is not responsible for waste and destruction caused 
by superior force {vis major) which he is not able to prevent 
and against which he has no remedy, and which he has not 
covenanted to answer for; as waste done by tempest, 
lightning, or the like ; or by the enemies of the king (g). 



Tenant The Statute of Marlbridere above cited prohibited 

** without . . . 

impeachment tenants for life and for years from making waste, "without 
of waste." special licence had by writing .of covenant making mention 
that they may do it." The "special licence" of the 
statute may be given by the usual phrase " without im- 
peachment of waste," or an equivalent phrase, appended to 
the limitation of the estate (A). "The addition, without 
impeachment of waste, is an addition of interest ; and it 
may be general or under such restrictions as the settlor 
thinks fit." Thus a tenancy for life may be subject to 
impeachment of waste, except in cutting down timber for 
repairs, or timber going to decay or injurious to other 



(rf) Bp, Winchetter v. Knight, 1 
P. Wms. 406 ; Phillips v. Momfray, 
L. R. 24 C. D. 439 ; 62 L. J. C. 
836. 

{e) Woodhouae v. Walker, L. R. 6 
Q. B. D. 404 ; 49 L. J. Q. B. 609. 

(/) 2 Inst. 146, 303 ; AtUrtoll 



V. Stevens, 1 Taunt. 183 ; 2 Wms. 
Saund. 2^9 d(t). 

{g) 2 Inst. 302 ; Co. Lit. 63 h, 
283 a ; see post, p. 96. 

(A) 2 Inst. 146 ; per ettr. Wood- 
house V. Walker, L. R. 6 Q. B. P. 
407; 49 L.J. Q. B. 609. 



CHAP. II. P08SESS0EY RIGHTS OF TENANTS. 



23 



trees ; and a lease maj be made of a house and land " with-^ 
out impeaolunent of waste in the house "(t). In leases 
granted under powers the licence to commit waste is 
restricted by the limits of the power ; and the lease must 
conform to the power in this respect. Under a power to 
grant leases such that the lessee shall not be made dis- 
punishable for waste, a lease in which the lessor covenanted 
to repair was construed as exempting the lessee from waste 
to the extent of the repairs by the lessor, which being in 
excess of the power rendered the lease void (A). A lease 
made "without impeachment of waste, excepting volun- 
tary waste," was held to leave the tenant liable for wilful 
waste, and to give him no further right or interest in 
the timber than an ordinary tenant for life (/). The 
phrase " without impeachment of waste by any action," or 
" without being impleaded for waste," is construed as 
excepting only the liability to an action for the waste, but 
without affecting the property in the waste committed, as 
in trees cut down, which remain the property of the 
lessor. Such words bar the lessor of his action for damages, 
but not of his property (m). 

Tenant for life or for years, without impeachment of Rights of 
waste has all the rights of use and profit of tenant in fee Jl^^^l^b'. 
simple. He may cut down timber or dig minerals during ment of waste, 
his term and sell them, and appropriate the proceeds to his 
own use. But he has a power only, which will produce an 
interest in him, if he executes it or gives authority to 
another to do so, during the continuance of his estate ; but 
such power and authority ceases with his estate (n). Where 



(i) Per cur. Figot v. Bullock, 1 
Yes. jnn. 483 ; Aston y. Aston, I 
Vee. sen. 265; Co. Lit. 64*; 
Toaker v. Anwsley, 5 Sim. 235. 

(A) TeUowly V. Gower, II Ex. 
274; 24 L. J. Ex. 289; Doe v. 
BettisoH, 12 East, 305 ; see Davies 
V. Davies, L. R. 38 C. D. 499 ; post, 
p. 92. 

(Z) Garth V. Cotton, 1 Vee. sen. 
624; 1 Vir. & T. L. C. 641, 3rd 



ed. ; but see Vincent y. Spiccr, 22 
Beav. 380 ; 26 L. J. C. 689. 

(m) 11 Go. 82 *, Bowies' Case. 
See ante, p. 19. 

(«) Per cur. Bowles^ Case, 11 Co. 
82*; Heath, J. Attersolly. Stevens, 
I Taunt. 198 ; Gent y. Harrison, 
Johns. 677 ; 29 L. J. C. 70; 
Cholmeley y. Baxton^ 3 Blng. 207 ; 
8. C, Cockerell y. Cholmeley, 10 B. 
& C. 564, cited ante, p. 17. 



24 



irSES AND PROPITS OP LAND. 



Equitable 
waste. 



Waste under 

Judicature 

Act. 



trustees, in exercise of a general power of sale sold the 
land, excepting the timber, and the tenant for life impeacli- 
able of waste sold the timber valued separately to the 
same purchaser and received the purchase-money, it 'was 
held that the sale was void ; for the trustees had no power 
to sell the land without the timber, and though the tenant 
for life might cut all the timber during his life, yet he had 
no power to sell the timber standing (o). Where tenant for 
life without impeachment of waste, under a power to sell 
with consent of trustees and with trust for reinvestment, 
sold the estate with the timber upon it, it was held that 
the tenant for life was not entitled to the proceeds of the 
timber, because it was sold under the power and not in his 
own right {p). So where tenant for life with power to cat 
certain timber sold the settled land under the Settled Land 
Act, it was held that he was not entitled to the value of 
the timber ; but that it must be treated as capital money 
under sect. 21 of the statute (q). Tenant for life " without 
impeachment for waste," like a tenant in fee simple subject 
to executory limitations, is restrained from the committing 
of " equitable waste ;" for it is considered in equity that 
where land is settled for estates for life and in remainder, 
the intention must be that the land should be substantially 
preserved and delivered over to the successive tenants in its 
integrity. Therefore while a tenant in possession of an 
estate " without impeachment of waste" is allowed his 
legal rights to the extent of taking all reasonable use and 
profit from the land, he is restrained from unreasonable 
destruction of the settled property to the disappointment 
of the futiu-e objects of the settlement (r). By the Judica- 
ture Act, 1873, 36 & 37 Vict. c. 66, s. 25 (3), "an estate 



(o) Cholmeley v. Paxton^ 3 Bingf. 
207; Coekerell v. Cholmeley^ 10 B. 
& G. 664 ; 1 Bubs. & M. 424 ; 1 
CI. &F. 61. 

(jo) Boran v. Wiltshire, 3 Swanst. 
699. 



{q) Re Lletcellin, L. R. 37 C. D. 
317 ; 67 L. J. C. 316. 

(r) Vane v. Barnard, 2 Vem. 
738 ; L. Hardwicke, L. C. Atton 
V. Aston, 1 Ves. sen. 264 ; Garth v. 
Cotton, 1 VIT. & T. L. C. 674, 
3rdcd. 



CHAF. II. POSSESSORY RIGHTS OF TENANTS. 23 

for life without impeachment of waste shall not confer, or 
be deemed to have conferred upon the tenant for life any 
legal right to commit waste of the description known as 
equitable waste, unless an intention to confer such right 
shall expressly appear by the instrument creating such 
estate." 

The general liability of a tenant for waste may also be Covenanta 
modified, and maj be wholly superseded by the express ^^^^^^ 
covenants and conditions of the lease respecting the mode u^^e of land. 
of using the demised premises («). If the lessee covenants 
merely against waste, that is, to the same effect as the 
common law liability for waste, the remedy by action 
of waste is retained, notwithstanding the covenant ; but if 
the covenant varies the liability the remedy lies upon the 
covenant (t). — In the absence of express covenant there is ImpKed 
implied in law, for the convenience of remedy, a contract tenaS! 
or obligation on the part of the lessee, to use the demised 
premises in a tenant-like manner, relatively to the nature 
of the premises ; but which is nothing more in substance 
than the obligation concerning waste arising from the 
mere relation of landlord and tenant (e/). No such con- 
tract is implied where the tenant holds under an express 
contract providing for the same matter («?). 

Tenant at will has the possession of the land, and all TeDant at 
the uses and profits that are incident to mere possession ; 
but he is liable for acts of waste, in cutting down trees or 
in pulling down houses or the like, as substantive tres- 
passes. " For when tenant at will takes upon him to do 
such things which none can do* but the owner of the land, 
these amount to the determination of the will and of his 
possession, and the lessor shall have a general action of 
trespass without any entry." An action of waste would not 

U) Jonet V. mil, 7 Taunt. 392. (m) Fowlei/ v. Walker, 6 T. R. 

(0 Kinlyside v. Thornton, 2 W. 373 ; DUtrichsm v. Oiubelei, 14 M. 

Bl. 1111 ; Jones v. Sill, 7 Taunt. & W. 860. 

392 ; Marker v. Kenrick, 13 C. B. (r) Standen v. Chrimas, 10 Q. B. 

188 ; 22 L. J. C. F. 129. 141 ; Joncn v. HiU, 7 Taunt. 392. 



26 



trSES AND PROFITS OF LAND. 



Tenant of 
copyhold. 



Wasto by 
copyholder. 



lie against tenant at will, either at common law or nnder 
the statutes which gave the action of waste against tenant 
for life and tenant for years (?r). 

A copyholder, or tenant at will of the lord according to 
the custom of the manor, has the uses and profits that are 
attendant on the possession of a tenant at will, the land 
for all other purposes remaining the property of the lord. 
The lord's rights are subject to the possessory rights of 
the tenant, and therefore the lord cannot enter to cut 
timber or to take minerals or to exercise any proprietary 
rights, without the consent of the tenant. An entry of 
the lord for such purposes, during the continuance of the 
copyholder's tenancy and without his leave, would be an 
act of trespass. But by special custom in some manors the 
lord or the tenant may be entitled to timber or minerals 
absolutely and immediately (a?). — Voluntary or wilful waste 
by a copyholder determines the will and is a forfeiture of 
the tenancy (y). The lord has no remedy against a copy- 
hold tenant by action of waste, and therefore must proceed 
for the forfeiture ; but in cases where forfeiture is an in- 
adequate remedy he may obtain an injunction, as where 
the chief value of the land is in the timber or minerals 
wasted (2) ; . and he may recover the proceeds of the 
waste (a). 



Equitable 
tenancies. 



A tenant in possession under an equitable title has the 
same possessory rights and liabilities as a tenant of the 
corresponding legal estate, whether his estate be in fee or 
for life or for years ; and the tenant for a limited estate 
for life or years is equally impeachable for waste, imless 



(w) Ante^ p. 19 ; Lit. s. 71 ; 
Co. Lit. 67 a ; Counter of Shrews- 
bury's Case, Gto, Eliz. 777 ; 6 Co. 
13 A; Oibson ▼. WelU, 1 B. & P. 
N. R. 290 ; Harnett v. Maitland, 
16 M. & W. 267. 

(ar) HeyeUm v. Smith, 13 Co. 67 ; 
Dench v. Bampion, 4 Ves. 700 ; 
EardUif v. Granrille^ 45 L. J. C. 
669 ; ii. R. 3 C. D. 826 ; Att.-Gen. 



V. Tomline, L. R. 6 C. D. 750 ; 46 
L. J. C. 664. 

iy) ScriTen on Cop. 442, 4th ed. ; 
Doe V. Burlington, 6 B. & Ad. 507. 

{z) Eldon, L. C, Richards v. 
Kobie, 3 Mer. 673, overruling 
Lougrhborough, L. C., Dench v. 
Bampton, 4 Ves. 706 ; Farrott y. 
Fainter, 3 K. & K. 639. 

(a) Ante, p. 20. 



CHAP. II. POSSESSORY RIGHTS OF TENANTS. 27 

expressly licensed to be tmimpeachable (a). TJnder the old Judicature 
system of distributed jurisdiction between Courts of law ° .' 
and equity, the trustee having the legal title was con- 
fiidered as the owner at common law and might have an 
action of ejectment to recover the possession even from the 
cestui que trust, who was considered as a stranger to the 
land and had no legal remedy in his own name ; but the 
Court of Chancery protected the possession of the latter by 
granting an injunction against ejectment, and by making 
the trustee accountable for all profits received by him (b). 
TJnder the new system of the Judicature Acts, the legal 
and equitable titles are equally recognized in all the divi- 
sions of the High Court of Justice as the circumstances 
may require ; and the beneficial title prevails according to 
the principles of equity (c). 

Special or active trusts to receive and apply the profits Active trusta. 
of land, to raise money-charges, and for sale and conversion, 
may require the trustee or legal owner to retain the pos- 
session of the land in .order to carry out the trusts and 
purposes declared respecting it, and to secure its due 
protection and management ; and in such cases the cestui 
que trust or equitable owner, in general, acquires no right 
to the possession or use of the land in specie. But the 
Court exercises a jurisdiction to admit the equitable owner 
into the possession under circumstances which render it 
safe arid convenient to execute the trust in that maimer, 
upon his giving security for the permanent maintenance 
of the property ; as in cases where the personal occupation 
of the trust property, instead of the mere receipt of the 
rents and profits, is specially beneficial to the cestui que 
trust and consistent with the performance of the trust (d). 

(a) Arden, M. R., Fhilips v. {e) The Judicature Act, 1873, 

Brydget^ 3 Vea. 127 ; Fry, L. J., ss. 24, 26. 

Be Ridge, L. R. 81 0. D. 607 ; 66 (d) Leach, V.-C, TMy, Lister, 

L. J. 0. 266. 6 Madd. 432 ; Baylies v. Baylies^ 1 

{b) Ooodtitle v. JmeSy 7 T. R. 50 ; CoU. 637 ; Denton v. Denton, 7 

Kaye v. Bowell, 1 Ves. jun. 408 ; Beav. 388 ; see Fuyh v. Vattghan, 

Jenkins v. Milford, IJ. & W. 035. 12 Beav. 617. 



28 USES AND PROFITS OF LAND. 

So where settled land is charged merely with the payment 
of sums of money and is adequate to satisfy the amount, 
the Court will in general let the equitable tenant into 
possession upon his giving security for the charges, and 
an undertaking against waste {e). Where the trustees 
of settled estates were directed to keep the buildings in 
repair and to pay the surplus rents to a tenant for life, the 
latter was allowed the possession and management of 
the estate upon giving an undertaking to repair the 
buildings {/), 

(e) Blake v. BunhHry^ 1 Ves. jun. {/) Re BentUy, Wade v. JFiUoHy 

194 ; Jenkins v. Milford, IJ. & W. 64 L. J. C. 782 ; PowysY. Bitty rat^, 
629. 4 D. K. & a. 456. 



{ 29 ) 



CHAPTER III. 
TEEE8, WOODS AND TIMBER. 

Property in trees — grant of trees as separate property — licence to take 

trees — contract of sale of trees. 
Lease with exception of trees. 
Gonstnictton of g^rants and exceptions of trees. 
Distincticn of timber and other trees. 
Right of tenant to cut timber — timber estate— trees not timber— nnder* 

wood, &o. — ornamental and shelter trees. 
Right to cut trees for repairs or fuel, &c. — extent of right — tenant at 

will and copyholder. 
Property in timber cut by tenant — timber cut in collusion with leyer- 

sioner— property in trees not timber. 
Trees severed by wind or accident. 
Timber cut by order or sanction of Court — application of proceeds — 

exercise of jurisdiction — statutory powers to sell timber— l^ttled 

Land Act. 

Land in general, as subject of property, presumptively Property in 
includes all things growing upon the surface, as trees, ^'®*** 
crops, and herbage ; and it is so taken in deeds and wills 
and other legal documents, in the absence of intention 
expressed to the contrary. Hence, trees presumptively 
belong to the owner of the land ; and acts of ownership 
upon the trees are presumptive evidence of ownership of 
the land. A tree growing upon the boimdary of two closes, 
partly in each, presumptively belongs to the two owners as 
tenants in common ; but the presumption would be dis- 
placed by ascertaining in which close it was originally 
planted. If a tree growing in one close sends roots and 
branches into the adjoining close the owner of the latter 
close may cut them, as being a nuisance or encroachment 
upon his property which he is entitled to abate («). 

(0) Waterman v. Soper, 1 L. Amenham Burial Board, L. R. 4 
Ravm. 737 ; Eoldtr v. Coates, Moo. Ex. D. 10 ; 48 L. J. £x. 109. 
& Mai. 1 12 ; per cur. Crouhvrtt t. 



30 



rSES AKD PROFITS OF LAND. 



as separate 
property. 



Grant of trees A grant, or an exception from a grant, of the trees 
growing in certain land, creates a property in the trees, 
separate from the property in the soil ; but with the right 
of having them grow and subsist upon it (h). An estate 
of inheritance in a tree may thus be created ; which would 
be technically described as a fee conditional upon the life 
of the tree (c). Also there may be a grant or exception of 
trees thereafter to grow on the soil (d). The separate pro- 
perty in trees growing and to grow upon certain land, 
admittedly the property of another, may also be proved by 
acts of ownership in cutting and taking away trees from 
time to time ; the presumption from such evidence being 
that the land had been originally granted away, with an 
exception of the trees then growing or thereafter to grow 
in the soil {e), A grant or exception of trees apart from 
the soil implies a right to enter upon the land for the pur- 
' pose of cutting and taking the trees, as a necessary incident 
of the property in the trees (/). — A licence to enter upon 
land and to cut down trees and take them away may be 
granted by the owner of the land without conveying to 
the grantee any property in the soil, or in the trees until 
cut down and taken by him. Such right would be in the 
nature of a profit a prendre or profit to be taken from the 
land of another ; and it is, therefore, treated hereafter in 
connection with that class of rights (g). 

The sale of growing trees or underwood is pnmd facie a 
contract for the sale of an interest in land within the 4th 
section of the Statute of Frauds {h). But if the trees are 
sold as moveable goods, as in the case of a sale of standing 
timber at so much per foot to be delivered by the seller, or 
in any manner that does not give any right to the buyer 



Licence to 
take trees. 



Contract of 
sale of trees. 



{b) liford'a Case, 11 Co. 46*. 

(e) 11 Co. 49 a, LifunPs Case. 

(d) Barrington's Caae^ 8 Co. 1363; 
per cur, Stanley v. Whiter 14 East, 
338 ; Gordon v. Woodford, 27 Beav. 
603 ; 29 L. J. C. 222. 

(<f) Stanley v. White, 14 East, 
332. 



(/) 11 Co. 52a, Zi/ord's Case; 
per eur. Durham and Sutherland 
Ry. Co. V. Walkery 2 Q. B. 965. 

{g) Barrington^s Case, 8 Co. 1363; 
Bailey v. Stevens, 12 C. B. N. S. 
01 ; 31 L. J. C. P. 226. 

(A) Teal v. Auiy, 2 B. & B. 99 ; 
Seorell v. Boxall, 1 T. & J. 396. 



CHAP. III. TREES, WOODS AND TIMBER. 31 

before severance, it is held to be a sale of goods within the 
17th section of the statute (i). 

A lease of land for life or for years, excepting the trees Jjeaae with 

• ^1^111 jij 'ji • exoeption of 

growing upon the land, leaves the trees in the possession trees. 
of the lessor, with the right of having them grow in the 
soil ; the trees then are no part of the demised premises, 
and the fruit or produce of the trees presumptively goes 
with the trees {k). Consequently, the wrongful cutting of 
the excepted trees by the lessee is technically an act of 
trespass, being committed upon property which is in the 
possession of another. But if the lessee wrongfully cut 
trees included in the lease, it is an act of waste and not 
a trespass, and the distinction is to be observed in the 
remedy (/). Consequently also, a covenant by the lessee 
not to cut trees excepted from the lease is purely collateral 
to the land demised ; " for the trees being excepted from 
the demise, the covenant not to fell them is the same as if 
there had been a covenant not to cut down trees upon an 
adjoining estate of the lessor." Therefore the covenant 
will not run with the land ; nor will it run with the rever- 
sion ; but the benefit of it passes to the executor of the 
covenantee (w). — ^Upon a grant of land, excepting the 
trees, in fee simple, the trees are divided in property 
from the land, although in fact they remain annexed; 
and if afterwards the grantor grants the trees to the 
grantee, they are re-united in property as they are in fact, 
and they are again made parcel of the inheritance. But 
upon a lease of land, excepting the trees, for a term of 
life or for years, if the lessor afterwards grants the trees 
absolutely to Ihe lessee, the trees are not re-united in pro- 
perty to the land ; because the lessee has not equality of 
ownership in both, and it would derogate from the grant 

(i) Smith y. Surman, 9 B. & G. (k) Li ford' » Cote, 11 Co. 60 a; 

661 ; Marshall t. Green, L. R. 1 Sullen y. Denning, 5 B. & C. 842. 
C. P. D. 36; 45 L. J. C. P. 163; (/) Ante, p. 18 ; Goodright y. 

but flee Lavery y. Turssell, 67 L. J. Vivianf 8 East, 190. 
C. 570. (w) Raymond y. Fitch, 2 C. M. 

& B. 588. 



82 



USES AND PROFITS OF LAND. 



Construction 
of grants and 
exceptions. 



of the trees for the lessor to retain any interest in 
them (n). 

A grant of " woods" or of "underwoods" is sufficient 
to pass the land itself ; those terms are taken prima facie 
to mean not only the trees growing, hut the land also upon 
which they grow ; and an exception of those words in a 
grant or demise of land prima facie excepts the soil (o). 
But a lease of land " excepting all underwoods, with 
free entry for felling and carrying away of the same at 
times convenient," was held not to except the soU, that 
intention heing shown hy reserving the power of entry {p) . 
An exception of " timber and other trees" does not except 
the soil, but only a right to have the trees grow in the soil ; 
and in a lease, "excepting all timber and other trees, 
woods and underwoods," the words " woods and under- 
woods," used in connection with " timber and other trees," 
were construed to mean woods other than timber and not 
to except the soil(g). An exception in a lease of "all 
timber and other trees" was construed strictly in favour 
of the lessee as confined to trees of a like kind to timber 
trees; and therefore not to except from the lease trees 
commonly known as fruit-trees, such as apple and other 
orchard trees (r). A power of leasing with the exception 
of " all timber trees and trees likely to become timber" 
was held not well executed by a lease which excepted only 
" all timber trees and the bodies of all other trees" ; for, 
as it did not except the top and lop of the trees likely to 
become timber, it demised in terms more than the power 
authorised («). 



Timber trees. Trees are distinguished in law as timber trees and trees 
which do not bear timber, that is, wood fit for building. 



(n) Herlakenden'^ » Cwe^ 4 Co. 62 a; 
Liford*9 CagCf 11 Co. 50 a. 

(o) Co. Lit. 4 b ; ZifardU Case, 
11 Co. 49 i ; Ire's Case, 6 Co. 11 a; 
Whilster v. Faslow, Cro. Jac. 487. 

(p) Shepherds* Touchet by Pires- 



ton, 100. 

{q) ZeghY.JTealdy 1 B. & Ad. 622. 

(r) JFyndham v. Way, 4 Taunt. 
316 ; Bullm t. Denning, 5 B. & C. 
842. 

(«) Doe V. Lccic, 2 A. & E. 705. 



CHAP. III. TREES, WOODS AND TIMBER. 



33 



S J general custom oak aah and elm are timber trees, pro- 
vided they are of sufficient age, and provided they are not 
too old to bear a reasonable quantity of useful wood; 
beech, willow, birch, aspen, maple, and other trees of like 
kind are not generally timber. By special local custom, 
beech, willow and other trees may also be considered 
timber trees; and they will then pass under that, de- 
scription {f). Fir and larch which are usually planted for 
profit by thinning until the whole plantation is cut; or for 
the protection of plantations of timber trees, are not gene- 
rally timber trees (u). — By a general rule of law trees which 
are of the description to bear timber become timber trees at 
twenty years' growth; whether they are timber trees by 
general or by local custom ; no customary variation of this 
rule being admissible (v). 

Timber is not an ordinary profit of land, but is part Rigbtof 
of the inheritance; therefore tenant for life or years, timber. 
unless made unimpeachable for waste, is not entitled to 
cut timber and appropriate it to his own use, although it 
be ripe for cutting or going to decay (tr). — ^Exception is Timber estate. 
made of " timber estates" or land cultivated specially for 
the growth of timber, in which the timber is considered as 
an ordinary profit, like annual or other periodical crops ; 
and tenant for life is entitled to cut and take the timber 
coming to maturity from time to time during his tenancy. 



(t) Ck>. lit.dSa; Chandoty. Tal- 
boty 2 P. Wms. 606; Gordon t. 
Woodford, 27 Beav. 603 ; 29 L. J. 
C. 222; Jeasel, M. B.., Honytcood 
T. Honytcood, L. B. 18 £q. 309 ; 
43 L. J. C. 652. Beech va timber 
in the coun^ of Backs, Aubrey v. 
Fiaher, 10 East, 446; willow in 
the county of Hants, Hob. 219. 

(«) Harrison v. Harrison^ 64 L. 
J. C. 617; L. R. 28 C. D. 220. 
QeePidyeleyY. Rawling, 2 GoU. 276. 

(p) 45 £d. III. c. 3, declaratory 
of the common law, 2 Co. Inat. 

L. 



643 ; Aubrey v. FUher, 10 East, 
446 ; but see Jessel, M. R., Hony- 
wood V. Honywoodf L. R. 18 Eq. 
309; 43 L. J. C. 652, that the 
test of trees being timber may bo 
fixed at a greater age, or may be 
fixed by girth or other considera- 
tions by local custom. 

{w) Ferrot v. Ferrot, 3 Atk. 95 ; 
Seagram v. Knight, L. R. 2 Oh. 
628 ; 36 L. J. G. 310 ; Uonywood 
v. Honywoodj L. R. 18 Eq. 306 ; 
43 L. J. G. 652. If it be dead and 
decayed, ei^epoat, p. 35. 

D 



34 USES AND PROFITS OF LAND. 

subject to the obligation of maintaining the plantations (x). 
It is said that " in many places oak coppice is felled regu- 
larly every sixteen or eighteen years leaving poles which 
are regularly cut every second fall, i, e,y every thirty-two 
or thirty-six years. This timber would constitute the fair 
profits of the land, to which the tenant for life would be 
entitled" (y). 

Trees not Tenant for life may cut and take trees not being timber 

trees ; but subject to impeachment of waste if the cutting 
is injurious to the inheritance. Cutting trees of any kind 
that are beneficial to the property, for protection, ornament 
or other permanent purpose is waste. Thus tenant for 
years may cut and take willows and other like trees, pro- 
vided they do not serve for shelter to a house or for support 
to the bank of a stream or other permanently beneficial 
purpose (z). So it is said, "If the tenant cut down or 
destroy any fruit trees growing in the garden or orchard it 
is waste ; but if such trees grow upon any of the ground 
which the tenant holdeth out of the garden or orchard, it is 
no waste " {a). Where non-timber trees, as larch and fir, 
are grown in the manner of a timber estate, they can be 
cut by tenant for life only in due course of taking 
the profits, and cutting them at other times and for other 

Trees growing purposes is waste (b). — ^Where trees are ffrown for timber 

into tiniber. ■■•i i-i 

which are as yet too yoimg to be tmiber trees ; these a 
tenant for life cannot cut, except in the ordinary course of 
thinning for the improvement of the remaining trees {c). 
And tenant without impeachment of waste may be re- 
strained from cutting timber of insuflScient growth to be 

(x) Honywood y. Honywood, L. (b) Harrison^ s TrusUf L. B. 28 

R. 18 Eq. 309 ; 43 L. J. C. 652 ; C. D. 220 ; 64 L. J. 617; Bate- 

Wigram, V.-C, Ferrand v. Wil* man y. HoUKkin, 31 Bear. 486; 32 

im^ 4 Hare, 374. L. J. C. 6. 

($r) Btigot y. Bagot^ 32 Beav. 517 ; (e) Sony wood v. Honywood^ L. R. 

33L. J. C. 116. 18 Eq. 310; 43 L. J. 0. 652; 

[z) Co. Lit. 63 a ; Phillips v. Cowley v. WellesUvy L. R. 1 Eq. 

Smith, 14 M. & W. 689. . 656, as corrected by Jessel, M. IL 

(a) Ibid. in Honywood y. Honywood. 



CHAP. III. TREES, WOODS AND TIMBER. 35 

taken in the proper course of management (d), — ^A tenant Underwood. 
may cut imderwood in due course of husbandry ; but if he 
destroy the stubs from which it grows, it is waste (e). He 
may cut willow trees growing from stubs, in the ordinary way 
of taking the profit (/). So with oak coppice, where it is 
worked by regular periodical cuttings (g), — ^A tenant may Hedges. 
cut hedges and take the cuttings for his own use, but if he 
cut in ^Lcess or destroy the hedge it is waste (h). — A tenant I>ead wood, 
may cut and take dead trees that are decayed and no 
longer available for timber or other useful ' or ornamental 
purpose, without impeachment of waste (i). 

Tenant for life without impeachment of waste may be Ornamental 
restrained from cutting down trees that have been planted ^''*" 
or left for ornament or shelter or any permanent purpose 
other than mere profit, except so far as may be required for 
the improvement of the rest of the trees or for the improve- 
ment of the estate at large ; in which case the Court would, 
in general, in allowing the cutting, require it to be done 
under the direction and sifpervision of the Court, n such 
tiDaber has been cut without leave, the Court will direct an 
inquiry whether it was properly cut, and in that case only 
wiU allow the tenant for life to have the proceeds for his 
own benefit (k). Trees may be protected as ornamental 
with reference to a house as a place of residence ; or with 
reference to an estate laid out in rides and drives ; or with 
reference to distant views from a house or grounds, for 
which reason a clump of firs two miles from a house has 
been protected as being ornamental (/). On the other hand 
trees originally planted for ornament to a house may cease 



{d) Brydget y. Stephens^ 6 Madd. (») Go. Lit. 53 a ; Manwood v. 

279 ; 2 Swanst. 150. Myme, Djer, 332. 

(<) Co. lit. 53 a ; Baieman v. (k) Baker v. Sebright, L. B. 13 

Hotckkm, 31 Beay. 486 ; 32 L. J. G. D. 179 ; 49 L. J. G. 65 ; Lush- 

G. 6. ington y. Boldero, 6 Madd. 149 ; 

(/) FMUipa V. Smith, 14 M. & 15 Beav. 1 ; 21 L. J. G. 49 ; Ford 

W. 589 ; ante, p. 34. y. Tgnte, 2 D. J. & 8. 127. 

^ Bagot y. Bagot, 32 Beay. 509 ; (/) Doumthire y. Satidgs, 6 Yes. 

33 Li. J. G. 116. 107. 
(A) BerrimanY.JPtaeock, 9Bing. 384. 

d2 



36 USES AND PROFITS OF LAND. 

to be protected upon the pulling down of the house and 
abandonment of the site as a residence (m). 

Right to cut A tenant for life or years is entitled, as an incident of 

repair, &c. ^ tenancy at common law, to cut timber and other trees to 
provide reasonable supplies of wood for the use and main- 
tenance of the demised premises. These were anciently 
termed botes or estovers, mgnifying suppUes or materials, 
and are of the following kind: House botey a sufficient 
supply of wood to repair houses and buildings, and to pro- 
vide domestic fuel ; Plough botCy sufficient wood for repair- 
ing ploughs, and implements of husbandry ; Hay or hedge 
botey for repairing fences, gates, styles, and the like. 
''And these the lessee may take upon the land demised 
without any assignment, unless he be restrained by special 
covenant ; and the same estovers that tenant for life may 
have, tenant for years shall have " («). The right to take 
estovers from land other than that demised is a projii d 
prendre (o). A tenant may take timber to make repairs, 
although he be not compellable to repair, nor impeachable for 
waste in the non-repair. "So if the lessor by his covenant 
undertaketh to repair the house, yet the lessee (if the lessor 
doth it not) may with the timber growing upon the land 
repair it, though he be not compellable thereunto " {p). — 

Extent of These rights must be exercised in a reasonable manner ; 

"^ * the tenant may not cut growing trees for fuel, where there 

is sufficient dead wood; to do so is waste (q). He may 
not cut timber for making fences for new enclosures (r). 
He may not cut timber and sell it for the purpose of pro- 
viding other materials required for repairs with the pro- 
ceeds of the sale ; and if he cuts imsuitable material, it is 
no justification or mitigation of the wrong, that he after- 
wards sold it and applied the proceeds in repairs (s). But 

(m) Miehleihujait y. MxekUthtJoaU^ (p) Go, lit. 54 h, 

1 De G. & J. 504 ; 26 L. J. C. 721. \q\ Go. Lit. 53 b. 

(n) Co. Lit. 41 d; 53 6; Heydon \r) Jfanwoody.Mymejiyyer, ^2. 

T. Smith, 13 Co. 68. (s) Co. Lit. 63 b ; Simmom r. 

(o) See pott, p. 326. Ifortony 7 Bing. 640. 



CHAP. III. TREKS, WOODS AND TIMBER. 37 

it seems that where the availahle timber is inconveniently 
situated, he may sell it on the spot for the purpose of buy- 
ing other timber where it is wanted, in order to save the 
carriage (^). 

A tenant at will, not being liable for repairs, is not Tenant at will 
entitled to estovers of timber for that purpose (u). A copy- holder^* 
holder, as being a tenant at will at common law, would not 
be so entitled ; but the custom of most manors sanctions in 
a greater or less degree the taking of estovers of timber and 
other materials for repairs, fuel, fencing and the like accord- 
ing to the requirements of the tenement («?). The custo- 
mary right of a copyholder is appurtenant to the tenement, 
and independent of the title to the manor, or to the trees, 
which may be granted or excepted from the manor without 
affecting the right of the copyholder (?r). If the copy- 
holder, entitled to cut wood for estovers, cuts for other 
purposes, as for sale, it is waste, which is a ground of for- 
feiture of the tenement, and the lord may bring ejectment 
and is entitled to the timber cut (x). 

As to the property in trees cut wastefully or wrongfully Property in 
daring a tenancy for life or for years, there is a distinction tenant.^ ^ 
between timber trees and trees that are not timber. If 
timber trees be severed during a particular tenancy, 
whether by the tenant or another, the tenant being im- 
peachable for waste, the estate or interest of the tenant in 
the trees is determined by the severance; the trees are 
thereby disannexed from the land and reduced to the 
state of personal chattels, and the property, by the rule of 
common law, vests immediately in the person entitled to 
the first vested estate of inheritance, in fee or in tail. He 
may bring an action to recover the trees, as having become 

(0 Marlborough y. St. John, 6 D. 498 ; Sxcayne's Case, 8 Co. 63 ; Hey- 

k Sm. 174; 21 L. J. C. 381; don y. Smith, 13 Co. 67; Ashmead 

Sotcerby y. Fryer ^ L. R. 8 Eq. y. Sanger, 1 L. Rajm. 651. 
417 ; 38 L. J. C. 617. (w) Stcayne*$ Case, 8 Co. 63. 

(«) Lit. B. 71 ; Co Lit. 67 a. (x) Doe y. JFilson, 11 East, 66 ; 

(f) Scriyen Cop. 424, 4tli ed. ; Blackctt y. Lowes, 2 M. & S. 494. 
East y. Harding, Cro. Eliz. 292, 



38 



USES AND PROFll^ OF LAND. 



his property from the moment they were felled, or an 
action to recover the proceeds of a sale of the trees as 
money received to his use ; he is also entitled to discovery 
of the value of the timber which has been cut down by, 
and is in the possession of, the tenant, or which has been 
sold by him (y). Tenant for life in remainder has no 
claim at law to the timber wastefully cut by the tenant in 
possession ; nor though his own estate be specially licensed 
to commit waste, for such licence would only entitle him 
to cut timber during his own possession (z). But he may 
obtain an injimction to restrain the cutting of trees to the 
detriment of his expectant interest in the future posses- 
sion (^). If the tenant in possession be unimpeachable 
for waste, the trees cut during his tenancy, whether by 
himself or by a stranger, vest in the tenant himself the 
Timber cnt in moment they are cut down (6). — "There is in equity an 
exception where the owner of the first vested estate of 
inheritance has colluded with the tenant for life (impeach- 
able for waste) to induce the tenant for life to cut down 
timber ; and then equity interferes and will not allow him 
to get the benefit of his own wrong." The Court, in 
exercise of equitable jurisdfction to prevent fraud, will 
require the proceeds of any such cutting to be brought 
into Court and invested for the benefit of the successive 
owners under the settlement, exclusive of the tenant for 
life (c). Accordingly, where the tenant in possession and 
the ultimate reversioner agreed to cut timber and divide 
the proceeds, and an intermediate contingent remainder 
in tail afterwards became vested, the Court decreed that 
the tenant in tail was entitled to recover the proceeds of 



coUasion with 
rerersioner. 



(y) Bowie' 8 Case, 11 Co. 81 A ; 
Garth V. Cottony 1 Ves. 624 ; 1 W. 
& T. L. C. 674 ; TFhitJield v. Bevpit^ 
2 P. Wms. 240 ; 3 P. Wms. 266 ; 
Bagot T. Bagoty 32 Beav. 609 ; 33 
L. J. 0. 116; ChelmBford, L. C, 
Seagram v. Knight, L. B. 2 Ch. 
632 ; 36 L. J. C. 310. 

(x) Ante, p. 23 ; Figot v. BuUoek, 
1 Ves, jun. 479 ; per eur, Gent v. 



Harrison, Johns. 617; 29 L. J. C. 
70. 

{a) Ferrot v. Ferrot, 3 Atk. 94. 

(bSAnte, p. 23 ; Fgfie v. Dor, 1 
T. K, 66; Be Barrington, L. B. 
33 C. D. 627 ; 66 L. J. C. 177. 

{c) Jeflsel, M. R., Monffwood ▼. 
BTonytcood, L. R. 18 £q. 311 ; 43 
L. J. G. 662 ; Zuthington t. Bol- 
dero, 16 Beav. I ; 21 L. J. C. 49. 



CHAP. 111. TREES, WOODS AND TIMBER. 



39 



the timber (d). So where the tenancy for life in possession Timber trees. 
and the ultimate reversion were Tested in one person, sub- 
ject to intervening interests, he was restrained from cutting 
timber for his own benefit to the exclusion of other persons 
intermediately interested {e). 

" As to the property in trees not timber, that is, those Property in 
which are not timber either from their nature or because timlw.^' 
they are not old enough or because they are too old, the 
property is in the tenant for life. If he outs them down 
wrongfully and commits waste, the property is still in him 
though he has committed a wrong and would be liable to 
an action in the nature of waste " (/). — ^Where a lessor 
entered upon the demised premises and cut down oak 
pollards which were imfit for timber ; it was held that the 
property in the trees cut vested in the tenant (^). And 
where a hedge was cut by a stranger, it was held that the 
property in the cuttings belonged to the tenant and not to 
the landlord (A). 

By the general rule of the common law timber severed Trees seveied 
by wind or other accident, also timber severed by a aocidMit.^' 
trespasser, become the property of the person entitled to 
the first vested estate of inheritance, in fee or in tail ; 
unless the tenant in possession be unimpeachable of waste, 
in which case the timber so severed vests in him, as being 
entitled to cut it himself for his own use during his 
tenancy (f). Trees, other than timber trees, severed by 



(d) Garth v. Coilon, 1 Ves. 624 ; 
1 White & T. L. 0. 623. 

{e) Wiliianu v. Duke of Bolton, 
1 Cox, 72 ; 3 P. Wms. 268, n ; Sireh 
Wolfe y. B'xreh, L. R. 9 Eq. 683 ; 
39 li. J. G. 345. 

(/) ffonywood y. Jlonvwood, L. 
B. 18 Eq. 811 ; 43 L. J. C. 652, 
Jeasel, M. B. who added, '* I am 
not sure that would follow in 
equity, my impreeaion is that 
equity would say that he should 
not he allowed to take the henefit 
of his own wrong, and that he 
should not be allowed to take the 



property in those trees he cuts 
down. This is not the case at 
common law, and I am not aware 
that the exact point has been 
decided in equity." As to waste 
in cutting young timber trees, see 
ante, p. 34. 

(ff) Channon y. Fateh, 5 B. & 0. 
897. 

(h) Berriman y. Feaeoek, 9 Bing. 
384. 

(i) iV«« V. -Dor, 1 T. B. 66 ; Re 
JBarrinaton, L. B. 33 G. D. 627; 
66L. J. C. 177. 



40 USES AND PROFITS OY LAND. 

wind or other accident, become the property of the tenant 
in possession, whether impeachable of waste or not (/}. 
WindfallB of But the Court of Chancery has jurisdiction to order the 
proceeds of windfalls to be invested to form a fund for ihe 
benefit of all parties according to their interests in the 
settled estate (^•). "If a large quantity of timber is 
destroyed by a storm, upon an estate, that would be laid 
out in the purchase of stock, and the interest of the fund 
would be paid to the successive tenants for life"(/). 
Upon a timber estate where the tenant for life is entitled 
to cut timber in due course as part of his ordinary profit, 
the proceeds of windfalls would be invested and applied 
as nearly as possible in the same manner as the actual 
profits of cutting (m). Trees are not considered as wind- 
falls unless severed from the soil ; trees thrown down by 
the wind which still remain attached to the soil, belong to 
the inheritance ; the attachment or severance being a 
question of fact as to each particular tree (n). 

Timber cnt by Where land is settled, and the tenant for life is impeach- 
ti^^of O^rt." aWe for waste, there is no legal right to cut timber during 
his tenancy, though it be ripe for cutting or going to decay. 
Under such circumstances the Court of Chancery exercises 
jurisdiction to order the cutting of timber for the preserva- 
tion and improvement of the property, upon application 
made for that purpose by any of the parties interested (o). 
Trustees of the settled estate may have a power of cutting* 
timber given to them by the settlement without applica- 
tion to the Court ; and, in general, they would be justified 
in doing in this respect without a previous order whatever 

(j) 11 Co. 81 a. Bowlegs Cote, v. Boldero, 16 Beay. 1; 21 L. J. 

cited by the Court in Iboker v. C. 62. 

Annealey^ 6 Sim. 240 ; Baieman 7. (m) Harrison t. HarrUon, L. B. 

Jlotchkin, 31 Beav. 486; 32 L. J. 28 C. D. 220; 64 L. J. C. 26; 

C. 6 ; Sonywood v. Honywoodj L. anU, p. 33. 
B. 18 Eq. 306 ; 43 L. J. C. 662. (n) Be Aifulie, L. B. 30 C. D. 

{k) Bagot t. Bagot, 32 Beay. 609 ; 486 ; 66 L. J. C. 616. 
33 L. J. C. 116. (o) Bewick ▼. Whitfield, 3 P. 

(/) Bomilly, M. B., Luehingttm Wms. 266. 



CHAF. III. TREES, WOODS AND TIMBER. 



41 



the Court upon application would order them to do. A 
tenant for life has no saoh power of cutting timber for the 
benefit of the property, and if he does so without previous 
sanction, the Court will not subsequently ratify the act (p). 
A power of sale in trustees of settled estates does not 
authorize a sale of the land and of the growing timber 
Beparately without an express authority for that purpose ; 
and a sale in excess of the power in this respect would be 
void both at law and in equity (g). — ^The Court requires AppUoation 
that timber cut by its order and sanction shall be converted tinSJarT^^ 
into money and invested to form a fund representing the 
growing timber, and following as nearly as possible the 
uses and limitations of the settiement. The income of this 
fund is payable to the tenant for life and to the other 
successive owners of the estate, until the vesting of the 
first absolute estate of inheritance in possession, the owner 
of which, as he could himself have cut the timber, then 
becomes entitled to have the whole fund (r). The tenant 
for life in possession, though impeachable for waste, and 
therefore without any right in the timber as such, is 
allowed the income of the fund in right of his possessory 
use of the trees while standing («). A tenant for life 
** without impeachment of waste," on coming into posses- 
sion, becomes absolutely entitled to the capital fund 
representing the timber, in right of his power to cut and 
take the timber absolutely for his own use during his 
possession (^). The fund representing the timber cut so 
far retains the character of the real property from which it 



(p) Chelmsford, L. C, Seagram 
▼. ICniffht, L. R. 2 Ch, 630 ; 36 
li. J. C. 310 ; Benton v. Denton, 7 
Bear. 388. 

{q) Cholmeley y. Faxton, 3 Bing. 
207 ; 8* C. nom,y Cockerell v. Choi' 
meley, 10 B. & C. 564 ; 1 CI. & 
F. 61 ; Buckley v. Howell, 29 Beav. 
646; 30L. J. C. 524. 

(r) Jeasel, M. R., Honywood v. 
Honytoood, L. R. 18 Ch. 311^ 43 
L. J. C. 662; ShadweU, V.-C, 



Waldo Y. Waldo, 12 Sim. 112; Mild- 
way V. Mildmay, 4 Bro. C. C. 76. 

(«) Tooker v. Annetley, 5 Sim. 
236 ; Waldo v. Waldo, 7 Sim. 261 ; 
12 Sim. 107 ; Bagot y. Bagot, 32 
Beav. 609 ; 33 L. J. C. 116. 

(0 Waldo V. Waldo, 12 Sim. 107 ; 
FhiUipa t. Barlow, 14 Sim. 263; 
Oent Y. Harriton^ Johnaj 617 ; 29 
L. J. C. 68 ; Lowndes y. Norton, 
L. R. 6 C. D. 139 ; 46 L. J. C. 
613. 



42 



USES AND PROFITS OF LAND. 



Ornamental 
timber. 



Exeroiseof 
jorifldiodon. 



is deriyed, that upon the death of the owner of the inherit- 
ance before possession, his claim to the fund passes to his 
heir as real estate (ti). Timber severed during the tenancy 
of a person absolutely entitled becomes a personal chattel, 
and passes to his executor and not to a devisee of the 
land (v), — The same course is adopted " where ornamental 
trees, or trees which could not otherwise be cut down even 
by a tenant for life luiimpeachable for waste, are cut 
down ; the proceeds are invested so as to follow the uses of 
the settlement " (tr). A tenant unimpeachable for waste is 
entitled absolutely to the ornamental trees properly cut 
down during his possession by the order or with the 
sanction of the Court, or to the fund representing the 
proceeds (ar). 

" The principle upon which the Court acts in directing 
timber to be cut is not the personal benefit of the parties, 
but the benefit of the estate itself." The Court will not 
order or sanction the cutting of timber, tmless there are 
special circumstances rendering the cutting necessary or 
advantageous for the preservation or improvement of the 
property ; as that the timber is going to decay or is over- 
crowded (y). Accordingly, in the case of an infant tenant 
in tail in possession (whose estate of inheritance entitles 
him to the timber), the Court will authorize the cutting of 
all timber which is fit and proper to be felled in a due 
course of management ; but in the case of a tenant for life 
in possession, impeachable of waste (who has no right to cut 
any timber), the Court will only authorize the cutting of 
such timber as is decaying or which it is beneficial to cut 
by reason that it injures the growth of other trees (s). 



(«) Field V. BrowHy 27 Beav. 90. 

{v) Be Ainalie, L. R. 30 G. D. 
486; 65 L.J. G. 615. 

{w) Jessel, M. R., L. K. 18 Eq. 
311; 43 L.J. G. 652; Luthington 
V. BoUUro, 16 Bear. 1 ; 21 L. J. G. 
49. 

(x) Baker t. Sebright, L. R. 13 
G. D. 179 ; 49 L. J. G. 65. 



(^) Hussey y. Sueseg, 6 Madd. 
44 ; Tooker y. Anneaifg, 5 Sim. 
240 ; Seagram y. Knight, L. R. 2 
Gh. 628; 36 L. J. G. 310. 

(«) Jffusseg T. Hu98ey, supra; 
Tollemaehe v. ToUemache, 1 Hare, 
456 ; Ferrand v. Wilson, 4 Hare, 
382. 



J 



CHAP. III. TREES, WOODS AND TIMBER. 43 

By the Setfled Estates Act, 1877, 40 & 41 Vict. o. 18, Statntoiy 
88. 16, 3i (re-enacting 19 & 20 Vict. o. 120, s. 11), " It gJTte.*^"^ 
shall be lawful for the Court from time to time to authorize 
a sale of the whole or any parts of any settled estates, or 
of any timber (not being ornamental timber) growing on 
any settled estates " ; and to apply the money received 
on any sale in the purchase or redemption of incumbrances; 
or in the purchase of hereditaments to be settled in the 
same manner as the hereditaments in respect of which the 
money was paid ; or in payment to any person becoming 
absolutely entitled. Under this enactment the Court 
ordered money arising from a sale of timber to be ex- 
pended in erecting iTew farm buildings, upon the prin- 
dple that the erection of buildings is substantially the 
same thing as the purchase of an estate (a). — By the 
Settled Land Act, 1882, 45 & 46 Vict. c. 38, s. 35, SettfedLand 
"Where a tenant for life is impeachable for waste in 
respect of -timber, and there is on the settled land timber 
ripe and fit for cutting, the tenant for life, on obtaining 
the consent of the trustees of the settlement or an order of 
the Court, may cut and sell that timber, or any part 
thereof." And " three-fourth parts of the net proceeds of 
the sale shall be set aside as and be capital money arising 
under this Act, and the other fourth part shall go as rents 
and profits." Tenant for life without impeachment of 
waste, selling a settled estate under the powers of the 
Settled Land Act, upon conditions of sale that the pur- 
chaser is to take the timber at a valuation, is not entitled 
absolutely to the price of the timber ; it is an addition to 
. the price of the estate which must be treated as capital 
money payable to the trustees under the 21st section of 
the Act (J). 

(a) Re Newman's Ettatety L. R. {b) Re Zlewellin, L. R. 37 C. D. 

9 Ch. 6S1 ; 43 L. J. C. 702. 317 ; 67 L. J. G. 316 ; see B<>ran v. 

Wiliahire, 3 Swanst. 699. 



44 USES AND PROFITS OF LAND. 



CHAPTER IV. 
GROWING CROPS. 

Emblements or growing crops — pass to executor — may be taken in 

execatlon — may be distrained. 
Tenant's right to emblements— tenant for years — tenant from year to 

year — tenant at will — at sufferance — wrongful possession. 
Growing crops pass with land by conveyance — by devise. 
Sale of growing crops separately— Statute of Frauds— Bills of Sale 

Act. 

Emblements. The term '* emblements " is used to designate the grow- 
ing crops cultivated by the labour and at the cost of the 
tenant in possession, which are treated in law for many 
purposes as moveable chattels and as the personal property 
of the tenant, because his intention in cultivating them is 
to increase his personal estate rather than to benefit the 
heir or successor to the land. The class of things thus 
designated includes the annual crops of com and grain, 
hemp and flax, hops, potatoes, turnips and the like, clover 
and artificial grasses ; but not " growing grass which is the 
natural and permanent produce of the land renewed from 
time to time without cultivation " {a). It does not include 
timber or other trees, whether mature or immature ; nor 
does it include the growing fruit of trees, as growing crops 
of apples and pears (J). The term as used in law conveys 
only the present annual crop, and not the future crops of 
cultivated products which bear annual crops for several 
successive years, as of clover and artificial grasses {c). 

(a) Go. Lit. 65 b; Wms. Ex. 697, v. Soherts, 6 B. & G. 835 ; JRodtceU 
4th ed. ; i9^ eur. Evan* t. Jtobertt, v. FhillipMy 9 M. & W. 606. 

6 B. & G. 832. [e) Oravet t. Weld, 6 B. & Ad. 

(b) Co. Lit. 65 b; per enr. Evans 119. 



CHAP. IV. GROWING CROPS. 45 

Gkrowing crops are treated in law as personal chattels for 
the following purposes : — ^They are transmissible at death Paae to 
as personal estate. Upon the death of a tenant in fee in ®^®°^ '' 
possession, whether tenant in fee simple or in fee tail, also 
upon the death of a tenant for life in possession, the emble- 
ments or then growing crops pass to the executor or ad- 
ministrator of the deceased tenant, and not, with the land, 
to the heir or reversioner (d). So, in the case of a tenant 
for a certain term of years, if he shall so long live, whose 
tenancy is detenmned by his death within the term, 
the emblements pass to his executor {e). — Growing crops Execution, 
may be taken in execution as personal chattels under a 
writ oi fieri facias. " The sheriff may sell/rwc^w« industri' 
akSf as com growing, which goes to the executor. The 
distinction is between those things which go to the executor 
and those which go to the heir ; the former may be seized 
and sold under the fi. fa,, the latter cannot. The former 
must, therefore, in contemplation of law be considered 
chattels " (/). " But things which give no annual profit, 
or which proceed without the labour of man, are not 
emblements; they go to the heir and cannot be seized 
under afi./aJ^ {g). Thus, " growing grass does not come 
within the description of chattels and cannot be seized as 
such imder a fi, fa. ; it goes to the heir and not to the 
executor ; but growing potatoes come within the descrip- 
tion of emblements and are deemed chattels by reason of 
their being raised by labour and manurance " (h). " Gfrow- 
ing fruit would not pass to an executor, but to the heir ; 
it could not be taken by the executor of a tenant for life, 
or levied in execution imder a writ of fi, fa, by the 
sherifE" (t). By the statute 56 Geo. III. c. 50, growing 
crops are protected from being seized in execution imder a 

(rf) Co. Lit. 56 b ; Wma. Ex. {ff) Seovell v. Boxall, 1 Y. & J. 

699,692,4tlied.; Hardwioke, L. G. 398. 
Lawton v Lawion, 3 Atk. 16. {h) Per cur, Evant y. Hobertt, 6 

{e) Go. Lit. 55 b, B, & G. 832. 

If) Bayl^, J. Evans y, Eoberts, (i) Per eur, Eodwell v. Phillips, 9 

5 B. & C. 835. M. & W, 505. 



46 



USES AND PROFITS OF LAND. 



BiBtrees. 



fi.fa.y where the tenant is restrained by covenant in his 
lease from removing them off the premises. — ^By the statute 
11 Geo. II. c. 19, s. 8, growing crops are made liable to 
a distress for rent ; and when cut and gathered they may 
be sold under the distress. If distrained, they may be 
replevied as goods and chattels {j). 



Tenant's 
right to em< 
blemonts. 



Upon the expiration of a tenancy for years by mere 
lapse of time, the tenant retains no right to the then grow- 
ing crops, imless by stipulation in his lease, or by a custom 
of the country respecting them ; because the termination 
of his term being certain he could provide against it. So, 
if a tenant determines his tenancy by his own act, as by 
himself giving notice to quit, or surrendering the lease, or 
committing waste or breach of covenant or condition 
which induces a forfeiture, he is not entitled to take the 
emblements (A*). As where a woman holding an estate 
during widowhood, after sowing the land, married, it was 
held that her estate being determined by her own act, 
neither she nor her husband could claim to take the crops (/). 
So a lessee who has forfeited his Tease by his bankruptcy, 
under a proviso for re-entry in that event (m) ; and the 
incumbent of a living who determines his estate in the 
glebe by voluntary resignation, is not entitled to take the 
emblements (n). — But if the tenancy is determined by an 
uncertain event over which the tenant has no control ; as 
in the case of a tenant pur autre vie whose tenancy is de- 
termined by death of the cestui que vie (p) ; or of a tenancy 
for years imder a lease granted by a tenant for life, 
which is determined by the death of the lessor ; the tenant 
is entitled to take the emblements, and to enter upon the 
land so far as is necessary to take them, after the deter- 



(j) See post, p. 448. 

(k) Co. lit. bb b ; Wigglesworth v. 
i>a//Mon,DQUgl.20I; 1 Smith, L.C.; 
see Mansel v. Norton ^ L. B. 22 C. 
D. 769. 

(/) OlantTs Caae, 5 Co. 116 a. 



(m) Davis v. Eyton, 7 Bing. 154. 

(;i) Bulwer v. Bulwer, 2 B. & 
Aid. 470. 

(o) Graves v. TFeld, 6 B. & Ad. 
105. 



CHAP. IV. GROWING GROPS. 47 

mination of his tenancy (jd). — It is a "general rule of 
law applicable to cases of this description, that where a 
tenant of land has an uncertain interest which is deter- 
mined either by the act of God or the act of another, there 
he diall have the emblements ; but that is not so where 
the tenancy is determined by his own act " {q), — ^Thus the 
lessee of a woman who holds during widowhood, and whose 
estate is determined by her marriage, is entitled to take 
emblements ; and the lessee of the glebe of an incumbent 
who resigns; for in these cases the tenancy is determined 
by the act of another and not by an act of the tenant 
himself (r). — In the case of a tenancy determining by the 
death or cesser of the estate of any landlord entitied for 
his life or for any uncertain interest, it is provided by 
14 & 15 Vict. c. 25, s. 1, that instead of claims to emble- 
ments the tenant shall continue to hold until the expiration 
of the then current year of his tenancy; and the succeeding 
landlord shall be entitied to recover a fair proportion of 
the rent for the period elapsed from the cesser of the estate 
of his predecessor ; and he may recover this rent by action 
or by distress («). 

Upon the above principles a tenant from year to year Tenancy from 
whose tenancy is determined by notice to quit from the ^®" ^ ^^'* 
landlord is entitled to enblements, because of the uncer- 
tainty of the notice (t). Under the Agricultural Holdings 
Act, 1875, 38 & 39 Vict. c. 92, s. 51, a year's notice is 
required for tenancies from year to year of a^cultural 
holdings within the Act, in the absence of special agree- 
ment respecting the notice. The year's notice would 
allow the tenant full time for taking an annual crop. — ^A Tenant at 
tenant at will is entitied to emblements upon the determi- 
nation of the tenancy by the will of the lessor, but not if 



1 



p) Co. lit. 65 a, b. (a) Raines v. Welehf L. R. 4 

q) Bulwer v. Bulwer, 2 B. & C. P. 91 ; 38 L. J. 0. P. 118. 

Aid. 471. (0 Kingsbury t. CoUins, 4 Bing. 

(r) Fereur. OlandY. Burdwick, Cro. 202. 

Ehz. 460 ; Buhcer t. Bultoerj sup. 



48 



USES AND PROFITS OF LAND. 



Tenant at 
sufferance. 



Wrongful 
possesaion. 



he determines it by his own will(u). ^'The law is that 
if the estate of a tenant at will be determined either 
by his death or the act of his landlord, he in the one 
case and his executors or administrators in the other shall 
reap what he has sown; and that he or his represen- 
tatives shall have free liberty to come upon the land to 
cut and carry away the com." Consequently the landlord 
can only let the land subject to this right, and he cannot 
distrain the crops for the rent of the succeeding tenant (r) . — 
A tenant merely at sufferance has no claim to emblements 
upon the determination of his possession. A mortgagor 
in possession at law, in the absence of any special agree* 
ment as to his relation to the mortgagee, is no more than 
a tenant at sufferance ; he is Hable to be treated as tenant 
or as trespasser at the option of the mortgagee and without 
any notice ; and upon dispossession by the mortgagee he 
is not entitled to emblements, the mortgagee being entitled 
to enter and take everything belonging to the land as part 
of his security {ic). But it seems that a lessee of the mort- 
gagor in possession, if dispossessed by the mortgagee, is 
entitled to emblements, because the mortgagee must be 
taken to have acquiesced in the letting (x). Now by the 
Conveyancing Act, 1881, 44 & 45 Vict. c. 41, s. 18, it is 
provided that, " a mortgagor of land while in possession 
shall as against every incumbrancer have, by virtue of this 
Act, power to make from time to time any such lease of 
the mortgaged land or any part thereof as is in this 
section described and authorized." But "this section 
applies only in case of a mortgage made after the com- 
mencement of this Act." — A wrongful possession, as that 
of a disseisor, does not entitle to emblements upon eviction. 
Where the estate of the tenant is defeasible by a right 
paramoimt, he is not entitled to emblements as against the 



(ti) Lit. 8. 68 ; Go. Lit. 66 b; 6 
Go. 116 a. 

(r) Eaton v. Southby, Willes, 131. 
(tr) Manafield, G. J. Keech v. 



Jffall, Dougl. 22 ; Doe v. MaUey^ 8 
B. & 0. 767 ; ante, toI. i. p. 290. 

(x) Sanders v. Lavit^ L. B. 15 
Q. B. D. 218 ; 64 L. J, Q. B. 676. 



CHAP. IV. GROWING CROPS. 



49 



superior title (y). A tenant in wrongful possession, iagainst 
'whom a judgment in ejectment has been obtained, can 
make no claim to emblements after the date of the claim 
in the ejectment ; nor can they be seized under an execu- 
tion against him (z). 



Ghrowing crops of all kinds, as being annexed to the Growingr 
soil, presumptively pass by a conveyance of the land, and with the land. 
by a mortgage of the land; unless expressly excepted. 
Upon the bankruptcy of a mortgagor in possession, they 
belong primd facie to the mortgagee, as against the receiver 
in the bankruptcy ; but if severed at the time of the bank- 
ruptcy, they pass to the receiver (a). — They pass also by a Devise, 
devise of the land, unless expressly excepted, or separately 
bequeathed (b). A bequest of " farming stock," or of " the 
stock upon a farm," or of " live and dead stock," or in 
other like terms, passes the growing crops to the legatee (c). 

The growing crops may be sold and assigned separately Sale of croi s 
from the land, and crops to be grown on land in future ^^^^^ ^ ^ ■ 
years may be the subject of separate sale and assign- 
ment (rf). And the right to emblements or growing crops 
apart from the land, whether arising from sale or from 
tenant right, implies the accessory right of entering upon 
the land to take and carry away the crops in due course 
of husbandry, and also a reasonable allowance of time for 
that purpose (^). — A contract for the sale of emblements Statute of 
or growing crops separately from the land is "within the 
17th section of the Statute of Frauds, which applies to the 
sale of goods, and not a contract concerning an interest in 



(y) Co. Lit. 66 b. 

{z) Hodgson v. Gaseoiffn, 6 B. & 
Aid. 88. 

{a) BagnaU v. VUlar, L. R. 12 
C. D. 812 ; 48 L. J. C. 695 ; Exp, 
National Mercantile Bank, L. R. 16 
C. D. 104; 60L. J. 0. 231. 

{b) Hargrave* s note ( 1 ) to Co. Lit. 
65 b\ Shep. Touoh. by Preston, 
p. 468. 

(c) Cox Y. Godsalfe^ 6 East) 604, n. ; 



West V. Moore, 8 East, 339 ; Evans 
V. WilUanison, L. R. 17 C. D. 696 ; 
60 L. J. C. 197, dissenting from. 
Vaisey v. Regfiolds, 6 Russ. 12. 

(d) Fetch Y, Tutin, 15 M. & Wi 
110; Grantham y. Haivlei/, Hob. 
132. 

{e) Lit. ss. 68, 69 ; Co. Lit. 66 a ; 
Doe V. McKaeg, 10 B. & C. 721 ; 
Cornish v. Stubbs, L. R. 6 C. P. 
334; 39 L. J. C. P. 202. 



60 USES AND PROFITS OF LAND. 

land Trithin the 4tli section (/). The sale of pasture or of 
a permanent crop, as of grass, to be cut or fed by the 
buyer, is a contract concerning an interest in land within 
the 4th section (g). 
Bills of sale. By the Bills of Sale Act, 1878, 41 & 42 Vict. c. 31, s. 4, 
" personal chattels," the subjects of bills of sale, are inter- 
preted to mean, amongst other things, "growing crops 
when separately assigned or charged," but not to include 
" growing crops when assigned together with any interest 
in the land on which they grow." By the Bills of Sale 
Act, 1882, 45 & 46 Yict. c. 43, s. 4, a schedule is to be 
annexed to a bill of sale, confining its eifect to the personal 
chattels comprised in the schedule; but s. 6 (1) excepts 
" any growing crops separately assigned or charged where 
such crops were actually growing at the time when the bill 
of sale was executed." The separate assignment is con- 
strued to mean an assignment separately from any interest 
in the land on which they grow, and not also separately 
from other goods (A). The original Bills of Sale Act, 1854 
(repealed by the abov^ Act, 1878), applying to " goods and 
other articles capable of complete delivery," was construed 
not to apply to growing crops (t). If subsequently to the 
granting of a bill of sale including growing crops, they 
are severed by the grantor, they become personal chattels ; 
and the bill of sole must be registered and satisfy aU 
requirements of the Bills of Sale Acts in order to secure the 
crops to the grantee in the event of the grantor becoming 
bankrupt while they still remain in his possession (k). 

(/) Scans V. Roberts, 6 B. & G. (A) Hohertt v. Jioberls, L. R. 13 

829 ; JofiM V. Flint, 10 A. & E. Q. B. D. 794 ; 63 L. J. Q. B. 313. 
753 ; Seovell v. Boxall, 1 Y. & J. (i) Braniom v. Grijits, L. R. 2 

396; Bodwell v. FhillipSy 9 M. & 0. P. D. 212; 46 L. J. C. P. 688; 

W. 601; Leake on Contracts, JErp. Pay«tf, L. R. 11 C. D. 539. 
p. 268. (k) Ejcp. National Mercantile Bank, 

(ff) CroBtleijY. TTadstPorthfe'EtLBt, L. R. 16 C. D. 104; 50 L. J. C. 

602 ; Carrington v. Moots, 2 M. & 231. 
W. 248. 



( 51 ) 



CHAPTER V. 
MINES AND MINERALS. 

Property in mmerals — separate property in minerals — ^power to sell 

minerals separately. 
Ucenee to get minerals — distinction of licence and property — con* 

straction of grant or licence — exclusive licence — ^remedies of 

licensee. 
RelatiTe rights of owners of surface and minerals — right of support 

for surface. 
XiCaae of minerals — right of lessee to the minerals. 
Bights of tenants for life or years to take minerals— open mines. 
Hines opened by order of Court — by trustees under powers of making 

mining leases — under Settled Land Act. 
Minerals in copyhold tenements — special customs — minerals in freeholds 

of manor — minerals in waste of manor. 
Minerals under railways — severance of access to minerals — superfluous 

land. 
Construction of terms, minerals, mines, and quarries. 
Prerogative of gold and silver — g^rants of royal mines — treasure trove 

— prerogative of saltpetre — ^public rights of mining. 

Property in land, as defined and bounded by the Property in 
superficial area, presumptively extends to everything ""^^'^^^^ 
contained below the surface, including whatever passes 
under the description of minerals, except gold and silver, 
which are a prerogative right of the Crown (a). A 
conveyance of land in fee simple primd facie passes the 
minerals and everything below the surface (J) ; and 
possession of the surface is primd facie evidence of the 
ownership of the soil beneath, including the minerals (c). 

Minerals may be partitioned from the surface and Separate 
treated as a separate subject of property. The owner of SS^aS."^ 

(d\ .Co. Lit. ia;po8t, p. 70. (e) See !I)/nvhitty, TTf/nne, 2B. & 

(b) Egremont Burial Board y. Aid. 554 ; JSeddon v. Smith, 36 Law 

Bgrenumt Iron Co., L. B. 14 C. D. Times, 168. 

158 ; 49 L. J. C. 623. 

£2 



52 USKS AND PROFITS OF LAND. 

land may create a separate property in minerals ; either 
by granting away that part of the land which contains the 
minerals, reserving to himself the surface and all other 
parts ; or by granting away the land, with express excep- 
tion to himself of the part containing the minerals. In 
either way the minerals thus partitioned from the rest of 
the land constitute a separate corporeal hereditament 
subject to all the incidents of real property, so far as they 
Power to seU apply to suoh special form of hereditament {d). — ^A power 
minex^ ^^ ^^^^^ ^ ^^^ ^^ ^ general terms does not authorize a 

aeparately. gale of the surface with exception of the minerals, or of the 
minerals separately from the land (e). The statute 25 & 
26 Yict. c. 108, was passed to confirm dispositions of land 
and minerals separately, which were then liable to he 
invalidated from the above cause. It proceeds by sect. 2 
to extend for the future trusts and powers of sale by- 
enacting that " Every trustee or other person authorized to 
dispose of land by way of sale, exchange, partition or 
enfranchisement, may, unless forbidden by the instrument 
creating the trust or power, so dispose of such land with 
an exception or reservation of any minerals, or may dis- 
pose of by way of sale, exchange or partition, the minerals 
separately from the residue of the land;" but not without 
the previous sanction of the Court of Chancery. The 
statute applies to mortgagees having powers of sale, as well 
as to trustees (/). Under this statute the Court may give 
a general order or sanction to authorize the disposal of 
the mines and of the land separately and at different times 
as occasion may require (^). — Under the powers of the 
Settled Land Act, 1882, 45 & 46 Yict. c. 38, s. 17, " A 
sale, exchange, peirtition or mining lease may be made either 

(d) StoughtonY.Leighy 1 Taunt. (/) Beaumont* » Trusts, L. R. 12 
402 ; mikinson v. Jhroud, 11 M. & Eq. 86 ; 40 L. J. C. 400 ; IFilkin- 
W. 33 ; Mellish, L. J., Atpd^n v. ton's Estates, L. R. 13 Eq. 634 ; 41 
Seddon, L. R. 1 Ex. D. 609 ; 46 L. J. L. J. C. 392. 

Ex. 363. {S) Wynn's Estates^ L. R. 16 Eq. 

(e) Buekley v. H^icdl, 29 B^v. 237 ; 43 L, J. C. 96. See rakim'9 
646 ; 30 L. J. C. 624. Will, L. R. 13 Eq. 408. 



CHAP. V. MIKES AND MINERAI^. 63 

of land with, or without an exception or reservation of all 
or any of the mines and minerals therein, or of any mines 
and minerals, and in any such case with or without a grant 
or reservation of powers of working," and other powers and 
privileges connected with mining purposes in relation to 
the settled land or any other land. 

A licence may he granted to enter land and to search Lloenoe to g«t 
for and get minerals without granting any estate in the 
land itself ; the grantee then takes no estate or property in 
the land or in any specific portion of it, but acquires pro- 
perty only in such minerals as he may get imder the 
licence ; which " is no more than a mere right to a per- 
sonal chattel, when obtained in pursuance of incorporeal 
privileges granted for the purpose of obtaining it " (h) . The 
licence is an incorporeal hereditament of the nature of a 
profit a prendre in the land of another. As such, it may 
be claimed by prescription ; whereas an estate or property 
in the land itself cannot be so claimed, but must be 
claimed by a title founded on seisin or possession (t). — A DiBtinotion of 
licence may be as beneficial as a grant of property as re- property, 
gards the getting of the minerals ; but it does not carry 
with it, as the latter does, any other proprietary uses and 
profits of the space containing the minerals. For instance, 
a mere licence to work a substratum of minerals does not 
give the right to use the space as a way for passage and 
traflBc to and from adjacent mines, which is an ordinary 
incident of the property in the substratimi itself (k). So 
the licence to take minerals of a specified kind would not 
give any right to take other minerals found in combination 
with them in the same working ; as in the case of a tin 



(A) Per ettr., Doe v. Wood, 2 B. Ca. 701 ; Duke of Hamilton v. Ora» 

& Aid. 739 ; Mutkett v. IfiU, 5 ham, L. R. 2 Sc. Ap. 166 ; Botcaer 

Bing. N.-C. 706. v. Maclean, 2 D. F. & J. 420 ; SO 

(i) See post, p. 329. TTtlkinson L. J. G. 273; Jessel, M.R., ^are^^ 

V. iVvMrf, 11 M. & W. 33. V. Granville, L. R. 3 C. D. 832: 46 

{k) Bameay v. Blair^ L. R. 1 Ap. L. J. C. C69. 



64 



USES AND PROFITS OF liAND. 



GoDstraction 
of grant or 
lioenoe. 



Exduflive 
licence. 



Bemedjof 

licensee. 



bounder exfracting copper with the tin, who has no right 
to the copper, nor to any other metal than the tin which 
he in fact extracts (/). — "Whether a deed operates to con- 
vey the land itself containing minerals, or only to give a 
licence to get minerals within the space defined, is a ques- 
tion of construction of the words used. Such a licence 
cannot be given by way of exception to a grant of land, 
because nothing can be the subject of an exception, 
strictly speaJdng, that is not part of the thing granted, 
and the licence is a new and distinct species of right which 
can be Greated by grant only. If expressed to be reserved 
or excepted out of land granted, it can take effect only by 
implying a re-grant of the licence from the grantee of the 
land to the grantor. Hence where mines and minerals 
are expressed to be an exception from a grant of the land, 
they will in general be construed according to the literal 
form of words as intended to except the soil itself con- 
taining the minerals, and not as creating a mere licence to 
take them (/w). — A licence may be exclusive of the owner 
and of any other person ; or it may admit of similar 
licences being granted to others not inconsistent with the 
former. A licence to take minerals is presumptively not 
exclusive, and is so construed in the absence of intention 
expressed to the contrary (w). "A man taking a licence 
when he is under no obligation to work cannot exclude 
his licensor from granting as many more of those licences 
as he thinks fit ; provided always, that they are not so 
granted as to defeat the known objects of the first licensee 
in applying for his licence" (o). — The licensee of an ex- 
clusive right to take minerals, who has opened a mine in 
exercise of his right, may maintain an action of trespass 



(/) ^er eur.f Hogert t. Jirenton, 10 
Q. B. 66 ; ib.f note at p. 65. 

(m) Froud v. £atesy 34 L. J, C. 
406 ; Duke of Hamilton v. Graham^ 
L. B. 2 So. Ap. 166 ; per cur,, 
SaUacorki^h Mining Co. y. Ifarriton, 
L. R. 6 P. C. 62; Wirk^amY. 



Maurker, 7 M. & W. 63; Doc v. 
Lock, 2 A. & E. 743. 

(n) Moun^y*» Ctue, Go. Lit. 
164^, 1 And. 307; Godb. 17 ; Chet- 
ham Y. JFilliamsony 4 East, 469. 

(o) Wood, L. J., Carr v. Benton, 
L. K. 3 Ch. 632. 



CnAP. V. MINBS AND MINERALS. 56 

and of ejeotment, in respect of his actual possession of the 
mine, against a wrongdoer ; though he have not the ex- 
dosive possession in other respects (p). The mere licence 
without possession taken in exercise of it would not be 
sufficient to maintain such action {q). 

The right to minerals separate from the surface, wheUier BelatiYe 
by grant, reservation, or licence, necessarily implies the "^Jjg^^f 
power to get them ; and, therefore, the right of using the Borfaoe and 
surface so far as is reasonably necessary for the purpose of ""* 
getting the minerals in the proper and usual manner; 
according to the maxim ^^ quando aliquid conceditur^ 
conceditur etiam id sine quo res ipsa esse non potesV^ For 
any interference with or injury to the surface beyond 
what is reasonably necessary, whether wilful or negligent, 
the owner of the minerals is liable to the surface owner. 
Generally the relative rights of the parties are regulated 
by the deed or instrument of grant or licence creating the 
separate rights ; and then the only question is as to the 
construction of the deed (r). — ^The right of support for the Right of 
surface by the subjacent minerals is of the nature of an ^PP^^'** 
easement, and is treated hereafter imder the title of 
Easements («). 

A lease of minerals or a licence to take minerals for a Lease of 
term of years is equivalent to a sale out and out of so "^«"^- 
much of the soil itself as consists of the minerals to be 
taken ; and the -rent reserved upon a mineral lease is not 
like an ordinary rent or reservation of annual profits, but 
it is in effect a payment by instalments of the price of the 
minerals sold. It is usual to reserve it in the form of a 
royalty, that is, a proportion of the minerals worked or of 

(p) Karker v. Sirkbeck, 3 Burr. (r) Lord WeDderdale, Howbo' 

1656; 1 W. Bl. 482; per ctir.j tham v. Wilaon, 8 H. L. C, 360; 

Sogers v. Brentofiy XO Q. B. 62. 30 L. J. Q. B. 63 ; Blackburn, J., 

{q) Per cur. Doe v. Wood, 2 B. & Smith v. Darby, L. R. 7 Q. B. 722 ; 

Aid. 737 ; Doe y. Alderson, 1 M. & 42 L. J. Q. B. 140. 

W. 210. («) See post, p. 236. 



66 



USES AND PROFITS OF LAND. 



Bight of 
lessee to the 
mineralB. 



their value. ^^ A mineral lease or a lease of mines is not 
in reality a lease at all in the sense of an agricnltural 
lease. There are no periodical harvests. A mineral lease 
is really a sale out and out of a portion of land" (/). 
The exhaustion of the minerals within the term demised, 
leaving no further enjoyment or profit in the lessee, is 
equivalent to a determination of the lease ; and the un- 
expired residue of the term may he disregarded. TJpon 
a subsequent conveyance of the land with the usual 
covenants for title, an exhausted but imexpired mining 
lease was held to he no incumbrance upon the title near 
any breach of the covenants (t/). So, where the lessee of 
minerals, part of which Idy under a railway, had been 
compensated for such part to the full value by the railway 
company under their statutory powers, and he afterwards 
surrendered his lease to the reversioner ; it was held that 
the reversioner retained no further right to work the 
minerals for which the compensation had been paid (x). — 
Upon this principle of a lease of minerals operating as an 
absolute sale of the minerals demised, the lessee becomes 
entitled to recover the full value of minerals wrongfully 
severed and taken by a stranger during the term ; at the 
same time remaining liable to his lessor for the rent 
covenanted in the lease (y). The damages for a wrongful 
taking of minerals are, in general, assessed at the full 
value of the separated minerals, without allowing for the 
costs of the wrongful acts of severance and working. 
Where, however, the wrongful working has occurred bond 
fide^ through mistake or inadvertence, the costs of working 
have been allowed against the fuU value (s). 



(t) L. GaimB, Gowan v. Christie^ 
L. R. 2 Sc. Ap. 284 ; L. Blackburn, 
Cohnea Iron Co. v. Black, L. R. 6 
Ap. Ca. 336 ; Brain well, B., Hadofi 
V. Jefeocky L. R. 7 Ex. 394. 

(«) Spoor V. Green, L. R. 9 Ex. 
99 ; 43 L. J. Ex. 67. 

(x) Smith T. Great IFeat^m JSy. 
Co,y L. R. 3 Ap. Ga. 166 ; 47 L. J. 
C. 97 



(y) AttersoU v. Stevens, I Taunt. 
183. 

(z) Martin v. JP&rter, 6 M. & W. 
351 ; Jegon v. Vivian, L. R. 6 Ch. 
742; 40 L. J. C. 389; Trotter x, 
Maclean, L. R. 13 CD. 674; 49 
L. J. C. 256; Livingstone v. Haw-^ 
yard^s Coal Co., L. R. 5 Ap. Ca. 26 ; 
Taylor v. Mostyn, L. R. 83 C. D. 
226 ; 66 L. J. C. 893. 



aiAP. V. MINES AND MINERALS. 57 

Tenant for Kfe or for years impeachable for waste, Right of 
cannot, in general, take any minerals or materials from the oryears^to * 
laud except so far as may be reasonably necessary for the minerals. 
repair and maintenance of the property. "Digging for 
gravel, lime, clay, brick-earth, stone or the like; or for 
mines of metal, coal or the like hidden in the earth that 
were not open when the tenant came in, is waste. But 
the tenant may dig for gravel or clay for the reparation 
of the house, as well as he may take convenient timber 
trees" (fl). As tenant in possession he can prevent the 
reversioner or any other person from taking minerals ; for 
his possession extends to everything below the surface. 
Therefore during his tenancy minerals can only be worked 
with his consent (6). — Tenant for life "without impeach- Tenant with- 
ment of waste " may take minerals or any materials from ^qJ^oj^^' 
the land for his own use to the exhaustion of the inlierit- waste, 
ance ; provided he does not exercise his right in such an 
unreasonable manner as would be considered equitable 
waste {c). Consequently minerals wrongfully taken from 
the land during his tenancy become vested in him, and he 
is entitled to recover such minerals or their value. Where 
coal had been taken by trespassing from an adjacent mine, 
during two successive tenancies for life without impeach- 
ment of waste, it was held that compensation paid for the 
coal taken belonged to the estates of the tenants for life in 
proportion to the quantities taken during their respective • 
tenancies (rf). So with minerals taken by a railway com- 
pany under the Lands Clauses Act, the compensation 
payable belongs to the then tenant for life without im- 
peachment of waste, if he could possibly have taken the 
minerals during his tenancy (e). 

If land containing open mines, stone quarries, gravel Open mines, 
pits, brickfields, or other workings of the like kind, be 

(a) Co. Lit. 6Zb; ante, p. 36. (rf) Re Barrington, L. R. 33 C. 

\b) lewis V. Braithwaiie, 2 B. & D. 623 ; 56 L. J. C. 175. 

Ad. 437. (e) Re Barrington^ supra, 
(<r] Ante, p. 23. 



68 rSES AND PROFITS OF LAND. 

demised to a tenant for life or for years, without express 
restriction of the use, the tenant, though in other respects 
impeachable for waste, is entitled to continue the working 
and take the profits for his own use ; because it is the pre- 
sumed intention that the lessee shall take the profits of the 
land in the condition in which it is demised to him {/). 
" If there be open mines, and the owner make a lease of 
the land with the mines therein, this shall extend to the 
open mines only ; but if there be no open mines and the 
lease is made of the land, together with all mines therein, 
then the lessee may dig for mines and enjoy the benefit 
thereof, otherwise those words should be void" {g). An 
assignee or underlessee of the term has no greater right in 
this respect than the original lessee ; and if it is waste in 
the lessee to open mines, it is waste in his assignee to con- 
tinue to work them (A). — Upon the same principle the 
devisee for- life of land containing open mines is entitled to 
continue to work them for his own use, for " the author of 
the gift has made them part of the profits of the land " ; 
but he is not entitled to open new mines (t). Tenant in 
dower, as being tenant for Ufe in one-third of the inherit- 
ance, is entitled to work open mines as part of the profits 
of the land ; she cannot open new mines without commit- 
ting waste, but she can prevent the opening of them by 
others during her tenancy {k). The incumbent of a living, 
holding glebe land as tenant for life, may work mines pre- 
viously opened ; but he may not open new mines and take 
minerals ; nor does the consent of the patron render his 
doing so lawful ; and it is doubtful whether the further 
consent of the ordinary would entitle him to do so (/). 
Where land was demised for a term of years by way of 

(/) L. Blackburn, Campbell v. 466; .V»7&r v. Ifi/fct-, L. R. 13 Eq. 

TTardlaur, L. R. 8 Ap. Ca. 641. 263 ; 41 L. J. C. 291. 

iff) Co. Lit. bAb; Saunders^ Case, (k) Stoughton v. Leigh, 1 Taunt. 

6 Co. 12 a; Aatry v. Ballard, 2 402; Bickett v. Hamer, 1 Dr. & 

Mod. 193. Sm. 284 ; 29 L. J. C. 778. 

(A) Saunders' Case, 5 Co. 12 b. (I) Jfolden v. JFcekes, 1 J. & H. 

(») Fitter v. Vaughan, 2 Beav. 278 ; 30 L. J. C. 35. 



CHAP. V. MINES AND MINERAI^. 69 

mortgage, and the mortgagor, who was owner of the 
inheritance, remaining in possession opened new mines, 
the mortgagee, on subsequently taking possession, was 
held entitled to work the new mines opened smce his mort- 
gage, as forming part of his security (m). — ^Upon the same 
principle the tenant for life of settled land which is let on 
mining leases at the time of making the settlement is held 
entitled to take the rents and royalties payable in respect 
of the minerals gotten, "though they are really instalments 
of the purchase-money of part of the inheritance" («). 
Where tenant in tail of settled land opened mines and 
died without issue, the tenant for life in remainder was 
held entitled to continue the working of the mines during 
his possession (o). 

Whether a working for mineral or material is to be What are 
considered an " open mine," which a tenant impeachable ^^^ mmcs. 
of waste may work for his own use, depends upon the pur- 
pose for which it was opened. " If a mine or quarry has 
been worked for commercial profit, that must ordinarily be • 
decisive of the right to continue working; and, on the 
other hand, if minerals have been worked or used for some 
definite and restricted purpose, {e.g. for the purpose of fuel 
or repair to some particular tenements,) that would not, 
alone, give any such right. But if there has been a work- 
ing and use of minerals not limited to any special or 
restricted purpose, there appears nothing to justify the 
introduction of sale, as a necessary criterion of the differ- 
ence between a mine or quarry which is, and one which is 
not, to be considered open in a legal sense. Use, as well as 
sale, is a perception of profit" (p). Mere preparations 
made for opening a mine are not sufficient to entitle a 

(m) £lias y. Snowdon Slate Quar^ 817. 

riet Co.j L. R. 4 Ap. Ca. 454 ; 48 (o) Clavering v. Clavering^ 2 P. 

li. J. C. 811. Wms. 389. 

(n) Miller v. Miller ^ L. R. 13 {p) h. Selhomej Elieu t, Snardon 

Eq. 263 ; 41 X. J. O. 291. Jesael, Slate Quarries Co. L. R. 4 Ap. Ca. 

M. R. JBrigstoeke v. Brigstocke, 466 ; 48 L. J. C. 811. 
L. R. 8 C. D. 363 ; 47 L. J. C. 



60 



USBS AND PROFITS OF LAND. 



WinniDg 
mineralB. 



succeeding tenant for life to complete the opening and 
work the mine {q). And opening mines in part of the 
land is not equivalent to opening similar mines through- 
out (r). But the sinking of a new mine in the same vein 
of minerals, or breaking ground in a new place in the same 
quarry, is not necessarily a new opening ; it may be merely 
a continuation of the former working («). So the right of 
taking gravel from a pit implies the right of taking it 
from the sides of the pit, so as to extend the pit late- 
rally (t). Upon this principle " the whole of the gravel or 
sand upon the waste land of a manor may be treated as 
one mine, and each gravel pit as if it were a fresh pit in 
the mine," and the profits will belong as income to the 
tenant in possession (u), A mine that has been abandoned 
merely because it could not at the time be worked at a 
profit may still be considered an open mine. But a mine 
that has been abandoned bv the owner of the inheritance, 
with the view to some permanent advantage to the pro- 
• perty, would, in general, be no longer considered an open 
mine {x). And a tenant for life would not be entitled to 
re-open a mine that had been abandoned before his coming 
into possession (y). — The expression " winning " minerals, 
which is frequently used in mining leases and licences to 
denote the condition upon which the mine is to be treated 
as open for profit and for payment of royalty, is construed 
to mean that the mine is put in a state capable of con- 
tinuous working in the ordinary way, after completing 
the preliminary works necessary for reaching the mineral, 
draining the mine and making it practically workable (s). 



{q) Viner v. Taughan^ 2 Bear. 
466. 

(r) L. Blackburn, Campbell v. 
Wardlaw, L. R. 8 Ap. Ca. 647. 

(*) Eliaa v. Snowdon Quarry Co.y 
L. R. 4 Ap. Ca. 454 ; 48 L. J. C. 
811 ; Clavering v. Claverinff, 2 P. 
Wms. 388. 

(t) Ellif T. BromUy Local Boards 
45 L. J. C. 763. 



(w) CovleyT. JFelUsley, L. R. 1 
£q.'6d9; 35 Beav. 635. 

(x) Bayot v. Bayotf 32 Bear. 609 ; 
33 L. J. C. 116. 

(y) See Tiw^r v. Taw A<i»*, 2 Beav. 
466. 

(2) Hatherley, L. C. Zewu ▼. 
FotkergiU, L. R. 6 Ch. Ill ; Rakeb^ 
V. Elliot, L. R. 13 C. D. 277 ; 7 
Ap Ca. 43. 



CHAP. v. MINES AND MINERALS. 61 

Where land is settled and the tenant for life is impeach- Mines opened 
able of waste, and therefore unable to work minerals, the cJ,^.*' ^ 
Court exercises a jurisdiction to order or sanction the open- 
ing of mines and working of minerals for the benefit of the 
property and of all parties interested ; in the same manner 
as with the cutting of timber. In such cases the Court 
will direct the proceeds to be sold and invested, and the 
annual income to be paid to the persons coming into 
possession in succession under the settlement, including the 
tenant for life. And the fund will ultimately vest abso- 
lutely in the first person who becomes entitled under the 
settlement to an estate unimpeachable of waste, whether 
for life or in fee, which would entitle him to take the 
minerals for his own use (a). The same principle applies By tmstees 
presumptively to the proceeds of leases of minerals granted o?i^a£ir!^" 
by the trustees of settled land under powers of making 
mining leases. "As between a tenant for life and re- 
mainderman, money paid by a lessee as the price of land 
won and carried away and sold by the lessee in the shape 
of minerals, stones or bricks, is always treated as capital 
and not as income, unless the settlor has expressed an 
intention to the contrary by making the tenant for life 
unimpeachable for waste, or by some other expression ; or 
unless at the time of the settlement the mines let were 
open, in which case an intention to the contrary is inferred, 
if consistent with the language of the settlement" (6). 
Where land with " the mines and minerals " was settled, 
and power was given to the trustees to lease the minerals, 
it was held that the intention was shown that the mines 
and minerals should be part of the profits, and that the 
rents and royalties reserved were payable to the tenant for 
life, and did not form capital (c). Under a settlement 
which vested the settled land in trustees, upon trust to pay 

(a) Ante, p. 40 ; Boffot v. Ba^ot, L. J. C. 265 ; Campbell v. Ward* 

32 Beay. 609 ; 33 L. J. C. 116. law, L. R. 8 Ap. Ga. 641. 

{b) JPer cur, J2^ Biifye, Hellard ▼. (c) Daly y. Btckett, 24 Bear. 

JfoMfy) L. B. 31 C. B. 608; 65 114. 



62 USBS AND PROFITS OF LAND. 

"the whole annaal produce and rents" to a tenant for 
life, it waa held that there was no intention shown to 
include the rents of mines leased by the trustees subse- 
quently to the settlement under statutory powers, which 
must therefore be treated as capital of which the tenant for 
life could only claim the interest {d). 
Mining lease Under the Settled Land Act, 1882, s. 6, a tenant for 
Land^Acfc. ^® ^^ settled land, within the definitions of the Act, may 
grant a mining lease for a term not exceeding sixty years ; 
and by sect. 2a" mining lease " includes " a grant or 
licence for any mining purposes." By sect. 7 the lease 
must reserve the best rent that can reasonably be obtained ; 
and by sect. 9 the rent may be made ascertainable ac- 
cording to the acreage worked or according to the quanti- 
ties of any mineral gotten. By sect. 11, " Under a mining 
lease, whether the mines or minerals leased are already 
opened or in work or not, unless a contrary intention is 
expressed in the settlement, there shall be from time to 
time set aside, as capital money arising under this Act, 
part of the rent as follows, namely, where the tenant for 
life is impeachable for waste in respect of minerals, three- 
fourth parts of the rent, and otherwise one-fourth part 
thereof, and in every such case the residue shall go as rents 
and profits." — A tenant for life of the proceeds to arise 
from the sale of settled land under a trust for conversion in 
the settlement, was held to be in the position, in relation to 
the land before sale, of a tenant " impeachable for waste in 
respect of minerals," within this section, and therefore 
entitled to take only one-fourth of the rent of a newly- 
opened mine as current rents and profits (e). 

Minerals in By the general custom of copyhold tenure the lord of 

copy o dfl. ^^^ manor retains the minerals, not by a partition of the 

tenement, but as freeholder of the whole tenement, including 

{(t) Campbell v. Wardhxc^ L. R. (r) Re Ridge, L. R. 31 CD. 608; 

8 Ap. Ca. 641. 55 L. J. G. 265. 



CHAP. V. MINES AND MINERALS. 



63 



the minerals, the copyhold tenant having the possession 
only. But the possession of the copyholder extends over 
the whole tenement and all that it contaijis above and 
below the surface, including the minerals. The estate of 
the copyholder, as tenant at will secured by the custom, 
does not entitle him to commit waste by taking minerals, 
or any part of the soil itself. On the other hand, the lord, 
without a special custom, has no right of entering upon 
the possession of the tenant to take the minerals or any 
part of the soil, although the freehold title remains in 
him (/). — ^Accordingly, stones lying upon the surface of a 
copyhold tenement presumptively belong to the lord ; and 
the copyholder, though entitled to the possession, is not 
entitled to appropriate and dispose of them to his own 
profit (jg). — ^If the lord wrongfully enter and take any part 
of tiie soU or miuerals, the copyholder in fee who has the 
absolute title to the possession and to prevent their removal, 
becomes entitled to recover the full value of the soil or 
minerals taken, less the cost and fair profit of the work- 
ing {h). 

By special custom of a manor the copyhold tenants may Special 
have the right, absolute or qualified, of getting and taking 
away for their own property the minerals under their 
respective tenements ; as they may have by special custom 
the right of cutting the timber growing upon their tene- 
ments. The custom may extend to certain kinds of 
minerals only, as coal, sand, clay, gravel, brick-earth, or 
ajiy other mineral (e). So by special custom of a manor 
the lord may have the right of entering upon the possession 



oastoms. 



(/) Lewii V. Braithwaitey 2 B. & 
Ad. 437 ; Keyse v. FoweU, 2 E. & 
B. 132 ; Bowser y, Maclean, 2 D. F. 
& J. 420 ; 30 L, J. C. 273 ; Jessel, 
M. K. £ardley v. Granville, L. R. 
3 C. D. 832 ; 46 L. J. 0. 672. 

is) Dearden v. Evam, 5 M. & W. 
11. See Tucker v. Linger, L. B. 
21 C. D. 18 ; 51 L. J. C. 713, cited 
postf p. 68. 



ih) Ait.' Gen. y. Tomline, L. B. 
6 C. D. 760 ; 46 L. J. C. 664. 

(t) Salisbury v. Gladstone, 9 H. L. 
C. 692 ; 34 L. J. 0. P. 222 ; Manrner 
V. Chance, 4 D. J. & S. 626; 34 
L. J. C. 413 ; Portland v. Hill, 
L. B. 2 Eq. 766 ; 35 L. J. 0. 439 ; 
Att.-Gen. v. Mylchreest, L. B. 4 Ap. 
Ca. 307. 



14 



A3n> PBOFITS OF LAND. 






M\T>'^Ail' ix 






Vir.«.»:ir; 



cc tLt it'Tst-^ :: vjri tie minerals (it). The custom maj 
K" i.c tLt j.iri t: liie coe kind of mineral and the tenants 
i:D:cl»fr ' , Tiif rcms of jircKTing the special custom Kes 
Ti}».ir. i!bf Titrrx fliiziizx tie l>enefit of it (m). 

A> 'ittcvr^-:: iLr j.iri Jisd the freidiolderB of a manor the 
in i:.'r 2iir>er&l5 depends upon the t^ms of the 
TViitiTt tLr :ci^ii-Al grant does not appear, as is 
r^ritiTLlIr -}rf .-a^.. iL^ Ttressmydon is that the minerals 
i.»m T»tn :i tit frrt-L ii ai.d jiass with the freehold tene- 
i:itr.:. P:^: :!»: t nsy Live bc^n sey«arated and reserved to 
•1? j.itI : ir.1 s ]»irdt£. z: of this kind throughout a manor 
HiiT rie tit: 'St*! r v rvSItz.:^ of the praetiee of the lord to 
vrcri r-:i.Tr^ frci lizir ::• tinie uiid«* land of freeholders 

T:.T nn-frils in tit^ iiriij.l.i^ed wastes of the manor, 
wVM irv n.c in li-t xv'uriLii vn of tenants, belong to the 
I«ci ir. ir.,iv,',»Li.:f T»."»f?5r»i^i:c:: *ni he mav therefore work 
:r-t:u in rL:l: .: li^ .-^TivzshiT of the s<»iL subject to rights 
V : .♦: mn: . n . c . c r.: r :^>: . r^izy rj- i j'^iiireiJ rights of tenants 
.i\Lz rj.-%: .c :^;ir il-x >-^:-,,>e, if any such rights can be 
*r. \Tvi :: ?.\i>:. T':.t I -ri i.ii> rL-e ric-it to everv use and 
^r. n: t. \n' ItH\x^I fr m ::.-e w^^f^e^w the taking of which 
i> r.:v :i:.M-x.>C'--:: ^i:n T:.-t rL:lt> of t>oinmoners or others; 
ini :lt 1 ;rrl-r- :i \ tx i l:t< n>:n rl-i^e who ci>mplain that 
in t'XTr.i>in4: 1L> ri4rl:> ;: v wnt j-iip, he int^eres Tiith 
tlt'ir rli:l:> . — ^l'y»:n in.I.>5nzv vf w^SLsc-es under Inclosure 
A.'jv :: i> di ir\*:u-n: iri. •::,•* :-' f»tTtr the minerals from 
:-Lr s-iTti.*? ri^i:>^ :y r\t?*!:rrin^ ihrn to the lord, and 
ill-rin^ :nT s^nrfjw.^ in <»c:ir;z^:e irv^en il tenements (j?). 
UnirT <.n.h in.I:»<nrv< the i\!S»trr5:i:n to the lord is in 
gvneril to l«e L-:n>cr^T\i wi:n i\:\r\n>t- to his f^-rmer abso- 



l Er e'^f T 'l^rtT '*- L. R $ 
C. p. m. i"; L J. C t. .'. 

w I . '^ cue T. JET ^, « .»>-'«> 



0.4.^ 



/ X*"t. 7/-.«, L.R.4 C. D. 
f.:^, 4r I. J. C i^i•:. 

.» 2^.% T. J>/.7», 26 Bmt. 

i-ru\ L. K, i H- JL 377; » L. J. 

c* 4*;. 



CHAP. V. MINES AND MINERALS. 65 

lute title to the soil and to everything constituting the 
soil ; it is therefore held to include every part of the soil 
that can be worked consistently with the surface rights of 
the allottees (q). And where an Inclosure Act reserved 
all mines and minerals to the lord as fully as before the 
Act, with a special provision for restoring the surface after 
getting the minerals, it was held to reserve building stone 
got by quarrying from the surface (r). 



With respect to mmerals lying imder or near railways, MineraU 

undei 
ways. 



it is provided by the Eailways Clauses Act, 8 Vict. c. 20, ^^' 



s. 77, that the railway company shall not be entitled to 
any mines or mineralB under any land purchased by them, 
except only such parts thereof as shall be necessary to 
be carried away or used in the construction of the works ; 
unless the same shall have been expressly purchased and 
conveyed. By s, 78 if the owner, lessee, or occupier of any 
mines or minerals lying under or near the railway be 
desirous of working the same, he shall give to the company 
notice in writing of his intention to do so thirty days 
before the commencement of working, and if the company 
be willing to make compensation, he shall not work or get 
the same («). By s. 79 if the company be not willing to 
treat for the payment of such compensation, the owner 
may work the mines in the proper and usual manner in 
the district. And in the latter event he will not be liable 
for any damage done to the railway from the proper 
working of the mines according to the Act (t). Under 
these sections the vendor of the land purchased by the 
railway company retains only the right to get the minerals. 



{q) JSosM T. Wainman^ 14 M. & 133; Dixon y. Caledonian By. t'L.'R, 

W. S69 ; Mext v. GUI, L. B. 7 Ch. 6 Ap. Ca. 820 ; Ernngton v. Metrop, 

699 ; 41 L. J. C. 763. Bittr. By., L. R. 19 C. D. 659 ; 61 

(r) Bo8$e y. Wainmany tupra. L. J. 0. 305. Brett, M. B. Founts 

\§) Midland Rff.T.Robimon^'L.'R. neyy. Clayton, L. B. 11 Q. B. D. 

37 C. B. 386 ; 67 L. J. C. 441. 835 ; 62 L. J. Q. B. 668. See He 

(0 Great Western By. r. Bennett, ffoUiday and Wakefield, L. B. 20 

L. B. 2 H. L. 27 ; 36 L. J. Q. B. Q. B. D. 699. 

L. F 



66 



USES AND PROFITS OF LAND. 



Surface 
mmeralB. 



Seyeranoe of 
aooefls to 
mineralB. 



SaperfluouB 
land. 



without any estate or interest in the land itself containing 
them ; the space occupied by the minerals belongs to the 
company (ti). — ^The mines and minerals reserved by the 
above Act to the vendor of the land includes surface 
minerals that may be got by open workings as well as the 
minerals got by underground working ; the section 77 
excepting only such parts thereof as are necessary to be 
dug and earned away in the oonstmotion of the works. 
Consequently the vendor may proceed to work a bed of 
brick, fire-clay, slate or stone upon which the railway 
is made, unless the company are willing to make compen- 
sation for it (ir). — Sect. 80 enables the owner of mineralB, 
to which the access is cut off by a railway company having 
purchased the minerals lying under their line, to work the 
minerals by tunnelling under the railway. And sect. 81 
provides that the company shall compensate the owner of 
the minerals for all such additional expenses and losses as 
shall be incurred by him by reason of the severance of the 
minerals, or of their being worked in such a manner as not 
to injure the railway, and for any minerals which cannot 
be obtained by reason of the railway (y). 

Minerals underlying land purchased by a railway com- 
pany which are not required for the support of the surface 
or other purposes of the railway, are not within the des- 
cription of " superfluous land" in the Lands Clauses Act, 
8 & 9 Vict. c. 18, s. 127, which requires the company to 
sell all such superfluous land within ten years of the com- 
pletion of the worke, and in default of sale vests such 
land in the owners of the lands adjoining thereto. The 
superfluous land intended by the Act is such portion of 
the land purchased as is superfluous, having regard to the 



(tf) Jeesel, M.R. ReMeirop, DUtr, 
Ry. and Coih, L. B. 13 G. D. 614. 

(x) Midland Ry. v. Haurtehwood 
Brick Co. L. R. 20 0. D. 662 ; 61 L. 
J. 0, 778 ; Midland Ry. v. Mihfs, 66 
L. J. C. 745 ; L. R. 33 C. D. 632 ; 
Midland Ry. t. Robinsonj L. R. 37 
C. D. 386 ; 67 L. J. C. 441. See 



Glasgow v. Farie, Weekly Notes, 
1888, p. 192. 

(y/ WhiUhouseT, Woherhamptom 
J?y. L. R. 6 Ex. 6 ; 39L. J. Ex. 1 ; 
Midland Ry. v. Miles, L.R. 30 CD. 
634 ; 66 L. J. C. 261, 745 ; Mid* 
landRy. v. Miles, L. R. 33 C. D. 
632 ; 66 L. J. 0. 745. 



CHAP. V. MINES AND MINBRALS. 



67 



nae of the smfaoe ; it is to be separated by a vertioal 
section of the land, and does not apply to the portion that 
may be separated by a horizontal section, either below the 
line of railway as in the case of mines and minerals, or 
above the line, where it is carried below the surface in a 
tnimel (s). — ^Land that has been taken compulsorily without 
the minerals and afterwards sold as superfluous land carries 
with it no further rights, in regard to the minerals and 
the mode of working them, than the railway company 
had ; consequently, as the owner of the minerals would 
not have been liable to the railway company for damage 
to the surface caused in the usual and proper working of 
the minerals, so he will not be liable for such damage to a 
purchaser of the superfluous land from the company {a). 

The general term " minerals " includes " every substance Oonstraotion 
which can be got from underneath the surface of the earth ?« ^^^SnJa" • 
for the purpose of profit, unless there is something in the 
context or in the nature of the transaction to induce the 
Court to give it a more limited meaning" (6). Accord- 
ingly, a reservation of "minerals" from a grant of land, 
includes "everything except the mere surface, which is 
useful for any purpose whatever," as gravel, sand, fire- 
clay or the like; also every species of stone, as marble, 
limestone, ironstone, freestone (c). Clay used for puddling 
or for brick making is a mineral within the Railways 
Clauses Act, 1845, s. 77, which reserves the minerals to 
the vendor, upon a purchase of land by a railway company 
under their compulsory powers (rf). China clay under a 



(s) Be Metrop. Distr, By, v. Coah, 
L. R. 13 C. D. 607 ; 49 L. J. C. 
277. See Cairns, L. G. Hixyper y. 
Bourne, L. R. 6 Ap. Ga. 1 ; 49 L. J. 
Q. B. 370 ; Bosenberg v. Cook, 51 
li. J. Q. B. 170. 

(a) Pountney y. Clayton, L. R. 11 
Q. B. D. 820 ; 62 L. J. C. 666. 

{b) Melliah, L. J. Hext v. Oill, 
L. R. 7 Ch. 712 ;' 41 L. J. G. 763 ; 
Fry, J. A.-O, v. Tomline, L. R. 6 
C. D. 762 ; 46 L. J. 0. 664. 



(c) Romilly, H. R. Midland By. 
V. Checkley, L. R. 4 Eq. 26; 36 
h, J. G. 380 ; Bell v. WiUon, L. R. 
1 Gh. 303 ; 36 L. J. G. 337 ; Boaso 
V. Wainman, 14 M. & W. 869 ; 2 
Ex. 800 ; Micklethwait v. Winter^ 6 
Ex. 644 ; 20 L. J. Ex. 313. 

(d) Zootemore v. Tiverton By,, 
L. K. 22 G. D. 26 ; 61 L. J. G. 
670 ; Midland By. Co. v.Haunehwood 
Brick Co., L. R. 20 G. D. 652 ; 61 
L. J. C. 778. 



p2 



68 USES AND PBOFITS OF LAND. 

copyhold tenement is included in the minerals to which 
the lord of the manor is entitled ; his claim extending to 
minerals in the most general sense of the word. ^^ There 
is nothing to be got out of the soil and sold for a profit 
which the copyhold tenant, in the absence of some special 
custom, is entitled to get without the permission of the 
lord; the property of it lb in the lord, although, in the 
absence of special custom, the lord cannot get it without 
the licence of the tenant" (c). So, beds of ooprolites 
belong to the lord(/). Flints turned up in ploughing 
axe minerals which primd facie belong to the landlord ; 
but by local agricultural custom the tenant may be en- 
titled to pick them o£E the land and sell them {g), 
"minee" and The term ^*mine" is used in the primary meaning for 
" qnaiTia,." ^ underground working without removing the surface, in 
distinction to an open working or "quarry;" the mean- 
ing being determined by the context and the circum- 
stances in which the term is used (A). It is also used 
for the stratum or vein of mineral worked. By a grant of 
"mines" or "nones of lead," the soil itself pnmd facie 
passes, and not merely the right of digging in the soil and 
taking minerals («). A grant of " coals " or " coal mines " 
carries with it the strata of coal, but not the intermediate 
strata of different minerals ; except that the grantee may 
remove so much of the adjacent strata as is necessary for 
working the strata granted, and he may dispose of the 
material so removed for his own use and profit. So, the 
spoil banks made in the proper working of a mine become 
appurtenants of the mine and pass with it, as also the 
shafts of the mine {k). A lease of " workable coal seams " 

(e) Hext Y, Gilly L. R. 7 Ch. rick, 87 L. J. C. 128; Jonet t. 

712; 41 L. J. C. 763. Cumorthen Slate Co,, L. K. 4 Ex. 

(/) A.'G. V. Jhrnline, L. R. 6 D. 97; 6 ib. 93; 49 L. J. Ex. 110. 

C. 1). 750 ; 46 L. J. C. 664. (i) Co. lit. 6 a; Shepp. Touchst 

(a) Thicker v. Linger, L. R. 21 96. 

0.1). 18; 61 L. J. C. 713. (k) Ratmay v. Blair, L. R. 1 

th) Turner, L. J. Bell v. WiUon, Ap. Ca. 704 ; Bohitmn v. MUne, 63 

L. R. 1 Ch. 308 ; 36 L. J. C. 340 ; L. J. C. 1074. 
^ndersley, V.-C. Cleveland y. Jlf«y- 






CHAP. v. MINES AND UISVRAIJR. 69 

was construed to mean such coal seams as were workable 
at a profit, and therefore to include such seams of coal as 
containing ironstone would produce a profit by being 
worked together with the ironstone {I). 

The words " mines and minerals '' as commonly used Minea and 
in combination in a grant or reservation, are not to be 
construed as restricting the meaning to such materials 
only as can be got by the process of mining strictly so 
called ; they pnmd facie include minerals in the general 
meaning of the term, together with the right of working 
them in the manner proper to each kind (m). A re- 
servation in a Canal Act to the landowners of " all mines 
and minerals within or tinder the land" was construed to 
include every species of mineral within the land whether 
got by underground or by surface working (w) . But a grant 
of land with a reservation of " mines and minerals within 
and under the land" was construed strictly as referring 
to iindei^roimd workings only, and not permitting the 
quarrying of freestone from the surface ip), A partition of 
land, excepting the " mines and minerals " and providing 
that they shoidd continue to be held in common, was 
construed as excepting from partition only such minerals 
as could be got by mining in the sense of underground 
working ; and that the surface minerals got by quarrying, 
sudi as limestone, passed in severalty under the partition ; 
otherwise there would remain nothing unexcepted for the 
partition to operate upon {p). A building lease excepting 
the minerals, and containing express conditions for 
building, impliedly carries with it the right to dig and 
remove so much of the surface minerals as is necessary to 
make the foundations of the buildings, and the lessee may 
dispose of the material so removed ; but it gives no right 



(0 Cam y. Btnton, L. B. 3 Ch. 4 Eq. 25 ; 36 L. J. C. 880. 

524. (o) BeU v. Wilton, L. R. 1 Ch. 

(m) MeUiah, L. J. S$xt v. QUI, 303 ; 35 L. J. 0. 337. 

L. R. 7 Ch. 712 ; 41 L. J. C. 761. " (p) DarviU v. Bopcr, 3 Drew. 

(n) Midland Ry. v. Checkley, L. R. 294 ; 24 L. J. 0. 779. 



70 USES AND FBOFITS OF LAND. 

to dig or move the surface for the purpose of improving it 
as a building site, or for the purpose of brick TnaJring (q), 
— In the Railways Clauses Act above referred to, the 
"mines" excepted out of a conveyance of land to a 
railway company include minerals of all kinds whether 
forming part of the surface or lying underground, and 
carry the right of working in the usual way, whether 
by mining or by open workings (r). In the Settled Land 
Act, 1882, 45 & 46 Vict. c. 38, s. 2, (10, iv), mines and 
minerals are defined to mean "mines and minerals 
whether abeady opened or in work or not, and indnde all 
minerals and substances in, on, or imder the land, 
obtainable by underground or by surface working." In 
the Quarry Fencing Act, 1887, 50 & 51 Vict. c. 19, s. 4, 
" The term * quarry' includes every pit or opening made 
for the purpose of getting stone, slate, lime, chalk, clay, 
gravel, or sand, but not any natural opening." 

BojalinineB By the common law "all mines of gold and silver 
^^. within the realm, whether they be in the lands of the 

Queen or of subjects, belong to the Queen by prerogative, 
with liberty to dig and cany away the ores thereof, and 
with other such incidents as are necessary to be used for 
the getting of the ore." Also if gold or silver be in ores 
or mines of copper, tin, lead, or other base metal in the 
soil of subjects, " as well the base metal as the gold and 
silver in it belongs by prerogative to the Crown ; with 
liberty to dig for it and to carry it away ; and in such 
case it shall be called a mine royal." " And this is the 
reason that the law doth give to the Xifig mines of gold 
and silver, thereof to make money" (s). The statutes 
1 WiU. & M. St. 1, c. 30, and 6 Will. & M. c. 6, amended 
by 55 Geo. III. c. 134, enacted that no mine of copper, 

(q) Itobinsan y. Milnef 53 L. J. G. («) Case of Mine$f Queen y. Earl 

1072. Northumberlandy Flowden, 336; 2 

(r) ^teeantej p. 66 {x). Co. Inst. 577; Rogers y. Brtntom^ 

10 Q. B. 48. 



CHAP. V. MINES AND MINERALS. 71 

tin, iron, or lead shall be adjudged a royal mine, although 

gold or silver may be extracted out of the same in any 

quantities ; provided that the TCing may have the ore of 

such mines, paying for the same at a rate therein stated. 

The prerogative of royal mines gives no power to enter 

into the land of a subject to search for them, or to grant 

Ucenee to any person to do so ; but when they are 

once opened, the Crown can restrain the owner from 

working them, and can either work them itself, or grant a 

licence for otiiers to work them (t). '^ A mine royal may Grants of 

by the grant of the King be severed from the Crown, and "^^^ °^^- 

be granted to another, by apt and precise words." A 

grant by the Crown of " land " or of " mines " is construed 

strictly, as exclusive of royal mines, imless there be precise 

words to express them. But a grant by the Crown of all 

nunes in certain land will pass royal mines, if there be no 

other mines of the Crown in the land to which the grant 

can apply, otherwise the grant would be void of effect (u). 

"Treasure trove is when cmy gold or silver, in coin. Treasure 
plate or bullion, hath been of ancient time hidden, ^®' 
whereof no person can prove any property; wheresoever 
it be found, it doth belong to the King, or to some lord or 
other by the King's grant, or prescription." " Whether 
it be of ancient time hidden in the ground, or in the roof, 
or walls, or other part of a castle, house, building, ruins, or 
elsewhere, so as the owner cannot be known." If it be of 
any other metal than gold or silver, it is no treasure and 
belongs not to the King (x). A chattel, not being 
treasure, found in the soil, whereof no person can prove 
any property, primd facie belongs to the owner of the soil; 
as an ancient boat found in excavating beneath the surface. 
And a lease of the land for building with the right of 
excavating and removing the soil for the foundations of 

(0 Haidwicke, L. C. Lyddal y. L. B. 2 Ap. Ca. 163 ; 46 L. J. 

WetUm, 2 Atk. 20. P. 0. 18. 

(v) Cateof Mine$f Plowden, 336, (x) 3 Go. Inst. 132; 1 Blackst. 

337; JTootiiy v. jl.'G, of VictoHa, Com. 196. 



72 rsEs A3n> fbofits of laxd. 



tbe trdl^Tr.ga, vss Iield not to paas the property in sach a 
tiatt'Ei to the legeee, wto found it in the course of excaTa- 
ti:Ti : there lyfr.g no intention in the lease to pass it with 
iLe scil \\ Chattels, not being treasore, found on the 
surface <7 elsevh^ie thim in the soil, whereof no^ property 
can be proved, belong prima /ode to the finder in right of 
his f ossesEicn z^ ; except that wreck or chattels cast upon 
Und by the sea, whereof no owner can be f onnd, belong to 
the Crown by prerc-gatiTe, or in some cases to the lord 
of a manor as grantee, express or prescriptive, of the 
Crown d'. 
Tuav^M^%9ci There is also a prerogative in the Crown to dig and take 
saltpetre wherever found, to make gunpowder, which is a 
branch of the general prerogative for the defence of the 
realm. It differs from the prerogative of gold and silver 
in not attributing to the Crown any assignable property in 
the mineral, but only the right of taking it for a definite 
purpose • /'*. 
FnUic zights In some districts there are public rights of mining 
cu!uma!!^ founded upon custom; as the custom of tin bounding 
prevailing in Cornwall, and the customs prevailing in the 
Forest of Dean, and in the district of the Peak in Derby- 
shire. There customary rights are now for the most part 
r^Tilated by statutes (r). 

(y) 17ir« T. Bri4fg Gm Co., L. B. (a) 2 Co. Inst. 166 ; pati, p. 172. 

33 G. D. 562 ; 55 L. J. G. 734. [b) CateofFterogativeofSaUpeirt^ 

(z) Armory T. DelamirU, Sixnngef 12 Go. 13. 

605; 1 Smith's L. C. ; Meny t. (r) SeejiM^, p. 563. 
Green, 7 M . & W. 623. 



( 73 ) 



CHAPTER VI. 
GAME AND WILD ANIMALS. 

Property in game and wild animals— trespass in pursoifc of game. 
Game laws— penalties on trespasser— on occupier — g^me defined — 

noxious animals — ^tame animals. 
Bight to game as separate property^-contracts relating to taking 

game — Ground Game Act — licence to sport. 
Gonstraction of grants and leases as to the game — inclosure awards. 
Hating of game as a separate tenement. 
Forests — forest law — charter of the forest — chase— park— warren — 

grant of manor with warren. 

Land carries with it, as an incident of possession, the Property in 
right of capturing the game and other wild animals found ^^^aS^als 
upon it ; but there is no property in such animals imtil 
reduced into possession. " When it is said by writers in 
the common law, that there is a qualified or special right 
of property in game, that is, in animals /<?rflp natures which 
are fit for the food of man, the word * property' can mean 
no more than the exclusive right to catch and appropriate 
fiiuch animals, which is called by the law a reduction of 
them into possession. This right is said in law to exist 
ratione soli or ratione privilegii. Property ratione soli is the 
common law right which every owner of land has to take 
all such animals /£»rflp naturce as may from time to time be 
found on his land ; and as soon as this right is exercised 
the animal so caught becomes the absolute property of the 
owner of the soil. Property ratione privilegii is the right 
which by a peculiar franchise anciently granted by the 
Grown, by virtue of prerogative, one man may have of 
taking animals /ertF natures on the land of another ; and in 



74 



USES AND P&OFITS OF ULSD. 



Trespaasin 
pnrmit of 
gtktae. 



like manner the game when taken by yirtue of the piiYi- 
lege becomes the absolute property of the owner of the 
franchise " (a). 

If a person find game upon his own land and pursue and 
take it upon the land of another, it becomes his property, 
by reason of his original right of capture ; the pursuit and 
capture of the wild animal being considered as one con- 
tinuous act ; but the entry upon the land of another, with- 
out his leave, is a trespass, which is not justified by the 
pursuit of the game (6). If the game be both found and 
taken by a trespasser upon the land of another person, it 
becomes the property of the owner of the land, ratione 
soli, — as if it had been taken by himself or by his autho- 
rity {c). And so, it seems, if game be found by a tres- 
passer on the land of one person, and taken by bin^ on the 
land of another person, it becomes the property of the 
person on whose land it was found, ratione soli (d). Simi- 
larly if a trespasser started game in a franchise of forest or 
warren and pursued and took it beyond the boundaries of 
the franchise, the privilege followed the game, and it 
became the property of the owner of the franchise («). 
Where a person hunting with hounds in the usual 
manner over the lands of others found a hare on the land 



(a) Westbnry, L. C. Blades v. 
Hi^ai, 34 L. J. C. P. 288; 11 
H. L. C. 621. 

{b) Man wood, Forest Law, pp. 
387, 392, citing Year Book, 12 
H. 8, 10 ; Kenyofi v. Harty 6 B. & 
S. 249 ; 34 L. J. M. 87. 

{c) Blades r. EiggSy supra ; Lms' 
dale V. Jiiffg, 1 H. & K. 923 ; 26 
L. J. Ex. 196. 

{d) " If A. start a hare in tlie 
ground of B., and hunt and kill it 
there, the property continues aU 
the whUe in B. ; but if A. start a 
hare in the ground of B., and hunt 
it into the ground of C, and kill it 
there, the property is in A. the 
hunter: but A. is liable to an 
action of trespass for hunting in 
the grounds as well of B. as of 0." 
Holt, C. J. Suttoti V. Moodp, 1 L. 



Raym. 250 ; adopted in 2 Blackst. 
419. But as to the second of the 
above propositions "it would ap- 
pear to be more in accordance with 
principle to hold, that if the tres- 
passer deprived the owner of the 
land where the game was started 
of his right to claim the property, 
by unlawfully killing it on the 
land of another to which he had 
driven it, he converted it into a 
subject of property for that owner 
and not for himself ; the first pro- 
position with respect to game stiuted 
and killed on the land of the same 
owner is free from all difficulty.'* 
L. Chelmsford, Blades y. Siggs^ 
supra, 

(e) Holt, G. J. SutUm v. Mood^^ 
1 L. Baym. 260; L. Westbory, 
L. G. Blades v. Higgs^ supra. 



CHAP. VI. GAME AND WILD ANIMALS. 4 

of one person, and killed it upon the land of another, who 
olaimed the dead hare, it was held to be the property of the 
hunter ; who may be taken to have had the licence of the 
owner of the land where he found the hare, according to 
the usual custom of hunting ; he would therefore have the 
rights of the owner in claiming the hare(/). For the 
sport of hunting, as usuaU^^ pursued, can be justified only 
u{)on the ground of the consent, either expressly given or 
tacitly assumed, of aU. the occupiers of the land hunted 
over (g). 

By the common law there is no property in game until Game laws, 
it is taken and reduced into possession ; and therefore the 
wrongful taking of game by a trespasser cannot be dealt 
with as larceny or stealing of goods (A). The only remedy 
for the landowner at common law is by a civil action for 
the trespass. But statutes have been passed from time to 
time for the further protection of land from trespasses in 
pursuit of game, and for protection to the right of taking 
it. These are commonly known as the Grame Laws, and 
the principal enactments as to trespassers are as follows : — 
By the Game Laws Amendment Act, 1 & 2 Will. IV. 
c. 32, s. 30, " If any person shall commit any trespass by Penalty on 
entering or being, in the daytime, upon any land in search P***®'- 
of or pursuit of game, or woodcocks, snipes, quails, land- 
rails, or coneys, such persons shall, on conviction thereof 
before a justice of the peace, forfeit and pay such sum of 
money, not exceeding two poimds, as to the justice shall 
seem meet, together with the costs of the conviction ; pro- 
vided always that any person charged with any such 
trespass shall be at liberty to prove, by way of defence, 
any matter which would have been a defence to an action 
at law for such trespass ; save and except that the leave 

(/) Churchward v. Studdy, 14 (A) 3 Co. Inst. 109 ; 7 Co. 18 «, 

"Estsiy 249. Case of Swans ; Queen y. Tovmley, 

{a) Paul T. SummerhayeSf L. B. L. R. 1 C. 0. B. 315 ; 40 L. J. M. 
4 Q. B. D. 9 ; 48 L. J. M. 33. 144 ; Queen y. Mead, L. B. 3 Q. B. 

D. 131 ; 47 L. J. M. 60. 



76 USES AND PROFITS OF LAND. 

and licence of the occupier of the land so trespassed upon 
shall not be a sufficient defence in any case where the land- 
lord, lessor or other person shall have the right of killing 
game upon such land by virtue of any reservation or other- 
wise; but such landlord, lessor or other person shall for the 
purpose of prosecuting such offence be deemed to be the 
legal occupier of such land whenever the actual occupier 
thereof shall have given such leave or licence." — ^Entering* 
land by night for the purpose of taking game is made sub- 
ject to the punishment of imprisonment, by 9 Geo. IV. 
c. 69, s. 1. — These enactments apply to live game only, and 
not to a trespass by a person entering land to take game 
Penalty on killed there (t).— By 1 & 2 Will. IV. c. 32, s. 12, " Where 
ooonpier. ^^^ right of killing the game upon any land in exclusion 
of the right of the occupier of such land shall be specially 
reserved by or granted to or doth or shall belong to the 
lessor, landlord or any person whatsoever other than the 
occupier of such land, then, if the occupier of such land 
shall pursue, kill or take any game upon such land, or 
shall give permission to any other person so to do, without 
the authority of the lessor, landlord or other person having 
the right of killing the game, such occupier shall on con- 
viction forfeit and pay" a simi of money not exceeding two 
pounds together with the costs of conviction. — In a prose- 
cution under this section the exclusive right must be proved 
by production of the deed of grant (k). 
Game defined. For the purposes of these statutes, and also for the pur- 
pose of the excise in granting licences to kill and sell game, 
the following animals are declared to be game : — " Hares, 
pheasants, partridges, grouse, heath or moor game, black 
game, and bustards" (/). In the enactment 1 Will. IV. 
0. 32, s. 30, which makes it a penal offence to trespass in 
the daytime in search of or pursuit of game, " woodcocks, 
snipes, quails, landrails, and coneys " are included in addi- 



(t) Kenyan r. Mart, 6 B. & S. 140 ; pott, p. 78. 

19 ; 34 L. J. M. 87. (Oj 9 Geo. lY. c. 69 

(k) Barker v. Davie, 34 L. J. M. Will. IV. c. 32, b. 2. 



CHAP. VI. GAME AND WILD ANIMALS. 77 

Hon to the above. The sect. 12 of the same statute which 
imposes a penalty upon the occupier of land killing game 
without authority, does not include " rabbits; " he may kill 
them and employ persons to do so(m). In the larger 
definition of the Poaching Prevention Act, 25 & 26 Vict. 
c. 114, 8. 1 game includes " Hares, pheasants, partridges, 
eggs of pheasants and partridges, woodcocks, snipes, rabbits, 
grouse, black or moor game, and eggs of grouse, black or 
moor game." In the "Ground Game Act, 1880," the 
words " ground game " are defined to mean " hares and 
rabbits " (w). The word " game " is sometimes used in the 
general meaning of any wild animals which are fit for the 
food of man (o). — It h£is been supposed, as to a class of Noxious 
wild animals, other than game, described as noxious, that *^°'*"- 
there is a general right to kill them wherever found for 
the public good, and to pursue them, if necessary for that 
purpose, over the lands of any person (p). But doubt has 
been recently expressed concerning such right; and fox 
hunting, at least in the ordinary practice of the sport, 
cannot be justified under such supposed right, but must be 
carried on subject to the ordinary laws of property ; there- 
fore it can be lawfully followed only over the lands of those 
persons whose consent is expressly or tacitly given (q). — 
By the general rule of the common law, fish in a pond, 
deer in a park, coneys in a warren, doves in a dove-house, 
yoimg and old, go to the heir with the inheritance, because 
they are at liberty. But all such animals, if reclaimed Tame 
and tamed, become personal chattels in all respects ; they *"^"'^***- 
pass to the executor, and not to the heir or devisee of the 
land (r). Such is the condition, for the most part, of deer 
in a park in modem times ; they pass to the executor, and 

■ 

(m) l^ic^ V. Barnard, 28 L. J. 334. 
M. 176 ; Fadwiek v. Ewg, 29 L. J. (q) Paul v. Summerhayet, 4 Q. B. 

M. 42. D. 11; 48 L. J. M. 33; ante, 

(n) Fotty p. 80. p. 76. 

(o) Ante, p. 73. (r) Co. Lit. 8 a ; 2 Blackst. Com. 

Ip) Oundry v. Feltham, 1 T. B. 428. 



78 



USBS AHD PROFITS OF LAND. 



they may be diatrained for rent as personal chattels («). 
And nnder sach cbcamstanoes it is no waste of the inherit- 
anoe not to maintain a herd of deer {t). 



Btglit to The right to take game may be severed from the ownor- 

lato property, ship of the land and held as separate property. The right 
thns severed is of the nature of a profit d prendre in the 
land of another ; it is an incorporeal hereditament lying in 
grant, which can be created and conveyed at common la^7 
only by deed nnder seal (ti). It cannot be created by way 
of reservation or exception, strictly so called, from a grant 
of land, being no part of the thing granted ; and if so 
expressed in a deed of grant executed by the grantee, it 
operates, technically, as a new and distinct grant from the 
grantee, who becomes the owner of the land by the same 
deed and may grant the right of taking game in fee, or in 
tail, or for life, or for years {x). — ^A written agreement not 
under seal to grant the right of taking game, though it 
may not operate to convey the legal right, may support a 
claim to the rent or consideration or other stipulation of 
the agreement, after the legal right has been fully enjoyed 
for the time agreed (y). It may also be valid as a contract 
of which specific performance will be enforced ; and may 
thus create an equitable title ; and by the operation of the 
Judicature Acts the equitable title becomes, for most pur- 
poses, equivalent to the legal title (s). The law requiring 
a deed under seal is a lex loci ret sitce and not a lex fori: it 
therefore does not apply in English Courts to the proof of 
a Scotch agreement for game, for which a deed under seal 



(«) Baviea v. Poweil, Willes, 46 ; 

Morgan v. Abergavenny^ 8 0. B. 768. 

(t) Ford T. Tynte^ 31 L. J. 0. 

177. 

(w) Bird T. Siggimon, 6 A. & E. 
824 ; Wiekham v. ffawker, 7 M. & 
W. 63 ; Barker v. DaviSj 34 L. J. 
M. 140. Qoepott^j^. 330. 

(x) Moore v. Flymouth^ 7 Taunt. 
626 ; Wiekham v. Hawker, 7 M. & 
W. 6Z; Doe v. Lock, 2 A. & E. 



743 ; Fannell v. MtU, 3 C. B. 625. 

(y) Thomas v. Fredrieka, 10 Q. B. 
776 ; AdamM t. Clutterhuek, L. R. 
10 Q. B. D. 403 ; 62 L. J. Q. B. 
607. 

(z) WaUh T. Lonsdale, L. B. 21 
C. D. 9 ; 62 L. J. C. 2 ; AUhusm 
V. Brooking, L. R: 26 0. D. 665 ; 
63 L. J. C. 622. See Swain v. 
Agree, L. R. 21 Q. B. D. 293 ; 57 
L. J. Q. B. 430. 



CHAP. VI. GAME AND WILD ANIMALS. 79 

ia not required by the law of Scotland (a). The right of 
taking game as a profit d prendre is an interest in land 
within the 4th section of the Statute of Frauds, and there- 
fore a contract concerning it must be proved by writing 
sig;ned by the party charged therewith ; and this is a rule 
of procedure or lex fori (J). — Where the game is reserved 
or granted as a separate interest from the occupation, the 
owner is primd facte responsible for overstocking with 
game and for damage done by the excess of game beyond 
the natural supply (c). He is not justified in importing 
game bred on other ground, and it seems the occupier 
might kill the excess as a nuisance (d). He may main- 
tain an action for disturbance of the game (e). 

"The Gfround Game Act, 1880," 43 & 44 Vict. c. 47, Ground Game 
has restricted the power of severing the game from the 
occupation. Sect. 1 enacts, " iEvery occupier of land shall 
have, as incident to and inseparable from his occupation of 
the land, the right to kill and take ground game thereon, 
concurrently with any other person who may be entitled 
to kill and take ground game on the same land : provided 
that the right conferred on the occupier by this section 
shall be subject to the following limitations." These limi- 
tations are to the effect that the occupier shall exercise the 
right only by himself or by persons authorized by him' in 
writing ; being resident members of his household, his ordi- 
nary servants, and one person employed for reward. — The 
light of the occupier is made inalienable by sect. 3 enacting, 
that " Every agreement, condition or arrangement which 
purports to divest or alienate the right of the occupier as 
declared, given, and reserved to him by this Act, or which 
gives to such occupier any advantage in consideration of 
his forbearing to exercise such right, or imposes upon him 

(a) Adams Y. ClutUrhucky supra. (d)Birkbeekr. Paget, ZlBe&v. 403, 

{b) JFeMer y. Zee, L. B. 9 Q. B. (e) See IbboUon ▼. Peat, 3 H. & 

D. 315 ; 51 L. J. Q. B. 174 ; Leake C. 644 ; 34 L. J. Ex. 118 ; Pattison 

on Contracts, 2Dd ed. 295. v. Gilford, L. R. 18 Eq. 259 ; 43 L. 

(e) Farrer v. Nelson, L. B. 16 J. 0. 624 : Gearns v. Baker, L. B. 

Q. B. D. 258 ; 64 L. J. Q. B. 386. 10 Gh. 355 ; 44 L. J. 0. 334. 



80 USES AND PROFITS OF LAND. 

any disadvantage in consequence of his exercising sucli 
right, shall be void." Sect. 5 excepts from the operation 
of the Act *' the right to kill or take ground game vested 
by lease, contract of tenancy, or other contract bond fide 
made for valuable consideration in some person other than 
the occupier " at the date of the passing of the Act. A 
reversionary right under an agreement for a future lease is 
within the exception (e). Sect. 8 enacts that, " for the 
purposes of this Act, the words 'ground game' mean hares 
and rabbits." 
lioenoe to A licence to hunt and kill game without taking away 

"^ the game killed, is a licence of sporting or pleasure only, 

and not a licence of profit ; it is therefore strictly personal 
to the licensee, and not assignable ; and it is not any in- 
terest in land within the Statute of Frauds {g), " If there 
be a personal licence to an individual to hunt at his pleasure, 
he cannot t«ike away to his own use the game killed, or go 
with servants, still less send servants to kill for him, or 
assign his licence to another : but if the person is meant to 
have a property in the game which he kills, it is otherwise. 
And therefore if the licence is to hunt, kill, and cany 
away, he may hunt with servants or by servants. If there 
be a licence for him and his servants to himt, by these 
words * for him and his servants ' shall be understood a 
licence of profit ; for these words imply that the grantee 
hath a property vn the thing hunted, because that by such 
a licence the grantee may justify for his servant to hunt, 
which is more than a licence of pleasure. Whether the 
liberty is to be exercised by the licensee or his servants, or 
by the licensee or his assigns, makes no difference in this 
respect; both show that not a personal licence, but a 
licence of profit was intended to be granted " (A). 

(e) Allhtum ▼. Brooking^ L. R. (A) Per cur. Wtekham v. Sawker, 

26 C. D. 559 ; 53 L. J. G. 520. 7 M. & W. 78 ; citing Manwood^s 

{p) Webber t. Lee, L. R. 9 Q. B. Forest Law, c. 18, a. 3. 
D. 315; 51L. J. Q. B. 174. 



CHAP. VI. GAME AND WILT) ANIMALS. 



81 



The general rule of construction of grants and leases of Construction 
land, as to the right to take the game, is that the game fea»raas*to^ 
presumptively follows the possession of the land in the the game, 
absence of expressed intention to the contrary (t). A 
written agreement of tenancy containing a clause to 
the effect that the tenant should not destroy any game, 
that he should at request of the landlord forbid tres- 
passing, and should preserve aU the game bred on the land, 
was construed as insufficient to give the landlord the right 
to enter and take the game ; it deprived the tenant of the 
right, but did not impliedly vest it in the landlord. There- 
fore the tenant could not be convicted as occupier of killing 
game reserved to another, xmder 1 & 2 Will. IV. c. 32, 
8. 12 (J). So a clause in a lease authorizing the lessor to 
prosecute trespassers in pursuit of game was held insuffi- 
cient to invest him with the right of taking the game (k), 
A grant of free liberty of " hawking and hunting " was 
construed not to extend to shooting game with a gun; 
the word "himting," as it was said, in its fair accepta- 
tion, not extending to shooting feathered game (/). — Upon Inolosnre of 
the inclosure of wastes of a manor, over which the lord ^*^ * 
has the right to the game as incident to his ownership of 
the soil, the commissioners under the Greneral Inclosure 
Acts, in allotting the* waste in several ownership, have 
power to sever the right to the game and reserve it to the 
lord as a separate tenement. How far they have done so 
in any particular case is a question of the meaning of the 
terms of their order, according to the ordinary principles 
of construction {m). Where an inclosure was made with 



(i) Moore ▼. Pit/mouthy 7 Taunt. 
614 ; see 1 & 2 Will, IV. o. 32, 
88. 7, 8. By the Scotch law the 
presumption is that a lease confers 
only such rights as are necessary 
for the purpose for which the land 
IB let. An agpricultural lease in- 
cludes only agricultural rights, and 
the rights of hunting, shooting, 
fishing and the like, subject to 
liability for damage, are reserved 

L. 



ex leffey without special reservation. 
Copland y. Maxwell, L. R. 2 Sc. Ap. 
103. 

{J) Ante, p. 76 ; Coleinan v. 
Bathurst, L. R. 6 Q. B. 366; 40 
L. J. M. 131 ; Lush, J. distentiente. 

{k) Pannell v. Mill, 3 C. B. 638. 

(/) Moore v. Plymouth, 7 Taunt. 
614. 

(w) Musgrave v. Fornter, L. R. 6 
Q. B. 690 ; 40 L. J. Q. B. 207 ; 

O 



82 rSES AND PROFITS OF LAND. 

reservation to the lord of all manorial rights, including 
the right of " hawking, hunting, fishing and fowling, in- 
cident or belonging or appertaining to the manor"; it 'was 
held that his right to the game as an incident of the soil 
ratione soli^ was not included in the reservation of mano- 
rial rights or of rights incident to the manor; and the 
lord having in fact no franchise or manorial right of the 
kind beyond that incident to his ownership of the soil, 
retained no right of shooting over the allotted lands (n). 

BatiDg of The statute 43 Eliz. c. 2, which established the rating of 

fate tra^^'. 1^^^ ^or *^® relief of the poor, did not apply to the right 
of taking the game, when held as a separate tenement. 
Land occupied together with the right to the game is 
rateable at the enhanced value due to the game (o). And 
if the occupier himself lets the game to another, the land 
continues rateable at a value enhanced by the rent derived 
by the occupier from the game (/?). But land occupied 
separately from the game is rateable only upon the value 
of the occupation, exclusive of the value of the game (^). 
KatiDg Act, —By "The Eating Act, 1874," 37 & 38 Vict. c. 54, s. 3, 
the above Act 43 Eliz. c. 2, and other Eating Acts are 
extended " to rights of fowling, of shooting, of taking or 
killing game or rabbits, and of fishing, when severed irorxi 
the occupation of the land." Sect. 6 (1) provides that 
"where any right of taking game is severed from the 
occupation of the land and is not let, and the owner 
receives rent for the land, the rateable value of the land 
shall be estimated as if the right were not severed " ; and 
the occupier may deduct from his rent the increase of the 
rate, if any, due to the estimate of the game. (2) ""Where 

Graham v. Swart, 7 H. L. C. 331 ; 609 ; 29 L. J. Ex. 297 ; poit, 

29 L. J. Ex. 88 ; Lecotifield v. p. 86. 

Dixon, L. R. 3 Ex. 30 ; 37 L. J. (o) Eyton v. Mold, L. R, 6 Q. B. 

Ex. 33. D. 13 ; 60 L. J. M. 39. 

(«) Sotcerbf/ v. Smith, L. R. 9 (p) Queen v. Batik, L. R. 2 

C. r. 624; 43 L. J. C. P. 290; Q. B. 8 ; 36 L. J. M. 1. 

Great head v. Mar lei/, 3 M. & G. {q) Queen v. Thurhtone, 1 E. & 

139 ; Bruce v. HeUiiieU, 6 H. & N. E. 602 ; 28 L. J. M. 106. 



1874. 



CHAP. VI. GAME AXD WILD ANIMALS. 83 

any right of sporting, when severed from the occupation of 
the land, is let, either the owner or the lessee thereof, 
may be rated as the occupier thereof." Under this enact- 
ment, where the owner and occupier of the land lets the 
game, either he may be rated upon his occupation enhanced 
by the rent paid for the game, or the lessee of the game 
may be rated upon its value (r). 

The property in game above indicated as existing /t^r^ 
pririlegii consisted of the ancient franchises or rights of 
forest, chase and warren, now practically obsolete ; but 
which have left traces in the language and doctrines of the 
law that require some explanation. The early English Foreeta. 
kings claimed a prerogative right of property in game and 
wild animals, as being mdlim in bonk ; and for the use 
and enjoyment of their right they exercised the further 
prerogative of proclaiming any district at their will and 
pleasure to be a forest, with the consequence of subjecting 
it to a special body of law called the Forest Law, adminis- 
tered by special justices and other officers commissioned 
by the Crown, and to that extent withdrawing the district 
from the jurisdiction of the common law, or at least sup- 
plementing the common law in that district («). The Foreetlaws. 
forest laws " are not rules of the common law nor Acts of 
Parliament ; but they are regulations made by the Crown 
for the government of the forest." They are not matter 
of judicial notice ; but they are matter of evidence, and 
may be proved by usage where they cannot be produced {t). 
The forest laws were directed to the preservation of the 
beasts of chase, which involved also the protection of the 
woods and pastures. Waste committed on the woods or 
pasture, by clearing or cutting or ploughing up, was 
visited with penalties ; no buildings or inclosures were 

• 

(r) Kenriek t. Ouihfield, L. B. 6 415, 419. 

C. P. D. 41 ; 49 L. J. M. 27. (<) Melliah, L. J. Sewers Com- 

(«) Manwood'a Forest Law, c. 2, misaimiei's v. Glasse, L. B. 7 Ch, 

following Bracton; 2Black8t. Ck)m. 468 ; 41 L. J. C. 419. 

g2 



\ 



81 USES AND PROFITS OF LAND. 

allowed, unless with licence of the proper authorities of the 
forest (w). But by custom and by prescription tenants of 
land within the forest acquired rights of common of 
yarious kinds in the woods and wastes, as appurtenant to 
their tenements ; which remain valid and valuable at the 
C^irter of the present day (x) .—By the Charter of the Forest, 1 Hen; III., 
A.D. 1216, confirmed in successive parliaments of that and 
succeeding reigns, it was conceded by the Crown that all 
lands that had been afforested under the preceding kings 
should be disafforested, so far as they extended beyond 
the demesne lands of the Crown ; within which territorial 
limits the forest laws continued in force. — ^Before this 
statute the Crown had claimed and exercised an unlimited 
right of afforesting all lands, whether demesne lands or 
lands in tenure ; except that by the Magna Carta of John, 
A.D. 1215, it had been conceded that aU. lands afforested in 
his time should be disafforested. The lands disafforested 
by the Carta de Foresta were thereby exempted from the 
jurisdiction of forest law as regards the tenants of lands 
therein, who then became entitled freely in right of 
their tenements to take the game, to cut woods, and to 
inclose and plough pastures ; but as regards other 
persons, they still remained forest. The lands thus cir- 
cumstanced were distinguished as purlieus of the forest, 
within which the forest law was in force except against 
tenants of the land {y), Qrants of demesne lands within 
a forest made subsequently to the above Charter of 
the Forest were subject to forest law, unless expressly 
exempted by the terms of the grant ; because by common 
law royal prerogatives and franchises do not pass in a 
grant of land, without express words. Hence all tenants 
within a forest became bound to show their title to exemp- 

(m) Manwood's Forest Law, cc. 8, v. Miles, L. R. 17 C. D. 535; 50 

9, 10. L. J. C. 764 ; of Hatfield Forest, 

(x) Seotbe case of Epping Forest ^ Barrington' s Ca%e, 8 Co. 136 3 ; and 

Sewers Commissioners v. GUuse, L. the Case of Forests, 1 2 Co. 22. 

B. 19 £q. 134; 44 L. J. C. 129; (y) Man wood's Forest Law, c 20. 
of Askdoum Forest, Farl de la JTarr 



CHAP. VI. GAME AND WILD ANIMA]«S. '85 

tion from forest law (s). — ^A forest, though a royal fran- Chase, 
chise created by prerogative of the Crown, might be 
granted, as regards the beneficial incidents, to a subject. 
But the royal prerogative of holding courts and appoint- 
ing judicial officers could not be held ty a subject, ^o 
could only have recourse to the ordinary process of the 
common law. The franchise of forest thus stript of 
its special courts and jurisdiction in the hands of a subject 
was designated by the name of a chase {a). A chase, like 
a forest, was open and uninclosed ; if inclosed, it became a 
Park, There may be a park in mere name, without Park, 
any franchise by charter or prescription ; and such is the 
condition of nearly all parks at the present day (6). 

Free vcarren is a franchise similar to that, of forest or Free warren, 
chase, but extending only to beasts and fowls of warren ; 
which include hares and rabbits as beasts of warren, and 
pheasant and partridge as fowls of warren. " The 
franchise of free warren gives a property in wild animals, 
and that property may be claimed in the land of another 
to the exclusion of the owner of the land. Such a right 
ought not to be extended by argument or inference to 
any animals not clearly within it." Grouse are not fowls of 
warren (<?). The right of free warren may be restricted to 
certain only of the beasts or birds of warren ; and coneys 
being the principal beasts of warren as regards profit, a 
"warren of coneys" was frequently granted, as a distinct 
species of right {d). The term " warren" may serve in a 
grant by way of special description to pass the land itself, 
if so intended and expressed {e)\ — The grant of a manor Grant of 
by the Crown was sometimes accompanied with a grant JJJJ^JJ^*^ 
of the franchise of warren within the manor ; but free 
warren is not an ordinary incident of a manor. For the 

» 

(z) Manwood, 3rd ed. p. 136 ; {c) Devomhire y. Zodpef 7 B. & 

Plowd. 332 b, G. 36 ; Manwood, o. 1, s. 5 ; o. 4, 

(a) Manwood, 3rd ed. pp. 62, s. 3 ; Co. Lit. 233 a. 

77 ; Case ofForesUf 12 Co. 22. (d) L. Chelmsford, Beauehamp v. 

(6) Manwood, 3rd ed. p. 62 ; 2 Winn, L. B. 6 H. L. 238. 

Blackst. Com. 38, 416 ; (mte^ p. 77. {e) Anie^ p. 6. 



86 



tJ6E8 AND PROFITS OF LAND* 



lord of a manor as sucli has no right to the game within 
the manor beyond his demesne land, unless he can show 
some special franchise (/). A grant by the Crown of a 
manor with free warren within the laeLnoT primd facie gives 
the right of warren over the lands of the grantee only, 
that is, over his demesne lands, strictly so called ; for the 
Crown cannot grant any such right over the lands of a 
subject without his consent. " A grant of free warren is 
in general confined to the lands of the grantee ; the king 
cannot grant it over the land of a third person; and 
though he might grant it over his, the king's, own lands, 
unless the words were such as to show unequivocally that 
such was the intention, they would not have that effect " (g), 
A grant by the Crown of a manor with free warren is a 
grant of the franchise as a right in gross, and does not 
annex it as an appurtenance to the manor ; consequently 
where the grantee afterwards conveyed the manor, " with 
all rights, profits, royalties, franchises, &c. belonging or 
appertaining to the manor" ; it was held that the franchise 
of warren did not pass by the conveyance (/<). But a 
warren may be appurtenant to a manor by prescription, so 
as to pass with the manor ; and a man may have warren 
in the land of another as appurtenant to his manor, and if 
the manor is granted cum pertinentiis, the warren will 
pa8s(«). 



(/) Dacre v. Tebb, 2 W. Blackat. 
1161 ; Fickering v. Nbyen^ 4 B. & 
C. 689; Cockbum, C. J. Sowerby 
V. Smith, L. B. 9 C. P. 532; 43 
L. J. C. P. 290. 

is) A,'0. V. ParsotUj 2 C. & J. 
302. 



(A) Bowhtm V. Hardy, Cro. Eliz. 
647 ; MorHt v. Din%t9, 1 A. & £. 
664. 

(») Taunton, J. Morris v. Dima, 
1 A. & E. 666 ; per cur, FatmeU t 
Milh, 3 C. B. 638. 



( 87 ) 



CHAPTER Vn. 
HOUSES AND BUILDINGS. 

Property in land — includes houses and buildings — house includes 

land on which it is built — appurtenants — Lands Clauses Act. 
Partition of house into separate tenements— relative rights of part 

owners. 
Liability of tenant for waste and rejMur of houses and buildings — ^per- 

mistdve waste — charge of repair — incumbent of benefice — tenant 

' ' without impeachment of waste. ' ' 
Waste in houses and buildingB— new buildings — treasonable use — 

superior force— accidental fire — suspension of rent. 
Covenant of lessee to refuiir — exceptions of fire and other accidents — 

implied contract for tenant-like use — liability of landlord to repair 

— implied warranty of demised premises — covenant of lessor to 

repair — insurance against fire. 
Repairs and improvements of settled estates — ^jurisdiction of Court 

— Settled Land Act. 

Land, as a general designation of the subject of pro- Land includes 
perty, includes all houses and buildings annexed to the ^SoSnm.^ 
soil ; and it is so construed primd facie in deeds, wills and 
other legal documents. " For houses consist of two things, 
viz., land or ground as the foundation, and structure there- 
upon ; so as passing the land or ground, the structure or 
building thereupon passeth therewith" (^). But some 
buildings may be so constructed and placed upon indepen- 
dent supports as to be considered as separate moveable 
chattels (6).— By the statute 13 & 14 Vict. c. 21, "An 
Act for shortening the language used in Acts of 
Parliament," it is enacted, sect. 4, "that in all Acts 
the word ' land ' shall include messuages, tenements 

(a) Co. Lit. 4a; see Goodtitle d. Chester v. Alker^ I Burr. 144. 
\h) Tost, p. 112. 



^^ UaK» AJTO PWJFTIS OF LA3nX 

ami ii*r«HiiraiiiKir5, runses ami bnilLim^, of any tentcre, 
nnlei*?? whts*^ tlirtr** are wnrds to exclude houses and 
huLaiin^zs, or tu r»*:?crit-r th*» meaniii^r to tenements of some 
parriL-Tiliir r»*iinr»."' Eat in 5«.^ine Act;? the words ** houses 
and biiLJiinss ** :ir«* u^^i in 'il^tiiiotion to **• land " ; as in 
the Alt t«:r Luriinn^r and Wat«-hfr>g of Parishes, 3 & 4 
"VTilL IV. •?. !>♦', s. oo, by whit.h *• hooves and buildings" 
are rateti tlir^e tiznes hf:rier than '•land" (c). — ^Tmsts to 
invest in •* Laz.d" mav, in :reneraL b-e executed bv the pur- 
chase of h«:a^e?»; '^r hv bail* ling hoases npon land settled 
npjn the aame tm^ts. f«:T this is sobstantiallj the same 
thing as porr-hasuig h« ^o^es as regards augmentation of tlie 
propertv. Bat repairs and improTements of existing 
honses ap^n settled land do not come within the principle, 
unless expressly aath*irizei because they would imduly 
benefit the tenant for life {cT)- The same principle is 
apj)lied in the re-inTestment of the purchase-money of 
settled land under the Lands Clauses Act, and under the 
Settled Estates Acts, and under the Settled Land Act, 
1882 (^). 
Hoiwe in- The term " house '' or " messuage " or any like designa- 

which itU ^ ^^^^ ^^ * structure or building, in deeds, wills, and other 
tmih. legal documents, prima facie includes the land whereon it 

stands. Also " By the grant of a messuage or house, the 
orchard, garden and curtilage do pass ; and so an sucie or 
more may pass by the name of a house." The additional 
land passes as being in fact part of the entire subject 
Appurto- designated as house or messuage (/). — It is usual to add 
in a conveyance of a house or land the phrase " with the 
appurtenants " ; but this phrase does not serve to enlarge 
the subject of conveyance. It will not convey other land, 
bcmidos that which passes with the house or land designated, 

((') The Quem v. North, L. R. 6 3 C. D. 743. 

Q. IV 707 ; 40 L. J. M. C. 193. (<•) Me Leigh's Estate, L. R. 6 

(rf) hrrtkf V. Trrfuiin, L. R. 10 Ch. 887; 40 L. J. C. 442; Re 

V\u 304 : lif lf»Ue» SettUmettfj Iseuman' a Estates, L. R. 9 Ch. 681 ; 

I,. 11. a 0. I). 186; 46 L. J. C. 43 L. J. C. 702. 

rtOH ; iHnnUimn v. ThnaftisoH, L. R. (/) Ante, p. 6. 



UAntfi 



CHAP. VII. HOUSES AND BUILDINGS. 89 

merely by reason of such other land having been in fact 
Tisually annexed to or occupied with the subject of convey- 
ance. The phrase has a strict technical meaning with 
reference to the easements which may be appurtenant to a 
house or land, as ways and lights; and land cannot be 
claimed as an easement to other land (r/). "Neither in 
a deed nor in a will does the word * appurtenants ' include 
land, if the principal subject of gift is land or a messuage. 
But if from the circimistances and the whole context, it is 
clear that land is intended to pass as appurtenant, the 
word * appurtenant' is flexible enough to carry it " (/<). 

The Lands Clauses Consolidation Act, 1845, 8 & 9 Lands Claiues 
Vict. c. 18, which gives to public companies compulsory 
lK>wer8 of purchasing land, provides by s. 92, "that no 
party shall be required to sell a part only of any house, or 
other building or manufactory if such party be willing and 
able to sell the whole thereof.'* Under this provision it 
frequently becomes necessary to determine what is the 
whole of a house which the purchaser may be compelled to 
take. The word " house " is not defined in the Act ; it is 
therefore construed in the ordinary meaning of legal instru- 
ments to include garden, curtilage oad all the appur- 
tenants above described which would pass under a convey- 
ance of the house as applied to the case in question ; no 
part only of which can the owner be required to sell, if 
willing to sell the whole (t). The word "manufactory" 
has a wider meaning ; " a manufactory may be more than 
one house or more than one building, or it may consist of 
neither house nor building, but only of land used for a 
purpose of manufacturing " ; and the purchasing company 
may be compelled to take the whole (j). The owner in all 

(ff) Ante, p. 7; eeepoatj p. 190. L. J. C. 731; Sieeie y. Midland 

(A) Kay, J. Cuthheit v. Robinson, Ry.y L. R. 1 Ch. 276 ; Barnes v. 

61 L. J. C. 238 ; Blackburn v. Southsea Ry. Co., L. R. 27 C. D. 

JSdgUpt 1 P. Wma. 603 ; per cur. 636 : Kerford v. Scacombe Ry., 67 

Thomas v. Owen, L. R. 20 Q. B. D. L. J. 0. 270. 

232 ; 57 L. J. Q. B. 202. [j) Richards v. Swansea Impiov. 

(i) Grosrenor y. Hampsiead Junc' Co,, Li. R. 9 G. D. 426. 

iim Ry., 1 De G. & J. 446; 26 



90 



VSES AND PROFITS OF LAND. 



Buch cases cannot be compelled' to sell to the company 
more than is necessary for their authorized undertaking (k). 
— ^In the Burial Acts, which provide that no ground shall 
be used for burial within the distance of one hundred 
yards from a dwelling-house ; the word " dwelling-house" 
is construed strictly as a point for measuring the distance, 
and not as including garden or curtilage (/). 



Partitioii of 
house in 
separate 
tenements* 



It is a general rule of construction that a conveyance of 
a house or building, as of land, presumptively carries with 
it everything vertically above and below the property de- 
scribed; but it may be restricted in application to the 
actual state of the property. The house or building may 
be partitioned into separate tenements ; *' a man may have 
an inheritance in an upper chamber, though the lower 
buildings and soil be in another" (»*). The lease of a 
house described as in the occupation of A. was held not to 
include the cellar which at the time of the lease was in the 
separate occupation of B. ; and evidence was held admis- 
sible to show the state and occupation of the premises (h). 
In the case of two adjacent houses the rooms of which 
intersect, a conveyance or devise of the one will not include 
the intersecting rooms of the other. " The ordinary rule 
of law is that whoever has got the site is the owner of 
everything up to the sky and down to the centre of the 
earth. But that ordinary presumption of law is frequently 
rebutted by the fact that other adjoining tenements pro- 
trude themselves over the site. The question then arises 
whether the protrusion is a diminution of so much of the 
freehold, including the right upwards and downwards, as 
is defined horizontally by a section of the protrusion ; or 
whether such a portion only is carved out of the freehold 
as is included between the ceiling of the room at the top 



(k) Oard y. CommtM, of London^ 
L. R. 28 C. D. 486 ; 64 L. J. C. 

698. 

(/) Wright y. Wallasey Board, 
L. R. 18 Q. B. D. 783 ; 56 L. J. 



Q. B. 259. 

(m) Co. Lit. 48 b. 

(n) Doe V. Burt, 1 T. R. 701; 
Press v. Barker J 2 Bing. 456 ; Martyn 
V. Lawrence, 2 D. J. & S. 261. 



CHAP. VII. HOUSES AND BUILDINGS. 



91 



and the floor at the bottom" (o). So a defined portion of 
a room may he let separately from the remaining portion, 
with exclusive possession ; as where a portion of a room in 
a factory was let off, with the use of steam-power at a 
fixed rent, it was held to be a good demise and that the 
lessor might distrain goods upon the premises for rent {])), 
So the boxes and stalls of a theatre may be separate sub- 
jects of sale and lease (q). 

The partition of a house or building into separate tene- Relative 
ments creates relative rights and obligations of the several ownera^o?"^ " 
owners, analogous to such as exist between the several ^onae. 
owners of surface and minerals (r). The grantor of an 
upper room of a house, with reservation of the lower, 
cannot derogate from his grant by removing the under- 
pinning or support of the room granted, any more than 
upon a similar reservation of mines the grantor can take 
the whole of the minerals and let down the surface. But 
in the absence of special agreement there is no obligation 
upon his part to repair the support ; which the grantee 
must do for himself if necessary, and he may enter upon 
the lower room for that purpose (s). So, upon a grant of 
the lower part of a house or building reserving the upper, 
in the absence of express agreement^ it seems there is no 
implied obligation to repair the roof or upper story {t). 
Where a house is partitioned in separate tenements, the 
owner or occupier of one tenement is bound to take all 
reasonable care in using his tenement to prevent any 



(o) James, L. J. CorbeU v. Hill^ 
L. R. 9 Eq. 671 ; 39 L. J. C. 547. 

{p) Selby V. Greaves, L. R. 3 
C. P. 694 ; 37 L. J. C. P. 251. 

(q) Flight v. Ghssop, 2 Biug. 
N. C. 126 ; Leader v. Moodt/, L. R. 
20 Eq. 146 ; 44 L. J. G. 711 ; Scott 
Y. Boward, L. R. 6 Ap. Ca. 295. 



CoUbeek y. Girdlera* Co., L. R. 



(r) Ante, p. 65. 

h) Cokbeek y. G 
1 Q. B. D. 234 ; 46 L. J. Q. B. 
226 ; Parke, B. Harris y. Ryding, 6 
M. &W. 71. 



(0 1 Wms. Saund. 322, n. (1), 
Fom/ret v. Ricroft, By the law of 
Scotland ' ' where a house is divided 
into different floors or stories, each 
floor belonging to a different owner, 
which frequently happens in the 
city of Edinburgh, the proprietor 
of the ground story is obliged to 
uphold it for the support of the 
upper, and the owner of the upper 
must uphold that as a roof or cover 
to the lower." Erskine's Inst., 
cited in Humphries y. Frogden, 12 
Q. B. 756. 



92 



USES AND PROFITS OF LAXD. 



damage accruing to the other tenements, and he would be 
liable for the neglect of such duty ; but he would not be 
liable for unavoidaHe accidents («). 



Liability of 
tenant ror 
lepoir and 
waste of 
hoiiaee. 

Permistfive 
waste. 



The only liability of a tenant for life or for years of 
houses and buildings, as regards the use and possession, in 
the absence of special stipulation, is the general liability 
for waste (v). And it seems doubtful whether a tenant for 
life or for years is liable at common law for mere non 
repair, as permissive waste (tr). It is said that "waste 
may be done in houses by suffering the same to be im- 
covered, whereby the rafters or other timbers of the house 
are rotten "(.r); but the bare suffering them to be un- 
covered, without rotting the timber, is not waste (y). 
Accordingly it has been held that a tenout from year to 
year is only bound to keep the house wind and water 
tight so far as to prevent waste and decay (s) ; and that 
** he is not liable for the mere wear and tear of the pre- 
mises,'' as being permissive waste {a) . But in a recent 
case it has been held that a lease with a covenant to repair, 
** fair wear and tear excepted," was not in conformity with 
a power to grant leases, not to be made without impeach- 
ment of waste ; because the exemption from repairing the 
wear and tear was an exemption from liability for per- 
missive waste, for which the tenout would otherwise be 
liable (6). — ^The doctrine of equity seems not doubtful. 
" Whatever be the legal liability, the Court has always 



(m) Carglairs v. Taylor^ L. B. 6 
Ex. 217 ; 40 L. J. Ex. 129 ; Soas v. 
Feddefi, L. R. 7 Q. B. 661 ; 41 L. J. 
Q. B. 270 ; see Anderson v. Oppen- 
heimer, L. R. 6 Q. B. D. 602 ; 49 
L. J. Q. B. 466 ; Stevent y. Wood- 
ward, L. R. 6 Q. B. D. 318; 50 
L. J. Q. B. 231. 

{v) See antdf p. 18; Parke, B. 
Dietrichsen v. Giuhelei, 14 M. & 
"W. 850. 

(w) Per eur. Harnett v. Maitland^ 
16 M. & W. 262 ; see Heme v. Ben- 
how^ 4 Taunt. 704 ; Woodhouee v. 



Walker, L. R. 5 Q. B. D. 407 ; 49 
L. J. Q. B. 611. 

{x) Co. Lit. 53 a ; anie, p. 18. 

(,v) KnolVs CoMf HargTave*8 note 
to Co. Lit. 53 a. 

{s) Tenterden, C. J. Anworih t. 
Johnson, 6 C. & P. 239, ciUng Fer* 

ffuson V. , 2 Esp. 590 ; Patteson, 

J. Leach V. Thomas, 7 C. & P. 327. 

(a) Taunton, J. IbrrianoY. Toun^, 
6 C. & P. 8. 

(*) Daviet v. DaHes, L. R. 38 C. 
D. 499. See YeUowly v. Oowtr, 11 
Ex. 294 ; 24 L. J. Ex. 289. 



1 



CHAP. VII. HOUSBS AXD BUILDINGS. 



93 



declined to interfere against mere permissive waste ; the 
Court never interposes in ease of permissive waste, either 
to prohibit or to give satisfaction, as it does in case of wiKiil 
waste "(c). And "an equitable tenant for life cannot be 
called upon to repair and cannot be made liable for neglect- 
ing to repair " (d). 

Kepairs may be charged by the limitation of the estate ; Charge of 
as where a house was devised upon the terms of the devisee '®P*^* 
for life "keeping the same in good and tenantable repair," 
and during his tenancy the house was destroyed by 
an accidental fire, it was held " that the will created an 
obligation upon the tenant for life to rebuild the pre- 
mises "(<»). Where a devisee for life, subject to the like 
charge, died leaving the premises out of repair, it was held 
that the remainderman had a right of action for waste by 
non-repair against the executor, and that the measure of 
damages was the sum necessary to put the premises in the 
state of repair in which the tenant for life ought to 
have left them(/). — The incumbent of an ecclesiastical Incumbent of 
benefice was held bound at common law to repair and 
maintain the house and buildings, having regard to 
the nature of the tenancy (f/). During the incumbency 
the patron of the benefice might bring a suit to restrain 
the commission of waste, and it seems he might have 
an account of the proceeds of waste committed (A). After 
the retirement or death of the incumbent the successor had 
an action against him or his executor to recover the value 
of the dilapidations (*). The dilapidations of buildings 



(c) Cranworth, L. C. Powys v. 
Blagrave, 4 D. M. & G. 458 ; 24 
L. J.' C. 146, citing Castiemain v. 
Craven, 22 Vin. Abr. 623 ; Wood v. 
Gaynon, Ambl. 395 ; see irarren v. 
Jtudall, IJ. & H. 1 ; 29 L. J. C. 
543. 

(d) Cotton, L. J. Se Hotehkya, 
L. R. 32 C. D. 418 ; 55 L. J. C. 
649. 

{e) Re Skingley, 3 Mac. & G. 
221. 
(/) Woodhouu V. Walker, L. R, 



6 Q. B. D. 404 ; 49 L. J. Q. B. 
609; see Baiihyany r. JFai/ord, 
L. R. 33 0. D. 630. 

iff) Wise V. Metcalfe, 10 B. & 0. 
299; Huntley y. Rmeell, 13 Q. B. 
572. 

(h) Jlolden v. Weekee, 1 J. & H. 
278 ; 30 L. J. C. 35 ; Sowerhy v. 
Fryer, L. R. 8 Eq. 423 ; 38 L. J. 
C. 617. 

(») Bunbttry v. Setcson, 3 Ex. 
558 ; Stirling, J. Re Monk, L. R. 
85 C. D. 685. 



94 



USES AND PROFITS OF LAM). 



of ecclesiastical benefices are now specially provided against 
and remedied by "The Ecclesiastical Dilapidations Act, 
1871," 34 & 35 Vict. c. 43 {g). 
Tenant Tenant for life " without impeachment of waste," though 

impeachment not chargeable at law with waste, is chargeable with equit- 
of waste." ^\q waste, that is, wilful and unreasonable abuse of 
the property. Where tenant for life under a settlement 
"without impeachment of waste" from motives of dis- 
pleasure at his son who was tenant in remainder, began 
wilfully to destroy the house, the Court granted an in- 
junction to restrain the waste and decreed that the house 
should be restored (A). 



Waste in 
houses and 
buildings. 



Property in 
materials. 



The pulling down of houses or buildings by the tenant 
is primd facie waste ; so also any destruction done to a 
house or building or to any part of it, or to any fixture 
annexed to it, is primd facie waste, for which the tenant 
is responsible to the lessor or reversioner. If a house 
or building be ruinous at the tenant's coming, it is not 
waste in him to sufiEer it to fall down, but it is waste if he 
pull it down, unless for the purpose of rebuilding it (t). 
But the pulling down of a building is not waste, if proved 
not to be to some material extent injurious to the inherit- 
ance (k), — If the tenant wastefully pulls down a house, 
the lessor, besides his action of waste, becomes entitled to 
the property in the materials, as being parcel of the in- 
heritance in which the interest of the lessee is determined 
by the severance ; as in the case of trees wastefully cut (/). 
But " if the house fall down by tempest, or be burnt by 
lightning, or prostrated by enemies, or the like, without a 
default of the tenant, or was ruinous at his coming in and 
fall down, the tenant may build the same again with such 



(g) Jones v. Banaerjield, L. K. 1 
C. D. 438 ; 46 L. J. C. 161 ; JKitn- 
bery, Faravicini, L. B. 16 Q. B. D. 
222 ; 64 L. J. Q. B. 471 ; Jte Monk, 
L. R. 35 C. D. 683. 

(h) Vane v. Barnard, 2 Vem. 



738 ; 1 Salk. 161 ; ante, p. 24. 

(i) Ck>. lit. 63 a; ante, p. 18. 

(k) Doe V. £arl of Burlington, 6 
B. & Ad. 607. 

(/) 4 Co. 63 a, Herlakenden'e 
Case ; ante, p. 37. 



CHAP. VII. HOUSES AND BUILDINGS. 95* 

materials as remains, and with other timber which he may 
take growing on the ground" {m), A tenant may in 
general take materials for repairing houses and buildings 
from the demised premises, as timber, stone and the like. 
But if the tenant commit waste, and then fell down 
timber to repair the same, this is a double waste («). 

It is laid down that " if the tenant build a new house it New build- 
is waste, and if he suffer it to be wasted it is a new ^^' 
waste" ; but this is to be understood with the condition 
that the new house or building affects the inheritance of 
the land in manner which the law recognizes to be inju- 
rious (o). Opening a new door in a house was held not to 
be waste, unless proved to weaken or injure the build- 
ing (p)' Fulling down old buildings and replacing them 
with new maybe injurious to the inheritance by increasing 
the charge upon the estate and thereby diminishing its 
value, or by confusing the identity and impairing the evi- 
dence of title ; and if it be proved to be injurious to a 
material extent it is waste (q). And the making of new 
walk, fences, hedges or ditches, to the confusion of boun- 
daries, may be waste (r). A provision in a lease that the 
tenant should repair and keep in repair such buildings, 
improvements and additions as should be made by him 
during the term, was construed to give him an implied 
licence to make such improvements and additions, which 
otherwise might legally be waste («). 

A tenant is not liable for damage or destruction of Proper and 
buildings resulting from reasonable use of them for the '®**^°* ® 
proper purpose for which they were intended ; imless he 
is under some special obligation or agreement to repair. 
" No user of a tenement which is reasonable and proper. 



UBe. 



(m) Co. lit. 63 a; 4 Ck>. 63 a, US ; Doe y. Jones, 4 B. & Ad. 126. 

Herlakcnden*8 Cote; 11 Co. 82 a, (q) Greene y. Cole, 2 Saund. 259, 

Bowlee' Case. note (II) ; JDoe y. Bond, 5 B. & C. 

(ft) Co. Lit. 53 b; ante, p. 36. 855 ; Suntley y. Ruseell, 13 Q. B. 

(o) Co. Lit. 53 a; Jones y. Chap- 572. 

pell, L. R. 20 Eq. 639 ; 44 L. J. C. (r) Co. Lit. 63 b ; Quern's Coll. 

658; ante, p. 18. y. Hallett, 14 East, 489. 

{p) Young y. Spencer, 10 B. & C. (a) Doe y. Jones, 4 B. & Ad. 126, 



96 rSES A3CD PBOFITS OF LAND. 



fire. 



haying' regard to the ehiss to which it helongs, is waste." 
Thus in the case of a huilding constmcted and let for a 
warehouse, the lessee was held not to he responsible for the 
floors breaking down nnder a not unreasonable weight of 
goods, whiek. unknown to him, they were insufficient to 
bear (f). ''The tenant is not liable for latent faults and 
defects in the property demised, in the absence of some 
express agreement imposing such liability upon him. Se 
is entitled to assume that it is fit to be used for the pur- 
poses for which it is let and for which it is apparently fit." 
" A tenant, however, is prhnd facie bound to restore the 
property demised to him, and if the property is destroyed 
by the acts of himself or his undertenants the presumption 
is against him, and he must in order to exonerate himself 
show that the destruction was owing to causes for which 
he was not responsible" (m). 

Superior A tenant is not responsible for damage or destruction 

caused by superior force (n« major) ^ without default or 
negligence on his part, as by enemies of the Queen, or by 
tempest, lightning, or the like ; unless he has covenanted 
to repair absolutely and without exception of such 

Aocidental events (r). — ^The destruction of a house or building by fire 
was attributed at common law to the negligence of the 
tenant, in absence of proof to the contrary ; and " burning a 
house by negligence is waste " {ic). Upon the same prin- 
ciple of presumptive negligence at common law the tenant 
of a house in which a fire began was liable to his neigh- 
bour for damage caused by the fire spreading. By the 
statute 14 Geo. III. c. 78, s. 86, re-enacting 6 Anne, c. 31, 
it was enacted " that no action shall be had against any 
person in whose house or other building or on whose estate 
any fire shall accidentally begin : provided that no contract 
or agreement made between landlord and tenant shall be 

{t) Saner T, Bilton^ L. B. 7 C. D. (m) Per cur. Manchetfer Warehouse 

815 ; 47 L. J. C. 267 ; Manchester Co. v. Carr, L. R. 6 C. P. D. 612 ; 
Warehouie Co. v. Carr, L. It. 6 49 L. J. C. P. 809. 
C. P. D. 507 ; 49 L. J. C. P. 809. (v) Ante, p. 22. 

(fc) CJo. Lit. 53 b. 



CHAF. VII. HOUSES AND BUILDINGS. 97 

hereby defeated or made void." This statute is construed 
as referring to accidental fires only, and not to protect fires 
originating in negligence or intention (a;). — Bent is not Sugpenflionof 
suspended by the destruction of demised buildings by 
fire or other accident, although neither the lessee nor the 
lessor may be bound to restore them, unless exemption from 
the rent be expressly stipulated for in such events ; nor is 
there any claim in equity to restrain an action for the rent 
under such circumstances {y). If it is intended to suspend 
the payment of rent in such events the reserv^ation or cove- 
nant for the rent must be expressly so qualified ; and such 
exemption from rent will apply only in the events speci- 
fied (s). The same law has been held to apply to the 
tenancy of an upper floor or of separate apartments of a 
house which is destroyed by fire ; the tenant continuing 
liable upon his independent contract for rent, unless some 
agreement can be shown that the rent should cease with 
, the occupation {a). 

In leases of houses and buildings repairs are usually CoYenantfl to 
made the subject of covenants and conditions, by which J^^^, ^ 
the rights and obligations on both sides are defined ; and 
the lessee is then liable only according to the terms of his 
covenant or agreement. If the tenant covenant absolutely 
to repair, he is bound to rebuild after destruction by fire 
or other accident, whether due to negligence or not (6). 
So also if he is charged with repairs by the limitation of 
his estate, as a devisee for life upon the expressed condi- 
tion of "keeping the premises in good and tenantable 

(x) Filliter Y. Phippard, 11 Q. B. 816;- 47 L. J. C. 267; Manchester 

347; Canterbury v. Att.-Gen., 1 Warehouse Co, t. Carr, L. R. 6 C. 

Phill. 316 ; Hargrave's note (1) to P. D. 607 ; 49 L. J. C. P. 809. 

Ck>. lit. 67 a. («) Itod v. Gorton^ 6 Bing. N. C. 

(y) Baker v. HoHzapfel^ 4 Taunt. 601 ; Packer v. Oibbins, I Q. B. 

45; 18 Yes. 116; Leeds v. Cheet- 421. 

ham, 1 Sim. 146 ; Izod y. Gorton, 6 {b) Bullock y. JDommitt, 6 T. B. 

Bing. N. C. 601 . 660 ; Walton v. Waterhouse, 2 Wma. 

(£) Saner y. BilUm, L. B. 7 G. D. Saund. 420 and notes ib. 

L. H 



98 



rSES AND PIOFITS OV LAND. 



Ezeeptiomaf 



Implied con- 
tract for 
tenant-like 
use. 



LiabiliiTof 
landlord for 
repair. 



repair'' (e\. — Hence it is usual for a lessee in ooyenaTitifig 
to repair houses and bnfldings, to make express exception 
of fire and tempest, and other like accidents to which the 
demised premises mar he sohject and which are heyond 
his oontroL An exception of ''damage hy fire, stonn, 
tempest, or other ineyitahle accident," is constraed to 
incJnde sndi other accidents only as are efusdem generis to 
those specified ; therefore it does not include an accident 
happening from an ordinaiy and proper nse of the pro- 
perty by reason of an inherent defect or insufficiency for 
soich nse (r/). A covenant by the lessee to repair is some- 
times qualified by an exertion of ^^ reasonable wear and 
tear;" these words are construed as including the ordinary 
destruction by reasonable and proper use, but not an extra- 
ordinary destruction though caused by such proper use {e). 
The damages payable under a covenant to leave in repair 
are measured according to the condition of repair required 
by the covenant, and irrespective of altered conditions of 
the property which may render the repairs inapplicable or 
valueless (/). — ^In the absence of express covenant or pro- 
vision for repair, there is implied in law a contract or pro- 
mise on the part of the lessee to use the demised premises 
in a tenant-like manner, which is in substance the same as 
the legal obligation as to waste ; and under this implied 
promise the tenant may be charged with any act of wilful 
or voluntary or negligent waste ; but, it seems, not with 
mere non-repair, or deterioration of the premises by the 
mere wear and tear of time {g). 

A landlord or lessor is under no implied obligation to his 
tenant or lessee, to repair or maintain the demised pre- 
nor to compensate any loss sustained by the tenant 



mises 



(<?) In re Skingley, 3 Mao. & Qt. 
221 ; anUy p. 93. 

(d) Saner v. BilUm, L. R. 7 C. D. 
816 ; 47 L. J. C. 267 ; ManeheeUr 
Warehouee Co, v. Carr^ L. R. 5 
0. P. D. 613 ; 49 L. J. C. P. 809. 

{e) ManehetUr Warehcute Co, t. 



Garrt eupra. 

(/) Morgan v. Sartfy, L. R. 17 
Q. B. D. 770. 

{ff) Ante, p. 92 ; Martin v. GU- 
hamy 7 A. & £. 643 ; Torruwio ▼. 
Younff, 6 0. &P. 8. But see Davist 
T. Daviesy L. R. 88 G. D. 499. 



CHAF. VII. HOUSES AND BUILDINGS. 



99 



£rom defects of repair ; although he may have notice that 
from want of repair the premises are dangerous (i). — ^Nor Implied 
is there, in general, any implied warranty or condition in J^l^ 
a lease, that the demised premises are in good repair or fit premuep. 
for the purpose for which they are intended to be used ; as 
yras held in the case of a building let for a warehouse 
'wrhich was insufficient to support a reasonable weight of 
goods ; nor is the lessor responsible for loss occasioned by 
such insufficiency (A:). So there is no generally implied 
condition in letting a dwelling house that it is habitable or 
that it will last during the term demised ; nor can the 
lessee rescind the lease and quit the house, if it does not 
satisfy such conditions (/). But exception is made in the 
letting of furnished houses and apartments, as to which 
there is an implied condition, that they are fit for residen- 
tial purposes ; and if they do not satisfy such condition the 
lessee may rescind the letting (m), — ^As regards third par- 
ties, the occupying tenant is primd facie responsible for any 
injury or nuisance caused by the state of the premises ; but 
the landlord may be responsible by reason of having under- 
taken the duty of repair (n). — A covenant by a lessor to Coyemmtby 
keep the demised premises in repair during the term im- ^^r, 
pliedly imports the condition that the lessee must give him 
notice from time to time of want of repair, the knowledge 
of which rests with the lessee. A covenant by the lessor 
to put the premises in repair does not require notice ; nor 
does a covenant to repair by the lessee (o). A covenant by 



(i) Gott Y. Gandtfy 2 E. & B. 
845 ; 23 L. J. Q. fi. 1 ; Colebeek v. 
Girdlers' Co., L. R. 1 Q. B. D. 242 ; 
45 li. J. Q. B. 225. See Ivajf t. 
Hedges, L. B. 9 Q. B. D. 80. 

(Jk) Manchester Warehouse Co. r. 
Oirr, L. B. 6 C. P. D. 607 ; 49 
L. J. C. P. 809 ; Hart v. Windsor, 
12 M. & W. 68; and Sutton y. 
TempU, 12 M. & W. 52. 

(/} Ardm r. FtUlen, 10 M. & W. 
321. 

(m) Smith r.Marrable, 11 M. & 



W. 6 ; Wilson v. Fineh-Satton, L. 
B. 2 Ex. D. 336 ; 46 L. J. Ex. 
489. 

(») Sussell V. Shenton, 3 Q. B. 
449 ; Chauntler v. Robinson^ 4 Ex. 
163. 

(o) Makin y. Watkinson, L. B. 6 
Ex. 25 ; 40 L. J. Ex. 33 ; Man- 
chester Warehouse Co. y. Cart, supra. 
See London ^ S. W. Ry. y. Fliwer, 
li. B. 1 C. P. D. 77 ; 46 L. J. C. P. 
54. But see Conyejancmg Act, 
1881, 8. 14. 



h2 



100 USES AND PROFITS OF LAND. 

the lessor to repair during the term operates as an exemp- 
tion of the lessee from all liahility for repairs ; consequently 
a lease containing such a covenant, being made imder a 
power which imposed the condition that lessees should not 
be made dispunishable for waste, was held to be beyond 
Izmuranoe the power and invalid (/?). — ^An insurance by the lessor 
^^ against fire does not impliedly bind him to apply the pro- 

ceeds to the rebuilding or repairing of the premises ; nor 
has the lessee, though under covenant to repair and to pay 
rent, any claim in equity to have the proceeds so applied, 
in the absence of any stipulation to that purpose (y). Upon 
the same principle it is held that a purchaser of a house is 
not entitled, at law or in equity, to the benefit of an insur- 
ance made by his vendor, without any stipulation for it in 
the contract of sale (r). And, in general, an insurance is 
presxmied to be made for the exclusive benefit of the person 
insured and not for that of all persons interested in the 
property («). But by the Statute 14 Geo. III. c. 78, s. 83, , 
" The directors of insurance offices are authorized and re- 
quired, upon request of any person interested in any house 
or other building which may be burned down or damaged 
by fire, to cause the insurance money to be laid out towards 
rebuilding or repairing such house or building" {f), 

Bepaira and The repairs of houses and buildings upon settled estates 
on sottied^ are generally provided for in the settlement by vesting 
estates. powers in trustees for that purpose. In the absence of 

express provision for raising the costs of repairs, the charge 
is presumptively to be borne by the entire property, so as 
to fall proportionally upon the tenant for life and the 
future successive interests, and not primarily upon the 

{p) Yellowly v. Goicery 11 Ex. («) TFartcicker y, BretnaU, 1,. K, 

274 ; 24 L. J. Ex. 289. 23 C. D. .188. 

(q) Leech y. Cheetham, 1 Sim. (t) As to the construction and 

146. effect of this statute, see Erp. 

(r) Foole v. AdatnSy 33 L. J. C. Gorely, Me Barker, 4 D. J. & 8. 

639 ; Rayner v. Pi'etton, L. R. 18 477 ; 34 L. J. B. 1 ; Batfner v. 

C. D. 1 ; 60 L. J. C. 472. Freeton, supra. 



CHAP. VII. HOUSES AND BUILDINGS. 101 

current rents and profits (u). If the tenant for life 
of settled land, although not charged with repair, does 
repairs yolnntarilj, he cannot charge the costs upon the 
entire property, unless by some special power, or by the 
authority of the Court obtained for that .purpose {v). "A 
tenant for life is not in general a trustee for the persons 
entitled in remainder as to any improvements he may make 
upon the estate, and he cannot unless a special power is 
given him charge against the estate any sums expended by 
him in making them" (w), — The Court has a general Juriadiotion 
jurisdiction over settled estates by which it can order the 
repair or renewal of buildings at the cost of the estate. In 
a case where the mansion-house of a settled estate was 
falling down and there were no funds available to rebuild 
it, the Court authorized the trustees to raise the sum 
required for rebuilding by mortgage of the whole property, 
upon evidence that the value of the property subject to the 
mortgage and with the house would be greater than if the 
house were pulled down (x). Where there are funds of a 
settlement under trust for re-investment in land to the 
same uses as the settled estates, the Court will sanction 
the funds being applied in the erection of new buildings on 
the principle that the permanent improvement of the old 
estate is substantially the same thing as the purchase of a 
new estate (y).— By the Settled Land Act, 1882, 45 & 46 Settied Land 
Yict. 0. 38, ss. 21, 26, capital money arising from the sale ° " 
of settled land under the Act may be applied in payment 
for any improvements authorized by the Act, including 
buildings for agricultural, manufacturing or domestic pur- 
poses. Under this Act the Court will not sanction the 
application of the capital money in payments for voluntary 

(t«) Fowys T. JBla^rave, 4 D. H. (to} Hellish, L. J. Berkeley*t 

& a. 44S ; Be Motehkys, L. B. 32 TTill, L. B. 10 Gh. 69 ; 44 L. J. 

C. D. 408 ; 66 L. J. C. 646 ; Be C. 3. 

Cam-tier, L. B. 34 0. D. 136 ; 66 {x) Frith y. Cameron, L. B. 12 

L. J. C. 360. Eq. 169 ; 40 L. J. 0. 778. 

(v) Ante, p. 92 ; Be Leigh' 9 Beiate, {j/) Be Neuman'e Settled Ettatee, 

L. R. 6 Ch. 887 ; 40 L. J. 0. 687. L. B. 9 Ch. 681 ; 43 L J, 0, 702. 



102 USES ANB PROFITS OF LAND. 

improYements made by the tenant for life without reference 
to the Court; nor in payment for charges previously 
incurred for buildings and improvements, and secured bjr 
terminable instalments (s). The Court will not sanction 
the application of capital money within the Act to mere 
repairs which do not amoimt to improvements allowed by 
the Act ; and where there is a conflict between the provi- 
sions of the Act and the powers of the trustees of the 
settled land as to the application of capital or income upon 
improvements proposed, the provisions of flie Act must 
prevail (a). 

{z) Me KnatchbtdVa Estate, L. R. 35 G. B. 41 ; 56 L. J. G. 445. 

29 G. D. 588; 54 L. J. G. 1168 ; (a) Clarke v. Thornton^ L. B. 3S 

lie Broadwater Estate^ 64 L. J. G. G. D. 307 ; 66 L. J. C. 302. 
1104; Me ffotchkin's JBstale, L. B. 



103 ) 



CHAPTER "Vni. 
FIXTUEES. 

flztarefl defined — fixtures pass with the land — to purohaser — to lessee 
for life or years— to mortgagee. 

Piztnres upon land of another. 

What things are fixtures — ^fixtures for use of land — buildings and con- 
stmctions upon land — fixtures for trade or business — machinery — 
fixtures for domestic use — furniture — accessories to fixtures — 
moTable buildings and constructions. 

Tenant's fixtures— tenant in fee simple — tenant of limited estate — 
trade fixtures — domestic fixtures — ornamental fixtures and furni- 
ture — agricultural fixtures — ^Agricultural Holdings Act — right of 
removal during tenancy. 

Gorenants for removal of fixtures— covenants to leave fixtures. 

Fixtures as subject of action— of execution— of distress for rent — in 
bankruptcy of tenant — disclaimer of lease by trustee. 

Fixtures assigned separately from the tenement — Statute of Frauds — 
Bills of Sale Acts. 

The word "fixtures" in the general and primary sense Fixtures de- 
means whatever things are so fixed to land, or to buildings ^^®^' 
upon the land, as to become in fact part thereof ; so that 
such fixtures become presumptively the property of the 
owner of the land and pass with the ownership. This is 
the meaning expressed in the maxim of the civil law, 
quicquid plantatur aoh, solo cedit. The word is also used 
in a secondary sense to mean such things as, being fixtures 
in the above primary sense, are nevertheless, by recison of 
their special nature or circumstances, removable from the 
land by a tenant of a limited estate as against the landlord 
or reversioner, and are therefore specially called " tenant's 
fixtures'' (fl). — Accordingly, fixtures presumptively pass 

(«) P&8ty p. 112. 



104 USES AND PROFITS OF LAND. 

FixtoreB paaa with the land by descent to the heir of an estate of inherit- 
^ ® ' ance, in fee simple or in tail, as forming part of the 
subject of inheritance. They pass with the land to the 
executor of a deceased tenant for years ; and upon the ex- 
piration of the term they pass to the reversioner, subject 
to the distinction of removable or tenant's fixtures (i). 
And a devise or bequest by will of a house or land prima 
Fixtures pass fycie passes the fixtures without special mention (c). — ^Upon 

to pnrobaser. ., ^ . • i #» t. i j • j.t. 

the same prmciple a conveyance of a house or land, in the 
absence of any reservation or exception, passes the fixtures 
to a purchaser mthout expressly mentioning them ; and 
they are presumptively paid for in the price (d), A con- 
veyance expressly including " fixtures " has the same effect, 
and no more ; it does not, in the absence of special cir- 
cumstances, extend the operation of the conveyance to 
things not strictly speaking fixtures (e). A compulsory 
purchase of land by a railway company under the Lands 
Glauses Act includes the fixtures ; the company are bound 
to take them as part of the land if the tenant requires it, 
though they may be tenant's fixtures removable as against 
To tenant for his landlord (/). — So a lease for life or for years pr^um- 
years. ^^^^y passes all the then existing fixtures ; and the sever- 
ance of such fixtures by the tenant for life or for years 
primd, facie constitutes waste of the inheritance for which 
he is responsible to the reversioner. If wrongfully severed, 
the tenant retains no right to use them during his term, 
but they become absolutely vested, as personal chattels, in 
the landlord or reversioner, in the same manner as the 
latter becomes entitled to the immediate possession of 
timber or minerals wrongfully severed from the inherit- 
ance {g). Fixtures annexed by the tenant during his 
tenancy are primd facie in the same legal position as to 

(i) Fisher t. Bieksm, 12 CI. & F. & C. 76. 

312 ; Bain y. Brandy L. B. 1 Ap. {e) WiUsKcar t. Cottrell, 1 E. & 

Ca. 762. B. 674. 

{e) Beek v. BehoWy 1 P. Wme. 94 ; (/) Gibson y. Hammersmith JBy., 

Finney T, Griee, L. B. 10 C. D. 13 ; 32 L. J. G. 337. 

48 L. J. C. 247, cited jpo«/, p. 111. (^) Farrant v. Thompson, 6 B. & 

(d) Colrgrare v. Dias Santn, 2 B. Aid. 826 ; ante, p. 37. 



CHAP. Vlll. FIXTURES. 105 

o^wnership as those annexed before the lease, and they 
cannot be removed by the tenant without eommitting 
wajste ; but the exception is here made of " tenant's fix- 
tares" or fixtures in the secondary sense above men- 
tioned (A). Accordingly two general rules have been laid 
down : " one of these rules is the rule that whatever is 
fixed to the freehold of land becomes part of the freehold 
or inheritance. The other is that whatever once becomes 
part of the inheritance cannot be severed by a limited 
owner, whether he be owner for life or for years, without 
the commission of waste. To the first rule there is no 
exception whatever. But to the second rule, namely, 
the irremovability of things fixed to the inheritance, there 
is ground for the important exception of tenant's fix- 
tures " (t). — ^Upon the same principle a mortgage of land Mortgagee, 
or houses presumptively passes all fixtures to the mort- 
gagee as part of his security, without special mention; 
whether the property be freehold or leasehold, and whether 
the fixtures be removable or not ; also fixtures annexed by 
the mortgagor subsequently to the mortgage become 
part of the security. The claim of the mortgagee to the 
fixtures is prior to any claim created by subsequent deal- 
ings of the mortgagor, and is secured against all other 
creditors in the event of his bankruptcy {J). An equitable 
mortgage has the same effect as a legal mortgage upon 
the fixtures ; the question as to what is included in the 
subject of mortgage being the same in both {k), A mort- 
gagor in possession retains no right of removing " tenant's 
fixtures" nor does he acquire any right of removing 
"tenant's fixtures" annexed by him subsequently to the 

(A) Co. Lit. 63 a; Elicea v. Mawe, & W. 409 ; Mather v. Fraaer, 2 K. 

3 Efut, 38 ; 2 Smith's L. C. ; Jiuck- & J. 536 ; 25 L. J. G. 361. See 

land Y. ButterJUld, 2 B. & B. 64 ; Holland v. Hodgson^ L. R. 7 C. P. 

D^Eyneourt v. Gregory, L. R. 3 Eq. 340 ; 41 L. J. C. P. 146 ; Meux v. 

382 ; 36 L. J. C. 107. Jacobs, L. R. 7 11. L. 481. 

(t) Cairns, L. C. Bain y. Brand, {k) Meux y. Jaeobft, lupra ; Long' 

L. R. 1 Ap. Ca. 767. boUotn v. Berry, L. R. 6 Q. B. 123 ; 

U) LongUaffY, Meagoe, 2 Ad. & 39 L. J. Q. B. 37. 
£1. 167 ; Hitehman y. Walton, 4 M. 



106 



USES AND PROFITS OF LAND. 



mortgage ; lie is not in the relation of tenant to the mort- 
gagee for this purpose (/). And the ordinaiy attornment 
clause in a mortgage is construed as a further security 
only, without taking away from the character of the mort- 
gage or altering its incidents (m). But in a mortgage 
by underlease of premises containing tenant's fixtures the 
right of removal and disposal of such fixtures does not pass 
to the mortgagee unless expressly conveyed ; the under- 
lease presumptively carries only the use of aU existing 
fixtures, as it does the use of the land during the term, 
leaving the right of removal to the mortgagor at the end 
of the term (n). In the case of a lease made by a mort- 
gagor in possession, the lessee has the same right to 
remove fixtures against the mortgagee as against his lessor, 
such lease being presumptively made with the acquiescence 
of the mortgagee (o). If it be intended that fixtures shall 
not be included in a mortgage, the terms of the mortgage 
deed must express that intention ; bq if it be intended that 
some fixtures should pass and others not (p) ; or if it be 
intended that some things should be mortgaged with the 
land which are not strictly fixtures (q). But in the 
absence of an intention to the contrary expressed in the 
mortgage deed, it will pass aU fixtures ; and the express 
mention of some of the fixtures is not sufficient alone to 
exclude the others not mentioned (r). A mortgage gives 
no implied power to sever fixtures ; nor does a power in a 
mortgage deed to seU the land or any part thereof, unless 



(l) Wdlmsley v. Milne^ 7 C. B. 
N. S. 116 ; 29 L. J. C. P. 97 ; Cull- 
tviek T. SwindeUy L. B. 3 Eq. 249 ; 
36 L. J. 0. 173 ; Climie v. Wood, 
L. B. 4 Ex. 328 ; 38 L. J. Ex. 223 ; 
L&ngbottom v. Berry^ L. K. d Q. B. 
137 ; 39 L. J. Q. B. 37 ;* Crou t. 
Barnes, 46 L. J. Q. B. 479. 

(m) Ex parte Funnett, Be Kitehin, 
L. R. 16 C. D. 226 ; 50 L. J. C. 
212. 

{n) Southfun-t Banking Co. t. 
Thompson, L. R. 37 C. D. 64 ; 67 



L. J. C. 114. 

(o) Sanders y. Davis, L. B. 16 Q. 

B. D. 218 ; 64 L. J. Q. B. 676. 
(p) Trappes t. Harter, 2 C. & M. 

163 ; Waterfall t. Fenittone, 6 £. 
& B. 876; 26 L. J. Q. B. 100: 
explained in Walmsley t. MUm^ 7 

C. B. N. S. 133. 

{q) Steward t. Zomhey 1 B. & B. 
606. 

(r) Souihport Banking C^.t. Thon^^ 
son, L. B. 37 G. D. 64 ; 67 L. J. G. 
114. 



CHAP. Vm. FIXTURES. 



107 



power is expresslj given to sever the fixtures and sell them 
as personal chattels («). 

If a person builds or erects anything upon the land of Fixtnx«e upon 
another with his own materials, the building or erection J^^jJ^^^ 
'becomes a fixture according to the above principle, and is 
presumptively the property of the owner of the land as if 
it had been made with his materials ; but the presumption 
may be rebutted by the circumstances {t). Thus, where a 
fixture is made upon the land of another in exercise of an 
easement or right over it ; as in the case of an easement 
appurtenant to a mill of keeping a hatch upon the mill 
stream to regulate 'the flow of water (u) ; an easement 
appurtenant to a wharf of fixing mooring piles in the bed 
of the adjacent river (v) ; an easement subsidiary to rights 
of mining, of erecting mining machinery and bidldings 
upon the surface of the land (tr). In cdl these cases there 
is an easement of placing certain fixtures upon the 
land, which remain the property of the owner of the 
easement and are removable by him, and which pass 
with the easement and not with the land (or). And the 
possession of fixtures separately from the land or building 
to which they are fixed may be the subject of rating; as in 
the case of telegraph posts and wires fixed by licence of the 
owners of land (y). Where a person built a public bridge 
with his own materials upon the land of another person 
who granted leave for the purpose, it was held that the 
materials of the bridge remained the property of the per- 
son who built it, subject to the use by the public ; .and 
that on the bridge being removed the materials reverted 
to hiTn absolutely (s). — On the other hand, if a person 



(«) He Yates, L. B. 38 C. D. 112 ; 
67 L. J. 0. 697. 

(0 MarshaUs t. Ulleawater Co., 
L. B. 7 Q. B. 166 ; 41 L. J. Q. B. 
41 ; Chittv, J., ElwetY. Brigga Gas 
Co,, L. B.'aS C. D. 667 ; 66 L. J. C. 
734. 

(u\ Wood V. Eewetty 8 Q. B. 913. 

(r) Lancaster t. Eve, 6 C. B. N. 
B. 717 ; 28 L. J. C. P. 236. ' 



{w) Wake v. HaU, L. B. 8 Ap. Ca. 
196 ; 62 L. J. Q. B. 494. See Top^ 
ham Y. Greenside Brick Co., L. B. 
37 C. D. 281 ; 67 L. J. 0. 683. 

{x) See post, p. 199. 

(y) Lancashire Telephone Co. y. 
Manchester, L. B. 14 Q. B.D. 267 ; 
64 Xi. J. If. 63. 

{z) Harrison r. Parker^ 6 East, 
164. 



108 



L'SKS AND PROFITS OF LAND. 



builds upon his own land with the matenak of another, 
the property in the materials is not changed against the 
will of the owner; and though the latter may not be 
allowed under the circumstances to destroy the building 
for the sake of the materials, he seems entitled at least 
to recover the value from the builder who has converted 
them to his own use (s). 



What things 
are fixtures. 



Fixtures for 
use of land. 



The annexation to the land or building sufficient to con- 
stitute a fixture, " is a question which must depend upon 
the circumstances of each case, and mainly on two circum- 
stances as indicating the intention, viz., the degree of 
annexation and the object of the annexation." An article 
attached to the land by its own weight only is primd facie 
to be cgnsidered a mere chattel ; but it may be a fixture 
by reason of an apparent intention to make it pass with 
the land. Thus blocks of stone placed upon one another 
to form a waU, though without any mortar or cement, 
become fixtures ; but the same blocks of stone stacked as 
material in a builder's yard remain chattels. On the otlier 
hand, an article annexed to the land, however slightly, is 
primd facie to be considered as a fixture unless the circum- 
stances are such as to show that it was intended to con- 
tinue a chattel (a). 

Things annexed for the profitable use of land, as 
fences, walls, and palings, are fixtures which pass with the 
land ; also live hedges, and plants of all kinds growing in 
the soil, as a border of box plants, and a bed of strawberry 
plants ; and if a tenant remove or destroy such things, 
though made or planted by himself, it is presimiptively 
waste {b). Accretions to the soil become part of the land 
and pass with it, as sand drifted by the wind, or stones fallen 



{z) Brooke's Abr. cited in Zari' 
cotter V. Eve, 6 C. B. N. S. 721 ; 
the civil law cited by L. Blackbnm, 
Wake V. HaU, L. K. 8 Ap. Ca. 
203 ; 52 L. J. Q. B. 494. 



(a) Holland t. Hodgson^ L. R. 7 
C. P. 334 ; 41 L. J. C. P. 149. 

(b) WathereU v. ffowelU, I Camp. 
227 ; Bmpaon v. Soden, 4 B. & Ad. 
C66. 



CHAP. Vlll. FIXTURES. 



109 



from an adjoining cliS (c). Manure spread on the land 
becomes part of the soil, though while laid in heaps it is a 
chattel (d). — ^Buildings and constructions upon land are in Buildings. 
general fixtures; as a conservatory built upon a brick 
foimdation and opening into a room of a dwelling- 
house (e) ; a veranda annexed to the outside of a house (/) ; 
a fixed ladder giving access to an upper room ; and a crane 
annexed to the wall of a house (g). A railway or tram- 
way constructed by sinking or fixing sleepers in the 
ground, whether with or without ballast, is in general a 
fixture ; and the rails fixed upon the sleepers are considered 
as forming part of the whole (A). 

Things annexed for the purpose of carrying on a trade Fixtures for 
or business upon the land or buildings are fixtures; as ^' 
farm buildings (t), and the fittings of a public house (j), — 
The machines in a mill or manufactory, though fixed only Machinery. 
by nails, bolts, screws or plugs for the purpose of working 
them, are considered as part of the bidlding and pritnd 
facie pass with a conveyance or mortgage {k). But looms 
in a cotton mill annexed only by letting the legs into 
sockets placed in the floor for that purpose, from which 
they could be removed by mere lifting, were held not to be 
fixtures (/). And similar machines fixed to the floor have 
been held to be distrainable for rent as movable chattels, 



[c) BlewettY, Tregtmningy 3 A. & 
E. 554 ; Jkarden t. JEvans, 6 M. & 
W. 11. 

{d) Yearworth T. Pierce, Aleyn, 
32 ; Sty. 66 ; Wms. Ex. 615, 4th 
fid 

\e) BucklandY. Butierjleld, 2 B. & 

B. 54. See Mom y. James, 47 L. J. 

C. P. 160. 

(/) Fenry v. Broum, 2 Stark, 
403. 

(y) Wilde V. Waters, 16 C. B. 
637 ; 24 L. J. O. P. 193. 

(A) Ex parte Moor e^ 8 Banking Co., 
Re Armytage, L. B. 14 G. D. 379 ; 
49 L. J. B. 60 ; Turner v. Cameron, 
li. R. 5 Q. B. 306 ; 39 L. J. Q. B. 
125. See Beaufort ▼. Bates, 3 D. F. 



& J. 381; 31L. J. C. 481. 

(i) Blwes V. Mawe, 3 East, 38 ; 2 
Smith, L. 0. 

(J) Ex parte Gawan, Be Barclay, 
5 D. M. & G. 403 ; 26 L. J. B. 1 ; 
Walmsley v. Milne, 7 0. B. N. S. 
115; 29 L. J. C. P. 97. 

(At) Mather v. Eraser, 2 K. & J. 
636; 26 L. J. C. 361; Boyd r. 
Shorrock, L. R. 5 Eq. 72 ; 37 L. J. 
C. 144 ; Longbottom v. Berry, L. R. 
5 Q. B. 123 ; 39 L. J. Q. B. 37 ; 
Sheffield Y, Harrison, L. R. 15 Q. B. 
B. 358 ; 64 L. J. Q. B. 15 ; Holland 
V. Hodgson, L. R. 7 0. P. 328 ; 41 
L. J. C. P. 146. 

{I) Hutchinson v. Kay, 23 Beav. 
413 ; 26 L. J. 0. 467. 



Tint •fiiif i*H!L»iia ias "3*-ai inesdi'iie^i 'W . A atettm crane 
h*^uUA Ji Timirar nul ±ie*i i^ 'a^Ita to a bed of atone for the 
pair'.r*** -,f TT'-^ r^ng- \ jjiacy * . ais«> % "^portahle engine,** 
±i«^ ro & iTTiiuiation. -it brfckwoi fc^r the tempurary 
pnrpr;«^ ;c iinkfii^ a ni?w «y:r7PTy ^uit, were held to 
aaT* h^Hiome ixrar*. *3 i§ to pass to a mortgagee of the 
pr«*iiiLs«i, ifi part :t oia «tfnriry j . — ^Fixtures of the above 
kiniL anat^TrKi fi r tne riirr«:se« of trade <»• mannfacture 
h^li'T^ f :r the m* st part to trie 21^35 of fixtures which are 
r^mcTncIe ry tt^nants of pardcalar estates as against the 
landlrri or revrsrsLtims' . 
FiTrtrtr»w for Tliin^r* annex-ed to a b:'Ct»e for permanent domestie nse 
are fixtxn*a : d«x>r«. windrjws^ wainscot, shatters and blinds, 
fix^ taburrft and T}enches, fixed otLpboards, fomaces, grates, 
r;himn*rT pieoes, strives, oTens, otippers, cauldrons, bells and 
b^Il hangings, and all like things are />n/Md_/&«> considered 
aa part of the honse and pass with it ; thongh some of 
them maj at the same time be remoyable as being 
"tenant's fixtures "(y). *' Glass annexed to windows is 
parcel of the house, and shall descend to the heir; and 
although the lessee himself at his own cost put the glass 
in the windows yet being once parcel of the house he could 
not take it away or waste it'* (r). A covenant by a 
loHnfifi to deliver up the premises at the end of the term 
" with all windows," &c., was held to include a plate 
gloss shop front erected by him («). Wall papers, tapes- 
trioB, panneUing, and other like materials annexed to the 
walls of a house in a manner to form the surface of the 
walls, ore fixtures as forming part of the wall (/). — On the 

(m) IfrUaurUy. Eastwood^ 6 Ex. 63 6, Herlakmden'a mm; 11 Go. 

810 ; 20 Jj. J. Ex. 154 ; Longbottom 50 by Liford'a ease; The Xin^ v. 

V. Jhrrf/t Holland v. Hodgson, supra, 8t, J)utulan, 4 B. & G. 686 ; Lyde 

(«) /.> fMtrte Moore* s Banking Co,, v. Husseil, 1 B. & Ad. 394. 
th Jrmptrtf/r, L. R. 14 G. D. 379 ; (r) 4 Go. 63 6, Her lakenden's ease; 

i\i U, J. B. 60. Haule, J. Bishop y. £lUoii, 11 Bx. 



(ri) r«rM«y. Barnes, 46 L. J. Q. B. 113 ; 24 L. J. Ex. 230. 

i1\i\ IVitlmsUy v. Milne, 7 G. B. {s) BurtY, Haslett, 18 U. 15. 893 ; 

N. H. 1 Ifl : 20 L. J. G. P. 97. 26 L. J. G. P. 296. 

(;>) /Wl. n. 114. (0 D^JEyneourt ▼. Oregorff^ L. R. 

(y) Go. liit. 47 h, 63 •; 4 Go. 3 £q. 382 ; 36 L. J. G. 107. 



CHAP. VITI. FIXTURES. 



Ill 



other hand articles of household furniture or ornament Furnitnre. 
'w^hich are annexed merely for the purpose of their proper 
and oonvenient use or display are not considered as fix- 
tures : — as carpets nailed to floors, curtains, hangings and 
the like (ti), heds nailed or fastened to the waUs or 
floors {x)j chimney and pier glasses, frames and pictures, 
"which are fixed to the wall, hut not as part of the waU. 
Such articles are considered to remain personal chattels 
and do not pass with the freehold (y). They pass under 
a hequest of " furniture " or " fixed furniture ; " hut these 
terms wiU not apply to pass fixtures strictly so called, 
though removahle as " tenant's fixtures " (a). 

Some things, though not annexed to land or building, Aaseesoriea to 
are considered fixtures, as bemg accessories or appurte- 
nances to other fixtures, according to the maxim Acceasio 
eedit prindpali. Thus the keys of doors form part of the 
house to which the door belongs (a). AU the essential 
parts of a fixed machine, though detached, form part of the 
machine as a fixture, as the mill stones of a mill (i) ; the 
anvil of a steam hammer {c) ; the driving belts of ma- 
chinery f^f); duphcate parts of a machine, though not 
actually annexed for use ; but parts prepared for a machine, 
if not yet fitted, remain chattels («). — To this principle 
may be referred the following fixtures : walls built of loose 
atones annexed only by their own weight (/) ; pavements 
made with stones or other materials laid upon the 



(») Hellawell v. Eastwood, 6 Ex. 
318 ; 20 L. J. Ex. 160 ; Finney y. 
Griee, L. R. 10 C. D. 13 ; 48 L. J. 
C. 247. 

(x) Ex parte Quiney, I Atk. 478. 

(y) Beck v. JUboWf 1 P. Wms. 94; 
jyEyneourt t. Gregory, L. R. 3 Eq. 
382 ; 36 L. J. C. 107. 

(z) Birch T. J)ai€8ony 2 A. & E. 
37 ; Eaton t. Shtppard, 10 Simon, 
186 ; Finney t. Grice, supra. 

(a) Ziford*8 Case, 11 Co. 50. 

(*} JFalmsUy v. mine, 7 0. B. N. 
8. 116; 29 L. J. C. P. 97; Elaee 



V. Fogg, 4 M. & R. 277 ; Martyr t. 
Bradley, 9 Bing. 24. 

(e) Metrop, Ass, v. Brown, 26 
Beav. 464 ; 28 L. J. C. 681. 

(d) Longbottom v. Berry, L. R. 6 
Q. B. 123 ; 39 L. J. Q. B. 37 ; 
Sheffield Building Soe. y. Harrison, 
64 L. J. Q. B. 16 ; L. R. 16 Q. B. 
D. 368. 

{e) Ex parte Lloyd>*s Banking Co., 
L. R. 4 Ch. 630 ; 38 L. J. B. 9. 

(/) Holland v. Hodgson, ante, 
p. 108. 



112 USES AND PROFITS OP LAND. 

ground {g) ; sculptures placed in position merely as 
architectural ornaments or accessories to a building, in 
distinction to sculptures intended as separate objects in- 
dependent of position (/*). 
Movable Things not annexed, otherwise than resting by their 

weight upon the ground, pHmd facte remain chattels, which 
do not pass with the land : a bam, granary or other like 
bmlding framed separately of wood and resting merely by 
its own weight upon staddles of brick and stone built into 
the ground remains a movable chattel ; but the staddles 
are fixtures and go with the land (t). A covenant by a 
lessee to deliver up " all erections and buildings " upon the 
demised premises was construed not to include a building 
of this kind, which remained a mere chattel (k). A cottage 
framed on posts was held not to be fixed to the ground, 
although the posts had partly sunk into the ground by the 
weight of the building (/). So, a windmill may be placed 
upon the ground or upon a brick foundation, to be used as 
a chattel (m) ; and a weighing machine placed for use in 
a hole lined with brickwork (w). 

Tenant's fix- "Tenant's fixtures" are those things which, having been 
*"""• annexed as fixtures, in the above meaning of the term, 

by the tenant of a particular or limited estate, may yet be 
removed by him during his tenancy; thus making an 
exception to the general rule above stated that a tenant 
cannot remove fixtures without committing waste. " The 
term 'fixture' is an ambiguous one. It has been defined 
to be such an annexation as can be removed" from land by 
the party annexing it, adversely to the owner ; but in its 

{ff) Ex parte Lloyd* a Banking Co.^ (k) Naylor y. CoUinge^ 1 Taunt. 

L. R. 4 Ch. 638 ; 38 L. J. B. 9. 21. 

See MetropoL Ass, v. Brown^ 26 (/) Muntleg y. Hussell, 13 Q. B. 

Beav. 454 ; 28 L. J. C. 581. 672. 

(A) jyEyneourt v. Gregory ^ L. R. (wi) The King t. Londanihorpe, 6 

3 Eq. 382 ; 36 L. J. C. 107. T. R. 377 ; The King v. Otley, 1 B. 

(i) CrolUng v. Tuffnall, Bull. N. & Ad. 161 ; Steward v. Lombe, 1 B. 

P. 34 ; Wanshrtmgh t. Maton, 4 A. & B. 506. 

- '• ' (n) £x parte Lloyd* 8 Banking Co., 

L. R. 4 Ch. 630 ; 88 L. J. B. 9. 



& E. 884 ; WiUthear v. Cottrell, 1 
E. & B. 674 ; 22 L. J. Q. B. 177. 



CHAP. Vlll. FIXTURES. 113 

more general sense it means any annexation or addition 

which has been annexed to or planted in the soil of the 

land" (o). — This distinction has no application to a tenancy Tenant in fee 

in fee simple ; because tenant in fee simple in possession "™^ *' 

has the absolute ownership and power of disposal of the 

land and of everything annexed to it ; and upon his 

death they pass to the heir or devisee. A tenant in fee 

simple is presumed to annex fixtures for the improvement 

of the inheritance, and the representative of his personal 

estate can claim such things only as are, actually or 

constructively, not fixtures at all; such as ornaments, 

pictures, furniture and the like, which, though fixed, are 

so only for the purpose of being more conveniently used 

or seen, and not with any intention of annexing them to 

the land or house (/?). Accordingly it is said that, 

"between heir and executor, the rule obtains with the 

most rigour in favour of the inheritance, and against the 

right to disannex therefrom and to consider as a personal 

chattel anything which has been afiSxed thereto " {q). 

But the tenant of a limited estate is presumed to annex Tenant of 

_. Aji p* 'i* 1 lunited estate* 

fixtures for the purpose of miprovmg ms own use and 

occupation, and not with any view of improving the 

reversion, in which he has no interest. He is, therefore, 

allowed the right of removing the fixtures which he has 

thus annexed. This right of removal is allowed in the 

cases of tenant in tail, tenant for life and tenant for years, 

by reason of their limited estates. But it is said that 

"the case between executor of tenant for life or in tail 

and the remainderman, is not so strong as between 

landlord and tenant, though the same reason governs it." 

There seems, however, to be little or no practical difference 

between the cases (r). — ^A mortgagor in possession is not 

(o) Fercur.ClimieY. Wood.Jj.'R. 12 01. & F. 312; Bain y. Brandy 

3 Ex. 260 ; 38 L. J. Ex. 223 ; L. R. 1 Ap. Ca. 762. 

anUy p. 105. {q) Ellenborougb, G. J. Blwe$Y. 

{p) AnUy p. Ill ; Wms. Ex. Mawe^ 3 East, 61. 

p. 616, 3rd ed. ; Lawton t. Salmon^ (r) Hardwioke, L. C. Dudley y. 

1 H. Bl. 259, n. ; Fisher v. Dickson, Warde, Ambl. 114 ; Blwetr. Mawe^ 

L. I 



114 



USES AND PROFITS OF LAND. 



Trade fix- 
toreB. 



Domestio 
fixtures. 



Omamental 
fixtures. 



in the poflition of a tenant of a limited estate in relation 
to the mortgagee for the purpose of removing tenant's 
fixtm^s during his possession ; but all fixtures pre- 
sumptively vest in the mortgagee («). 

The fixtures which are removable as being *^ tenant's 
fixtures " are ascertained specifically from the decisions of 
the Courts ; which proceed upon the general principle in 
favour of the tenant that " such things as are ordinarily 
affixed to the freehold for the convenience of the occupier, 
but which may be removed without material injury to the 
freehold, when affixed by the tenant, may, on certain con- 
ditions, be removed by him"(^). — Accordingly tilings 
annexed for the purpose of trade are tenant's fixtures, 
which may be disannexed and removed during the tenn ; 
as the vats, coppers and pipes of a brewer, or of a soap- 
boiler, or of any other like trade (t/) ; the fittings of a 
public house or tavern (x) ; the buildings, engines and 
machinery erected for the purpose of mining; and the 
executor of tenant for life or in tail may claim such 
things (y). In the case of a market gardener, conserva- 
tories, greenhouses, and hot-houses built for the purpose 
of the trade ; also trees, shrubs and flowera planted for the 
purpose of the trade, are tenant's fixtures, which he has 
the right to remove, though under other circumstances 
than as trade fixtures such things are not removable (::). — 
Things annexed for the convenient use of the house are 
tenant's fixtures : as stoves, grates, coppers and the like ; 
pumps for drawing water; beUs and bell fittings (a). 
Things annexed for ornament of a house or building are 



3 East, 51 ; Wms. Ex. 4th ed. 
628. 

(s) Ante, p. 105. 

{t) CraD worth, L. C. Ex parte 
Ootvarif Re Barclay, 5 I). M. & G. 
403 ; 25 L. J. B. 3. 

(w) Toole's Caee, 1 Salk. 368; 
Lawton ▼. Lawton, 3 Atk. 15 ; Pen^ 
ton T. Robart, 2 East, 88. 

(x) JBUiott T. Rishdi), 10 Ex. 496 ; 
24 L. J. Ex. 229. 



(y) TFale v. RaU, L. B. 8 Ap. 
Ca. 195 ; 52 L. J. Q. B. 494 ; Law- 
ton V. ZatPton, supra; DtuUey t. 
JFarde, Ambl. 113. 

{z) Per eur, PenUm y. Sobarte, 8 
East, 90 : see Empson t. Soden, 4 B. 
& Ad. 655 ; ante, p. 108. 

(a) Orymes t. Eotperen, 6 Bing'. 
439 ; see Lyde t. Euseell, 1 B. & Ad. 
394. 



CHAP. VIII. FIXTURES, 116 

in general regarded as tenant's fixtures (b) . An ornamental 
chimnej-piece belongs to this class and is removable, 
thongli an ordinary plain chimney-piece is held not to be 
removable ; and in this regard, a chimney-piece is not to be 
considered as ornamental merely because the material is 
marble (c) . Articles of household furniture that are annexed Famiture. 
merely for the convenient use of the things themselves and 
not as accessory to the use of the house remain chattels 
notwithstanding the annexation, and are removable as 
chattels; such as carpets, curtains, mirrors and the like. 
The term " household furniture " is not, in general, con- 
strued to include tenant's fixtures ; and where the house 
was left by will to one person and the " household furni- 
ture" to another, it was held that the tenant's fixtures 
went with the house (d). 

At common law agriculture was considered not to be Agrionltoral 
a trade within the privilege, and the tenant in agriculture 
had no general right to remove buildings and fixtures 
erected for merely agricultural purposes (e) ; but his posi- 
tion is now largely regulated by statute. By " An Act to 
improve the Law relating to Agricultural Tenants' Fix- 
tures," 14 & 15 Vict. c. 25, s. 3, buildings, engines, or 
machinery, erected by a tenant, with the consent of the 
landlord, for agricultural purposes, were made the property 
of the tenant, and removable by him, subject to an elec- 
tion in the landlord to purchase them. By " The Agri- Agricultural 
cultural Holdings Act, 1883," 46 & 47 Yict. c. 61, s. 1, HoldiDgnAct. 
the tenant of an agricultural holding is given the right to 
obtain from his landlord compensation for buildings, fix- 
tures and improvements of certain kinds specified in the 
schedule to the Act. And it is further provided by s. 34, 
that " where a tenant aflGbces to his holding any engine, 
machinery, fencing or other fixture, or erects any bidlding, 

(b) Per eur. Buekland v. ButUr- (d) Finney t. Grice, L. R. 10 0. 

JUid, 2 B. & B. 5S. D. 13; 48 L. J. G. 247 ; anU, p. HI. 

(£) EUioit V. B%9hop, 10 Ex. 622 ; {e) Blwe$ t. Mawe^ 3 East, 38 ; 2 

24 Xi. J. Ex. 229. Smith, L. 0. 

l2 



iijt wfiieiL he is not fBiridi?d to eanipen«ti<m, then such 
Exmr*^ or sniLiTTTg hloZ oe tie pcop^lr of and remoTable 
LT tile tf^cant 'i^tt-r^ or wirhia. a reasonable time aftCT the 
termfnatii'^n :-t roe tenaiii! j."* Bat the light of removal tims 
grren. is subject to the oondkLons nnpoeed by the section^ 
aa to pa jment of aZ. rsit owin^* lepoir of damage by the 
remoTaL notioe to the Lizi*il<^i« and election by him to 
pccrrJiade. 

'Bif^ of The tenant ^ 'ight to remove fixtnres^ in the absenoe of 

^Kcial agreement res^»h2ting it, mnst be exerciaed before 
giving op possession at the terminaticaL of the tenancy. By 
then quitting pos5€s§i>jn he abandons his right; he cannot 
afterwards enter to remove them ; nor can he recover them, 
if afterwards severed, or their valne; ^they become a 
gift in law to him in reversion '' (/). The right of re- 
moval is limited to possession nnder the tenancy, whether 
the tenancy is determined by lapse of time ; or by re-entiy 
of the landlord nnder a condition of forfeiture {g) ; or by 
surrender, in fact or in law {h) ; or by a mortgagee taking 
possession or selling (/). But "in cases where a tenant 
holds over after the expiration of a term certain under a 
reasonable supposition of consent on the part of his land- 
lord ; or in the case where an interest of uncertain duration 
comes suddenly to an end, and the tenant keeps possession 
for such reasonable time only as would enable him to sever 
his fixtures and to remove them with his goods and chattels 
off the demised premises ; or even in cases where the land- 
lord exercises a right of forfeiture, and the tenant remains 
on the premises for such reasonable time as last referred to, 
the law would presume a right to remove tenant's fixtures 
after tlio expiration or determination of the tenancy" (A-). 

I/) Holt, 0. J., PooU's Case, 1 Gould, L. R. 13 Q. B. D. 464. 

Satk. 308 ; Li/(U v. RmmU, 1 B. & (A) Moas y. Jamet, 47 L. J. C. P. 

Ad. 804 ; lAder v. llomwood, 5 G. 160 ; Ex parte Brook, L. R. 10 C. 

B. N. ». 64e. I>. 100; 4S L. J. B. 22. 

Ctr) MiHshafl v. Zhyd, 2 M. & W. (•) See ante, p. 105 ; and see 

4A() ; iV^A V. ArtoH, L. R. 8 £q. Sanders v. Davit, ante, p. 106. 

euC; 38 L. J. C. 619; Ex parte (k) Per cur. £x parte Br9ok,L.K, 



CHAP. nil. FIXTURES. 117 

If a tenant surrenders his lecise after having assigned the 
fixtures to another, the surrender is subject to the prior 
light of the assignee, who is entitled to a reasonable time 
for removing the fixtures after receiving notice of the 
surrender (/). 

By express covenant or agreement in leases, fixtures not CovenanU 
otherwise removable may be treated by the parties as ^^Kio 
removable, and tenant's fixtures may be treated as removal of 
irremovable, and the time for removal may be enlarged or 
restricted. Where the lease stipulated that the lessee 
should provide and maintain the fixtures suitable for a 
certain buidness, and that in case of the determination of 
the lease by lapse of time, but in no other case, he shoidd 
remove them ; the lessee was held to have renounced his 
ordinary right as a tenant to remove the fixtures during 
the continuance of the term (m). Where the lease pro- 
vided that certain buildings and other fixtures should 
be the property of the lessee, it was held that they 
remained his absolute property notwithstanding a forfeiture 
of the lease by his bankruptcy, and that the receiver in 
bankruptcy was entitled to claim them from the lessor («). 
" Where there is an express contract that the tenant shall 
have a right to remove fixtures, that does not mean that 
the moment the term ends or is forfeited he loses his right, 
but that he must have a reasonable time after the lease 
determines" (o). " Such a stipulation would operate as an 
enlargement of the term, not for all purposes but so far 
as to give to the tenant the right to remove his goods, 
and to do aU things necessary for that purpose ; a 

10 C. D. 109 ; 48 L. J. B. 25 ; James, 47 L. J. Q. B. 160. 

JFeeton v. Woodcock, 7 M. & W. (m) Lumergite y. Rumsey, 2 H. & 

19 ; Sumner v. Bromilow, 34 L. J, C. 777 ; 33 L. J. Ex. 88. 

Q. B. 130. («) Ex parte Gould, L. B. 13 Q. 

(/) London Loan Co, y. Drake, 6 B. D. 454. 

C. B. N. S. 798 ; 28 L. J. C. P. (o) Pugh v. Arton, L. R. 8 Eq. 

297 ; Saint v. FUiey, L. B. 10 Ex. 630 ; 38 L. J. G. 619 ; Stanafeld v. 

187 ; 44 L. J. Ex. 83 ; Most v. Fortsmouth, 4 0. B. N. S. 120, 



xjj j^aKSs- Iff 

r^y^-t" vnntr rr^l "i^ Iltt zl 'fIl^ ?*» jC s tecaot at will, 
iruL JL *Li4jr r ul ■E!:r-Ti:r ic a i-^^sirl for life "(/>). 
T"ih-r»- L 'v-'Trirfr 'inilr i. rr»*dLii:T2f*?- T^rifr an express 
viiit-^Asizix :z -^^ ^LUiiLJ r-L ": 2i>=C£!*f- "lL-t removal of it 
iimur "iii^ t-i^^L '. z: TTir ~i>*^"ii "iiiir iit*- t-en.Lr.t migbt lemove 
•fii* zt^^^ilIi iu** LiriLr ^ii* '-s^l nr ▼ElLit. a reasonable time 
t±>2:- ':»ir liiic ii^r -ir -n_ii ijx i*i- iZiiyr-^i a fcrther time to 
iiii % ^iir-t'liL^-r :e r i*ti: jrr z«i:i:TiL a&i diat a pmrehaser 



r^cf-lz^ fr Lf-rT "iiH^ -s^irL-i.iL id ihtf- T.5n& would acquire no 



^•.•»«iwfit -A f,*^r:;»r ri^ir ^ . — A i* -^^^litz-i rj ib* lesee to ddiver up 
4ZI trSi LiLjn izii 2-Lr.«jfi g at ie *ii£nd-ni of his lease is 



/-^'/r/i / ::v? c^'.'iscr^ti sziirlj t> inclirJe buildings and 
£r:r-r%ft trv.^r^i f :r tn^I^ rszTTtites. wtii would otherwise 
be r^TL:' Ti'. > i* t>=r.,ir.r's £xrzr^ - , A eoTenant to yield up 
iL^ 4f^zLi*eii iT^srlses - wiih all winiows, Ac-» which then 
w^T»r f/r at anv thase tLerBafi^- should be affixed or belong- 
iiig^ was c-onstm^d to in':I:ide a plate glass shop front 
er*:<:*/^i bj the tenant f-jr the pTirpoee of his trade («). But 
a oovf^nant to leave certain specified fixtures (being land- 
loT(Y» fixtures) y and ^all other fixtures and articles in 
ihf: nature of fixtures," was construed as limiting the 
gffiiffTHl words to fixtures of the same kind as those speoi- 
fiedy and therefore as not induding tenant's fixtures (^). 
A covenant bj a lessee to erect certain fixtures upon the 
demised premises, and to keep the premises and fixtures in 
repair during the term, was construed to import that the 
fixtiiroH must be left at the end of the term, although there 
WOH no express covenant to that effect, because the lessee 
was precluded by the covenant to repair from removing 
thorn during the term (u). An express covenant in a 
lease under seal to deliver up all buildings and fixtures at 

( ») Wlllon, J. CornUh v. Slubbs, (s) Burt v. HaaleU, 18 C. B. 893 ; 

L. H. 6 C. P, 339 ; 39 L. J. 0. P. 26 L. J. C. P. 296. 

206 ; Lit, s. 69. (rt JEUiott t. BUhcp, 10 Ex. 622 ; 

(y) Mo«« V. JatMS, 47 L. J. Q. B. 24 L. J. Ex. 229 ; see Sumntr t. 

l»0. Mromilow, 34 L. J. Q. B. 136. 

(r) Ka^hr v. ColUng0, 1 Taunt. («) £x parte DaglUh^ 42 L. J. B. 

10 i Mitriifr v. BrmiUjft 9 Bing. 24. 102. 



CHAP. VIII. FIXTURES. 119 

the end of the term could not be dlBoharged at common 
law by an agreement not under seal, as in the ease of a 
greenhouse erected bj the lessee under a parol licence of the 
lessor to remove it when he pleased ; but it seems that such 
a licence would be available in equity, and under the 
Judicature Acts would be available in all Courts {x). 

Fixtures are regarded in law for most purposes as part Fixtures m 
of the land or tenement to which they are annexed. At J^til^ 
common law they were not the proper subject of an action 
of trover, which was the form of action provided for the 
recovery of goods and chattels only(y). They are not 
properly described as ''goods and chattels sold and 
delivered/' in &n action against an incoming tenant for 
the price (s). The tenant in possession may claim for a 
wrongful severance of fixtures as a trespass to his tene- 
ment ; but they become goods and chattels upon severance 
and may be so claimed (a). — Fixtures cannot be taken Fiztnres 
in execution under a writ of fieri facias levied against JjJ^i^ "*' 
the owner of the inheritance ; because they are part of the 
freehold, and the writ can be levied only upon his goods 
and chattels (6). But ''tenant's fixtures" may be taken 
and sold in an execution levied against the tenant of a 
limited estate ; because whatever the tenant may remove 
the sheriff may seize for the benefit of his creditors (c). 
Fixtures which such tenant has no right to remove cannot 
be taken under an execution against him, and not even 
after he has severed them, for by wrongful severance they 
become absolutely vested in the reversioner ((f). And 
where by the express terms of a lease the tenant re- 
nounced his right to remove tenant's fixtures during the 

(x) JFe$i Y. Blakeway, 2 M. & G. 961 ; Fitt y. Shew, 4 B. & Aid. 206 ; 

729. Thompson v. Fettitty 10 Q. B. 101. 

Cv) Mackintosh t. Trotter, 3 H. (h) Winn y. Ingilby, 6 B. & Aid. 

ft W. 184 ; Wilde t. Watere, 16 626. 

O. B. 637; 24 L. J. G. P. 193; (c) FooUU Case, 1 Salk. 368; 

Shem ▼. Ruikie, 6 M. & W. 182. MinthaUv. Lloyd, 2 M. & W. 459. 

(g) Zee y. Miedon, 7 Taunt. 188. {d) Farrant y. Thompson, 5 B. ft 

(a) DaUon y. Whittem, 3 Q. B. Aid. 826. 



120 



USES AND PROFITS OF LAND. 



Distress for 
rout. 



term, it was held that thej oould not be taken in execution 
against him, because they then became the property of tiie 
landlord (e). Even in the case of a tenant '^without im- 
peachment of waste " the execution creditor has no right 
of taking any other than ordinary tenant's fixtures; 
although the tenant himself might take others with 
impunity ; ^' because in that case the tenant hath only a 
bare power without an interest"; but after severance by 
the tenant the creditor might seize them (/). — ^Fixtures 
cannot be taken as a distress for rent, because they are 
part of the tenement out of which the rent issues, and a 
distress can only be taken of goods and chattels there 
found {ff). But if ^' tenant's fixtures " are taken in execu- 
tion by the sherifE the landlord is entitled to payment of a 
year's arrear of rent before removal under the statute 8 
Anne, c. 14 (h). 

Fixtures are not goods and chattels within the reputed 
ownership clause of the Bankruptcy Acts ; so as to entitle 
the creditors of a bankrupt tenant to claim them, as against 
a prior assignee or mortgagee of the tenement or of the 
fixtures, as being "goods in the possession order or dis- 
position of the bankrupt in his trade or business by the 
consent and permission of the true owner, under such cir- 
cumstances that he is the reputed owner thereof" ; because 
the possession of fixtures by the tenant is not as of goods 
Disclaimer of but as part of his tenement (t). — ^The disclaimer of a lease 
by the trustee in bankruptcy of the lessee has the same 
effect as a surrender in abandoning the tenant^s fixtures. 
It takes effect from the date of the appointment of the 
trustee, and puts an end to the term and the lease from 
that date, thereby excluding the trustee from all claim to 



Bankmptqy 
of tenuit. 



lease in bank 
ruptcy. 



{e) Dumergue y. Rumseyy 2 H. & 
C. 777 ; 33 L. J. Ex. 88, anU, 

(/) Fer cur. Foole's Case, I Salk* 
368. 

{ff) Sellatcett t. Eattwood, 6 £z» 

311. 
(h) See p<^t, p. 465. 



(0 "Bankruptcy Act, 1883," 46 
& 47 Vict. c. 62, 8. 44 ; Horn t. 
Baker, 9 East, 215 ; 2 Smith, L. a 
4th ed. ; Ex parte Gawan^ JRe Bar* 
clay, 5 D. M. & Q. 403 ; 25 L. J. 
B. 1 ; Whitmore y. Emptan, 23 Beax. 
313 ; 26 L. J. C. 364. 



CHAP. VIII. FIXTURES. 121 

the fixtures removable during the term; and notwithstand- 
ing an express proviso in the lease allowing a certain time 
after the determination thereof for their removal (k). But 
hy the Bankruptcy Act, 1883, 46 & 47 Vict. c. 62, s. 55, 
*' a trustee shall not be entitled to disclaim a lease without 
the leave of the Court, and the Court may, before granting 
such lease, require such notices to be given to persons inte- 
rested, and impose such terms and meke such orders with 
respect to fixtures, tenant's improvements, and other matters 
arising out of the tenancy as the Court thinks just." 

Fixtures, or the right to remove fixtures, may be assigned Kxtarea 
or reserved separately from the tenement to which they jj^^^teiy 
are annexed. — A licence given by a landlord to an out- from the tene- 
going tenant to leave his fixtures on the demised premises 
after the expiration of the term, with the view of selling 
them to an incoming tenant, and with the right to enter 
and remove them, was held to grant an interest in land, and 
therefore to require a deed under seal (/), — A contract by Statute of 
an outgoing tenant with the landlord or with an incoming ■"*^*^* 
tenant for leaving the tenant's fixtures is not a contract or 
sale of ant/ interest in land within the fourth section of the 
Statute of Frauds ; nor a contract for the sale of goods 
within the seventeenth section; and the price may be 
recovered as due " for fixtures sold and delivered " without 
any such memorandum or note in writing of the contract 
as is required by the statute (m). 

Fixtures sold and assigned separately are subject to the Bills of Sale 
provisions of the Bills of Sale Acts, 1878, 1882 (41 & 42 ^''^' 
Vict. c. 31, 45 & 46 Vict. c. 43). By sects. 8, 9 of the Act, 
1882, every bill of sale of "personal chattels" is declared 

(k) Ex parte Stephens^ Be Zavies, (/) MoffeyY, Henderson^ 17 Q. B. 

li. R. 7 C. D. 127 ; 47 L. J. B. 22 ; 674 ; 21 L. J. Q. B. 49. 

JSr parte Brooks^ Be Boberts, L. R. (m) Mallen v. Bunder, 1 C. AI. & 

10 C. D. 100 ; 48 L. J. B. 22 ; Ex R. 266 ; Lee t, Qaekell, L. R. 1 Q. 

parte Olegg, Be Latham^ L. R. 19 B. D. 700 ; 46 L. J. Q. B. 640 ; 

C. D. 7 ; 61 L. J. C. 367 ; see Jic Lee v. Bitdim, 7 Taunt. 188 ; ante, 

parte Dyke, Be Mmriahy L. R. 22 p. 119. 
C. I>. 410 ; 62 L. J, 0. 670. 



122 USES AND PROFITS OF LAND. 

Toid unless registered within seven clear days after the 
execution thereof, and unless it truly sets forth the c?on- 
sideration for which it is given, and unless made in accord- 
ance with the form given in the Schedule to the Act By 
sect. 4 of Act, 1878, " the expression * personal chattels * 
shaU mean, goods, furniture, and other articles capable of 
complete transfer by delivery, and (when separately as- 
signed or charged,) fixtures ; but shall not include chattel 
interests in real estate, nor fixtures (except trade machinery 
as hereinafter defined) when assigned together with a free- 
hold or leasehold interest in any land or building to whieh 
Trade they are affixed." By sect. 5, " trade machinery shall for 

^^' the purposes of this Act be deemed to be personal chattels," 
and "trade machinery means the machinery used in or 
attached to any factory or workshop ; exclusive of the fixed 
motive powers, such as water-wheels and steam-engines, &c. ; 
and exclusive of the fixed power machinery, such as shafts, 
wheels, drums, which transmit the action of the motive 
powers to the other machinery ; and exclusive of pipes for 
steam, gas, and water. The machinery excluded by this 
section from the definition of trade machinery shall not be 
deemed to be personal chattels within the meaning of the 
Act." — Consequently assignment of the excluded machinery 
does not require registration under the Act (n). And if 
assigned together with other personal chattels by the same 
deed and the securities can be separated, the deed may be 
valid as to such machinery, though void under the Bills of 
Sale Acts as to the other chattels (o). A mortgage of 
freeholds or leaseholds impliedly conveys all the fixtures, 
unless an intention to the contrary is expressed in the 
deed ; and an express conveyance of the fixtures excluded 
from the operation of the above section was held not to 
negative the implied conveyance of all other fixtures in- 
cluding trade machinery (p), A mortgage of a building 

(«) npk«m T. 0rteHsid4 J7iv*ririt 310 ; 57 L. J, Q, B. 263. 
Oo,y L. R, 37 0. B. 281 ; 67 L. J. ( j>) SouiMport Banking Co, r. 

0. 6S3. Tkompmm^ L. R. 37 G. I>. 64 ; 57 

(n) 1U liHnfrtf, L, R, 20 Q. B. D. L, J. C. 1 14. 



CHAP. VI II. FIXTUEE8. 123 

impliedly conyejs the trade machinery a£Bixed to it, but 
primd facie gives no power to sever the fixtures and deal 
mrith them as personal chattels, and therefore is not a Bill 
of Sale ; nor is it construed as such by reason of an express 
power of sale in general terms over the mortgaged property 
or any part thereof ; but if the mortgagee takes a special 
power to sell the trade machinery separately he must regis- 
ter his security as a Bill of Sale {q). — ^By sect. 7, " No 
fixtures shall be deemed to be separately assigned or 
charged by reason only that they are assigned by separate 
w(M:ds, or that power is given to sever them from the land 
or building to which they are a£Bxed, without otherwise 
taking possession of or dealing with such land or building; 
if by the same instrument any freehold or leasehold inter^ 
in the land or building .to which such fixtures are affixed, is 
also conveyed or as^gned to the same person. The same 
rule of construction shall be applied to all deeds or instru- 
ments including fixtures executed before the commencement 
of tiiis Act." — ^XJnder the former Bills of Sale Act, 1864, Bills of Sala 
repealed by the above Act, 1878, ** tenant's fixtures" were ^^* ^^^** 
held to be within the Act, whether the fixtures were as- 
signed separately or not ; provided the assignee acquired 
the power of removing them and dealing with them as 
personal chattels (r). 

(^) JZff Fatei, L.R. 38 0.D.112; 8 Ch. 1072; 42 L. J. B. 102; 

67 li. J. C. 697. £x parte Moore^a Banking Co,, He 

(r) Hawtry t. Butlin^ L. R. 8 Armytagey L. R. 14 C. D. 379 ; 49 

Q. B. 290 ; 42 L. J. Q. B. 163 ; L. J. B. 60. 
£s parte Ikiglieh, Be Wilde, L. B. 



Ill 



ZSBS A^D FSOFIT? OW LASD. 



CHAPTER EL 



TITLE DEED6 : HELRLOOMS. 



Pmperty in ode deeds — ficedaZd. — frmmTinM — laortgmges — deed boz-^ 

latmoiy of dieeda. 
'BlsAt of pgrrTi-ner to deedB — leamee — aortgaigee. 
Castodj of deeds — sai between tEumt for Hfe andrevcnianer — ^troatee and 

eesFtoi qiie tnxsC— eoatroi of cvastodj hj Comi — e mieumi nt intensts 

m »ame deeda — sale of Imd izL lots. 
Tcodactiaa of deeds for iziapectio& — prtrOege of BHvtgagee — oorenant for 

prodactiott — ^prodactioa under ConTersncmg- Aeiy 18S1. 
Sepftrate propertr in deeds — deposit of deeds as accuiltj — lien of solicitor 

— sdrerae possession of deeds. 
flebioomi — chattels settled as IteiiloaBBS — sale of heizlooiiiB — SetUed 

Land Act. 



Trffpftriy hi 
title d«Gds. 



yret»hoVU, 



ltt*tm*)ut\tU. 



MofilfftffM. 



Title deeds and all docomeiits of title are regarded in 
law as accessories of the land to which they relate ; and 
the pToperty in them presmnptiTely follows the title to the 
Iand« Accordingly, deeds and documents which relate to 
the inheritance of land pass hy descent to the heir as 
incident to the inheritance, and not as personal chattels to 
tlie executor or administrator ; and they pass to the lord 
hy escheat (a). They pass to the heir of a tenant pur 
autre tie, who takes as special occupant, and not to the 
administrator (6). — Deeds and documents that relate to 
loamiliold or chattel interests in land pass with suoh 
iTiioroHts as personal estate of the deceased tenant. — ^Deeds 
of mortgage conveying the legal estate in the lands pass 
witli the title to the land ; hut title deeds merely deposited 



(ff) 8htpp. Touoh. 460 ; 1 Co. 2(i, 



{b) Atkinson y. Bakery 4 T. R. 
229. 



CHAP. IX. TITLE DEEDS ; HEIRLOOMS. 125 

as security for a debt, by way of eqtdtable mortgage, 
pass with the debt to the assignee or exeoutor of the 
creditor (c). 

The box or receptacle appropriated to keeping deeds Deed box. 
and documents of title is regarded in law as an accessory 
of the deeds and passes together with them. " The charters 
and the box are become one entire thing ; and inasmuch as 
the charters are more precious than the box, therefore the 
heir who has the property of the charters, shaU have the box 
also, and not the executor." But " if there be any money, 
plate, or any other such like thing in the chest also, the 
executor shall have that thing " (d) . — ^Deeds and documents Lansenj of 
of title are not properly described as " goods and chattels," °®®^- 
and therefore are not a subject of the crime of larceny, or 
the stealing of goods and chattels, at conmion law ; nor is the 
box that holds them {e). It is now provided by 24 & 25 
Yict. c. 96, s. 28 (substituted for 7 & 8 Geo. IV. c. 29, 
8. 23), as to larceny of written instruments : — " Whosoever 
fihall steal or for any fraudulent purpose destroy, cancel or 
obliterate or conceal the whole or any part of any document 
of title to lands shall be guilty of felony," arid shall be 
liable to the punishment therein mentioned. 

Upon a sale of land the purchaser is presumptively Right of 
entitled to delivery of the deeds and evidences of title; title dee^. 
and a conveyance of the land, primd facicy passes the 
property in such documents, without express mention of 
them(/). The property passes upon the execution of 
the deed of conveyance; the solicitor or agent of the 
vendor thenceforth holds the deeds, if in his possession, 
for the purchaser only ; and he retains no lien for charges 
against the vendor (^). If the deed of conveyance is 

(e) SheppaTd*8 Touch. 469 ; Wms. beer, 2 Str. 1 135. 

Ex. 610, 4th ed. ; JRe Richardson, (/) Go. Lit. 6a ; Lord Buck- 

SkiliUo T. Hobaon, L. B. 30 C. D. KureVe ease, 1 Co. 1. 

396; 66 L. J. C. 741 ; pott, p. 134. (y) Philips y. Jtobinson, 4 Bing. 

{d) Plowden, 323 ; 8he]^Mird*3 106 ; lord v. JTardle, 3 Bing. N. C. 

Touch. 470; Wms. Ex. 610, 4th ed. 680 ; Frati y. Vizard, 6 B. & Ad. 

{e) 3 Ck). Inst. 109 ; Sex y. West* 808. 



deliTcred as an escrnw to taike effect upon pajmoot of the 
pTimhaae-mjifiiey. tke prr-peity in the deeds passes oan- 
ditionaZj npon the payment, hut upon payment hecomes 
ahsoiate fm^m the deiirery of the deed, to the exclusion of 
any intermediate dealings with them (A). The pmnchaser 
19 pre&nmptiTely oititled to deliTery of all deeds and 
doomnents rating to the prapertr that are in possession 
of the Tendor. though of earlier date than the title shewn 
and accepted; hut a corenant to produce title deeds 
extends onlr to the deeds and documents which are 

m 

necessary to make a good title (i"). He is also entitled to 
haye all the deeds that are material to the title correctlj 
stamped. A deed of mortgage which was paid off upon 
the occasion of the sale must he delirered to the purchaser 
stamped for the fuU amount of the mortgage at the 
Tender's expense, hecause it would not otherwise be avail- 
able as evidence of the title {k), 

!-<»««. A lease under seal is usually made by indentures of 

lease and counterpart, the former executed by the lessor 
and delivered to the lessee, who at the same time executes 
and delivers the counterpart to the lessor. The primd facte 
inference is that the property in the indenture of lease 
belongs to the lessee, and in the counterpart to the lessor. 
Upon determination of the lease by lapse of time or by 
forfeiture, the lessor acquires no right to a return of 
the indenture of lease ; it forms no part of his title, and 
remains the property of the lessee. An assignment or 
surrender of a lease would prima facte carry the property 
in the indenture of lease with it ; the title deed going with 
the estate in the land (/). 

Mortgagoe. A mortgagee of the legal estate is in the position of a 

purchaser, as regards delivery of title deeds ; and upon the 
like principle a mortgagee on being paid off is bound to 

(A) Hooper y. RatMhotiom, 6 (li)MeWhUifUfandLoomet^'L.'Bi. 

Taunt. 12. 17 Cf, D. 10 ; 50 L. J. C. 463. 

(i) ratr T. Lovegmty 4 Drew. (Q HaU t. Ball, 3 M. & G. 242 ; 

ISa ; Coopei' v. Kmtry^ 1 Fhill. 388. JSlworihy t. San^ford, 3 H. ft G. 

330 ; 34 L. J. Ex. 42. 



CHAP. IX. TITLE DEEllS ; HEIRLOOMS. 127 

re-deliver the deeds. After discharge of the mortgage debt 
he has no further interest in the land and no right to keep 
anything relating to it ; he cannot daim to have a copy of 
{he deed of mortgage, or of the reconveyance to the mort- 
gagOTy at his own cost or the cost of the mortgagor (m). 
XTpon foreclosure the mortgagee, becoming absolute owner, 
is entitled to possession of all deeds relating to the title prior 
to the date of the mortgage ; but he is not entitled to 
delivery of subsequent deeds relating to the equity of 
redemption (n). 

In the case of land settled upon tenants for life with Custody of 
remainders over, the general rule is that the legal tenant betwera^ 
for life in possession is entitled to the custody of the title to^ant f or 
deeds (o). The tenant for life holds the deeds for the venioner. ~ 
benefit of all persons interested in the title ; all of whom 
Bieprimd facie entitled to production and inspection of the 
deeds when necessary for dealing with their several estates 
and interests ; but the Court will not incidentally deter-* 
mine the title of a remainderman in a suit merely for the 
production of deeds, and will refuse production until the 
title is dear (p). A tenant for life can create no permanent 
charge or lien upon the deeds that will be available against 
his successor ; in whom the custody of the deeds vests im- 
mediately upon the death of the tenant for life (q). A 
mortgagee of the remainderman is in the same position as 
his mortgagor as regards custody of title deeds ; therefore 
he cannot lose prioiiiy merely by reason of not holding 
them during a prior tenancy for life (r). 

As between trustee and cestui que trust it is, in general, Between 

tnisteeand 
cettui que 

(m) Se Wade and Thomas, L. R. L. J. 0. 662. *^^*' 

17 C. D. 348; 60 L. J. C. 601. (p) Davie v. Dysart, 20 Bear. 

(«) Greene t. Foster, L. R. 22 406 ; 24 L. J. 0. 381 ; Fennell v. 

C. D. 666 ; 62 L. J. C. 470. JDysart, 27 Beav. 642 ; JV w*/ t. 

(o) Webb y. Lymington, 1 Eden, Ward, 1 Aladd. 322. 
8 ; Gamer t. Hemnyngton, 22 Beav. (q) Boston v. London, 33 L. J. 

627 ; Allwood y. Heywood, 1 H. & Ex. 34. 

C. 746 ; 32 L. J. Ex. 163 ; Leathes (r) Tourle y. Rand, 2 Bro. G. 0. 

y. Leathes, L. R. 6 C. D. 221 ; 46 660 ; Farrow y. Sees, 4 Beay. 18. 



128 



r^s ASJ} rmoms of land. 



Control of 
Court oFer 
ctwtodjr. 



the light and the datx of the trustee in whom the legal 
estate is Tested to hare the eustod j of the deeds, the poe- 
BesBon of the deeds fconmg no pait of the heneficial en- 
joTin€ait of vhich the cprfwi yw^ tnui can daim to hare the 
poBRPwraon. But a bare trustee, who might be called upon 
to conTeT the legal estate, would also be bound to deliTer 
the deeds with it •^^. THiere the equitable estate in land 
is settled upon tenants for life and in remainder, and there 
are no q>e(3al trusts in the settlement requiring the trustees 
to retain possesion of the deeds, the Court sanctions the 
rule of legal estates which entitles the tenant for life to the 
custody of the deeds ; unless the tenant for life was him- 
self the settlor, for in that case by holding the deeds he 
would be enabled to make a good title in fraud of the first 
settlement, and the trustee would be responsible for the 
consequences of giving them to him(/). The cestui que 
trust has a right to production and inspection and to have 
copies of the trust deeds and documents at his own ex- 
pense (ti) ; and these include cases and opinions of counsel 
taken by the trustee for guidance in the administration of 
the trust, the costs of which fall upon the estate as being 
for the benefit of all persons interested. But a mere 
claimant, before he has established his title, has no such 
rights (r). 

The Court exercises equitable control over the custody 
of title deeds for the benefit of all parties interested, and 
if circumstances require it, may order them to be brought 
into Court; as where the safety of the deeds may be 
endangered by leaving them in the custody of a tenant for 
life or other person entitled to the legal custody (tr). The 
mere fact that there is no relationship between the tenant for 



(*) See Buncombe v. Mayer, 8 Ves. 
320: Barclay v. Collett, 4 Bing. 
N. 0. 668. 

(0 LangdaU t. Briggs, 8 D. M. 
& a. 891 ; 26 L. J. G. 40; EvaM 
T. Bkknell, 6 Vefl. 174. 

(u) Ex parte Holdsworth, 4 Bing. 



K. C. 386; Be CotctHy Cowin ▼. 
Gravett, L. B. 33 C. D. 179; 66 
L. J. a 78. 

(r) Wynne v. Humberaton, 27 
Beav. 421 ; 28 L. J. C. 281. 

{w) Hardwickei L. C. Ivu y. 
Ivie, 1 Atk. 431. 



CHAP, IX. TITLE DEEDS; HEIELOOMS. 129 

life and reverrioner is no ground for Interference (a?). The 
Court while leaving the deeds in the custody of the tenant 
for life may require In'Tn to give security for their safe 
custody and for their production when reasonably re- 
quired (y). "Where the property is being administered by 
the Court or where there is a suit pending relating to the 
property requiring the presence of the deeds, the Court 
ynH order them to be brought into Court, or otherwise 
disposed of as most convenient for the purpose (»). 

Where two or more persons have several concurrent Con<rarrent 
interests in the same deeds, the right of custody is said to ^e dee£. 
be ambulatory ; whoever of them obtains possession in fact 
(in absence of force or fraud), may keep it against the 
others, because as between themselves, each has an equal 
right to the possession. Thus in the case of joint tenants 
each is equally entitled to the custody of the title deeds, 
though on the death of one the survivor would be entitled 
to have them. So one of tenants in common in possession 
of the deeds can retain possession as against a co-tenant, 
who can show no better title to hold them {a). Neither 
of the persons so entitled can alone recover possession of 
the deeds from the isustody of a third party, though the 
latter has no interest in holding them; but aU parties 
interested must join in suing for the possession. In such 
case the Court would protect the interests of all at the suit 
of one by ordering the deeds to be deposited in Court for 
their inspection and use (ft). — Where land held \mder one Sale of land 
title is sold in lots, the general rule, ia the absence of ^^^^' 
special conditions, is that the purchaser of the lot largest 
in value, or the purchaser of several lots to the largest 
amount, is to have the custody of the deeds. So, upon the 

a 

(x) Zeatket y. Zeaihes^ L. B. 6 310. 

C. V. 221 ; 46 L. J. C. 662, dis- . (a) 1 Go. 2 0, Buckhurtt^i Com; 

Bentmg from Warren v. Hudall, 1 Tea v. Fields 2 T. R. 708 ; Foster 

J. & H. 1 ; 29 L. J. C. 643. v. Crabb, 12 C. B. 136 ; 21 L. J. 

(y) Jermer v. Morris, L. R. 1 Oh. C. P. 189. 
603. W Wright v. Robotham, L. B. 

(s) Leathe9 v. Zeathes, supra; 33 G. D. 106 ; 66 L. J. G. 791. 
SUmford y. BoberU, L. B. 6 Gh. 



130 USES AND PBOFITS OF LAND. 

sale of a part of certain land reserving the rest withoat 
any stipulation as to the costodj of the deeds, they pre- 
Bomptiyely go with the part that is largest in value (c). 
The custody of title deeds, nnder such drcuinstanoes, may 
be specially provided for by the oonditions of sale. A 
condition that the purchaser of ^^ the largest lot " should 
have the title deeds was construed to mean the lot largest 
in area, withoat regard to value {d). And nnder such 
condition the purchaser of the largest lot is entitled to the 
deeds in priority to a purchaser of several other lots of 
greater aggregate area (e). 

Frodnctionof A person entitled to any estate or interest in land 
inspection. ^ is* ill general, entitled to the production of the title 
deeds for his inspection by the person having the 
custody of them ; so far as may be reasonably necessary 
for the protection and disposal of his estate or interest (/). 
A person cannot be compelled to produce his own title 
deeds, as such; but if the same deeds show estates or 
interests in others he is considered as holding them for 
their benefit as well as his own, and he may be compelled 
to produce them. Hence in an action for the recovery of 
land, the plaintiff, if his title be disputed, may compel the 
defendant to produce all deeds and documents, including 
his own title deeds, which tend to prove the plamtififs 
title (g). If the plaintiff's title is not disputed, there is no 
ground for the production of the title deeds in support of 
it; so if the only plea is that the defendant is a pur- 
chaser for value without notice of the plaintiff's title, 
the deeds are presumptively not relevant to the issue, which 
is not as to the title, but as to notice of the title at the time 



(e) Sugden. V. & P. 11th ed. 633. 

456 ; Dart, V. & P. 8rd ed. 94. (^) Fiekerinff ▼. iVbyet, 1 B. & C. 

(d) OriJUha r, Hatehardy 1 K. & 262 ; Egremont Board v. Egrtwumt 

J. 19 ; 23 L. J. C. 957. Iron Co., L. B. 14 C. D. 158 ; 49 

U\ Scott ▼. Jaekman, 21 Beav. L. J. G. 623; Lyell t. Kmuniv^ 

no. L. B. 8 Ap. Ca. 217 ; 52 L. J. C. 

(/) Fain V. AffiTi, 2 S. & S. 385. 



CHAP. IX. TITLE DEEDS; HEIRLOOMS. 



131 



of ptuchase, and the plaintiS can claim production only 
upon the special ground that they tend to disprove the 
plea (A). Accordingly, in answer to the application for the 
production of deeds it is sufficient for the defendant to 
depose that they relate to his own title only, and contain 
nothing tending to prove the plaintiff's ; it is not necessary 
further to depose that they contain nothing to impeach the 
defendant's title, because the plaintiff can only recover 
upon the strength of his own title, as to which the defects 
in the defendant's title are irrelevant, unless they also tend 
to prove his own (i). 

By a rule of equity a mortgagee was privileged from PrivUegeof 
the production of the title deeds of the mortgaged estate ™^ fl^fi^* 
for inspection of the mortgagor, except upon full payment 
of his charge (k). He was equally privileged against any 
person claiming under the mortgagor, or claiming any 
interest in the equity of redemption (/). But not against 
persons claiming against the mortgagor from whom he 
received the deeds ; for they retain the same right of 
production and inspection of the deeds as when they were 
in the hands of the mortgagor (m). This rule does not 
extend to the mortgage deed itself, which contains the 
proviso for redemption, and therefore is as much the 
evidence of the mortgagor's title to redeem as it is of the 
mortgagee's estate (n). Exception is also made in cases 
of fraud and of other special circumstances (o). — The 
privilege of the mortgagee is aboUshed in future by the 
Conveyancing Act, 1881, 44 & 45 Vict. c. 41, s. 16, 
enacting that '^ a mortgagor, as long as his right to 



(A) £mmerton t. Jndf L. B. 33 
C. D. 323 ; 55 L. J. C. 903 ; see 
Bennett t. Gloaaop, 3 Hare, 678. 

(t) Emmerton v, Ind^ supra ; Hor- 
ton T. Bott, 2 H. & N. 249; 26 
L. J. Ex. 267 ; Bannaiyne v. Leader, 
10 Sim. 230 ; Smith v. Beaufort, 1 
Hare, 507. 

(*) Gill T. EyUm, 7 Beav. 165 ; 
Qrmntoood v. Bothwell, 7 Bear. 291. 

[I) Browne v. Lockhart, 10 Sim. 



421 ; Chieheeter v. Bonegall, L. B. 5 
Ch. 497 ; 39 L. J. C. 694. 

(m ) Doe d. Morris y. JRoe, 1 M. 
&W. 207. 

(») Stuart, V.-C, Patch y. Ward, 
L. B. 1 Eq. 440 ; see Crispy, Platel, 
8 Beay. 62 ; Browne v. Zockhart, 10 
Sim. 421. 

(o) Phillips y. Evans, 2 T. & 0. 
647 ; Kennedy y. Green, 6 Sim. 6 ; 
Livesey y. Harding, 1 Beay. 343. 



k2 



132 



USES AND PROFITS OF LAND. 



Govenant to 
produce title 
deeds. 



redeem subsists, shall be entitled at reasonable times on 
his request and at his own cost, and on payment of the 
mortgagee's costs and expenses, to inspect and make 
copies or extracts from the documents of title relating to 
the mortgaged property in the custody or power of the 
mortgagee. This section applies only to mortgages made 
after the commencement of this Act, and shall have effect 
notwithstanding any stipulation to the contrary.'* 

A purchaser who cannot have the titie deeds is primd 
facie entitied to attested copies, at the vendor's expense, 
together with a covenant by the vendor to produce the 
deeds for inspection at all reasonable times and occasions 
at the expense of the purchaser ; the attested copies not 
being available as primary evidence, except between the 
parties themselves {q). The right to copies and the cove- 
nant to produce extend to such deeds and documents only 
as are sufficient to show a good titie and which cannot be 
obtained without recourse to the vendor; they do not 
include earlier deeds, nor such as can be seen upon record 
or otherwise, as bargains and sales enrolled, disentailing 
deeds, Court rolls, wills and the like (r). A covenant for 
further assurance includes the giving a covenant wlien 
required for production of deeds (s). The benefit of a 
covenant for production of title deeds runs with the 
purchased land ; and the burden of the covenant attaches 
to land reserved by the vendor, so far as to bind all pur- 
chasers of the land and deeds through him or taking the 
deeds with notice of the covenant {t). 
Production, Under the Conveyancing Act, 1881, 44 & 45 Vict. 
Con^jmcing c. 41, s. 9, a person who retains possession of docimients 
Act, 1881. jjQ^g^y giye to another " an acknowledgment in writing of 
the right of that other to production of those documents 
and to delivery of copies thereof," also " an undertaking' 



(q) Dare v. Tucker, 6 Ves. 460 ; 
Boughtm v. Jewell, 15 Ves. 176. 

M Dare y. Tucker, supra; Cooper 
T. J?m«y, 1 Phill. 388. 



U) Fain y. Ayere; 2 S. & S. 633. 

(t) Barclay v. Rtnne^ 1 S. & S. 

449. Sogd. y. & P. 480, 11th ed. 



CHAF. IX. TITLE DEEDS; HEIRLOOMS. 133 

in "writing for safe custody thereof " ; and such acknow- 
ledgment and undertaking respectively have the special 
effects mentioned in the Act of imposing obligations re- 
specting the documents, equivalent for the most part to 
the ordinary covenants for the production and custody of 
title deeds. The form of acknowledgment and under* 
taking are given in the schedule to the Act. 

The property in deeds may be separated from the land Separate pro- 
to which they relate by the absolute owner assigning them deeds. 
to another as personal chattels. " A man may give or 
grant his deeds, t . e, the parchment, paper and wax, to 
another at his pleasure; and the grantee may keep or 
cancel them. And therefore a tenant in fee simple may 
give or grant away the deeds of his land ; and the heir 
hath no remedy. But a tenant in tail of land cannot, as 
against his issue or those in reversion or remainder, give 
or grant any of the deeds belonging to the land entailed, 
no more than the land itself ; he may give them during 
his own ownership" (w). A grant of "all goods and 
chattds" will not pass title deeds {v). So " if a man have 
an obligation he may give or grant it away and so sever 
the debt and it, i. e., retain the debt, while he has given 
away the property in the deed" {iv). Thus, a bond, or a 
debenture of a company, or a policy of insurance may be 
assigned without the debt or contract to which it relates, 
by reason of certain formalities or conditions required to 
pass the latter which are not satisfied by the mere delivery 
of the deed. " In which cases the plaintiff may not be 
able to recover the document which is the evidence of the 
debt, while the person who holds that evidence may not bo 
able to recover tiie debt itself" (a?). 

Where title deeds are deposited by way of equitable 

(«) Sheppard'a Touch, by Ptes- ton, 242. 

ton, 242; Xeisack y. Nicholsofif Cio, (x) Cairns, L. C, JRummms y. 

Eliz. 496. Sare, L. R. 1 Ex. D. 169 ; 46 L. J. 

(v) t^erkinB, 8. 115. Ex. 30 ; Burton v. Oainer, 3 H. & 

{to) Sheppafd's Touch, by Fres- K. 387 ; 27 L. J. Ex. 390. 



I'M T-iHs JI30 r m urii^ or i.A:n>. 



Tf^yviz 4 n'jrrjxr^^ tie iiirt^-uroe iiz<riEre5 » gwcud piopertjr in the 
^f^gfgg^^ 'ir^L? • : L« I'i iI-titl i* se^inrrrj for the debt, and he can 
adsi^^ tli* rr:r«5rr7 iirr:!. tb? d-roc bat he cannot give any 
?T%*-rr iTrT:«^rrr iz. tl* •i-eels than he has hmuaelf, and 
tL«er^:r«? r.o riziit M b:l-i tb? d«?«ds apart from the debt ; 
cntise^i vTiLtlj wl^re » Tn:rt2ag?e bv deposit made a volnn- 
tATj ^Ift ■:: tl-^ d-rit iiLl d-rliveavd the deeds to the donee, 
\Lrz gilt cf tl-r •!-:' t Coring Tjid foF mmt o£ assignment in 
wrfting, it wif held ti^t no property passed by delivery of 
the AfhfiAs. and the d.-nee conld not retain them against 
the admiciitrator of the donor in whom the mortgage debt 
Tested j/ >. A mortgagee by depodt of deeds, having only 
an e^^uitaLIe charge npon the land, is postponed to prior 
claimants, according to the general rule of priority in 
equity, although he advanced the money without notice of 
such claims. The possession of the deeds gives him no pre- 
ferential charge, but it seems that he cannot be deprived 
of them in favour of a prior merely equitable claim of 
which he had no notice; against which he may take 
whatever advantage may be derived from the bare pos- 
session of the deeds (z). A purchaser or mortgagee of the 
legal estate is in general entitled to possession of the deeds, 
and may recover the possession from an equitable mort- 
gagee ; unless he originally took the legal title with notioe 
of the charge, or unless by fraud or negligence he has 
assisted or acquiesced in the creation of it (a). 

Lien of soli- A solicitor has a general lien for professional charges 
doiMlfl. upon all the deeds and documents of a client in his posses- 

sion. A client who discharges his solicitor without satisfy* 
ing this lien cannot compel the solicitor to deliver up the 
deeds or to produce them for inspection ; but the solicitor 
who discharges himseU, though he retains the lien, may be 

(v) AV J?iVAA»-«fM», SKiUxto y. Gh. 22 ; 44 L. J. C. 157 ; Hfofmert 

//. .'.M.H» li. R. 30 C. D. 396 ; 65 v. Mete, L. R. 29 C. D. 725 ; 54 

L. J.r. 741. L. J. C. 909. 

{:) AV .Vory^TM, nh/irm y. iW- (a) KetcUm v. Seek, 3 H. ft N. 

pvrm, L. R, 18 0. D. 93 ; 50 L. J. 0. 220 ; 27 L. J. Ex. 272 ; Matmen t. 

<K>4j //rvt/A T. CtYafock, L. R. 10 JKffT, w^pfw. 



CHAP. IX. TITLB DEEDS; HEIRLOOMS. 



135 



oompelled to produce the deeds {b). — ^A solicitor retained 
to make a mortgage by both parties cannot retain any 
prior lien against the mortgagor ; his duty to the mort- 
gagee being to retain possession of the deeds clear of all 
prior ii^cumbrances (c) ; nor can he acquire any subsequent 
lien against the mortgagor, his possession of the deeds 
being exclusiYely that of the mortgagee (d). On the other 
hand, the mortgagee's solicitor can acquire no lien as 
against the mortgagor, who is entitled to redeem the 
mortgage and recover the deeds upon paying o£E the debt 
and costs (e). So, a solicitor who takes a mortgage from 
his client holds the deeds in his own right as mortgagee ; 
and cannot claim any lien beyond the mortgage debt and 
costs (/). A solicitor can haye no Ken beyond the interest 
which his client has in the deeds (^). And he cannot 
refuse to produce them for inspection by other parties who 
are interested in the same deeds, upon proper occasions (A). 
He is obliged to produce the deeds in suits for the adminis- 
tration of the estate of his client (t) ; and in proceedings 
in bankruptcy or liquidation (A;), subject to his lien. 



The possession of tittle deeds is always presumed to be in Advene toi 
accordance with the title to the land and on behalf of the ^^^^ ^ 
owner, until it is shown to be adverse. Hence if the land 
and the deeds are in the possession of the same person, he 
holds the deeds as owner, or for the owner, of the land ; 
and a claim of ownership of the land and deeds is not 



8- 



(^) ffetlop V. Metealfef 3 M. & G. 
183 ; Cane r, Martin, 2 Bear. 684 ; 
SeFaithftdl,Tj.Ii.e'Eci.Z26. SeeJ20 
Wadntwrth, L. B. 34 C. D. 155 ; 
56 L. J. C. 127. 

. {e) Re NiehoUony Br parte Quinn, 
53 L. J. C. 302; Be Mason and 
IhyhTy L. E. 10 0. D. 729 ; 48 
L. J. 0. 193. 

(d) Ex parte Fuller, L. B. 16 
O.I). 617; 50L. J. 0. 448. 

(e) Eottie r. Clarid^e, 4 Taunt. 
807 ; Wakefield t. Newbm, 6 Q. B. 
276. 



(/) SheffieU V. JSden, L. B. 10 
0. D. 291. 

(g) Hollie v. Claridge, 4 Taunt. 
307. 

(A) Braseingtcn v. Brassingt<m, 1 
Sim. & Stu. 455 ; Hope r. Siddell, 
20 Bear. 438 ; 24 L. J. 0. 691. 

(i) Belaney y. Ffreneh, L. B. 8 
Gh. 918; 43 L. J. G. 312; Be 
Boughton, L. B. 23 G. D. 169. 

(k) Be Toleman and England, L. B. 
13 U. D. 885 ; Be Capital Fire Ins.^ 
L. B. 24 G. D. 408 ; 53 L. J. G. 
71. 



IM T^gg A3D f BUiiis or lasdl 



»L la t' "iiji ii?*-!:*. tj aiirose poseessioii for any 
T^TLi •! iiL'Tr: :f rT.ir Trzi^i :iir5 a olahn to the land {m), JL 
^ar-ir-t t* ■■=> " 51'il c ^e i-^i^is s aI=*D held presomptiTely 
:iL :»tLili :f tl»^ •±'Lf. *=.•! tie Stitnte of limitations does 
Zi c 'I'^^m ' : nn. ltt-'^..-^ tl?* .iliini of the owner, of the 
Itzii • : iii.-^ ill* itrei*. iiz-til an. adv^ase posBession is set 
-ir. :7 1 rtj-^sil t: L— li--^ tlen Tip when demanded or by 
'Lift *r-r li^ :f ^'Tz*^ :^-r i-t -if >wiiership oyer them (n). 

H^-'itTmiK •HriizL'irLi'* zi iz. L-en: ti:r.-=s were chattels which by 

f-^^iil .TL5C:zi f iz. ^^^ite :r rji.:« descended to the heir 
'F-.tii :->r iiJL»^iiLi.:*r ; tils ifni cf heirloom is now obso- 
I-tr - A l:cL vlii 1-2.1 tteen originall J delivered with 
mi Ls tl-r ftzl':*:! :i tenzz^ bj cc-m^ye has been held to 
T<L55 t - "iiT iTir. Tri'icilj is an eyidence of title (/?). The 
n. - :zz.ei:t5 :f i=. anii^t.rr in a church or chnrchyard, 
wi^lrr £xfi :r n:Ti':>, are said to be heritable; and 

an a-rdon for taking or defeudng 



■A "^ JL- 



*■*" .1 o" 



CbATTitf '■H-irl>~=i5'' in nr-ieTn times are personal chattels 

ri i ire a^mexe-l to 5»rttle»l land by limiting them for 
Le T:ses azl e^tAtes. so as to pass with the land as 
far as tie rtiles cf law and e^^Tiity permit- If the land is 
linit'?*! in strt.^ settlement, that is, for snceessiye estates 
for life -w-ith remain iers in taiL chattels settled npon the 
same limitations aoMr-nij-iaiiT the land through the successiYe 
life estates ; bnt as s-con as the land vests in a tenant in 
tail in prsses^ion, the chattels, as there can be no estate 
tail in such property. Test in that tenant absolutely as 
part of his personal estate, and thus beoome disconnected 
with the land r). In order to prolong as far as possible 
the annexation of the chattels to the land it is usual to 

(m) Plant t. CoiifrfJI, 5 H. ft K. {q) Co. lit. 18 b ; FraneMY. Ley, 

430 ; 29 L. J. Ex. 198. Cro. Jao. 367 ; Spoonery, BrmotUr^ 

In) Spackmtm v. J^u*/<t, L. R. 11 3 Binjr. 136. 

Q. B. D. 99 ; 52 L. J. Q, B. 418. (r) FoUy t. BunuU^ 1 Bro. C. C. 

{o) Co. Lit. IS^ ISo^; Wms. 274; Vaughan y. Bttnltm, 3 Bro. 

Exora. 606, 4Ui ed. C. C. 101 ; Carr y. Lord Bmll, 14^ 

(p) Pusey T. Pusetf, 1 Vem, 273. Vee, 478. 



CHAP. IX. TITLE DEEDS; HEIRLOOMS. 137 

insert in the settlement a proyiso or condition that the 
chattels shall not vest absolutely iq any tenant in tail 
unless he shall attain the age of twenty-one years ; which 
is effectual until a tenant in tail on coming of age acquires 
absolute power of disposing of the land by means of 
barring the entail ; beyond this point it is not possible to 
preserve the settlement of the land, nor can the disposal 
of the chattels be further restricted without infringing the 
rule against perpetuities («). Chattels may be thus settled 
to pass as heirlooms by e:^ressed terms of limitation, or 
by reference to the expressed limitations of the land, or 
simply by the expression that they shall be treated as 
"heirlooms" to pass with the settled land; with the 
additional provision, if required, restraining the absolute 
vesting until the age of twenty-one (^). The tenant for 
life upon taking possession may be required to sign an 
inventory of the heirlooms, but cannot be required to give 
security, unless there is some special risk in his possession 
of them {u). — ^Personal chattels may be settled in the same 
manner independently, and without annexation or reference 
to real estate (v). But a bequest of a silver cup "to S. and 
his heirs for an heirloom " was construed to be simply an 
absolute bequest to S. ; so that S. dying in the lifetime 
of the testator, it lapsed (tr), — ^Where a settlement has Sale of heir- 
annexed heirlooms to real estate, the tenant for life has ^o<>™«- 
no power to dispose of them separately from the estate, 
even for his own life; for his only interest is to have 
the possession as annexed to the estate. Hence in 
the case of a testator giving certain benefits to the tenant 
for life of a settled estate having heirlooms annexed, and 
by the same will bequeathing the heirlooms of that estate 

(a) Christie y. GotUng, L. R. 1 &H. 40; 29 L. J. C. 249; Savile 

H. t. 279 ; 35 L. J. 0. 667 ; JTar- y. Scarborough, 1 Swanst. 537. 
ringUm y. Harrington^ L. R. 5 H. L. (m) Temple y. Thring, 56 L. J. C. 

S7; 40 L. J. 0. 716; Ssmouth v. 767. 

iVcwtf, L.R. 23 0.D. 158; 52 L.J. (v) Shelley y. Shelley y L. R. 6 

C. 420 ; Parkin y. Creeswell, L. R. Eq. 640 ; 37 L. J. 0. 367. 
24 C. D. 102 ; 52 L. J. 0. 798. {to) Be Whortcood, L. R. 34 C. D. 

(0 Lord Scarsdale y. Cunon, 1 J. 446 ; 66 L. J. C. 340. 



138 rSB AMD FBOFITS OF LAND. 



to sDotb«r penom it wms lidd that the tenant for life, in 
Asi^^^ P- the l»t-iH£ts nnder the will, was not honnd, bj the 
dx^rria^ of ejec^on, to make any oompensatLon for the heir- 
Ix^snf^ idi j1i he ocmld. not assign to the legatee ; and that 
be ira$ entitled both to daim the benefits under the will and 
to iv^tain the heirlcKvzns in his own right nnder the settle- 
meLi J- . The Coint has no original jurisdiction to oirder 
a s&> ci beirlxims which are annexed to real estate in 
strict f«^fEr:2ei:t ; ahhoogh a sale wonld be beneficial to 
aZ purdt^ iLTeire^t^ .v). But where charges are to be 
radsel o:it of the settled estate the Court can authorise a 
sile of heirlx'»i!i5 in pereferenoe to selling the land (s), 

Tiie St-nled Land Act, 1882, 45 & 46 Vict c. 38, 
s. $7« as to per^coial chattels settled as heirlooms provides 
that ,r* -A ttr;aiit for life of the land may sell the 
ciisnels c*- anv of them ; '* ^2) " The money arising by 
the sale sisll be capital money arising under this Act 
and shall be dt^t with as other capital money arising 
under this Avt, or may be invested in the purchase of 
other chattels which diaU be s^tled and held upon the 
Game trusts and shall devolve in the same manner as the 
chattels sold : *' 3 *• A sale or purchase of chattels under 
this s^tion shall not be made without an order of the 
Court.'' The Court will not authorise the sale of the 
settled estate bv the tenant for life under the Act without 
providing at the same time for the sale of the heirlooms (a). 
The monev arising fnc^m the sale of the h^looms under the 
above section may be applied in discharge of incumbranoeB 
upon the settled land, notwithstanding that the heirlooms, 
if remaining unsold, would vest absolutely in the tenant 
in tail in remainder upon attaining twenty-one (&)• 



fx) Bt CketJkmm, L. R. 81 C. D. 711 : 46 L. J. C. 174. 

466; 55 L. J. C. 401. («) JKt SntcnU WiO^ Ij. B. 27 

(y) IfEvnamri t. Grt^onf, L. R. C. D. 179 ; 53 L. J. C. 921. 

3 C. D. 635 : 45 L. J. C. 741. ih) ]U MmrUormifk'a StiUemtnt, 

{z) Fane t. Fame, L. B. 2 C. D. L. B. 32 C. D. 1 ; 65 L. J. G. 339. 



( 139 ) 



OHAPTEE X. 

INLAND WATEB. 

Section 1. — Standing Water. 

Property in standing water — riparian ownership. 

Water percolating below the surface — right of draining ofl water- 
draining water from streams — draining mines — sabsidenoe from 
draining — ^poUuUon of percolating water. 

Water artificiaUj collected — ^liability for escape of water— escape by 
accident or superior force — ^water collected in houses. 

Extraordinary floods. 

Inland water is of two kindB, having difierent conditions ; 

in law : namely, — standing water or water not flowing in a 
defined course, including the water of surface lakes and 
ponds, and the water diffused and percolating in the soil 
below the surface; — ^and running water, including rivers 
and streams flowing in a defined course, whether above or 
below the surface. Water is also treated differently in law 
according as it is found in or upon the land in a natural 
condition; or collected there by artificial means. These 
various conditions of wp.ter are treated severally in this 
chapter. 

Water standing upon the surface of land in lakes or Property in 
ponds is considered as part of the land, so that the property "^^^^fif 
in the land primd facie carries with it the property in the 
water. Accordingly a conveyance of "land" presump- 
tively passes the water standing upon it; but the term 
" water" is not alone sufficient to convey the land upon 
which the water stands, without a context or circumstances 



140 



USES AND PBOFITS OF LAND. 



Bipanan 
ownership. 



Bhowing an intention to convey the land by that descrip- 
tion (6). — 11 there is only one riparian owner, whose land 
surrounds a lake of water, the whole presumptively belongs 
to him as part of his land. If there are several riparian 
owners, they are presumptively entitled to those parts of 
the lake and of the bed of the lake which are opposite their 
respective banks, so far as the medium filum aqum ; and all 
beneficial uses, as the right to take materials from the bed 
of the lake, the rights of boating, fishing, and shooting, 
presumptively follow the limits thus ascertained. By the 
law of Scotland, a distinction is made as to those rights 
over the surface of the water which cannot be conveniently 
limited and enjoyed in severalty, such as the rights of 
boating, and fishing, and fowling ; and all riparian owners 
are presumptively entitled to use and enjoy these rights in 
common, in the absence of title to the contrary (c). 



Water peroo- 
latmg below 
sarfaoe. 



Bight of 
draining off 
water. 



Water percolating below the surface of land is not a 
subject of absolute property until appropriated; but the 
owner of the land in which it is found for the time being 
may appropriate the percolating water to the extent that 
he may take it all so as to prevent any of it percolating 
into the land of his neighbour. " This percolating water 
below the surface is therefore a common reservoir or 
source in which nobody has any property, but of which 
everybody has, as far as he can, the right of appropriating 
the whole " (d), — The owner of the land may exercise his 
right of appropriating and removing the water percolating 
beneath the surface, although by so doing he drains o£E the 
water from the adjacent soil and lowers or exhausts the 
natural supply. Accordingly, where, in the course of 
mining operations carried on in the usual manner the 
water was pumped from the soil, and thereby all the water 



'b) Co. lit. 4 a, 5 ; on/^, p. 6. 
c) Uaekensie v. Bank«$, L. K. 3 
). Ca. 1324; as to ownership of 
jd of stream, see/w^, p. 163. 



{d) Brett, M. R. Ballard v. Tom- 
limon, L. R. 29 C. D. 121; 54 
L. J. G. 466. 



CHAP. X. INLAND WATER* 



141 



was drained oat of a well in the adjacent land, it was held 
that the owner of the well had no claim to compensation 
for the loss of water (e). The cases, it is said, affirm this 
proposition : '^ that the disturbance or removal of the soil 
in a man's own land, though it is the means, hj process of 
natural percolation, of drying up his neighbour's spring or 
irell, does not constitute the invasion of a legal right, and 
will not sustain an action ; and further, that it makes no 
difference whether the damage arise by the water perco* 
lating away, so that it ceases to flow along channels through 
which it previously found its way to the spring or well, or 
whether, having found its way to the spring or well, it 
ceases to be retained there" (/). 

So a person may lawfully drain off water in his own Draining 
land, which would otherwise have percolated into and rtr^wT™ 
supplied a river or stream of water running in a defined 
course, although by so doing he materially diminishes the 
flow of water. Accordingly where a Local Board of 
Health sunk a well in their own ground and pimiped up 
water for the supply of a town, thereby abstracting the 
water which would have percolated into a river; it was 
held that the mill owners on the river had no remedy 
for the loss of the water ((/). But after the water has once 
percolated into a defined stream, there is no right to divert 
it by draining, or to abstract it for any purpose not justi- 
fied by the legitimate use of a running stream ; and the 
owner of adjacent land is not entitled to drain his land» 
either above or below the surface with the effect of draw- 
ing water from the stream (A). A spring or definite source 
of water that supplies a stream is considered as part of the 



(^) Aeton 7. mundell, 12 K. & 
W. 324. 

(/) Per eur, Ballacorkish Mining 
Co. T. Harrison, L. B. 6 P. 0. 60 ; 
Jtawiiron y. Taylor, 11 Ex. 369 ; 25 
L. J. Ex. 33 ; Broadbent v. Mamt' 
bottom, 11 Ex. 602; 25 L. J. Ex. 
115; New Biver Co, Y.Johnson, 29 
L. J. M. C. 93; The Queen v. 
Metrop. Board of Works, 3 B. & S. 



710 ; 32 L. J. Q. B. 105. 

{g) Chasemore v. Biehards, 7 H. L. 
G. 349; 29 L. J. Ex. 81; over- 
roling on this point, Dickinson y. 
Grand Junction Canal, 7 Ex. 282. 

(A) Dickinson y. Grand Junction 
Canal, supra ; Grand Junction Canal 
y. Shuffar, L. B. 6 Ch. 483 ; post, 
p. 149. 



142 rSES AND FBOFITS OF LAlND. 

Btream in this respect (t). " A stream of water in law is 
water which runs in a defined course, so as to be capable 
of diversion^ and the term does not include the percolation 
of water below ground " (k), 
^^^fif The same principle applies between several owners of the 

sabfloiL surface and substratum; so that the owner of mines or 

subsoil is not in general responsible to the owner of the 
surface for draining off the surface water ; nor is he liable 
to make compensation for the abstraction of percolating 
water which would otherwise have flowed into, or, having 
flowed into, woxdd have been retained in the wells and 
springs of the superjacent land. Upon a grant or reserva- 
tion of mines or of a right of mining, there is no implied 
exception of the water, in the absence of special agreement 
respecting it (/). But the water may be made the subject 
of express grant or agreement; thus where land was 
demised to a lessee '* with all the streams of water that 
might be found," but excepting the mines and minerals, 
and the right of working them, it was held that the lessor 
was precluded from afterwards working the mines in a 
manner to affect the springs and sources of water that 
supplied the streams referred to ia the demise, for that the 
rights of the parties were regulated exclusively by the 
terms of the deed (m). So in general if a grant of land be 
made for a special purpose that requires the permanent 
use of the water contaiued in the soil, the grantor cannot 
afterwards derogate from his own grant by draining o£E 
the water so as to render the land less fit for the purpose 
in question (n). Where land was conveyed for building 
purposes subject to a rent reserved, and to a covenant by 
the grantee to build sufficient houses to secure the rent ; it 

(t) Dttddeti y. Chilton Union, 1 (/) Ballaeorkith Mining Co. t. 

H. & N. 630 ; 26 L. J. Ex. 146 ; Sarriton, L. R. 6 P. C. 49 ; 43 

French Eoek v. Jlugo, L. R. 10 L. J. P. 0. 19. 
Ap. Ca. 336. (m) Whitehead v. Parlsei, 2 H. & 

(*) JeBsel, M. B. Taylor v. St. N. 870 ; 27 L. J. Ex. 169. 
Helem, L. B. 6 C. D. 273 ; 46 (») Fopplewell v. Hodkineon, L. 

L. J. 0. 861. B. 4 Ex. 248 ; 38 L. J. Ex. 126. 



CHAP. X. INLAND WATER. 143 

was held that there was no implied obligation on the 
grantor not to drain the adjacent land which he had 
retained also for boilding, the land not being suitable for 
building without draining; and that the grantee had no 
remedy against him for so doing, although his .own land 
was thereby drained, and his buildings sank and were 
damaged (o). — ^Upon the same principle the owner of land Subndenoe of 
is not responsible, if, by draining his own land in the ordi- ^\^^ 
naiy and proper course of cultivation or mining, he causes 
a subsidence in the adjacent land. '^ Although there is no 
doubt that a man has no right to withdraw from his 
neighbour the support of adjacent soil, there is nothing at 
common law to prevent his draining that soil if for any 
reason it becomes necessary or convenient for him to 
do8o"(^). 

The owner of land may pollute the water percolating in Foliation of 
hiBOwn SOU, by discharging sewage or otixer noxious matter P^"^*^ 
into it (subject to public samtary regulations), provided 
he keeps such pollution within his own boundaries, and 
does not suffer it to percolate into the adjacent land to the 
nuisance of the owner. Where the owner of land dis- 
oharged sewage into a well upon his property, and the 
adjacent owner by drawing water from a weU upon his 
own land caused the polluted water to flow into his well ; 
it was held that the former was responsible for the pollu- 
tion, because it was caused by the natural percolation of 
the water (q). 

The collection of water upon land in an artificial manner Water arti- 
is attended with special obligations towards the owners of jeotedT 
adjao^it lands. Where a person constructed a reservdir 
for storing water for the use of a mill, and the water 
escaped through some unlmown channels into his neigh- 

(o) PcppUweUy. Modkituonytupra. Hy. Co,y 10 H. L. C. 333 ; 32 L. J. 

(p) JPfr eur., Bopplewell r. Sod' 0. 402. 
kiniony L. R. 4 Ex. 248 ; 38 L. J. (q) Ballard v. Tomlimonj L. B. 

Ex. 126; EUiot y. North Eastern 29 G. D. 115; 54 L. J. 0. 454. 



144 



U8ES AND PROFITS OF LAND. 



Liabiliiy f or 
escape of 
water. 



bour's mine, he was held responsible for the damage done 
by it ; upon the general principle, '^ that the person who, 
for his own purposes, brings on his land and collects and 
keeps there anything likely to do mischief if it escapes, 
must keep it in at his peril ; and if he does not do so, is 
primd facie answerable for all the damage which is the 
natural consequence of its escape "(r). So it is laid down 
that, *' if any one by artificial erection on his own land 
causes water, eyen though arising from natural rainfall only, 
to pass into his neighbour's lands, and thus substantially 
to interfere with his enjoyment, he will be liable to an 
action («)." Upon this principle the occupier of land was 
held liable for the damage caused by an artificial mound 
of earth raised against the adjoining wall, the dampness 
from which soaked through the wall into the adjoining 
house ; and he was restrained by injunction from continu- 
ing the nuisance {(). So in mining, if the owner in course 
of working collects or diverts water, in greater quantity or 
in a different manner than would occur in the natural pro- 
cess of percolation through the soil, and dischai^es or 
allows it to discharge into a lower mine, he is responsible 
for the consequences {u). But if in the usual and proper 
mode of working a mine and removal of the minerals, the 
water by the mere process of natural percolation discharges 
itself into the lower mine, the owner of the latter has no 
cause of complaint (v). And in general a person may col- 
lect and use the water in his own land, without incurring 
any liability, provided in fact it ultimately reaches the 
adjacent land in the same way, and in no greater quantity 



(r) RyJands t. Fletcher, L. R. 3 
H. li. 330 ; 37 L. J. Ex. 161 ; 
Bvane v. Manchester^ ^e, Ry., 67 
L. J. C. 153 ; Snow y. Whitehead, 
L. R. 27 C. D. 688 ; 63 L. J. 0. 
886. 

(») Per CUT. Eurdinan v. North 
JBastem J?.y., L. R. 3 C. P. D. 173 ; 
47 L. J. C. P. 368. 

(t) Broder v. Saillard, L. R. 2 
CD. 692 ; 46 L. J. 0. 414 ; -BTwnf- 



man v. Xorlh Eastern JEy., supra, 
(u) Baird Y. WilliamsoH, 16 G. B. 

N. 8. 376 ; 33 L. J. 0. P. 101 ; 

Fletcher y. Smith, L. R. 2 Ap. Ca. 

781 ; S, C. nom. Smith y. Muegrawe^ 

47 L. J. Ex. 4 ; CnmpUm y. Lea, 

L. R. 19 Eq. 116; 44 L. J. G. 69. 
(r) Smith y. Kenriek, 7 G. B. 

564 ; Wilson y. Waddelly L. B. 2 

Ap. Ga. 96. 



(xe 



CHAP. X. INLAND WATER. 145 

than before. " The merely obtaining a temporaiy control 
over the water does not impose on the owner of the land 
the obligation of keeping it, nor prevent him from restor- 
ing it to the strata from whence it came, nnless he makes 
it flow differently " (w) . 

If water collected npon land be discharged over the Eaoapeby 
adjacent land by some accident or superior agency over J^^«ior *" 
which the owner has no control, he would not be liable for force- 
the consequences ; as was held in the case of a reservoir of 
water being destroyed and washed away by an extra- 
ordinary storm of rain, which could not reasonably have 
been anticipated, although if it had been anticipated, the 
effect might have been prevented; for an extraordinary 
storm like an earthquake, might be called an act of Qod 
or vt8 tnajor^ meaning thereby some event that it was 
practically impossible to anticipate or to resist. " The 
ordinary rule of law is that when the law creates a duty 
and the party is disabled from performing it without any 
default of his own, by the act of God, the law will excuse 
him ; but when a party by his own contract creates a 
duty, he is bound to make it good notwithstanding any 
accident by inevitable necessity " (a?). Where a dock 
company were empowered to cut through the bank of a 
tidal river for the purpose of drawing the water through 
an artificial channel, it was held that they were bound to 
keep the retaining wall of their works at the regulation 
height of the river bank ; and that they were liable for 
the damage caused by an overflow of water through the 
defective height of their wall; but that they were not 
chargeable with the excess of damage due to an extraordi- 
nary tide which rose above the regulation height (y). And 
where a reservoir was overflowed by the irruption of water 
from the emptying of an adjoining reservoir, the owner 

(it) Brett, L. J. West Cumberland L. B. 2 Ex. B. 1 ; 46 L. J. Ex. 187. 

Iron Co. ▼. Kenyony L. B. 11 0. D. {y) NUrO'Phoaphate Co. v. London 

788 ; 48 L. J. G. 793. and St, X. Docks Go.y L. B. 9 C. D. 

(jr) Fer cur. Nichols y. Marsland, 603. 

L. L 



146 



rSB8 AND PROFITS OF LAND. 



lectedin 
houses. 



\¥BM held not to be liable for the damage; for that it 
was caused by the act of a stranger, which he could not 
anticipate or control (s). — So if the act done is ordered or 
authorized by Act of Parliament and done properly and 
without negligence, there is no liability for damage caused 
by it, except as may be provided for in the Act (a). 

Where seyeral tenants occupy parts of the same house in 
which water is collected or laid on for the benefit of all, they 
are presumed, as between themselves, to share in common 
all risk of escape of the water arising from the construc- 
tion or failure of the cistern or pipes. There is no mutual 
obligation beyond that of taking reasonable care in the use 
of the water ; nor any liability to one another except for 
negligence {b). Nor has the landlord any greater liability 
to the tenants, in respect of the water collected in the 
house for the benefit of all, unless he has contracted with 
them for its safety ; and an escape of water by the bursting 
of a pipe was held not to be a breach of the covenant of 
the landlord for quiet enjoyment (c). — ^Where the water 
from the roof of a house was collected in a cistern upon an 
upper storey, and the water escaped through a hole in the 
cistern made by a rat, and damaged the goods upon the 
groimd floor; it was held that the owner of the house, 
w^ho had let ofE the ground floor, retaining the upper part 
of the house in his own occupation, was not liable for the 
damage done ; for that " the accident was due to vis major 
as much as if a flash of lightning or a hurricane had 
caused the rent " (cO« 



Extraordi- 
narj floods. 



In the case of an extraordinary flood of water, eyery 
man has the right of defending his own property, although 

(s) Sox y. Juhb, L. R. 4 Ex. D. 
76; 48 L. J. Ex. 417. 

(a) Dixon v. Meirop. Boards L. R. 
7 Q. B. D. 418; 60 L. J. Q. B. 
772 ; Erans v. ManchestcTy ^-c. Ry, 
67 L. J. C. 163. 

(b) CarstairM y. Taylor, L. R. 6 
Ex. 217 ; 40 L. J. Ex. 129 ; IUm y. 
Fedden, L. R. 7 Q. B. 661; 41 



L. J. Q. B. 270 ; see SUvmu ▼. 
Woodward, L. R. 6 Q. B, D. 318 ; 
60 L. J. Q. B. 231. 

(e) Anderson v. Oppenheimer, 49 
L. J. Q. B. 708 ; L. R. 6 Q. B. D. 
602. 

{d) Caratairs y. Taylor, L. R. 6 
Ex. 217 ; 40 L, J. Ex. 129. 



CHAP. X, INLAND WATEB. 147 

in doing so he turns the water on to the property of another. 
Accordingly, the proprietors of a canal were held to be 
justified in excluding flood water, not produced by any 
feeder of their own canal, which consequently flowed over 
the adjacent land of others. And it seems that even in 
the case of a natural watercourse the riparian proprietor is 
entitled to protect himself by keeping off extraordinary 
floods (£). Floods of ordinary recurrence cannot be di- 
verts from their usual and ordinary course to the injury 
of others. " At common law landholders would have the 
right to raise the banks of a river or brook from time to 
time, as it became necessary, upon their own lands, so as 
to confine the flood water within the banks and to prevent 
it from overflowing their own lands ; with this restriction, 
that they did not thereby occasion any injury to the lands 
or property of other persons " (/). After flood water has 
finally settled upon land, and no longer threatens a com- 
mon danger, the owner of that land must bear the loss and 
has no further right to discharge the water upon the land 
of others. Where a flood brought down water which 
lodged against the embankment of a railway and threatened 
to destroy it, it was held that the company were not 
entitled to protect the embankment by cutting trenches 
through it and letting off the water on to the adjacent 
land ig). 

{e) Nield v. London ^ N. W. JRy., {gi) Whalleij t. Lancashire JJy. 

li. B. 10 Ex. 4 ; 44 L. J. Ex. 15. Co., L. R. 13 Q. B. D. 131 ; 63 L. J. 

{/) Ter cur. Trafford v. The Q. B. 286. 
King, 8 Bing. 211. 



l2 



148 USES A29D PBOFIT8 OF IJkND. 



CHAPTER :S^— continued. 
SficnoN 2. — ^Running Water. 

P n nwaij in nfttnnl stresms— remedies of riparian owner— atreama 
bdow the aoriiaoe. 

Bights of ordinaiy use bj riparian owners— diverting- water for extra*' 
ordinarj nae. 

Biglita aeqnired in exoeas of riparian rights — rights aoqnired by non- 
riparian owners. 

Pr op er ty in bed of stream — change of bed — encroachment on bed. 

PaUic navigable river — ^riparian rights upon navigable river — obstme- 
tiona to navigation — change of oonzae— private navigable riw — 
towing path. 

Propertj in Water numing in a natural stream is not a subject of 
absolute propertj. A riparian land owner is entitled on 
the one band to have the water flow, but be is obliged on 
the other hand to receiTe it and to let it flow, in its natural 
state ; as expressed in the maxim '' aqtm currit et debet 
currere ut currere solehaV^ ; and he has only a limited 
right to use the water as it flows (a). The rights of the 
riparian owner in the stream are a natural incident of his 
propertj in the land ; and the j pass b j a oonyejance of 
the land without express mention. Where the owner of 
land containing a spring and stream of water sold and 
convejed the lower part of the land through which the 
stream flowed, it was held that the purchaser acquired the 
* right to the flow of the stream and the Tender retained no 
right to divert it at the source, although there was no 
mention of the water in the deed of convejance (i). 

(0) Fercur, Wood v. Waud, 3 Ex. Momnsy, 9 G. B. N. S. 575. 

775 ; Emhny v. Owen, 6 Ex. 353 ; (b) Omham v. Fuk, 2 C. & J. 

Diekinton v. Grand Jtmetum Canals 126. 
7 Ex. 209; Medway Kav, Co. v. 



CHAP. X. INLAND' WATER. 



149 



— -Accordingly it is held that where a natural istream is 
diverted or taken for some public undertaking under the 
compulsory powers of the Lands Clauses Act, 1845, the 
claim for compensation to be made under the Act is not 
for land or property taken, but for " injuriously aflEecting" 
land by depriving it of the use of the stream (c), 

A riparian owner can maintain an action for any Bemediesof 
sensible interference with the stream in its natural course, "P*"*^ 

owner. 

which preventfi the flow to his land, or diminishes the 
quantity, or obstructs the discharge ; unless it can be 
justified as a lesritimate use of the water by another riparian 
owner. In «ach action he is entitled to, at lea^t, niinal 
damages, and he can recover full damages for loss actually 
sustained by being deprived of the use that he in fact 
makes of the water for any lawful purpose (r/). He may 
further claim an injunction to' restrain such interference 
in the future, although the damage hitherto has been only 
nominal {e). 

Water running in a natural stream below the surface of Sixeams 
the land is subject to the same rules of law as water Buzfaoe. ^ 
running on the surface, so far as the different circumstances 
permit. " The owner of the soil under which the stream 
flowed could maintain an action for the diversion of it, if 
it took place under such circumstances as would have 
enabled ^im to recover if the stream had been wholly 
above ground" (/). 

A riparian owner has the right of taking and consuming Rights of 
water from a natural stream for the ordinary use of his ^^^"7 "^' 



{e) 8 & Viot. c. 18, b. 68 ; Bush 
▼. Trowbridffs JTaterworlu Co. , L. R. 
iO Ch. 459 ; 44 L. J. C. 236 ; Stone 
T. Yeovil, L. R. 1 C. P. D. 691 ; 45 
L. J. 0. P. 657. 

(rf) Fer eur. Ormerod v. Todmorden 
MiU Co., L. R. 11 Q. B. D. 159; 
52 L. J. Q. B. 445 ; Keneit v. Great 
Eaatem By., L. R. 27 C. D. 130; 
54 L. J. C. 22. 



(e) MeUish, L. J., Clowet y. 
Stafordehire Potteriee Co., L. R. 8 
Ch. 142 ; 42 L. J. C. 107 ; Fenning- 
ton y. Frintop HaU Coal Co., L. R. 6 
C. D. 769 ; 46 L. J. 0. 773. 

(/) Fer eur, Dickinson y. Grand 
Junction Canal, 7 Ex. 301 ; Parke, 
B., Broadbent y. Bamabotham, 11 
Ex. 602; 25L. J. Ex. 121. 



160 



VSBS AND PROFITS OF XAJfD. 



DiyertiDg 
water for ex< 
traordinaiy 
use. 



tenement; he may take the water for domestic use, as for 
drinking, washing, and the like purposes; also he maj 
take water for watering cattle. The extent of his right is 
limited in general by what is reasonable under the circum- 
stances, regard being had to the similar rights of all other 
riparian owners. A riparian owner is entitled to take and 
consume sufficient water for ordinary domestic purposes, 
of washing and drinking, whatever quantity of water may 
be thereby exhausted (^). A railway company, as ripa- 
rian owners, may take the water in reasonable quantities 
for supplying locomotive engines and other requirements 
of a railway station ; leaving sufficient for aU other uses 
of the stream (A). But a railway company was restrained 
from taking the water of* a river for the use of a large 
station in quantities which in the judgment of the con- 
servators of the river impeded the navigation (i). — A ripa- 
rian owner is not entitled to take water for purposes not 
connected with his own land ; as in the case of a water- 
works company taking the water of a stream for the supply 
of a neighbouring town (A), or riparian owners taking 
water for the supply of a county lunatic asylum (/). 

A riparian owner may divert the water of a stream for 
extraordinary uses, provided he returns it to the natural 
stream before it leaves his land, not materially diminished 
in quantity, or affected in quality, or delayed in delivery, 
to the sensible injury of the other riparian owners. He 
may thus divert and use the water for irrigating the land, 
or for working a null or factory (m). Nor does the diver- 



(y) CaimB, L. C, Swindon Water' 
tporks V. JFilia Canal, L. R. 7 fl. L. 
.704. See JloberU v. Hufharda, 60 
L. J. C. 297; Norburyy, Kitchin, 
« Jut. N. 8. 132 ; 3 Fost. & F. 292. 

(h) Sandwich v. Great N. i2y. Co,^ 
L. R. 10 C. D. 707 ; 49 L. J. O. 225. 
' (f) Att.'Oen. V. Great Hastem 
J?y., L. R. 6 Ch. 672. 
. {k) Sbtindon JTatertcorkt Co, v. 
WiU$ ^ Berks Canal, L. R. 7 H. L. 
697 ; 46 L. J. C. 638. 



(A Medway Co, v. Boumetf, 9 C. B. 
N, S. 675. 

(m) Bmhrey v. Otcen, 6 Ex. 353 ; 
Sampaon v. Ifoddinott, 1 C. B. N. 8. 
690 ; 26 L. J. C. P. 148 ; Keneit r. 
Great Eaetim J?y., Ij. R. 27 C. D. 
122 ; 64 L. J. G. 19 ; L. Blackbmn, 
Orr-Etcing v. Colquhoun, L. R, 2 
Ap. Ga. 866 ; Gaims, L. G., Swindon 
Waterworks Co, v. WilU ^ Berks 
Canals L. R. 7 H. L. 704. 



CHAP. X. IKLAKD WATER, 151 

fiion and use of the water on his own land disentitle him 
from discharging it as before, provided he does not alter 
the mode of discharge, or increase the obligation of the 
other riparian owners in receiving it («). — ^The rights of 
a riparian owner are summarily stated as follows : " By 
Hie general law applicable to running streams, every ripa- 
rian proprietor has a right to what may be called the 
ordinary use of water flowing past his land ; for instance, 
to the reasonable use of water for domestic purposes and 
for his cattle, and this without regard to the efiPect which 
such use may have in case of a deficiency upon proprietors 
lower down the stream. But, further, he has a right to 
the use of it for any purpose, or what may be deemed the 
extraordinary use of it, provided he does not thereby in- 
terfere with the rights of other proprietors, either above 
or below him. Subject to this condition he may dam up 
a stream for the purpose of a mill, or divert the water for 
the purpose of irrigation. But he has no right to inter- 
cept the regular flow of the stream, if he thereby interferes 
with the lawful use of the water by other proprietors and 
inflicts upon them a sensible injury" (o). 

A riparian owner may acquire rights in excess of his Rights ao- 
natural riparian rights, by grant or prescription. He may ^^^ 
thus acquire the right to divert the stream wholly or in nAtund 
part from some or all of the lower riparian owners, and "* 
appropriate the water to his own use. " The general rule 
of law is that every man has a right to have the flow of 
water in his own land without diminution or alteration. 
But an adverse right may exist founded on the occupation 
of another. And though the stream be either diminished 
in quantity or even corrupted in quality, yet if the ooou- 

(») W(Ut Cumberland Steel Co. t. hy the Court in NuiUll v. Brace' 

Kenyan, L. R. 11 G. D. 782 ; 48 icell, L. B. 2 Ex. 1 ; 86 L. J. Ex. 4 ; 

L. J. 0. 793 ; Frechette t. St, and in Sandwich v. Great Northern 

Eyaeinthe Co,, L. R. 9 Ap. Ca. 170 Rv,, L. B. 10 C. D. 712 ; 49 L. J. C. 

. (o) L. KingadoWD, Mmer t. Oil* 227. 
mawr, 12 Moore P. C. 156, adopted 



152 



rSES AND PROFITS OF LAND. 



Bights ac- 
quired by 
non-ripariAn 
owner. 



pation of the party so taking or using it have existed for 
BO long time as may raise the presumption of a grant, 
the other party whose land is below must take the stream 
subject to such adverse right " (p). But such occupation 
and use of the water in excess of riparian rights has no 
operation against other riparian owners, unless it obstructB 
or interferes with the actual exercise of their rights in a 
manner to raise a presumption of a grant ; for the other 
riparian owners, though they may grant away or release 
their rights, do not lose them by mere non-exercise, and 
they may abstain or begin to exercise them whenever they 
please {q). A riparian owner who thus acquired the right 
of diverting the stream adversely to other riparian owners 
becomes absolute owner of the water pro tanto and may 
appropriate it to any new use; and in an action for 
obstructing the natural stream he may claim damages in 
respect of the extended use of the water, " for it is the 
necessary effect of every appropriation of running water to 
a new and more beneficial use that a wrongful diversion or 
abstraction entails a larger measure of liability " (r). 

The rights of a riparian owner as such, are so insepa- 
rately incident to the possession of the land that they 
cannot be granted to a non-riparian owner separately from 
the land, so as to give the grantee any rights of taking 
water as against other riparian owners ; such a grant 
would be valid only against the grantor himself («). But 
where a riparian owner has diverted the stream through an 
artificial watercourse for working a mill or other extra- 
ordinary use (which he is entitled to do subject to the rights 
of other riparian owners as to the return of the water,) he 
may grant and convey the mill and watercourse to another, 
who will thereby acquire a position similar to that of a 



(p) EUenborongh, G. J. BeaU}f 
y. ^Aatr,6Ea8t, 214; Leaoh.V.-C, 
Wright ▼. Howard, 1 S. & S. 190*. 

(q) SampwH y. Hoddinott^ 1 C. B. 
N. S. 611 ; BoberU y. Biehaarda, 60 
L. J. C. 297. 



(r) Eolker y. FwrUt, L. B. 10 
Ex, 69 ; 44 L. J. Ex. 62. 

{») Stockport WatencorksY. JPott^, 
3 H. & G. 300 ; Ormend y. Tod* 
mordm Mill Co., L. R. 11 Q. B. D. 
166 ; 62 L. J. Q. B. 446. 



CHAF. X. INLAND WATER. 153 

riparian owner with the same rights (^). And a non* 
riparian owner who can obtain acoees to the stream bj 
means of a pipe or watercourse through riparian land may 
draw water from the stream and use it, provided that he 
returns it to the stream in the same place^ quantity and 
condition so as not sensibly to interfere with the rights of 
any of the riparian owners ; though he may have none of 
the rights of a riparian owner entitling him as against them 
to complain of an interference with the stream (u). 

The property in the bed of an inland river or natural Property in 
stream presumptively belongs to the owner of the banks 
through which it flows. Where the property in the 
opposite banks is in different persons, each of them is 
presumptively the separate owner of the bed of the stream 
on his side, usque ad medium filum aqu<B(v). This pre* 
sumption of ownership may be displaced by evidence of 
exclusive ownership of the whole bed of the river in the 
owner of one of the banks ; and acts of ownership in other 
parts of the bed of the river similarly situated, of such a 
kind as to raise a reasonable inference of one ownership 
of the whole, are admissible evidence (;r). In a case where 
the land in question was originally manorial land, and the 
fishery of the river had from time immemorial been let to 
tenants as a separate tenement distinct from the riparian 
land, the tenants of which had never exercised any right 
of fishing or other proprietary rights in the river, it was 
held that the presumption of ownership of the bed of the 
river in the riparian grantees was rebutted (x). A like 
presumption applies in the construction of conveyances* 

(Q Nuttall y. BraaweU, L. R. 2 Q. B. 445. 

Ex. 1 ; 86 L. J. Ex. 1 ; Svoindcn {v) Hale, Le Jur. Marit^ Harg^. 

Waterworks Co. y. WiltM and Berks Tracts, pp. 6, 12; Bieketty, Morris, 

Canal, L. B. 7 H. L. 697 ; 45 L. J. L. E. 1 So. Ap. 47. 

C. 638. {w) Jones y. fFilliams, 2 M. & "W. 

(i«) Zensit y. Great Eastern Ry,, 326. 

L. B. 27 C. D. 122 ; 64 L. J. 0. (x\ Devonshire y. Patiimon, L. E. 

19 ; Orwerod y. Todmorden Mill Co,, 20 Q. B. D. 263 ; 67 L. J. Q. B. 

li. E. 11 Q. B. D. 165 ; 52 L. J. 189. 



l->4 rSE» A2(D rSOFTTS OF LAND. 



"Wh-^i? tb? land conTey^d is described as bounded by a 
iiTer. the pr<>:?Ti!iirtiTe c»:.n5tractioii is that the bed of the 
riTer to the mid-Le line passes with the land; and this 
p>fe5ampti*:'n prevails although the land is described by 
reference to a map in which it is marked or ooloured ex- 
dnsiTely of the lirer, and although it is further described 
by mea^uT^nent exdading the riyer. The presumption 
may be rebutted by dreomstances showing a contrary 
intention at the time of the conyeyanoe, but not by sub- 
sequent cireumstanoes t^^. It is said that the riparian 
rights in a stream are not a mere incident of the property 
in the bed, but attach also to a riparian owner who has 
no property in the bed of the stream ; and that ^^ the water 
may be lawfully appropriated by every one having a right 
of access to it. It is of course necessary for the existence 
of a riparian right that the land should be in contact with 
the flow of the stream, but lateral contact is as good, jure 
nafnr(Py as vertical " [z). Bnt the right to take water from 
a stream flowing over a bed which is exclusively the pro- 
perty of another seems rather to be an acquired easement 
than a natural incident of the property in the bank (a). 
dumgeof If the banks of an inland stream change by imper^ 

ceptible detrition or accretion the property in the bed and 
the rights of riparian owners change with the course of the 
stream ; but if the change be made perceptibly then the 
ownership of the soil remains according to the former 
bounds (6). Accordingly the right of fishing which is pre* 
sumptively incident to riparian property ad medium filum 
aqucB shifts with the medium filum upon a gradual accretion 
to one of the banks (r) ; and an exclusive right of fishery 
over the whole bed of a river shifts in the same way {d). 
" The law is based upon the impossibility of identifying 



tied. 



(y) MieklethwaitY, Newlay Bridge {b) Hale, Ih J, MarU, Hargr. 

Co,, L. R. 33 C. D. 133. Tracts, p. 6. 

{z) L. Selborne, Lyon t. Fish- {e) Zetland t, Gtover Inecrp. Bertk^ 

mongert* Co., L. R. 1 Ap. Ca. 683. L. R. 2 Sc. Ap. 70. 

(a) See fw/, p. 226. (rf) Fo$Ur v. JTriyht, Ij. R. 4 

C. P. D. 438; i9 L. J. C. P. 97. 



CHAP. X. IKLAMD WATER. 155 

from day to day small additions to or subtractions from 
land caused by tbe constant action of running water." 
Henoe the titie to land so gradually and imperceptibly ac- 
quired is not defeated merely by proof of the ancient 
boundaries (e). Where a riyer had receded from the ancient 
bank and left some pieces of dry land, which the owner of 
the opposite bank and river bed claimed as against the 
owner of the adjacent land ; and upon which he had con- 
tinually exercised exclusive acts of ownership ; it was held 
that the direct evidence of ownership precluded any pre- 
sumption arising from the mode of accretion, whether 
gradual or sudden, and that the process of change was 
therefore immaterial (/). — ^If a stream changes its course 
not by gradual alteration of the bed, but by abandoning 
the old bed and flowing in another direction, the private 
rights of riparian owners and others in the original stream 
are lost ; and they acquire no similar rights in the new 
oourse of the water (ff). 

The owner of the bed of a stream is not entitled to use Enoroaoli- 
it for any purpose that will interfere with the natural ™®°*®^^*®^ 
oourse of the siream injuriously to the riparian owners. 
Any building or work extending into the stream is primd 
fade an encroachment upon their right, and is a cause of 
action in respect of the possible consequences upon the 
course of the stream, without the necessity of proving any 
damage in fact caused by it, or any particular probable 
damage ; the (mu% being laid upon the person making it 
of showing that it is not in fact an encroachment and 
that it cannot have any perceptible effect upon the 
stream (A). — ^A riparian owner may build a wharf or bul- 
wark for protection of his own bank provided he does not 
encroach upon the bed of the stream or alter the direction 
of the current injuriously to others (*). And it is said : 

(«) Fwter V. Wright ^ tupra, Sc. Ap. 47 ; L. Blackburn, Orr- 

(/) Ford V. Laeeyy 7 H. & N. Ewing v. Colquhoun, L. R. 2 Ap. 

151 ; 30 L. J. Ex. 351. Ca. Bo3; Att.-Oen. v. Zansdale, 

{g} CarlUU v. Oraham, L. R. 4 Ij. R. 7 Eq. 377 ; 38 L. J. C. 336, 

Ex. 361 ; 38 L. J. Ex. 226. poit, p. 156. 

(A) BiekcU v. Morris, L. R. 1 (t) Chelmsford, L. C, Bickett v. 



156 



USES AND PROFITS OF LAND. 



^^ that soonring and cleansing of a river bed, so as to keep 
the stream in its accustomed course and at its aocustomed 
level, is not only permissible in but obligatory upon a 
riparian owner ;" but ^' that a substantial interference 
with the bed of a stream, so as to increase or diminish the 
flow of water to the detriment of other riparian owners, is 
actionable in itself " (k). 



Public navi- 
gable riyers. 



Biparian 
rights in 
navigable 
riven. 



A public right of navigation upon inland rivers and 
streams is analogous to the right of highways upon land. 
It is established, in general, by public use, which also 
defines the limits and nature and extent of the naviga- 
tion (/). The right of navigation on a lake is subject to 
the like principles (w). Tidal rivers oxeprimd facie public 
for the purpose of navigation by common law («). 

Where the public have rights of navigation, the rights 
of owners of the soil and of riparian owners are subcndi- 
nate to the rights of the public, as well as to those of the 
other riparian owners as above stated. The owner of the 
bed of the river cannot make any building or erection in 
any part of the bed of the river, to the obstruction of 
navigation (o). A riparian owner on a navigable river 
cannot in exercise of riparian rights appropriate water to 
an extent prejudicial to the navigation {p), A riparian 
owner upon a navigable river has the right of access to his 
own land, and of mooring vessels in the river adjoining 
his land, and keeping them there a reasonable time for the 
purpose of loading and unloading (q) . But he has not the 
further right in aid of access to his land and of I^Tir^iTig 



Morris, L. R. 1 So. Ap. 66 ; Att.- 
Gen. V. LonsdaUy tupra ; Duke of 
Sutherland v. Rose, L. R. 3 Ap. Ca. 

736. 

(k) Ter eur. Ehodea v. Airedale 
Commwf., L. R. 1 0. P. D. 392; 
46 L. J. C. P. 341. 

(/) Hale, De /. Maris, c. 3 ; 
Orr-Eiving v. Colquhoun, L. R. 2 
Ad. Ca. 839 ; BeU v. Qftebecy L. R. 
6 5pCa.93;49L JP.C.l 

(m) Marshall v. Uliestcaier A«t'. 



Co., L. R. 7 Q. B. 167; 41 L. J. 
Q. B. 41. 

(n) F&si, p. 162. 

jo) Att.'Gen. v. Lonsdale, L. B. 
7 Eq. 377 ; 38 L. J. C. .335 ; Orr» 
Ewing v. ColquKoun, jL. R. 2 Ap. 
Ca. 839 ; AU.-Gen. v. Terry, L. K. 
9 Ch. 423. 

(p) Ail.- Gen, v. Great JEastem 
By., L. R. 6 Ch. 672. 

{q) Marshall v. Ulles%caler Niav. 
Co., L. R. 7 Q. B. 166 ; 41 L. J. 



CUAP. X. INLAND WATER. 



157 



goods, to erect a wharf upon the bed of the river, or any- 
thing obstnictiYe of the navigation; and a wharf set forward 
three feet in the bed of a navigable river sixty feet broad 
was held to be an obstruction that must be removed (r). 
This right of access to riparian land, and of mooring 
Teasels for the use of the land gives a special value to land 
upon a navigable liver, independently of the public right 
of navigation; by loss of which the land may be '' injuri- 
ously affected/' and the owner entitled to compensation 
under the Lands Clauses Act, in the event of the na- 
vigation being compulsorily obstructed under statutory 
powers («). 

An obstruction to navigation, like an obstruction on a Obstrnction 
highway, as bemg a nuisance, may be removed by any * 

jierson actually obstructed in the use of the navigation ; it ia 
also ground for an indictment on the part of the public ; 
a private individual cannot maintain an action to recover 
compensation for the inconvenience caused to him merely 
as one of the public, but he may maintain an action for 
the recovery of special damage caused either to his person 
or his property (t). 

If a pubhc navigable river changes its course by reced- Change in 
ing from one channel and flowing through another, the 
public right of navigation continues over the new course ; 
but subject to antecedent private rights in the new course 
which may be obstructive to the navigation (m). Thus a 
fishing weir legally existing in a navigable river does not 
become removable as a nuisance to the navigation by reason 
of the ancient navigable channel becoming choked up and 
impassable (r). Private rights incident to the river in 



ooune. 



Q. B. 41 ; Oriffinal Hartlepool Coll. 
T. GiM, L. R. 5 C. D. 713; 46 
L. J. G. 311 ; Boepoit, p. 497. 

(r) AU.'Gen. v. Terry, L. R. 9 
Ch. 423; Marahall y. Ulleawater 
NwB, Co,f aupra. 

(•) Ly<m V. Fiahmoftger^t Co,, L 
R. 1 Ap. Ca. 682 ; 44 L. J. 0. 747 
Meirop. Board t. McCarthy, L. R 
7 H. L. 243 ; 43 L. J. C. P. 386 
Bell y. Quebec, L. R. 6 Ap. Ca. 81 ; 



49 L. J. P. C. 1 ; A.'O. Straits 
Settlementt y. Wcmya, L. R. 13 Ap. 
Ca. 192 ; 57 L. J. P. C. 62. 

(0 Hale, D. /. Mari$, o.S;per 
cur. Cokhetter y. Brooke, 7 Q. B. 
377 ; Bell y. Quebec, eupra. 

{uS Per eur. Carlisle v. Graham, 
L. R. 4 Ex. 861 ; 38 L. J. Ex. 
226. 

(v) TTUliami y. Wilcox, 8 A. & 
E. 314. 



Ill* i»iL iannt-L i» i rfiric :€ isn^rx, d^ not pass to the 
^r^Pi HL "iifr 3i*w ♦fT:iTrrt»^«" : 3iir TZ«:rn. a gxadual and insea- 
iil:it^ -•«i?tTTyg- iL "fii* !rTir5e IE a rrr^- aZ. nghts pnUic and 

At zalami rri»=y 3117 3e aaviraiis*. vithont being poblic. 
**" If 12.7 z*ssrjL ir Il5* rwn. .iiatrze makes his own priTate 
ftr^^osx t: ^e TacSLiu* £3* Vrai? '^r carges^ either by making 
'X 'yjfki :r r-r^ :r Ira^In ^ t:s«?t]ba' ether streams, yet this 
jK*T*ns if't t.: xok-^ ir /i.-w s'lT-^'-Ti. and he may apply it to his 
OT^TL prrriTr- -ise. F :r h 25 n?: t bereby made to be jurii pubUd 
-dl-^;^ h w.=r? 'i:cs» as a o:mii>:n charge, or by a public 
anth :ritj. ^.r tLat by I-:ti^ einrfriTianoe of time it hath been 
fr«i*rly dr-v.-jtrti to a p^Ii-;- nse. So likewise if he porchaseth 
th^ X.r.g's fhaxter to take a re9s<>nable toll for the passage 
of the King*5 sabj«^^ and pats it in nse, these seem to be 
deToticg it to the common use" (j*). 
Trm'mff Xhe public right of narigation does not, necessarily or 

presnmptiTely, include the right to use the banks of the 
riyer for towing. But a towing path may be estab- 
lished by custom or by grant, or, as frequently happenSy 
by act of jxarliament passed for the regulation of the 
naTigation. A towing path is a public easement or high- 
way, restricted to the purpose of towing and navigating 
vessels on the river, and independent of the property in 
the soil (y). An authority which provides and maintains 
the towing path of a navigable river, and takes toll for 
its use is presumptively bound to repair it, and is respon- 
sible for damage caused by the want of repair. Thus 
a river conservancy board were held responsible for the 
loss of horses that fell into the river while towing a barge, 
through the bank giving way (z). 

(w) Ante, p. 164. Yorkshire Ry,, 1 E. &E. 347; 28 

(.r*) Halo, De /. Marit, Hargr. L. J. Q. B. 118; Zee Oomervtme^ y, 

Trat'tn. p. 0. ^wpottj p. 162. Button, L. R. 6 Ap. Ga. 685 ; 51 

(j^) JiaU V. Jferbert, 3 T. R. 263 ; L. J. 0. 17, post, p. 486. 

Hayloy, J.t Thf King v. Severn JJy., {£\ Winch v. THuanes Constrvamef, 

tt B. ft Aid. 648 ; Bodger t. South L. B. 9 C. P. 378 ; 43 L. J. G. P. 167. 



( 159 ) 



CHAPTER XI. 
SEA AND TIDAL WATEES, SEA SHOEE. 

The sovereignty of the sea— Admiralty juriBdiotion — ^The Temtorial 

Waters Act — civil joiisdiction of the Admiralty. 
Arm of sea — ^tidal rivers — right of navigation. 
Property of Crown in sea shore— grants of sea shore — ^limits of sea shore 

— jorisdiction over sea shore — ^pubUc rights over sea shore. 
Prerogative rights and duties— protection of sea shores — commissioners 

of sewers — sea walls. 
Porta — ^prerogative of Crown — statatory authority — port dues. 
Wreck of the sea — prerogative of Crown — ^franchise of wreck- Receivers 

of Wreck. 

A claim of sovereignty was formerly made on behalf of Sovereigntyof 
the Crown of England over all the narrow seas, that is, the * *^' 
channels of sea surrounding the British Isles ; but it is 
now generally admitted that the open sea beyond low 
water mark is not within the realm, except for certain 
purposes of statutory regulation ; therefore it is not within 
the junsdiction of the common law, and is not the subject 
of property in the Crown or in a subject (a). 

The Admiralty Court in early times exercised juris- Jurisdiction 
diction over subjects of the realm in respect of offences ®' -A-dmiralty. 
committed upon the high seas, beyond the territorial 
jurisdiction of the common law. The boundary between 
the jurisdiction of the common law upon land and the 
Admiralty Court upon the high seas was the line of water 
according to the state of the tide, the sea shore between 

(a) Hale, DeJ. Maris, o. 4, citing c<mia, L. B. 2 C. P. D. 173 ; 46 

Selden'a Mare Clausum ; The Queen L. J. 0. P. 363 ; Blackpool Pier Co. 

V. Keyfi, L. R. 2 Ex. D, 176 ; 46 v. Fylde Union, 46 L. J. M. C. 189. 
L. J. M. C. 17 ; Harrie v. Fran- 



160 USES AND PROFITS OF LAND. 

high and low water marks heing alternately within each 
jurisdiction (6). The Admiralty Court proceeded according 
to the civil law ; but by various statutes passed from time 
to time offences committed upon the high seas within the 
Admiralty jurisdiction were tried and determined ac- 
cording to the course of the common law as if they had 
been committed upon land. By 4 & 6 Will. IV. c. 36, 
s. 22, all such offences were made triable at the Central 
Criminal Court created by that statute ; and by 7 & 8 Yict 
c. 2, 8. 1, they may now be tried at assizes. Admiralty 
jurisdiction over offences upon the high seas applies to 
British subjects, and to foreigners being on lK>ard British 
ships ; and it applies to British ships in a foreign port or 
estuary or tidal river. But it has no application to 
foreigners in foreign ships, even for offences against 
the person or property of British subjects beyond the 
limits of British territorial jurisdiction (c). — ^The terri- 
torial limit of jurisdiction over foreigners on foreign, ships 
Territorial is now regulated by " The Territorial Waters Jurisdiction 
Jo^i^' ^ct, 1878," 41 & 42 Vict. c. 73. After reciting that 
" whereas the rightful jurisdiction of Her Majesty, her 
heirs and successors, extends and has always extended over 
the open seas adjacent to the coasts of Her Majesty's 
dominions to such a distance as is necessary for the 
defence and security of such dominions ; " " and whereas 
all offences committed on the open sea within a certain 
distance of the coasts, by whomsoever committed should 
be dealt with according to law ;" it enacta, sect. 2, that 
" an offence committed by a person, whether he is, or is 
not, a subject of Her Majesty, on the open sea within the 
territorial waters of Her Majesty's dominions, is an 
offence within the jurisdiction of the Admiral, although it 
may have been committed on board or by means of a 

{I) 3 Co. Inst. 113 ; Constable's {e) The Queen ▼. Keyn, L. R. 2 

Case, 6 Co. 107^; Cookbum, C. J., Ex. D. 63 ; 46 L. J. M. 17; Tks 

Queen t. JT^yn, L. R. 2 Ex. D. 168 ; Queen t. Carr, L. R. 10 Q. B. D. 

066 ffarrU v. The Franeonia, L. R. 76 ; 62 L. J. M. 12. 
2 C. P. D. 173. 



CHAP. XI. SEA AND TIDAL WATERS, SEA SHORE. 161 

foreign ship." The Act proceeds to regulate the trial of 
the offender ; and by the interpretation clause, sect. 7, 
enacts that *' for the purpose of any offence declared by 
this Act to be within the jurisdiction of the Admiral, 
any part of the open sea within one marine league of the 
coast measured from low water mark shall be deemed to 
be within the territorial waters of Her Majesty's do- 
minions." 

The Court of Admiralty has also civil jurisdiction, which Civil jnriadio- 

•■. 1 k. i-ii^** 1* i«i tion of Ad- 

is exercised tn r&m by seizing and detammg a snip until miraity. 

security is given to abide the event of proceedings, in all 
cauBes of ma^time injuries caused by such ship upon the 
sea and out of the jurisdiction of the common law. The 
original jurisdiction of the Admiralty has been largely 
extended by statutes, so as to include, speaking generally, 
all causes relating to shipping and maritime affairs ; such 
as wages of seamen, necessaries, possession, da^nage, sal- 
vage, prize of war, and other like matters. And by the 
Admiralty Court Act, 1861, s. 35, the jurisdiction may be 
exercised either by proceedings in rem or by proceedings 
in personam (d). 

An arm of the sea is treated in law as part of the terri- Aim of sea. 
tory which encloses it. An arm of the sea, it is said, " lies 
within the fatices terrce^ where a man may reasonably dis- 
cern between shore and shore" {e). The property in an 
arm of the sea is presumptively in the Crown ; but it may 
be in a subject either by title of a Crown grant, or by pre- 
scription which impUes an original grant and is proved by 
evidence of long possession and acts of ownership (/). 

Tidal rivers are treated in law as arms of the sea as Tidal rivers. 



(<i) 3 & 4 Yict. c. 66 ; Admiralty 
Court Act, 1861, 24 Vict. o. 10 ; 
The Gountj Courts Admiralty Ja- 
rifldictioii Act, 31 & 32 Vict. c. 71 ; 
The Merohant Shipping Act, 1854, 
17 & 18 Vict. 0. 104,8.527. 

{e) Hale, De J. MariSj c. ir. 
See as to the Bristol Channel, 

I^ 



The Queen y. Cunningham^ 28 L. J. 
M. 66 ; Conception Bay in New- 
foundland, Direct IT, 8, Gable Co. v. 
Anglo-American Tel, Co.y 1j. B. 2 
Ap. Ca. 304 ; the River and Golf of 
St. Lawrence, Birrell v. Dryer^ L. 
R. 9 Ap. Ca. 347. 

(/) Halo, De /. Maris^ o. iv, v. 

M 



162 



USES AND PROFITS OF LAND. 



BigHt of na- 
Tigation. 



regards the property in them, whieli is presumptively in 
the Crown as far as the tide flows ; though it may be in 
a subject by grant from the Crown (g). There is no 
analogous presimiptiye title in the Crown to non-tidal and 
inland waters, however large (h). A non-tidal river and 
a river above the flow of the tide is primd facie the private 
property of the riparian owners, as regards the bed of the 
river and such rights as may be had in the water (»). A 
" tidal river" extends as far as the water actually flows 
and reflows regularly, and not where the water merely 
rises and falls by reason of being dammed back by tihe 
tide ; nor where the water flows on occasion of an unusual 
high tide or other exceptional circumstances (y). "The 
river Thames above Kingston and the Severn above 
Tewkesbury though there they are public rivers, (i. e, for 
navigation) yet are not arms of the sea. But although the 
water be fresh at high water, yet the denomination of an 
arm of the sea contiuues, if it flow and reflow, as in ihe 
Thames above the bridge" {k). Havens, rivers, creeks 
and other places where the tide flows are included within 
the body of the adjoining county, and therefore within 
the jurisdiction of the sheriff and coroner and other officers 
of the common law (/). 

Tidal rivers are primd facie public for the purposes of 
navigation {m) . Non-tidal rivers, though primd fa4ne private 
property, may be subject to a public right of navigation («). 
The right of navigation in a tidal river includes "all 
such rights upon the water as, with relation to the Giroum- 



(^) Hale, Be J. Maris, o. iv ; jtw 
eur. Williams v, Wilcox, 8 A. & E. 
883; OannY, WhUatabU, 11 H. L. 
0. 192 ; 35 L. J. C. P. 29 ; Att.-O, 
T. LonadaU, L. B. 7 Eq. 388 ; 38 
Ij. J. 0. 836. 

(h) Briatcw y. Oormiean, L. B. 3 
Ap. Ca. 641. 

(i) Fearee v. Seoteher, L. B. 9 Q. 
B. I). 162 ; ante, p. 153. 

0) Beeee y. MilUr, L. B. 8 Q. B. 
D. 626 ; 61 L. J. M. 64. 



{k) Hale, De /. Marit, Haz^. 
Tracts, 12; Hwme y. MaekensU^ 6 
CI. & F. 628. 

(/) 3 Co. Inst. 113; 4 Co. Inst 
135 ; Velihaten v. Ormsley, 3 T. B, 
316; The Queen y. Curminffhmwu 
Bell, C. C. 72 ; 28 L. J. M. 66. 

(m) Miles y. £ose, 6 Taunt. 705 ; 
per cur, Colchester y. Brooke, 7 Q. B. 
373. 

(w) Fearee y. Seoteher, L. B. 9 
Q. B. D. 162. See anU^ p. 168. 



CHAP. XI. SEA AND TIUAL WATERS, SEA SHORE. 163 

stances of each liyer, are necessary for the full and oon- 

venient passage of vessels and boats along the channel ; " 

therefore in a liyer in which at ebb tide the vessels 

navigating cannot float, it includes the right of grounding 

upon the bed of the river and there resting until the tide 

serves for continuing the navigation (o). It aLso includes 

the right of anchoring in the bed of the river, whenever 

necessajy for navigation (p). '^ The right of soil in arms 

of the sea and public navigable rivers, which the Crown 

primd facie has independently of any ownership in the 

adjoining lands, must in all cases be considered as subject 

to the public right of passage ; and any grantee of the 

Crown must take subject to such right " {q). The Crown 

has jurisdiction '^to reform and pimish nuisances in all 

rivers, whether fresh or salt, that are a common passage, 

not only for ships and greater vessels but also for smaller 

as barges or boats" (r). — ^A tidal navigable river is not a 

part of the sea within the meaning of the Act, 48 Geo. III. 

c. 75, providing for the burial of dead bodies cast on shore 

from the sea («). 



The sea shore, as well of the open sea as of arms of the Froperiy of 
fiea and of tidal rivers, between high and low water marks, is ^^re. 
prima facie the property of the Crown ; but it may be the 
private property of a subject, by titie of grant or of 
prescription if). The property in the sea shore includes 
the minerals under it ; and it seems that minerals under 
the open sea adjacent to the shore below low water mark 
are vested in the Crown (w). — The power of the Crown to Crown gnrnts. 



(•) Colchester v. Brooke, 7 Q. B-. 
839. 

[p) GannY. WhitstabU, 11 H.L. 
0. 192 ; 35 L. J. 0. P. 29. 

Iq) Fer eur. Coleketter ▼. Brooke, 
7 Q. B. 374 ; Oann v. WhiUtahle, 11 
H. L. C. 192 ; 36 L. J. 0. P. 29. 

(r) Hale, De J. Marie, Harg. 
Tracts, 8 ; per eur, JTilliams ▼. 
Wtleox, 8 A. & E. 333 ; The King 
T. ButieU, 6 B. ft G. 566 ; Th4 King 



V. Ward, 4 A. & E. 384 ; AiL-O, 
V. Terryy L. R. 9 Ch. 423. 

(«) Woolwich Churchwardens y. 
Boberteon, L. R. 6 Q. B. D. 654 ; 
60 L. J. M. 87. 



it) Hale^ De J. Maris, c. yi. 
(a) Mayor of Benryn ▼. Holm, 
L. It. 2 Ex. D. 328 ; 46 L. J. Ex. 



606 ; Att.-G. v. Chambers, 4 D. H. 
& G. 206 ; 23 L. J. 0. 662. 



m2 



Jizu .'mjFis^ rw 



.r*!^ lr?=Tt THis- -siiuiv -¥7i«f TEUfTnaZ J «ci:«E9eded by 

«r.»r:irc* 1 • iy-*^ Z :. 7»'. -mnj. -2!ir»:'»^=red the Com- 

ir^r r T" La mil y iTsrsa -5: itril Crown lands of 

ul iinjLa. v^- y ':-^ i.' c i»» "STi.!! i. r:^ tiu poweis of the 

',. jnmiittix^iiris r "V,. -Lr sur Tjrsasw jk^ i^CTnis the far&- 

<iii Er» j: -iitt T^m-L jlIh^lldi. ip^?* rcaki:;5f<eired to the 

•* Tjii »A ^ irt iLi-T 3i.t: nilj :*ini^ to % subject in 
zr>si. irx :z om^ ':•* -Jir-rtl jd x aiiLZ*Lr.~ an«i " de facto it 
nar!T ^lzik^ L» ii: i iiul z«3r:^ii:iiit^ 5i ^ r«jcd. of all sa<^ 
aidini'.c^ fa§ IT- Tir-ta^frmirj:!! iiLT» ri-r-il ?^*& .:*■ vrecks of the 
i^^ IT'} >■ iiitiT TnaiTu : f.r liiHse ar? pcxquiates that 
}jciy^ Vicvi*^ tie lirri wnr-^ azL-i kw water mark. He 
tLftTrf -ri tlit r.;trr, wr^i it rii* sea -dt royal fish by pre- 
irjT:j/J''>ti iM.*?*! j»ti;-i#fr:>*«, h i» a great pTesranption that the 
KiOre i§ p-Oirt of the ULan?:?. as otlierwise he could not have 
th^fm *'«',- A grmt of a manor - with wreck of the sea," 
ih^jufth not in terms conveying' the sea shore, may be 
mttunffutly exj^Iained by evidence of possession and owner- 
iiliip to hhow that the sea shore was indaded as parcel of 
tho manor (tc). And in general an ancient grant of 
a manor described by name without describing the 
Viiindaries may be constmed by evidence of modem 
])()nH*ytm\(m and usage as including the sea shore (x). 
t,Utt\Uitf imn Tlio fK3a shore to which the presumptive title of the 
(kowii or of a grantee of the Grown extends is bounded by 
tho lino of '' ordinary" high tides; which is defined to be 
** tho lino of tho medium high tide between the springs 
and tho noaps/' ascertained by taking the average of these 
nuulium lidos during the year; because all land below 
thill Huo is more often than not covered at high water, 

{¥) lUlti, /V /. MtnHs^ Hargr. 413; Hoitinga ▼. IvaUy L. R. 19 

Tt HoU, *J7 . £q. 681 ; Lord AdvoeaU v. BUmi^n^ 

iM>) MiMf. y. «/«MMr, 2 n. ft G. L. R. 4 Ap. Ca. 770 ; Lord Adwo- 

1147 ; itvl t«. J. Kx« 24». taU Y. Young^ L. B. 12 Ap. Gk. 

V«) l^f^\fri V. (^VMtM^fM, 9 Ex. 644. 



fitH/rM, 



CHAP. XI. SEA AND TIDAL WATBBS, SBA SHOBB. 165 

and therefore not capable of ordinary oooupation (y) 

The land above the ordinary high water mark as above 

defined and -^hich is only covered by the high spring tides 

presumptively belongs to the owner of the adjacent 

land (z). If the line of high tides recedes or advances 

gradually and imperceptibly, the property of the Crown 

shifts with it ; being defined by the land between the high 

and low water marks for the time being. Hence *Hhe 

Crown by a grant of the sea shore would convey, not that 

which at the time of the grant is between high and low 

water marks, but that which from time to time shall be 

between those two termini" (a). A conveyance from a 

grantee under the Crown of '' all those sea-grounds, 

shores, and fisheries/' described as extending from high to 

low water mark, and as containing an estimated acreage, 

was construed to pass so much of the shore as from time 

to time lay between high and low water marks, including 

gradual accretions as accessory to the principal (6). On 

the other hand, '* lands from which the sea is gradually 

and imperceptibly removed by the alluvion of soil, 

becomes the property of the person to whose land it is 

attached, although it has been the fundm maria^ and as 

such the property of the king " {c). 

The sea shore between high and low water marks is part jnriBdiotion 
of the adjoining county, as regards the jurisdiction of the over sea shore, 
common law {d). It is primA facie extra-parochial, but 
it may be within a parish, and it lies upon a parish 
doiming it to prove that it is so, the usual evidence of 
which is perambulations of the bounds, common reputa- 
tion, known metes and divisions, and the like {e). Accord- 

(y) AtL-O. Y. Chambers, 4 D. M. 485. 

& 6. 206 ; 23 L. J. 0. 662. {e) Oifordr. Tarhorough, 5 Bing. 

(z) Lowe V. Govett, 3 B. & Ad. 165 ; The King v. Tarborough, 3 B. 

863 ; Maddoek y. Waliaeey Board, 55 & 0. 91 ; Hale, De J. Maris, Hargr. 

L. J. Q. B. 267. Tracts, 14. 

(a) Fer eur. Seratton v. Broum, 4 (rf) EmhUUm v. Broum, 30 L. J. 
B. & G. 498 ; Be Hull andSelby By,, M. 1 ; 3 E. & E. 234. 

5 M. & W. 327. W Hale, De /. Maris, Hargr. 

(b) Seratton y. Broum, 4 B. & C. Traots, 27. 



166 USES AND PROFITS OF LAKD. 

ingly, the paxt of a pier extending into the sea between 
high and low water marks was held to be extra-parochial, 
in the absence of evidence to the contrary (d). It is now 
provided by 31 & 32 Vict. c. 122, "The Poor Law 
Amendment Act, 1868," s. 27, that "for all civil parochial 
purposes, every accretion from the sea, whether natural or 
artificial, emd the part of the sea shore to the low water 
mark, and the bank of every river to the middle of the 
stream, not included within the boundaries of any palish, 
shall be annexed to and incorporated with the parish to 
which such accretion, part, or bank adjoins in proportion 
to the extent of the common boundary." This enactment 
was held not to extend to part of a pier built upon piles in 
the sea below low water mark ; because that part of the 
pier is not within the realm, and therefore not rateable {e). 
Public rights The public have no general rights over the sea shore of 

oyer 86a ahore. , ^ p ^ i_i_* ^^-ii* 

passage to and fro, or of embarking or disembarking 
persons or goods, or of passing over the sea shore for the 
purpose of bathing in the sea (/). They may acquire 
special rights of way and other similar rights-, by custom 
or dedication, in the same manner and to the same extent 
as over private property in general ; and there may be a 
public right of way from one place to another over the sea 
shore, varying in direction according to the state of the 
tide (g). An owner of land adjoining the sea shore may 
acquire a special right, of using the shore as access to the 
sea (h). " For the purpose of the king's subjects getting 
upon the sea to exercise their unquestionable rights of 
commerce intercourse and fishing there are the ports of the 
kingdom established from time to time by the king's pre- 
rogative" (t). 

{d) The Queen v. Musson, 8 E. ft 65 L. J. Q. B. 267. 

B. 900 ; 27 L. J. M. 100. (A) Att.-G, Straits SHilemmU t. 

(e) Blackpool Pier Co, ▼. Fylde JFemyu, L. B. 13 Ap. Ca. 192; 67 

Union, 46 L. J. M. 189. L. J. P. C. 62 ; ante, p. 167. 

(/) BlundellY. Catterall, 6 B. & (i) Holroyd, J. BhtndeUT. Cat- 

AM. 268. terall, 5 B. & Aid. 294 ; pott, p. 

{g) Maddock y. Wallasey Board, 169. 



CHAP. XI. SSA AND TIDAL WATEBS, SEA SHORE. 167 



Grants of sea shore by the Grown are taken to be subject FrerogatlTe 
to the prerogative rights and duties vested in the Crown duties.*^ 
for the benefit of the public ; and they are subject to all 
rights which may be created by Act of Parliament in the 
interests of the public, with or without compensation for 
private damage caused by their exercise (j), — ^It is a pre- Protection of 
rogative right and duty of the Crown to protect the realm *^ **'"' 
from waste of the sea by maintfiining unimpaired the sea 
shore as the natural defence, and by providing sea walls 
and other artificial defences where necessary. This prero- ComxniB- 
gative office of the Crown has been regulated from time to ^wra.^ 
time by the Statutes of Sewers, imder which commissioners 
of sewers are appointed for the purpose of executing it (k). 
Hence a grantee of sea shore, though primd facie entitled 
to exercise aU righta of ownership, may be restrained from 
any act that would impair the efficiency of the shore as the 
natural defence against the sea, such as excessive digging 
and removing of shingle ; and a hmdowner whose property 
is threatened or injured by such act, may claim an injunc- 
tion and damages (l). So if a riparian owner cuts through 
the natural protecting bank of a tidal river, or an artificial 
wall erected by the Crown or the commissioners of sewers, 
he is liable for damage done by an overflow of water into 
adjacent land (m). 

There is no obligation at common law upon an owner of Sea mOs. 
land fronting the sea to maintain a sea wall for the benefit 
of the other frontagers; beyond the above-mentioned obli- 
gation to abstain from any act injurious to the rights and 
duties of the Crown and of commissioners of seweis in that 



C;) AlL'G. V. Tomline, Jj. R. 14 
C. 1). 68 ; 49 L. J. 0. 377 ; Blantyre 
T. Circle Navigation, L. B. 6 Ap. Ca. 
273. 

(it) Cote of the UU of Mly, 10 Co. 
141 ; per ewr, Sudaon v. Tabor , L. B. 
2 Q. B. D. 293 ; 46 L. J. Q. B. 
463 ; see the statutes 6 Hon. YI. 
c. 5 ; 23 Hen. VIII. o. 6 ; 3 & 4 
Wfll. IV. c. 22 ; and the Land 
Dnunage Act, 1861, 24 & 26 Vict. 



0. 133. 

(Q Att.'G. V. Tomline, L. B. 14 
0. D. 68 ; 49 L. J. 0. 877. 

(m) Weet Norfolk Farmers* Co, v. 
Arehdale, L. B. 16 Q. B. D. 764 ; 
66 L. J. Q. B. 230 ; Nitro- Phosphate 
Co. ▼. London Doeks, L. B. 9 0. D. 
603 ; cited antSf p. 146 ; as to 
damages, see JRust v. Victoria Dock 
Co., L. B. 86 C. D. 113. 



168 USES AND PROFITS OF LAND. 

behalf. But a frontager may be subject to such an obli- 
gation by prescription or custom; and he may be com- 
pelled to perform it by the other frontagers as well as by 
the commissioners of sewers («). The prescriptive liability 
depends in general upon usage ; and it may be proved by 
evidence of former repairs done by the frontager and his 
predecessors in title under similar circumstances. But no 
obligation can be inferred from the mere fact tliat he has 
voluntarily, and without any claim or order made against 
him, maintained and repaired a wall for the protection of 
his own land; though it has also served to protect the 
land of the other frontagers (o). Proof of liability fw 
ordinary repairs is not suflGioient to charge a frontager with 
the damage caused by an extraordinary tide or storm, that 
could not reasonably be anticipated ; the liability would, 
in general, be discharged by keeping the sea wall in suffi- 
cient repair to withstand all ordinary tides and storms (p). 
So, between tenant for life or for years and reversioner "it 
is waste to suffer a wall of the sea to be in decay, so that 
by default of the tenant the land is drowned and becomes 
improfitable; but if the land is drowned by the extra- 
ordinary violence of the sea without his fault, it is no 
waste " (q). — A frontager has the right of erecting a sea 
waU or such other work as may be necessary for the pro- 
tection of his own land, although the effect may be injurious 
to the land of others. Upon this principle it was held 
that commissioners of sewers appointed for a certain level 
might erect works for the protection of their level, though 
the sea was thereby diverted with greater violence against 
the adjoining, land ; and that they could not be compelled 
either to protect the latter, or to make compensation (r). 



(n) Keighley'9 Case, 10 Co. 139 ; Ap. Oa. 449 ; 63 L. J. M. 113. 

The King v. Essex, 1 B. & C. 477. (q) Co. Lit. 68 h\ KsighUyU Cass, 

(o) Hudson v. Tabor, L. B. 2 Q. 10 Co. 139 h ; anU, pp. 18, 92. 

B. D. 290 ; 46 L. J. Q. B, 463. (r) The King ▼. CkuMmas. of Fug ^ 

(p) The King y. Essex, 1 B. & C. ham, 8 B. & C. 366. 
477 ; The Queen v. Fobbing, L. B. 11 



CHAP. XI. SEA AND TIDAL WATERS, SEA SHORE. 169 

" Ports are not merely geographical expressions, they Porta, 
are places appointed for persons and merchandises to pass 
into and out of the realm ; and at such places only is it 
lawful for ships to load and discharge cargo. Their limits 
and bounds axe necessarily defined by the authority which 
creates them, and the area embraced within those limits 
constitutes the port" («). The term is also used for fiscal 
purposes as the place of taking custom duties imposed by 
Act of Parliament, the limits being fixed by the Act; 
these limits may be different from those of the legal port 
within which port dues may be chargeable. The limits of 
the port or district for pilotage purposes may also be 
different, as fixed by other statutes (/). — ^The term " port " 
is also used in a popular or commercial sense in charter- 
parties, policies of insurance, and other commercial docu- 
ments relating to shipping. In this sense it refers to 
foreign as well as English ports, and receives a construc- 
tion, not limited to the strict legal definition of a public 
port, but according with the intention of the parties appa- 
rent in the document in question with reference to the 
drcnmstanoes (u). 

It was formerly a prerogative of the Crown to appoint Franohifle of 
ports ; also to grant ports to be held as franchises by ^ ' 
subjects (r). The Crown might create a port and grant 
the franchise in the land of a subject, so as to render it 
lawful to the public to use it as a port ; but the Crown 
could not grant the right of landing and unloading goods 
without the consent of the owner of the land. And the 
owner of land is entitled to make charges for such use of 
his land in connection with a port, without any title to 
the port as a franchise (to), — " Ports are also acquirable by 

(«) Fer eur. Nieholtony. Williams, 15 Q. B. D. 680. 

L. R. 6 Q. B. 641 ; 40 L. J. M. (p) Hale, De J, Maris, Part II., 

166. where a catalogue of then existing 

(t) Brett, M. K. Oarston Co, y. ports, with their members, is given. 

Biekie, L. B. 15 Q. B. D. 587 ; Hargrave's Tracts, p. 48. 

Nicholson Y. Williams, supra. {to) Hale, J)e Port, Hargr. Tr. 

{u) Oarston Co, y. Hiokie, L. B. 73, 76 ; Bayley, J. BlundeU y. Cat' 



170 



USES AND PROFITS OF LAND. 



Distnrbanoe 
of f ranohifie. 



Statatory 
authority 
over ports. 



presGription, without any other formality appeariiig, though 
presumed ; ex diuturnitate temparis omnia prceBumuntur rite 
acta " (a;). And a grant of a port within time of legal 
memory may be presumed from long possession and the 
taking of dues, though the deed or charter, which should 
be matter of record, cannot be directly proTed (y). 

" No subject may institute or erect a common port with- 
out the charter of the king, or a lawful prescription." The 
use of any place, not being a lawfully appointed port, for 
the axriyal and unloading of ships is a disturbance of the 
franchise. " Yet further it seems that a subject cannot^ 
neither could by law at any time after customs were settled, 
arrive with customable goods and ships of his own at 
his own land; for this were to defeat the king of his 
duty.'* " But any man might bring and imlade his own 
private goods which are not customable upon his own 
land ; for this was no accroachment of a port at conmion 
law.*' And "in case of necessity, either of stress of 
weather, assault of pirates, or want of provisions, any ship 
might put into any creek or haven ; all plac^ are as to 
that purpose and end ports " (s). 

The prerogative right of ports is now superseded by 
statutory authority. The statute 9 & 10 Vict. c. 102, 
repealed and re-enacted by " The Customs Consolidation Act, 
1853," 16 & 17 Vict. o. 107, and by " The Customs Conso- 
lidation Act, 1876," 39 & 40 Vict. c. 36, vested the appoint- 
ment of ports in the Commissioners of the Treasury. By 
the last mentioned Act, s. 11, " The Commissioners of the 
Treasury may, by their warrant, appoint any port, sub- 
port, haven or creek in the United Kingdom or in the 
Channel Islands, and dedare the Umits thereof, and 
appoint proper places within the same to be legal quays 
for the lading and unlading of goods, and declare the 
bounds and extent of any such quays, and annul the 

terally 6 B. & Aid. 309; Exeter y. (y) BuUy. Homer, CJowp. 102. 

Warren, 6 Q. B. 773. (z) Hale, De Fori, Hargr. Tracta, 

(a;) Hale, i>^iV*,Hargr. Tracts, 61,63. 

64. 



CHAP. XI. SEA AKD TIDAL WATERS, SEA SHORE. 171 

limits of any port, already appointed or to be hereafter set 
out and appointed, and declare the same to be no longer 
a port, or alter or vary the names, boimds and limits 
thereof." It is fmiher provided, "that any port so 
appointed shall be deemed to be a port within the meaning 
and for the purposes of any other public Act for the pro- 
tection of the ports, harbours, shores and navigable rivers 
of the United Kingdom or any part thereof " (a). 

There is commonly incident to public ports the right to Port dues, 
take tolls or duties for the use of the port, as for anchorage, 
wharfage and the like ; which cannot be taken without a 
lawful title by charter or prescription (b). The right to 
take dues may be proved by long usage, though the grant 
was within time of legal memory and the charter, which 
ought to be matter of record, cannot be produced (c). 
For the validity of tolls some consideration is necessary ; 
but " the mere creation of the port, with the consequent 
right in aU subjects to tise the range within the limits as 
a port, to bring their ships there for safety, and to trade 
there, and unload customable goods would be consideration 
Bu£B[cient in law to support the grant of the duties" (d). 
There maybe other considerations incident to the franchise 
of a port, as the obligation of repairing, clearing and 
maintaining the port; of furnishing capstans, cranes, 
wharfs, warehouses and other conveniences for harbouring 
and lading and unlading ships ; and of measuring or pro- 
viding the means of measuring goods imported. The non- 
performance of these obligations may render the owner 
liable to proceedings against him; but it is no answer 
to a demand of port-dues, unless they are claimed as 
charges for specific services (e). 

(a) NichoUon y, JFiUiamSj L. B. Mayor of Exeter y. JFarren, 5 Q. B. 
6 Q B. 632 ; 40 L. J. M. 169. 800. 



(MI 
61, 74. 



{bl Hale, DfPor^jHargr. Tracts, {e) Fer eur. Mayor of JExeter t. 

Warren, 5 Q. B. 800; Jenkins v. 
\e\ Mull T. Somery Cowp. 102. Harvey, 2 C. M. & B. 393 ; Hale, 

(a) Mansfield, C. J., Yarmouth v. Be Portihue, o. vi, Hargr. Tracts, 
JSaton, ' 3 Btut. 1406 ; per eur. 76. 



172 



rSES AND PROFITS OP LAND. 



Wreck of the* Wreck of the sea, as to the property therein, is of two 
kinds : namel j, goods cast upon the land or sea shore ; and 
goods fonnd in the eea. Goods cast upon the shore hj 
shipwreck (which is the strict legal meaning of the term 
wreck), are within the jurisdiction of oommon law, and 

PrefogaiiTeof \)j prerogative right belong to the Crown. Q-oods cast 
upon the shore which are not legally wreck, may be 
taken hy the Crown, subject to the owner claiming them 
within a year and a day (e). Wreck found in the sea is 
described by the legal terms of jeUam, flotsam and lagan j 
meaning respectiyely goods cast into the sea, goods float- 
ing, and goods fastened to a buoy for recovery. This 
kind of wreck, if found in the sea between high and low 
water mark, or in any haven, port, creek, or arm of the 
sea, or tidal river, which belongs to the Crown, also prima 
facie belongs to the Crown ; but subject to the claim of 
the owner of the goods if he can be known, and subject to 
the payment of salvage to him who recovers the wreck. 
Wreck found in the open sea beyond the limits of the 
prerogative of the Crown becomes the property of the 
taker, subject to the rights of the original owner if he can 
be ascertained ; in which ease the taker becomes entitled 
only to be paid for salvage (/). — The prerogative right of 
the Crown to take wreck of the sea, both wreck cast on 
land and floating wreck, may be granted to a subject to 
be held as a franchise ; and it may be vested in a subject 
by prescription, or as appurtenant to a manor. But the 
term " wreck of the sea" is construed strictly to pass such 
goods only as are cast on land by the sea, and not to 
include floating wreck (</). 

By the Merchant Shipping Act, 1854, 17 & 18 Vict, 
c. 104, s. 439, " The Board of Trade shall throughout the 



Franchieeof 
wreck. 



Receivenof 
wreck. 



{e) Stat. West. 3 Ed. I. o. iv, de- 
claratory of common land, 2 Co. 
Inrt. 166; Stat. Prerog. Seffis, c. 
xiu, Statutes, Revised ed., p. 132; 
Hale, De /. MariSy Hargr. Tracts, 
37 ; Constable's Case, 6 Co. 106. 



(/) Hale, De 7. Maris, Hargr. 
Tracts, 41 ; 6 Co. 107, 108, Qm- 
stable's Case, 

(^) Hale, De J. Maris, Har^r. 
Tracts, 41 ; Constable's Case, 5 Co. 
106. 



CHAP. XI. SEA AND TIDAL WATERS, SEA SHORE. 173 

United Elngdom have the general superintendence of all 
matters relating to wreck," and it is empowered to appoint 
certain officers to be " receivers of wreck," to perform the 
duties prescribed in the Act relating to the receiving and 
disposal of wreck. By s. 474, "The Board of Trade 
shall have power, with the consent of the Treasury, for 
and on behalf of her Majesty, to purchase all such rights 
to wreck as may be possessed by any person or body cor- 
porate, other than her Majesty" ; and for the purpose of 
facilitating such purchases, the provisions of the Lands 
Glauses Consolidation Act, 1815, are incorporated. By 
the interpretation clause, s. 2, " in the construction and 
for the purposes of this Act, the term 'wreck' shall in- 
clude jetsam, flotsam, lagan, and derelict, found in or on 
the shores of the sea or emy tidal water." 



174 USES AND PROFITS OF LAND. 



CHAPTER Xn. 
INLAND AND SEA FISHERIES. 

Fifihery in inland waters— non-tidal riyere. 

Fisheiy in land of another — several fishery — free fishery and oommon 

of fishery — qualified fishery. 
Fishery in the open sea — Sea Fisheries Acts. 
Fishery in arms of the sea and tidal waters — Crown granta of fisheiy — 

prescriptive fishery — non-tidal waters. 
Fishing weirs — in navigable rivers — ^in private riyers. 
Boyal fish — salmon — oysters and shell fish. 

Fishery in The right of fishing in -inland water which is private 

inland waters, property, as a lake or pond, is an ordinary incident of the 
ownership of the land and water. It is sometimes called 
a " several fisheiy," but only in the same sense that the 
ownership of the land is a " several" ownership, and not as 
being a separate subject of property (a). Hence the 
possession and exercise of a several or exclusive right of 
fishing, in the absence of other evidence respecting the 
title, is referable to the ownership of the land, and afifords 
presumptive evidence of a title in fee (b). And the term 
"fishery" in a deed of conveyance, as descriptive of the 
property conveyed, may pass the Itod itself covered with 
water, if apparently used with that intention (c). 
Non-tidal The right of' fishing in non-tidal rivers and inland 

streams is presumptively in the riparian owners ad medium 
filum aquce. If one person be the owner of both banks, he 
has the entire fishing to the extent of his land in length. 

{a\ Per cur. ffolford v. Bailey, 13 B. & 0. 875 ; poet, p. 176. 
Q. B. 444. (e) MarehaU t. Ulletwater Nov., 

{h) Duke ofSmereet y. FoffweU, 5 3 B. & S. 732 ; 32 L. J. Q. B. 139. 



nvers. 



CHAP. XII. INLAND AND SEA FISHERIES. 175 

It is presumptively an inoident o£ the property in the bank 
and bed of the river (d). But the exercise of an exclusive 
Tight of fishery in a liver is primd facie evidence of pro- 
perty in the bed of the liver, and may be sufficient in 
connection with the circumstances to rebut the presump- 
tive right of the riparian owners (e). If a river changes 
its course gradually and insensibly, the boundaries of the 
riparian property, together with the incidental rights of 
fishing, change with it ; but if it changes its course sud- 
denly, or if it abandons the old course and takes a new 
one, the property in the soil is not changed, and the right 
of fishing does not pass to the new course (/). — ^Tidal Tidal riFew. 
rivers are treated as arms of the sea, the property in which 
is presumptively in the Crown ; and although the water be 
fresh, at high water, if it flow and reflow with the tide, it 
follows the rule of tidal waters (ff). 

The right of fishing in water which for all other uses is Fuheir in 
the property of juaother, is a right of the nature of a profit another. 
d prendre. Such right is an incorporeal tenement and 
hereditament ; it passes by deed of grant ; an action of 
trespass lies for an injury to it ; and an action of eject- 
ment lies for its recovery. It may be claimed by grant or 
prescription, but not by custom (A). — A " several fishery " Several 
is a right of fishing in the land of another, exclusively of *^* 
the owner himself and of aU* other persons. The term is 
nsied to describe the fishing as a separate subject of pro- 
perty, in distinction to fishery as the ordinary incident of 
property in the land and water. " A several fishery is a 
right to take fish in alieno solOy and to exclude the owner of 
the soil from the right to take fish himself " (i). A '' sole 

(d) Hale, De Jure Jfaritf ch. i, (A) Aahlmrsty J., The King t. 

Hargr. Tracts, 6 ; ante, p. 153. Old Alresford, 1 T. B. 361 ; Somerset 

{e) Devonehire y. Pattineon, L. R. t. Foffwell, 6 B. & C. 875 ; Ho^ford 

20 Q. B. D. 263; 57 L. J. Q. B. v. Bailey, 13 Q. B. 426 ; Neill y. 

189. Dewmekire, L. B. 8 Ap. Oa. 135, 

if) Ante, p. 154. poet, pp. 330, 562. 

(g) Hale, he Jure Marie, Hargr. (t) Coleridge, C. )., Foster y. 

Tracts, 12, post, p. 178. Wriaht, L. B. 4 0. P. D. 449 ; 49 

L. J. 0. P. 100. 



176 USES AND PROFITS OF LAND. 

and exclusive fishery " is an equivalent description of a 
" several fishery." " These words contain a description of 
precisely the same right as is ordinarily expressed by the 
term * several fishery/ that is, the right of fishing exclusive 
of all others in a particular place " (j). The exercise of a 
several and exclusive fishery, as an act of ownership, is 
presumptive evidence of a title to the soil ; but this is true 
only " where the terms of the grant are unknown ; and 
where they appear and are such as convey an incorporeal 
hereditament only, the presumption is destroyed" (A:). 
" If a man be seized of a river and by deed do grant 
separakm piacanam in the same, the soil doth not pass, nor 
the water, for the grantor may take water there ; and if 
the river become dry he may take the benefit of the soil ; 
for there passed to the grantee but a particular right. Fop 
the same reason, if a man grant aquam auam the soil shall 
not pass, but the pischary within the water passeth there- 

Fzeeflflheiy. with " (/). — A right of fishing in the land of another in 
common with the owner, or in common with others to 
whom similar righte are granted, is caUed a « free fisheiy," 
or liberty of fishing ; and relatively to others having the 

Oommon of like right, it is called a " common of fishery ^ " A man 
may prescribe to have separalem piscariam in such a water 
and the owner of the soil shall not fish there ; but if he 
claim to have communiam piscarice or liberam piscariam^ the 
owner of the soil shall fish there " [m). " In order to con- 
stitute a 'several fishery' it is requisite that the pariy 
claiming it should so far have the right of fishing inde- 
pendent of all others, as that no person should have a co- 
extensive right with him ; for where any person has such 
co-extensive right, there is only a 'free fishery '"(n). — 

U) Solford y. BaiUy, 13 Q. B. ash y. Goodman, L. R. 6 G. P. D. 

445. 440; 49 L. J. C. P. 670. 

{k) Duke of Somerset v. Fofficell, (m) Go. Lit. 122a; Hargraye's 

6 B. & G. 886 ; Devonshire y. Fat- note, ib. : Smith y. Kemp, 2 Salk. 

Unson, L. R. 20 Q. B. D. 263 ; 67 637 ; 4 Mod. 186. 

L. J. Q. B. 189. (n) Mansfield, G. J., Sepnmr y. 

(0 Go. Idt. 4 &; Groye, J., Salt^ Courtenay, 6 Burr. 2817. 



fiahery. 



CHAP. Xll. INLAND AND SEA FISHEUIES. 177 

The grant of a fishery may also be qualified or restricted Qualified 
to a particular kind of fish, as a fishery for oysters ; or a ^^' 
grant may be made of the floating fish, reserving the 
oysters ((?). A fishery may also be restricted as to the 
particular mode of fishing (p). 

Fishing in the open sea is common to all persons of all Kshenee in 
nations, subject to international treaties, and subject to the 
regulations of each state over its own territorial waters; 
By " The Sea Fisheries Act, 1868," 31 & 32 Vict. c. 45, Sea Fiaheriea 
statutory effect is given to a convention between the sove- ^ " 
reigns of the United Eongdom and France relative to 
fisheries in the seas between those countries, which is set 
out in a schedule to the Act. By this convention it is 
agreed, Article I., that '^ British fishermen shall enjoy the 
exclusive right of fishery within the distance of three 
miles from low water mark along the whole extent of the 
coasts of the British Islands ;" and French fishermen shall 
enjoy the like exclusive right of fishery within the same 
distcmce along the coast of France. " The distance of 
three miles fixed as the general limit for the exclusive right 
of fishery shall, with respect to bays, the mouths of which 
do not exceed ten miles in width, be measured from a 
straight line drawn from headland to headland." By 
" The Sea Fisheries Act, 1883," 46 & 47 Vict. c. 22, statu- 
tory effect is given to an international convention regulat- 
ing the fisheries in the North Sea, in similar terms. The 
convention is made between the sovereigns of the United 
Eongdom, Germany, Belgium, Denmark, France, and the 
Netherlands, and by Article I. applies to the subjects of 
the contracting parties. By Article II., " The fishermen 
of each country shall enjoy the exclusive right of fishery 
within the distance of three miles from low water mark 
along the whole extent of the coasts of their respective 



(o) Rogen v. AUen, 1 Gamp. 312 ; (p) The King v. EUis^ 1 M. & S. 

Seymour y. CourUnag, 6 Burr. 2817. 652. 

h. N 



178 



USES AND PROFITS OF I.AND. 



countries, as well as of tlie dependent islands and banks. 
As regards bays, the distance of three miles shall be mea- 
sured from a straight line drawn across the bay, in the 
part nearest the entrance, at the first point where the width 
does not exceed ten miles." Article IV. fixes the limits 
of the North Sea for the purpose of the convention. 



Fisheries in 
arms of the 
sea and tidal 
waters. 



Crown grants 
of fisherj. 



The right of fishing in arms of the sea and in tidal rivers 
is pntnd facie common to all subjects of the realm (o). The 
public right extends with the tide to high water ; and it 
seems that it includes a general right of taking fish found 
upon the sea shore when the tide is out, and of going upon 
the shore for that purpose (p). 

In early times the Crown, in whom the territorial pro- 
perty in arms of the sea and tidal rivers was vested at 
common law, claimed and exercised the right of granting 
the franchise or liberty of fisliing therein to private grantees, 
to the exclusion of the general public, until restrained by 
the Great Charter and the subsequent renewals thereof. 
By the Charter of John, c. 47, it was declared that all 
waters should be open that had been closed by that King 
himself. And by the subsequent Charters 9 Henry IH. 
c. 16, and 25 Edw. I. c. 16, it was provided that " No 
rivers shall be defended from henceforth, but such as were in 
defence in the time of King Henry II., by the same places 
and the same bounds as they were wont to be in his time." 
Consequently it is now held that any private fishery claimed 
in arms of the sea or in tidal waters must be founded upon 
a Crown grant that can be proved, or at least presumed, to 
have been made not later than the reign of Henry II. (q). 
If the grant of a fishery made before that date has since 
reverted to the Crown, by forfeiture or otherwise, it is not 



(o) Hale, De Jure Maris^ c. iv ; 
Titzwalter'a Case, 1 Mod. 105 ; Ward 
V. Creswell, WiJles, 265. 

(p) Bagott V. Orr, 2 B. & P. 472 ; 
bat see Bay ley, J., Blundell y. Cat' 
teraU, 6 B. & Aid. 307. 



h) Blackst. Tracts, Mag. Cart. ; 
2 Blackst. Com. 39 ; see Somerset 
T. Fogwell, 6 B. & C. 875 ; Makolm^ 
son V. O'Dea, 10 H. L. C. 693 ; 
Carlisle v. Graham, L. B. 4 Ex. 361 ; 
38 L. J. Ex. 226. 



CHAP. XII. INLAND AND SEA FISHERIES. 



179 



thereby merged or extinguished ; it continues to exist as 
a distinct franchise that may validly be re-granted (r). 
And a nominal surrender to the Crown for the purpose of 
a modem re-grant does not destroy the right («). Hence 
it appears that " the Crown can grant a several fishery in 
such waters since Magna Charta, if that fishery existed 
before Magna Charia,^^ And "if the Crown's patent pur- 
ports to grant a several fishery, and the grant is followed 
by sufiicient user of it as such, that is always held suffi- 
cient evidence that the fishery existed before Magna 
Chartd*^ (^). — ^A Crown grant thus legalised may be a 
"several fishery" strictly so called, that is, exclusive of 
all other persons ; or it may be a " free fishery," that is, 
a mere liberty of fishing, exclusive of the public in general 
but not exclusive of any other grantees to whom the like 
liberty may be given ; in relation to whom it becomes a 
" common of fishery" (w). And it is said that " the King 
may grant fishing in some known precinct that hath known 
bounds, though within the main sea," as an exclusive right 
of fishing between high and low water marks of the open 
sea(t?). A crown grant may be made to a body corpo- 
rate ; or to a section of the public, as the inhabitants of a 
borough, provided the terms of the grant expressly or 
impliedly incorporate them, so as to enable them to hold 
the franchise in a corporate capacity (w). 

A claim to a several fishery or to a free fishery in arms of PrescriptiTe 
the sea and tidal rivers may also be supported by preserip- ^'^' 
tion; and immemorial enjoyment of a several or free 
fishery is presumed to have had the legal origin of a valid 



(r) Colehetter v. Brooke, 7 Q. B. 
339 ; Northumberland y. Houghton, 
L. B. 6 Ex. 127 ; 39 L. J. Ex. 66. 

(a) Mayor of Salta&h v. Goodman, 
9Upra. 

(t) L. Blackburn, Neill t. Devoti- 
Bhire, L. R. 8 Ap. Ga. 180. 

(«) Hale, De J. Marie, c. t, Hargr. 
Tracts, 17 ; Case of JBanne Fishery, 
Sir J. Dayies, 55 ; Makolmson y. 



O'Dea, 10 H. L. 0. 693; anU, p. 176. 

(f) Hale, De J. Maris, supra ; see 
Embleton y. Brown, 3 E. & B. 234 ; 
30 L. J. M. 1. 

(w) Saltash y. Goodtnan, L. R. 7 
C. D. 106 ; 60 L. J. 0. P. 508 ; 
Goodman y. Saltash, L. R. 7 Ap. 
Ca. 633 ; 62 L. J. Q. B. 193 ; Me 
Free Fishers of Faversham, 67 L. J. 
C. 187. Seej3<w/, p. 566. 



n2 



180 USES AND PROFITS OF LAND. 

grant froin the Crown, upon the principle of presuming 
everything to be rightfully done in favour of an established 
usage (ar). Accordingly the grant may be presumed to 
have been made subject to exceptive rights or conditions 
in favour of the public or of certain classes of the public, 
in accordance with the evidence of prescriptive enjoy- 
ment {y) ; but such presumption cannot be made to displace 
a title to an absolute several fishery founded upon 
documents and possession, and in such case exceptive enjoy- 
ments will be presumed to have been either with licence 
or by sufferance (2) . A several fishery may also be claimed 
as prescriptively appurtenant to a manor (a). But the 
general presumption is against a several fishery and in 
favour of the public ; therefore if the claimant prosecutes 
for unlawful fishing and his claim is disputed a question 
of title arises sufficient to oust the summary jurisdiction 
of justices (i). 
Kon-tidfd The public in general have no right of fishing in non- 

tidal waters and rivers ; for such waters, with the fisheries 
therein, are presumptively private property; nor can any 
public right of fishing in non-tidal waters be acquired by 
custom, such right being a pro/it a prendre in alieno solo 
which cannot be founded on custom (c). Nor has the 
Crown any prerogative right of fishing in a non-tidal 
river, the property of a subject, nor of granting a franchise 
of fishery in such river to a subject {d). — A public right of 
navigation in a navigable non-tidal river is limited to the 
purposes of navigation and does not carry with it any 
right of fishing {e). 

(x) Hale, De J. Maris, Hargr. (e) Lloyd v. Jones, 6 C. B. 81 ; 

Tracts, 18, 19 ; Carter v. Mureot, 4 Bland y. Zipucombe, 24 L. J. Q. B. 

Burr. 2162; Mannall v. Fisher, 5 165, n. ; Hudson y. Macrae, 4 B. & 

C. B. N. S. 856 ; Malcobnson v. S. 585 ; 33 L. J. M. 65 ; Hargreares 

O'Bea, 10 H. L. C. 673. v. Liddams, L. B. 10 Q. B. 582 ; 

(y) Goodman v. Saltash, L. R. 7 44 L. J. M. 178 ; ante, p. 162 ; see 

Ap. Ca. 640 ; 62 L. J. Q. B. 193. post, p. 562. 

(z) Neill V. Duke of Devonshire, (d ) Devonshire v. Paitinion, L. R. 

L. R. 8 Ap. Ca. 135. 20 Q. B. D. 263 ; 67 L. J. Q. B. 

(a) Rogers v. AUen, 1 Camp. 309. 189. 

(b) The Queen v. Stimpson, 4 B. (i?) JReece v. MiUer, L. R. 8 Q. B. 
k S. 301 ; 32 L. J. M. 208. D. 626 ; 51 L. J. M. 64 ; Beearee t. 



CHAP. XII. INLAND AND 6EA FISHERIES. 181 

The Crown also in early times exercised a prerogative Fishing 
right of erecting weirs or dams for fishing in arms of the ^®"^' 
sea and tidal rivers, which are Crown property, to the ex- 
clusion of public rights of fishing and of navigation ; and 
of granting such weirs, which are part of the soil itself, 
in private ownership to individuals or corporate bodies. 
But by the Charter of 25 Ed. I. c. 23, confirming the Publionavi- 
Magna Charta of John, it was enacted that "All weirs erablenyers. 
from henceforth shall be utterly put down by Thames and 
Medway, and through all England, except by the sea 
coast." This statute being general in its terms would 
prima facie apply to all rivers public or private, but the 
generality of the statute was held to be restrained by later 
statutes to public navigable rivers only (/). And by the 
statute 25 Ed. III. st. 4, c. 4, reciting that the common pas- 
sage of ships and boats in the great rivers of England is 
often disturbed by the levying of weirs to the damage of 
the people, provided that " all such weirs which were levied 
and set up in the time of Edward I. and after, till now, 
in such rivers, whereby the said ships and boats shall be 
disturbed, shall be put out and utterly pulled down without 
being renewed." Tliis and subsequent statutes in similar 
terms, 1 Hen. IV. c. 12, 4 Hen. IV. c. 1 1, 12 Ed. IV. c. 7, 
have been recently repealed by the Statute Law Revision 
Act, 1863, but with express saving of past operations and 
existing rights. This statute, in expressly restricting the 
operation to weirs set up in the time of Edward I. and after, 
was construed as impliedly legalising all weirs set up before 
that time, notwithstanding that they obstructed the chan- 
nels of public navigable rivers, whatever doubt there might 
be as to the original authority of the Crown to grant 



Seoteher, L. R. 9 Q. B. D. 162 ; Burr. 2164, that in navigrable 

Sargreavet r. Diddams, L. R. 10 rivers the fishery is public, applies 

Q. B. 682 ; 44 L. J. M. 178 ; Leem- to tidal rivers only. 

Jleld V. Lonsdale^ L. R. 5 C. P. 666. (/) Callis on Sewers, p. 259, cited 

The dictum in the cases of Warren in Rotte y. Whyte, L. R. 3 Q. B. 300 ; 

T. Matthetosy 6 Mod. 73 ; 1 Salk. Lecmfield t. LonsdaUy L. R. 5 G. P. 

367, and in Carter v. Murcot, 4 667 ; 39 L. J. 0. P. 305. 



182 USES AND PROFITS OF LAND. 

them ig). Accordingly it is stated as law that " a subject 
may have weirs, fishing places, &c., which are the very soil 
itself, by usage, either in gross or as parcel of or appurte- 
nant to manors ; and this not only in navigable rivers and 
arms of the sea, but in creeks, ports and havens, and in 
certain known limits in the open sea contiguous to the 
shore " {h). So it was held that a fishing weir in a public 
navigable river, presumptively granted by the Crown before 
the reign of Edward I., was legal, though the weir occupied 
part of the navigable channel ; and that it did not become 
illegal by the river changing its course so that the whole 
navigable channel was obstructed {t). 
Weirs in In private rivers, that is to say, inland non-tidal rivers, 

whether navigable or not, the right to erect weirs and 
dams, whether for fishing or for other purposes, with the 
effect of penning back or diverting the water, may be 
acquired against other riparian proprietors by grant or by 
prescription or other title applicable to such rights ; but no 
such right can be acquired against a public right of navi- 
gation U). By the Salmon Fishery Act, 1861, 24 & 25 
Vict. c. 109, s. 12, for the protection of the Salmon Fishery, 
the use of fishing weirs for catching salmon was prohibits 
generally " except such fishing weirs as are lawfully in use 
at the time of passing of the Act by virtue of a grant or 
charter or immemorial usage ; " and the use of the excepted 
weirs is restricted by special regulations {k), 

Eoyal fiflh. By the statute Prerogativa Regia^ 17 Ed. 11. c. 11, which 

is declaratory of the common law, " the king shall have 
whales and sturgeons taken in the sea or elsewhere within 
the realm, except in certain places privileged by the king." 
" Royal fish are so called because of common right such 

{g) Chester Mill Case, 10 Co. 314. 
137 A ; Williams v. Wilcox, 8 A. & {j) Boliey. WhyU, L. R. 3 Q. B. 

E. 314. 286 ; 37 L. J. Q. B. 105 ; Leeonfield 

(h) Hale, De J. Maris, Hargr. v. Lonsdale, L. R. 5 C. P. 657 ; 39 

Tracts, 18. L. J. C. P, 305 ; anU, p. 151. 

(t) Williams v. Wileox, 8 A. & £. (A-) Leeonfield v. Lonsdale, supra. 



CHAP. XII. INLAND AND SEA FISHERIES. 183 

fish, if taken within the seas parcel of the dominion and 
Crown of England or in any creeks or arms thereof, belong 
to the Crown; but if taken in the wide sea or out of the 
precinct of the seas belonging to the Crown, they belong 
to the taker. The kinds of these royal fish seem to be but 
three, viz., sturgeon, porpoise, and whale." " A subject 
may have this franchise or royal perquisite, by grant and 
by prescription, within the shore between the high water 
and low water mark, or in a certain distinct district of the 
sea, or in a port or creek or arm of the sea ; and this may 
be had in gross, or as appurtenant to a manor" (/). — 
Salmon are not distinguished from other fish as regards Salmon, 
the property or right of taking; except that numerous 
Acts of Parliament have been passed from time to time 
for the special preservation of salmon, and for the regula- 
tion of the fishery. By the law of Scotland the right of 
salmon fishing in all rivers and in the sea round the 
coasts belongs to the Crown jure coronm ; except so far as 
it has been granted by the Crown to subjects. And it lies 
upon those who maintain the right as against the Crown to 
show their title by an express or constructive grant of the 
salmon fishery (m). — The public right of fishing in the sea OTsten and 
and tidal waters includes the taking of oysters and shell ® 
fish, subject to the statutes passed for the regulation of the 
fishery (n). It also includes the taking of fish found upon 
the sea shore between high and low water upon the ebbing 
of the tide; at least, where they can be taken without 
trespassing. But it seems there is no similar right to 
take fish shells, which in some places are a valuable 
commodity (o). 

(I) The Statntes, Bevised Ed. p. (m) GammelVs Case, 3 Maoq. 419 ; 

132 ; Hale, De J. Maris, Hargr. McDonall y. Lord Advoeatey Li. B. 

Tracts, 43 ; Jfi/</m<7yT.Pifx^<?,Tiine8| 2 Sc. Ap. 432; Lord Advocate v. 

10 Nov. 1883, in which case a whale Lovat, L. R. 6 Ap. Ca. 273. 
caught in the river Grouch, within (») Mayor of Maldon y. JFoolvet, 

the manor of Bumham, was sue- 12 A. & E. 13. 
ccfisfully claimed bj the lord of (o) Bayott y. Orr, 2 B. & P. 472. 

the manor. 



1 



( 184 ) 



PART 11. 



USES AND PROFITS IN LAND OF ANOTHER, 

Chafteu L Easements. 

n. Profits & prendre. 

m. Bents. 

rV. Public uses of land 



( 185 ) 



INTRODUCTION. 

It has been already noticed in the Introduction to the Bightoinland 
former Part of this work that some uses and profits of °* a^o*^®'. 
land may be appropriated separately from the general 
ownership. They may be held by one person, while the 
land which supplies them, for all other uses and profits, 
belongs concurrently to another person; whose general 
rights of ownership are necessarily to a corresponding 
extent diminished or restricted. Eights of this kind 
are here designated as rights of use and profit in the land 
of another, adopting the phrase jura in re aliena of the 
Soman law ; which also designated them by the term 
senniutes, in reference to the land subjected to them. 

These are incorporeal rights, because the owner has not Incorporeal 
possession of the land which is the corporeal subject of "«^^**' 
property, but only the use of it for certain purposes, or 
some profit derived from it, whilst it remains in the posses- 
sion of another. Being incorporeal they are incapable, 
technically speaking, of entry, seisin, disseisin or livery ; 
they do not lie in tenure, and therefore do not admit of 
reservation of rent or service, or of distress («). Also, 
being incapable of livery, they are said at common law to 
lie in grant, that is to say, they pass by deed only, whether 
for an estate in fee or for life or for years ; except that 
when appendant or appurtenant to land they pass by any 
conveyance that is sufficient to pass the land to which they 
are appended (6). The chief importance of this distinction 
has been taken away by the statute 8 & 9 Vict. c. 106, 
requiring a feoffment with livery to be evidenced by deed; 

{a) Co. Lit. 9 a, b; 142 a ; 181 a. {b) Go. Lit. 49 a; 121 b; 172 a. 



186 



USES AND PROFITS IN LAND OF ANOTHER. 



Easements. 



Profits it 
prendre. 



Bents. 



Conditions of 
legality. 



and enacting that " all corporeal tenements and heredita- 
ments shall be deemed to lie in grant as well as in 
Uvery." 

Rights of this kind are distinguished as being Easements or 
rights of mere use, and Profits to be taken or rendered out 
of the land. The former consist in the owner of certain 
land being entitled to have some specific use of the land of 
another for the more convenient use of his own land, but 
without taking any material profit out of it ; as a right of 
way, or a right of access of light, or a right to use a water- 
course. Accordingly an easement is defined to be *'a 
privilege that one neighbour hath of another without 
profit; as a way or a drain through his land, or such 
Hke" {c). — The latter or profitable kiud of rights include 
rights of taking some material profit from land of 
another, as the right of pasturing cattle, of taking wood or 
turf or fuel, or of taking minerals or part of the soil; 
and rights of receiving a profit out of land to be rendered 
by the tenant in money or kind, as rent. The profits to 
be taken by the person himself are said, in the language 
of the common law, to lie in prender, and are called profits 
a prendre ; and profits to be received at the hand of tlie 
tenant are said to lie in render {d). 

It is a necessary condition of a claim or right over land 
of another that it be strictly defined and limited. Uncer- 
tainty of description or extent renders the claim void. On 
the other hand, general ownership of land, as regards the 
uses and profits, is indefinite and unlimited, including 
every mode in which the land can be lawfully used or 
employed. Accordingly it is said, " Servitus or easement 
gives a power of applying the subject to exactly deter- 
mined purposes. Property or dominion gives the power of 
applying it to. all purposes " (e), — ^It is a further condition 
that the claim be of a kind recognised by law. " There 
are certain known incidents to property and its enjoy- 



{e) Tames de In ley. (rf) Co. Lit. 141 h. (<?) Austin, Jnr., v. HI. p. 8. 



INTRODUCTION. 187 

ment ; oertaiii burthens wherewith it may be affected, or 
rights which may be created and enjoyed over it by parties 
other than the owner ; all which incidents are recognised 
by the law. In respect of enjoyment, one may have the 
possession and the fee simple, and another may have a 
rent issuing out of it, or the tithes of its produce, or an 
easement, as a right of way upon it, or of common over it. 
And such last incorporeal hereditaments may be annexed 
to an estate which is wholly unconnected with the estate 
affected by the easement. All these kinds of property, 
however, are well known to the law and familiarly dealt 
with by its principles. But incidents of a novel kind 
cannot be devised and attached to property at the caprice 
of the owner. There can be no harm in allowing the 
fullest latitude to men in binding themselves and their 
representatives, that is, their assets real and personal, to 
answer in damages for breach of their obligations. But 
great detriment would arise and much confusion of rights, 
if parties were allowed to invent new modes of holding and 
enjoying real property, and to impress upon their lands 
and tenements a peculiar character, which should follow 
them into all hands, however remote " (/). 

Covenants or personal obligations affecting the use and Covenauta 
enjoyment of land, referred to above, may become to a J^J?"^^ ^^ 
certain extent annexed to the land, or, as it is called, rim 
with the land by reason of the nature of the covenant. 
They may also become obligatory upon purchasers or 
assignees of the land by reason of their taking it with 
notice of the covenants. These covenants have then some 
analogy in effect with easements or rights over the land of 
another by subjecting the use of the land to the terms of 
the covenant ; which, however, being mere matter of agree- 
ment are capable of wider and more varied scope than the 

(/) Brougham, Ij. C.,Keppeilr. 121; 32 L. J. Er. 217; Mellish, 

JBailetfj 2 M. & K. 535 ; adopted in L. J., Atpden y. Seddon, L. K. 1 

Aekroyd v. Smith, 10 0. B. 188 ; Ex. D. 509 ; 46 L. J. Ex. 353. 
and in Hill y. Tuppcr, 2 H. & C. 



188 USES AND PROFITS IN LAND OP ANOTHER. 

easements recognised by law. On the other hand thej are 
only binding upon the actual parties to the covenant and 
those who become implicated as parties, and they are 
attended with different f onus of remedy ; being regulated 
by the law of contract to which branch of law they properly 
belong. 
Public ease* There remains to be noticed a class of rights whicli 
mentB. resemble easements in being used or exercised over land 

held in private property, but which differ from easements 
in not being vested exclusively in any individual person. 
These are vested in the public generally, that is, in every 
individual member of the public, as such, or at least in some 
locally defined portion of the public and its individual 
members. Of this kind are highways and public rights of 
way of all kinds ; also various uses of land founded upon 
local customs. Such rights are held by the public, not as 
appurtenant or annexed to land, but independently of any 
land or, as it is termed, in gross. They may be described 
as Public and Local Uses of the nature of Easements. — 
The public cannot, nor can any portion of the public, 
merely as such, claim to take Profits from land in private 
ownership, by any form of grant, prescription, or custom. 

In accordance with the above explanation this Part of 
the work is arranged in the following Chapters. 



( 189 ) 



CHAPTEE I. 
EASEMENTS. 

Section I. Easements in general. 
II. Specific easements. 

III. Creation of easements. 

IV. Extinction of easements. 
V. Eemedies for easements. 

Section I. Easements in general. 

Easements appurtenant to land — dominant and servient tenement- 
easement in gross. 

Conditions of appurtenancy. 

PoeitiTe and negative easements. 

licence to use land — revocation of licence— notice of revocation — licence 
not assignable. 

licence coupled with grant — ^parol grant — grants irrevocable — and 
assignable. 

Easements admissible in law — specific easements — particular easements 
— claims not admitted as easements — covenants concerning use of 
land. 

Easements are rights appurtenant or annexed to the Easements 
ownership of certain land, of using the land of another JoSmd. 
person as auxiliary to it, that is, for the more conyenient 
use and occupation of it, in addition to the ordinary 
incidents of ownership ; so that a conveyance of the land 
carries with it the appurtenant easements, together with 
the ordinary possessory uses, without any separate con- 
veyance or mention of the easements (a). 

The land to which an easement is appurtenant is called. Dominant 
in the language of the civil law, the dominant tenement, twie^at^ 

(a) Co. latt. 12U. 



190 USES AKD PROFITS IN LAND OF ANOTHER. 

relatively to the land over which the easement is exer- 
cised ; the latter is called the servient tenement, and is 
said to be subject to a servitude, A dominant and a 
servient tenement in different owners is an essential con- 
dition of an easement. If the tenements become nnited 
in one owner, all rights of use and enjoyment for whatever 
purposes become the ordinary incidents of ownership ; and 
an easement that had previously been appurtenant to one 
of them over the other, instead of continuing as a separate 
right, becomes merged in the full ownership. A person 
cannot have an easement or servitude over his own land ; 
or as expressed in the language of the civil law, nulli res 
Easement in 8ua sernt (b). — An easement, properly so called, can be 
groae. claimed only as appurtenant to land ; it cannot be daimed 

in gross, that is, as a separate right independent of a 
dominant tenement. "There can be no such thin^, 
according to our law, as an easement in gross ; an ease- 
ment must be connected with a dominant tenement" (c). 
A grant in terms of an easement in gross would confer a 
personal licence only, which would be subject to all the 
incidents and conditions of a licence {d). In this respect 
easements differ from profits a prendre, or rights of taMng 
profits from land ; for the latter may be claimed in gross ; 
but the right to take profits may carry with it a right of 
way or other easement as an accessory to the enjoyment, 
although such easement could not be claimed separately in 
gross (e). 

Conditions of An easement can be made appurtenant to land in law 
.ppurten^o,. ^^y ^ ^^^ ^ ^ ^^ .^ ^^^ f ^^ ^^ accommodation of the 

occupier in the use of the land. " The incident sought to 
be annexed, so that the assignee of the land may take 
advantage of it, must be beneficial to the land in respect 
of the ownership ; and perhaps a further limit may be put, 
that it must be an incident of a known and usual kind. 



{b) Digest, L. 26, de terv. prad, ; Midland Ry.^ L. R. 3 Ch. 311. 

^po9t^ pp. 297, 310. id) Pott^ p. 194. 

(0) CairnB, L. C, Ea$igeUy y. \e) See post, pp. 327, 348. 



CHAP. I. EASEMENTS. 191 

Beyond these limits these incidents cannot be made 
appurtenant to land and the occupier cannot prescribe 
for them ; but he must claim them by an ordinary con- 
veyance "(/). For instance an easement of way over 
land of another for all purposes whatsoever cannot be 
claimed as appurtenant ; the claim must be restricted to 
Buch purposes only as may be for the use and convenience 
of the dominant tenement. " It would be a novel incident 
annexed to land, that the owner and occupier should, for 
purposes wholly unconnected with that land, and merely 
because he is owner and occupier, have a right of road 
over other land; and a grant of such a privilege or 
easement can no more be annexed, so as to pass with 
the land, than a covenant for any collateral matter" {g). 
But a grant of a way expressed to be " for all purposes " 
must be construed presumptively to mean all purposes 
connected with the land of the grantee, so that it may 
be taken as legally appurtenant. "There is no autho- 
rity for holding that the generality of this expression 
*for all purposes' makes a right of way not appur- 
tenant, where it is expressed to be to or from a particular 
piece of land " (h). — It is sufficient if the easement is 
beneficial for the particular business carried on upon the 
dominant tenement ; as the right of erecting the sign of a 
public house on the adjacent land or buildings {%) ; the 
right of keeping a hatch upon a stream for the use of a 
Tnill (y ) ; the right of keeping a mooring pile fixed in a 
river for the use of a wharf [k), — The appurtenancy may 
be to the tenement in its entirety only, or to every part of 
the tenement, according to the nature of the subservience 

(/) "Willefl, J., Bailey v. Stevens, p. 207. 
12 C. B. N. S. 91 ; 31 L. J. C. P. (t) Moody v. SUggUs, L. R. 12 

226 ; Jeflsel, M. R., Baylis t. Tys- G. D. 261 ; 48 L. J. C. 639 ; Eoare 

ten-Amhurst, L. R. 6 C. D. 607 ; v. Metrop, Boardy L. R. 9 Q. B. 

ante, p. 187. 296 ; 43 L. J. M. 65. 

(^) Aekroyd v. Smith, 10 0. B. (j) Wood v. Hewett, 8 Q. B. 913. 

164. (*) Lancaster v. £ve, 6 0. B. N. 8. 

{h) Mellish, L. J., Thorpe y. 717. 
Bruo\fitt, L. R. 8 Gh. 658, post, 



192 USES AND PROFITS IN LAND OF ANOTHER. 

of the right. Thus a right of way to a house and yard 
was held to be appurtenant to the entire tenement for its 
use as a house only ; so that a severance of the yard from 
the house did not carry with it a right to use the way as 
appurtenant to the yard (/). But a right of way to land, 
merely as land, is generally taken as subservient to eveiy 
part of the land for legitimate purposes; so that upon 
severance of the land each separate tenement carries with it 
a right to the way for its own use, as an appurtenance (m). 
A right of way awarded under an Inclosure Act to the 
allottees and the owners for the time being of the allot- 
ments, upon the allotments being partitioned into several 
tenements, was held to become appurtenant to each tene- 
ment (/f). So a right of way appurtenant to a common 
for the use of the commoners, after an inclosure and allot- 
ment in severalty, was held to be appurtenant to each 
allotment (o). 
Pomtiye and Easements are distinguished, according to the ci\il law, 
eo^^ts. ^ being positive and negative easements; a distinction 
which depends upon the subjects of the easements. 
Positive or affirmative easements are those which consist 
in some act to be done by the owner of the dominant 
tenement upon the servient tenement. Negative ease- 
ments require no act on the part of the dominant owner; 
they consist only in some forbearance or restriction of use 
of the servient tenement. But all easements have a 
negative effect in preventing the owner of the servient 
property from using it in any manner inconsistent with 
the easement. " The aflSrmative easement differs from 
the negative easement in this, that the latter can under no 
circumstances be interrupted except by acts done upon the 
servient tenement ; but the former constituting, as it does, 
a direct interference with the enjoyment by the servient 

(/) Bower v. Hill, 2 Bing. N. 0. L. R. 33 C. D. 420 ; 66 L. J. C. 

339. 817. 

(m) Jesael, M. R., Kewcomen t. (») Neweomm v. CouUany ntpra. 

Coulson, L. K. 6 C. D. 141; 46 (o) Codling r, Johnton, 9 B. ^ CL 

L. J. G. 461 ; Dynevor v. Tennant, 933. 



CMAP. I. EASEMENTS. 193 

owner of his tenement, may be the subject of legal 
proceedings as well ss of physical interruption. The 
passage of light and air to your neighbour's windows may 
be physically interrupted by you, but gives you no legal 
grounds of complaint against him. The passage of water 
from his land on to yours may be physically interrupted, 
or may be treated as a trespass and made the ground of 
action for damages, or for an injunction, or both" (o). A 
use of the servient tenement which is neither actionable 
nor capable of physical interruption cannot found a 
prescriptive claim to an easement (p). But if it be 
capable of physical interruption, though not actionable, it 
is inunaterial that the interruption of it may not be 
oonTeniently practicable ; and no exception to the general 
law of prescriptive easements is admitted merely upon the 
ground that the easement claimed is negative rather than 
positive, or that the inchoate enjoyment of it before it has 
matured into a right is not an actionable wrong (q), — 
Examples of negative easements are : the free passage of 
light from the servient tenement ; and rights to the free 
and uninterrupted flow of water through and from the 
servient to the dominant tenement. — ^Positive easements 
are : a right of way over the servient tenement ; and rights 
of discharging water, or drainage, or noxious vapours over 
the servient tenement. The transmission and diffusion of 
noise or noxious vapours over the servient tenement is a 
positive easement which cannot be effectually opposed by 
physical obstruction ; the only mode of resisting it is by 
action, when it amounts to an actionable nuisance (r). 
The right to support for buildings from adjacent land or 
buildings is a positive easement, because it involves a 
positive and continuous pressure upon the adjacent soil or 



(o) Sturges t. Bridgman^ L. B. L. J. Q. B. 689. 

11 C. D. 864 ; 48 L. J. 0. 790. (r) Sturgea v. Bridaman, L. R. 

(p] SiurgetY.Bridgman, tupra, 11 CD. 852; 48 L. J. 0. 785, 

Ig) Selbome, L. C, J)alton t. pott, p. 221. 
As^, L. B. 6 Ap. Ca. 796 ; 50 

L. O 



194 USES AXD PROFITS IN LAND OF ANOTHER. 

building, and the constant use of the soil or bnilding' to 
resist the pressure (s). 

liioeDoe tonae ^^® owner of land may grant to another the use of his 
^''^- land for various purposes that are not appurtenant or ser- 

vient to land of the grantee ; and the grant, unless it con- 
veys some legally recognised estate, operates only as a 
licence^ justifying acts done under it that would otherwise 
be Tqnx)ngful, but creating no easement in the proper mean- 
ing of the term. " A licence properly passeth no interest, 
nor alters or transfers property in anything, but only 
makes an action lawful, which without it had been un- 
lawful ; as a Ucence to hunt in a man's park, to come into 
his house, are only actions which, without licence, had been 
unlawful " {t). And a licence to place or keep goods upon 
land of the licensor, as a stack of hay or coals, is of the 
same kind {u) . Aticket of admission to a theatre, or a ticket 
of admission to a stand upon a racecourse operates asamere 
licence justifying the act licensed, but giving no further 
interest {v), A grant by the proprietors of a canal of the 
exclusive right to use boats on the canal and to let them 
for hire for purposes of pleasure only, was held to give a 
mere licence to that effect, and to vest in the grantee no 
such interest in the canal as would entitle him to TnainfAJTi 
an action in his own name against a third party ; he could 
only sue in the name of the grantor, and with his per- 
mission (tr). So, a mill-owner who had a licence from the 
proprietors of a canal to take water for the use of his Tnill^ 
was held to have no remedy against a third party for pol- 
luting the water ; inasmuch as such pollution might be 
allowed by the canal proprietors, who alone could complain 
of it {x). A deed of grant by the conservators of a river 

(*) BalUm V. Angut, L. R. 6 Ap. (v) Tayler y. TTaters, 7 Taunt. 

Ga. 740 ; 60 L. J. Q. B. 689. 374 ; Wood y. ZeadHiUr, 13 H. & 

(t) Vaughan, 0. J. Thomas v. W. 838. 

Sorrelly Vaughan, 351, adopted in (tp) Hill v. Tupper, 2 H. & C. 

Wood y. Leadbiiter, 13 M. & W. 844. 121 ; 32 L. J. Ex. 217. 

(tt) Wood T. Lake^ Sayer, 3; 13 (x) WhaUy v. Laitig, Zaimff ▼. 

M. & W. 848 (a) ; Webb v. Faler- Whaley, 6 H. & N. 676 ; 27 JL. J, 

no9Ur, Foph. 161. Ex. 422. 



CHAP. I. EASEMENTS. 



195 



of permission to construct a jetty upon the foreshore and 
bed of the river, which were vested in the conservators, 
was held to confer a licence only, and therefore not to 
require a stamp as a conveyance or instrument whereby 
any property is transferred or vested (y). But actual occu- 
pation imder such licence may be rateable property («). 

A licence to use land for any purpose may be given Revocation of 
without deed or writing ; but however given, whether by ^~^- 
deed, writing, or by parol, it is essentially revocable. " A 
licence under seal, provided it be a mere licence, is as re- 
Yocable as a licence by parol" (a). An express contract 
for the enjoyment of the licence would not preclude the 
Ucensor from revoking it in fact ; subject to liabiKty for 
the breach of contract, and for loss occasioned by the revo- 
cation {b). Accordingly it was held that an ordinary ticket 
of admission to a stand and inclosure upon a race course, 
though sold for money, gave the buyer only a licence, wljich 
the proprietor could revoke at any time at his mere will and 
pleasure, thereby putting the licensee in the position of a 
trespasser it he refused to quit, and, so far as concerned the 
revocation, without the condition of returning the money ; 
and that the right of entering and remaining upon the stand 
and indosure for a certain time could not be effectually 
granted otherwise than by a deed (c), — A licence to build 
upon land is revocable at any time, even after it has been 
acted upon by building; but the circumstances may be 
such as to give an equitable right to restrain the revoca- 
tion, or to claim some equitable relief for the expense 
incurred (d) ; and the materials may remain the property of 



(y) Thamei Comervaney v. Inland 
Revenue, L. B. 18 Q. B. D. 279 ; 
66 L. J. Q. B. 181. 

(«) Cory V. SristaWj L. R. 2 App. 
Ca. 262 ; 46 L. J. M. 273 ; Tayhr 
T. FendUtMy L. R. 19 Q. B. D. 
288 ; 56 L. J. M. 146. 

(a) Wood Y. ZeadbitUr, 13 M. & 
W. 846. 

{b) Wood T. Leadbitter, supra; 
TtpUn T. Florence, 10 G. B. 744 ; 



20 L. J. C. P. 137 ; Stnart v. Jones, 
16 C. B. N. S. 717 ; 33 L. J. C. P. 
164. 

{e) Wood T. Leadbitter, 13 M. & 
"W. 838, ovemiling TaylerY, Waters, 

7 Taunt. 374 ; see Butler t. Jfan- 
chester and Lincolnshire My,, L. R. 

21 Q. B. D. 207. 

(rf) Tke King v. Homdon on Sill, 
4 M. & 8. 662 ; Ferry v. Fitzhowe, 

8 Q. B. 767. 



o2 



196 



U8BS AND PROFITS IN LAND OF ANOTHER. 



Kotioe of 
revooatioiL 



lioenoe not 
aaaigiiable. 



the builder, notwithstanding the revocation {d). If build- 
ings be erected or expense incurred by a person upon the 
land of another under an expectation raised by the owner 
of the land of obtaining a certain estate or interest, a Court 
of equity will compel the owner to give elEeot to such ex- 
pectation (e), — ^Upon the same principle a licence to have 
or use a drain or watercourse through the land of another, 
unless made appurtenant to land under a grant by deed, is 
revocable (/) ; but if the licensee have incurred expense in 
constructing the watercourse under an expectation of the 
licensor granting a permanent title, the latter will be re- 
strained in equity from interfering with it (g). 

The revocation of a Kcenoe does not operate to put the 
licensee in the position of a trespasser, imtil he has received 
notice of the revocation (A). And " the licensee has a right 
to a reasonable time to go off the land after the licence has 
been withdrawn before he can be forcibly thrust off it ; and 
he could bring an action if he were thrust off before such 
a reasonable time had elapsed " (i). So in the case of a 
licence to deposit goods upon land of the licensor, the 
licensee is entitled to a reasonable time after notice of 
revocation of the hcence to remove the goods (A*). The 
licensee is, in this respect, in a position analogous to that 
of a tenant at will, who, upon a determination of the will 
by the landlord, becomes entitled to have a reasonable time 
for the removal of himself and his goods (/). 

A licence not conveying any estate or interest is personal 
to the licensee, and is not assignable to another ; thus the 



{d) Sarriton y. Parker, 6 Eaat, 
162. 

(f) East India Co, t. Vincent, 2 
AXk, 83 ; Bameden v. Dyson, L. B. 
1 H. L. 129 ; Flimmer y. Mayor of 
WeUington, 63 L. J. P. G. 105; 
L. R. 9 Ap. Ca. 699; Price y. 
Neault, L. R. 12 Ap. Ca. 110; 
McManus y. Cooke, L. R. 35 G. D. 
681 ; bQ L. J. C. 662. 

(/) Fentiman y. Smith, 4 East, 
107 ; Hewline y. Shippam, 5 B. & 
0. 221 ; Cocker y. Cowper, 1 G. M. 



& R. 418. 

{g) Devonshire Y, Blffhin,lA. 
530; 20 L.J. G. 495. 

(h) Doe Y. JFtUon, 11 East, 56. 

(•) WiUes, J., Cornish y. StuMs^ 
L. R. 5 G. P. 339, caisng Rolfe, B., 
Wood Y. Leadbitter, 13 M. ft W. 838. 

{k) Cornish y. Stubhs, L. R. 5 C. 
P. 334 ; 39 L. J. O. P. 202 ; MeUor 
Y. Watkins, L. R. 9 Q. B. 400. 

(/) Go. lit. 8. 69; Cornish r. 
Stubbs, supra; Doe y. M^Kaeg, 10 
B. ft G. 721. 



CHAP. I. EASEMENTS. 11^7 

grant of a way in gross, not appurtenant to any land, is 
a personal licence to the grantee only, and cannot be 
assigned (w). A mere licence of pleasure, ss to walk in 
a park or garden, or to fish, hunt, or shoot, without taking 
any profit or property in the fish or animals killed, extenda 
only to the person of the licensee ; it cannot be exercised 
with servants or others by the authority or assignment of 
the licensee (n). But a licence to enter and take a profit, 
as a licence to take minerals, or a licence to kill and take 
game, is in general assignable, as granting a profit d 
prendre (o). — A licence is also personal as regards the 
licensor ; so that if the land be assigned to another, whe- 
ther by his act or by act of law, the licence is determined 
at once and without notice to the licensee (jo). Thus a 
parol licence to bmld on land, though executed, was held 
to be inoperative against a subsequent owner of the land 
in whom the estate of the licensor became vested; who 
therefore became entitled to pull down the house {q). So, 
a parol Hcence to an outgoing tenant to keep his fixtures 
on the land after the expiration of his lease, was held to 
be revoked by a new lease given to the incoming tenant ; 
such an interest in the land as would avail against the 
latter could only be granted by deed (r). 

A licence coupled with a valid grant of property can- Licence 
not be revoked so as to defeat the grant. '' A licence to a grtmt. 
person to hunt in a man's park and carry away the deer 
killed to his own use ; to cut down a tree in a man's 
ground and to carry it away to his own use ; are licences as 
to the acts of hunting and cutting down the tree ; but as to 
the carrying away the deer killed and tree cut down they are 
grants." If the grant be good, the licence to enter upon the 

(m) Per eur. Aekroyd t. Smithy 10 330. 
C. B. 188. (p) WaUit v. Harrison, 4 M. & 

{n) Per eur. Wickham ▼. Hawker, W. 638. 
7 M. & W. 77, citing Duchess of {q) Perry v. Fitzhowe, 8 Q. B. - 



Norfolk V. Wiseman, Manwood b 757. 
[>rQ8t Law, p. 286, 3rd ed. (r 

(o) AnU,]^, 63. &eepo8t, pp. 329, 674 ; 21 L. J. Q. B. 40. 



Forest Law, p. 286, 3rd ed. (r) Puffey y. Henderson, 17 Q. B. 



198 USES AND PROFITS IN LAND OF ANOTHER. 

land to take the subject of it is irrevocable by the grantoTy 
who can do nothing in derogation of his own grant («). 
Upon this principle if goods are sold, being upon the land 
of the seller, upon the express terms that the buyer may 
enter and take them away, the licence thus given for that 
purpose is irrevocable {i). But such a Kcence is not neces- 
sarily implied in law upon a sale of goods from the mere 
fact of the goods then being upon theland'of the seller («). 
An auctioneer employed to sell goods upon certain premises 
with licence to enter for that purpose has not such an 
interest in the goods sold as renders the licence irrevocable; 
though a revocation of the licence may be a breach of the 
contract implied in his employment (r). — "A licence by 
Licence with parol, coupled with a grant, is as irrevocable as a licence by 
paro gran . ^^^^ provided only that the grant is of a nature capable 
of being made by parol. But where there is a licence by 
parol, coupled with a parol grant, or pretended grant, of 
something which is incapable of being granted otherwise 
than by deed, there the licence is a mere licence ; it is not 
incident to a valid grant, and it is therefore revocable " (tr). 
Upon this principle a contract for the sale of an interest in 
land which fails to satisfy the requirements of the Statute 
of Frauds, though it may operate as a Ucence to the buyer 
to act under it until revoked, is revocable by the seller ; as 
a merely verbal sale of a growing crop of grass together 
with a licence to enter upon the land to take it (x) ; or an 
agreement for a right of shooting over land and taking 
away the game killed (y). 
Licence A licence coupled with a grant is assignable with the 

^?St^^ property or interest granted : thus a Kcence to enter upon 

Bsaignable. 

(*) Vaughan, C. J., Thonuu v. (v) Taplin v. Florence^ 10 C. B. 

SorreU, Vanghan, 361, adopted in 744 ; 20 L. J. C. P. 137. 

JFood V. Leadbitter, 13 M. & W. {w) Woody. ZeadbUter, 13 M. k 

844 ; and in Muskett y. EiH^ 5 W. 846. 

Biog. N. C. 707. (x) Croshy v. Wadtworth, 6 East, 

(0 Wood V. ManUy, 11 A. & E. 602; CarringUm v. SooU, 2 M. & 



34. W. 248. 

(tt) Williams t. Morns, 8 M. & (y) See WebierY, iieif, L. R. 9 

W. 488. B. X>. 316 ; 61 L. J. Q. B. 4S6. 



CHAP. I. EASEMENTS. 199 

land for the purpose of cutting and oarrying away wood 
sold, is assignable with the vested property in the wood (a). 
A licence to fish, hunt, or shoot and carry away the animals 
killed, being a profit & prendre, is assignable {a) ; and the 
person entitled to such profit may give licences to others 
to act under ii(b). A licence to search for and raise 
minerals and convert them to the licensee's own use passes 
an assignable interest {c). 

basements are restricted by law to certain kinds of use ; Eaaementa 
which must satisfy the "general conditions of being defi- ^^, 
nitely limited in their effect upon the servient tenement, 
and of being beneficial to the dominant tenement. "It 
is not in the power of a vendor to create any rights 
not connected with the use or enjoyment of the land and 
annex them to it : nor can the owner of land render it 
subject to a new species of burthen, so as to bind it in the 
hands of an assignee" id). An easement must be "a 
right of utility and benefit, and not one of mere recrea- 
tion and amusement; incident to and annexed to pro- 
perty for its more beneficial and profitable enjoyment, and 
not for mere pleasure" {e), — The easements generally Speoiflo ease- 
recognised by law may be referred to various specific kinds, °'^^- 
which are hereafter treated separately in detail ; namely, 
ways, light, air, water, support, fences. 

Claims to easements, not distinctly referable to any of Particular 
the above kinds, also occur, and have become the subjects 
of judicial decision, as in the following cases ; which, it 
may be observed, consist mostly of claims to place goods 
upon land of another for various purposes. A claim to 
use an adjacent wall for nailing trees was held to be a 
claim to an easement, which required to be specially 

(«) ralmer't ease, 6 Co. 24 b; {c) Mutkettr,mil, 6'Bmg,'N.0. 

basset Y. Maynardj Gro. Eliz. 819. 694. 

{a) Wickham v. Hawker^ 7 M. & (d) Ptr eur, Achroyd v. Smith, 10 

W. 63. 0. B. 188, ante, pp. 186, 190. 

(b) Jones v. WUliame, 46 L. J. (e) Per cur.' Mounaey ▼. Itmay, % 

K. 270. H. & 0. 486 ; 34 L. J. Ex. 66. 



200 USES AND PBOFITS 1> LAND OF ANOTHER. 

jdeaded in an action of trespass (/). A claim incident to 
a fishery of drawing fishing nets to land npon the banks 
of a piiYate riy^, was held to be an easement which was 
established by the usage (^). A claim alleged generally 
to use an adjoining close for hanging and drying linen, 
was held not to be supported by proof that the occupiers 
of the dominant tenement had done so for the use of their 
families only (A). A claim by the owner of a dock for the 
vessels using the dock to extend their bowsprits over the 
adjoining wharf of another owner, was treated as a legal 
easement which might be acquired by grant or prescrip- 
tion (t). A claim by the owner of a wharf adjoining a 
public navigable river to fix piles in the bed of the river 
for the purpose of mooring and imlading vessels at the 
wharf, was held to be so far of the nature of an easement 
that the piles though fixed to the bed of the river re- 
maiaed his property (J), So there may be an easement 
of placing a fender on the bank of a stream for keeping 
up the water of a mill (k). An easement may be main- 
tained of erecting a sign-post upon adjacent land for the 
use of a public-house (/) ; or of attaching a sign-board to 
the wall of another house (»j). A facia formed of cement 
attached to a house, and used for exhibiting the name of 
the occupier and the number in the street of a neighbour- 
ing house, was held to pass by a lease of the latter as con- 
stituting part of the house, and not as a mere easement or 
use of the house to which it was attached (n). — ^An ease- 
ment may be appurtenant to a messuage for the occupiers 
to use a particular pew or seat in the parish church for 
attending divine service ; and the titie to such easement may 

(/) SawIsiruT. Wallit, 2 Wila. river, see Cory v. BrUtow, L. B, 

173. 1 0. P. D. 64 ; 46 L. J. M. 146. 

(ff) Gray v. Bond, 2 B. & B. 667. (k) JFoodY. Eexcett, 8 Q. B. 913. 

(A) Drewell v. TvUfler, 3 B. & (/) Soare v. Meirop, Boards L. B. 



ki: 



Ad. 736. 9 Q. B. 296 ; 43 L. J. M. 66. 

(•) Sujpeld V. Bratcn, 33 L. J. C. (m) Moody ▼. Steygles, L. B. 12 

249. C. D. 261 ; 48 L. J. C. 639. 

(J) Laneoiter v. Eve, 5 O. B. (») Frond* v. Sayicard^ L. B. 

N. S. 717. Ab to mooringB in a 22 Cf. D. 177 ; 62 L. J. 0. 291. 



CHAP. I. EASEMENTS. 



201 



be f oimded upon a faculty granted by the Ordinary, or 
upon prescription which implies such a faculty. But " it 
is only on account of the pew being annexed to a house 
that the temporal Courts can take cognizance of it" {o). 
Such an easement being the result of a faculty and not 
the subject of a grant is not within the Prescription 
Act (p). The Court will issue a prohibition to restrain an 
Ecclesiastical Court from trying a claim by prescription to 
a pew in a parish church (g). Every inhabitant of a 
parish haB the right of entering the pariah church for the 
purpose of attending divine service ; and though it may 
be the office of the churchwarden to distribute seats, he 
has no right to prevent an inhabitant from entering upon 
the ground that he cannot be conveniently accommo- 
dated (r). 

The following claims have been disallowed as easements Claims not 
upon general principles: A claim to free and uninter- ^^^** 
rupted access of air and wind from the adj acent land for 
the use of a windmill ; because too vague, undefined, and 
extensive to be recognised in law («). A daim to unin- 
terrupted access of air to and from the adjacent land for 
the service of the chimneys of a house ; " the right is not 
one the law allows, being too vague and imcertain ; one 
the acquisition of which the adjoining owner could not 
defend himself against" (f). Upon the same principle a 
claim to uninterrupted access of light cannot be supported 
as an easement to open ground; the right can only be 
claimed as appurtenant to houses and buildings (w). The 



(o) Mainwaring y. Giles, 6 B. & 
Aid. 356 ; Byerify v. JFindus, 5 B. 
& 0. 1 ; Brumfitt v. BoberU, L. R. 
6 0. P. 232 ; 39 L. J. C. P. 96 ; 
Criap y. Martin, L. R. 2 P. D. 15. 

Ip) Haliday ▼. FhiUipa, * •Times," 
25 Jime, 1888, Day, J. 

{q) Be Bateman, L. R. 9 Eq. 660 ; 
39 L- J. C. 383 ; Byerleyy. Windus, 
aupra. 

(r) Taylor v. Timton, L. R. 20 
Q. B. D. 671 ; 67 L. J. Q. B. 216. 
As to the Tise of the parish church 



and churchyard for burying the 
dead, see Fryar v. JohmoUy 2 Wils. 
28 ; Bryan v. Whisiler, 8 B. & 0. 
288. 

(i) Webb V. Bird, 10 C. B. N. S. 
268; 13 ib, 841; 31 L. J. 0. P. 
335 ; L. Blackburn, Daltoti v. An^ 
gusy L. R. 6 Ap..Ca. 824. 

(0 Bryant v. Lefever, L. R. 4 C. 
P.D. 172; 48 L.J. C. P. 380. 

(«) Roberts v. Macord, 1 M. & 
Rob. 230 ; Botts y. Smith, L. R. 6 
Eq. 311; 38 L. J. G. 68. 



202 USES AND PROFITS IN LAND OF ANOTHER. 

claim to an imiiitemipted prospect over land cannot be 
maintained as an easement. " For prospect, whicli is a 
matter only of delight, and not of necessity, no action lies 
for stopping thereof ; " and " it has been held expedient 
that the right of prospect, which would impose a burden 
on a very large and indefinite area, should not be allowed, 
except by actual agreement " (^). Also a claim cannot 
be supported, as an easement for a house or shop, to 
be iminterruptedly open to view from a distance, though 
such view may be valuable ; as in the case of trade pre- 
mises, that they should be conspicuous to the public (y). 
Nor can a person claim an easement to prevent the ad- 
jacent owner opening windows to overlook his land. " The 
Court will not interfere on the mere ground of invasion of 
privacy; a party has a right to open new windows, al- 
though he is thereby enabled to overlook his neighbour's 
premises, and so interfere with his comfort." A person 
can protect the privacy of his land only by building upon 
Compenflation it to the exclusion of his neighbour's view (s). — Upon the 
privaCT^^.' principle that prospect, privacy, peace and quietness, free- 
dom from the noise and dust of public trafiBc, and other 
like amenities and advantages of situation are not proper 
subjects of legal rights, they are also not subjects of com- 
pensation, imder the Lands Clauses and Bailway Clauses 
Acts, to owners of lands that are " injuriously affected" 
by the execution of public works ; the phrase " injuriously 
affected" being construed to refer only to injuries in the 
strict legal sense, for which damages may be claimed (a). 
But in the case of any land or any easement appurtenant 
to land being taken, for which a claim for compensation 
arises, the amount may be assessed at the full depreciation 

{z) Aldred'a Caw, 9 Go. 58 a; E. 2 Gh. 168. 

L. Blackburn, Ariffua v. DaUofiy L. («) Kmdersley, V.-C, I^tmer t. 

R. C Ap. Ca. 824 ; see Byles, J., Spoomr, 1 Dr. & Sm. 467 ; 30 L.J. 

Webb V. Bird, 10 C. B. N. S. 276 ; C. 801 ; Be Penny and S. E. By., 

MeUish, L. J., Zeech v. ScJiweder, 7 E. & B. 660 ; 26 L. J. Q. B. 225. 

Ij. R. 9 Ch. 476 ; 43 L. J. C. 492. (a) Bieket v. Metrop, By., L. 

(y) Smith V. Owen, 35 L. J. C. R. 2 H. L. 176 ; 36 L. J. Q. B. 

317 ; Butt T. Imperial Gas Co,, L. 206. 



CHAP. I. EASEMENTS. 203 

of the rest of the land, including loss of prospect, or of 
privacy, or of other like advantages caused by the applica- 
tion of the property taken to the purposes intended {b). 

All such matters as above mentioned, though not proper CoYenants 
subjects of ea^ments, may be made the subjects of cove- ^^^5. 
nant, so as to give a right similar to an easement against 
the covenantor, so long as he continues the owner of the 
land affected ; for he is at liberty to bind himself by con- 
tract, as he thinks proper, in respect to the use or applica- 
tion of the land in his possession. Such covenants do not, 
in general, affect or charge the land permanently ; though, 
under certain circumstances, they might become binding 
in equity upon persons taking the land with notice of the 
obligations created by them (c). 



Section II. Specific Easements. 

J I. Ways.—} 2. Light.— § 8. Air.—} 4. Water.— § 6. Support.— 

{ 6. Fenoes. 

§ 1. Ways. 

Ways general and limited. 

Ownership of land subject to way. 

Umiiation of ways by g^ant — construction of grant as to purposes of 

way — as to mode of use. 
Ldmitation by prescription. 

Ways impliedly limited to service of dominant tenement. 
Direction and width of way — deviation. 
Construction of ways — repair of ways. 

A right of way over land of another may be a general Ways 
right of passage for all purposes connected with the domi- §^^ *^^ 
nant tenement ; or it may be a limited right of passage for 
certain purposes only, as for agricultm*e, mining, the 

(b) JBueeleueh v. 2fetrop. Board, (0) Mellish, L.J., Z«a;Av. i&Au'tf- 

L. B. 5 H. L. 418 ; 41 L. J. Ex. dor, L. R. 9 Oh. 476 ; 43 L. J. 0. 
137. 492 ; Leake on Contracts, Part VI. 

c. 2. See antej p. 187. 



201 USES AND PROFITS IN LAND OF ANOTHER. 

carriage of minerals, the carting of timber, the fetching of 
water, attending market or church. The right may also 
be general or limited in respect to the manner of use ; as a 
carriage way, a bridle way, a foot way, or a way for cattle. 
A claim of way must be alleged in pleadings and legal 
proceedings according to its limitation, and it must be 
proved according to the allegation. A claim alleged too 
largely may fail from defect or variance in the proof (a) ; 
but it is immaterial that the proof exceeds the allega- 
tion, if it sufficiently includes it (b). 

Ownership of The owner of the servient tenement retains the property 
in the land subject to the right of way, and may exercise 
all rights of property which do not interfere with the 
reasonable use of the way {c). The use of an unlimited 
way is in itself an act of ownership, and iaprimd facie evi- 
dence of entire ownership of the land in the absence of 
evidence or presumption to the contrary ; so where a road 
divided two properties which was used equally by the 
owners of both, it was held that, in the absence of other 
evidence of ownership, half the road along its length 
belonged to each owner, with an appurtenant right of way 
over the other half. It seems that such a way would 
presumptively be available for all purposes and modes of 
use, because each owner is entitied so to use it upon his 
own half (cf). 

Limitationfl -A- way is limited and defined, according to the nature of 

of way. ^Q i[^\q "by grant or prescription, either by the express 

terms of the grant, or by the actual use upon which the 

prescriptive tiile is founded. " In proving a right by pre- 

(a) Ballard T. Dyton, 1 Taunt. 20 L. J. Q. B. 330. 

279 ; Higham v. Rabett, 6 Bing. (<?) Clifford v. Howre, L. R. 9 C. 

N. C. 622 ; Dreicell ▼. Towler, 3 P. 362 ; 43 L. J. C. P. 226. 

B. & Ad. 735 ; Brunton v. Hall^ 1 {d) Holmes ▼. BeUingham^ 7 C. 

Q. B. 792. B. N. S. 336; 29 L. J. 0. P. 184 ; 

(b) Duncan t. Louche 6 Q. B. 914 ; Mellish, L. J., Bradbum t. Morrii, 
Daviea v. Williams, 16 Q. B. 546; L. R. 3 0. D. 823. 



CHAP. I. EASEMENTS. 205 

ficription the user of the right is the only evidence. In 
a grant Hie hmguage of the instrument can be referred to, 
and it is for the Court to construe that language " (c). A 
claimant is required to allege in pleadings whether he 
claims by grant or by prescription (/). 

A grant of a way in general terms is construed with Liinitation 
reference to the circumstances of the dominant tenement, ^ S^nt. 
as being open land, or land covered with houses and build- 
ings ; also with reference to the nature of the servient way, 
as being constructed or adapted for foot passengers only, 
or for horses and carriages and other kinds of traffic. The 
way may be defined and limited by such circumstances, 
subject to the express terms of the grant admitting of the 
construction {g). A way set out for allotments imder an 
Inclosure Act as "a private carriage road and driftway 
for the use of the owners and occupiers," was construed to 
be a general way for all purposes, in respect of the un- 
limited ownership of the allottees {h). The level crossings 
on a railway, required by statute, are not restricted to the 
purposes of the adjoining land in its then state and condi- 
tion ; but may be used for every purpose to which at any 
future time the owner of the land may think fit to appro- 
priate it, subject only to the regulations of the railway 
traffic (i). Land compulsorily taken by a local board was 
held to carry with it a way of necessity over land of the 
grantor, for all purposes for which the board was consti- 
tuted (J). The grant of a way expressed to be " to a loft, 
and the space or opening imder the loft then used as a 
wood-house," was construed as giving a way only for pur- 

{e) Willes, J., Williama v. Jamei, R. 8 C. B. 420 ; 47 L. J. C. 699. 
L. B. 2 O. P. 677 ; 36 L. J. O. P. (A) Finch v. Great JFettem J?y., 

266 ; Melliah, L. J., United Zand L. R. 6 Ex. B. 264 ; Netpcomen t. 

Co, T. Oreat Eaetem By., L. R. 10 Couhim^ L. R. 6 G. B. 133: 46 

Gh. 690; 44 L. J. C. 688. L. J. G. 469. 

(f) Harris ▼. Jenkins, L. R. 22 (t) United Land Co. r. Great 



C. B. 481 ; 62 L. J. G. 437. Eastern J?y., supra, 

{g) HeUiah, L. J., United Land {J 

Co. T. Oreat Eastern By., supra; L. I 

Jesselylf. R., Cannon y. ViUars,Iu. 669. 



(^) Helliah, L. J., United Land (/| SerJ^ v, Aeton Local Board, 

Co, V. Oreat Eastern By., supra; L. R. 31 0. B. 679 ; 66 L. J. 0. 



2i:6 



r^^» A5D FBovm or lasd of axotther. 



Modeotf 



p'v*4es oocirarihle witK the space remoming open ; so that 
tlie s{Mi£e having airerwaidi beoi bailt OTer and oonverted 
izLto a d^ellin^'hiXLie^ it could no longer be oonsidered 
open for tne pnrpoee of the grant, and gare no right of 
way for the dwellin^-hoase i- . ** In the ahsoioe of any 
clear intention of the parties the maTrm that a grant must 
he coiL^traed m*>st strongly against the grantor must he 
applied f and a g*?^neral giant of way woold be constmed 
as a grant for all purposes connected with the dominant 
tenement / . — As regards the mode of nse, a way " on 
foot and for horaesy cattle and sheep/' was held not to 
include the right of "leading" manure, that is, of drawing 
it on wheels 'm;. A right of way granted to the lessee of 
a dock oyer a passage at the side of the dock ^^for him and 
his workmen and all persons by his anthority or permis- 
sion" was constmed as limited to foot passengers only, 
excluding carriages and horses (n). A grant of the right 
of making a railway for the carriage of coals and minerals 
was construed as not admitting the use of the railway for 
carrying passengers (o). A right of way may be granted 
for the limited purpose of building upon adjoining pre- 
mises and during the continuance of the building only (j?). 



LimiUiion of 
pTOMcripiioo. 



In a preseriptiye right of way, which implies an original 
grant, the limitation of the way is inferred from the eyi- 
dence of the use ; for it is presumed that the use has been 
according to the grant (^). " If a way has been used for 
several purposes, it may be ground for inferring that there 
is a right of way for all purposes; but if the evidence 
shows a user for one purpose or for particular purposes 
only, an inference of a general right would hardly be pre- 



(Ar) Allan t. Oomme^ 11 A. & £. 
760 ; ¥\ncK V. Ortai Wuiem £y,, 
L. K. A Kz. D. 269. 

(0 Willes, J., William* t. /aitiM, 
L. R. 2 0. P. 681 ; 86 L. J. C. P. 
266. 

(m) Bmitm t. Sail, 1 Q. B. 792. 



(n) Oou^em v. Soae, L. B. 12 Eq. 
866. 

(o) Durham f StmdarUmd JEy. t. 
WaUt^, 2 Q. B. 940. 

(p) Ardley y. St. Faneras, 89 
L. J. C. 871. 

is) BaUard y. J)y$on, 1 Taunt. 
279. 



i 



CUAF. I. EASEMENTS. 207 

sumed " (r). Thus proof of the use of a way for carriages 
does not establish a claim to use the way for driying cattle ; 
** a carriage way will comprehend a horse way, hut not a 
drift way for cattle " («). A prescriptive use of a way for 
agricultural purposes does not include the right of oariying 
minerals from the dominant tenement (t). — ^Also a pre- 
scriptive way is pnnid facie limited to the requirements of 
the land when the use took place, and cannot be enlarged 
from time to time to the increase of the burthen upon the 
servient tenement. A right of way to a field would pre- 
sumptively only be appUcable to the land used as a field, 
and not extend to the use of a manufactory subsequently 
built upon the field (u). A right of way immemorially 
uaed for agricultural land and for agricultural buildings 
only, was held not to be applicable to carting materials for 
the conversion of the land into building land {v). An 
owner of agricultural land with an appurtenant way over 
adjacent land, having sold the land and reserved the 
minerals, waa held to retain no right of way for working 
the minerals (w). But a general right of way for all pur- 
poses may be inf errM from evidence of using the way for 
new purposes as often as occasion required (a?). 

A way, whether by grant or prescription, is impliedly Ways Umited 
limited to the service of the dominant tenement ; the dom^^t ° 
owner is not justified in using the way for other land after- tenement, 
wards purchased by him, or in making a colourable use of 
the way for the benefit of other land, so as to increase the 
easement 6ver the servient tenement. Whether a par- 
ticular act is a proper and reasonable use of the way within 
the right, or whether it is a merely colourable use of the 

(r) Abmg«r» C. B. Cawling y. (w) Willes, J. Williama v. James, 

Miffffinsan, 4 M. & W. 256 ; Mel- L. Ic. 2 G. P. 682 ; 36 L. J. G. P. 

lish, L. J., Wimbleihn Conaerv. y. 266. 

JHxon, L. B. 1 G. B. 371 ; 46 L. J. (r) Wimbledon Conserv. v. Dixon, 

0. 353. L. B. 1 G. B. 362 ; 46 L. J. G. 363. 

(f) Ballard v. Dyton, 1 Taunt. (to) Bradbum y. Morris, L. B. 3 

279. G. D. 812. 

{t) Cowling y. Higginson, 4 M. & (x) Dare y. M&atheote, 25 L. J. 

W. 246 ; Bradbum y. Morris, L. B. Ex. 246. 
3 G. D. 812. 



208 



USES AND PROFITS IN LAND OF ANOTHER. 



way for purposes in excess of the right, is a question of 
fact depending on the circumstances (y). Accordingly a 
way leave for the carriage of coals from certain land cannot 
he used for carrying coals from other land acquired under 
a different title, though part of the same coal field (s). A 
grant of a way for lessees to carry " the produce of mines 
demised or any other mines," was held to extiend to all 
other mines worked hy the same lessees (a). — ^Upon this 
principle a right of way hy a certain road to premises 
situated at the end of the road does not justify the use of 
the road for access to other premises at intermediate points 
of the road {b) ; and it is said, " A puhlic road differs from 
a private road in this ; you may make an opening in your 
fence and go into it in any part of the length of the puhlio 
road or at the end" (c). The landlord or reversioner of 
the dominant tenement, as well as the occupier, may use an 
appurtenant way for the purposes of his interest ; " he may 
use the way to view waste, or demand rent, or to remove 
an obstruction " (d), 

Bireotion and The claimant of a right of way is required to allege and 
^ o ^^7' prove with reasonable certainty the termini of the way 
and the intermediate course which it takes, so far as neces- 
sary to maintain the right {e). The way may be expressly 
defined in direction and width by the grantor. " If the 
owner of the servient tenement does not point out the line 
of way, then the grantee must take the nearest way he can. 
If the owner of the servient tenement wishes to confine 
him to a particular track, he must set out a reasonable 



(y) Howell Y. King, 1 Mod. 190 ; 
Lawton v. JFard, 1 Ld. Baym. 76 ; 
Skull y. Gleniater, 16 C. B. N. S. 
81 ; 33 L. J. C. P. 185 ; JTtlliams 
V. Jaftwsy L. R. 2 0. P. 677 ; 36 
L. J. 0. P. 256 ; Finch v. Great 
Weitei-n Ry., L. R. 6 Ex. D. 264. 

(z) Band v. Kingseote, 6 3C. & W. 
174 ; Durham ^ Sunderland Hy. v. 
Walker, 2 Q. B. 940. 

(a) Bidder v. North Stafordihirs 



Sy., L. B. 4 Q. B. D. 412. 

{b) Senhouse y. Christian, I T. B. 
660 ; Henning v. Burnet, 8 Ex. 187 ; 
22 L. J. Ex. 79 ; see South Metrop, 
CemeUry Co, v. Eden, 16 C. B. 42. 

{c) Ghambre, J. WoodyerY, Had" 
den, 6 Taunt. 132. 

id) Proud V. KoUie, 1 B. & C. 8. 

(e) Harris v. Jenkins, L. B. 22 O. 
D. 481 ; 62 L. J. C. 437 ; Bouse v. 
Bardin, I H. Bl. 362. 



CHAP. I. EASEMENTS. 209 

•way and then the person is not entitled to go out of the 
vay " (/). A grant of way without precisely defining the 
space entitles the grantee to such a roadway as is convenient 
for the nature and circumstances of the traffic; and he 
jcannot complain of any obstruction that leaves him such a 
convenient way {g). Where the grant was of " a road of 
a width of not less than forty feet throughout its entire 
length," and it appeared that a portico was erected over the 
footway with the bases of the columns standing upon the 
carriage-way; it was held that the obstruction did not 
interfere with a reasonable vise of the way and that it was 
not sufficiently material to give a cause of action (h). The 
grant of a right of way over roads made through an estate 
'' in the same manner and as fully as if the same were 
pubUc roads" was held to give the right of way, as on a 
public road, over the whole width laid out, and not only 
over the metalled part (i). A way may be granted over 
every part of the servient tenement, without limitation of 
direction ; as in a close or garden appropriated to the use 
of the owners of adjacent houses (J), 

The grantee of a way is not justified in deviating from Deviation 
the defined way and taking another way over the servient ^ ^^^' 
•tenement, merely by reason of the way being impassable 
for want of repair {k) ; nor, if it becomes impassable by 
accident, as by the overflowing of a river ; in such ca^ 
the repair or loss of the way falls upon the dominant 
owner (/). But "if the grantor of a private way places 
across the way an obstruction not allowing of easy removal, 
the grantee may go round to connect the two parts of his 
way on each side of the obstacle over the grantor's land 



(/) MeUinh, L. J., Wimbledon (t) Nieoly.Beaumont.bZ'L.J.O, 

Conserv. r. JHxoHf L. R. 1 C. D. 853. 

370 ; 45 L. J. G. 357. U) I>uneanY,Louch, 6 Q. B. 904. 

ij) Harding y. WiUon, 2 B. & 0. [k) Btdlard r. Sarrison, 4 K. & 

96. S. 387. 

(A) Clif<MrdY.mare,Jj,'R.9C.'P. (I) Taylor Y.lFhiteheai^ 2 Dougl. 

362 ; 43 L. J. 0. P. 226. 745. 

L. P 



21.J zjfSB JkSD Twamrs i3f zLtsD 



irrlii iir TP:fFr.*tai9 "* n . Ami jh wxsbbs diis rigiit of devia- 
ii a *i lia^ Is the lOacrxiTtiiTiL ■ "— j"***^ and without 
iJOMiu'w nuiz 'iie Ti^g^^T rrgnr <i£ wslt a . So if the way 
oe Mrr.ir^ icbsr-u-^aEL ly- die gcBitiir* die gnntee maj 
i^^jarit iiL jQ lOHT ;»z^ •!£ die pKcsniaes in the Tea- 
jniuule gT^rifae if his rignt: smi what is leasonalilj 
iu^f?^iS!>ary 2i:r die pixrp«:6e •iepauis in fKt npon the 

A rEt^tit :t way ?mpjl5 in 2<9iaal the aeceaaonr right of 
THAlr^.y anji n]a77:7:.ifnfT:.g a irsad solndcnt to reader the 
rL£iz •iif ^:Trr-^ Tlias. a escrxage waj inqraits the right to 
TLAk-^ a r:ad smEcuait to bear the ocdinaiy traffic of a 
exrrjk-z^ y . Tlie znat of a right of way for the ooca- 
firfn of a hj:rL3e was held to grre the right of hiving down 
iUg *t..trs TmZ*:tl the f'»t way in front of the door (q), — ^A 
grant of way for the express purpose of carrying coals was 
h-^l'i to give the ri^t of laying down a framed waggon 
way, which was ne«:es6ary for carrying coak according to 
the xuiusil praijtice of the neighbourhood (r) ; and nnder 
such grant a railroad of an improTcd description coming 
into nse since the date of the grant may he laid down («). 
}3ut a grant of '^ a right of way as and for a waggon or 
cart road," for ordinary sarface parposes, and not for the 
working of minerals, does not give the right of laying 
down a railway or tramway (t). 
lUrimir (A A right of way also imports the right of entering npon 

'''^'' the servient tenement for the pnipose of repairing the load 

(m) fielby v. Ketlkfold, L. R. 9 (q) Gerrard v. Coo**, 2 B. ib P. 

C'h. 11 1 ; 43 L. J. C. 369 ; RoberUon N. K. 109. 

Y. GanlUit, 16 M. & W. 289. (r) Senhouse v. Chrutian, 1 T. B. 

(n) Jlngnolds v. Edwards^ Willes, 560. See Ab$on v. FenUm, 1 B. & 

282 ; Novell y. Smith, 3 0. B. N. S. C. 196. 

120 ; Dawct v. Hawkins, 8 C. B. («) Bandy. Kinaseote, 6 M. & W. 

N. H. H48. 174. 

(o) Uawkim y. Carbines, 27 L. J. (t) Bidder y. Xorth Siafordtkirt 

Kx. 44. By., L. R. 4 Q. B. D. 412; 



ip) Neweomen v. Coulson, L. R. Ardley v. St. Faneras, 39 L. J. C. 

0. D. - - - ^ -- 



143 ; 46 L. J. C. 469. 871. 



CHAF. I. EASBMEKTS. 211 

iKrhen neoessaiy ; but it implies no condition or obligation 
to repair, further than that if the owner of the dominant 
tenement wants to have the way repaired, he must repair 
it himself (u). Nor is there any implied obligation upon 
the grantor of a way to repair it. ^^ As a general rale 
easements impose no personal obligation upon the owner 
of the servient tenement to do anything, the burden of 
repair falls upon the owner of the dominant tenement." 
The servient owner can be charged with repairs only by 
express covenant or agreement, or by some prescriptive 
duty incident to the possession of his tenement (r). A 
way may be expressly granted with the condition of keep- 
ing it in repair, or of contributing to the expenses of re- 
pairing it, whenever necessary ; which would constitute a 
condition subsequent creating an independent daim, but 
not affecting the right to use the way. A grant of a way 
on payment of a fixed sum would constitute the payment 
a condition precedent to the right {w). 



§ 2. — ^Lights. 

Easement of light azismg by presoription — hj grant — is acquired onlj 
for houses and buildings. 

Limits of easement — obstruction — building to angle of foriy-fiye de- 
grees — town and country building^. 

Use of light in dominant tenement — ^unoccupied tenement — oonyerslon 
of tenement to new use. 

Alteration of ancient lights — enlarging ancient lights — additional light 
from different direction. 

The owner of a house or building may make windows Easement of 
or defined openings for the a^se of light from the adja- ^Jtion. 
cent land of another, as an ordinary incident of his owner- 
ship ; and if the light be not obstructed he will acquire by 
lapse of time the prescriptive easement of having the light 

(«) 1 Wms. Saund. 322 <?, F&tufret Grant, 51 L. J. Q. B. 369; Sider 

T. Ryeroft; Coleridge, J., Duncan v. Smith, 3T. B. 766 ; pott, p. 280. 
T. Ltmek, 6 Q. B. 909 ; pott, p. 280. (w) Duncan y. Loueh, 6 Q. B. 

(r) Stockport Eighway Board y. 912. 

p3 



212 



USES AND PROFITS IN LAND OF ANOTHER. 



By grant. 



Easement of 
light is ac- 
quired for 
bnildings 
only. 



oo}itinue to pass from the adjacent land without obstmc- 
tion. The only power the owner of the adjacent land has 
of preventing the acquisition of such easement is by build- 
ing upon his own land in a manner to obstruct the light; 
and this he is entitled to do in his ordinary right as owner 
to build where and when he pleases, until the adverse right 
is acquired (a). It is immaterial that he builds, "not to 
do himself good, but in spite, for the very purpose of 
darkening his neighbour's windows ; as the civilians say, 
in emuMionem vicini " (6) . A railway company, holding land 
exclusively for the purposes of their railway, has the same 
right to build an obstruction merely for the purpose of 
preventing an easement over their land (c). 

The easement of light may also be created and limited 
by express grant (ef). And under certain circumstances 
the easement may arise as an implied incident in a grant 
of the dominant tenement. Where the owner of two tene- 
ments disposes of one of them, which is so situated as to 
require for its continued enjoyment as it stands an un- 
interrupted access of light from the other, such easement is 
implied to the extent to which it exists in fact at the time 
of the disposition, though no express grant be made of it 
in the conveyance of the tenement {e). 

The easement of light can be acquired only as appur- 
tenant to a house or building; it cannot be claimed in 
respect of open land, so as to prevent the owner of the 
adjacent land from building upon it (/). The easement \a 
described in the Prescription Act as, " the access and use 
of light to and for any dwelling house, workshop, or other 



(a) Tapling v. JoneB^ II H. L. 
C. 290 ; 34 L. J. C. P. 342 ; post, 
p. 216. 

(b) Lord Blackbnm, RmhU v. 
Watts, L. B. 10 Ap. Ca. 610. 

(f) Bonner v. Great Western Ry., 
L. K. 24 C. D. 1. 

{d) Selborne, L. C, Dalton y. 
Angus, L. R. 6 Ap. Ga. 794 ; Lord 
Blackburn, ib, 823, dissenting from 
the opinion of LitUedale, J., Jfoors 



y. Itawson, 3 B. & G. 340, that the 
right to light was the sabject^ not 
of grant, but of coyenant. 

[e) Leeeh y. Sehweder, L. R. 9 
Gh. 463 ; 43 L. J. G. 487 ; BusmU 
y. Watts, L. R. 10 Ap. Ga. 690 ; 
86 L. J. G. 158 ; post,y. 270. 

(/) Ibtts y. Smith, L. R. 6 Eq. 
318 ; 38 L. J. G. 68 ; £oberU y. 
Macord, 1 M. & Rob. 230. 



CHAP. I. EASEMENTS. 213 

building, actually enjoyed therewith " (^). A building 
roofed in but with open sides is not within this description. 
The easement must be claimed for some certain defined 
opening ; and not for the building generally, to be used 
sometimes through one opening and sometimes through 
another at the pleasure of the owner. Accordingly an 
erection of stages for storing and selling timber, roofed in 
but with open sides, except when more or less filled up 
with the timber, was held not to be a building for which 
the easement could be claimed under the Act (A). The 
position of the building relatively to the servient tenement, 
whether at the boundary or at some distance from it, is 
immaterial, except as affecting the degree of light and the 
limit of the easement (t). 



The limits of the easement in extension over the servient Limits of 
tenement is regulated by the magnitude and position of the ^^^^ ^^^ ' 



window or opening to which it is appurtenant. "The tenement, 
aperture which lets the light into the dominant tenement 
defines the area which must be kept free over the servient 
tenement" {j). The easement may extend over a servient 
tenement that is separated from the dominant tenement by 
a road or other space of land not belonging to the servient 
owner (k). — As to the degree of obstruction that becomes 
wrongful it is laid down, " that in order to give a right of 
action there must be a substantial deprivation of light suffi- 
cient to render the occupation of the house uncomfortable, 
or to prevent the occupier from carrying on his accustomed 
business on the premises as beneficially as he had formerly 
done. It is a question of fact and degree in each particular 

(ff) Post, p. 287. 432 ; National Frovinc, Am. v. iVw- 

(A) HarrU v. De Pinna, L. R. 33 dential Ast., L. R. 6 0. D. 767 ; 

C. D. 238 ; 66 L. J. C. 344. 46 L. J. C. 871. 

(t) Crou y. Lewis, 2 B. & C. 686. (k) Birmingham Banking Co, t. 

. U) ^f IJ- J-» Seott V. Pape, Boss, L. R. 38 C. D» 296 ; 67 L. J. 

li. R. 31 G. D. 654 ; 66 L. Ji 0. 0. 601. 



214 



USES AND FBOFITS IN LAND OF ANOTHER. 



Building to 
angle of 
forty-five 
degreea. 



Town and 

coimtry 

buildings. 



case." And the Prescription Act has made no alteration 
in this respect {k). " The Court will not interpose upon 
every degree of darkening ancient lights and windows^ 
There are many obvious cases of new buildings darkening 
those opposite to them, but not in such a degree that an in- 
junction could be maintained ; or an action upon the case ; 
which however might be maintained in many cases wUdi 
would not support an injunction " (/). — The Metropolitan 
Local Management Acts impose a statutory rule within the 
districts to which they apply, that the height of a building 
in any new street shall not exceed the width of the street^ 
which gives an angle of forty-five degrees from the top of 
the buildings on one side of the street to the level of the 
street on the opposite side as the limit of sufficient inddence 
of Ught. This rule is sometimes referred to by the Courts 
as a convenient test of an obstruction under similar circum- 
stances (m). But there is no general rule or presumption 
of law to the above effect applicable in all cases («). Nor 
does the statutory rule apply where the dominant tenement 
has previously acquired a greater degree of light (o). — 
There is no different rule of law, as regards the ease- 
ment and obstruction of light, for buildings in towns and 
buildings in the country; although the latter would in 
general acquire in fact a greater amount of light by reason 
of the scarcity of neighbouring buildings (p). 



{k) Brett, L. J., Ecelea. Com, y. 
Zino, L. R. 14 C. D. 224 ; 49 L. J. 
0. 629. P^r eur, Kelk v. Fear$on, 
L. R. 6 Ch. 811 ; London Brewery 
Co, y. Tennant, L. R. 9 Ch. 216 ; 
43 L. J. G. 457. 

(/) Eldon, L. C, AU.'Gen, v. 
Niehol, 16 Yes. 338, adopted bj 
Wood, V.-C, DentY. Auction Mart 
Co., L. R. 2 Eq. 246 ; 35 L. J. C. 
665 ; and Malins, V.-C, Lanfran' 
ehi y. Mackenzie, L. R. 4 Eq. 426 ; 
36 L. J. 0. 618. 

. (m) 25 & 26 Vict. c. 102, 8. 86 ; 
Beadcl v. IVrry, L. R. 3 £q. 466 ; 



Haskett v. J?ai#«, L. R. 20 Eq. 494 ; 
45 L. J. C. 13 ; Selbome, Ii. C, 
Lomhn Bretceruy. Tennanty L. iL, 
9 Ch. 220 ; 43 L. J. C. 467. 

(n) Parker y. First Avemu Moid 
Co,, L. R. 24 C. J>, 282 ; Bi«tt» 
L. J., Ecelea, Commiu, y. JHjm, 
L. R. 14 C. D. 223 ; 49 L. J. G. 
629. 

(o) Theed y. Deienham, Ii. R. 2 
C. D. 165. 

{p) Wood, V.-C, I>«nt y. Auction 
Mart, L. R. 2 Eq. 248 ; 35 L. J. C. 
662; ez^aining Clarke y. CUurk^ 
L. R. 1 Ch. 16; 36 L. J. C. 15L 



CHAP. I. EASEMENTS. 



215 



The easement is not limited by the quantity of light Use of light 
actually used, or by the purposes for which it is used. JSiotigS.*^* 
The use in fact made of the light from time to time is 
material only so far as it may serve as a practical test of 
the quantity of light enjoyed, and of any obstruction of it; 
as in the case of the studio of a sculptor or artist, or a 
sample room for goods (q). An action may be brought 
for an obstruction of light in respect of the possible future 
use of it, although sufficient light be left for the purpose 
for which it has hitherto been used ; and the damages are 
to be measured by the value of the light for any purpose 
for which the dominant tenement may reasonably be co^- 
sidered available, at the present time or in the future (r). 
If the light be obstructed so as to render the premises 
useless for the owner^s trade, it seems that he may recover 
damages for the expense of removal to other premises («)• 
— Upon this principle an easement of light may be Unoooupied 
acquired for a building without any actual use or occu- *®^*°^®°*' 
pation for any purpose ; as was held in the case of a house 
structurally complete, but internally incomplete and unfit 
for habitation, and which remained in that state and 
unoccupied during the whole period of time required to 
establish the easement (t). And the owner of a house is 
entitled to the full remedies for an obstruction of the light, 
whether in damages or by injunction, in respect of the 
injury to his property, though he does not occupy it or 
suffer personal discomfort or inconvenience (w). — ^Upon Convoraioii 
the same principle the conversion of a tenement from one ^ newuro. 



(g) Lanfranehi v. Mackenzie, L. R. 
4 Eq. 421 ; 36 L. J. C. 618 ; Yates 
V. Tasky L. R. 1 Ch. 298 ; 35 L. J. 
G. 539 ; I^Md y. Behenham, L. R. 
2 0. B. 165. 

(r) Ayneley v. Glover, L. R. 18 
Eq. 644 ; 44 L. J. G. 623 ; Moore v. 
MaU, L. R. 3 Q. B. D. 178; 47 
L. J. Q. B. 334. These cases snb- 
Btaiitiallj OTermle the ciuseB of 
Martin y. Ooble, 1 Camp. 322; 
Jaekaon y. NewcaetU, 3 B. J. & S. 



275 ; 33 L. J. C. 698, and Lan* 
franehi y. Mackenzie, L. R. 4 Eq. 
421 ; 36 L. J. 0. 618 ; which re- 
stricted the right of action to the 
light in fact iised. 

{») See The Queen y. Poulter, 56 
L. J. Q. B. 681 ; S. C, 20 L. R. Q. 
B. D. 132 ; 67 L. J. Q. B. 138. 

(0 Courtauld y. Zeffh, L. R. 4 
Ex. 126; 38 L. J. Ex. 46. 

(«) Wikon y. Tmcnend, 1 Dr. & 
Sm. 324 ; 30 L. J. C. 26. 



zl6 ras jkSD Twaras is lasj> of asothbb. 




aacaeniu^l 



jrzrz*:e^ t-: az.:cLsr. as a dvelfiiig-hoiise into a workshop 
cr xcT^rsrlj. i;«5 n-jt affect or qualify the easements of 
Z^t wii-.i. wrs^ ari'srtenant to the tenement before the 
fCT-^^E. ; ri^L: •:! aeces for Hght being independent of 
lii* inrrtnse t.:F wiiih the light is applied (r). So where a 
ri.ir.hwii poZ^ d>wn and the site sold for building a 
wikT^irife. the lights appurtenant to the ehnich were held 
M jast f :r tLe nse of the waidionse {tc). 

Tb» cwn^r of the dominant tenement may improve the 
lirht thr c^ an anoient opening, by clearing away 
i=.:iZi:c5 and transi^mes, removing casements, and any 
ctl-rT lie means without affecting the existing ease- 
ment r . He may alter the form of the opening or he 
TLAj m,Ae a new opening in a plane parallel to ihe 
an-.-ient crening, (^ at an indination to it; and he will 
r^tdiL. the original easement of light so far as it will serve 
the new opening y . The identity of the building that 
re^trires the light is immaterial, provided the light used in 
the new building is to a substantial extent the same as 
that U5«ed in the old (;). 

But if he enlarge the ancient openings or make a new 
opening* by which he might in time acquire an enlai^ed 
easement, the owner of the servient tenement may obstruct 
the light through the new or enlarged opening, so far as 
to prevent the acquisition of any additional easement, 
pit>vided that he does not at the same time obstruct the 
ancient light or any part of it. It is no justification of an 
obstruction of the ancient light that he cannot, without 
doing so, obstruct the enlarged or new opening (a). Nor 



{r\ Pnr, J., Xaiiomml Ins, Co, v. (y) Natiomtl Aft, Co. v. Ftu* 

JVHdrMti'^l Ass. Co., L. R. 6 C. D. d^tiai Ass. Co., L. R. 6 C. D. 767; 

764 ; 46 L. J. C. 871 ; Cotton, L. J., 46 L. J. C. 871 ; BuUers v. JHek- 

Scott T. Pape, L. R. 31 C. D. 569 : imson, L. R. 29 G. D. 155 ; 54 L. J. 

55 L. J. C. 426. C. 776 ; Banus v. Loaeky L. R. 4 

(ir) Ecclrs. Cumtnis. r. Kino, L. R. Q. B. D. 494 ; 48 L. J. Q. B. 756. 

14 C. D. 213 ; 49 L. J. C. 529. (z) Scott y. Pape, L. R. 31 C. D. 

(x) I\tmer y. Spoondr, 1 Dr. & 554 ; 55 L. J. C. 426 ; poH^. 308. 

em. 467 ; 80 L. J. C. 801. (a) Tapling y. Jones, 11 HTL. C. 



CHAP. I. EASEMENTS. 



217 



is the owner who has thus enlarged his lights bound tq 
restore them to the ancient form and position as a con- 
dition of obtaining relief agarust an obstruction ; whether 
he seeks the legal remedy of damages, or the equitable 
remedy of an injunction (J). " The principle is perfectly 
plain, that opening a new window or the enlargement of 
an old window in the wall of your house is no injury or 
"^ wrong to your neighbour. It is one of the rights of pro- 
perty which any man is entitled to exercise, and he cannot, 
by exercisiDg that right, lose any other right which he 
may have acquired. Therefore, having got a right to the 
entry of light into a window of a certain size, he does not 
by making that window larger lose his right to the entry 
of the light to the old part of it" (c). Upon the same 
principle if a house be pulled down or destroyed by fire, 
and a new house be built upon the site with altered or 
enlarged windows, provided the ancient apertures or any 
part of them are substantially contained in the new ones, 
they cannot be obstructed. If the ancient apertures are 
not substantially preserved in the new house they may be 
considered as abandoned (d). 

The acqiusition of additional light from a different Additional 
direction does not affect or diminish the easement over the ^^^^"^ 
servient tenement ; the owner of which is not justified in direction, 
obstructing the easement over his own land, because the 
dominant owner by purchase or otherwise has obtained 
light from other land equivalent to the light obstructed (^). 



290; 34 L. J. C. P. 342, overruling 
Beruhavj v. Bean, 18 Q. B. 112; 
21 L. J. Q. B. 219, and other oases 
which decided that upon the en- 
largement of an ancient light, the 
servient owner might obstruct it 
whoUy, and that the dominant 
owner had no remedy until he had 
restored it to the original dimen- 
sions. See Newton v. Fmder^ L. 
E. 27 C. D. 43. 

(b) Staight v. Bum, L. B. 5 Ch. 
163 ; 39 L. J. C. 289 ; explaining 
Heath Y. Bueknall, L. B. 8 Eq. 1 ; 



38 L. J. 0. 372. 

(e) Mellish, L. J., Aynsley v.- 
Glover, L. B. 10 Ch. 283; 44 
L. J. 0. 623. 

{d\ Hutehinton v. Copettake^ 9 
0. B. N. S. 863 ; Curriert* Co, v. 
Corbett, 2 Dr. & S. 365 ; Netceon v. 
Fender, L. B. 27 C. D. 43 ; Bullere 
V. J)iekinton, L. B. 29 C. D. 166 { 
64 L. J. C. 776; Seott v. Fape, 
L. B. 31 C. D. 664 ; 66 L. J. C. 
426. 

(e) Byert^ Co, v. King, L. B. 9 
£q. 438 ; 39 L. J. G. 339. 



318 USES AND PROFITS IN LAND OF ANOTHER. 

Nor can the servient owner justify an obstruotion by himsell 
providing an equivalent quantity of ligbt by reflection or 
other means, without the consent of the dominant 
owner (y). The dominant owner does not lose his 
remedies by himself diminishing the light, so far as an 
obstruction affects the residue (z). 



§ 3.— Air. 

Distinction of air and light as subject of easement. 
Easement cannot be claimed for passage of air. 

Nuisance of pollution of air — ^nuisance of noise — noxious trades- 
nuisance of railway — remedy of reversioner. 
Easement of diffnidng noxious vapours and noises. 

Distinction of ^ ^^s formerly the practice in actions for obstruction of 
as subject light, to couple the word " air" with "light" in pleadings 
of easement. ^^^ j^ proceedings of the Court, upon the assumption 
that air was so connected with light as to be subject to the 
same rules ; but it is now recognised that they are not so 
inseparably connected. The Courts will not allow the 
word " air" to be coupled with " light," as a matter of 
course ; nor allow it to be inserted in proceedings of the 
Court respecting light without a special direction (a). 
The Court can deal with a pollution of the air on the 
ground of nuisance; and "this is perhaps the proper 
ground on which to place the interference of the Courts 
although in decrees the words "light and air" are often 
inserted together as if the two things went pari passu.*' 
And it is said, " the Court has interfered to prevent the 
total obstruction of all circulation of air " (ft). But " it is 
only in very rare and special cases, involving danger to 

(v) Staight v. Bum, L. B. 5 Ch. (a) CUy Brewery Co. v. Ihmanl^ 

163 ; 39 L. J. C. 289. L. R. 9 Ch. 221 ; 43 L. J. C. 459 ; 

(z) Staight v. Bum^ L. R. 6 Ch. B<ixter v. Bower, 44 L. J. C. 626. 

163 ; 39 L. J. C. 289 ; Scott v. Tape, {b) "Wood, V.-C, Dent v. Auetim 

L. R. 31 C. D. 664 ; 65 L. J. C. Mart, L. R. 2 Eq. 252 ; 35 L. J. C. 

426. 556 ; Hall v. Ltehfield Brewery, 49 

Xi. J. C. 655« 



CHAP. I; EASBMBNT8. 219 

bealih, that the Court would he justified in interfering on 
the ground of diminution of air" {c). 

No such easement can he claimed in law as to entitle Eaaemfloi 
the owner of land or buildings merely to have the air pass claimed for 
to or from the adjacent land without obstruction. Such a ^«^ ^ 
right is not an ordinary incident of property, as against 
the ordinary right of the adjacent owner to build as he 
pleases upon his own land ; nor can it be acquired by use 
or prescription (^). It may be the subject of covenant 
binding the covenantor personally, and all persons taking 
the land from him with notice of such a covenant; but 
it cannot be annexed to the land as a servitude binding 
a purchaser without notice {e), " There is this difference 
between the present daim and the claim to light. The 
right in that case is always limited to the particular 
window or aperture through which the light has had 
access ; it is one, therefore, against which an adjoining 
owner can defend himself by blocking it up within the 
period necessary for the gaining of a right. But here the 
daim is of such a character that its enjoyment could only 
be prevented by surrounding the land with erections as 
high as it might at any time be wanted to build on the 
land " (/). — ^Accordingly an easement cannot be claimed to 
have the free passage of air for the working of a windmill ; 
for the reason that the adjacent land owner has no practical 
means of preventing it, and that the claim is too vague, 
undefined and extensive to be recognised by law (g). So, 
a claim cannot be supported for the free access of air to a 
timber staging or structure used for storing and drying 

[e) Selbome, L. C, City Brewery Jield Brewery ^ 49 L. J. C. 665. 

6b. ▼. Teimantf supra. (/) BramweU, L. J., Bryant v. 

{d\ Bryant v. Ze/ever, L. R. 4 0. Zefever, L. R. 4 0. P. B. 178 ; 48 

P. D. 172 ; 48 L. J. C. P. 380 ; L. J. C. P. 383. 

HarritT. Be Pinna, L. R. 33 0. D. (y) Wehb v. Bird, 13 C. B. N. S. 

238; 56L. J. G. 344. 841; 31 L. J. 0. P. 336; ante, 

(«) AnU^ p. 203 ; EaU y. ZtcA- p. 201. 



220 



rSSS AND PROFITS IN I.AND OF AKOTHEB. 



timber, wliich would in effect pTeyent building on the 
adjacent land {h). Upon the same principle no claim can 
be made by the owner of a house for an obstruction to the 
draught of the chimney and the escape of smoke, caused by 
buildings upon the adjacent land. '' The right claimed is 
not one the law allows, being too vague and uncertain ; 
one the acquisition of which the adjoining owner could not 
defend himself against " (i). 



NaiBBnoeb; 
poUution 



^ 



The owner of land is primd facie entitled to have the 
air in its natural state, unpolluted by any nuisance ema- 
nating from the adjacent land ; but in order to give cause 
of complaint there must be a substantial interference with 
the reasonable use and enjoyment of the property, having 
regard to its position and circumstances {j). — ^The owner 
of a dwelling-house is entitled to have the air sufficiently 
pure and unpolluted for the purpose of habitation, and 
Inay complain of noxious smells or vapours or infection 
of disease discharged from the adjacent land. An action 
lies for keeping pigs so close to a dwelling-house as to 
pollute the air and render it unwholesome {k) ; or for 
carrying on a noxious trade or business, as that of a tallow 
chandler (/) ; or that of a brickmaker (m). And an injunc- 
tion was granted against canning on a small pox hospital 
BO as to be a nuisance by infection to the adjacent 
houses (»). — Pollution of air may be actionable for inter- 
fering with personal comfort, although not otherwise 
injurious to health. An injunction was granted against 



(A) Harrit v. De Finna, L. R. 33 
C. D. 238 ; 66 L. J. C. 344. 

(i) Bryant v. Le/ever, L. R. 4 C. 
P. D. 178; 48 L. J. C. P. 380. 

(J) St. Helen^t Smelttnff Co. v. 
Tipping, 1 1 H. L. C. 642 ; 36 L. J. 
Q. B. 66 ; Salvin v. North JBranee- 
peih Coal Co., L. R. 9 C5h. 705 ; 44 
L. J. C. 149. 

(k) Aldre<rt Case, 9 Co. 67 *. 



(0 BliM V. Hall, 4 Bing. N. C. 
183. 

{m) Walter r. Selfe, 4 Be O. & 
Sm. 316; 20 L. J. G. 434; Onvy 
V. Lidbetter, 13 C. B. N. S. 470; 
32 L. J. C. P. 104. 

(n) Hill Y. Metrop. Atylum, L. R. 
4 Q. B. D. 433 ; 6 Ap. Ca. 193. 
See Fleet ▼. Metrop, A»yU$m, Times, 
3 Mar. 1886. 



CHAP. I. EASEMENTS. 



221 



the erection of a public urinal so near a dwelling-house as 
to be a nuisance to the occupiers {o). And nuisances may 
be dealt with under the PubHc Health Act, 1876 (38 & 39 
Vict. c. 55), s. 114, although not injurious to health (/?). — 
A nuisance may be actionable by reason of being specially 
detrimental to a particular manufacture carried on upon 
the adjacent land(^) ; or by reason of being specially detri- 
mental to trees and vegetation (r). 

The occupier of a dwelling house is also entitled, as an Nuisance of 
ordinary incident of property, to be free from the dis- 
tarbance of noises emanating from the adjacent premises ; 
and in case of such noises amounting to a material nuisance 
incompatible with the comfort of habitation, he would be 
entitled to relief by an action for damages and for an 
injunction. '' There is no distinction whether it be smoke, 
smell, noise, vapour or water or any other gas or fluid. 
The owner of one tenement cannot cause or permit to pass 
over or flow into his neighbour's tenement any one or 
more of these things in such a way as materially to 
interfere with the ordinary comfort of the occupier of the 
neighbouring tenement, or so as to injure his property" («). 
Accordingly an injimction was granted to restrain a 
nuisance of noise horn, an iron factory, as well as the 
nuisance of smoke and noxious effluvia from the factory 
chimney (^). An action was held maintainable for a 
nuisance of noise which frightened cattle and disturbed the 
game upon the plaintiff's land (u). An injunction was 
granted to restrain public entertainments accompanied with 



(o) Vernon v. St. Janiea, L. R. 
16 C. D. 449 ; 60 L. J. C. 81 ; Sei- 
ion T. Matlock Local Boards L. R. 
14 Q. B. D. 928. 

(p) MaUon Board of Health y. 
Malton Manure Co., L. R. 4 Ex. D. 
302 ; 49 L. J. M. 90 ; BUhop Auck- 
land San. Auth. v. Buhop Auckland 
Iron Co., L. R. 10 Q. B. D. 138 ; 
62 L. J. M. 38. 

{q) Cooke y. Forbes, L. R. 6 Eq. 
166 ; 87 L. J. C. 178. 



(r) St. Helenas Co. v. Tipping, 11 
H. L. C. 642 ; 36 L. J. Q. B. 66 ; 
ShotU Iron Co. y. Inglie, L. R. 7 
Ap. Ga. 618. 

(«) Romilly, M. R., Crump r. 
Lambert, L. R. 3 Eq. 413 ; Selbome^ 
L. C, Gaunt v. Fynney, L. R. 8 
Ch. 11; 42L. J.O 122. 

(t) Crump V. Lambert, supra. 

[u) Ibbetson v. Feat, 3 H. & G, 
644; 34L. J. Ex. 118. 



222 



USES AND PROFITS IN LAND OF ANOTHER. 



Koxions 
trade. 



the nuisance of music, and fireworks, and disorderly 
crowds {u). An injunction was granted against rmging a 
peal of bells in a religious institution, to the annoyance 
of the neighbours. But in the case of the established 
church of a parish or parochial district the bells are an 
appendage recognised by law (v). 

It is no justification of a nuisance that it is caused by 
carrying on a lawful business in a proper manner and 
in a proper place (tr) ; or that sitiailar nuisances already 
exist at the place (x). The place and circumstances are 
material only to the question whether the alleged nui- 
sance is to be considered as actionable in relation to the 
adjacent occupiers. '^If a man lives in a street where 
there are numerous shops, and a shop is opened next 
door to him which is carried on in a reasonable way, 
he has no ground of complaint because to himself indi- 
vidually there may arise much discomfort from the trade 
carried on in that shop" (y). So, the nuisance of noise 
is essentially a question of degree and circumstance; it 
must be exceptive and unreasonable in order to be action- 
able. In a town the noises arising from the ordinary 
traffic and from the ordinary use and habitation of 
houses, such as music, the cries of children, and the 
entertainment of company, are annoyances without legal 
remedy (2). But where the ground fioor of a house was 
turned into a stable and horses were fastened up to the 
party wall, it was held that the noise of the horses became 
a nuisance that entitled the occupant of the adjoining 



(tt) Walker v. JSretcster^ L. R. 6 
Eq. 26 ; 37 L. J. 0. 33 ; Inchbald r. 
Mobinson, L. R. 4 Gb. 388. See 
Jenkins v. Jackson^ W. N. 1888, 
p. 194. 

(t;) SoUau y. De Keld, 2 Sim. N. 
S. 133. 

(w) Bamford v. Tumley, 3 B. & 
S. 62 ; 31 L. J. Q. B. 286 ; St. 
H^lenU Smelting Co. v. Tipping ^ 11 
H. L. 0. 642 ; 36 L. J. Q. B. 66, 
OTermlmg H<SU v. BarUno, 4 C. B. 



N. S. 334 ; West v. WhiU, L. R. 
4 C. D. 636 ; 46 L. J. G. 333. 

(x) Crump y. Lamhert, L. R. 3 
Eq. 413. 

{if) Chelmsford, L. C, St. Kelen^s 
Stnelting Co. y. Tipping, iupra; Erie, 
C. J., Caveg r. Zidbetter, 13 C. B. 
N. S. 470 ; 32 L. J. C. P. 106. 

(z) Selbome, L. C, Gaunt r. 
Fynwy, L. R. 8 Oh. 12 ; 42 L. J. 
C. 122; Wood, V.-C, TTalker y, 
Bretoater, tupra. 



CHAF. I. EASEMENTS. 223 

house to an injunction (a). Upon this principle it is held 
that the keeping of a school is not necessarily a nuisance 
to he restrained hy the Court, though it may depreciate 
the adjacent property hy causing annoyance ; nor is it a 
breach of a covenant not to do anything that is a ^^ nuisance " 
to the occupiers of the adjacent property. It is a breach 
of a covenant not to carry on any trade or business upon the 
premises ; and if the covenant restrained '^ annoyances " it 
would be within the covenant if conducted in such a 
manner as to oause annoyance (6). — Statutory powers are Nnisanoeof 
sometimes given for public purposes in exercise of which '*^^*y- 
nuisances are excused so far as they are unavoidable ; 
as in the case of public railway companies using locomotive 
engines which emit smoke and noise over the neighbour- 
hood; unless they can be charged with negligence in 
regard to the construction or working of the engines (c). 
And an injunction was refused CLgainst a railway company, 
to restrain the keeping of cattle and carrying on cattle 
traffic upon land purchased by them, to the annoyance of 
the neighbourhood by the noise and dirt of the cattle, by 
reason of their statutory authority to use the land for that 
purpose {d). The Acts for regulating the use of locomo- 
tives upon highways expressly save the right of any person 
to recover damages for any injury sustained in the use of 
a locomotive (^). 

A reversioner has no cause of action for nuisances to the Bevendoner* 
occupation of demised premises caused by the pollution of 
air or by noises; because such niiisances are in general 
merely temporary and may cease before the reversion comes 
into possession ; nor can the intention to continue them be 



i: 



a) JBallY, Soffy L. R. 8 Ch. 467. Jones y, Featiniog Sy., L. B. 3 Q. B. 

>) I>oe V. Keeiififf, 1 M. & S. 96 ; 733 ; 37 L. J. Q. B. 214. 

Kemp ▼. Soher, 1 Sim. N. S. 517 ; {d) London ^ Brighton Ry. y. 

Marriton r. Good, L. B. 11 Eq. Truman, L. B. 11 Ap. Ca. 45; 66 

338 ; 40 L. J. C. 294. L. J. C. 354. 

U) Hammersmith By, v. Brandy {e) 28 ft 29 Vict. o. 83, s. 12 ; 

L. B. 4 H. L. 171 ; 38 L. J. Q. B. Fowell v. Fall, L. B. 6 Q. B. D^ 

266 ; Vaughan y. Taff Vale By., 6 697 ; 49 L. J. Q. B. 428. 
H. ft N. 679 ; 29 L. J. Ex. 297 ; 



rsEs Asu FEorm ix lamd of axothrr. 

prefeumel iV\ The same pfindple applies to the reversioii 
of weekly teiuuicQes; for a tenancr from week to week may 
eoQtinoe as long as any other tenancj, and a weekly or 
a yeariy tenant has full remedies for a nuisance to his 
oecnpation (_/*). 

Easements, in the proper sense of the word, may be ac- 
no^oMTm- qnired of discharging: noxions smells and Taponrs into the 
Pg^"^ air, and of producing noises, that would otherwise be nui- 
sances to occupiers of adjacent land. They may be acquired, 
like other easements, by grant or by prescription. " By 
lapse of time, if the owner of the servient tenement has not 
resisted for a period of twenty years, then the owner of the 
dominant tenement has acquired the right of discharging 
the gases or fluid, or sending smoke or noise from his tene- 
ment over the tenement of his neighbour" (g). A grant 
was made of an easement appurtenant to a house of dis- 
charging smoke into chimneys in the wall of the adjacent 
house ; and it was held that a purchaser of the servient 
house had constructive notice of the servitude from the 
number of chimneys in the wall being in excess of those 
used for the house (A). 

A prescriptive easement of subjecting the servient tene- 
ment to what would otherwise be an actionable nuisance 
can be acquired only where the circumstances are such that 
the nuisance could be resisted. As to noise, there is no 
mode of resistance except by action ; and in the cose of 
open and unoccupied ground noise is no nuisance and not 
actionable, and, therefore, the continuance of it will not 
found an easement. Hence if a new house be built upon 
the ground the occupier may complain of the nuisance of 



k1 



{ij Simpson v. Savage^ 1 G. B. (/) «7oMer v. ChappeU^ L. R. 20 

347 ; Mott y. SKoolbred, L. R. Eq. 539 ; 44 L. J. C. 658 ; Ineh6cid 

20 Eq. 22 ; 44 L. J. C. 380 ; Co<>per y. BobinsoHy L. B. 4 Gh. 395. 
y. Crabtree, L. R. 20 C. D. 689 ; 61 (^) Romilly, M. R., Crump y. 

L. J. C. 189. See House Property Co, Lambert, L. R. 3 Eq. 413. 
y. Korse Nail Co., L. R. 29 C. D. (A) Hervey y. Smith, 22 Beay. 

193 ; 64 L. J. C. 716. 299. 



CHAP. I. EASEMENTS. 225 

noise, however long it had previously continued (/). Or, 
the noise may have continued for a long time without an- 
noying the occupier sufficiently to be ground of action, and 
may have afterwards been increased to a degree constitut- 
ing an actionable nuisance ; from which time only would 
it avail for founding a prescriptive right {j). So, as to 
noxious smells, in order to establish a prescriptive right it 
is not sufficient to prove the continued production of the 
smell upon the dominant tenement during the period of 
time required to found a prescriptive title, but it must also 
be proved that during the same time the smell in fact 
pervaded the alleged servient tenement in such a manner 
that the owner might have taken legal proceedings in pre- 
vention (^). — ^No such easements are acquired by mere 
priority of occupation ; nor is it any justification of a nuis- 
ance to the adjoining occupier that he voluntarily came 
to the nuisance, if his tenement had not previously become 
servient to it (/). 



§ 4. — ^Watbr. 

Righto of ripaxian owner in natural stream. 

Sasement of diverting stream through artificial watercourse — limito of 
easement — use of the water— maintenance and repair of water- 
course — liability for non-repair. 

Sasement of discharging water or other matters — liability for nuisance 
-^-exception of natural use of land. 

Umito of easement — discharge in excess — ^maintenance and repair of 
watercourse — alteration of discharge. 

Artificial stream — riparian owners upon artificial streams — permanent 
artificial streams. 

£asement of discharging rain-water from eaves of house. 

Water standing upon the surface of land and water Property in 
difiEused through the soil, are presumptively considered in "^^^ 

(i) Sturffes V. Bridgman, L. R. 11 (Ar) Flight v. Thomaa, 10 A. & E. 

C. D. 862 ; 48 L. J. 0. 786. 690. 

U) Ball V. 5ay, L. R. 8 Ch. (t) MlioUon v. Feetham, 2 Bing. 

A67. N. C. 134 ; BUtt v. Hally 4 Bing. 

N. 0. 183. 



226 



rSES A2fD FROFITS IN LANB OF ANOTHER. 



Ifistonl 



laWy in Tegsird to pi ti peiiv, as part of the land itself. 
Water flowing in defined natural streams is not the sub- 
ject of propertr, further than that ereiy riparian owner 
prima facie has the right to have it flow on in its natural 
state, and to hare the nse of it in passing for limited pnr- 
poses. This right of the riparian owner resembles an 
easement in some respects ; namely, as against the npper 
riparian owner in requiring hiixi to suffer the water to tLow 
through his land, and in limiting the use of it upon hia 
land; as against the lower riparian owner, in reqTiiring 
him to suffer the discharge of the water into his land. 
But it is not an easement properly so called, nor is it 
treated as an easement in law ; it is an ordinary incident 
of riparian property, and differs from an easement in 
being appurtenant by nature without a special title of 
grant or prescription. "The right to have a stream 
running in its natural course is, not by a presumed grant 
from lo^g acquiescence on the part of the riparian 
proprietors above and below, but is ex jure naturcB; and an 
incident of property " (a). — ^Also a right acquired by a 
riparian owner to divert the water of a natural stream 
through his own land, though sometimes spoken of as an 
easement, is not properly so called. It is an act of owner- 
ship; and so far as it may be an appropriation of the 
water, it takes tjiat which was not before the subject of 
property ; it may permanently diminish the stream to the 
lower tenements, but it does not otherwise render them 
servient to any use or interference of the upper owner (6). 



EaMment of 
diversion of 
Btream. 



The diversion of a stream through an artificial water- 
course in the land of another is an easement properly so 
called as regards the watercourse, and may be acquired by 
grant or prescription. Thus an easement may be acquired 



(a) Fer eur. Dickinson v. Grand 
Junction Canal, 7 £x. 299, anU, 
p. 148. 



{h) Cockbmn, G. J., JTmow ▼. 
Shrewsbury iJy., L. R. 6 Q. B. 
587; 40 L. J. Q. B. 297; miU^ 
p. 161. 



CUAP. I. EASEMENTS. 2^7 

by prescription as appurtenant to land, for the oocnpler to 
enter upon the adjacent land from time to time as occasion 
requires to divert the course of a stream for the irrigation 
of his land(c). So an easement may be acquired as 
appurtenant to a mill, to have an artificial cut or water- 
course through the land of another to divert the water of 
a stream to the mill {d). — Water mills frequently depend Water mill*, 
upon easements of this kind. The mill is sometimes 
situated upon the bank of the natural stream, but more 
usually at some distance from it ; the water is conveyed to 
it by an artificial cut from a weir or dam across the stream, 
and after working the mill is restored to the natural 
course. The artificial cut may pass through the land of 
different hmdowners in its course from the stream to the 
mill, and the right to such a watercourse through the land 
of others is then an easement appurtenant to the mill. 
Water is frequently conveyed from the natural stream in 
the same manner for purposes of irrigation (e). Where a 
riparian owner diverts a natural stream through an artifi- 
cial watercourse for the use of a mill, and afterwards 
grants and conveys the mill with the water rights, the 
Tnill passes to the grantee with the appurtenant easement 
of the watercourse through the land of the grantor, and 
with the incidental riparian rights of the grantor to the 
flow of the water (/). 

The easement of diverting a natural stream through an Limits of 
artificial watercourse is presumptively defined and limited ™®° * 
by the form and capacity of the watercourse in its exist- 
ing state. The grant of a watercourse may convey merely 
the easement or right to the flow of water, or it may, if so 
expressed, convey also the channel or pipe through which 
the water flows ; but presumptively it imparts no right to 

(e) JSeeston v. Weatef 5 £. & B. JSeeston v. Weate^ supra, 
986 ; 26 L. J. Q. B. 116. (/) Holker v. ForHtt, L. E. 10 

(d) Nuttall Y. Braceweli, L. B. 2 Ex. 69 ; 44 L. J. Ex. 62 ; ante, 

^. I ; 36 L. J. Ex. 1. p. 162. 

{e) NuUall v. Bracewell, supra ; 

q2 



228 USES AND PROFITS IK LAND OP ANOTHER. 

enlarge the watercourse or channel so as to cany a greater 
quantify of water than granted and thereby enlai^ the 
easement (g). Nor, after the grant of a watercourse in & 
spedfied channel, can the servient owner make any alteration 
in the channel in derogation of the easement granted (A). 

Useof the T\na easement is, in general, independent of the iise to 

which the water is applied. A watercourse appurtenant 
to a TTiill is independent of the use of the mill, whether it 
be a grist mill or a fulling mill, or any other kind of mill ; 
the water is claimed for a mill, without any addition of 
the quality of the mill, and the mill may be used for any 
purpose at the pleasure of the owner (t). So the owner of 
a watercourse used for the supply of ponds may alter the 
position and number of his ponds, without affecting his 
original right to the water (J) . And the owner of a wateiv 
course used hitherto for the supply of cattle-sheds, may 
apply the water to cottages bmlt in place of the cattle sheds. 
His right is to have the water flow to his premises, and when 
it arrives there he may do what he likes with it (A). 

MMntoumce The easement of a watercourse impliedly carries with it 
the right to enter upon the servient tenement to cleanse it 
so as to maintain the free flow of water ; and to repair, 
when necessary, the structure or channel of the water- 
course (/). The servient owner will be restrained from 
doing anything to obstruct the maintenance and repair ; 
such as bidlding a house over the pipes through which the 
water flows (w). — ^The owner of the watercourse, so far as 
he is entitled to maintain and repair it, is primd facte re* 
sponsible for the safety of the water ; and in case of an 
escape of water through his negligence, he would be held 
liable for the damages (/f). 

^7^ Tavhr v. St. HtUns, L. R. 6 789. 

CD. 264 ; 46 L. J. C. 857. (*) WaUa v. KeUon, L. R. 6 Ch. 

. A^ Xortham T. Hurlry, 1 E. & 166 ; 40 L. J. C 126. 

B. '365 ; 22 L. J. Q. B. 183. (/) F<m\fret v. Jticroft, I Wms. 

^«) LuttrtWs Case, 4 Co. 86 a, Saund. 323. 

87 a ; Saundrrs v. Xetcman^ 1 B. & (m) Ooodhart v. ffyett, L. K. 25 

Aid 258. C. 1). 182 ; 63 L. J. 0. 219. 

) MMk T. OUro^, 14 M. & W. (n) FletcMer y. Smith, L. B. 2 



and repair. 



CHAP. I. EASEMENTS. 



229 



Easements may be acquired of discharging water, not Easement of 
being a natural stream, and other materials, into or through water'Sram- 
the land of another ; such as the easement commonly ap- *fir®i *0' 
purtenant to a dwelling-house of draining oflf refuse water 
and sewage ; the easement of draining land ; the easement 
of discharging water from mines; and of discharging 
water impregnated with noxious matters from mines and 
factories. The easement may be claimed of washing 
away sand and rubble dislodged in the working of mines, 
and discharging it into a natural stream, to the extent of 
filling up the bed of the stream and causing an overflow 
of the water; such claim is within the Prescription Act 
and may be acquired by use during the statutory period (o). 

In the absence of an easement of the above kind the Liability for 
occupier of land is presumptively bound to keep water, or ^^^*«*'"^' 
drainage, or any other matters collected upon his own 
land from flowing or escaping by any means into other 
land ; or into water flowing by or through other land {p) ; 
or into water diffused in the soil of other land; so as 
to cause a nuisance or injury to the occupier of such 
other land (5'). An occupier of land is not justified in 
discharging a nuisance upon the adjoining land merely 
because it was wrongfully upon his own ; nor is he excused 
because he was not aware of the nuisance, and was not 
guilty of any negligence in permitting it(r). Nor is it 
any justification of a nuisance such as the pollution of a 
stream, that it has already been polluted by others to so 
great an extent as to be unfit for use (s). " The pollution 



Ap. Ca. 781 ; 47 L. J. Ex. 4, anU, 
p. 144. 

(0) Carlyon v. Lovcringy 1 H. & 
N. 784 ; 26 L. J. Ex. 251 ; Wright 
V. milianu, 1 M. & W. 77. 

(p) Tenant v. Goldwin, 2 Ld. 
Raym. 1089; Wood v. JFaud, 3 
Ex. 748 ; Smtfllv. Shenton, 3 Q. B. 
449 ; Rylands v. Fletcher ^ L. R. 3 
H. L. 338; 37 L. J. Ex. 161; 
Evans y. Manchester ^ Sheffield Ry, 
Co., L. B. 36 C. D. 631. 



iq) Hodgkinson v. Ennor^ 4 B. & 
S. 229 ; 32 L. J. Q. B. 231 ; Snow 
y. Whitehead, L. R. 27 C. D. 588 ; 
63 L. J. C. 885 ; Ballard v. Tomlin- 
son, L. R. 29 C. D. 116 ; 64 L. J. 
C. 454. See ante, p. 143. 

(r) Humphries v. Cousins, L. R. 
2 0. P. D. 239 ; 46 L. J. C. P. 438. 

(«) Wood V. Waud, 3 Ex. 772 ; 
Crossley v. Lightowler, L. R. 2 Ch. 
478 ; 36 L. J. G. 684. 



of land. 



230 rSES AND PROFITS IN LAND OF ANOTHER. 

of a stream alreadj made f onl and useless by other poUu* 
tions is an injury without damage ; which would, however, 
at once become both injury and damage on the cessation 
of other pollutions.*' It is therefore restrained by injunc- 
tion (/). 
Kttfconl use ^^ But the owner of land holds his right to the enjoy- 
ment thereof, subject to such annoyance as is the conse- 
quence of what is called the natural use by his neighbour 
of his land"(w). "Where the maxim sic utere tiio ut 
alienum non Icedas is applied to landed property it is neces- 
sary for the plaintiff to show not only that he has sustained 
damage, but that the defendant has caused it by going 
beyond what is necessary in order to enable him to have 
the natural use of his own land" (r). — The natural use of 
mineral land is the excavating and raising of minerals; 
hence the owner is entitled to work the minerals without 
incurring any liability for the flow or percolation of water 
into other land caused by natural gravitation in the course 
of working; provided he works in a usual, proper and 
careful manner. But he is liable if he has raised the 
water by pumping to a higher level in order to discharge 
it; or if he has otherwise artificially moved or collected 
the water and thereby caused the flow; the lower mine 
being presumptively free from any servitude of receiving 
water conducted artificially from the higher mine (ir) . The 
exercise of a trade is an adventitious and not a natural 
use of land; and therefore it is no justification of the 
pollution of a stream that it was done in the exercise 
of a lawful trade carried on in a reasonable and proper 
manner and in a proper place {x). 

(0 Pry, J., FenningUm v. Brituop C. D. 787 ; 48 L. J. C. 796. See 

Hall Coal Co., L. B. 5 0. D. 772 ; 46 potty p. 237. 

L. J. C. 773. (w) Smith v. Kenrkk, 7 C. B. 

(«) Fer cur. Burdimn v. yorih 616; Bairdy. JFWiamtony 15 G. B. 

JEastern iJy., L. R. 3 C. P. D. 174 ; N. S: 876 ; 33 L. J. C. P. 101 ; 

47 L. J. C. P. 368 ; Bylanda v. JTiUon t. JFaddell, L. B. 2 Ap. Ca. 

FUteher, L. R. 3 H. L. 338 ; 37 96 ; Fletcher y. Smith, L. B. 2 Ap. 

L. J. Ex. 161. Ga. 781 ; S. C, Smith y. Mtagrave, 

{v) Brett, L. J., ITest Cumber- 47 L. J. Ex. 4. 

land Iron Co, y. Kenyon, L. B. 11 (x) Stockport JFatencorksY. Fdtter, 



CHAP. I. EASEMENTS. 231 

An easement of discharge is limited and defined by the Limits of 
terms of the grant, or by the prescriptive use on which it is ®*"®™®^*- 
founded. A grant of a watercourse or drain through the 
land of the grantor is presumptively limited to the reason- 
able service of the dominant tenement in its then state and 
condition ; a drain for the use of a certain dwelling-house 
cannot be used for another dwelling-house ; or for large 
additional buildings, as where an ordinary dwelling-house 
was enlarged into a lunatic asylum for a great number of 
patients (y). The reservation in a building lease of " the 
free running of water and soil coming from any other 
buildings and lands through the sewers and watercourses 
under the said premises," was construed to include only 
water and the products of the ordinary use of land for 
habitation ; so that the lessor could not use the contiguous 
land for a manufacture and discharge the refuse through 
the sewers (2). Upon the same principle a prescriptive 
right of discharging the ordinary refuse water from a 
house does not justify the discharge of sewage (a). An 
easement of discharging noxious products of a manu- 
iacture into a stream does not justify a change in the 
process of manufacture which has the effect of casting 
a different or greater burden upon the servient tenement 
than that established by use (6) ; but it extends to aU new 
products that may from time to time be reasonable and 
proper for the manufacture that do not increase to any 
substantial or tangible degree the amount of pollution (c). 
— ^If the discharge is in excess of the easement in quantity, Discharge in 
quality, or direction, and the owner of the servient easement, 
tenement cannot by other means prevent the excess, he 
may stop the discharge altogether, and the owner of the 

7 H. & N. 160 ; 31 L. J. Ex. 9 ; (a) CawkweU v. Bussell, 26 L. J. 

ante, p. 222. Ex. 34. 

(y) JFood Y. Saunders, L. R. 10 (Q Stockport Watenvorkey, Potter, 

Ch. 682; 44 L. J. C. 514; James, 7 H.. & N. 160; 31 L. J. Ex. 9. 

L. J. MetropoL Board y. London ^ See Clarke r. Somerset Commiss., 67 

y. jr. Ry., L. R. 17 C. D. 249 ; L. J. M. 96. 
60 L. J. G. 410. |>) Baxendale v. M^Murray, L. B. 

(z) CAadwieky. Martden, L. B. 2 2 Ch. 790. 
Ex. 285 ; 36 L. J. Ex. 177. 



232 USES AND PKOFITS IN LAM) OF ANOIHER. 

dominant tenement can have no remedy for the obstmotioii 
of the easement until he reduces its exercise within the 
rightful Kmits. "If a man has a right to send dean 
water through a drain, and chooses to send dirty water, 
every particle of the water ought to be stopped, because it 
is aU dirty " (d). But if other parties have rights through 
the same drain who are not acting in excess of their rights, 
it cannot be stopped as against them ; the only remedy 
then is by an action against the party who exceeds his 
right {e). 
Mdntenance rj\^Q owner of the dominant tenement is entitled to enter 

and repair of 

wateroourse. upon the servient tenement for the purpose of cleaning and 
repairing the channel or watercourse, and of doing all 
things necessary for that purpose ; he may do whatever 
may be reasonably required for the effectual enjoyment of 

AltOTationof the easement (/). — He is not entitled to alter the course 
"^ "^^* of the discharge ; and he is Kable for an escape or dis- 
charge of the water or other material in any other direo- 
tion or in any other channel (g). Nor is he entitled to 
alter the level or enlarge the channel so as to increase the 
flow of the water ; or in any way to aggravate the servi- 
tude of the lower tenement (h). But he may flJter the 
level of a drain or watercourse if necessary to maintain it 
in an efficient state ; and where a local authority had 
altered the level of the outlet sewer, he was held entitled 
to lower the servient drains to the new level (i). 

Artificial The discharge of an artificial stream of water may be 

beneficial to the lower riparian owners ; but though it be 
so, and though they have used and enjoyed it for a length 
of time sufficient to found a prescriptive title, they do not 

(rf) Alderson, B., Caicktoell v. ig) EumpkrieM v. Coutitu, L. R. 

Sussell, 26 L. J. Ex. 34 ; Charle* v. 2 C. P. D. 239 ; 46 L. J. C. P. 438. 

Finchley Board, L. R. 23 0. D. (A) Frechette v. St, Hyacinthe Co,, 

767 ; 62 L. J. C. 554. L. R. 9 Ap. Ca. 170 ; Taylor v. St. 

(tf) Jessel, M. R, Att.-Geti, v. ITif^m^, L. R. 6 0. D. 264 ; 46 L.J. 

Dorking, L. R. 20 0. D. 595; 61 C. 857. 

L. J. 0. 585. (i) FinlinsoH v. F&rter, L. R. 10 

(/) 11 Co. 52 a, L^ford'a Caae; Q. B. 188; 44 L. J. Q B. 56. 
Hodgeofi v. Field, 7 East, 613. 



CHAP. I. EASEMENTS. 233 

thereby acquire any right to its continuance. For it is a 
general principle of the law of easements " that an ease« 
ment exists for the benefit of the dominant owner alone, 
and that the servient owner acquires no right to insist on 
its continuance, or to ask for damages on its abandon- 
ment" (j). " The enjoyment of the easement is of itself 
no evidence that the party enjojring it has become subject 
to the servitude of being bound to exercise it for the benefit 
of the neighbour" {k). Thus an easement of discharg- 
ing an artificial stream of water produced in draining a 
mine, depending entirely upon the mining operations, 
may be abandoned by the dominant owner at any time ; 
and the servient owner, though in course of time he may 
have become subject to the burden of the flow of the water, 
can make no claim to the benefit of its continuance (/). 
So the draiiiage of agricultural land may be diverted and 
disposed of from time to time in whatever way may be 
accessible to the dominant owner, without incurring any 
liability for discontinuing it through the servient tene- 
ment (m). So where a canal company who had for many 
years discharged waste water into another canal, to the 
benefit of the latter by increasing the supply of water, by 
making certain improvements stopped the discharge of 
waste water into the servient canal ; it was held that the 
latter could not claim a prescriptive right to the continu- 
ance of the supply, because it had been enjoyed by 
sufferance only and not of right («). 

Upon the same principle where an artificial stream dis- Riparian 
charges through several properties, each riparian owner in 
turn, though he may have incurred the charge of receiving 

(J) Gockbum, 0. J., Mastm v. (m) Fereur. Woody, 7raud,Z'Ex, 

Shrewsbury Ry, Co., L. R. 6 Q. B. 778 ; Greatrez v. Saywardy 8 Ex. 

587 ; 40 L. J. Q. B. 298. 291 ; 22 L. J. Ex. 137 ; Sampson y. 

(k) Fer eur. Gaved y. Martyn, 19 Hoddinott, 1 G. B. N. S. 690; 26 

C. B. N. 8. 732 ; 34 L. J. C. P. 363. L. J. C. P. 148. 

(/) Wood V. Waud, 3 Ex. 748 ; (n) Staffordshire and Worcester 

ArJncright y. Gell, 6 H. & W. 231; Canal y. Birmingham Canal, L. R. 

(^a9ed v. Martyn, 19 G. B. N. S. 1 H. L. 264 ; 36 L. J. G. 767. 
732 ; 84 L. J. G. P. 363. 



owners. 



234 



USES AND PROFITS IN LAND OF ANOTHER. 



Permanent 

artificial 

Btreams. 



the water, and may have aoquired the right of discharging 
it, is not therefore obliged to continue the discharge. He 
iaprinid facie entitled to stop the water, wholly or in part, 
for use upon his own land. '^ Each may take and use 
what passes through his land, and the proprietor of the 
land below has no right to any part of the water until it 
has reached his own land. He has no right to compel the 
owners above to permit the water to flow through their 
land for his benefit ; and consequently he has no right of 
action if they refuse to do so (o)." But so long as the 
owners of the land above suffer the water to pass, they are 
bound to discharge it in the accustomed course and condi- 
tion, without alteration or pollution, as if it were a natural 
stream (p), — But where a permanent natural stream or 
source of water is diverted through an artificial channel, 
the owners of the tenements through which it flows may 
acquire prescriptive rights to the permanent continuance 
of the artificial stream ; and in such case the rights of 
riparian owners become presumptively the same as in the 
case of a natural stream (q). So, if a permanent system of 
collecting and .distributing water for the service of a dis- 
trict be found existing from beyond the memory of man, 
it may be presumed in favour of existing rights to have 
had a legal origin, upon which the respective rights and 
liabilities of the riparian owners are based (r). 



Disoharging 
rain-water 
from eaves of 
hoofle. 



Amongst the easements of discharging water into land of 
another may be included that of discharging rain water 
from the projecting eaves of a house or building, called in 
the civil law, Jus stillicidia immittendi. In the absence of 
an easement to that effect, the buUding of eaves or gutters 



(o) Per eur. Wood v. Waud, 3 
Ex. 779; Blackburn, J., Maton v. 
Shrewsbury Hy. Co.y L. K. 6 Q. B. 
684 ; 40 L. J. Q. B. 296. 

(p) Mayor v. Chadwick^ 11 A. & 
E. 671 ; Sutcliffe v. Booth^ 32 L. J. 
Q. B. 136. 



(q) Sutdiffe y. Booths tupra; 
Gaved v. Martyn, 19 C. B. N. 8. 
732 ; 34 L. J. 0. P. 353 ; Ivimey v. 
Stoeker, L. R. 1 Ch. 396 ; 35 L. J. 
G. 467; Boberta y. Biehards, 50 
L. J. C. 297. 

(r) Bameahur Sinyk y. Keen 
Battuk, L. B. 4 Ap. Ca. 121. 



CHAP. I. EASEMENTS. 



235 



projecting over the land of another for the discharge of 
rain water is ^n'/Ti^^o^^/i^ an actionable nuisance; and ac- 
cording to the presumption embodied in the maxim cuj'iis 
est solum ejus est usque ad ccelumy it is an act of trespass to 
the possession of the occupier («). It may also be injurious 
to the reversion of premises under demise, and entitle the 
landlord or reversioner to maintain an action ; who in such 
case may bring repeated actions for continuing the nuis- 
ance, and may claim an injunction to restrain it {t). — The 
owner pf a house or building may receive the rain water 
upon the roof and discharge it through gutters and pipes 
in a collected stream upon his own land, whence it may 
percolate naturally into the adjacent land; provided he 
does not thereby cause it to pass in a materially different 
w^ay or in a greater quantity than is natural, so as to be a 
nuisance to the owner (u). — In rebuilding a house the 
owner may retain the easement of discharging the rain 
water from the projecting eaves ; and a slight excess in the 
height of the new eaves was considered to be immaterial, 
where no greater burden was thereby thrown upon the 
servient tenement {v). 



(«) BaterCs Cote, 9 Co. 63 3 ; Feti- 
ruddockU Casey 6 Co. 100 ^ ; Fay y. 
Frentice, 1 C. B. 828 ; Cotton, L. J., 
Barris y. De Finna, L. B. 33 C. D. 
260 ; 56 L. J. C. 348. 

{t) Tuektr y. Newman, 1 1 A. & E. 
40; BathiahUlT. Jteed, 18 C. B. 696; 
26 li. J. C. P. 290. 

(m) James, L. J., West Cumber' 



land Iron Co. v. Kent/on, L. K. 11 
C. D. 786 ; 48 L. J. C. 793 ; per 
cur. ITurdman v. North Eastern Ry. 
Co., L. R. 3 C. P. D. 173 ; 47 L. J. 
C. P. 368 ; Broder v. Saillard, L. R. 
2 CD. 692; 45 L. J. C. 414. 

(v) Thomas y. Thomas, 2 C. M & 
R. 35 ; Harvey v. TFalters, L. R. 8 
C. P. 162; 42 L. J. C. P. 105. 



236 



USES AND PROFITS IN LAND OF ANOTHER. 



Easement of 
support by 
subjacent 
land. 



Presumption 
of easement 
upon sever- 
anoe of sur- 
face. 



§ 5. — Support. 

Easement of support of surface hj subjacent land—presumption of 
easement upon seyerance of surface. 

Grant of easement of support — Qonstruction of grants and rcservatioiia 
of minerals— mining leases — ^minerals under railways. 

Extent of easement — substitution of artificial support. 

Support by adjacent tenement — implied upon seyerance of tenements 
— extent of easement — artificial support. 

Support of building by subjacent and adjacent land — by grant — ^by pre- 
scription — extent of support — injury by disturbance of support of 
building. 

Support of building by adjoining building — implied grant — prescrip- 
tion — repair of servient building — injury from adjoining building. 

Support of upper story of house — repair of roof. 

The right of support for the surface of land from the 
subjacent land, where they are held as jseparate tenements, 
is an easement ; which may be created by grant, express or 
implied, upon the severance of the tenements. "The 
right is properly called an easement; though when the 
land is in its natural state the easement is natural and not 
conventional. Using the language of the law of ease- 
ments, the dominant tenement imposes upon the servient a 
positive and a constant burden, the sustenance of which by 
the servient tenement is necessary for the safety and stability 
of the dominant" (a). 

Where there is no deed or evidence of the original 
severance of the substratum or minerals, the presumption 
arises that it took place in a manner which would confer 
upon the owner of the surface a right of support. " K the 
owner of the entirety is supposed to have alienated the 
surface, reserving the minerals, he cannot be presumed to 
have reserved to himself, in derogation of his grant, the 
power of removing all the minerals without leaving a 
support for the surface; and if he is supposed to have 
alienated the minerals, reserving the surface, he cannot be 

(a) Selbome, L. 0., Dalton y. Angus, L. B. 6 Ap. Ca. 792 ; 50 L. J. 
Q. B. 730. 



CHAP. I. EASEMENTS. 



237 



presumed to have parted with the right to that support for 
the surface by the minerals which it had ever before 
enjoyed" (b). Hence the easement of support appears as 
" of common right/' that is, " where it is established that 
the upper and lower strata are in diJBPerent hands it is not 
necessary in pleading to allege, or in evidence to prove, any 
special origin for it, the burden both in pleading and proof 
is on those who assert. that the rights are different" (c). 
— ^The right of support is also sometimes referred to the 
maxim, sic utere tuo ut alienum non Icedas (d). 

Support of the surface may be the subject of express grant Grant of 

J • 1 i • • ji J J j» • n j.1. easement ot 

or stipulation m the deed oi severance ; as is generally the gupport. 
case in sales and leases of mines and minerals. '^The 
titles may show that the surface is held on the terms that 
the owner of the minerals is at liberty to remove the whole 
of them without leaving any support to the surface ; either, 
according as may be stipulated, without making any com- 
pensation for the damage thus occasioned ; or having the 
right to remove the support, but being bound to make 
compensation for the damage done by exercising that right. 
It is, in every case, a question of construction of the deeds, 
to ascertain whether the intention so to contract appears on 
the titles " (e). The general rule or presumption that the 
surface owner is entitled to support " is not confined to the 
case where the Court has not before it the instrument 
under which the owner of the minerals derives his rights ; 



(3) Per cur. Humphries v. Brog» 
den, 12 Q. B. 746. 

(c) L. Blackburn. Dixon y. White, 
L. B. 8 Ap. Ca. 8(2. 

{d) L. Chelmsford, Duke of Bue- 
eleuch y. Wakejield, L. B. 4 H. L. 
406; Selbome, L. C, Dalton ▼. 
Angut, L. R. 6 Ap. Ca. 791. But 
it is justly ol)6erved that this 
maxim, like all maxima, **is mere 
verbiage. A party may damas« 
the property of another where l£e 
law permits, and he may not where 
the law prohibits, so that the 



maxim can never be applied tUl 
the law is ascertained, and when 
it is the maxim is superfluous." 
Erie, J., Bonomi v. Backhouse, 27 
L. J. Q. B. 388. Brett, L. J., 
West Cumberland Iron Co. v. Ken- 
yon, L. R. 11 C. D. 787 ; 48 L. J. C. 
796 ; ante, p. 230. 

{e) Lord Bla<^bum, Dixon v. 
White, L. R. 8 Ap. Ca. 843 ; Bow- 
botham v. Wilson, 8 H. L. C. 348 ; 
30 L. J. Q. B. 49 ; Buceleuch v. 
WakeJUld, L. R. 4 H. L. 377 ; 39 
L. J. C.441. 



238 rSES AND PROFITS IN LAND OF ANOTHER. 

but it also applies to cases where the Court has the instm- 
ment before it^ for the purpose of construing the instru- 
ment, to this extent, that pritnd facie the right to support 
exists, and the burden lies on the owner of the minerals to 
show that the instrument gives him authority to destroy 
what is described by the judges as the inherent right of a 
person who owns the sur&ce apart from the minerals " (/). 
Consftroctkin Accordinglr, under a grant of land, reserving all 
TCe«rrmtians minerals with liberty to search for and get them, " making 
of rninenl^ j^ f,^ oompensation for the damage done to the sur&oe," 
it was held that the reservation included only so much of 
the minerals as could be got leaving a reasonable support 
to the surface ; the provision for compensation being con- 
strued to apply only to the liberty of searching for and 
getting the minerals and the ordinary surface damage done 
in exeivising it ^fj^. Under a similar grant of the surface 
r^^serving the minerals^ " with liberty of ingress and regress 
to dig and search for and take the excepted minerals ; " it 
was held that the deed gave no power to work surface 
minerals to the destruction of the surface, though they 
could not be worked otherwise ; the liberty reserved being 
construed to justify only such damage as might occur in 
getting minerals below the surface (A). A clause in an 
Inelosure Act providing that the person working the 
mines should make satisfaction for the damage of the 
ground to the person in possesion, not to exceed a certain 
sum yearly during the working for every acre, was con- 
strued to apply only to temporary damage to the occupier, 
and not to affect the presumptive right of support for the 
surfoee, which was implied in the ownership (t). — On the 
other hand where by an Indosure Act surface land was 

(/) Meffiah, L. J., ffixt t. GiU, (s) ffmrris t. B^my, 5K. & W. 

L. R. 7 Ch. 714 ; 41 L. J. C. 761 ; 60 ; Smmri t. McrUmy 5 £. & B. 

Jhtgdule T. Soierttom^ 3 K. & J, 30 ; 24 L. J. Q. B. 261 ; Dixm t. 

695 : Lord Blackburn, IHstm t. WlkiU^ L. R. 8 Ap. C». 833. 

WJiite, L. R 8 Ap. Ca. 843 ; Sel- (A) Hext t. GiU^ L. R. 7 Gh. 

borne, L. C, lort r. BtUy L, R. 9 699 ; 41 L. J. C. 761. 

Ap.CSft.28S; 63 L. J. Q. B. 267. (t) Xm# t. .Bfd; L. R. 9 Ap. Ca. 

286: 63 Ii. J. Q. B. 257. 



CHAP. 1. EASEMENTS. 239 

allotted to one person and the mines to another, and the 
award contained a covenant that the mines should be 
worked by the allottee, without being subject to any action 
by reason of the surface of the land being rendered less 
commodious by sinking, or being otherwise defaced and 
injured ; it was held that the owner of the surface had no 
claim for surface damage caused by mining, unless caused 
by wilfulness or negligence {J). Where the waste of a 
manor was inclosed and allotted, with reservation to the 
lord of the manor of all mines lying imder the waste, with 
liberty of searching for, winning, and working the same, 
" and that without making or paying any satisfaction for 
so doing " ; and it was provided that compensation for 
damage to any person's allotment by such working of the 
mines should be paid by the occupiers of the other allot- 
ments ; it was held that the Act gave to the lord of the 
manor the right to let down the surface by mining without 
making any compensation (k). But where an Inclpsure 
Act, reserving similar absolute rights of mining to the lord, 
set out certain highways over the land for the use of the 
public ; it was held that the highways were excepted from 
the general right of the lord to let down the surface by 
mining (/). Where a plot of land was granted for build- 
ing, reserving all minerals under the land, with power tor 
take them at pleasure, "but without entering upon the 
surface, so that compensation in money be made for all 
damage that shall be done to the erections on the said plot 
by the exercise, of any of the said excepted liberties"; it 
was held upon the construction of the deed that the 
grantor was entitled to take all the minerals without 
leaving any support, subject only to compensation for 
damage (m), 

{J) Rowhotham y. WiUon, 8 H. (/) BenfieJdtide y. CoMett Iroti 

L. G. 359 ; 30 L. J. Q. B. 49. Co., L. B. 3 Ex. D. 54 ; 47 L. J. 

(k) Gin y. Diekituofty L. R. 5 . Ex. 491. 

Q. B. D. 169 ; 49 L. J. Q. B. 262 ; (m) Aspden y. Sfddon, L. B. 10 

Buchanan y. Andrew, L. B. 2 So. Gh. 394 ; 44 L. J. C. 369. 
Ap. 286. 



240 USES AND PROFITS IN LAND OF ANOTHER* 

Ifining lease In mining leases, the object of which is the sale and 
removal of the minerals which form the natural support of 
the surface, the extent and mode of working out the 
minerals and consequently the right of support are in 
general specially regulated by the terms of the lease («). 
If the lease is silent or uncertain about the support for the 
surface, a right of support is presumed as a basis of the 
lease and of the construction of its terms; the right of 
support exists unless it is taken away (o). " If the terms 
of the lease are that the lessee should work in a specified 
manner, leaving certain described supports, then if the 
lessee works in that manner he would not be responsible if 
the surface subsided in consequence ; and the same would 
be the conclusion if the covenant was that he should work 
according to the usual mode of working coal mines in the 
district "(jo). Where a lease of minerals expressly stipu- 
lated for compensation to the lessor for the damage he 
might sustain by injury done to the land in getting the 
minerals and to the dwelling-houses and other buildings 
of the lessor, which the lessee covenanted to pay in a 
specified manner ; it was held that the lease contemplated 
such damage being done, and gave the lessee the absolute 
power of working without leaving support, subject only to 
the payment under his covenant (^). But where a lease 
gave certain powers of working the minerals and stipulated 
for compensation for any damage done to the surface, it 
was held that the provision for compensation applied only 
to the exercise of the given powers, and did not enlai^e the 
power of working so as to let down the surface (r). In a 
lease of an upper stratum of minerals reserving the 
underlying strata, if the lease is silent or doubtful as to 

(n) Per eur, Eadwi v. Jeffcoch, Taylor v. Skafto, 8 B. & S. 228. 
L. R. 7 Ex. 388 ; 42 L. J. Ex. 36. {q) Smith v. Darley, L. R. 7 Q. 

(o) Lord Blackburn, Davis v. B. 716; 42 L. J. Q. B. 140. See 

Trehame, L. R. 6 Ap. Ca. 467 ; 60 Atpdm v. Seddon, L. R. 1 Ex. D. 

L J Q. B. 665 ; Mundy v. Rut* 496 ; 46 L. J. Ex. 363 ; cited anU^ 

Und, L. R. 23 C. D. 81. p. 239. 

(») Ter cur, Eadon v. Jeffcocky (r) Davit v. Tr$hame^ L. R. 6 

L. R. 7 Ex. 389 ; 42 L, J. Ex. 36 ; Ap. Ca. 460 ; 60 L. J. Q. B. 665. 



CHAP. 1. EASEMENTS. 241 

the' support of the demised minerals, there is presumed 
the right to have such support as is necessary to render 
the lease effective (s). 

Where land is compulsorily taken by a railway com- Mmenls 
pany under the powers of the Eailway Clauses Act, 1845, ^y^"^' 
8 & 9 Vict. c. 20, the minerals are excepted from the con- 
veyance unless expressly named and conveyed therein. 
By 88. 78, 79, the owner is required to give thirty days* 
notice of his intention to work them, and if the company 
decline to pay compensation within that time he is at 
liberty to do so, " so that the same be done in a manner 
proper and necessary for the beneficial working thereof, 
and according to the usual manner of working such mines 
in the district ; and if any damage or obstruction be occa- 
sioned to the railway by improper working, the same shall 
be repaired or removed, and such damage made good by 
the owner, lessee, or occupier of such minerals at his own 
expense." The company has no protection for the rail- 
way and works except that given by the Act; and the 
owner of the minerals working them in the usual and 
proper manner as required by the Act is not liable for 
surface damage caused by such working (t). A purchaser 
from the railway company of land so acquired and re-sold 
as superfluous land, has no greater rights than the com- 
pany and can make no claim for surface damage caused by 
working in a proper and usual manner, either against the 
original owner of the minerals or his lessee, and though 
the latter might be bound by his lease to leave a proper 
support (w). — Conveyances of land to railway companies 
authorised imder special Acts which require the minerals 
to be reserved to the landowner, but do not incorporate 
the Eailway Clauses Act, 1845, are subject to the same 
construction as voluntary conveyances ; and the company 

(s) Mundy v. Duke of Rutland, 2 H. L. 27 ; 36 L. J. Q. B. 133 ; 

L. B, 23 0. D. 81. Midland Ry, v. Robintonf 67 L. J^ 

(/) Fletcher v. Oreat Wettem -Ry., C. 441 ; antey p. 65. 
6 H. & N. 689 ; 29 L. J. Ex. 263 ; (m) Pountney v. Clayton, 62 L. J. 

Great Weetem Ry, v. Bennett, L. R. Q. B. 666 ; L. E. 11 Q. B. D. 820. 



242 rsES AND PROFITS IN LAND OF ANOTHER. 

as surface owners are presnniptively entitled to the ordi- 
nary right of support from the minerab reserved (c). 

Extent 0* As to the degree of support it is said, " the only reason- 

able support is that which will protect the surface from 
subsidence, and keep it seciu^ly at its ancient and natural 
level" It is independent of the nature of the soil and of 
the comparative values of the surface and the minerals ; 
and it may he claimed though the minerals cannot be 
worked at all without injuring the surface, to the exclusion 
of all beneficial property in them, unless the parties come 
to some agreement for working {tc), — But it does not in- 
clude the additional support of water diffused in the soil, 
so as to prevent the servient owner from draining his land 
for mining or other purposes ; unless the subjacent water 
is made the subject of express grant or agreement (j*). 
And compensation for surface damage does not extend to 
loss of surface water and springs withdrawn by ordinary- 
mining operations (2^). 
Substitntioii The right of support does not consist in having the 
support. substratum and minerals, or a portion of them, left in their 

natural state. The right is only to have and enjoy the 
surface supported in its natural state; and the servient 
owner may take away all the subsoil and minerals, pro- 
vided he substitute some other sufficient support. Aoooid- 
ingly there is no injury or cause of action in the mere 
removal of the substratum, unless and until it produces a 
subsidence of the surface ; and consequently the Statute of 
Limitations begins to run from the latter event and not 
from the former. If after removal of the substratum an 

{v) Caledonian JJy. v. Sprot, 2 {x) Elliot v. Ifbrih Eeuiem J?y., 

Macq. 449 ; Elliot v. North Eastern 10 H. L. C. 333 ; 32 L. J. C. 402 ; 

JJy., 10 H. L. C. 333 ; 32 L. J. C. Tbppletcell v. Sodkinson, L. R. 4 

402 ; and see as to Canal Acts, Ex. 248 ; 38 L. J. £x. 126 ; ante^ 

Zancash. ^ Yorkah. Ey. v. Knowlcs^ p. 143. 

L. R. 20 Q. B. D. 391. (y) Battaeorkith Mining Co. t. 

(w) Fer cur, Humphries v. Brog^ Harrison^ L. B. 5 P. C. 64 ; 43 

den, 12 Q. B. 745; Hext ▼. Gill, L. J. P. C. 19. 
L. R. 7 Ch. 699 ; 41 L. J. C. 761. 



CHAP. 1. EASEMENTS. 243 

artificial substitute is provided in time to prevent any subsi- 
dence, there is no injury or cause of action (s). Conse- 
quently, every subsidence caused by the removal of the 
substratum creates a new cause of action, and successive 
actions may be brought for successive subsidences, though 
arising from the same removal of substratum, which actions 
will date, as regards the Statute of Limitations, from the 
times of the subsidence and not from the original removal 
of substratum ; the cause of action being, not in the act of 
removal, but in the damage caused thereby (a). 

The owners of adjacent tenements are presumptively en- Support hy 
titled, each to such support from the other, as will preserve ment.^ 
the tenements in their natural state. ^^ It is not neces- 
sary either in pleading to allege, or in evidence to prove, 
any special origin for the right; the burthen, both in plead- 
ing and iQ proof, is on those who deny its existence in the 
particular case." This right of lateral support from the 
adjacent tenement, in regard to the benefit to the dominant 
tenement and the restriction upon the use of the servient 
tenement, is properly called an easement (b). 

Upon the severance of two tenements by conveyance Implied upon 
this easement of support is implied as appurtenant to each tenemeato!^ 
tenement, ia the absence of any provision or intention 
expressed to the contrary. But if land be sold for some 
special purpose requiring excavation, as for building in a 
certain manner, it would to that extent be discharged 
of the easement of support as against the adjacent tene- 
ment of the vendor, who could only complain of exces- 
sive excavation' beyond that authorized (c). — The same 

(z) Banomi v. BaeJehottte^ E. B. & 451 ; and JSicklin v. Williams^ 10 

E. 622 ; 28 L. J. Q. B. 378 ; Back- Ex. 269 ; 23 L. J. Ex. 335. 

houae V. JBonomif 9 H. L. G. 503 ; {b) Selbome, L. C, Dalton ▼. 

34 L. J. Q. B. 181. jitiffut, L. R. 6 Ap. Ca. 792 ; Lord 

■ (a) Darley Main Coll, v. Mitchell^ Blackburn, t^. 809 ; James, L. J., 

L. B. 11 Ap. Caa. 127 ; 65 L. J. Q. Birmingham v. AlUn, L. R. 6 C. D. 

B. 529; OYemiling Xam^ y. Walker^ 292. 

L.B.3Q.B.D.389;47L.J. Q.B. {c) Murchie v. Black, 19 C. B. 

k2 






244 



rSES AND PROFITS IN LAND OP ANOTHER. 



Extent of 
easement. 



Sabstitation 
of artificial 
support. 



principle applies to the compulsory purchase of land under 
the statutory powers of railway and other companies, 
imless the statute expressly limits and defines the extent of 
support to the railway or works, as is done in the Railway 
Clauses Act, 1845. " Whether voluntary or compulsory 
eveiy grant must carry with it all that is necessary to the 
enjoyment of the subject-matter of it, and therefore if a 
certain amount of lateral support is essential to the safety 
of the railway, the right to it must pass as a necessary 
incident to the grant " ((/). 

The easement presumptively extends over so much of 
the adjacent land as is necessary in its natural state to 
support the dominant tenement' ia its natural state. It 
may extend over several tenements held in separate owner- 
ship ; but it is not enlarged against a more remote tene- 
ment by reason of the owner of an iatermediate tenement 
removing a part of the support, so as to throw a greater 
burden upon the land beyond {e). Nor is it enlarged by 
the owner of the dominant tenement removing the sub- 
jacent support of the surface, so as to increase the lateral 
support from the adjacent land (/). — The easement does 
not extend to the prevention of the servient owner from 
draining his land in a proper manner, though the conse- 
quence may be to withdraw the water from the adjacent 
soil and cause a subsidence of the surface {g). 

This easement, like that of subjacent support, " is not a 
right to have the adjoining soil remain in its natural state 
(which right if it existed would be infringed as soon as 
any excavation was made in it) ; but a right to have the 
benefit of support, which is infringed as soon as, and not 



N. S. 190 ; 34 L. J. C. P. 337 ; 
Biffbff Y. Bennett, L. B. 21 G. D. 
659. 

{d) Loid Chelmsford, Elliot y. 
North Eastern Hy., 32 L. J. C. 408 ; 
10 H. L. C. 333 ; Xorth Eastern Ry. 
Y. CrMsland, 2 J. & H. 565 ; 32 L. 
J. G. 353 ; ante, p. 242. 



{e) Birmingham y. AUen, Tu R. 
6 C. D. 284 ; 46 L. J. G. 673 ; 
EUiot Y. North Eastern i2y., 10 H. 
L. G. 333 ; 32 L. J. G. 402. 

(/) PartridoeT, SeoU, 3 K. & W. 
220. 

(ff) PoppUweU Y. Eodkimm, L. 
R. 4 Ex. 248 ; 38 L. J. Ex. 126 ; 
ante, p. 242. 



CHAP. I. EASEMENTS. 245 

• 

till, damage is sustoiiied in consequence of the withdrawal 
of that support" (h). "The taking away the soil is not 
in se wrongful. It only becomes so when followed by 
injurious consequences to the neighbour; and if, therefore, 
such injurious consequences can be ayerted by efficient 
means, as by the substitution of artificial for the natural 
support previously afforded by the soil, the removal of the 
soil is in no respect wrongful " (t). 

The easement of support presumptively incident to land Support of 
from the subjacent and adjacent tenements is limited to Bubja(MoJ imd 
the land in its natural state, and does not extend to the «^J*c«^* ^*^d. 
additional weight of buildings placed upon the land (J). 
But an easement of support for houses and buildings as 
against the owner of the subjacent and adjacent land, to a 
distance sufficient to support the bmldings, may be acquired 
by a special title of grant or prescription. " The right to 
support of land and the right to support of buildings stand 
upon different footings, as to the mode of acquiring them ; 
the former hemg primd facie a right of property, analogous 
to a right to the flow of a natural river or of air, though 
there may be cases in which it would be sustained as matter 
of grant; whilst the latter must be founded upon pre- 
scription or grant, express or implied ; but the character of 
the rights when acquired is in each case the same " {k). 
As against a stranger, showing no right in the adjacent 
land, and iheieioTBy primd facie a wrongdoer, the owner of 
a house might claim damages for a disturbance of the sup- 
port upon his mere possessory title ; for "if a house is de 
facto supported by the soil of a neighbour, this appears 
sufficient title against anyone but that neighbour, or one 

(A) Lord Blackburn, Daltan v. Ad. 871 ; Partridge y, Scott, 3 M. & 

Aftffw, L. B. 6 Ap. Ca. 808, citing W. 220 ; GayfordY. NicholU, 9 Ex. 

Baekhoute y. Bonomi, 9 H. L. G. 702 ; 23 L. J. Ex. 206. 

603 ; ante^ p. 242. {J^ I*er cur. Bonomi v. Backhouse, 

(i) Per cur. Bower y, Feate, L. R. E. B. & E. 656 ; 28 L. J. Q. B. 

1 Q. B. D. 325; 46 L. J. Q. B. 380; Selbome, L. C, Angm v. 

449. Lalton, L. B. 6 Ap. Ga. 792 ; Lord 

U) Vyatt T. Barritony 3 B. & Blackburn, ib. 809. 



I 



• -t 1^2* f/n ym^ITr ly I-A3I. -F A5 




".i:— r Tn^L-r 't:-^ AriiiJC & T»3:»"-:i liaving tlie right 
: "iirr i._ - C- r: v iill i^ zrt*!ifflBirT to Aow a title 



- .. ^^.^^ '■;^^ i-i^^ s I: c "liaii zc TWO IT. dependent land- 
I'vnrdirs- ITU j: "fitf "^"Ztsr re Twi .liifr* criiTeviiig one of 
'iL>^ iL.»-t^ t: LZi rii-i' z»dr^:c^ iLrfrr Le can do nothing 
itr •Tjrzj: fr cl L-j^ :v^ ztlz^ : azri if h-? has conveTed it 
f r 1IH- -^zTrirt-^ T^zr:* 're :■: 'lt ^- y rr£lii:i2S erected upon 
rr. Lr il:r!L -^^TLT^T- ii_* • Lz. ziLz l^i :':r.tra.-^ that he will do 
T. r" '- y t 1^ > cl vli 1 -»-Zl TsTrTrfil the s«>il he granted 
"'•^ ^ y tilr f «»^^^-r "•»^ T'izT*:*5^ f:-T 'W'^ii.ih, to his own 
r- —B-"-^':^. 3:^ *.!,4 . :*'r:--^vei ii; ani the person who has 
*:*.-iir^i ilr =»:il "^^ItT thr^-r ifr.TiziftaiLees has the addi- 
ti:::^ ri^-ht :f Litzi^ <nTT»:r: f .-r the buildings, or for 
whiter-rr ^l^e ii-it :*r the- -irft^it i?r whioh he has pnr- 
cl.i.?ei the =i:il~ . . This iziThei grant of support for 
f— " :"- ? ^ rLiT c»r i:i>ii£r*i tr exieeas provisions regarding 
it : a:^! it e-iv •:•?• n:«ii£r*i -r^r iestit':-t«Bd bv eireamstanoes 
fcivWTi t«:i to the CTintcr ani the srautee at the time of 
the grant; as wher^ it is kii:»wn to the grantee that the 
grant''>r reserves the servier^t t^r^ement for pmposes which 
jutsv a^-r.t the s^rr-irt of the a-iTaoent buildinors. Where 
land was s.-M in lots for building ac-o^iding to a general 
plan, it was held that each lot carried with it the right of 
exoavating a«xording to the plan, subjecting the right of 
Buj>port to such excavation ; so that the purchaser of each 
lot could onlv complain of excess or deviation from the 
general plan (/*). Where statutory authority is given to 
construct works in or upon land, the right of support for 
such works is in general impliedly given, subject to the 
express provisions of the Acts as to compensation to the 

(l) Jefr'xen t. Wxlhanu^ 5 Ex. 32 L. J. O. 353 ; ^ddm» y. Shorty 

800 ; liibby Y. Carter, 4 H. & N. Ii, R. 2 C. P. D. 672 ; 46 L. J. 

163 ; 28 L. J. Ex. 182. C. P. 795. 

(w) Wood, V.-C, Xorth WesUrn (n) Murehie t. Black, 19 C. B. 

Jty. T. Elliott, 1 J. & H. 145 ; 29 N. S. 190 ; 34 L. J. C. P. 337 ; 

L. J. C. 812; Caledofiian Rtj. v. Rigby y. Bennett, L. R. 21 C. D. 

Sproty 2 Idacq. 449 ; North Eastern 659. 
Jty, y. Orouland, 2 J. & H. 565 ; 



CHAP. I. EASEMENTS. 



247 



owner of the land upon which the burden is imposed ; as 
in Acts for the maintenance of sewers, or gas works, or 
waterworks, which require and authorise the laying of 
pipes through the land of others (o). The right of support 
for railways and railway works is now regulated by the 
express terms of the Eailways Clauses Act, 1845, which 
reserves the minerals to the vendor of land taken, subject 
to a right in the railway company to acquire them if neces- 
sary for the support of their works (/?). 

The easement of support for a building may also be Support by 
acquired by prescription; that is, from the long con- Prescription, 
tinuance of the building without interruption of the 
support. It is an easement within the meaning of the 
Prescription ^ct (q). The owner of the servient tenement 
has no practicable means of interrupting the support with- 
out excavatiQg his own tenement ; for no action will lie 
merely for imposing a pressure upon his tenement by 
building upon the adjacent land ; but a prescriptive title 
may, nevertheless, be acquired (r). 

The extent of the right of support for a building de- Extent of 
pends upon the construction of it ; the owner acquires by "'^PP^'*" 
use, and primd facie by a grant, such support as the build- 
ing in fact derives from the adjacent land, though the 
support may be materially extended by some peculiarity 
of the interior construction, provided there be no inten- 
tional concealment. But he cannot claim an extraordinary 
extent of support for some special construction that is con- 
cealed from the adjoining owner («). Nor can an extra- 
ordinary extent of support be claimed by reason of the 
house having been bmlt upon excavated ground, of which 

(o) Me Corporation of Dudley, 

I. A. 



L. K. 8 Q. B., B. 86 ; 61 L. J. 
Q. B. 121 ; Normanton Oat Co. y. 
Tope, 62 L. J. Q. B. 629. See 
Waterw^orkB ClaoBes Act, 1847 (10 
k 11 Vict. c. 17) ; Public Health 
Act, 1875 (Support of Sewers), 
Amendment Act, 1883 (46 & 47 
Vict. o. 37). 
(jp) AnU^ p. 241. 



(y) Selbome, L. C, Angus v. 
Bcdion, L. B. 6 Ap. Ga. 740; 
Zemaiire v. Davit f L. R. 19 C. D. 
281 ; 61 L. J. C. 173 ; post, p. 286. 

(r) Dalton v. Angus, L. . R. 6 
Ap. Oa. 740 ; 60 L. J. Q. B. 689. 

(«) Angus v. Dalton, L. R. 6 Ap. 
Ca. 740; 60 L. J. Q. B. 689; 
Ijemaitre v. Davis, L. R. 19 C. D. 
281 ; 61 L. J. C. 173 ; post, p. 291. 



248 USES AND ?ROriTS IN LAND OF ANOTHER. 

the owner of the servient tenement had no means of 
knowledge; but in such case the support might be ac- 
quired by a continuance of the house without interruption 
after the owner of the servient tenement had become folly 
aware of the facts (t). — ^The easement of support acquired 
for an existing building cannot be enlarged by increasing 
the height and weight of the building ; and if the support 
fails through the increased weight there is no ground of 
complaint (m). But the right to additional support for the 
building in its altered state may be acquired by enjoyment 
of it without interruption for a time sufficient to acquire 
an original prescriptive title (v). 
Damage to The right of support for the surface of land in its natural 

distarbaDoe of state is not lost Or impaired by building upon it; the 
support. owner may still claim for a disturbance of the surface, so 

far as it is not caused nor aggravated by the additional 
weight of the building. If it be found as a fact that the 
weight of the building did not contribute to the injmy, 
the existence of the building upon the land is immaterial 
to the cause of action {w). And to such case damages may 
be assessed for the injury to the building consequent upon 
the wrongful disturbance of the surface, though there is 
no separate cause of action on account of the building (x). 
— The owner of a house without an easement of support 
may claim damages for an injury to the house by an im- 
proper use of the adjacent land in excess of the natural 
- and reasonable use ; or for carrying on works upon the 
land in a negligent and improper manner having regard 
to the neighbouring property (y). The negligence de- 
pends in some measure upon the knowledge of the adjacent 

(0 Fartr%dg$ v. Scott, 3 M. &W. 786. 

220 ; Brofcne y. Jtobins, 4 H. & N. {x) Hamtr t. Kfunolei, Siroyan t. 

186 ; 28 L. J. Ex. 250. Ewwles, 6 H. & N. 454 ; 30 L. J. 

(«) Murchie v. Black, 19 C. B. Ex. 102. 

N. S. 190 ; 34 L. J. C. 337. (y) Jonet v. Birdj 6 B. & Aid. 

(v) Angus v. Dalton, L. R. 6 Ap. 837 ; Dodd v. Solme, 1 A. & £. 

Ca. 740 ; 60 L. J. Q. B. 689. 493; BGQChadwiekr, 2Vou»r, 6 Bing. 

(«7) Broiciie r. Robins, 4 H. & N. N. C. 1 ; Gayfvrdy, KxcholU, 9 Ex. 

186 ; 28 L. J. Ex. 250 ; Hunt v. 702 ; 23 L. J. Ex. 206. 
Fedkcy JohzLB. 705; 29 L. J. C. 



CHAP. J. EASEMENTS. 249 

owner of the existence and condition of the hxiilding, which 
maj impose upon him the duty of exercising his rights in 
such a manner as will cause as little damage to it as pos- 
sible (s). Where a person disturbs the support of his 
neighbour's house by works upon his own land, he is not 
excused merely by reason that he engaged a contractor to 
do the works and to do them without injuring the house (a) ; 
though he is not liable for damage done merely by the 
negligence of the contractor or his workmen in doing the 
works (6). 

An easement of support for a house or building by the Support for 
adjoining building may be acquired, by grant or pre- adjoiSng^ 
Bcription, similar to the easement of support for a building *>^^§r- 
by the adjacent land ; so that the owner of the servient 
building would be precluded from removing it without 
substituting some other sufficient support (c). There is no 
presumptive right of mutual support between adjoining 
houses, in the absence of a special title ; the owner of each 
house may pull it down, provided he do so in a careful and 
proper manner, without incurring liability to the owner of 
the other (d). 

Where houses have been built together by the same Implied 
owner in a manner obviously requiring mutual support, ^^^ ' 
and are afterwards conveyed in separate tenements, there 
is implied in the conveyance, if no intention appears to 
the contrary, a grant and reservation of mutual rights 
and obligations of support between the several tene- 
ments {e). Where the porch and pediment of a house was 
built partly over the front of the adjoining house, upon a 

(z) J)odd V. Holmet 1 A. & E. (b) Butler t. Munter, 7 H. & N. 

493 ; Chadwick v. Trower, 6 Bing. 826 ; 31 L. J. Ex. 214. 

N. C. 1. W Lemaitre v. DavU^ L. R. 19 

(a) Bofcer v. PeaUy L. R. 1 Q. B. 0. D. 281 ; 61 L. J. C. 173. 

D. 821 ; 46 L. J. Q. B. 446 ; Dalton (d) Peyton v. Mayor of Xondon, 

T. Anyut, L. R. 6 Ap. Ca. 740 ; 60 9 B. & C. 725. 

L. J. Q. B. 689 ; Lemaitre v. Davis, (e) Richards v. Bose. 9 Ex. 218 • 

L. R. 19 0. D. 281 ; 61 L. J. C. 23 L. J. Ex. 3. 
173. 



250 rsEs xsD fkofits in laxd of another. 

sererance of the houses by conveyance of the former, it 
iras held that the whole porch and pediment presimiptively 
ir\?nt with it, with an appnrtenant right of support from 
the other house ^/)- 

An easement of support from an adjoining building may 

ali«> be aoquii^ by an uninterrupted enjoyment for the 

f ^ri.."¥i required to found a prescriptive title, with the know- 

le«-l^ of the owner of the servient tenement. An enjoyment 

th:it is secret or surreptitious would not found any right ; 

but it is sudicient if it be without concealment, and so open 

that it might be known to the owner of the servient tene- 

ment that some degree of support was enjoyed by the 

builiing. It is an easement within the Prescription 

Act %' . It is said, " properiy constructed houses do not^ 

as a rule, dej'end for their stability upon the existence of 

adjviniiiir houses. No man can, therefore, from the mere 

exist^rnoe in fciet of this dependence, be presumed to have 

noriv-e oi it, and as a consequence be presumed in the event 

of his not interrupting it, to acquiesce in his neighbour's 

en; ,\vnient of it- Sueh enjoyment offends against one of 

tlu* 05ir\iinal rules governing the acquisition of an easement, 

nAincly^ that the user must not be secret " (A). — Where a 

hv^us^ was supjvrted through the support of an intermediate 

hou>^ by the hoiise next adjoining, it was held, upon the 

fact:? prv»vod, that no easement of support had been acquired 

a^rainst the latter hoase merelv bv reason of the three 

livHises having rested for a long time in that position, 

K\'au:?e the supjx^rt through the intermediate house was 

not ojvn to the knowledge of the owner of the tenement 

ohargwl with the supjv^rt jK 

^•P*"' ^ An easement of support from an adjoining building does 

,/*' Fat t. C:* av. L. IL 9 Q. B. T Solcmw v. Vintnen* Co., 4 H. 

*o,^ : 44 L. J. Q. R ITS. k N. 585 ; 28 L, J. Ex. 370. The 

J ^i^.- « V, .1* -».<, I.. R, 6 Ap. jnd^rment in this case suggests that 

d. 740; oO L. J, Q. B. t^S^; no such prescriptive right can be 

lrm4,: V r. /.; w, L. K. 19 C. D. aoquin^ where the houses do not 

-SI ; 51 L, J. C. ITS. immediately adjoin. As to the 

v*' Thee^^^r. L. J., .4s/*« t. support of land through an inter- 

I^::^^ I«. R. 4 Q. B. D. 167. mediate tenement, see anU, p. 244. 



CHAP. I. EA8EMEKT8. 251 

not cast upon the owner any implied obligation to repair servient 
the building in the absence of express obligation to that ^' 

e£fect. According to the general principle of the law of 
easements the owner of the dominant tenement may enter 
upon the servient tenement for the purpose of doing what- 
ever may be necessary to maintain the support to which he 
is entitled (j). Where a house was let for a term of years 
with the appurtenant easement of support by the wall of 
the adjoining house of the lessor, and the lessee covenanted 
to repair the demised premises during the term ; the house 
having fallen out of repair by reason of the failure of the 
supportmg wan ; it was held that there was no impUed 
obligation upon the lessor to repair the wall (k). 

" There is no obligation towards a neighbour cast by Injar3r from 
law upon the owner or occupier of a house, merely as such, bnild^f 
to keep it repaired ; the only duty is to keep it in such a 
state that his neighbour may not be injured by its fall ; 
the house may therefore be in a ruinous state provided it 
be shored sufficiently ; or the house may be demolished 
altogether" (/). The occupier is primd facie responsible 
that the property is not a nuisance and injurious to others; 
but the owner may also be chargeable, if he is ultimately 
responsible for its condition (m). — If the owner pulls his 
house down, he is bound to use proper care towards his 
neighbour and others according to the circumstances, and 
is responsible for injuries caused by doing it negli- 
gently (n). He is not bound to shore up the house of his 
neighbour, xmless the latter have acquired an easement of 
support ; nor is he bound to give him notice of his inten- 
tion to pull down his own house or of the time of doing 
so ; at least where his operations are open and obvious (o). 

U) 1 Wms. Sannd. 322 (1), Potn- (m) JRustell v. Shenton, 3 Q. B. 

fret V. Sicroft; Colebeekv. Oirdlers' 449 ; Todd v. FliffM, 9 0. B. N. S. 

Co,; L. R. 1 Q. B. D. 234 ; 46 L. J. 377 ; 30 L. J. C. P. 21 ; Nelson v. 

Q. B. 225 ; Stockport Highway Board Liverpool Brewery Co., L. R. 2 C. P. 

T. Grant, 61 L. J. Q. B. 367. D. 311 ; 46 L. J. 0. P. 675. 

{k) Coiebeekv. Girdlert* Co., supra. (n) Bradbeey. Chrises Hospital, 4 

(/) Chauntler y. Sobinson, 4 Ex. M. k Q. 714. 

163. (o) Fey ton v. Mayor of London , 9 



252 USES AND PROFITS IN LAND OF ANOTHER, 

Support of The like principles apply where the stories of a house 

ofSouae.'^ are appropriated in separate tenements. Upon the grant 
or lease of an upper story with the reservation by the 
grantor of the lower story, the grantor impliedly under- 
takes not to do anything which wiU derogate from his 
grant; and the grantee or lessee of the upper story 
becomes impliedly entitled to the support of the lower 
story (p). The owner of the lower or servient story 
cannot, in absence of covenant or agreement, be charged 
with the further obligation to repair ; the owner of the 
upper story being entitled, as an incident of his easement, 
to enter upon the servient tenement and provide the 
necessary support, though he cannot compel the owner of 
K«pair of the servient tenement to do so (^).— So, if a lease be made 
of the lower story of a house reserving to the lessor the 
upper story, it seems that the lessor is not bound to repair 
the roof, nor subject to an action for not doing so, without 
a covenant or agreement on his part for that purpose ; but 
the lessee may repair the roof himself as incident to the 
demise (r). — The occupier of a separate story is respon- 
sible if he makes an improper or negligent use of his 
tenement to the injury of the other occupiers. Thus, 
where the occupier of a warehouse put so great a weight 
on the floor that it fell through into the cellar occupied by 
another person, he was held liable for the damage caused 
to the goods in the cellar («). 

B. & C. 725 ; Ckadtcick v. Trotcer, D. 234 ; 45 L. J. Q. B. 226. 

6 Bing. N. 0. 1. (r) 1 Wms. Saund. 322 (1), Fom* 

{p) Parke, B., Harris y. Ryding, fret v. Rieroft. 

6 M. & W. 71 ; per cur. Humphries (s) £dwards v. Halinder, 2 Leon. 

V. Brogden, 12 Q. B. 756. 93 ; Top. 46 ; Stevens v. JFoodward^ 

(q) See post, pp. 279, 280 ; Cole- L. R. 6 Q. B. D. 318 ; 60 L. J. 

beck V. Oirdlers' Co., L. R. 1 Q. B. Q. B. 231. 



CHAP. I. EASEMENTS. 253 



§ 6. — ^Fences. 

Obligation of fencing land — trespaas of cattle. 

Bight to have fence maintained upon adjoining land — grant — pre- 

Bcription. 
Extent of right and liabilitj — damagee recoverable. 
Ownership of fence — party wall*. 
Fencing of mines — fencing of raUways — ^level crossings. 

There is no presumptive obligation upon the owner of a Obligation of 
close of land towards the owner of the adjoining close to ^®^^fif ^"'^ 
fence the boundary of his close. " The law," it is said, 
** bounds every man's property and is his fence." But 
every man is bound to keep his cattle from straying on the 
land of others, and is liable for trespasses committed by 
his cattle and for all damages that are the direct natural 
consequence of such trespasses (a). The same rule pre- 
vails between persons having rights of common of pasture 
over land and the owner of the adjoining land. There is 
no obligation to fence against the commoners, who must 
keep their cattle from straying ojEE the common, although 
there is no fence or marked boundary to the adjoining 
land (6). But the lord of a manor or his grantee who 
incloses waste under the Statute of Merton is bound to 
fence against commoners (c). And there is in some places 
between adjoining commons a custom of interconmioning 
known in law as cammon pur cause de vicinage^ which has 
the force of excusing the straying of cattle from one to 
the other, so long as the commons remain open and 
unfenced (d). 

^^ In the case of animals trespassing on land the mere Trespass of 
act of the animals, which the. owner could not foresee, or ^*"®' 
which he took all reasonable means of preventing, may be 

(a) Per cur. Star v. Sooketby, I 888. 

Salk. 335; Churchill y. Evans, I {c) 2 Go. Inst. 87; Barber y. 

Tannt. 629; JSllis y. Lo/tug Iron Whiteley, 34 L. J. Q. B. 212. See 

Co., L. R. 10 C. P. 10; 44 L, J. pott, p. 363. 

C. P. 24. (d) Heath y. Emott, supra. See 

(b) Heath y. EUi»tt^ 4 Bing. K. G. post^ p. 388. 



254 USES AND PROFITS IX LAND OF ANOTHER. 

a trespass, inasmuch as the same act, if done hj himself, 
wonld have been a trespass " {e). Upon this principle the 
owner of a horse was held liable for the horse kicking and 
biting another in the adjoining field through the fence ; 
because the head and feet of the horse must have been 
extended into the adjoining field in order to do the injury, 
and so committed a trespass (/). So the sending a dog 
into the land of another is a trespass; but it is not ^^a 
trespass by entering or being upon knd" within the 
statute 1 & 2 Will. IV. c. 32, s. 30, which renders such 
trespass, if committed in pursuit of game, penal (g). The 
claim of damages for trespasses of a.Tiinin.lH extends to 
damages that may be directly attributable to some special 
vice of the trespassing animal of which the owner was 
ignorant ; although the owner is not generally liable for 
injuries committed by a mischievous animal unless he is 
aware of its mischievous nature (h) . Where a straying horse 
kicked a child, it was held that the child, who had no claim 
for a trespass and its consequences, could not recover for 
the injury unless he could prove that the owner of the horse 
had knowledge of the propensity of the horse to kick (f). 

Right <rf But the owner of a close of land may acquire tiie right 

nponadjoin- ^^ havmg a fence mamtamed upon the adjommg close for 
ing close. j^jg l)enefit ; and such right may be appurtenant to the one 
close as an easement, and the corresponding obligation may 
be imposed upon the other close as a servitude. This 
right is more than a mere easement of using the servient 
tenement for the support of a fence, inasmuch as it 
imposes upon the servient owner the positive obligation of 
maintaining and repairing the fence for the service of the 
dominant tenement. The obligation attaches to the tene- 

{e) Brett, J., EllU v. Lofhu Iron 860 ; 24 L. J. M. 113. 

Co., L. R. 10 0. P. 13; 44 L. J. (h) Zee y. Eiiey, 18 0. B. N. S. 

C. P. 24. 722 ; 34 L. J. C. P. 212. 

(/) Ellis V. Lo/ius Iron Co., (i) Gox v. Burbidge, 13 C. B. N. 

L.R. lOC.P. 12;44L.J.O.P.24. S. 830; 32 L. J. C. P. 89; ei- 

(^) The Queen y. Prott^ 4 E. & B. plained in. Lee y. MUey^ tupra. 



CHAP. I. EASEMENTS. 255 

ment, like a covenant running with the land, and is charge- 
able upon the occupier by reason of his possession (j) . 

This right may be claimed by a special title of grant, or 
by prescription ; it may also be created by Act of Parlia- 
ment, as is frequently the case in inclosures of commons (A;). 
— ^Where the owner of two closes separated by a fence Grant, 
sells and conveys one close and reserves the other with the 
fence upon it, in the absence of express terms of grant or 
agreement, there is no implied grant of the easement of 
having the fence maintained for the benefit of the close 
Bold ; nor is there any obligation upon the vendor or his 
assigns to continue to maintain the fence (/). ^'Even 
where adjoining lands, which have once belonged to dif- 
ferent persons, one of whom was bound to repair the fences 
between the two, afterwards become the property of the 
same person, the pre-existing obligation to repair the 
fences is extinguished by the unity of ownership ; and 
where the person who has so become the owner of the 
entirety afterwards parts with one of the two closes, the 
obligation to repair the fences does not revive, unless ex- 
press words be introduced into the deed of conveyance for 
that purpose" {m). The same principle applies upon a 
lease of one of adjoining closes ; in the absence of express 
stipulation in the lease there is no implied obligation upon 
the lessor to maintain existing fences of the closes reserved 
by him adjoining the demised land, so as to prevent 
the cattle of the lessee from straying on to them (n). On 
the other hand the tenant is presumptively boxmd to main- 
tain the fences upon the land demised, and is liable to the 
landlord for not so doing upon the ground of the waste or 
injury done to the inheritance (o). 

{J) star V. Bookeshy, 1 Salk. (/) BayU v. Tam/yw, 6 B. & C. 

836; Cheethamr,Eampsofiy4T.R. 829. 

818. Un) Fer eur. Boyle v. Tamlytiy 

a) Slary. Eooketby, 1 Salk. 336; 6 B. & G. 337. 

Buller, J., Rider v. Smith, 3 T. R. (w) Erakine v. Adeane, L. R. 8 

768; Melliah, L. J., Ertkine y, Ch. 763 ; 42 L. J. 0. 836. 

Adeane, L. R. 8 Ch. 763 ; 42 L. J. (o) Kenyon, C. J., Clieetham v. 

0. 838. Hampton, 4 T. R. 319 ; ante, p. 36. 



256 USES AKD PROFITS IN LAND OF ANOTHER. 

Presoiiption. The right of having a fenoe maintained upon the ad- 
joining close, with the corresponding obligation, may be 
established by prescription, that is, by proof of the fence 
haying been constantly maintained and repaired in compli- 
ance with the obligation (/>). The mere fact of maintain- 
ing the fence is no proof of the obligation; for it is 
presumed to be maintained for the use of the owner him- 
self rather than of the owner of the adjoining land, though 
it may serve equally for the use of both. In order to 
prove a prescriptive right the fence must have been main- 
tained under circumstances presumptive of legal obliga- 
tion (q), A complaint by the owner of a close to the 
owner of the adjoining close of the escape of the cattle of 
the former through defects in the fence of the latter, would 
amount to a claim of right to have the fence repaired ; 
because the complainant would otherwise be boimd him- 
self to keep his cattle from escaping; therefore repairs 
done in consequence of such complaint would be evidence 
of the obligation upon the servient tenement. But a 
complaint of the trespass of cattle from the adjoining close 
through defects of the fence would not import any claim 
of right as to the fence ; because the owner of the cattle 
would be equally bound to keep them from trespassing, 
with or without a fence, and repairs done would not be 
evidence of any right or obligation (r). Where it ap- 
peared that a close of land was an ancient indosure from 
the waste of a manor, and that the owners and occupiers 
had always maintained the fence against the cattle of the 
commoners of the waste ; it was held to be a proper in- 
ference that the close was originally granted subject to the 
obligation of maintaining the fence, and that the obliga- 
tion continued for the benefit of a recent inclosure of an 
adjoining part of the waste («). 

{p) Lawrence v. Jenkins, L. R. 8 (r) Boyle ▼. Tamlyn, 6 B. & C. 

Q. B. 279; 42 L. J. Q. B. 147. 329; Lawrence v. Jenkins, L. R. 

{q) Boyle v. Tamlyn, 6 B. & C. 8 Q. B. 274 ; 42 L. J. Q. B. 147. 
829 ; ffwUon y. Tabor, L. R. 2 Q. («) Barher v. WTnteley, 34 L. J. 

B. D. 290 ; 46 L. J. Q. B. 463. Q. B. 212. 



CHAP. I. EASEMENTS. 257 

The obligation upon the owner of the servient tenement Extent of 
imports generally the maintenance of a sufficient fence at Jiftjiity. 
all times and in all events, the act of God and vis niqjor 
only excepted. He is responsible for defects in the fence 
whether caused by his own negligence or that of servants, 
or by strangers or trespassers. He is not excused by want 
of notice to repair it, nor by want of a reasonable time for 
repairing it after notice of the defects {t), — The occupier 
of the dominant tenement may recover not only in respect 
of his own cattle escaping through a defect in the fence ; 
but also for the cattle of others in his possession, whether 
on hire, or for reward, or as gratuitous bailee (m). Also a 
person using the dose for his cattle by the licence of the 
occupier, and though only for that occasion, is equally 
entitled to recover (t). And if cattle from any other cause 
were lawfully upon the dominant close, the owner of the 
cattle may recover for their escape through a defect in the 
fence of the servient close (tr). But if the cattle were 
wrongfully upon the dominant close, the owner of the cattle, 
having no claim upon the servient owner in respect of the 
fence, is liable for a trespass of his cattle upon the servient 
tenement {x), — On the other hand, the occupier of the ser- 
vient tenement has no remedy against the dominant owner 
for trespasses of cattle entering through a defect in the 
fence ; for it is sufficient answer to his claim that he, or 
those under whom or by whose licence he occupies, are 
bound to keep the fence in repair (y). Nor has he any 
remedy for damages done by the cattle after entering, as 
by breaking down inner fences ; for such damage is the 

(0 Latrrenee v. Jenkins, L. R. 8 {x) Ertkine v. Adeane^ L. R. 8 

Q. B. 274 ; 42 L. J. Q. B. 147. Ch. 766 ; 42 L. J. C. 835 ; EicketU 

(tt) Booth Y. mison, i B. & Aid. v. East India Docks Ry,, 12 C. B. 

59: 160 ; 21 L. J. C. P. 201 ; Dovatton 

Iv) Dawson v. Midland £y., L. R. v. Payne, 2 H. Bl. 631. 
S Ex. 8 ; 42 L. J. Ex. 49 ; per cur, (y) Nowel v. Smith, Cro. Eliz. 

Zeke*s Case, Dyer, 365 b, 709 ; Carruthers v. Hollis, 8 A. & 

iw) Per cur. Jones v. Itohins, 10 E. 113; Wiseman v. Booker, L. R. 

Q. B. 640, explaining Smith v. 3 C. P. D. 184 ; Child v. Heam, 

Baynard, 3 Keble, 417. L. R. 9 Ex. 176 ; 43 L. J. Ex. 100. 



L. 



8 



258 



rSES AXD PROFITS IN LAND OF AXOTUKR. 



I>ainageB 
zeooTerable. 



oonsequenee of the defect of the fence (s). He has no right 
to distrain the cattle ; nor is he justified in taming them 
out into a highway and there leaving them ; hut it seems 
that he must put them hack into the adjoining close from 
which they escaped {a). 

The damages recoverahle for an escape of cattle through 
the defective fence include all injuries to the cattle reason- 
ably attributable to the risks that the cattle incur upon the 
servient close ; as in cases where the cattle were there 
killed by falling into a ditch, and where they were killed 
by a hay-stack falling upon them (J), and where they 
were poisoned by feeding on the leaves of yew trees fliere 
growing (c). 



OwBenhip of 
fenoe. 



The ownership of ancient boundary fences is frequently 
a matter of mere presumption. In the case of the ordinary 
hedge and ditch fence between two closes of land the pre- 
sumption is that the boundary of property is the outside of 
the ditch, so that both hedge and ditch primd fade belong 
to the close on the side of the hedge ; this presumption 
being founded on the general custom of the country to dig 
the ditch at the boundary line and to throw the earth 
inwards to form the bank of the hedge {d). The filling 
up and obliteration of the ditch in process of time and an 
adverse occupation of the surface by the adjoining owner, 
as by cultivating it or building upon it, may create a pos- 
sessory title in him to the site of the ditch imder the 
Statute of Limitations {e). But the mere straying and 
feeding of cattle upon the site of the ditch is not a suffi- 



(e) SingUton v. Williamson^ 7 H. 
&N. 410; 31 L.J. Ex. 17. 

{a) Singleton v. Williamson, supra; 
Carruthers v. HoUiSy supra. 

(b) Anon., Yentna, 256; JPoivell 
V. Salisbury, 2 Y. & J. 391. 

{e) Lawrence ▼. Jenkins, L. R. 8 
Q. B. 274 ; 42 L. J. Q. B. 147. 
As to the responsibility for yew 
tress and other matters noxious to 
cattle upon the adjoining dose, 



Crowhurst v. Amersham, L. R. 4 
Ex. D. 6 ; 48 L. J. Ex. 109 ; WU^ 
son V. Newberry, L. R. 7 Q. B. 31 ; 
41 L. J. Q. B. 31 ; r%rtk ▼. Bow- 
ling Iron Co., L. R. 3 C. P. D. 
264 ; 47 L. J. C. P. 368. 

(rf) Lawrence, J., Vowles v. Mil- 
ler, 3 Taunt. 138; Holioyd, J., 
Doe V. Pearsey, 7 B. & 0. 307. 

(e) Norton v. London ^ N. W, 
Ry., L. R. 13 G. D. 268. 



CHAP. 1. EASEMENTS. 259 

dent adverse possession to support such a title ; nor is the 
clipping or mending of the fence alone sufficient (/). 

Upon a lite principle if a wall or fence between two Party- wall, 
properties is constructed with buttresses, posts, or spurs on 
one side, so as to show an inner and an out^ face, it is 
presumptively the property of the owner of the land on the 
inner side. If the wall or fence be uniform on* both sides, 
in the absence of evidence of exclusive ownership, it is pre- 
sumptively a party- wall ; that is, a wall bmlt half on the 
land of each of the adjacent owners and belonging to them 
in undivided moieties as tenants in common {g)» The pre- 
sumptive ownership arising from the position and form of 
the wall may be rebutted by evidence of title to the entire 
wall, or to the several halves, in separate ownership (A). 
The wall may be a party- wall to a certain height, and above 
that height an external wall in several ownership (»). A 
description of property as " enclosed by a wall " imports 
that the wall is part of the property, so that a purchaser 
would not be compelled to take it without the wall (j) . And 
a property cannot be said to " front, adjoin or abut " upon 
a road, if separated from the road by a wall belonging 
to another person (k). — One of co-tenants of a party- wall 
may repair it, and may pull it down, if necessary, for the 
temporary purpose of rebuilding it; but permanent destruo* 
tion of the wall or exclusion of the other tenant from the 
use and possession, is wrongful (/). Each co-tenaiit is 
responsible for his own wrong or negligence in dealing 
witti the party- wall, ^d for the damage caused thereby 
to the other co-tenant (m) — Under the Metropolitan Build- 

(/) Searby v. Tottenham Ey, Co., C. D. 309 ; 54 L. J. C. 606. 

Ij. B. 6 Eq. 409. (*) Lightbound Y.Bebington Local 

iff) CubUt V. Forter^ 8 B. & C. Board, L. R. 16 Q. B. D. 677 ; 65 

267 ; Watmm v. Gray, L. R. 14 L. J. M. 94. 

C. D. 192 ; 49 L. J. C. 243. (0 Cubitt v. Pttrter, 8 B. & 0. 

(h) Matts V. Hawkins, 6 Taunt. 267; Standard Bank x. Stokes, Jj.B,, 

20 ; Murly v. McDermott, 8 A. & E. 9 C. D. 68 ; 47 L. J. C. 664 ; JFat- 

138. ion ▼. Gray, L. B. 14 C. V. 192 ; 

(0 Weston V. Arnold, L. B. 8 Ch. 49 L. J. 0. 243 ; Stedman v. Smith, 

1084 ; 43 L. J. 0. 123. 8 E. & B. 1 ; 26 L. J. Q. B. 314. 

{j) Brewer v. Brown, L. B. 28 (m) Bradbee v. Christ's Hospital, 

s2 



260 



USES AND PROFITS IN LAND OF ANOTHER. 



ing Act, 18 & 19 Vict. o. 122, the rights of dealing with 
party-walls are regulated exclusively by the provisions of 
that Act relating to "Party Stractures," s. 83, whidi 
supersede or qualify the common law rights of property. 
For the purposes of the Act a party-wall is defined by 
reference to the use made of it, independently of the owner- 
ship (/). 



'PencSng of 
mines. 



Fenoing^ of 
rail way. 



Where minerals are separated from the ownership of the 
surface with the right of digging shafts and working 
through the surface, in the absence of express stipulation, 
there is an implied obligation on the owner of the minerals 
to fence the shafts for the protection of the owner of the 
surface ; in which case the fence is maintained upon the 
dominant tenement (m). There is a statutory obligation 
to fence the shafts of abandoned mines, by the Metal- 
liferous Mines Begulation Act, 1872, 35 & 36 Viet, 
c. 77 (n). The auany Fencing Act, 1887, 50 & 51 Vict. 
0. 19, provides that " any quarry dangerous to the public 
in open or unenclosed land within fifty feet of a highway 
or place of public resort dedicated to the public shall be 
kept reasonably fenced for the prevention of accidents, and 
unless so kept shall be deemed to be a nuisance." The 
term quarry is defined in the Act. 

By the Railways Clauses Act, 1845, 8 Vict. c. 20, s. 68, 
it is provided that '' The company shall make and at all 
times maintain for the accommodation of the owners and 
occupiers of lands adjoining the railways, sufficient fences 
for separating the land taken for the use of the railway 
from the adjoining lands not taken, and protecting such 
lands from trespass, or the cattle of the owners and occu- 
piers thereof from straying thereout, by reason of the rail- 

4 M. & G. 761 ; Hughes v. Pereival, (m) Groucott v. TFilliams, 4 B. 

L. R. 8 Ap. Ca. 443; 52 L. J. & S. 149; 32 L. J. Q. B. 237; 

Q. B. 719. Churchill y. Evansy 1 Taunt. 529; 

m Knight v. Pursell, L. R. 11 Ifawken v. Shearer , 66 L. J. Q. B. 

C. D. 412 ; 48 L. J. C. 396 ; Sian- 284. 

dard Bank y. Stokes, L. R. 9 G. D. (n) Arkwright y. Evam^ 49 L. J. 

68 ; 47 L, J. G. 664. M. 82. 



CHAP. I. EASEMENTS. 261 

way : provided that the company shall not be required to 
make any accommodation works with respect to which the 
owners and occupiers of the lands shall have agreed to 
receive and shall have been paid compensation instead of 
the making them." The statutory obligation does not 
apply to fencing between the railway and adjoining land 
of the railway company, as a yard retained by the com- 
pany for the use of persons driving cattle to and from the 
line (o) ; or a tramway adjoining the line kept for the use 
of the public upon payment of toUs(jt?). — The statutory Extent of 
obligation extends to the owner and occupier of the ad- ^***^*y- 
joining land and to persons using the land with their 
licence ; who may recover for the loss of cattle straying on 
to the line through defects in the fence. But there is no 
general liability to other persons having no right or interest 
in the adjoining land, and whose cattle are not rightfully 
using it; and no claim can be made against a railway 
company for loss of cattle which were trespassing upon 
adjoining land and thence strayed on to the line {q). Com- 
pensation made under the proviso of the section to the 
owner of land instead of a fence does not discharge the 
obligation to the occupier during his then existing tenancy ; 
and a tenancy from year to year was held to be a continu- 
ing tenancy for this purpose until determined by notice (r). 
A passenger on the railway cannot charge the company 
upon this statutory obligation in the case of cattle breaking 
through the fence on to the line and causing an accident ; 
he can only charge them upon the groimd of negligence in 
the protection of the line («). Neither the company nor 
any person in their employment can complain of a trespass 
of the cattle of an adjoining owner through a defect in the 

• (p) SoberU V. Great WetUm JRy., see Sneesby v. LaneoMhire ^ Y, JZy., 

4 C. B. K S. 506. L. R. 1 Q. B. D. 42 ; 45 L. J. 

ip) Marfell ▼. South WaUt Ry., Q. B. 1. 
8 C. B. N. S. 626. (r) Corry v. Great Westei-n Ry., 

(q) Jticketts v. East ^ W. India L. R. 7 Q. B. D. 322 ; 60 L. J. 

Doek$ Ry., 12 G. B. 160 ; 21 L. J. Q. B. 386. 

C. P. 201 ; Datoton y. Midland Ry,^ (») Buxton v. N. Eastern Ry., L. 

L. R. 8 Ex. 8; 42 L.J. Ex.49; B.3Q.B.649; 37 L. J. Q. B. 268. 



2G'2 VSES JkSD TMOTITS VS LXSB OF AXOTHER. 

tesjx 'mhi'.h. ihe c^ysupsny aie bound by the statute to 



The stAnt^ry obligation npon a raHway oompanj of 
tee^iiLZ tLe gates oli^sed at level croaangs over highways 
ext€3Lds to all f ^99>ii5 and cattle whether lawfully nang 
the highway or not ; and the owner of cattle killed on the 
line may recov-er for the loss, though they had strayed off 
his land on to the highway and thioogh the open gates of 
the level crossing * . The statutory obligation does not 
apply to a private railway constraeted for private purposes 
across a highway by leave of the highway authority ; the 
owner of such laHwav is not bound to fence it, nor is he 
liable for the loss of cattle trespassing npon it (u). 



Sectiok TTT, Crbatiok of Easbments. 

{ 1. Giant.— { 2. Treaeaptiaa, 

§ 1. — Grant. 

Eoflements created bj giant or presciiptioii — giant bj deed— parol 

grant —Statute of Frauds — exception or reaeryation of eaaemeDta — 

easements taken under Lands Clauses Act. 
Implied grant of necessary easements — way of necessity. 
Implied grant of apparent and continuous easements — no easement 

implied in derogation of grant — easements implied upon simul- 

taneous grant of two tenements. 
Grant of tenement '* with appurtenants" — grant of easements "used 

and enjoyed*' with tenement — construction of grants — easements 

reriyed after unity of possession — Conyeyancing Act, 1881. 
Implied grant of rights accessory to easements — right of miLmtommAw 

and repair — obligation of servient owner. 

Easementi Easements are classed as incorporeal hereditaments; 

being incapable of possession and consiBting in use only. 

(«) Child V. Seam, L. R. 9 Ex. 8, JT. Ry., 2 H. & N. 424 ; 26 

176 ; 43 L. J. Ex. 100. L. J.Ex. 349; CharmanY.S. EatUni 

(0 6 & 6 Vict. c. 66, 8. 9 ; 8 Vict. J2y., W. N. 1888, p. 182. 
0. 20, 8. 47 ; Fatccett v. York and («) Matstm v. Baird, L. R 3 Ap. 

Midland By., 16 Q. B. 610 ; 20 Ga. 1082. 
L. J. Q. B. 222 ; BlHs y, Zondon f 



CHAP. I. EASEMENTS. 263 

They are thus distinguished, as subjects of property, from grant or pre- 
the land itself to which they are appurtenant, which is held ""^^ ^' 
in possession, and which at common law was transfen*ed 
by delivery of possession, and therefore was said to lie in 
livery; while easements and other incorporeal heredita- 
ments were said to lie in grant («). Accordingly ease- 
ments may be created by express grant by the owner of 
the servient tenement; or they may be established by 
prescription, that is, by use of the easement during the 
time required by law to raise the presumption of a grant. 
" Except where the positive law steps in, and in the absence 
of any legal origin gives to a* fixed period of possession or 
enjoyment the status of absolute and indisputable right, 
every easement as against the owner of the soil must have 
had its origin in grant" {b). 

The grant of an easement, as of all incorporeal heredita- Grant by 
ments, must be by deed sealed and delivered; for "the 
deed of incorporeate inheritances doth equal the livery of 
oorporeate "(<?). Easements may also be created by testa- 
mentary devise, which for this purpose is equivalent to a 
grant by deed, and is subject to the same rules of con- 
struction and application {d). — ^The grant of an easement Grant for 
for a limited estate also requires a deed. " Although the 
authorities speak of incorporeal inheritances^ yet the prin- 
ciple does not depend on the quality of interest granted or 
transferred, but on the nature of the subject-matter; a 
light of common, for instance, which is a profit & prendre, 
or a right of way, which is an easement, can no more be 
granted or conveyed for life or for years without a deed, 
than in fee simple " (e). By the Conveyancing Act, 1881, Conveyandng 
44 & 45 Vict. c. 41, s. 62, easements may be granted by ^^ 

(a) Go. litt. 9a,b; ante, p. 186. 571; eeeJPoldeny. Bastard, h.B,. I Q. 

h) Cockbum, 0. J., Aftffut v. B. 166 ; 35 L. J. Q. B. 92 ; Barnes 

Dalton, L. R. 3 Q. B. D. 102 ; 47 t. Loach, L. B. 4 Q. B. D. 494 ; 

li. J. Q. B. 176. 48 L. J. Q. B. 766. 

(<?) Co. Lit. 9 a, h ; per eur, (e) Per cur. Wood v. Leadbitter, 

Wood V. Leadbitter, 13 M. & W. 13 M. & W. 842; ffewlinsY. Ship- 

842. pam, 5 B. & 0. 221 ; Bule of Somer' 

(rf) Pearson v. Spencer, 1 B. & S. set v. FogweU, 5 B. & 0. 876. 



264 



USES AND PROFITS IN LAND OF ANOTHER. 



Easements 
pass as ap- 
purtenant. 



Parol grant. 



Statute of 
Frands. 



way of use. " A conveyance of freehold land to the nee 
that any person may have, for an estate or interest not 
exceeding in duration the estate conveyed in the land, any 
easement, right, liherty or privilege in, or over, or with 
respect to that land or any part thereof, shall operate to 
vest in possession in that person that easement, right, 
liherty or privilege, for the estate or interest expressed to 
be limited to him." 

But where easements have once been created as appur- 
tenant to a tenement, they pass with the tenement by any 
effectual mode of conveyance in law or in fact; and 
equally with or without express mention of appurtenants 
in the conveyance of the dominant tenement. So at 
common law easements appurtenant to land passed by 
livery of seisin of the land without deed(/). And a 
demise of land without a deed, so far as it may be valid, 
will carry with it an appurtenant easement, as a right of 
way, because "the principal subject of demise is corporeal 
and the other right is a mere incident " ; but " i£ a right 
of way were granted de novo a deed would be requi- 
site" (^). 

The grant of an easement by parol only without a deed, 
though expressed to be absolute and perpetual, operates as 
a licence only, justifying the use of the easement so long 
as it continues in force, but revocable at any time ; although 
the grantor may be bound by contract not to revoke it, 
and may be liable to an action for breach of contract in 
revoking it (//). But if an easement be in fact used and 
enjoyed by permission of the servient owner, though with- 
out a valid grant, he may recover the consideration or the 
value of it (t). — An easement appurtenant to a dominant 
tenement is " an interest in or concerning land " within 
the fourth section of the Statute of Frauds, and therefore 
any contract or agreement concerning it must be in 



(/) Lit. 8. 183 ; Co. Lit. 121 b ; 

Saeheverillv, Forter^ Oro. Oar. 482. 

{g) Per cur. Bird v. Sigginaonf 6 



A. & E. 826, 

(A) Ante^ p. 195. 

(i) Dav%9 y. Morgan, 4 B. & G. 8. 



CHAP. I. EASEMENTS. 265 

writing (y). A mere licence to use land, not being an 
easement appurtenant to land, is not an interest in land 
within that statute ; it may be given without deed and 
without writing (k). A licence is essentially revocable ; 
only if attended with a valid grant of property it is not 
revocable in derogation of the grant (/). — A contract to 
grant an easement is a contract for the sale of real estate, 
and therefore is subject to the special rules affecting 
Buch contracts in respect of specific performance and 
damages (w). 

An easement cannot be created by way of exception Exception or 
from a grant of land, because an easement not being any ^^^^^ 
specific part of the subject of grant, like timber or minerals, ments. 
is not properly a subject of exception. Nor can it be 
created by way of reservation upon a grant, for the term 
reservation is applied technically only to rents and services 
and such things as are stipulated to be rendered for the 
tenure of land. Therefore, in making a grant of land 
with the intention of retaining an easement over the land 
granted, as appurtenant to land reserved by the grantor, 
according to the technical rules of law, the easement must 
be created by a re-grant from the grantee of the land to 
the grantor ; and the terms in a deed of grant expressing 
the exception or reservation of an easement, in order to 
eflfectuate the intention, must be construed to operate as a 
re-grant from the grantee, who becomes the owner of the 
land by the same deed (w). 

Upon the above principle that an easement is an incor- Eaaements 
poreal right and no part of the land itself, it is held that tJ^j^ q^ 
the term "land" in the Lands Clauses Act, which pro- Act. 
vides for the compulsory purchase of land for public 
undertakings, does not include easements, except such as . 

(J) MeManui v. Cookey L. B. 35 y. London School Board^ L. R. 36 

O. I). 681 ; 66 L. J. C. 662. 0. D. 619 ; 67 L. J. C. 179. 

(k) Tayler v. Watert^ 7 Taunt. (w) Durham ^ Sunderland My, 

374. Co. V. Walker, 2 Q. B. 940. See 

(q AnUj p. 197. JFiekham v. Hawker, 7 M. & W. 

(m) MeManua v. Cooke, L. B. 35 63 ; Doe v. Lock, 2 A. & £. 743. 
G. D. 681 ; 66 L. J. G. 662 ; Howe 



266 



rSES AND PROFITS IN JJLSD OF ANOTHER. 



are appurtenant to the land purchased and pass with it. If 
servient land is taken and discharged of easements under the 
absolute statutory title, the easements so lost to the 
dominant tenement are not matter of purchase as land, 
but are matter for compensation to the owner, to be settled 
in manner provided in the Act for compensating 'persons 
whose property is injuriously affected by the taking of the 
land^c'. The person thus deprived of an easement has 
no ground o£ action or injunction, but can only proceed 
for compensation under the statute (j»). Upon the same 
cv^ustruition that " land" does not include easements, the 
compulsory powers of taking land do not extend to taking 
an easement over the land of another apart from the land ; 
unlt^^ authority to do so is given by the special Act of the 
undertaking [q^. So the power of a railway company to 
divert ways does not authorise them to enter upon land to 
make a new way, without having first acquired the land 
\mder their iK)wers to purchase (r). But the special Act 
may give the power to take an easement, as the easement 
of timneUing, or bridging, or crossing on a level ; and the 
ordinary proceedings of the Lands Clauses Act will then 
apply to the purchase, subject to the provisions of the 
sj^ei^iid Act \^^"'^. 

ImpHed gnat A grant of land, being a part of land previously held 
*""***^ by the grantor in entirety, to which there could appertain 
no easements over the rest of the land during the united 



L. K. 1 C, P. 60^ ; 36 li. J. C.'P. 

L. R. 9 Ch. 120 : 43 L. J. C. 421 ; 
Ji'Jr\H r. IKucfH, L. R. 20 Eq. 
3o3: 44 L. J. O. ^9; Miu^ r. 
J/f :r,.j,. Boani. 33 L. J. C. 377. See 

6 H. L. 418: 41 L. J. Ex. 137; 
Artisans* and Labourers' Dirt'llinsrs 
Act, 1875 ,38 & 39 Vict. c. 36\ 
8. 20, extrngmshing' easements over 
land pordiased ; StdMimstam t. limn, 
62 L. J. C. 235. 



{p) Wipram. t. Fryer, 56 L. J. C. 
1098 ; L. R. 36 C. D. 87. 

(^} Jessel, M. R., Metrop. By. 
Co. uMd CWA, L. R. 13 G. D. 616; 
FiHcMim t. lA^ndtm and BlackumU 
By., 5 D. M. & 6. 851 ; 24 L. J. 
C. 417. 

(r) Btmyelty t. Midland By., L. 
R. 3 Ch. 306 ; 37 L. J. C. 313. 

s^ mU y. Midland By., L. R. 21 
C. b. 143; 51 li. J. C. 774 ; Great 
Western By. t. Sttindon By., Tt. R. 
22 C. D, 677 ; 53 L. J. C. 1075. 



CHAP. I. EASEMENTS. 



267 



possession, impliedly creates such easements for the benefit 
of the land granted over the land reserved by the grantor, 
as are necessary to render the grant effectual ; upon the 
principle that a person cannot derogate from his own 
grant. The easements thus created are described as 
" easements derived by the disposition of the owner of two 
tenements" (/), 

Accordingly, "where a man having a close surrounded Wayof neceu- 
with his own land grants the close to another in fee, for " ^' 
life, or for years, the grantee shall have a way to the 
close over the grantor's land as incident to the grant ; for 
without it he cannot derive any benefit from the grant" («). 
So where land is devised by will, to which there is no access 
except over other land of the testator, a way of necessity is 
impliedly given to the devisee («?). The doctrine applies 
to land taken imder compulsory powers for public pur- 
poses (w) ; and it applies where the grantor is a trustee of the 
close granted, without any beneficial interest (x). But the 
doctrine applies only to a grant or what is equivalent to a 
grant, from the owner of both tenements; it does not 
apply to tenements the titles to which are severed by 
escheat (y), nor does it apply in cases of necessity'arising 
from other causes than severance of title, as where a way 
has been destroyed or has become impassable (a). — The Implied gppant 
same doctrine is applied to the case where a person grants ^^'^^t!^. 
the land surrounding a close, reserving the close to himself 
without expressly stipulating for access to it ; there is then 
an implied grant of a right of way over the land granted 
for the use of the dose reserved. It is implied by way of 



{t) Hellish, L. J., Leech v. Sehwe' 
der, L. B. 9 Ch. 472 ; 43 L. J. C. 
490 ; Jamee, L. J., in Master v. 
HanMardy L. B. 4 C. D. 721 ; 46 
L. J. 0. 606. 

(») 1 Wms. Sannd. 323 n. (6), 
Fomfrei v. Ricroft ; Cairns, L. 0., 
Gayford ▼. Moffatty L. B. 4 Gh. 
136 ; Pinnington y. Galland, 9 Ex. 
1 ; 22 L. J. Ex. 348. 

(r) Fearaon. y. Speticery 1 B. & 



S. 571 ; Fheyaey v. Vicary^ 16 M. 
& W. 484. 

(w) Serff V. Aeton Local Board, 
L. B. 31 C. D. 679 ; 66 L. J. 0. 
669. 

(«) Mowton V. Frearson, 8 T. B. 
60. 

(y) Froctor v. ICodgson, 10 Ex. 
824; 24L. J. Ex. 195. 

{z) I Wms. Saond. 323 a; Ful- 
lard y. Harrieon, 4 M. & S. 387. 



L*'> ": ■^:& ijn j-B I? .Tr ZK i-A3a> or 




fc*« . 1 . « 



c tie fniiTamdmg land; and 
-3r a: ii-i: -E3:^*?ut-e the oonTeyance, by 

nr Lt Fi-V^i'ii^ ifznself to all the oondi- 
z ' — ^A mJLt cf a war of necessity is 
iier- "ier*^ 5=^ z*:- ccL^- wav. Mere con- 
. iii!Tn :•: zi^'.^^asry, there being other 




d-zn L '•:•*•* L-TLnL'-^Ie to the close, is not 
Fufi^-ei!: rrifiiLii zdt zzltI/zz^ a rrant of the way (6). If 
tirfTr tr* rr-: a^.'".:r:.lr "¥t.t?w iLev cannot both be of 
ztt*:»r*=?r^. izii rltr -rLT-TT::?!: :f tihr- vav to be used lies with 
tJL-r zTLir. :r n: "ie Jl-»f*e, -wziz 3^etitv*i the neceaaty, whether 
hr mzr.i^L :r ivstTT**! tlfr i>5e to which the necessity is 
zi-.Lir^LZ • . -If tiir :-wzj^ :f tLe serrient tenement does 
Zi.fi p •— .zi "ir Ilze :f WLT. tLei: the grantee must take 

TVliere land was laid oat 
i5r Lz'uses with a mews at 
^ to the mews throngh an 
it mus held that a purchaser 
t->:i the house subject to a 
ing notice from the building 
of the way, though the mews was 
not tL^ru in f»i -t ii:.':«re»i and was otherwise accessible (e). 
— The way may be limited in use by the requirements of 
the elc-se in its state and o:n«iinon at the time of the serer- 
ance, which would be the general presumption in the case 
of agricuitural land, requiring a way for agricultural pur- 
poses only ; but the circumstances of the grant may show 
that the land is intended to be used for all purposes and 
the way would be enlarged accordingly (/). A giant of 

fa, I Wms. Sfinnd. 323, n. '6 ; (<•} Bottom v. Boltom, L. R. 11 C. 

Pinnif^fjton t. Oalland, 9 Ex. 1 ; 22 D. 96S ; 4S L. J. C. 467, citing 

L. J. Ex. 348 ; L(mdon Corp. r. Clarke v. JSvy^e, 2 RoIL Abr. 60 ; 

JiiffffM. L. B. 13 C. D. 798; 49 L. Fack4rr t. JFeUUd, 2 Sid. Ill : and 

J. C. 297. Fearnm t. Spencer^ 1 B. & S. 585. 

{h) Jforrit T. Edgingion, 8 Taimt. (d) MeUiah, L. J., WimbUdoH 

24 ; Pkey$ey v. Vieary, 16 M. & W. Qm. y. Dixon, L. B. 1 C. D. 370 ; 

484 ; Proctor y. Hodgson, 10 Ex. 45 L. J. G. 353. 
824 ; 24 L. J. Ex. 196 ; Dodd y. («) Davie* v. Sear, L. B. 7 Eq. 

JIurchall, 1 H. & C. 113 ; 31 L. J. 427 ; 38 L. J. C. 545. 
Ex. 364; Brown y. Alabaeter, L. (/) Ante, p. 205; Ga^ard y. 

R. 37 0. D. 490 ; 57 L. J. C. 255. Mofait, L. B. 4 Qu 186; Ltmiim 



CHAP. I. BASEMENTS. 269 

land to a local board was held to cany a way of necessity 
for all purposes for which the local board was consti- 
tuted {g). — ^And it is said that a way of necessity is limited 
by the continuance of the necessity, and that it would 
cease, if by a subsequent purchase the dominant owner 
acquired a way over land of his own (h). 

The doctrine of impKed grant upon a disposition by the ImpUed grant 
owner of two tenements is extended to some easements °^*PP»^«^* 
used and enjoyed in fact .at the time of severance (though tinuoua ease- 
not strictly of necessity), by reason of their being apparent ™®^**' 
and continuous in use, as distinguished from easements 
that are not apparent and are only used occasionally, 
" There is a distinction between easements, such as a right 
of way, used from time to time, and continuous easements. 
And it is clear law that, upon a severance of tenements, 
easements used as of necessity, or in their nature con- 
tinuous, will pass by implication of law without any words 
of grant; but with regard to easements which are used 
from time to time only, they do not pass, unless th^ 
owner by appropriate language, shows an intention that 
they should pass"(«). The easements here referred to 
are " those easements only which are attended by some 
alteration which is in its nature obvious and permanent • 
or, in technical language, those easements only which are 
apparent and continuous; imderstanding by apparent 
signs not only those which must necessarily be seen, but 
those which may be seen or known on a careful inspection 

by a person ordinarily conversant with the subject " (/). 

Where a dock and adjoining wharf had been held in 

(7(wy. V. Migga, L. R. 13 C. D. 798; shire v. Grubb, L. R. 18 C. D. 620. 
49 L. J. C. 297. (i) Per cur. Folden v. Btutard, 

(y) Serf V. Acton Local Board, L. R. 1 Q. B. 161 ; 85 L. J. Q. B. 

L. R. 31 C. D. 679 ; 66 L. J. 0. 92 ; cited in Wattt v. KeUon, L. R. 

669. 6 Ch. Ap. 173 ; 40 L. J. C. 126. 

(A) Best, C.J.,ICoInu8Y.Ooring, (J) Gale on Easements, p. 100, 

2 Bing. 76 ; but see Parke, B., 6th ed., adopted in J^cr v. Carter, 

Froeior v. Hodgson, 10 Ex. 828; 1 H. & N. 916 ; 26 L. J. Ex. 261. 
24 L. J. Ex. 197; Fry, J., Bark- 



270 USES AND PROFITS IN LAND OF ANOTHER. 

united ownership, during which the ressels lying in the 
dock were placed with the bowsprits extending over the 
wharf, whereby the dock was available for larger yeasels 
than it would otherwise accommodate, and the wharf was 
afterwards conveyed separately to a purchaser without any 
. express mention of the use of it for vessels lying in the 
dock, it was held that no grant of such use or easement 
could be implied. " The easement," it was said, ** is 
not ^ continuous,' for that means something the use of 
which is constant and uninterrupted ; neither^ is it an 
' apparent easement,' for, except when a ship is actually 
in the dock, with her bowsprit projecting beyond its limits, 
there is no sign of its existence ; neither is it a ^ necessary 
easement,' for that means something without which the 
enjoyment of the dock could not be had at all " (k). 

Brains and Upon the above principle it is held that all drains then 

servmg the tenement granted over the tenement reserved 
pass by implied grant, as being apparent and continuous, 
though not described or referred to in the instrument of 
conveyance ; and drains are for this purpose considered to 
be apparent if with ordinary care and inquiry their exist- 
ence could be ascertained (/). — ^Also watercourses, consist- 
ing of some actual construction on the servient tenement 
by which water is continuously brought to the dominant 
tenement for the use of the occupier, whether naturally or 
artificially, pass under the like circimistances by impUed 
grant (w). 

Imiplied grant Upon the same principle all lights of the tenement 
granted, which are apparently supplied over adjacent land 
of the grantor, pass by implied grant (n). " Where a man 
grants a house in which there are windows, neither he nor 
anybody claiming under him can stop up the windows or 

(k) Suffield Y. Broumy 4 D. J. & (m) Nieholtu y. Chamberlain, Gro. 

8. 185 ; 33 L. J. G. 249. Jao. 121 ; Wardle y. Broeklehuntj I 

{I) Fyer v. CarUr, 1 H. & N. E. & E. 1058 ; 29 L. J. Q. B. 146 ; 

916; 26 L. J. Ex. 268; HaU y. WatU y. KeUon^ L. R. 6 Oh. 173; 

Lund, 1 H. & C. 676 ; 32 L. J. Ex. 40 L. J. G. 126. 

113. See Ewart y. Coehrans, 4 (n) Holt, G. J., Tenant y. Gold^ 

Hacq. Sc. Ap. 117. win, 2 L. Bajm. 1093. 



of Lght. 



CHAP. I. EASEMENTS. 271 

destroy the lights. That is based on the principle that a 
man shall not derogate fcom his own grant ; and it makes 
no difference whether he grants the house simply as a house, 
or whether he grants the house with the windows or the 
lights thereto belonging. In both cases he grants with the 
apparent easements or quasi easements" (o). And the 
easement is impUedly granted over the land of the grantor, 
though not strictly adjoining to the tenement granted, as 
where it is separated by a public road {p). But no similar 
easement attaches to a house built after the grant, nor to 
windows subsequently added, though \nth the knowledge 
and acquiescence of the grantor ; nor though the land was 
sold for the purpose of building, unless under obligation to 
build on a specific plan requiring a definite easement of 
light over the land of the grantor {q)» There is no differ- 
ence in ihe extent of the right thus impUedly granted and 
that acquired by prescriptive use and enjoyment; it is 
measured by the access of light in fact enjoyed at the time 
of the grant (r). It is not enlarged by an express covenant 
for quiet enjoyment in the deed of conveyance ; for such 
a covenant operates only as a further security to the sub- 
ject of the conveyance (s). — The implied grant of light 
with the tenement conveyed may be expressly excluded by 
the terms of the conveyance ; as where a conveyance was 
made of land " except rights, if any, restricting the free 
use of adjoining land or the conversion at any time there- 
after of such land for building or other purposes." But 
such exception does not prevent the subsequent acquiring 
of such rights by prescriptive use {t). It may also be 
excluded or modified by the circumstances of the con- 
veyance, as where the tenement granted forms part of 
building land of which the grant of each part is under- 



(o) Jeflsel, H. R., Allen y. Taylor, E. 176. 

li. B. 16 0. D. 367 ; 60 L. J. C. (r) Melliah, L. J., Zeeeh v. 

178. Sehweder, L. B. 9 Gh. 463; 43 

{p) Birmingham Banking Oo, y. L. J. 0. 487. 

Bou, L. B. 38 0. D. 296 ; 67 (*) Leech y. Sehtceder, supra. 

L. J. C. 601. (2 MiteheU y. CaniHll, L. B. 37 

(q) Blanehard y. Bridget, 4 A. & C. D. 66 ; 67 L. J. C. 72. 



272 



USES AND PROFIl-S IN LAND OF ANOTHER. 



Easements 
not apparent 
andoon- 
tLnnoQS. 



stood to be taken subject to buildings upon the adjoining 
land ({/). 

Bights of way, in general, are not continuous easements, 
but are of occasional use only. Accordingly it is held 
that upon the disposition of two tenements ways used 
before severance, imless ways of necessity, will not i>ass 
without words sufficient to describe and convey them (r). 
But where there is a defined and made road over the 
servient tenement to and for the apparent use of the 
tenement granted or reserved, the right of way may pass 
as an apparent easement though not a way of necessity (rr). 
Thus a road leading to entrance gates in a wall of the 
demised premises was held to pass by implied grant as 
being a continuous and apparent easement {x). So also 
a way through an archway under a house (y). A right 
of way to a well for the purpose of taking water is not a 
continuous easement, nor is it an easement of necessity ; 
and therefore it will not pass by implication upon the 
severance of the tenements, the occupiers of which had 
previously used it (2). 

Implied grant The implied easement is limited in duration to the 
estate which the grantor has in the servient tenement at 
the time of the grant, and ceases with the expiration of 
that estate. It does not affect any estate or interest which 
he may subsequently acquire ; and he may purchase the 
reversion free of all easements implied in his former grant 
unless he has bound himself by representations respecting 

Grant by them (a). An implied grant of easements can only be 



limited to 
estate of 
grantor. 



(u) Sirmingham Banking Co, v. 
Jios8, L. R. 38 C. D. 296; 57 
L. J. C. 601. 

(r) Pkqf9ey v. Vieary, 16 M. & 
W. 484 ; Worthington v. Gim»on^ 
2 E. & E. 618 ; 29 L. J. Q. B. 
116; Dodd ▼. BurchaU, 1 H. & G. 
113 ; 31 L. J. Ex. 364 ; Pearson v. 
Spencer, 1 B. & S. 671 ; 3 ib. 761 ; 
Brett V. Clawser, L. R. 6 O. P. D. 
376. 

. (u7) Bramwell, B., LangUy v. 
Hammond, L. R. 3 Ex. 171 ; 37 
L. J. Ex. 118; pir cur. JTaitt v. 



Kehon, L. R, 6 Ch. 174 ; 40 L. J. 
G. 128 ; and Brett y. Clowser, L. R. 
5 G. P. D. 382 ; Ghitty, J., Bayky 
V. Great Western By,, L. R. 26 C. 
D. 441 ; !I%<nHa9 y. Owen, L. R. 20 
Q. B. D. 225 ; 67 L. J. Q. B. 198. 

{x) Brown ▼. Alabaster, L. R. 37 
G. D. 490 ; 57 L. J. G. 255. 

(y) Davies v. Sear, L. R. 7 Eq. 
427 ; 38 L. J. G. 545 ; ante, p. 268. 

(2) Folden v. Bastard, L. R. 1 
Q. B. 156; 35 L.J. Q. B. 92. 

(a) Booth T. Aleoek, L. R. 8 Gh. 
663 ; 42 L. J. G. 557. 



CHAP. I. EASEMENTS. 273 

made over land of which the grantor is beneficial owner ; 
there can be no such implication over trust property in 
breach of the trust. A contract of sale of land is in this 
respect equivalent to a legal conveyance ; and a vendor of 
land before completion of the contract of sale, being in the 
position of trustee only for the purchaser, caunot by a 
subsequent grant and conveyance of adjacent land create 
any easement over the land previously sold (b). 

Where the owner of two tenements grants one of them No easement 
to a purchaser, there can be no implied easement over the dero^tlozL of 
tenement granted for the benefit of the tenement reserved sraat. 
by the grantor. " The grantor cannot derogate from his 
own absolute grant, so as to claim rights over the thing 
granted ; even if they were at the time of the grant con- 
tinuous and apparent easements enjoyed by an adjoin- 
ing tenement which remains the property of him, the 
grantor" (c). In such cases "it appears to be an im- 
material circumstance that the easement should be ap- 
parent and continuous, for non constat that the grantor 
does not intend to relinquish it, imless he shows the 
contrary by expressly reserving it. The law will not 
reserve anything out of a grant in favour of the grantor 
except in case of necessity" {d). Accordingly if the owner 
of a house and land grants away the land, reserving 
to himself the house, without expressly stipulating for 
the access of light, there is no implied grant by the 
purchaser of the land of the light previously used for the 
house ; for such implication would operate in derogation 
of the express grant of the land. The purchaser may 
build upon the land as he pleases and thereby obstruct the 
light {e). 

{b) BeddingUm v. Atke, L. B. 35 (<Q Chelmsford, L. C, CrottUy v. 

C. D. 328 ; 66 L. J. 0. 666. liffhtowler, L. K. 2 Ch. 486 ; Cot- 

{e) "Westbury, L. C, St^ffUld v. ton, L. J., Mtusell v. Watts, L. B. 

Brown, 4 D. J. & S. 194 ; .33 L. 26 0. D. 572. 

J. C. 269 ; Wheeldon v. Burrows, (e) Holt, O. J., Tenant y. Gold- , 

L. B. 12 0. D. 42; 48 L. J. C. win, 2 L. Bavm. 1093; Whits v. 

853. Bass, 7 H. & N. 722 ; 31 L. J. Ex. 

L, T 



274 



USES AND PROFITS IN LAND OF ANOTHER. 



Eaaements Where two tenements are sold and conveyed at the 

rimidtaiSous 8*"^© time bj the same vendor to different purchasers, eauch 
grants of two being aware of the sale to the other, all the apparent and 
continuous quasi easements in use over the tenements at 
the time of the sale, in the absence of express stipulatioii, 
are impliedly granted with them. It is considered in 
equity as one transaction (/). Thus, in the case of a 
house and land of the same owner being sold by auction 
in separate lots to different purchasers, the purchaser of 
the house becomes presumptively entitled to the light as in 
fact enjoyed at the time of the sale, and the purchaser of 
the land is precluded from building in a manner to 
' obstruct the light. The sales being sales by the same 
vendor and taking place at one and the same time, the 
rights of the parties are brought within the general rule of 
law, " that no man shall derogate from his own grant" (jg). 
The same doctrine appUes to dispositions by will of a house 
and land to two devisees separately (h). If the sales are 
not simultaneous the later purchaser takes subject to the 
title of the first purchaser, and is deprived of fill easements 
not expressly reserved, except easements of necessity (i). 
But the several successive purchasers may be boxmd by a 
common plan upon which the lots appear to be mutually 
subservient to one another {j). — ^It is immaterial that the 
tenements are iq the occupation of tenants at the time of 
the disposition and so out of the control of the grantor or 
testator ; the presumption being that they are disposed 
of in their then existing condition with all the incidents of 



283 ; Curriers' Co, v. Corbett, 2 Dr. 
& Sm. 356 ; £ilis y. Manchester 
Carriage Co., L. B. 2 C. P. D. 13 ; 
Wheeidon v. Burrows, L. B. 12 C. 
D. 31 ; 48 L. J. C. 853. 

(/) Fer cur, Barnes v. Zoaeh, 
L. R. 4 Q. B. D. 497; Jessel, M. R., 
Allm V. Taylor, L. B. 16 0. D. 
356; 60 L. J. O. 178; Bussell v. 
Watts, L. B. 10 Ap. Ca. 690 ; 66 
L. J. 0. 168. 



(^) Sioanshorough v. CovetUry, 9 
Bingr. 306 ; Compton y. BiekardSj 1 
Price, 27. 

(A) Barnes v. Loach, L. B. 4 Q. 
B. D. 494 ; 48 L. J. Q. B. 766 ; 
AUen V. Taylor, L. B. 16 C, D. 
366 ; 60 L. J. 0. 178. 

(0 Murehie v. Black, 19 C. B. N. 
S. 190; 34 L. J. C. P. 337. 

(J) Bussell V. JTatU, L. B. 10 
Ap. Ca. 690 ; 66 L. J. C. 168. 



CHAP. 1. EASEMENTS. 275 

ways, lights, and other easements apparently used and 
enjoyed between them (*). 

The grant of a tenement expressed to be ''with the Grant of tene- 
appurtenants " has no additional eflScacy in creating ease- ^^^tenanta. 
ments ; although at the time of the grant quasi easements 
were in fact used and enjoyed with the tenement over other 
land of the grantor. For the term " appurtenant," applied 
to easements, includes' only such easements, strictly so 
called, as are used as of right over land of another ; and 
these pass with the grant of a tenement without being ex- 
pressly mentioned or referred to (/). So a devise by will 
of a tenement " with the appurtenances " presumptively 
carries with the tenement no other easements than such as 
are strictly and legally appurtenant at the time of the 
devise (»i). But the word " appurtenant " may have 
a more flexible construction in a deed or will if required by 
the context and circumstances, and may carry land or other 
righte, if the intention is cleax that they ehaU pass by 
that description (n). — Upon the above principle upon a 
partition of land by tenants in common, who hold the land 
in undivided moieties, the conveyance of the shares in 
severalty, ''with all easements and appurtenances," will 
not convert into easements over the separate tenements the 
ways or other quasi easements previously used over the 
entirety (o). So if a lease be made granting a right of 
way over other land of the lessor, the way is not thereby 
made appurtenant, strictly speaking, to the demised tene- 
ment ; and an underlease of the tenement " with aU ways 
thereunto appertaining " does not pass the way. "Leases 
generally contain the words ' heretofore used * by which 

m Barnes y. Loaeh, L. B. 4 Q. S. 671. 
B. D. 494 ; 48 L. J. Q. B. 766. (») Cuthhert y. Hobintotty 61 L. J. 

(/) Ante, p. 189 ; Barlow y. C. 238 ; Thomae y. Oicen, L. B. 20 

BAodet, 1 C. & M. 439 ; Brett y. Q. B. D. 226 ; 67 L. J. Q. B. 198, 

Clowser, L. R. 6 C. P. D. 382. citing Plowden, 170. 

(m) Whalley y. Tompsony 1 B. & (o) JForthington y. Qimson, 2 E. 

P. 371 ; Fheytey y. Vieary, 16 M. & & E. 618 ; 29 L. J. Q. B. 116. 
W. 484 ; Feareon y. Spencer^ 1 B. & 

t2 



276 rsEs Ain> fsofits is lasi> of asother. 



Umaemttnia 
medmd 



eadi m wmj voold paas'T/)). Sights and easements 
acquired as between the tenants do not affect the landlord, 
and thfT&f'jre are not, strictly speaking, appurtenant to Hie 
respectiTe tenements; they do not pass with the tene- 
ments as appurtenant or existing easonents, though they 
may j <iss by the d'X-trine of apparent and continuous ease- 
ments .'q-. Upon the same principle if a contract be made 
to sell a certain tenement " with the appurtenances," the 
purchaser is entitled to hare a conveyance in those termB 
onlr, and not to hare additional words inserted sufficient 
to grant rights then de facto used and enjoyed as easements 
OTer other land reserved by the Tendor, such being rig;lits 
of ownership and not merely appurtenant rights (r). 

But the grant of a tenement expressed to be with all the 
le^oySi^ih rights and easements '^ used and enjoyed therewith " will 
create and pass as easements all those rights in the nature 
of easements which at the time of the grant were in fact 
used and enjoyed with the tenement over other land of the 
grantor; though such rights were not strictly speaking 
easements because they were used and enjoyed in right of 
the owner over his own land («). Under a grant in such 
terms a way will pass which was in fact used and enjoyed 
for the service of the tenement granted, though in right of 
ownership of the land and not as an easement (^). Water 
rights that have been used and enjoyed with the tenement 
may pass as easements in the same manner (u). 
Constniction What ways or other easements pass or are granted with 
eafiements the tenement by the description ^' used and enjoyed there- 
used ud with," or by other similar expressions, depends in each case 
upon the construction of the terms of the grant in applica- 

(p) Holrtxrd, J., irar</iiry y.TTi/- (^) Kwnfftra y. Zuetu, 5 B. & 

ton, 2 B. & C. 96. Aid. 830 ; Sarkshire t. OruH, L. 

{q) J)aniel v. Anderson, 31 L. J. R. 18 C. D. 616 ; 60 L. J. C. 731 ; 

C. 610 ; ante, p. 274. Bayley y. Great Weattm J2y., L. B. 

(r) Bolton v. Bolton, L. R. 11 26 C. D. 434. 
C. JD. 968 ; 48 L. J. G. 469. See («) WardU y. Broeklehunt, I E. 

BarkshireY. Grubb, L. R. 18 C. D. & E. 1068; 29 L. J. Q. B. 146; 

616 ; 60 L. J. G. 731. WatU y. Kehon, L. R. 6 Oh. 166; 

(«) Jamet y. Flant, 4 A. & E. 749. 40 L. J. G. 126. 



CHAP. I. EASEMENTS. 277 

tion to the circumstances. A devise by will of a house, 
described " as now in the occupation " of a certain tenant, 
is construed as referring to the occupation merely for the 
purpose of identifying the house and not for the purpose 
of indicating the rights and uses incident to the occupa- 
tion ; consequently it was held not to grant as an ease- 
ment the right of taking water from the adjacent land of 
the testator which the occupier had in fact been used to 
enjoy during the lifetime of the testator. If the devise 
had been of the house " as now enjoyed " by the occupier 
it might have been construed as passing the easement {v). 
"Where a lease described the demised premises as abutting 
upon a newly made road according to a plan annexed to 
the lease ; it was held that the terms of the lease estopped 
the lessor from denying the existence and use of the road, 
and thereby operated as a grant of a way along the site of 
it («?). But a lease describing the demised premises as 
bounded by an " intended " way, was construed not to be 
a grant of the way, but a mere expression of intention 
or contract, a breach of which might be measured in 
damages (x). 

If servient and dominant tenements become united in Easements 
one ownership, all easements are extinguished; and though "^^^fi^^X 
the actual use and enjoyment may be continued as before, session, 
it is in exercise of the right of ownership over the united 
tenements and not of an easement of one over the other. 
Hence the previously existing easements will no longer 
pass by a mere grant of the tenement to which they were 
formerly appurtenant ; nor will they pass- by the mere 
additional expression of " appurtenances " or " rights 
appertaining or belonging" to it. An easement thus 
exting^uished, and continued by use only, may be revived 
and regranted with the tenement by the description of a 



{p) B>lden ▼. Sastard, L. R. 1 495 ; HspUtj v. Wilkes, L. R. 7 Ex. 

Q.B. 166 ; 36 L.J. Q.B. 92; iftfr^yr 298; 41 L. J. Ex. 241. 
▼. Lawrence, 2 D. J. & S. 261. (a?) Harding v. JFUsonj 2 B. & G. 

{w) RoberU v. Karr, 1 Tannt. 96. 



278 USES AND PROFITS IN I*AND OF ANOTHER. 

right OP easement " therewith used and enjoyed" (y). But 
it is not necessary that an easement should have fonneri j 
existed as appurtenant to a tenement before unity of 
possession, in order to satisfy the desmption of being 
"therewith used and enjoyed." "It cannot make any 
difference in law, whether the right of way was only de 
facto used and enjoyed, or whether it was originally 
created before the unity of possession, and then ceased to 
exist as a matter of right, so that in the one case it mrould 
be created as a right de novo and in the other merely 
reviyed. But it makes a great dififerenoe, as matter of 
evidence on the question whether the way was used and 
enjoyed as appurtenant." The way which had existed 
previously to the unity of possession and which still con- 
tinues to exist is obviously one to be used and enjoyed as 
appertaining to the other premises. In the case of the 
other way, it would require to be seen whether it had 
been so used and enjoyed. And if it appears that a way 
had been used solely for the convenience of the person ^«rho 
held both tenements, which convenience ceased when a 
severance took place, the way cannot be said to have been 
used and enjoyed as appurtenant to the severed tene- 
ment (2). 
Convoyancmg " ^"^ modem deeds the words * therewith used and en- 
Act, 1881. joyed' are generally inserted, because the words 'appertain- 
ing and belonging' are not sufScient," for the above 
reasons {a). The Conveyancing Act, 1881, 44 & 45 Vict, 
c. 41, s. 6, enacts for the future as follows: "A convey- 
ance of land shall be deemed to include and shall by virtue 
of this Act operate to convey with the land {inter aUa), 
all ways, watercourses, easements, rights and advantages 
whatsoever, appertaining or reputed to appertain to the 

(S^) WhalUy v. Tompton, 1 B. & Eq. 36 ; 37 L. J. G. 495 ; Lan^ley 

P. 371 ; Bayley, B., JSarlow v. v. Eammtmdy L. B. 3 Ex. 161 ; 37 

Rhodes, 1 G. & M. 448; per cur. L. J. Ex. 118; Barkthire^. GrttU^ 

James v. Plant, 4 A. & E. 761, L. R. 18 G. D. 616; 60 L. J. O. 

{z) Blackburn, J., Kay y. Oxley, 733. 
L. R. 10 Q. B. 367 ; 44 L. J. Q. B. (a) Lyndhuzst^ G.B., Betrlow ▼. 

210 ; Thomson y. Waierloic, L. R. 6 Rhodes, 1 G. & M. 444. 



CHAP. I. EASEMENTS. 279 

land, or at the time of conveyance demised, occupied, or 
enjoyed with, or reputed or known as part or parcel of or 
appurtenant to, the land or any part thereof." (2.) Simi- 
larly, as to a conveyance of land having houses or build- 
ings thereon. (4.) " This section applies only if and as 
far as a contrary intention is not expressed in the convey- 
ance, and subject to the terms of the conveyance" (6). 
And (6.) It " applies only to conveyances made after the 
oommencement of the Act." 

The grant of an easement impKedly includes all rights implied 
over the servient tenement that are necessary for the full ^^tl «soe«- 
use and enjoyment of the easement ; as expressed in the soiy to ease* 
miaxim, ^^ quando aliquid conceditur, conceditur et id, sine 
quo res esse rum potest'^ (c). Thus the grant of a right of Right to 
way impliedly gives the right of making and repairing a "P*""* 
road for the convenient exercise of the right; and the 
right to a drain or watercourse gives a right of entry upon 
the land to cleanse and repair the channel (d). The right 
of support for a house by a wall or building imports the 
right to enter upon the servient tenement and do there 
whatever may be necessary to maintcdn the support (e). 
The grant of the easement of placing some artificial work 
upon the land of another, as a sewer or culvert, implies 
a grant of support for such work from the subjacent 
land(/) ; and the owner of the work being responsible for 
its condition and liable to others for damage caused by its 
defects necessarily has a right of access to the work to 
keep it in repair (g). The right appurtenant to a tene- 
ment for the occupants to supply themselves with water 
from a well or from a pump upon the tenement of another 

(b) Whether a deed of convey- (c) See Co. Lit. 56 a. 

anoe pnrpoitiiig in tenuB to pass {d) Ante, p. 210. 

" appurtenant " easements is a (e) Ante, p. 251. 

maf&aent expression of a contrary (/) Be Dudley Corp,, L. R. 8 

intention to exclude the operation Q. B. D. 86 ; 61 L. J. Q. B. 121. 
of this enactment, see Beddington y. {a) Ooodhart y. Syett, L. B. 26 

Atlee^ L. B. 36 0. B. 331 ; 66 L. CD. 182 ; 63 L. J. G. 219. 
J. C. 666. 



280 USES AND PROFITS IN LAND OF ANOTHER. 

gives the right to maintaiii the well or the pump and to 
do what is necessary to keep it in order (A). — Upon thia 
principle the right to build a bridge oyer a railway was 
held to give the accessory right to do everything reasonably 
necessaiy for the principal right of biulding the bridge, as 
to place scaffolding upon the soil of the railway, and for 
workmen to cross the line (»). So a right of building upon 
the surface would in general carry the accessory right of 
excavating the necessary foundations and disposing of the 
material excavated (j). 
Oblijiratia& of There is no implied obligation upon the servient owner 
owner« to repair for the benefit of the dominant owner, or to do 

anything beyond suffering the easement. "The addi- 
tional obligation to repair could only be imposed upon the 
owner of the servient tenement by an express stipulation 
to that effect in the instrument creating the easement ; or 
by some prescriptive right to the repair as well as to 
the easement." Nor, in general, are repairs done by the 
servient owner upon his own property any evidence of 
obligation on him to repair ; as they must be presumed 
to be done for his own convenience, and not in consequence 
of any obligation {k). — The servient owner can do nothing 
upon his tenement that obstructs the right of the dominant 
owner to repair. Thus in the case of an easement of 
water supply through pipes the owner of the land was 
restrained from building over the pipes in such a manner 
as would prevent access for cleaning and repairing them (/). 
But the dominant owner is only entitled to such access as 
is reasonably necessary to repair the work, and not to any 
particular mode of access in one direction rather than 
another (m). 

(A) Fomfret v. Ricroft^ 1 Wmfl. (k) Stockport Highnoay Board t. 

Saimd. 321 ; Lord Blaokbnrn, Smith Grant, 51 L. J. Q. B. 357 ; ant$^ 

T. Archibald, L. B. 6 Ap. Ga. 512. p. 211. 

(i) Clarence Ry. Co, y. Great (I) Goodhart y. Jlyett, L. R. 25 

Northerti £y. Co., 13 M. & W. 706. C. D. 182 ; 53 L. J. 0. 219. 

(J) Bobinton y. Milne, 53 L. J. (m) BirkenheadY.Zomdonflf. W, 

0. 1070. By,, L. B. 15 Q. B. D. 572 ; 55 

L. J. Q. B. 48. 



CHAP. I. EASEMENTS. 281 



§ 2. — Prescription. 

dption— distinction of eaaements by prescription and grant. 

Prescription at common law — time immemorial — non-existing grant. 

The Prescription Act — prescription for ways, watercourses, and other 
easements — presoriptioa for lights. 

Enjoynient required for prescription — enjoyment as of right — in right 
of fee of dominant tenement agpainst fee of serrient tenement — 
during unity of possession — enjoyment of light as of right. 

Secret enjoyment. 

Elnjoyment by licence or agreement — by sufferance. 

Continuous enjoyment — voluntary discontinuance — impossibility of en- 
joyment — unity of possession. 

Enjoyment for x>eriod next before action. 

Interruption of enjoyment — submission of dominant owner. 

Presumption from enjoyment short of prescribed period. 

Disabilities of servient owner — suspension of computation — intenruption 
during disabilities — exclusion of tenancy for life or years. 

Prescription is the title to an easement derived from Prescription, 
continued use and enjoyment. Easements, being incor- 
poreal hereditaments incapable of possession, are said to lie 
in grant ; and prescription imports a grant as the origin 
of title. Corporeal hereditaments, being held in posses- 
sion, are not the subject of prescription; but present 
possession of a corporeal hereditament is presumptive 
evidence of title, and continued possession by the Statutes 
of Limitation bars adverse claims (a). 

An easement derived from prescription is defined and l>i«tinotion of 

, , easements by 

limited exclusively by the evidence of use and enjoyment ; prescription 
for though a grant is implied in law, the usage alone ^ fif""^*- 
indicates the nature and extent of the right impliedly 
granted (6). On the other hand an easement created by Easements by 
express grant is defined and limited exclusively by the ^^""^*"' 
terms of the grant; and evidence of usage is not admissible 
to control the clear words of the grant. Evidence may be 
given of the state and circumstances of the tenements at 

(a) Go. lit. 113d; ants, p. 186. {b) BaUard y. Dyton^ 1 Taunt. 

279 ; mU^ p. 206. 



282 



USBS AND PROFITS IN LAIH) OF AKOTHSB. 



GoDfltmotioD, 
of grant. 



the time of the grant in order to apply the language. 
Only if the language of the grant be obscure or doubtful, 
or if it be expressed in general terms, is evidence of the 
usage under it admissible to construe and explain the 
grant, though not to control it (c). — Again, in the con- 
struction of a grant the maxim is applied that a grant 
must be construed most strongly against the grantor. 
But with prescriptive easements derived from use only, 
where there are no words to construe, the presumption of 
right is always against the grantee; who can claim 
nothing beyond what the usage proves (d). Accordingly, 
an express grant of a way is construed presumptively to 
mean a general way for all purposes ; but a prescriptive 
claim of a way is limited by the purposes for which the 
way has been in fact used (e). Upon the same principle 
an express grant of a drain for building land was construed 
to be general and not restricted to the use of the houses 
then built (/). 



Prescription 
at common 
law. 



Time imme* 
morial. 



Prescription is regulated partly by the common law and 
partly by the Prescription Act. Prescription at common 
law originally required a use and enjoyment of the right 
from " time immemorial," or, as it was expressed, " during 
time whereof the memory of man runneth not to the 
contrary." Proof of use and enjoyment during living 
memory was accepted as presumptive evidence of the 
same having continued from time immemorial ; but proof 
of a commencement or of any interruption of the use at 
any time however remote defeated the iomiemorial pre- 
sumption. The time required to establish a title to land 
was equally indefinite until limited from time to time by 



(c) Chad y. nUed, 2 B. & B. 403; 
Wood T. Saunderiy L. R. 10 Ch. 
682 ; 44 L. J. C.6U;Dela JTarr v. 
MHU, L. R. 17 C. D. 636 ; 49 L. J. 
0. 487. 

(rf) Wines, J., W%niamMY,Jame», 
L. R. 2 0. P. 681 ; 36 L. J. 0. P. 



269 ; Wood ▼. Satmden, L. B. 10 
Ch. 684; 44 L. J. O. 619; Sew 
Windtor v. SCoveU, L. R. 27 C. D. 
672; 64 L.J. C. 116. 



(e) Ante, p. 206. 
(/) iVJw Wi 
27 0. D. 666 ; 



'/) iVJw Windsor r. Stordl, L. R. 
0. D. 666; 64 L. J. C. 116. 



CHAP. I. EASEMENTS. 



283 



statutes ; of which the Statute of Westminster, 3 Edw. I. 
0- 39 (a.d. 1275) fixed the date for alleging seisin in a 
■writ of right at the beginning of the reign of Biohard I., 
A.D. 1189. By an equitable extension of this statute the 
same date was adopted by the Courts for the prescriptive 
title of easements and other incorporeal hereditaments ; 
and evidence of commencement or interruption before that 
date became inadmissible (g). Accordingly, the production 
of a grant or other title destroyed the prescriptive title by 
showing the true origin; unless it could be shown that the 
grant was in confirmation of an earlier right, or that it 
was earlier than the above date (h). — Subsequent statutes 
limited various periods instead of the fixed date of the 
statute of Edward I. The statute 32 Hen. VIII. o. 2, 
limited the writ of right to sixty years, and possessory 
actions to fifty years, after the right first* accrued. The 
statute 21 James I. o. 16, a.d. 1623, limited the possessory 
action of ejectment for the recovery of land to twenty 
years after the right accrued. But these statutes were not 
extended by the Courts to incorporeal hereditaments and 
easements in the same manner as the earlier statute of 
3 Edw. I. ; and immemorial prescription at common law 
was still required to date, presumptively at least, from the 
reign of Bichard I. (t). 

In order to meet the cases where a prescriptive claim Kon-exiBtmg 
was defeated by proof of oomcmencement or interruption srant. 
within legal memory, the Courts introduced the legal 
fiction of a later grant, the non-existence of which in point 
of fact might be attributed to loss or other causes. The 
use and enjoyment which was insufficient in duration to 



(^) 2Ck>.In8t.238; Go.Iit.lU b; 
Jenkin9 y. Harvey, 1 0. M. & B. 
S77. "This, when first intzodnoed, 
gaye a preecription of about eighty- 
six yean, but being a fixed date it 
became longer and longer, and 
already when Littleton wrote, in 
the reign of Edward IV., he ob- 
Berres on the inconTonienoe felt, 



beeanae 'the said limitation of a 
writ of right is of so long time 
past.'" £. Blackburn, Dalton y, 
Anffut, L. B. 6 Ap. Ca. 811. 

(A) Addington y. Clode^ W. 
Blaokst. 989; Church y. Tame, L. 
B. 2 C. P. 480, n. 

(«) Thesiger, L. J., Angut y. 
Lalton, L. B. 4 Q. B. D. 170. 



1 



284 VSES AND PROFITS IN LAND OF ANOTHER. 

maintain an immemorial preecriptiye title then became 
aTailable as secondaiy evidence of tlie lost or non-existing 
grant. Twenty years of nnintemipted enjoyment was 
generally adopted as the ground upon which the grant of 
an easement could and ought to be presumed, by analogy 
to the same limit appointed by statute for the protection 
from adverse claims of the possession of the land itself. 
The presumption cannot be rebutted by evidence merely 
that no grant was in fact made, any more than such 
evidence can be used to rebut immemorial prescription. 
For the presumption arises from the fact of the use and 
enjoyment, which must be attributed, if possible, to a 
rightful origin, and therefore to a grant as being techni- 
cally the only legal origin of the right. But the pre- 
sumption may be rebutted, or rather it does not arise, if it 
appesu^s that the use and enjoyment of the easement, 
was not of such a kind as would found a prescriptive title, 
as where it is secret or precarious or wrongful. The pre- 
sumption may also be rebutted by showing that a grant 
was legally impossible ; as by reason of the incapacity of 
the grantor or other circumstances of the claim 0) — 
According to the above doctrines, where a way had been 
used as of right for twenty years without interruption, it 
was held that a grant of the right might be presumed ; 
although it appeared that twenty-six years before there 
had been an Indosure Act extinguishing all former rights 
of way over the spot in question [k). So it was held that 
a grant might be presumed from twenty years* enjoyment, 
though it appeared that before that time there had been a 
xmion of the possession of the dominant and servient tene- 
ments during which all easements and appurtenant rights 

{J) Lord Blackboni, Dalton ▼. For mj part I haTe always been of 

Angu»y L. R. 6 Ap. Ca. 812. Bat opmion, that if a judge u asked to 

see Brett, L. J., De la Warr y. find the fact of a grant and to sst 

Miles, L. R. 17 G. D. 591, who that it has been lo^ he mnsthaTO 

there says: '*The doctrine with gpround for beUering that it was 

regard to the presumption of lost so." 

grants is at the present moment {k) Cmmpiett ▼. WUaeny 8 East, 

the snbject of mneh oontzoTersy. 294. 



CHAP. 1. EASEMENTS. 285 

were necessarily extinguished (l). Easements appurtenant 
to houses, as the easements of light and support, could 
seldom be claimed by prescription at conpnon law because 
few houses could be traced back eyen presumptively to 
time immemorial. Hence the claim to an easement of 
light has generally been founded upon twenty years' enjoy- 
ment ; and this period was adopted by the Prescription 
Act to give an absolute and indefeasible titie (m). So the 
claim to suppori: for a house may be supported by twenty 
years' uniiiteiTupted enjoyment (n). 

Tlie Prescription Act, 2 & 3 Will. IV. c. 71, by way of Prescriptioii 
preamble recites, that " the expression ' time immemorial 
or time whereof the memory of man runneth not to the 
contrary ' is now by the law of England in many cases 
considered to include and denote the whole period of time 
from the reign of King Richard the First, whereby the 
title to matters that have been long enjoyed is sometimes 
defeated by showing the commencement of such enjoy- 
ment, which is in many cases productive of inconvenience 
and injustice." For remedy whereof the statute prescribes 
certain definite periods of time for the various species of 
easements, and other rights, as to which it enacts that they 
shall not be defeated by showing their commencement 
prior to those periods. It also prescribes certain periods 
during which an enjoyment of the rights shall render 
them absolute and indefeasible, and it regulates in various 
points the conditions of use and enjoyment upon which 
the statutory prescription may be founded. — The statute 
has not taken away any of the modes of claiming ease- 
ments which before existed. Since the statute a claimant 
may have recourse to prescription from time immemorial, 
or to the doctrine of a non-existing grant ; and he may be 

(/) Cowlam Y/ Slaeky 15 East, 108. J. C. 487 ; Lord Blaokbnm, Dallon 

(m) Danoin v. Upton, 2 Wms. v. Angua, L. B. 6 Ap. Ca. 811 ; 

Sannd. iTbe; Cross v. LewiSy 2 B. post, p. 287. 

k 0. 686 ; Hellish, L. J., Leech y. (n) Anpus v, Dalton, L. R. 6 Ap. 

JSehfc^der, L. B. 9 Ch. 472 ; 43 L. Ca. 740 ; 60 L. J. Q. B. 689. 



286 



USES AND PROFITS IN LAND OF ANOTHER. 



Prescriptionof 
twenty years 
for ways, 
watercourses, 
and other 
easements. 



Forty years. 



Easements 
within the 
section. 



able to support his claim in these forms, though his evi- 
dences of enjoyment be sneh as do not satisfy the special 
conditions of prescription under the Act (o). 

Sect. 2 enacts '^that no claim which may be lawfully 
made at the common law, by custom, prescription, or 
grant, to any way or other easement, or to any water- 
course, or the use of any water, to be enjoyed or derived 
upon, over, or from any land or water, being the property 
of any ecclesiastical or lay person, or body corporate, when 
such way or other matter shall have been actually enjoyed 
by any person claiming right thereto without interruption 
for the full period of twenty years, shall be defeated or 
destroyed by showing only that such way or other matter 
waa first enjoyed at any time prior to such period of 
twenty years ; but nevertheless such claim may be defeated 
in any other way by which the same is now liable to be 
defeated ; and where such way or other matter shall have 
been enjoyed as aforesaid for the full period oi 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 pur- 
pose by deed or writing." — This section does not sanction 
any new eeisements of a kind not before known to the law ; 
nor, on the other hand, is it restricted to such " other ease- 
ments " only as are ejusdem generis with those mentioned, 
namely "ways and watercourses and the use of any water." 
It is construed as applying to all easements of whatever 
kind, " to be enjoyed or derived upon ovQr or from any 
land or water " {p). — The following easements have been 
held to be within the enactment : As to buildings, the 
right to lateral support from the adjoining land (^), also 



(o) AynaUy v. Glover, L. B. 10 
Ch. 283 ; 44 L. J. C. 623 ; Sel- 
bome, L. C, Dalton v. An^ut, 
L. B. 6 Ap. Ca. 800 ; Lord Black- 
bum, ib. 814. 

(p) Lord Selbome, L. C, DaUon 
T. Angu9y L. B. 6 Ap. Ca. 798, dif- 
fering from Erie, 0. J., in Webb y. 



Bird, 10 G. B. N. 8. 282, who ex- 
pressed the opinion that it was 
meant only to apply to the two 
descriptionB of rights spedfied, 
namely, rights of way and rights 
of wati^. 

(q) Dditm y. Angtt^ L. B. 6 Ap. 
Ca. 740 ; 60 L. J. Q. B. 689. 



CHAP. I. EASEMENTS. 287 

the right to support for a building from the adjoining 
building (r). — As to watercourses, the claim to discharge 
foul water, being the washing of minerals, into a water- 
course (s) ; the claim to discharge sand and rubbish into a 
stream to be carried down and deposited upon the land of 
the lower proprietors (t). " The claim to have the water 
of a natural stream which would otherwise have flowed 
down to the claimant's land diverted over other land so as 
no longer to come to it, is a claim to a watercourse, and is 
one which may be created by grant " (w). 

Sect. 3, enacts "that when the access and use of light Prescription 
to and for any dwelling-house, workshop, or other building, ^' ^ 
shall have been actually enjoyed therewith for the full 
period of tweniy years without interruption, the right 
thereto shall be deemed absolute and indefeasible, any 
local usage or custom to the contrary notwithstanding; 
unless it shall appear that the same was enjoyed by some 
consent or agreement expressly made or given for that 
purpose by deed or writing." — "The statute has in no 
degree altered the pre-existing law as to the nature and 
extent of the right " ; it has only altered the mode of pre- 
scriptive acquisition (v). The customs of London and 
York to obstruct ancient lights by building upon ancient 
foundations, are avoided by the enactment (w). 

The enjoyment required to found a prescriptive title at EnjojmeDt 
common law, and, subject to modifications therein men- ^^ecriptioD. 
tioned imder the Prescription Act, is an actual enjoyment 
"as of right," continued without interruption for the 
period prescribed by law (a:). — The expressions " enjoyment Enjoyment as 

of right. 

M Zemaiire y. Davis, L. B. 19 (w) Blackburn, J., Mason y. 

C. 1). 281 ; 61 L. J. C. 173 ; Tom Shrewsbury Ey,, L. R. 6 Q. B. 683 ; 

y. Preston, L. B. 24 C. D. 743 ; 63 40 L. J. Q. B. 293. 

L. J. C. 62. (v) Per cur, Kelk y. Pearson, L. 

(«) Wright y. WiUiams, 1 M. & B. 6 Gh. 811 ; anU, p. 285. 

W. 77. (w) Salters' Co. y. Jay, 3 Q. B. 

(^) Carlyon y. Lovering, 1 H. & 109 ; Merchant Tailors' Co. y. Trus^ 

N. 784; 26 L. J. Ex. 261. See cott, 11 Ex. 866; 26 L. J. Ex. 

Murgatroyd y. Eobinson, 7 E. & B. 173. 

391 ; 26 L. J. Q. B. 233. {x) Co. Utt. 118 6; per eur. 



28S USES AXD FBOFITS IN LAND OF ANOTHEB. 

as of liglit,^ and ** daimiiig riglit thereto " as used in the 
Preserij«tioii Act are explained to mean " an enjoyment 
hai not se^eretlr, ch- bv stealth, or by tacit sufferanoe, or 
br permis^on asked from time to time ; but an enjoyment 
had c«j»eai]T, bj a person ftWiTning to use it without danger 
of Wing trB&ted as a trespasser, as a matter of right " (y). 
An arraal eajoTment "as of right" for the prescribed 
peric»d m-as held soffieient, though it had been enjoyed 
unier a mistsl^en claim of right ; for it is immaterial upon 
irhat gT\»und the claim of right is made, provided that 
the a-^roal enjovment is sufficient and capable of being 
rvfemBd to a legal origin {z). 
laii^t The rirfit must be claimed as appurtenant to the 

of fee oi ^ 

dominant tenement by the owner of the fee or in his right. 
The mc Je of pleading an immemorial prescription at 
common law is by alleging that the owner in fee of the 
tenement and all those fc^iose esfate he hath in the tene- 
ment from time immemorial have enjoyed the right 
claimed as appurtenant to the tenement ; which is called 
prescribing in a que tstate. The tenant of a particular 
estate for life, years or at will cannot plead such pre- 
scriptire title in right of his own estate or occupation ; he 
must prescribe in right of the owner in fee of the tene- 
ment, and then derive title to the possession and enjoy- 
ment from him [ft^. Prescriptions for the times pre- 
scribed in the Prescription Act may be alleged in pleading 
according to the fact, the Act providing by sect. 5 that 
^^ it shall be sufficient to allege the enjoyment as of right 
by the occupiers of the tenement in respect whereof the 
same is claimed for and during such of the periods 
mentioned in this Act as may be applicable to the case, 



Bright ▼. Walker, 1 C. M. & B. heU r. TTiIwh, 3 East, 294. 

219 ; Mol/ord y. MmkiHtom, 5 Q. B. (a) 6 Co. 60 a, GaietcartTs Que ; 

584. Baker r. Breremam^ Gro. Gar. 418 ; 

(y) Per eur. Ttekle ▼. Brown^ 4 Att.-Gen, v Gatmilett, 3 Y. & J. 



A. & E. 382. 93. See Daviee y. Wiaiawu, 16 Q. B. 

W J)e la Warr v. Jfito, L. R. 17 _ _ - - 

C. D. 635; 49 L. J. C. 487 ; Cmnp' 



W Be la Warr v. Mile*, L. R. 17 546 ; 20 L. J. Q. B. 330. 

;. D. 



CHAP. I. EASEMENTS. 289 

and without claiming in the name or right of the owner 

of the fee, as is now usually done." But the mode of 

pleading does not affect the nature of the claim as being 

of an easement appurtenant to the tenement in right of 

the fee (b). — ^The right must also be claimed agtdnst the Against fee 

servient tenement as binding the fee in the land and not Jei^fiS! 

merely the tenant of a particular estate ; " if it give not a 

good title against all, it gives no good title at alL" The 

tenant can bind himself and his own estate by grant only. 

The Act in shortening the time of prescription has made 

no difference in this respect, but has only changed the 

mode of acquiring the right (c). 

During unity of possession of the dominant and servient Enjoyment 
tenements in the same person all enjoyment is referred to o^poMeadon 
the possession, and there can be no enjoyment of an ease- 
ment as of right upon which a prescriptive title can be 
based (d). Accordingly, the actual enjoyment of the 
access and use of light for the windows of a house will not 
support a prescriptive claim so long as the house and the 
alleged servient tenement are in the same occupation (e). — 
Upon this principle a tenant in occupation under a lease 
cannot treat any use or enjoyment of the demised tene- 
ment as servient to another tenement of his own, in order 
to found a prescriptive claim to an easement against his 
landlord ; nor though the tenancy was only from year to 
year, which the landlord might put an end to by notice 
for the purpose of interrupting the enjoyment ; nor though 
the use in question was not within the terms of the lease, 
if it was enjoyed in fact imder the lease and by virtue of 
the position of lessee ; as where the lease gave the right of 
making a certain drain through the land and the lessee 
made another different drain (/). Hence it seems that a 

(b) Bright v. Walker , 1 G. M. & (e) Harhidge v. Warwick, 3 Ex. 

R. 221. 662; Ladyman v- Grave, L. R. 6 

{c) Bright v. Walker, 1 0. M. & Ch. 763. 

R. 211. (/) Outram v. Maude, L. R. 17 

' (i) Onley v. Gardiner, 4 M. & W. C. D. 391 ; 60 L. J. 0. 783 ; Lady^ 

496 ; Clayton v. Corby, 2 Q. B. 813. man v. Grave, L. R. 6 Ch. 768 ; 

L. U 



290 USES AND PROFITS IN LAND OP ANOTHER. 

tenant for years of a house may prevent the aocmal of an 
easement by taking a tenancy of the adjacent servient 
land ; and he cannot be said to prejudice thereby his land- 
lord's light, because the landlord has no right before the 
lapse of twenty years (g). — ^Upon the same principle a 
tenant in occupation of the alleged dominant tenement 
cannot maintain a prescriptive claim by any enjoyment 
over another tenement of his lessor, because all the tenant's 
rights are derived from his landlord, who could not have 
an enjoyment as of right of an easement over his own 
property (h). Such is the position of copyholders claiming 
rights over the waste of the manor, which is vested in the 
lord as well as the freehold of the copyhold tenement ; 
their rights are not prescriptive, but appurtenant to 
Unity of tide their tenements by custom of the manor (t). — ^'^ Where 
a person is trustee of that which is to be the dominant 
tenement, and is' beneficial owner of that which is to be 
the servient tenement, there is not such a unity of posses- 
sion as prevents the application of the statute or the appU- 
cation of the doctrine of a lost grant." Thus where a 
church was vested in the incimibent of the benefice .as 
trustee for the use of the pansh, and adjacent glebe land 
was vested in the incumbent for his own use, it was held 
that notwithstanding such unity of possession an easement 
of light over the glebe land might be acquired as appurte- 
nant to the church (J). 
Enjoyment of Section 3 of the Prescription Act, providing for the 
right." ^ enjoyment of light, omits the expression " as of right," 
which occurs in sect. 2 with regard to other easements ; and 
the omission, it is said, is justified because such condition 
is inapplicable to the negative easement of light, there 
being no claim of right implied against the adjacent tene- 

Chamber Colliery Co, y. Sopwoody K. 64 ; 26 L. J. Ex. 298 ; Oa^ord 

L. B. 32 C. D. 549 ; 65 L. J. G. v. Moffait, L. R. 4 Gh. 133 ; BrnM 

859. T. Anderson, 31 L. J. C. 610. 

(^) Hatherley, L. G., Ladyman ii) See post, p. 568. 

T. Grave, L. B. 6 Gh. 768. (j ) JSceles, Commie, y. Eino, L. B. 

(A) Warburton y. Farke, 2 H. & 14 G. D. 213 ; 49 L. J. C. 629, 



CHAP. I. EASEMENTS. 291 

ment in opening a window for the access of light. The 
omission, however, is immaterial as regards the actual 
enjoyment required as the basis of prescription, which 
must be '^ in the character of an easement, distinct from 
the enjoyment of the land itself," for this as for all other 
easements (k). . Sect. 5 of the Act requirei? that in plead- 
ing easements it must be alleged that the enjoyment was 
^' as of right,'' and no exception is there made of easements 
of light (/). — Under the above sect. 3 one of two tenants 
of separate tenements \mder the same landlord may 
acquire against the other an easement of light during their 
tenancies by an enjoyment of twenty years ; though the 
easement would be extinguished upon the tenements 
reverting in possession to the landlord (ni). 

The rule of the civil law, that possession must not be Secret enjoj- 
clam or secret, " is so far adopted in English law that no ^ 
prescriptive right can be acquired where there is any con- 
cealment, and probably none where the enjoyment has not 
been open'* (n). It is suflScient if the enjoyment is so far 
open that the owner of the servient tenement has the 
means of information, if he please to inquire; and he 
will be taken to know what he might ascertain by inquiry. 
But if upon inquiry information were improperly with- 
held,, or false or misleading information given, or anything 
done in order to keep material facts from his knowledge, 
the enjoyment in such case would be clam or secret, and 
would not support a prescriptive claim. Thus, in the case 
of a building erected upon the boundary line of a tene- 
ment, the owner of the adjoining tenement must be 
presumed to have knowledge of the fact that such a 
building cannot ordinarily stand without lateral support, 

(*) Earhidge v. Wanvieh, 3 Ex. N. S. 449 ; 30 L. J. C. P. 366 ; 

662 ; Flight t. Thomat, 11 A. & E. Mitchell y. Cantrill, L. R. 37 0. D. 

696 ; FlastawM' Co. ▼. Parish Clerks* 66 ; 67 L. J. C. 72 ; see Daniel y. 

Co.^ 6 Ex. 630 ; 20 L. J. Ex. 362. Anderson, 31 L. J. G. 610. 

il) Ante, p. 288. (») L. Blackburo, DalUm y. An* 

m) Frewen y. FhiUips, 11 C. B. gus, L. R. 6 Ap. Ca. 827. 

u2 



{ 






Dy IMCDBC OK 



2ti K^sc ^7» —- rr^MJ zk, ^^^ knowledge that an eaae- 
Qent •:£ STizpirt v^nLi lie a.:tT:iired against him nnlfiSB 
tMi izZrxnzn Kjt fPrT-rns It ': - BdI if a building be 
CR'it'^i ^4\^ *xzaTxrr*i lii>l so as to require extracHdinaiy 
sriY-r^^ inxn. zLr: a>I; .fr.fr.g Lmd. the right could not be 
^y^zir^i CT z:r=sst-^jzd,'-.ti unl^eas the owner of the serrient 
Uzifi izev cr Lii tLe cleans of knowing the fact of the 
excaTatiiiL r . Wri*£Te contisu^us houses in a street had 
faZ-en out cf the p^r|''en«ii?iilar and leaned one upon the 
oth^ it was hrll that their d^Kodence for sopport was 
n<^ so manifest an-i o^*^n as to fonnd a prescriptive daim 
to its oontinnanc^ / . 

An enjoyment br licence asked and giTen, or bj anj 
agreement importing a licence, will not found a pre- 
scriptiTe title. ^^ The asking leave from time -to time 
ttithin the forty or twenty years, breaks the continoity of 
the enjoyment as of right, because each asking of leave is 
an admission that, at that time, the asker had no right ; 
and therefore the evidence of such asking within the 
period is admissible under a general traverse of the enjoy- 
ment as of right. It will follow that not only an asking 
leave but an agreement commencing within the period may 
be given in evidence under the general traverse, notwith- 
standing the words of the fifth section (that ' if the party 
rely on any matter not inconsistent with the simple fact of 
enjoyment, the same shall be specially alleged and shall 
not be received in evidence on any general traverse or 
denial of such allegation') ; for the party cannot and 
does not rely on it as an answer to an enjoyment as of 
right which he confesses, nor as avoiding any such enjoy- 
ment during the time covered by the agreement ; but as 
showing that there was not at the time when the agree- 
ment was made an enjoyment as of right." . A licence or 

(o) Selbome, L. C, Dalton y. {p) Partridge v. Seoit, 3 M. & 

A»au$, L. R. 6 Ap. Ca. 801 ; W. 220. 

L. BUokbum, t*. 828. {q) Solomon v. Vintners' Co,, 4 

H. ft N. 685 ; 28 L. J. £x. 370. 



CHAP. I. EASEMENTS. 293 

agreement which covers the whole period of enjoyment, 
and shows a right during all that time, is a matter not 
inconsistent with the alleged enjoyment and therefore in 
the words of the statute "the same shall he specially 
aUeged"(r). 

By the Prescription Act, sect. 2, as to easements gene- Parol lioeaoe. 
rally, enjoyment for forty years gives an ahsolute title, 
" unless it shall appear that the same was enjoyed by some 
consent or agreement expressly given or made for that 
purpose by deed or tenting." And sect. 3 provides the 
same exception as to the twenty years' enjoyment of lights. 
In these cases a licence asked and given or an agreement 
made by parol is not within the exception of the statute, 
and therefore, if covering the whole period of enjoyment, 
it cannot be alleged in answer to the claim ; but a licence 
asked or an agreement made within the alleged periods of 
enjoyment, whether in writing or not, contradicts the 
allegation of enjoyment as of right and so defeats the 
claim («). Where a prescriptive right has been once ac- 
quired, it will not be affected by a subsequent act of the 
dominant owner in asking or accepting a licence, unless it 
amounts to a surrender of his vested right (t). 

Where the owner of a house signed a document in Agreement 
writing to the effect that he had opened certain windows 
by leave of the owner of the adjacent land, and that he 
would at the request of him or his heirs or assigns at any 
time thereafter block up the same, and in the meantime 
would pay him his heirs and assigns sixpence a year for 
the indulgence ; it was held to be an agreement within 
the exception of the statute, sect. 3 ; that it was binding 
upon the party who signed it, and upon a purchaser of the 
house with notice of it ; and that it might be enforced in 
equity independently of its effect imder the statute. It 

(r) Per cur. Tickle y. Broum, 4 W. 796. 

A. & E. 383 ; Monmouth Canal Co, («) Tickle v. Broicn^ supra. 

V. Earford, 1 G. M. & R. 631 ; (/) French Hoek v. Hugo, L. R. 

Beatley v. Clarke, 2 Bing. N. C. 10 Ap. Ca. 336 ; 64 L. J. P. C. 17. 
706. See Kinloch v. iVm/tf, 6 M. & 



294 USES AND PROFITS IN LAND OF ANOTHER. 

was further held upon the construction of the agreement 
that it remained in force until the request to block the 
windows was made and acted upon ; though if the money 
were left unpaid for twenty years it would be evidence 
that the agreement had been abandoned (ii). An excep- 
tion in a conveyance of land, of all ^^ rights restricting the 
free use of the adjoining land or the conversion of such 
land at any time hereafter for building " was held to apply 
only to rights at the time of the conveyance, and not to 
operate as a consent or agreement within the statute, 
in respect of future enjoyment and acquisition of such 
rights (v), — "Where the owner of a building which rested 
on the wall of the servient tenement, had entered into an 
agreement with the owner of the latter, upon notice given, 
to make a road over the site of the building ; it was held 
that his enjoyment of the easement for the building was 
not of right, but determinable at any time under the 
agreement {w). 
Enjoyment The exercise and enjoyment of an easement by the 

ye erance. (j^n^jjant owner is sometimes attended with beneficial 
enjoyment by the servient owner; as in the case of a 
watercourse discharging into the servient tenement which 
is beneficial to the latter, or of diverting a watercourse 
from the servient tenement the- flow of which would be 
prejudicial. But in such cases the servient owner acquires 
no right to the continuance of the easement and to the 
incidental advantages arising to him from it, his enjoy- 
ment being by suflPerance only and not as of right, and 
subject to withdrawal at any time (x). 

Continuity of The enjoyment, both at common law and under the 
enjoyment. Prescription Act must be continuous during the periods 

(u) BewUy v. Atkinson, L. R. 13 (w) Tone v. Preston, L. R. 24 C. 

C. D. 283 ; 49 L. J. C. 193. D. 739 ; 63 L. J. C. 60. 

(r) Mitchell v. CantriU, L. R. 37 {x) Arktorighiy, GeU, 6 M. & W. 

0. D. 66 ; 67 L. J. C. 72 ; cited 203 ; Mason v. Shrewsbury and H, 
ante, p. 271. Ry., L. R. 6 Q. B. 678 ; 40 L. J. 

Q. B. 293 ; antf, p. 233. 



CHAP. I. EASSMSNTS. 295 

prescribed; the oontiniiity of enjoyment being required 
aocording to the nature of the easement. Thus, the enjoy- 
ment of a right of way being in its nature occasional only, 
the continuity consists in using the way as and when occa- 
sion requires; aud a general right of way may be proved 
by evidence of using it for all purposes from time to time 
required, though the occasion for some of the purposes first 
arose within the prescribed period (y). Also a right of 
way may be limited to purposes which only occasionally 
recur (z). But a right of way for drawing wood from a 
plantation at the proper periods for cutting, which recurred 
at intervals of twelve years, was held to be too discontinu- 
ous in its nature to admit of proof under the Prescription' 
Act, though it might be claimed and proved prescriptively 
at common law (a). The difference between easements to 
be enjoyed at long and short intervals, with reference to 
the statutory prescription, is one of degree rather than one 
of principle ; the statute does not afford any certain test 
but leaves it to be treated as a question of fact (b). — The 
enjoyment of a watercourse may be in its nature inter- 
mittent, as a drain to carry away flood water or streams 
flowing during wet seasons only ; and the intermissions 
do not prevent such a continuity of enjoyment as is re- 
quired to suf)port a prescriptive title (c). The continuous 
enjoyment of light does not import a continuous occupa- 
tion of the house to which it is appurtenant ; the access of 
light continues for the purpose of acquiring the right 
though the house be in fact iminhabited, and even though 
it be not fit for habitation, if it be structurally complete {d). 
But the flow of light must be continuous through the same 
defined opening ; it cannot be claimed for a building in 

(y) J)are v. Seathcots, 26 L- J. {c) Mall v. Swift, 4 Bing. N. C. 

Ex. 245. 381. 

(f) BmnUon v. Carttoright, 6 B. & (rf) W^iUofi v. Tbwnend, 1 Dr. & 

S. 1 ; 33 L. J. Q. B. 137. Sm. 324 ; 30 L. J. C. 26 ; Court- 

(a) MolUns v. TmKjy, L. R. 13 auldr. Legh, L. R. 4 Ex. 126 ; 38 

Q. B. D. 304 ; 63 L. J. Q. B. 430. L. J. Ex. 46 ; ante, p. 216. 

{b) Sollitu V. Vcrneff, supra. 



296 USES AND PROFITS IK LAND OF ANOTHER. 

respect of an opening sometimes in one place and some- 
times in another (e). 
Volontarydifl- A voluntary abstinence from the exercise of an easement 
IS not such discontinuance of enjoyment as viii prevent 
the accrual of a prescriptive title, unless attributable to an 
abandonment or defect of right. " There must be some 
interval in the enjoyment of all such rights ; and the inter- 
mission must be a matter open in every case to explana- 
tion; and where actual enjoyment is shown before and 
after the period of intermission, it may be inferred that the 
Bifloontina- right continued during the whole time " (/). — ^If the owner 
Swatitm?^' of the servient tenement pays a consideration to the 
dominant owner for ceasing to exercise the easement 
during a certain time, there is a constructive enjoyment 
during that time by means of the compensation received 
in place of the enjoyment (g). On the other hand, if the 
dominant owner on any occasion pays a consideration for 
the exercise of the right, it is a discontinuance of the 
enjoyment as of right, though it be not a discontinuance 
ImpoMibilitj of the fact of enjoyment (A). — ^Also " an allegation that a 
enjoymen . j^j^^^ j^^ ^ right to do anything at all times at his free 
will and pleasure, necessarily embodies in itself a tacit 
exception of those times at which the doing of the thing is 
rendered impracticable by natural events, whether ordinary 
or extraordinary ; " as a right of way that may be 
rendered impassable by a flood, or at ebb or flow of the 
Difloontina; tide, or at certain seasons of the year (t). — Unity of pos- 
^TOsaee^^ session of the dominant and servient tenements effects a 
discontinuance of the enjoyment as of right and stops the 
accrual of a prescriptive title; because there is then no 



(<•) ITarrit T. De Finna, K R. 33 21 L. J. Ex. 334. 

C. D. 238 ; 66 L. J. G. 344. (A) Tickle y. Brcwn, 4 A. & E. 

(/) Carr t. Fosier, 3 Q. B. 586 ; 369; Flatterers' Co. y.Farish Clerh* 

J\ck'U T. Broum, 4 A. & E. 369. Go,, 6 Ex. 630 ; 20 L. J. Ex. 362. 

(g) Patteson, J., Carr v. Foster, (i) See The King t. Tippett, 3 B. 

3 Q, B. 685 ; Davis y. Morgan, 4 B. & Aid 202. 
& 0. 8 ; VardY. Ward, 7 Ex. 838 ; 



CHAP. I. EASEMENTS. 297 

enjoyment of the easement as such (j). But it does not 
merge or extinguish a previously accrued title, unless there 
is also a unity of title (k). " The accruing right is only 
suspended during the union of the possession. So that if 
it had been shown that the enjoyment had lasted for 
fifteen years and upwards, and then there had been an 
interruption by unity of possession, and then the enjoy- 
ment had lasted for five years more without the unity of 
possession, in such a case an enjoyment for twenty years 
could have been pleaded '* (/). But such enjoyment would 
not satisfy the Prescription Act, which requires an enjoy- 
ment for the period next before the commencement of the 
action (m). 

Section 4 enacts, " that each of the respective periods Enjoyment 
of years shall be deemed and taken to be the period next neztbefore 
before some suit or action wherein the claim or matter to ^^^^^ 
which such period may relate shall have been or shall bo 
brought into question," Hence the proof of enjoyment 
must be brought down to the commencement of the 
action (n). Proof of the use of a way till within four or 
five years of the commencement of the action, there being 
no evidence or explanation given as to those years, was 
held insufficient to satisfy the statute ; and upon the same 
principle evidence which failed to bring the enjoyment 
within fourteen months of the action was held insuffi- 
cient (o). But evidence of exercise of the easement more 
or less continuous according to the nature of the claim 
will satisfy the statute, provided it be sufficient to raise 
the inference of a continued enjoyment during the whole 
statutory period (jp). " A cessation of user which excludes 
an inference of actual enjoyment as of right will be fatal 

{J)Ani€f^A90; OnlejfY.Gardinery (m) Sect. 4; O/i&y v. Gardiner ^ 

4 M. & W. 496. 4 M. & W. 496. 

(*) Aynsley t. Ohver^ L. R. 10 («) Jones v. Price, 3 Bing. N. C. 

Ch. 283 ; 44 L. J. G. 523, post, p. 62. 

310. (o) Parker v. Mitchell, 11 A. & E. 

(/)• Hatherley, L. C, Ladyman y. 788 ; Lovce v. Carpenter, 6 £x. 825. 

Grate, L. R. 6 Gh. 768. (p) Ante, p. 295. 



298 USES AND PBOFITS IN LAND OF ANOTHER, 

at whatsoeyer portion of the period the cessation occurs; 
and, on the other hand, a cessation of nser which does not 
exclude such inference is not fatal, even although it occurs 
at the beginning or the end of the period* The only 
difference is that if the non-user occurs at the end of the 
period, there can be no subsequent user to explain it, and 
the inference of actual enjoyment for the full period next 
before action is more difficult to draw than in other 
cases" (q). — ^An enjoyment for the prescribed period next 
before the action in which the claim is brought in question 
satisfies the statute, though the period of enjoyment was 
not complete at the time of the injury complained of in 
the action. " The statute," it is said, " intended to confer, 
after the periods of enjoyment therein mentioned, a right 
from their first commencement, and to legalise eyery act 
done in. the exercise of the right during their continu- 
ance "(r). On the other hand, an enjoyment for the 
prescribed period up to the time of the injury complained 
of does not satisfy the statute, unless it be further con- 
tinued up to the commencement of the action. "An 
enjoyment for twenty years or more before the act com- 
plained of gives only what may be termed an inchoate 
title, which may become complete or not by an enjoyment 
subsequent, according as that enjo3Tnent is or is not con- 
tinued to the commencement of the suit" («). — ^An enjoy- 
ment for the prescribed period next before any action 
wherein the claim or matter is brought in question serves 
to establish the right generally ; and " therefore, upon the 
bringing of any subsequent suit or action the claimant 
may rely upon an enjoyment satisfying the statute, ending 
with either the existing suit, or any of the previous suita or 
actions" (t), — ^Evidence of enjoyment that falls short of 

{q) Teir cur. HoIHm v. Verney^ (t) Riehardt v. Fry, 7 A. & E. 

L. K. 13 Q. B. D. 314 ; 53 L. J. 698 ; per ewr. Ward y. Mobim^ 15 
Q. B. 436. M. k W. 242. 

(r) Wright v. WiUiamt, 1 M. & (/) Cooper v. Hubbuek^ 12 C. B. 

W. 77. N. S. 456 ; 31 L. J. C. P. 323 ; 

WilUazns, J., ditsentienie. 



CHAP. I. EASEMENTS. 299 

the commencement of the action, and therefore fails to 
prove a prescriptive title under the Act, may still be em-' 
ployed to prove a prescriptive title at common law or a 
presumed grant; for the Prescription Act has left these 
modes of claim as before (?/). 

Section 4 further enacts, " that no act or other matter Interrtiption 
shall be deemed to be an interruption within the mecming ownerT^* 
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 authorising the same to be made." 
" Interruption " in this section and in sections 1 and 2 
means an adverse obstruction by the servient owner, not a 
mere voluntary cessation of enjoyment by the claimant ; 
there must be an overt act indicating that the right is 
disputed (r). An adverse interruption within the statute 
also breaks the continuity of enjoyment, and enjoyment 
prior to the interruption cannot be called in aid to com- 
plete the required time (w). Payment of rent for the use 
of an easement is not an interruption of enjoyment within 
the statute, though it may operate as an admission of 
adverse right {x). Interruption may be made by an actual 
obstruction of the enjoyment upon the servient tenement ; 
or by taking legal proceedings against the claimant for 
damages or for an injunction. But mere non-acquiescence 
or even express dissent on the part of the servient owner 
short of actual interruption or obstruction to the enjoy- 
ment is immaterial, according to the maxim qui non prohihet 
quod prohibere potest assentire vldetur (y). Nor, on the 
other hand, is the acquiescence of the servient owner for 
less than the prescribed period of enjoyment material ; nor 

(«) Ante, p. 285. (x) Plaaterert^ Co, v. ParUh ClerW 

(f7) Carr v. FoiUr, 3 Q. B. 581 ; Co., 6 Ex. 630 ; 20 L. J. Ex. 362 ; 

Parke, B., OnUy v. Gardiner, 4 M. anie^ p. 296. 

& W. 497. Cv) Thesiger, L. J., Angue v. 

(it) BaiUy v. Appleyard, 8 A. & Ballon, L. R. 4 Q. B. D. 172. 

E. 161. 



900 



USES AND PBOFITS IN LAND OP AKOTHER. 



IntermptioiL 
short of a 
year. 



Partial inter- 
ruption. 



Submission 
of dominant 
owner. 



is any right in law or in equity gained therebj(s). In &b 
case of lights an obstruction is the only mode of interrup- 
tion, for no action will lie against a person for building a 
house upon his own land and opening windows in it which 
overlook his neighbour (a). — Interruption must continue 
for one year otherwise it is excluded from effect by the 
words of the statute. Consequently proof of enjoyment 
as of right brought down to within a year of the action in 
which the right is disputed cannot be defeated merely by 
showing an interruption begun within that year. "It 
follows that an enjoyment for nineteen years and a frac- 
tion will establish the right, provided the action be brought 
before the interruption has continued for the full period of 
a year" {b). It is said that as the statute requires an 
easement to have been actually enjoyed as of right without 
interruption during the prescribed period, there must be a 
corresponding opportunity of interruption, and therefore 
that the statute applies only to those easements which are 
exercised at least once a year, so as to give the opportunity 
of interruption within the statute throughout the whole 
period (c). A claim to use a road for carting timber from 
a wood at intervals of twelve years, being the only occa- 
sions when wood had in fact been cut, was held not to be 
sufficiently continuous and interruptible to admit of being 
made under the statute (d). — A partial or local interrup- 
tion may operate to defeat the prescription so far as it 
extends, without affecting the claim of easement beyond 
the extent or degree of interruption (e). 

The submission to or acquiescence in the interruption on 
the part of the claimant is a matter of fact depending 
upon the circumstances. Complaints and protests under 



(s) Blanohard t. Bridges^ 4 A. & 
E. 194. 

(a) Bayley, J., Cro9M t. Lewisy 
2 B. & C. 689. 

(b) Flight v. Thomas^ 11 A. & E. 
688; SQ. &F. 231. 

(c) Parke, B., Lowe t. Carpenter ^ 
6 Ex. 831 ; per cur. Hollins v. Ver- 



ney, L. R. 13 Q. B. D. 309; 53 
L. J. Q. B. 430. 

(d) SoUins t. Vemey^iupra; anU, 
p. 295. . 

(e) Welcome v. UpUmy 6 M. & W. 
536 ; Baviei t. Williams, 16 Q. B. 
646 ; 20 L. J. Q. B. 330. 



CHAP. I. EASEMENTS. 301 

certain circumstances may be enough to show that he does 
not submit or acquiesce, although he do not take any 
active steps to abate the interruption, or bring any ac^ 
tion (/). Notice of the interruption and of the person 
making or authorising it, other than that arising from the 
mere existence of the obstruction, is a necessary condition 
precedent of submission under the statute {g). And the 
submission must continue for a year in order that the in- 
terruption may avail to defeat the prescription (/*). 

Section 6 enacte, '^ that in the several cases mentioned Fresmnption 
in and provided for by this Act no presumption shall be ^^^o^of 
allowed or made in fevour or support of any claim upon prescribed 
proof of the exercise or enjoyment of the right or matter ^*®"^^°^^' 
claimed for any less period of time or number of years 
than for such period or number mentioned in this Act as 
may be applicable to the case and to the nature of the 
claim." "This section is addressed to presumptions as 
distinguished from legitimate inferences from facts. It 
assumes proof of actual enjoyment for a less period than 
twenty years, and forbids any presumption being made 
simply from such short enjoyment in favour of an actual 
enjoyment for a longer period than that proved ; but it 
does not forbid inferences from an enjoyment for a less 
period than twenty years and other circumstances, if there 
are any"(t). The statute does not affect the ordinary 
inference of continuous enjoyment derived from proof of 
enjoyment from time to time, having regard to the nature 
of the easement. Accordingly continuance of enjoyment 
at the commencement of the period of prescription may be 
proved by evidence of enjoyment at an earlier time. And 
continuance of enjoyment up to the commencement of the 

(/) Bennism v. Cartwnght, 6 B. (A) Flight v. Thotnas, 8 01. & F. 

& 8. 1 ; 33 L. J. Q. B. 137 ; Glover 231. 

T. Coltman, L. R. 10 0. P. 108 ; 44 (•) Per cur, Hollins v. Vemw, 

L. J. C. P. 66. L. R. 13 Q. B. D. 808 ; 63 L. J. 

{a) Seddon v. Bank of Bolton^ Q. B. 433 ; Westbuiv, L. C, 

L. R. 19 O. D. 462 ; 51 L. J. 0. Hanmery. Chance, 4I>. J. & S. 626; 

642. 34 L. J. C. 416. 



of 



302 • rsass asd psofitb ik uun> of akothbk. 

Mtdaa lAaj be infeiTed from eTidenoe of preceding enjoy- 
ment oontmned to a soffidenUj recent period (j). This 
enactment applies only to daims made nnder the statute. 
It does not affect the presomption of common law in aid 
of immemorial enjoyment from eridence of enjoyment 
within liTing memory ; nor the presumption which may he 
made in certain circamstances of a non-ezisiing grant (it). 

Section 7 enacts ^^that the time daring which any 
person otherwise capable of resisting any claim to any of 
the matters before mentioned shall have been or shall be an 
infant, idiot, non compos mentis^ feme covert^ or tenant for 
life, or daring which any action or suit shall have been 
pending and which shall have been diligently prosecated 
nntil abated by the death of any party or parties thereto, 
shall be excluded in the computation of the periods herein- 
before mentioned ; except only in cases where the right or 
claim is hereby declared to be absolute and indefeasible." 
A tenancy for years or from year to year is not amongst 
the excepted conditions of this section, though it is 
expressly excluded from the period of forty years by the 
following sect. 8. Hence an easement, as a right of way, 
may be acquired by twenty years of enjoyment, though 
during the whole or a part of the time the servient tene- 
ment was in occupation of a tenant for years (/). — ^The 
cases excepted from the section, '^ where the right or claim 
is declared by the Act to be absolute and indefeasible," 
are the claims founded upon an enjoyment for the fall 
period of forty years imder sect. 2 (which are subject to 
the excepted conditions of sect. 8), and the claim to light 
under sect. 3. Hence it appears that an easement of light 
now becomes absolute and indefeasible after an enjoyment of 
twenty years, without any allowance made for a tenancy of 

{J) lawson r. LangUy, 4 A. & Gh. 283; 44 L. J. 0. 523; m/^, 

E. 890 ; Carr v. Foiter, 3 Q. B. 681 ; p. 299. 
0nU, p. 297. (/} Folk t. Shinner, 18 Q. B. 568; 

{k) AymUy v. Okver, L. R. 10 22 L. J. Q. B. 27. 



CHAP. I. EASEMENTS. 303 

the servient tenement, or for any of the excepted conditions 
of the servient owner mentioned in the above section (m). 

The computation of the prescribed period is only sus- Suapensionof 
pended during the excluded conditions of disability, and 
upon the removal of the disability the computation is 
resumed from the point where it left off ; the effect being 
to extend the period of continuous enjoyment which is 
necessary to give a right by so long a time as the excluded 
condition lasts. The claimant may prove an enjoyment 
for the prescribed period either wholly before the excluded 
condition, if it be still subsisting; or partly before and 
partly after, if it be removed («). On the other hand, a 
discontinuance or interruption of enjoyment, as already 
noticed, arrests the computation altogether and defeats the 
claim (o). 

The enjoyment during the conditions of disability, Intorruptioii 
though excluded from computation, is not exempted from abilitiee. 
interruption. The tenant in possession may actively 
obstruct the easement and interrupt the enjoyment ; and 
" although the tenant for life cannot by acquiescence burthen 
the ^tate, he may by resistance free it" {p). The land- 
lord or reversioner also may interrupt the enjoyment by 
bringing an action, where the easement consists in some 
positive act upon the tenement that is permanent and 
injurious to the reversion, as the building of a projecting , 
eave to discharge rain water (q). But if the exercise of the 
easement is a mere trespass to the possession without 
injury to the reversion, as in the case of a way, or if it be 
no injury at all, as opening a new Kght, the landlord has 
no power of interruption, nor any remedy, unless he can 
procure his tenant to obstruct the easement or to bring an 
action (r). 

(m) Simper v. Foley, 2 J. & H. 600 ; ante, pp. 294, 299. 

556; Fretcen t. Fhillipt, 11 C. (p) Fer cur, Clayton v. Corhfy 2 

B. N. S. 456 ; 30 L. J. C. P. Q. B. 826. 

356. {q) l\tcker v. Newman^ 11 A. & 

(n) Clayton v. Corby, 2 Q. B. 813. E. 40 ; ante, p. 235; 

(o) Onley y. Gardiner, 4 M. & W. (r) Baxter v. Taylor, 4 B. & Ad. 



304 



USES AND PROFITS IN lAND OF ANOTHER. 



Exdiuion of Section 8 enacts '^ that when any land or water uponi 
or'rarB ^m ^^®^5 ^^ from which any such way or other convenient («) 
period of watercourse or use of water shall have heen or shall be 
onjTean. ^j^jqj^ qj. derived, hath been or shall be held under 
or by- virtue of any term of life, or any term of years ex- 
ceeding three years from the granting thereof, the time 
of enjoyment of any such way or other matter 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." This section applies only to the period of forty 
years expressly mentioned, and has no implied application 
to the twenty years' period of the 2nd section {t). — ^The 
exclusion from computation by this section is not absolute, 
as that by the 7th section, but conditional only ; the 
condition being that the person entitled to the reversion 
on the determination of the term for life or years shall 
within three. years resist the claim, which condition must 
be strictly satisfied (w). The reversioner or his assignee 
only can take the benefit of the condition ; and the term 
"reversion" is construed strictly and technically as not 
including a "remainder" (r). — "The effect of the 8th 
section (as already stated of the 7th section), is not \o 
imite discontinuous periods of enjoyment, but to extend 
the period of continuous enjoyment which is necessary to 
give a right by so long a time as the land is out on lease, 
subject to the condition therein mentioned " (ir). 



72 ; per eur. Frewen v. FhiUips, 
11 C. B. N. S. 466 ; 30 L. J. C. P. 
366 ; Hatherley, L. C, Ladyman v. 
Orave, L. R. 6 Gh. 769. 

(•) The word "convenient" is 
probably a mistake for the word 
** easement '' (see sect. 2) ; but it is 
doubtful if it can be so read. Jessel, 
M. Rm Laird v. Brig^jt, L. R. 19 
0. D. 33. 



(0 Palk v. Skinner, 18 Q. B. 568; 
22 L. J. Q. B. 27 : ante, p. 286. 

(u) JFriffht V. TTiUiams, 1 M. ft 
W. 100 ; Folk Y. Skinner, supra. 

(r) Wright v. JrHliufne, supra; 
Laird t. Briggt, L. R. 19 C. D. 22 ; 
Sgmons t. LeaJI:er, L. R. 16 Q. B. D. 
629 ; 64 L. J. Q. B. 480. 

(it) Fer eur, Onley v. Gardiner, 4 
M. & W. 600. 



CHAP. I. EASEMENTS. 305' 



Section IV. Extinction of Easements. 

» 

Helease — ^presumption from disuse. 

Abandonment — wajs — lights — ^water casements. 

Extinction of easement by unity of title of dominant and servient 

tenements — suspension of easement during particular estate— unity 

of legal title only. 

Easements may be extinguished by release ; by abandon^ Belease. 
ment ; by unity of ownership of the dominant and servient 
tenements. — ^An easement being an incorporeal right, an 
express release, like a grant of the same, must be by deed 
under seal (a). — ^Upon the same principle that a grant Presumption 
of an easement may be presumed from long enjoyment, ^ '®'®"®' 
a release may be presumed from long discontinuance of 
enjoyment. " Thus the long enjoyment of a right of way 
to a house or close over the land of another^ which is a 
prejudice to the land, may most reasonably be accounted 
for by supposing a grant of such right by the owner of the 
land ; and if such right appear to have existed in ancient 
times, a long forbearance to exercise it, which must be 
inconvenient and prejudicial to the owner of the house or 
dose, may most reasonably be accounted for by supposing 
a release of the right. In the first class of cases, therefore, 
a grant of the right, and in the latter, a release of it, is 
presumed '* (b). Upon the same analogy, it is said " that 
as he can only acquire the right by twenty years' enjoy- 
ment, it ought not to be lost without disuse for the same 
period ; and that as enjoyment for such a length of time is 
necessary to found a presumption of a grant, there must be 
a similar non-user, to raise a presumption of a release" (c). 

< ^' As an express release of the easement would destroy it Abandon- 
at any moment, so the cesser of use coupled with any act °^^ ' 

{a) Co. Lit, 264*; Willes, J., Aid. 791. 
JLwell Y. Smith, 3 G. B. N. S. 127. (c) Littledale, J., Moore t. Saw 

{b) Per eur, Docy. Hilder, 2 B. & w;i, 3 B. & G. 339. . 

L. X 



306 USES AND PROFITS IK LAND OF AXOTHER. • 

clearly indicative of an intention to abandon the right would 
have the same effect without any refeienoe to time.** In 
this respect, " it is not so much the dmation of the cesser 
as the nature of the act done by the grantee of the ease- 
ment, or of the adverse act acquiesced in by him, and tlie 
intention in him which either the one or the other indi- 
cates, which are material for consideration. The period of 
time 18 only material as one element from which the 
grantee's intention to retain or abandon his easement may 
be inferred against him ; and what period may be sufficient 
in any particular case must depend on all the accompany- 
ing circumstances" (d). Accordingly an easement may 
be considered as abandoned and lost, if the dominant owner 
makes such a permanent alteration of the dominant tene- 
ment, or if he suffers such a permanent alteration of the 
servient tenement, as renders further exercise of the ease- 
ment useless or impracticable ; but mere discontinuance of 
exercise without any act of abandonment does not affect 
the right further than that it tends in course of time to 
raise the presumption of a release; which presumption, 
however, may be rebutted by the circumstances of the 
discontinuance. — ^The above principles have been appUed 
in the following cases. 
Abandonment A right of way granted for the use of a piece of open 
of ways. land, as such, was held to be abandoned and lost by cover- 

ing the land with building; the Court saying that the 
grantee of the way could use it only for purposes com- 
patible with the land remaining open according to the 
grant {e). A right of way to part of the dominant tene^ 
ment was held to be lost by severing that part permanentiy 
from the principal part for the use of which only the way 
was appurtenant ; as part of the yard of a house (/}. 
Where land was sold to a railway company under the 

{dl Bfr cmr. The Queen v. Charley, {e) Allan y. Gomme, 11 A. & £. 

12 Q. B. 519. See Crouley y. 759 ; onto, p. 206. 
Liffhtowler, L. B. 2 Ch. 478 ; 36 (/) See Bower y. Mill, 2 

L. J. G. 584. K. C. 342. 



CHAP. I. EASEMENTS* 307 

powers of their Act, having stables built upon it with a 
way over a private road giving access to the stables, it was 
held that the right of way, being impliedly limited to the 
use of the stables, was abandoned and lost by the compeuiy 
pulling down the stables and converting the land into a 
railway (g). — On the other hand, where the use of a way 
was discontinued by the occupier of the dominant tene- 
ment, because he had for the time being a more convenient 
way over another close in his occupation, it was held to be 
no evidence of an intention to abandon the right (h). So 
where the owner of the dominant tenement used a varia- 
tion of the way for the time being, by agreement with the 
owner of the servient tenement, it was held to be no 
evidence of aJ)andonment of the original way (t). Where 
a doorway of a house opening on to a way had been 
bricked up by the owner, and after an interval of thirty 
years the door was re-opened and the way resumed, no 
change having been made in the interval upon the servient 
tenement ; it was held to show merely a discontinuance of 
use and not an abandonment of the way (/). So where 
the way to a tenement by a navigable channel had been 
suffered to become choked with mud and impassable, it 
was held to be merely a voluntary suspension of the right, 
and not such an abandonment aswould justify the servient 
owner in stopping it permanently (k). 

The easement of light appurtenant to a house is pre- Abandonment 
sumptively abandoned by pulling down the house. Pulling ^'^^*' 
down a house with the intention of re-building upon the 
site does not affect the appurtenant easements ; but it lies 
upon the dominant owner to show circimistances from 
which the intention of resuming his rights may be 

. Iff) BayUy v. Great Western i?y., Willes, 282. 

L. R. 26 0. D. 434. ij) Owk v. Mayw of Bath, L. R. 

(A) Ward v. Ward, 7 Ex. 838 ; 6 Eq. 177. 

21 L. J. Ex. 334. (Ar) Bower r. Hill, 1 Bing. N. C. 

(ft) LoveU y. Smith, 3 G. B. N. S. 649. 
120. See Beiynoldt v. Edwardt, 

x2 ' ■ 



3ItS rfXi AXD rmoms a laxd of axothbr. 

inf^iTBd. Where an aurifnt irindow had been closed up 

:L t'^:i szii Tnzsrisr and sufFered to remam so closed for 
Tre iLiJi tTTe^jty yeais, it was held that the right was 
izjiic^ aiid last, as if it had neyer existed (/). And 
tbe ovn^r of a house polled it down and erected a 
w^ftZ in its jl&ce. it was held that he thereby pre* 
.jtirelT alittudoned the light appmienant to the house; 
an-d. the ad; I'irjiifir owner hairing built close to the wall, he 
goklA nc< afr^rwardsy upon opening a window in the wall 
in the f>>^idon of the original light, complain of an 
obstruvtii-n '..^. But where the owner of a house stopped 
up his windows, for the more oonrenient use of his house 
f (H* a sfiecial purpose, it was held to raise no such pre- 
sump'tion of the abandonment of his right to the light as 
would preclude him from re -opening the windows for the 
purpose of preventing the servient owner from building in 
Bcrboildmi^ a manner to obstruct the light ih). — An easement of light 
li^iita. is also abandoned bv pulling down the house and building 

a new house uiK>n the site so materially different from the 
former, with respect to the position of the lights, as to 
leave no identity between the old lights and the new (o). 
But if the house be rebuilt so as to receive the light or 
some substantial part of it in the same position as before 
the easement to that extent is preserved. ^^It may be 
claimed in respect of any building which is substantially 
enjoyiog a part or the whole of the light which went 
through the old aperture." The light that is not sub- 
stantially retained in the new house is considered as 
abandoned (/>). If a very small portion of the ancient 
light in comparison with the new light is preserved, in 
respect of which the loss of light would be inappreciable, 

• 

(/) EUenborongh, C. J,, Xair- (p) Seoitr. JPlgpe.Ij.'R. Z\ CD. 

rence t. 0A«, 3 Camp. 614. 670 ; 66 L. J. C. 429 ; Bmnut r. 

(m) Moore r. Baic$on, 3 B. & C. Loaeh, L. K. 4 Q. B. D. 494 ; 48 

332. li. J. Q. B. 766 ; Ktwmm y. Pmtder, 

(n) Stohoe r, Singert, 8 E. & B. L. R. 27 C D. 43 ; Greenwood r. 

31 ; 26 L. J. Q. B. 267. Somsey, L. R. 33 G. D. 471 ; 65 

(o) Fowlert t. JFaileer, 61 L. J. C. L. J. C. 917 ; «il#, p, 216. 
443. 



CHAP. I, EASEMENTS. 309 

the remedy would be lost, upon the principle that de 
minimis non curat kXy and the ancient light would be con- 
sidered as wholly abandoned {q). And if in pulling down 
an ancient building and erecting a new one evidence of the 
position of the ancient lights be not preserved, they wiU be 
practically abandoned; because the owner will lose his 
remedy for an obstruction for want of evidence of his 
right. " He is bound to prove to the satisfaction of the 
Court that some particular part of the new window repre- 
sents some substantial part of the old window " (r) . Where 
a statutory power was given to pull down a church and 
sell the site for building, it was held that the rights of 
light that were appurtenant to the church were retained 
and might be sold with the site ; and that they would be 
protected by the Court until new buildings were erected («). ^ 
— ^An easement of light may also be abandoned and lost by licence to 
the dominant owner licensing or acquiescing in some per- t^^^"" 
inanent obstruction of the light upon the servient tene- 
ment. Where the owner of a house lighted from an 
adjoining area gave leave to build a skylight over the area 
to the obstruction of the light, it was held that after the 
work had been executed he was precluded from revoking 
the leave, according to the general principle of law " that a 
licence executed is not countermandable, but only when it 
is executory" {t). 

The same principles apply to easements of water. If Abandonment 
the owner of a mill upon a stream of water puUs down eaaementa. 
the mill and removes the works it is presumptively an 
abandonment of the water easements appurtenant to the 
mill(tt). But the discontinuance of the use of a mill 
during a lease of the water rights to another mill owner 
for the term of ninety-nine years was held not to be an 

(q) JSeaih r. Bueknall^ L. R. 8 (a) Fccles. Commis, y. Kino, L. R. 

£q. 1 ; 38 L. J. G. 372, explained 14 0. D. 213 ; 49 L. J. 0. 629. 

in Staight y. Bum, L. R. 5 Gh. (t) Winter y. Brackicell, 8 East, 

163 ; 39 L. J. G. 289. 308 ; Johnwn y. Wyatt, 2 D. J. & 

(r) FowUra y. Walker, 61 L. J. S. 18 ; 33 L. J. G. 397. 

G. 443. See Seotl y. Fapey supra. (u) Fer cur. Liggina y. Inga^ 7 

Bing. 693. 



^11- Tfas^ AS:i FlfffTT^ IS 1.A3EB <MF JL3iOTHSR. 



ri^i: iri lie inter, viikh rererted at 
-^^iii x liir Itfk?^ •".-t-^ rriA yrfn had been polled down 
ci^zTZLT "LiiT j-HLjirr ' - "k^TL^ffi? w«:*ifa wtiA had been used 
f:r ijr^z^. -PTii "ibr tr T ■'zn^rTsfcr:! esdement of discbaiging 
iLr vst-ET f :^T*i ': J tlrr dTTr-vjcis into a stream, had been 
iiFzsM f :c r::?^ tLii. nrrurr t^bus and had been suffered 
io g^ !:• TzbL. i:ziiz^^li -L tme- otlwir iiipaiian owners had 
cr=»:*.«^i w:?rk5 iit*.- il-r >n«B?azn ; it was held that the ease- 
neeL^ Wis I'laciiirtei anl oi-iild not be resumed to the 
injcrr of il^ ctl-a- wiris -r . Where the owner of a mill 
with wat€r €&sieineiit5 gave licence to a riparian owner to 
eat thrrrn^ the loi^ of the mill stream and erect a weir 
for the parj«:t5e c»f diverting the water to a mill of the 
latter, it was hell that after allowing snch works to be 
executed he ec*nld not cv»unterniand them and require 
them to be pulled down so as to restore the flow of water 
to his own mill x). Bat sneh licence would be revocable, 
except so far as it had been acted upon and expense in- 
curred ; for it is on that ground onlj' that it can be ine- 
Tocable (y ) . Where a canal company constituted by statute, 
with power to divert natural streams to feed the canal, bj 
a subsequent Act was empowered to oonyert the canal into 
a railway ; it was held that in abandoning the canal the 
company lost their right to take and dispose of the water, 
and consequently the lower riparian owners were restored 
to their rights to haye the streams flow in their original 
course (z). And under like circumstances it was held that 
the lower riparian owners were obliged to suffer the flow 
of the stream in its original c6urse as before the diversion, 
although it was injurious to them (a). 

Eztinotion hj Easements ore extinguished by the titles of both the 
vxdtj ot title, dominant and servient tenements becoming united in one 

v) Davit y. MorffOHj 4 B. & G. 8. (s) National Manure Oo, T^DmaU, 

w) Croitley y. Lightowler, L. R. 4 H: & N. 8 ; 28 L. J. Ex. 185. 

Ap. 478 ; 36 L. J. 0. 584. (a) Maton t. Shrewsbuty JSy,, 

Ltggint y. Inge, 7 Bing. 682. L, B. 6 Q. B. 578 ; 40 L, J. 

Mown y. Sill, 5 B. & Ad. 1. Q. B. 293. 



Ch. 



CHAP. I. EASEMENTS. 311 

person ; because all uses and enjoyments of the servient 
tenement then beoome referable to the simple right of 
ownership. An easement cannot be maintained as a dis- 
tinct right by an owner over any part of his own land ; it 
essentially requires a dominant and a servient tenement in 
separate ownership (i). 

If the unity of title continues for a particular estate Bnspenaioii 
only, as for a tenancy for life or years in one of the tene- tiOTSSx wtote. 
ments, the easement is suspended during that estate ; but 
it is not wholly extinguished, because there is no unity of 
the seisin of the fee simple, and upon the expiration of the 
particular estate it will revive for or against the rever- 
sioner (c). Accordingly " where there is a unity of seisin 
of the land and of a 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 extin- 
guishment or during such suspension of the right the way . 
cannot pass as an appurtenant under the ordinary legal 
sense of that word.*' " 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" {d). Where a lessee for years 
granted easements of way over the demised tenement in 
favour of the reversioner who held the adjacent tenement, 
it was held that by a subsequent conveyance of the rever- 
sion to the lessee and consequent merger of the term of 
years, the.easements which had been granted by the termor 
were extinguished. The easements depended upon the 
duration of the lease and came to an end with the ter- 
mination of the lease (e). — Upon the same principle 

SAnU, p. 190. (d) Per eur, in Jamet t. Plants 

Thomas v. Thonuu^ 2 G. M. & 4 A. & E. 761 ; Pheyaey y. Ttcaryy 

B. 34 ; Simper t. Foley, 2 J. & H. 16 M. & W. 484 ; ante, p. 276. 

655 ; Ayntley t. Glover, L. R. 10 {e) Pearson, J., Dynevor t. Tm' 

Ch. 283; 44 L. J. C. 525. nant, L. B. 32 G. D. 381 ,8.0,, 



rii? nxF jljlD rmHfi T ^ is iasd op another. 



s Isnds, idddi bave onoe belonged to 
one C'f mifcom iras bound to repair the 




iaii!«» T^^rv^ec fbe Tvo, mbenmis become the property 
x -OH- sLHii- T«fics:iii, the pre-existing obligation to repair 
'nt* iTiii-e* i dtrfcrrT-ed br the unity of ownership; and 
▼bfTf -fztt z^T'sai. ^wii? has so become the owner of the 
tfLiIr^'Ti ift-Enrsros jiarL? with cme of the two closes, the 
:^:c-rs::r::GL t: r?niir the fences will not reTive, nnlees 
€3T^sg^ w:r5> tie r::tr>iDc»ed into the deed of oonveyanoB 

Ti^^£Kw P-^:^ if TsitJ :i ibe teiieiDents is beld in tmst, the miity 
rt l^T*^^ thjf i.ef z>:c rj^rrate as an extinction of the appur- 
TrfZxLz.* -eifcaHzieiLiSw t*M&::fe there is no union of the bene- 
£'.iil .'wnBTfLiT. Thi3> where a church with ancient lights 
T«c-^i ir tb? iL.'r=it«eiit in right of his office, and the 
»I;i.*rn* senri-rnt ten-esiieit, being glebe land, vested in 
iiizz. >fnr:£.£jZT, h Wis held that there was no such unity 
:i rwn-rTscir as tr- exrr.graish the easements of light appur- 
ter:.ir:t tc tbe ciiiir^h. and to justify him as owner of the 
gir t^ liz^-i in cQgCnijrir.g them f7 . Upon the same prin- 
ciile no easedent can b? orated by implied grant over 
land of wlii-.h the grantor is only trustee (A). 



I^ S. » C. D. i^: : »» L. J. C. J Etd^ Ctmwdag. t. JTiiM, L. 

*:T. K. 14 C. D. £13 ; 49 L. J. C. 529. 

S i^ ««r. B^iH^ T. TMmlym^ 6 4 Bf^irngtmrn t. AtUe^ L. R. 3d 

B. 4 C. W:. CD. 32S; 56 L. J. C. 665. 



CHAP. I. EASEMENTS. 313 



Section V. Eemedies for Easements. 

Action for damagfes— nomiDal damage — diBturbance of easement — com- 
pensation nnder Lands Claoaes Act. 

Action bj reversioner— repeated actions for continuance of disturbance. 

Injunction — statutory and equitable jurisdiction — principles of granting 
injunction — mandatory injunction to remoye nuisance — delay or 
acquiescence — ^interlocutory injunction. 

Injunction against obstructing lights. 

Abatement of nuisance to easement — abatement of nuisance to senrient 
tenement— exercise of easement in excess —notice to abate nuisance 
— unnecessaiy damage. 

The remedies for the protection of an easement are, by- 
action for damages ; by action for an injunction ; by the 
dominant owner himself abating the nuisance or obstruc- 
tion to his right. 

An action may be maintained for the disturbance or Action for 
obstruction of an easement without proof of loss or damage ^™*g^* 
actually sustained, and judgment may be recovered for a 
nominal sum, if the act of- disturbance is such as may 
injuriously affect the title to the easement. Accordingly Nominal 
it was held that a person might maintain an action for a ^°**fi^- 
permanent obstruction of a way upon the servient tene- 
ment, though the way was at the time so obstructed upon 
his own tenement as to be incapable of use ; the Court 
saying there was an injury to the right, though no 
damage accrued therefrom, for if acquiesced in for twenty 
years it would become evidence of an abandonment of 
the right; and therefore the plaintiff was entitled to a 
verdict with nominal damages («). So, the owner of a 
house may maintain an action for an obstruction of the 
light appurtenant to the house, though he be not in 
occupation, and though the house be wholly unoccupied, 
or even not fit for occupation, so that no actual damage 

(a) Bower t. HUl, 1 Bing. N. G. 649 ; anie^ p. 307. 



314 USES AKD PBOFITS IN LA^D OF AKOTHEIU 

accrues from the obstruction (b). — So a riparian owner may 
maintain an action for wrongfully diverting a natural 
watercourse, or for an imreasonable use of the water, or 
for polluting the water, although he may not himself 
require the use of the water or be able to prove any actual 
■damage ; because such acts affect the right by affording 
evidence of adverse rights (c). An additional pollution of 
a stream already polluted is a cause of action though it 
produce no perceptible dameige by reason of previous 
pollutions ; because upon the cessation of other pollutions 
the damage would become substantial and the continuance 
of the pollution would in time create a right {d). 
DiBturbanoe But the disturbance of the easement must be substantial, 
having regard to the nature of the easement, in order to 
give a cause of action. A person entitled to a right of 
way cannot complain of an obstruction that does not inter- 
fere with the reasonable use of the way. Thus in the case 
of a portico to a house projecting only two feet into a road- 
way forty feet wide, it was held that imder the circum- 
stances the portico was not an actionable obstruction ; the 
Court said that if the roadway had been granted to the 
plaintiff by a conveyance setting out boundaries, he might 
have maintained an action of trespass ; but the grant being 
only of the easement of a reasonable use of the road, there 
was no substantial interference with his right (e). — So 
with the easement of light, there must be a sensible and 
appreciable privation of light to give a cause of action; 
" there are many cases of new buildings darkening those 
opposite to them, but not in such a degree that an injunc- 
tion could be maintained, or an action upon the case " (/). 
— So with water rights, in an action by a riparian owner for 

{b) Courtauld ▼. Legh, L. R. 4 JETaZ/CM/ Cb., L.B. 5G. D. 769 ; 46 

Ex. 126 ; 38 L. J. Ex. 46. L. J. C. 773. 

(e) Mason v. Eill, 3 B. & Ad. (e) Clifford v. Hoare^ L, R. 9 C. 

304 ; 6 B. & Ad. 1 ; WoodY. Waud, P. 362 ; 43 L. J. 0. P. 225. 

3 Ex. 748 ; Etnbrey v. Otcen, 6 Ex. {/) Eldon, L. C, Att.-Gen. t. 

353 ; Crosiky v. LighlotcUr, L. R. 2Cichol, 16 Vc8. 343 ; Wood, V.-C, 

2 Ch. 478 ; 36 L. J. C. 684. Dent v. Auction Mart^ L. R. 2 £q. 

(d) lb.; Pennington v. Brinsop 245; 35 L. J. C. 560. 



CHAP. I. BASEMENTS. 815 

causing a natural stream to flow with greater violence than 
it ought to do in its usual course, to the injury of the 
plaintiff's banks, it was held necessary to prove actual 
damage to the banks as the test of the injury {g). And in 
an action by a riparian owner against another for an un- 
reasonable use of the water, he must prove that a sensible 
diminution of the natural flow of the stream was caused by 
abstraction of the water (h). 

The disturbance of an easement, if it be actionable, is an GompenBation 
injurious affecting of the dominant tenement witiiin the Sf^eJT^ 
provisions of the Lands Clauses Act, 1845, 8 Vict. c. 18, 
which give compensation for acts otherwise authorised by 
statutory powers. The deprivation of an easement imder 
the compulsory powers of the Act gives no claim for a 
valuation as for land taken, nor does it give any ground 
for an action or for an injunction, but only for compen- 
sation for injuriously affecting the land {i). Thus an 
obstruction of light is an injurious affecting of a tenement 
within the Act, and the occupier is held entitled to recover 
compensation not only for the depreciation of the tenement, 
but also for the damage to his trade (j). And where the 
obstruction of light rendered the premises useless for his 
trade, the occupier was held entitled to compensation for 
removal to new premises for continuing his trade (k). 

The reversioner of a tenement which is in the occupa- Beyerdoner. 
tion of a tenant may maintain an action for the disturbance 
of an appurtenant easement, if the disturbance be in its 
nature permanent, and injurious to the reversion either as 
depreciating its value or as affecting the title to the ease- 
ment. The tencmt may bring his action in respect of his 
possession, and the reversioner in respect of the injury 

(a) WiUianu ▼. Morland, 2 B. & 0) ^^ ▼• Charing Orota JRy., 

C. 910. L. R- 2 0. P. 638 ; 36 L. J. 0. P. 

(A) £mbrey v. Ouren, 6 Ex. 253. 297. 

(•) Wigram v. Fryer^ 36 L. J. C. (h) See The Queen v. TbuUer, 

87 : 56 L. J. G. 1098 ; ante, p. 266. L. B. 20 Q. B. B. 132 ; 56 L. J. 

Q. B. 581. 



TV.^Fn^ TS LAXD OF AXOTHSR. 



Bepeftted 

actions for 
oontiTiniinoe 
of disturb- 
anoe. 



-iurf- t: tit* Til-jp*- zi tr-e mheritance (/). "The gromid 
T3« !L -riii. L & rrT~-=rs.::::-er i« aHowed to bring his action for 
4Z. •t'icn! 'd:?!- iTTor^tlv p^manent, to lights and othw 
*tLs»H=-»rct* -5^11^ \*^^:zLz to the premises, is, that if acqni- 
*-!»>r*i ZL f :r r»-rc.rr Trais. it woTild become evidence of a 
rrniz.-iLri c. iiL-i it«i:ii:iir:ieiit of the right" (iw). Thus in 
a iibs^ -if -lifC^irtaLr.:^ of an<]ient lights by a hoarding 
€r^.-tr*l iiT*:* tlr ?»rrTir-iit tenement, it was held that tbe 
reT.^rs£:r.rr :f iL-r •! niiiaiit tenement might maintain an 
1.:^:^ iz. r»E-?T«?»:t of the bearding being of a permanent 
•iLiTi-'T'S- az.i rT^gatfr.g in denial of the right (n). In the 
€&5e :f in aitirn by the rerersioner for obstmcting a waj 
1: T I rifz:^ a g^te, the CoTnt said that the only question was 
^h-r-th-rr th^ T^Tei^on ecmld by any means be injured; 
thit th^ j-rmint-nt ere<:<ion of a wall across the way 
w.vi[-i c-x^ :n 5:i.:-ii an injory, although the wall might 
he f -^iII-Ed down bef'.»re the plaintiff was entitled to the 
f •T^ss^-sson ; th^t there might be snch a fastening of the 
gate as wz'uld amount to as permanent an obstruction as a 
walh and that whether it was so under the circnmstances 
was a question of fact and not an inference of law (o). 
In the c^Lse of an action by the reTcrsioner of riparian 
land up:*n a natural stream, it was held that a detention 
of the water for the purpose of irrigation was a disturb- 
ance of the right, from which the law would infer damage 
to the reversion without further proof of actual damage (/)). 
— ^If the obstruction is continued, the reversioner may 
bring repeated actions from time to time and may recover 
substantial damages assessed upon the ground of the con- 
tinuance. In a first action the damages would usually be 
nominal, because the obstruction may be removed before 
the reversion comes into possession, and it cannot be pre- 



(/) JesserY, Gifford, 4 Burr. 2141. 

(m) Per cur. B<ncer v. JTt//, 1 
Bing. N. C. 655 ; Shadwell t. Hut- 
chinson, 2 B. & Ad. 97. 

(ft) MetrcpoUtan An. y. Petch, 5 
G. B. N. S. 504. See Cooper t. 



Crabiree, L. R. 20 C. D. 589; 51 
L. J. C. 544. 

(o) i'kfyi// V. Moore, 9 C. B. 864 ; 
19 li. J. C. P. 177. 

{p) Sampwn v. Soddinott, I C. B. 
N. S. 590 ; 26 L. J. 0. P. 148. 



CHAP. I. EASEMKNTS. 



317 



sumed to be permanent. In a subsequent action substantial 
damages may be given, because the continuance of the 
obstruction would be more injurious to the title ; also it 
seems with the view of compelling the removal of it (q). 
And in such cases an injunction may be claimed (r). A 
reversioner can only claim damages for an injury that is 
permanent and that will endure when the property comes 
into possession («). 

The disturbance of an easement continued or threatened Injunction. 
may be restrained by injunction. By the Judicature Act, Statutory and 
1873, s. 24 (7), " The High Court of Justice and the jurisdiction. 
Court of Appeal respectively, in every cause or matter 
pending before them respectively, shall have power to 
grant and shall grant, either absolutely or on such reason- 
able terms and conditions as to them shall seem just, all 
such remedies whatsoever as any of the parties thereto may 
appear to be entitled to." Amongst these remedies are 
the remedy by injunction inherent in the equitable juris- 
diction of the Court of Chancery, and the remedy by 
injunction given by the Common Law Procedure Act, 
1864 (t). — By the Common Law Procedure Act, 1854, 
8. 79, " In all cases where the party injured is entitled to 
maintain and has brought an action he may claim a writ 
of injunction against the repetition or continuance of such 
injury, or the committal of any injury of the like kind 
relating to the same property or right ; and he may also in 
the same action include a claim for damages or other 
redress." — And by sect. 81, "in such action judgment may 
be given that the writ of injunction do or do not issue, as 
justice may require." — ^By the Judicature Act, 1873, 



{q) Shadicell ▼. Sutehinaon, 2 B. 
& Ad. 97 ; Bathwhill v. Reed, 18 
C. B. 696 ; 26 L. J. 0. P. 290. 

. (r) CloiDet Y, Stafford Fotier%€8 Co,, 
li. B. 8 Gh. 142 ; 42 L. J. G. 112. 

(j) Ru9t V. Victoria Lock Co., 
L. R. 36 G. D. 113. 

(/) The Ghancery Amendment 
Act, 1858 (Lord Gaima' Act), en- 
abling the Gonrt of Ghancery to 



give damages in addition to or in 
Bubstitution for injimction, was re- 
pealed hj the Statute Law Beyi- 
sion Act, 1883 ; having been super- 
seded in effect bj the Judicature 
Act, which flares each Division of 
the Gourt full power to give either 
an injunction or damages. Say era 
T. CoUyer, L. R. 28 G. D. 103 ; 64 
L. «r. G. 3. 



318 



USES ANU PROFITS IN LAND OF ANOTHER. 



Principle of 

grantiDg 

injunctioii. 



8. 25 (8), "An injiinctioii may be granted by an inter- 
locutory order of the Court in all eases in which it diall 
appear to the Court to be just or convenient that sudi 
order should be made ; and any such order shall be made 
either unconditionally or upon such terms and conditions 
as the Court shall think just." — " The Court under these 
Acts has unlimited power to grant an injunction in any 
case where it would be right or just to do so ; and what is 
right or just must be decided on settled legal princi- 
ples " (t). " The phrase * just or convenient ' in the Judi- 
cature Act, 1873, s. 25 (8), does not extend or alter the 
principles on which the Court should act " («). 

The general principle of granting injunction is that 
damages are an inadequate remedy for privation of the 
right. There are many cases in which a claim for damages 
would not support an injunction ; but a claim to substan- 
tial damages would presumptively give a claim to an 
injunction, because the Court will not allow a person to act 
so as to injure another merely upon' payment of a compen- 
sation in damages, if that other person prefers to enjoy his 
specific right instead of taking a compensation for it in the 
form of a compulsory assessment of damages (r). "The 
Court would not interfere by way of injunction in a case 
in which no damages could be recovered at law ; nor in 
general, in a case in which, although damages might he 
recoverable, the amount would be inconsiderable " («f). 
But a right to nominal damages may be sufficient ground 
for an injunction in order to prevent future injury (x). — 
In the case of a covenant creating a special right of the 
nature of an easement, the Court would in general grant 
an injunction in the strict terms of the covenant without 
regard to the amount of damages, in exercise of the juris- 



{i) Jesael, M. R., Beddow v. Bed- 
dotPy L. R. 9 C. D. 93 ; 47 L. J. C. 
588. 

{u) JPer cur. Day v. Broumrigg, 
L. R. 10 0. D. 307; Gaskin v. 
Balls, L. R. 13 C. D. 324. 

(r) VfooAyY.'CyDentY, Atietion 
Mart, L. R. 2 Eq. 246 ; 85 L. J. 



C. 666. 

{w) Turner, L. J., Johnson ▼. 
Wyatt, 2 D. J. & S. 18 ; 38 L. J. 
C. 397. 

{x) Chices v. Stafford lotteries Cb., 
L. R. 8 Ch. 142 ; 42 L. J. C. 112; 
Pennington v. Brinsop Coal Co., L. R. 
5 C. D. 773 ; 46 L. J. C. 774. 



CHAP. I. EASEMENTS. 



319 



diction to enforce specifio performance of the contract (x). 
Bnt in a conveyance of land with appurtenant easements, 
the nsual covenant for quiet enjojme/it does not enlarge 
the rights conveyed or the claim for an injunction; it 
only gives the additional security of the covenant (^). 

A mandatory injunction is an injimction requiring the Mandatory- 
removal of buildings or other obstructions and easements J^n^e ^^ 
after they have been completed ; " the Court will not obetruotiona. 
interfere by way of mandatory injunction, except in 
cases in which extreme, or very serious damage will ensue 
from its interference being withheld " (z) ; and except in 
*^ cases where the injury done cannot be estimated and 
sufficiently compensated by a pecuniary sum " {a). " The 
comparative values of the defendant's building and the 
plaintiff's may be sufficient to induce the Court to refrain 
from granting an injunction in a case where, if the 
buildings had not been completed, an injunction would be 
granted" (6). The Court will also have regard to the 
nature of the obstructive building and whether or not it 
can be removed easily and without loss ; the annoyance 
caused by it and how far the demand for its removal 
under the circumstances is reasonable ; and generally the 
comparative consequences to the parties of the Court 
granting a mandatory injunction (c). — ^Delay or acquies* Delayer 
cence in suffering a building that obstructs lights or other ^ 
easements to be substantially completed before making 
complaint is ground. for the Court refusing a mandatory 
injunction ((3?). On the other hand, if notice has been 



(x) Leech y. SehwedeTf L. R. 9 
Ch. 463 ; 43 L. J. C. 487 ; Cooks t. 
ChUeott^ L. R. 3 G. D. 694. 

iy) Leech y. Sehweder, supra; 
Jenkins y. Jackson, W. N. 1888, p. 
194. 

(») Durell y. PHUhardy L. R. 1 
Ch. 250 ; 35 L. J. C. 223. 

(a) Weetbniy, L. C, Isenherg y. 
£ast India So. Co., 3 D. J. & S. 
263 ; 33 L. J. G. 892. 

{b) Jesael, M. R., AffnsUy y. 
Glover, L. R. 18 Eq. 554 ; 43 L. J. 



G. 777; Kinderaley, V.-G., Cwr- 
riers' Co, y. Corbett, 2 Dr. & Sm. 
360. 

((?) Baxter y, Botoer, 44 L. J. G. 
625 ; Boves y. Law, L. R. 9 £q. 
636 ; 39 L. J. G. 483 ; Kelk v. 
JPsarson, L. R. 6 Gh. 812; Goodson 
y. RUhardson, L. R. 9 Gh. 223 ; 43 
L. J. G. 790. 

{d) Stanley y. Shrewsbury, L. R. 
19 Eq. 616 ; 44 L. J. G. 389 ; Gai- 
kin y. Balls, L. R. 13 G. B. 324. 






4 



1-1 T*^ i tier '' lZ rEn>=*iT- mix TTiar*:'? o^ the 

iL:-*T'-rL« »L t ^t* •_ riZ^ Kill ZL'Z'Ll''* h t! rTTr dlZUI^ 

zis^-^i •: KL zLTni^Ti iL " "' . A srrrciT'Br cise of 



«r*-^n&'jrr 



Tii^ C .»:z^ ziaj r^tz-": kl rLtrrl •^rr: ?t- ii:;Tin»?ri 'ii against 

ru 'r:#'»L tli* tTiZiiZ-t sTrrLS- an iri2€Eiritv asainst any 
J'*-* '.r- A*L:crr*i IT- h : az.i if h rzrzis cnt that the injnnc- 
*lrxL '%' L* €rr:»i.-r':n>:v irriz.t'e»L ti>e ind-^-mnitT mar be en- 
f :r:v^L Trr.r'JjrT tlr ^tt^:?- was in matter of fact, or that of 
iLr C'.'Tirr ir» ir;Ar:«r -^f law }* . A mandatonr injnnctioii 
EJiT lie 2Tii.tr-l j-eniirg the litigatioii ; and such an in- 
jm^'.'^.'-ii was granted where the bailding was oontinaed 
after an ii:;ai:^^^»n t.'» restrain hnildiDg pending litiga- 
ticn »' . — The Coirt will not in general sanction a defen- 
dant c<»JitzLmng to hnfld pending litigation npon the tenns 
of pulling down if it be eventually decided against him, on 
arxonnt of the haid^p that might be caused in enforcing 
such tenns 0)9 ^^^ ^ ^^^ ^^ undertaking has been 

V Smith r. SmitK L. B. 20 Eq. (A) Hwit ▼. Hunt, 64 L. J. C. 

600- 44 L J. C. 630; Krehl t. 289; see AniM y. i>ay, L. R. 21 C. 

BurreU, L. E. 7 C. D. 561 ; 11 D. 421 ; JV«r*y v. Horrwm, 3 De 

C D 146 • 47 L. J. C. 353 ; Smith Qt. F. & J. 287 ; 30 L. J. 0. 863. 
w'.Day, h. E. 13 C. D. 661. (0 Beadel v. Terry, L. E. 3 Eq. 

if) Per atr. Sayen v. CoHyer, 466. 
L E. 28 C. D. 103; 54 L. J. C. 3. 0) kernel, M. E., Aymley r. 

ia) Per ear. Johnwn T. Wyatt, 2 Olover, L. E. 18 Eq. 663 ; 43 L. J. 

D. jr. & S. 18 ; 33 L. J. C. 397. O. 777. 



CHAP. I. KASEMEXTS. 



321 



given, it will ba rigorously enforced and a mandatory 
injunction granted to pull down the building (k). 

The above principles may be illustrated in application to Injunction to 
lights. There are many cases of disturbance of lights in ^^ ^ 
which an action may be maintained, but which will not 
support an injunction. The Court will in general grant 
an injunction only in cases where substantial damages can 
be proved (/). Hence "it is necessary, in order that an 
injunction should be granted, for the plaintiff to show that 
there will be a permanent obstruction to the access of light 
to such an extent as to render the occupation of his house 
less comfortable than it was before, or to prevent the 
present tenant from carrying on his business as beneficially 
as he could before ; or that the plaintiff, as owner of the 
reversion, wiU suffer substantial or material damage by 
the lessening of its value" (m). If the obstruction of light 
would render the property practically useless, the owner 
will not be compelled to accept compensation in damages 
instead of an injunction ; in cases of partial obstruction of 
light, it becomes a question more or less of discretion for 
the Court, to be exercised upon a knowledge of the facts of 
each particular case (n). — An injunction will in general be 
granted against raising a new building in a street to a 
greater height than would subtend an angle of forty-five 
degrees with the level of the lights in the houses on the 
opposite side of the street; as being presumptively a 
material obstruction to the light. And it is said that 
within that limit "there cannot, under ordinary circum- 
stances, be such a material obstruction of light as to make 



(k) Cotton, L. J., Heclet. Commits, 
r. Kino, L. R. 14 0. D. 229 ; 49 
Jj. J. 0. 529 ; Smith v. Day, L. R. 
13 C. D. 651 ; Greenwood y. Hormeyy 
Ii. R. 33 C. D. 471 ; 56 L. J. C. 
917. 

(/) Eldon, L. C, Alt. -Gen. v. 
yichol, 16 Ves. 338 ; Wood, V.-C, 
JDent T. Auction Mart, L. R. 2 Eq. 
245; 35 L. J. C. 655; Kino v. 
Kudkin, L. R. 6 C. D. 160 ; 46 



L. J. C. 807. 

(m) Johnson v. Wyatt, 2 D. J. & 
8. 18; 33 L. J. C. 394; Fry, J., 
Kino V. Eudkin, L. R. 6 C. D. 160; 
46 L. J. C. 807 ; Kelk t. Fearton, 
L. R. 6 Gh. 809. 

(«) Holland v. Worley, L. R. 26 
C. D. 578 ; 54 L. J. C. 268 ; Green- 
wood V. Homtetff L. R. 33 0. D. 
471 ; 56 L. J. C. 917. 



^^iftUtf'je to 



X If— ^--^r^ i r "ie 7 ir: t- zLi-^-^re tjr wbt of injimo* 
ii a ' . — Li I ir«^ -«rif2r» ir "WTis -i :i'.tril vhether a pro- 
y -^i TTiJL T- .'_.! '•e 1. zurrriil :\:sZri,:<Loa to lights, the 
. ir: Lz'-'^-l & i-^^.^nrj 5..r>:*i=. to be erected, and 
irr* Lur.-L 1 *vzr^7:r r: r»=^»r: :it«::i the effect i/>). — ^An 
ZL mi ii a ZLi^ :•- znzr-r»i "Li- ijri the- h"kTise be unocca- 
T>-i- zi r"--=^»-.^ :•: ii»r t*"-*-! -rr .•.^.'::i«ti >n y. So, where 
a *:«i-li:zur iiL* ':»r-:i 3^^* •i'^ni- with intention of re- 
:«ii--^^^ uiii :!>-?--^Hi^ i^rr iz. i-z.! IfghtS'Ti ; and where 
k \'~^ ■ ~ r T^i-* r^"*- ^ "^^ witi the intt-ntion of seUing 
tl-r ti'-r -w^Ji iZ tl-r rl^t5 1 J [ iitenaLat thereto, an in- 
j-z-zz. c -s-i^ rnctei iirii:i.< tiling uj-^n the adjacent 
Ilzli *•: t* t: '•^riiic ti-f li^lt as originally enjoyed («). 
li a L: :-=^ i* i'>.r: t: 1«e- p zll'rti d-,»wn without re-bnilding, 
as in tLr ca^e -if a LiL^ie under notice to be taken 
f:r ••ne fnill:- fiiri-zjse, the Court would not grant an 
ii.;:ii:-t£:r^ t:it wi.-^Ii Itave the owner to his remedy m 
d.ir-.Ag^ * . 

of The owner of the dominant tenement may himself abate 
a nuiian«:e or obstruction to an easement At conmion 
law - there are two ways to redress a nuisance one by 
action, and in that he shall recover damages and have 
judgment that the nuisance shall be removed or abated, as 
the caae requires ; or the party grieved may enter and abate 
the nuisance himself" (u). And he may abate the nuis- 
ance before any prejudice ; " for it is reasonable that he 
should prevent his prejudice, and not stay till it be 
done" (r). The abatement of a nuisance by an act of the 
party himself mei^es his right of action and claim for 

{o) City of London Brncery t. (r) Staight v. Bum^ L. B. 5 Gh. 

Tennant, L. B. 9 Ch. 2\^\ 43 L. J. 163 ; 39 L. J. C. 289. 

C. 457 ; ante, p. 214. {$) Exiles. Conuni*, ▼. Kino, L. B. 

{p) Leech V. Schtceder, L. B. 9 14 C. D. 213 : 49 L. J. C. 529. 

Ch. 463 ; 43 L. J. C. 487. (0 Wood, V.-C, Dent v. Awtion 

(q) WiUon v. Townend, 1 Dr. & Mart, L. B. 2 Eq. 247. 

Sm. 324 ; 30 L. J. C. 25; ante, (w) 9 Co. 54*, Baten** Case; per 

p. 216. eur. I^eiry v. Fitzkowe, 8 Q. B. 775. 

(p) Penruddock'sCate^bOoAQlh, 



CHAP. I. EASEMENTS. 323 

damages (w). — Accordingly, " if a person builds a house so 
near mine that it stops my lights, or shoots the water upon 
my house, or is in any other way a nuisance to me, I may 
enter upon the owner's soil and pull it down " (x). " A 
oommoner may pull down a building wrongfully erected 
upon the common, and which prevents his exercising his 
right so fully as he might otherwise, provided he does no 
Tiimecessary damage" (y). 

The owner of the servient tenement also may protect Abatement of 
Lis property from subjection to an easement by himself ^^^^ ^ 
abating a nuisance to it. If one builds a house over- tenement, 
hanging the house of another, or with eaves that shoot the 
water upon the land of another, the latter may abate the 
nuisance and may pull down so much of the house as is 
necessary for that purpose (e). In the case of trees grow- 
ing over the land of another, the latter may abate the 
nuisance at any moment by cutting the trees growing over 
his land (a). And the occupier of a tenement may enter 
upon adjoining land to remove a nuisance of filth which 
pollutes the air, and renders his tenement unwhole- 
some (i). 

Upon the same principle if an easement is used in excess Exercise of 
of the right, so as to impose an undue burthen upon the ^J^^"** "^ 
servient tenement, the owner of the latter may obstruct 
ihe easement altogether, if he cannot otherwise prevent 
the excess ; and the easement will then be suspended until 
reduced to the proper limits of use (c). Thus if a water- 
course for the discharge of pure water is used to discharge 
foul water, the servient owner may stop it entirely ; for 
^^ if a man has a right to send clean water through a drain 
and sends dirty water, every particle of the water ought to 

(w) 9 Co. 55 a, BaUnU Cote, 196, cited in Jones t. JFilliami, 11 

. (x) Sex ▼. SMeweU, 2 Salk. 459. M. & W. 178. 

(y) rer CUT. Davies v. WtlUamSf (6) Jones y. Williamtf II H, &W. 

15 Q. B. 646 ; 20 L. J. Q. B. 330. 176. 

(t) Bairn's Case^ 9 Go. 63 6 ; Rex (c) Per eur. Catckweil t. Russell^ 

T. RMtfwell^ supra. 26 Li. J. Ex. 36. 

(a) Morriee ▼. Raker^ 3 Balstr. 

y2 



324 



rSBS AXD PKOFIT^ IN LAXD OF AKOnTHER. 



ire 

eaaenient of 
light. 



Kotioe 
to abate 
nninnoe. 



be stopped, becsuse it is all dirty " (d). But if seyeral 
persons hare prescriptiTe lights of dnuiiiiig through a 
sew^r of the servient tenement, and one or more of them 
exercifie their lights in excess, there would be no justifi- 
cation on that account of stopping the sewer against all 
and thereby depriTing those who are acting within their 
right (e). Whether a particular act be a proper and 
reasonable use of an easement, or such an excessiye use 
as will render the act wholly wrongful, is a question of 
feet depending upon the circumstances (/). — This prin- 
ciple has no application to n^ative easements, because no 
act is done upon the servient tenement which the owner 
could abate ; thus with the easement of light, enlarging 
the windows of a house cannot be treated as an excesfflve 
use of the easement ; it is merely equivalent to opening 
new windows, which it is within the power of the owner 
to do without encroachment on the servient tenement It 
therefore gives no right to obstruct the ancient lights, 
though it may not be possible to obstruct the new openings 
without doing so(^). 

As against an occupier who has himself wrongfully 
caused the nuisance the person aggrieved may enter upon 
his tenement and abate it without any notice or request to 
have it abated. But as against an assignee of the tene- 
ment with the nuisance upon it, and who is not himself the 
wrongdoer, a notice or request to abate it must, in general, 
be made before the party aggrieved can himself enter and 
abate it ; unless the occupier is imder some special obliga- 
tion to remove the nuisance, the neglect of which would 
put him in the position of a wrongdoer and dispense with 
notice or request ; and exoept in cases of danger to life or 
health from the nuisance which would justify immediate 



i: 



Id) Catcktcell y. Biusell, supra, 
[e) Jeaaely M. R., Ait- Gen. y. 

Dorking, L. R. 20 C. D. 695 ; 61 

L. J. C. 690. See Ait.- Gen. v. 

AeUm, L. B. 22 C. D. 221; 62 

L. J. C. 108. 



(/) Sawkint y. Carbinst, 27 L. J. 
Ex. 44. See JFillianu y. Jama, 
L. R. 2 C. P. 677 ; 36 L. J. C. P. 
266. 

(ff) Ante, p. 216. 



CHAP. I. EASEMENTS. 325 

abatement without notice. Also if the occupier increases 
an existing nuisance, it is equivalent to a new nuisance, 
and it maybe abated without notice (A). — The right of 
abatement extends to pulling down a dwelling house, £is 
well as any other building, provided that no person be 
therein at the time ; but if there be any person in actual 
occupation, notice must be given to him and a request 
made to him to remove, before it would be justifiable to 
pull it down as a nuisance (»). 

Abatement of a nuisance must be executed without TJnneoefiaarj 
doing unnecessary damage. Therefore if part only of a *^*°^^®' 
house or building be a nuisance that part only may be 
pulled down ; but the person who is justified in pulling 
down part is not responsible for the consequences to the rest. 
As in the case of a person pulling down the part of a mill- 
dam which was wrongfully built upon his land, thereby 
causing the whole dam to faU down and the water to run 
out, the Court held him excused, adding that " if one 
erects a wall upon his own land and the land of his 
neighbour, and the neighbour pulls down the wall upon 
his land, and thereupon all the wall falls down, this is 
lawful" (y). 

(A) Penruddock's Case, 5 Co. lOU; 546 ; 20 L. J. Q. B. 330. 

Jones Y. Williams, 11 M. & W. 176. (J) Wigford v. Oill, Cro. Eliz. 

(i) Ferry v. Fitzkowe^ 8 Q. B. 269 ; per cur. Ferry v. Fitzhowe, 8 

767 ; Davies v. IFiUiamSf 16 Q. B. Q. B. 776. See^MW^ p. 369. - 



326 USES AND PROFITS IN LAND OF ANOTHER. 



CHAPTEE n. 
PEOFTTS A PEENDEE. 

Section I. Profita d prendre in generaL 
II. Creation of profits. 

III. Extinction of profits. 

IV. Bemedies for profits. 

Section I. Profits a prendre in general. 

Flxjfits k prendre — in gross and appurtenant — oonditions and limits of 

appurtenancy — ^land cannot be appurtenant to land. 
Licence to g^t minerals — to cut trees and turf — to take game and fish 

— to take water. 
Pasture of land — herbage of land. 
Commons — common of pasture — in gross — appurtenant — cattle kfmU 

and eouchant — stinted commons — unstinted commons — sheep walk 

— ^pannage. 
Common appendant — commonable cattle. 
Common of vicinage— inolosure. 
Common fields — lammas lands. 
Conmion of eetoyers — common of turbary. 
•Common of copyholders — ^profits of copyhold tenement. 
Bights of common of lord — statutory compensation. 

Pjrofitsi Profits k prendre are rights in the land of another 

prendre. which consist in the taking of some material profit from 

the land. They may be claimed as rights in gross, or in 

some cases as appurtenant to a dominant tenement over a 

servient tenement in the manner of easements. 

In gross and An easement, strictly so caUed, cannot be claimed ia 

appurtenant, gj^gg^ qj otherwise than as appurtenant to land ; for if not 

appurtenant to a dominant tenement, it would be a mere 

licence personal to the licensee and revocable at will. 

But profits of land may be granted to be held in gross 



CHAP. II. PROFITS A PKENDRE. 327 

independently of other land ; and the licence or easement, 
which is an implied accessory pf such grant, to enter upon 
the land for the purpose of taking the profits granted, 
becomes by reason of the grant, if validly made, irre- 
vocable («). — The effect of appurtenancy is that the 
profit to be taken in the servient tenement passes insepar- 
ably with the dominant tenement for any estate, and by 
any mode of conveyance sufficient to pass the tenement (6). 
Also a profit granted as appurtenant to a tenement passes 
by descent with the inheritance of the tenement ; a profit 
granted in gross passes to the heir of the grantee as a 
separate inheritance (c). 

Profits can only be made appurtenant to a tenement as Conditions 
being beneficial to the occupation in some manner that ^p,iJ^-** 
serves to define and limit the right. " In all cases of a nancy, 
claim of right in alieno solo as appurtenant, such claim 
must be made with some limitation and restriction. In 
the ordinary case of common appurtenant the right cannot 
be claimed for commonable cattle without stint and to any 
number ; but such right is measured by the capacity of 
the dominant tenement to maintain the cattle during the 
winter. Again, in the case of common of estovers or a 
liberty of taking wood, called in the books house bote, 
plough bote, and hay or hedge bote, such liberty is not 
wholly vague and indeterminate, but confined to some 
certain and definite use ; as for the maintenance and 
carrying on of husbandry, for fuel, for repairing of the 
house, the instruments of tillage and the necessary fences 
of the tenement " (rf). Thus a claim cannot be made in 
right of occupancy of a tenement to cut turf upon land 
for sale, without restriction to the requirements of the 
tenement {e) ; or a claim to cut turf as much every year 



f 



a) &eeantef p. 197; poaty p. 348. (d) Per eur, Clayton v. Corby^ 5 

b) Sachererillv. Porter yCto Car. Q. B. 419: WQlee, J., Bailey v. 
482 ; J)r\try v. Kent^ Cro. Jao. 14 ; Utevens^ 12 C. B. N. S. 91 ; 31 L. J. 
Daniel v. Hatulip, 2 Lev. 67 ; see C. P. 229 ; MorUy v. CVt/«rd, 61 
Bailey v. Stecens, 12 C. B. N. S. L. J. C. 687 ; L. R. 20 C. D. 753. 
91 ; 31 L. J. C. P. 22^. {e) Valentine v. Penny, Noy. 146. 

(e) 8 Co. 64 ff, Sym's Case. 



323 UJiES ASD PROFITS IX LAND OF ANOTHER. 

as two men can cat in a certain time, without alleging it 
to be spent in the house {/) ; or a claim to cut turf for the 
improvement of the tenement as often and in such q\iantitj 
as occasion required ig) ; or a claim as appurtenant to a 
dose to cut down all trees growing on another dose and to 
dispose of them without any restriction {h). And upon 
this principle it was held that a claim to dig day for 
making bricks at a brick kiln, as occasion required and 
without limit or restriction, could not be supported as 
appurtenant to the kiln (i). 
J^^^?*^* Kights claimed as appurtenant must not extend to all 
nant to Und. the uses and profits of which the servient land is capable, 
for the claim would then be equivalent to ownership of 
the soil ; and land cannot be claimed as appurtenant to 
other land, but must be held by distinct title {j). Ac- 
cordingly an allotment of land given in lieu of appurtenant 
rights extinguished by an Inclosure Act does not become 
appurtenant to the original tenement, but is an indepen- 
dent property (A). Nor can a profit k prendre be claimed 
as appurtenant to another right of the like kind ; a right 
of common cannot be appurtenant to another right of 
common (/). But a licence to use land by way of ease- 
ment may be granted as accessory to a grant of a profit a 
prendre and would be irrevocable (w). — Profits to be taken 
from the land of another, that do not satisfy the legal con- 
ditions of appurtenancy in relation to a dominant tenement, 
may be held as rights in gross, provided they are capable 
of being the subject of a grant (»). 

The following are the principal species of profits k 



(/) Hayward v. Canningtony 2 5 A. & E. 413 ; Butsard v. Capd^ 8 

Keble, 290 ; 1 Levinz, 231. B. & G. 141 ; 6 Bin^. 150. 

{g) WiUon v. TTilUs, 7 East, 121. (k) IFilliam* v. FhiUips, L. K. 8 

(A) JBaili^ V. Stevens, 12 C. B. Q. B. D. 437 ; 61 L. J. Q. B. 102. 

N. S. 91 ; 31 L. J. C. P. 226. (/) MiU v. Oommua. of New Fo- 

(i) Clayton v. Corby, 5 Q. B. 415. rest, 18 0. B. 60 ; 25 fc. J. C. P. 



See Att.-Geft. v. Mathia*, 27 L. J. 215. 

0. 766 ; 4 K. & J. 579. (m) Ante, p. 327, n. (a). 

(J) Ck). Lit. 121 6; 4 Co. 36 6, 
Tyrringham!s Cmc; Jones Y.£iehard, 



(n) Ante, p. 326. 



CHAP. II. PROFITS A VRKNDRE. 329 

prendre — " The grant of a licence to search and get (irre- 
vocable on account of its carrying an interest), with a grant l^cenco to get 
of such of the ore only as should be found and got, the 
grantor parting with no estate or interest in the rest. The 
grantee has no estate or property in the land itself, or any 
particular portion thereof, or in any part of the ore or 
minerals ungot therein ; but he has a right of property 
only as to such part thereof as upon the liberties granted to 
him should be dug and got. That is no more than a mere 
right to a personal chattel, when obtained in pursuance of 
incorporeal privileges granted for the purpose of obtaining 
it, being very different from a grant or demise of the mines 
or minerals in the land " (o). In like manner a licence or 
right to enter upon land and to dig and carry away stone, 
gravel, sand, or other material of the soil, is a profit & 
prendre. And a licence to take cinders from a heap which 
had become a part of the soil was held to be a right of this 
kind {p). — ^The grant of a licence to search for and take 
minerals creates a right in gross, assignable, demisable, and 
descendible (^). Such a licence may be granted to one Exclusive and 
person exclusively of others, or to several persons concur- UoenoST^ 
rently. As it gives no specific property in the profits until 
taken, it is presumptively not exclusive of the owner, or of 
other licensees; if intended so to be, it must be so expressed. 
The owner of the land may grant similar licences to others, 
BO far as he can without derogation from his former grant, 
or he may himself take similar profits while the land is in 
his possession, or he may grant or demise the land to another 
subject to the licence (r). A licence differs from a lease 
in this respect that the licence gives no specific right to the 
profits before actually taken into possession by virtue of 

(o) I^r eur. Doe v. Wood, 2 B. & 31 L. J. 0. P. 228 ; 12 0. B. N. S. 

AM. 738 ; Muskett y. Hilly 5 Bing. 91. 
N. C. 706 ; ante, p. 53. (r) Mountjoy's Can, Co. Litt. 

(p) Sfnart v. Jones, 16 C. B. N. S. 164 b ; Dowglasa v. Kendal, Cro. 

717; 33 L. J. C. P. 154. Jao. 266; Chetham v. JFUlianwm, 

{q) Muskett y. Hill, 6 Bing. N. C. 4 East, 469 ; ante, p. 54. 
694 ; 'Wflles, J., Bailey y. Stevens, 



330 



USES AND PROFITS IS LAND OF ANOTHER* 



Lioenoe to 
take trees and 
tarf. 



Game and 
fish. 



Water. 



the licence ; while a lease gives immediate possession of the 
whole sahject of demise, leaving nothing of which a oon- 
ourrent lease or licence can he granted. As to a licence it 
is said ^' that a man taking a licence where he is under no 
obligation to work cannot exclude his licensor from granting 
as many more of those licences as he thinks fit, provided 
always that they are not so granted as to defeat the known 
objects of the first licensdie " («). 

A grant of the trees and underwood of all kinds grow- 
ing and to grow in future in a certain wood, (ex(»pt the 
land and soil of the same wood,) with liberty to inclose 
for the preservation of the wood, was held to give "an 
inheritance as profit apprender in alieno soio^^ {t). — So, 
a sole and exclusive right to dig turf and peat from a 
moss in the waste of a manor (w). — The right to kill and 
take game in certain land, also rights of fishery in private 
waters, may be granted as separate tenements in gross and 
for the same limitations of estate as land. These rights 
have been already noticed (r). It seems that such rights 
cannot be claimed as appurtenant, because they cannot be 
subservient to or limited by the use of a dominant tene- 
ment ; they are rights of mere personal profit and enjoy- 
ment. Free warren as an ancient franchise may be 
prescriptively appurtenant to a manor ; but a grant of a 
manor accompanied with a grant of warren would not make 
it so. "A warren appendant or appurtenant can exist 
only by prescription" (w). 

But a right to enter upon land of another to take water 
from a running stream or spring, is a mere easement and 
not a profit d prendre (x). So also is a right to use the 



(») Wood, L. J., Carr v. Benson^ 
L. R. 3 Ch. 632. 

{t) Barrington*8 Case^ 8 Co. 136 A; 
Bai'et/ v. Stevens, 12 C. B. N. S. 91; 
31 L. J. C. P. 229; ante, p. 30. 

(«) Wilson V. Mackrtth. 3 Burr. 
1824. 

(») Ante, pp. 78, 176; Moore v. 
Lord Plymouth y 7 Taunt. 614; Bexv. 



Piddletrenhide, 3 T. R. 772 ; Shut- 
tleicorth y. Le Fleminff^ 19 C. B. 
N. S. 687 ; 34 L. J. C. P. 309. 

(it) Morris v. Dimes, 1 A. & E. 
6.54 ; Beauehamp v. JTmn^ L. R. 6 
H. L. 223 ; ante, p. 85. 

(x) Bace\. Ward, 4 £. & B. 702; 
24 L. J. Q. B. 153. 



CHAP. II. PROFITS A PRENDRE. 



331 



water of a pond for watering cattle and for domestic 
purposes (y) ; and the right to take water from a pump (2). 
For water, it is said, " is no part of the soil like sand or 
day or stones, nor the produce of the soil, like grass or 
turves or trees ; it is supplied and renewed by nature" (a). 
Hence a claim to take water from a natural stream or 
spring in the land of another may be supported by local 
oufitom {b). 



A right to the sole and exclusive pasture over the land Pasture of 
of another may be vested in gross in a man and his heirs, 
for an estate analogous to a fee simple ; it may be claimed 
by grant or by prescription at common law ; it is also 
assignable for the same or for any less estate (c). A right 
of sole pasture is a tenement within the statute De Donis 
and maybe entailed (rf). It maybe granted and held 
as a tenement by "copyhold (e). It may be demised with a 
reservation of rent, and the lessor may distrain the cattle 
pasturing upon the land(/). — ^A similar grant maybe Herbage of 
made of the herbage or vesture of land, vestura terrcBy in- 
cluding the crops of grass, underwood, brushwood and 
litter growing upon the land to be cut and taken away, 
and not, like pasture, only to be fed off by cattle ; but 
without any right or interest in the soil beyond the neces- 
sary easement of entering upon the surface to take the 
profits granted {g). A grant of such prpfits may be 
limited to a certain season of the year as from Lammas to 
Candlemas ; or it may be limited to the first crop, prima 



land. 



{if) Manning v. WaseUtU^ 5 A. & 
E. 758. 

(z) Pomfret Y. JOero/i, 1 Wms. 
Saund 321. 

(tf) Per cur. Haee v. JTardj $upra. 

ih) See po9tf p. 563. 
e) Welcome v. Upton, 6 M. & W. 
536. '* Instancea of sole pasturage 
are to be found la the South Dowus 
in Sussex, and they are frequently 
'tran^f erred in gross. It is the same 
with the cattle-ffates in the North 
of England, almough some have 



thought the owners of them are 
tenants in common of the soil." 
AbiDger, G. B., ib. Bennir^toti v. 
Goodtitle, 2 Strange, 1084 ; The 
Kingy. Whixley, 1 T. R. 137; Zon*- 
dale V. Rigg, 11 Ex. 654; 1 H. & 
N. 923. 

(d) Co. Lit. 20a. 

le) Co. Lit. 68*; Hoe v. Taylor, 
4 Go. 30*. 

(/) Go. Lit. 47a. SGoMasterey. 
Green, L. R. 20 Q. B. B. 807. 

ijSi) Go. Lit. 4*. 



332 



rSES AKl> PROFITS IN LAND OF ANOTUEK. 



Gonstniction 
of temiB. 



GommoiiB. 



tonsuray excluding all other rights and profits (A). — ^The 
grantee of exclusive pasture, or of the herbage or yeatare 
of land has possession of the surface for the time being so 
far as is necessary for taking the profits granted, and he 
can maintain an action of trespass in right of that actual 
possession. The owner of the soil subject to such exelusiye 
possession of the surface is excluded from maintaining an 
action for a trespass upon the surface only ; but he retains 
the right of action for a trespass to the subsoil (i). An 
exclusive use of pasture in absence of other facts indicatiTe 
of ownership is prima facie evidence of title to the land 
itself ; and the inference is stronger where the nature of 
the land is such as not to admit of other profitable Uj9e8(y). 
— The terms " pasture," " meadow," or other like term in 
a conveyance may be construed as a description of the 
land sufficient to pass the land itself ; or it may be con- 
strued to mean only the profit of pasturing cattle, whilst 
the land itself in respect of all other uses remains the 
property of another. The construction depends primarily 
upon the context of the instrument in application to the 
circumstances; and if doubtful it may further be explained 
by the usage in which it has been accepted (A*). 

"Common" is used as a general expression for "a 
profit which a man hath in the land of anoth^ " ; the 
common interest being between the owner of the profit and 
the owner of the soil, or between the owner of the profit 
and other owners of like profits ; and in the latter case it 
may be exclusive of the owner of the soil. There are 
various species of commons: — of pasture, of estovers, of 
turbary, of pischary, of digging for coals, minerals, and 
the like (/). 



(A) Go. lit. 58 b ; Stammers v. 
DixoHy 7 Eaat, 200 ; Johtwon v. 
Barnes, L. R. 8 0. P. 627 ; 41 L. J. 
0. P. 260. 

(t) Co. Lit. 4 b; Cox v. Glue, Cox 
V. Mousley, 6 C. B. 633 ; Coverdale 
V. Charlton, L. R. 4 Q. B. D. 104 ; 
48 L. J. Q. B. 128. 



U) Jones v. Riehard, 5 A. & £. 
413. 

{k) Go Lit. 4 b ; Stammers v. 
Dixon, 7 East, 20(f; Boey. Bevit, 
7 G. B. 604 ; Jfoffff v. Tation, L. R. 
6Q. B. D. 10; 60 L. J. M. 17. 

(3 Go. Lit. 122 a; Pottery. Nortk, 
1 Wms. Saund. 349 b. 



CHAP. II. PROFITS A PRENDRE. 333 

Common of pasture is the right of feeding beasts on Common of 
another's land ; and it is so called " for that the feeding of ^^* 
beasts in the land wherein the common is to be had belongs 
to many " (w). Conmion of pasture can be taken only 
oj putting cattle upon the land to eat the herbage ; thus 
differing from a right to the herbage of land which may 
be taken by cutting it and carrying it away to use else- 
where for food, litter, or manure («). — Common of pasture In groBs. 
may be in gross, or appurtenant. Common of pasture in 
gross may be claimed by grant or by prescription at 
common law. It is defined and limited by the expi-ess 
terms of the grant, or by the mode of use and enjoyment 
upon which the prescription is founded. It may be of any 
kind that is capable of being made the subject of a 
grant (o). 

Common of pasture appurtenant is claimed as an inci- Common of 
dent annexed to a dominant tenement, and is defined and ^^^ant, 
limited, directly or indirectly, by some beneficial connec- 
tion with the occupation of that tenement (^;). It may 
be limited to the cattle " levant and couchant " upon the 
dominant tenement, or to the cattle required for ploughing 
and manuring the tenement, or to cattle of a certain 
species, or it may be " stinted," that is limited to a certain 
number of cattle, either fixed absolutely or by reference to 
the value or extent of the tenement (y). — The phrase Cattle levant 
" levant and couchant " literally imports that the cattle ^ ^^*^ *^*' 
should be permanently kept upon the land ; but it is con- 
strued in modem times to refer to the capacity of the 
tenement to maintain the cattle rather than as a condition 
to be literally satisfied. " It is settled that what is meant 
by cattle levant and couchant is the number of cattle which 
the land in respect of which the common is claimed will 
maintain, and that it is a mode of admeasuring the 

(m) Co. Litt. 122 a. (o) Ante, p. 326. 

(n) Ante, p. 331 ; J)e la Warr v. \p) Ante, p. 327. 

Miles, L. R. 17 C. D. 636 ; 60 L. J. (q) Baylie v. Tyseen-Amhurst, L. 

C. 764. R 6 C. D. 507 ; 46 L. J. C. 718. 



334 



rSES AND PROFITS IN LAND OF ANOTHER. 



Stmted 
oommoDfl. 



oommon " (r). So long as the tenement retains the 
capacity for maintaining the cattle the appurtenant com- 
mon maj continue, although in fact no cattle are kept 
upon it and the tenement is used for other purposes ; thus 
where the tenement had been partly built upon and the 
rest turned into orchard ground, it was held to be not such 
a change of the dominant tenement, in respect of the 
capacity for maintaining cattle, as would prove an aban- 
donment or loss of the pre-existing right of common («). 
But the claim cannot be supported as appurtenant to a 
house only, without any land or curtilage on which the 
cattle could be kept(^). A claim of common for cattle 
levant and couchant upon a " cottage " was formerly held 
good, because a cottage with less than four acres of land 
was against the statute 31 Eliz. c. 7 (repealed 15 Geo. III. 
c. 32) (u). 

Common appurtenant may be " stinted " or limited to 
a fixed nimiber of cattle, as common for a certain number 
of cows, or oxen, or sheep, or horses (v) ; " there is no 
difference when the prescription is for cattle levant and 
couchant, and when for a certain number of cattle levant 
and couchant ; but when the prescription is for common 
appurtenant to land without alleging that it is for cattle 
levant and couchant, there a certain number of cattle 
ought to be expressed, which are intended by the law to 
be levant and couchant" (tr). Common may also be 
stinted to a number proportioned to the annual value of 
the tenements (x) ; or to a number proportioned to the 
extent of the tenements, as for a certain number per 
acre (y). And it seems there may be oommon for a share 



(r) Per cur. Cheesman v. Hard- 
man, 1 B. & Aid. 711 ; Parke, B., 
Whitelock y. HuUhiruoriy 2 M. & 
Bob. 205. 

(«) Carr v. Lambert^ L. R. 1 Ex. 
176; 34 L. J. Ex. 68. 

[t) Scholes V. Hargreavesj 6 T. R. 
46 ; Benson v. Chester, 8 T. R. 396 ; 
Jiicketh ▼. Saltcey, 2 B. & Aid. 360. 

(m) EmerUm ▼. Selby, 6 Mod. 115. 

{y) Holt, C. J., Richards v. Squibb, 



I Ld. Raym. 726. 

(w) Morse v. Webb, 13 Go. 66; 
Cheeftnan v. Sardham^ 1 B. & Aid. 
706. 

(x) Fox y. Amhurst, L. R. 20 Eq. 
403; 44 L. J. G. 666; Baylis t. 
Tyssen- Amhurst^ L. R. 6G. D. 609. 

(y) Sail v. Harding, 4 Buxr. 
2426; HaU ▼. Byron, L. R. 4 
0. D. 667 ; Cheesman y. Sardhawt, 
I B. & Aid. 706. 



CHAP. II. PROFITS A PRENDRE. 



335 



or fractional part of an animal, to be enjoyed by join- 
ing with other commoners having similar rights, or by 
pasturing a whole animal for a fractional part of the 
year (s) . Stints or measures of this kind may be imposed by 
the tenants or commoners themselves by virtue of customary 
or statutory powers to fix the stint (a) ; or by agreements, 
which however bind only the conmioners for the time 
being who consent (6). — Common appurtenant not other- 
wise stinted is presumptively stinted to cattle levant and 
couchant upon the tenement (c). A grant of a tenement 
" together with reasonable common of pasture " was 
construed to mean pasture for cattle levant and couchant, 
that being the usual and therefore the reasonable measure 
of common appurtenant (d). 

Pasture without stint or limit, of number or otherwise, Unstinted 
cannot be claimed as appurtenant to a tenement, but only ^ ^"^' 
as a right in gross, which may be created and assigned by 
deed (e). An exclusive right of pasture may be held by a 
corporate borough in gross ; but to be enjoyed by the 
burgesses under the usual restrictions of common rights 
inter se, such as that of cattle levant and couchant upon 
their respective tenements (/). — ^An unstinted pasture or 
an exclusive right of pasture may be exercised by agisting 
or taking in to feed the cattle of a stranger ; because it is 
immaterial to the owner of the land, who retains no 
interest in the pasture. And a common of pasture stinted 
to a certain number may be exercised by feeding the 



(z) See Niehoh y. Chapman^ 5 H. & 
N. 643 ; 29 L. J. Ex. 461 ; Ellard 
V. Bill, Siderfin, 226. 

{a) Foxy, Am hunt f supra; Baylia 
T. Tytten'Amkurstj supra; 13 Geo. 
3, o. 81. 

{b) Chapman y. Onolany 13 East, 
10. 

{e) Benson v. Chester, 8 T. R. 
396 ; Chapman y. Cowlan, 13 Ea^t, 
10 ; li^well v. P^is, 1 Y. & J. 
161 ; Jones v. Richard, 6 A. & E. 
630 ; MorUy v. Clifford, L. R. 20 
C. D. 767 ; 61 L. J. C. 687. 



(rf) Loidge v. Carpenter^ 6 K. & 
S. 47. 

(e) Weekly v. Wildman, 1 L. 
Raym. 407 ; Ivatt y. Mann, 3 M. 
& G. 691 ; Morleyy, Clifford, L. R. 
20 C. D. 763 ; 61 L. J. C. 687 ; 
Welcome y. Upton, 6 M. & "W. 
636. 

(/) Johnson y. Barnes, L. R. 8 
0. P. 527; 41 L. J. 0. P. 260; 
The King y. Churchill, 4 B. & C. 
760 ; Mellor y. Spateman, 1 "Wms. 
Saund. 346(f. 



336 



USES AND PROFITS IN LAND OF ANOTHER. 



Sheep-walk. 



Pannage. 



cattle of others, provided there be no surcharge (/), or 
it maj be assigned altogether (g). Common appurtenant 
for cattle levant and couchant cannot be used for feeding 
the cattle of others*; unless such cattle are hired and kept 
by the commoner as his own (A). 

A common of pasture may be claimed for a certain 
species of animals only, as for sheep, which is known as a 
" sheep walk," and under certain circimistances as a " fold 
course " (/). In ancient times it was commonly subject to 
" foldage," or the obligation of folding the sheep upon the 
demesnes of the manor for the benefit of manuring the 
land (j) ; a similar right of " foldage " was sometimes 
exacted from the tenants of a manor, as a service of their 
tenure (A). — Common of " pannage " is the right of feeding 
swine in woods and forests with the acorns and beech mast 
fallen from the trees. In ancient times it was frequently 
the subject of grant or of manorial custom ; and in some 
places it is a valuable right at the present day. It gives 
no specific right or interest in the growing trees, or to take 
the produce from them, or to restrain the owner from 
cutting them for timber or from lopping them in the 
proper coiirse of management (/). 



Common 
appendant. 



The earliest form of common appurtenant is the common 
of pasture appendant to arable land at common law. Upon 
the grant of a close of arable land by the lord of a manor 
before the Statute of Quia Emptores^ there was appended 
by general custom or conmion law the right of pasturing 
upon the wastes of the manor the cattle that were neoes- 



(/) 2 Wma. Saund. 327, Hot" 
kins V. Robins. 

iff) Daniel v. HansUp, 2 Lev. 67 ; 
Drury ▼. Kent^ Cro. Jac. 14. 

(h) Per cur. Bennett v. Reeve, 
Willes, 232 ; Jones v. Richard, 6 
A. & E. 630. 

(i) Jones v. Richard, 6 A. & E. 
413 ; 6 i*. 630 ; Robinson v. Duleep 
Singh, L. R. 1 1 C. D. 798 ; 48 L. 
J. C. 768. 



(j) Brook T. WUkt, 2 H. BL 
224. 

(At) 8 Co. 1256; Tunsany t. 
leader, 1 Leon. 11 ; Robinson y. 
Duleep Singh, L. R. 11 C. D. 810. 

(/) Chilton V. Corp, of London, 
L. R. 7 0. D. 662 ; 47 L. J. C. 
433 ; Bracton, 1. iv., o. 38, cited 
in De la Warr v. Miles, L. R. 17 
C. D. 535 ; 49 L. J. C. 479. 



CHAP. II. PROFITS A PRENDRE. 337 

sary for ploughing and manurmg the land inclosed. After 
the Statute of Quia JEmptores a grant of manorial land took 
the land out of the manor altogether as regards the tenure; 
for the grantee by force of the statute held directly of the 
superior lord and not of the manor, and therefore the incident 
of common appendant no longer attached (m). " Common 
appendant is of common right and therefore a man need 
not prescribe for it" ; but by reason of its early origin it 
necessarily imports a prescriptive title, and hence it is said 
that " appendants are ever by prescripition, but appurte- 
nants may be created at this day" (w). — Common appen- 
dant can be claimed for arable land only, or at least 
for land originally arable ; it cannot be claimed as 
originally granted for a house, or for meadow or 
pasture land. But " if a man has had common for cattle 
which serve for his plough appendant to his land, and 
perhaps of late time an house is built upon part and some 
part is employed to pasture and some for meadow, in this 
case the common remains appendant ; it shall be intended, 
in respect of the continual use of the common, at the begin- 
ning all was arable ; but in pleading he ought to prescribe 
to have it appendant to land; and although now it is 
pasture or meadow, yet it is arable, id est, may be 
ploughed" (o). 

Common appendant is limited to " commonable cattle," Commonable 
that is, cattle that serve for the maintenance of arable 
land, namely, horses and oxen to plough the land, and 
oows and sheep to manure it. Common appurtenant by 
grant or prescription has no such limits, but may extend 
to swine, goats, geese, and the like, according to the terms 
of the grant or the prescriptive usage ; it is limited only by 
the condition of being appurtenant to the tenement (p). 

(«) Co. Litt. 122a; 2 Inst. 86; {o) Tyrringham'seaae, 4 Co. 876; 

4 Co. 37a, Tyrringham*9 case; CarrY. Lambert^ L. R. 1 Ex. 168; 

Warrich v. Queen'a Coll., L. R. 6 34 L. J. Ex. 66 ; ante, p. 334. 
Ch. 716 ; 40 L. J. C. 780. (p) Co. Lit. 122 a; 4 Co. 37a, ' 

(«) Co. Lit. 1216, 122a; Har- Tyrringham' s ca*e; per cur. Duri' 

grave's note, ib, raven v. Llewellyn, 16 Q. B. 810. 

L. Z 



338 USES AND FBOFITS IN LAND OF ANOTHER. 

The grant of a tenement with the common law incident 
of common appendant may also have other profits appur- 
tenant to it ; which may be evidenced by the terms of the 
grant or by prescriptive use (g), A claim of common for 
all commonable cattle may be supported by evidence of 
the commoner turning out all kinds of commonable cattle 
that he kept, though he had never kept any sheep (r). 
— The commonable cattle must be levant and eonchant 
upon the land ; but this condition here imports no more 
than the connection of the cattle with the land which is 
necessary for ciscertaining the niunber. " The tenant can 
only have a right of common for such cattle as are levant 
and couchant on his estate, that is, for such and so many 
as he has occasion for to plough and manure his land in 
proportion to the quantity thereof" («). "The right of 
common appendant is confined to arable land only, and 
yet the party must state in claiming this right, that the 
cattle were levant and couchant upon the land ; it follows 
therefore that arable land in point of law may have cattle 
levant and couchant thereon " (t). 

Common of Comman pur cause de vicinage j or intercommoning, is 

Tiomage. where adjacent commons are open and unfenced, and there 
is a local custom for the cattle to intercommon, that is, 
for the cattle rightfully put upon one common to stray 
and feed upon the other. The commoners of one common 
have no right to turn out cattle upon the other, " but they 
must escape thither of themselves by reason of vicinity. 
In which case one may inclose against the other, though it 
hath been so used time out of mind, for that it is but an 
excuse for trespass" (w). "The substance of the custom 
is that cattle lawfully on one comjnon have been used to 
stray upon the other. All that is necessary therefore for 

fe) Warrick v. QueenU ColL, L. R. U) Bennett t. Reeve^ Willes, ^31. 

6 Ql. 726 ; 40 L. J. C. 780. (t) Fer eur, Cheeaman t. JTortf- 

(r) Mainfold v. Bennington^ 4 6. A«m, 1 B. & Aid. 710. 
& 0. 161. («) Go. Lit. 122a; 4 Co. 3S^ 

Tyrringham^M cote. 



CHAP. II. PROFITS A PRENDRE. 839 

the pleading to show is that the cattle were lawfnlly on 
their own common before they strayed." The custom 
may be proved by immemorial usage of cattle straying 
and feeding upon the commons of vicinage, or by reputa- 
tion ; and the evidence of cattle straying may be met by 
proof that they were constantly driven back. The right 
of a commoner to his own common, to which the com- 
mon of vicinage is incident, is not necessarily immemorial, 
but may be claimed by grant or by modem prescription 
under the Prescription Act(t?). The commoners are re- 
stricted, as to the number and kind of cattle, by their 
rights upon their own respective commons, without respect 
to the extent of the common of vicinage ; '^ for the original 
cause of this common for cause of vicinage was not for 
profit, but for preventing of suits "; and " if all the cattle 
feed promiscue together through the whole, it will be no 
prejudice to one or the other " (tr). In case of surcharging 
the common of vicinage a commoner of the latter may 
bring an action upon the case ; but he cannot determine 
the question for himseK by distraining or driving off the 
cattle in excess (x). Common of vicinage cannot extend 
through the adjacent common to commons beyond ; it is a 
mutual right between adjacent commons only, and it 
seems is restricted to two commons {p), — No similar custom 
can arise between two tenements held in several and 
exclusive ownership over which there are no commons; 
nor between commoners and an adjoining unfenced tene- 
ment over which there is no common ; nor between a sepa- 
rate tenement and a common ; the claim being in deroga- 
tion of the general exclusive ownership of land, "the 
general principles of law require that it should be shown 
to arise by grant or prescription " (s). 

(») Friehard v. Powelly 10 Q. B. (y) Bromfield v. Kirher, 11 Mod. 

603 ; Heath v. EUiott^ 4 Bing. N. C. 72 ; Commiss, of Sewers v. Olasse, 

388 ; Clark v. Tinkler, 10 Q. B. 604. L. R. 19 Eq. 134 ; 44 L. J. C. 129. 

(w) T Co. 6 b, Corbet* 9 ease, (z) Jones v. Jtobin, 10 Q. B. 637 ; 

(x) Cape T. Seoit, L. R. 9 Q. B. Clarke v. Tinkler, 10 Q. B. 604; 

269 ; 43 L. J. Q. B. 66. Meath v. Elliott, 4 Bing. N. C. 388. 

Z2 



340 USES AND PROFITS IN LAND OF ANOTHER. 

Whilst the castom prevails the commoners cannot dnye 
out the cattle straying on to their common, hnt must soffer 
them to be there ; their only remedy is to extinguish the 
mutual lights by indosure {a) ; but '^ a commoner may 
go on to a common of vicinage to drive his cattle off into 
his own common, for he ought not to keep them in the 
common of vicinage, and he may justify this trespass " (6). 
^-Common of vicinage may be extinguished at any time by 
indosure of one of the commons in a manner to prevent 
the straying of cattle from the other common. Where a 
private Inclosure Act had extinguished the rights over one 
of the commons and allotted it into separate tenements, 
but no inolosnre had in fact been made under it ; it was 
hold that the private Act did not affect the rights of the 
other commoners, who might continue their common of 
vioinap? until prevented by an inclosure in fact (c) . Where 
an inoKxsure was made of one of the commons leaving only 
a pass^go for a highway across the commons, it was held 
that as the inclosure and separation were not complete the 
common of vicinage was not in fact exduded (d), 

CVwMMw Thex^ is a species of intercommoning still prevailing in 

s^^me plac^^ where arable land is held by several persons 
in small jviivvls intermixed and uninclosed, with the right 
apivndant by custom to each parcel to have common 
o\*er the whole when the crops are off, for such common- 
able cattle as are required to plough and manure the land. 
The fields of arable land held in this manner are called 
** common fields." and the common is known locally by the 
tenu ^* common of shack" (^). "Common fields" are 
said to be the ii^mains of a mode of holding and cultivat- 
ing land prevalent in ancient times ; they were of frequent 
occunrence until they were for the most part indoeed 



(a^ Co. Lit. 122 4 : prr mr. /«m« (r^. WelU v. F^mrcw, 1 Bm^. N. C. 

T. Ji:y*H. 10 Q. B. 60,), 656. 

{y Holt, e, J., j5rv«AVu^ T. (rf^ GvUett Y. Lopet, 13 East, 348. 

rtr\^, 11 Mod. 72. (^. Orirt'* our, 7 Go. 5 « ; C5Uw. 

•Mil T. MmnOkmm^ I B. & Aid. 710. 



CHAP. II. FROFITd A FRENDKE. 



341 



under modem Inclosure Acts. Evidence of reputation is 
admissible to prove the custom, as it concerns the rights of 
all persons interested in the common field (/). By custom 
a freeholder in the common field may inclose his parcel and 
so exclude the other freeholders from common ; and at 
same time as a consequence in law he excludes himself 
from common over the other uninclosed lands (g). The 
times for opening and closing the common may be fixed 
by custom, or by agreement of the freeholders ; and in 
general the commoners may put in cattle at the proper 
time, although the crops are not wholly gathered (A). 
Powers for the better cultivatioD, improvement and regu- 
lation of conmion arable fields were given to the occupiers 
by the statute 13 Geo. III. c. 81. And powers to inclose 
such fields and to extinguish the right of interconmionage 
have been given by the statutes 6 & 7 Will. IV. c. 115, 
and 8 & 9 Vict. c. 118 (the General Inclosure Act). — The Lammas 
interoommoning of ^^ Lammas lands '' is of a similar kind. 
These are meadows or pasture lands held in exclusive 
possession during the season of the year for taking the first 
crop, and open to common pasture during the rest of the 
year, generally from Lammas to Candlemas ; the number 
of catUe being restricted to those levant and couchant upon 
the dominant tenements, or according to a stint or number 
regulated by custom or by the commoners (t). 

Common of estovers is the profit of taking wood and Common oi 
other materials necessary for the maiutenance and supply ^ ^®"* 
of a house or land, including what are known by the terms 



(/) JTgeka v. Sparke, 1 M. & S. 

679. 

(ff) CorheVs case^ supra; Hickman 
T. Thorn, 2 Mod. 104 ; Barber v. 
Dixon, 1 Wilfl. 44 ; Eow v. Strode, 
2 Wils. 269. 

(A) Year Book, 21 Hen. VI., 
cited 2 Leon. 202. 

(i) Fox V. Amhurtt, L. R. 20 Eq. 
403 ; 44 L. J. 0. 666 ; Bayli$ v. 
H^ttm-Amhiirtt, L. B. 6 C. D. 



600 ; 46 L. J. 0. 718 ; Meholt v. 
Chapman, 5 H. & N. 643 ; 29 L. J. 
Ex. 461. The Act for correcting 
the calendar, 24 Geo. 2, c. 23, a. 5, 
adTanoed the date for opening 
commons of the above kind by 
eleven days, to compensate for the 
days taken out of t£e calendar ; so 
that Lammas or 1 August became 
12 Angfust for that purpose. 



342 USES AND PROFITS IN LAND OF ANOTHER. 

hoiise-bote, plough-bote, cart-bote and hedge-bote. Theee 
terms have been already explained with reference to the 
common law right of a tenant for life or for years to take 
the estovers from his own tenement. Common of estoyers 
is the right of taking similar things to the same extent 
from the land of another {j). The right of estovers may 
extend by grant or custom to other materials required for 
the use or repair of the tenement, as cutting and taking 
litter for the use of the cattle kept upon the tenement (A), 
and taking sand, gravel, stone, clay and the like ; in such 
cases the occupier in order to justify the exercise of his 
right must prove the want of repair or other necessity, and 
that he entered for the purpose of taking the material in 
question, and that he applied it to the required purpose (/). 
Common of estovers of the above kinds over the wastes of 
a manor is a frequent incident of the tenements of the 
manor, both freehold and copyhold. The right of a tenant 
at common law to take estovers without impeachment of 
waste is not a profit & prendre in the land of another, being 
a profit of his own tenement, and is subject to the terms of 
his lease. So the customary rights of copyholders to take 
profits from their own tenements, as to dig gravel, sand, 
and the like, are not profits & prendre (m). 
Common of Common of turbary is the right to cut turf for fuel. It 

*^' may be appurtenant to a house to be consumed therein for 

necessary fuel ; and it then passes in a conveyance of the 
house without special mention. But it cannot be appur- 
tenant to land, merely as open land, because not applicable 
thereto (n). It may be granted as a right in gross (o). In 
a case under an Inclosure Act it was held that the occu- 
piers of certain ancient tenements for the time being were 
entitled to conmion of turbary by way of a ohc^table 

(J) Ante, p. 36; 2 Blaokst. Com. (m) Hanmer v. Chance, 4 D. J. & 

35. S. 626 ; 34 L. J. C 413. 

Uc) Bean v. Blown, 2 W. BI. 926 ; (») Co. lit. 121 * ; 4 Co. 37 tf, 

3 Wila. 466 ; Be la Warr v. Miles, L. Tyrringham't Case; see Solmev. Bui- 

E. 17 C. D. 535 ; 60 L. J. C. 754. lock, 3 Levinz, 166. 

(/) Feppin v. Shaketpear, 6 T. H. (o) See WihonY.Maekreth, 3 Bur. 

749. 1824. 



CHAP. II. PROFITS A PBENBRB. $43 

trusty and not as a right appurtenant to the tenements or 
giying any interest to the owners of the tenements beyond 
enhancing the value of the occupation (p). 

In copyhold tenure the freehold is vested in the lord, ^™?*^ ^ 
and the copyholder is only tenant at will, hut secured in 
his tenancy by the general custom of the manor. Hence 
a copyholder cannot claim profits in the waste or other 
manorial land as appurtenant to his tenement by title of 
prescription, because the lord cannot prescribe to have 
profits in his own soil. But a special custom of the manor 
may annex rights to the tenement, and by virtue thereof 
the copyholder may claim common of pasture, or estovers, 
or any other profit. Such custom is not open to the 
general objection to claiming profits by local custom, 
because it annexes the profit to the tenement, which neces- 
sarily has a determinate owner, and not merely to an 
indeterminate person, as an inhabitant or occupier in a 
manor or district (j'). But the claim of a copyholder to 
common or other profit in land which is not parcel of the 
manor cannot be maintained by custom, for custom pre- 
vails only within the boimds of the manor; he must 
prescribe in the name of the lord in right of his tenement 
in the ordinary manner (r). — Special customs as to commons 
and profits vary in different manors ; and the custom may 
vary as to different tenements in the same manor, assign- 
ing common to some in one part, and to others in other 
parts of the waste ; and there may be a custom applicable 
to one tenement only, for the other tenements may have 
become merged or extinguished as copyholds («). The 
onus of proving the custom lies upon the tenant who 
claims the benefit of it (t). 

The claim of a copyholder by special custom of a manor Proats of 

{p) Se Christchureh Inelosure Act, See postf p. 568. 
L. B. 38 G. D. 620. (r) Foiston v. CracAroodef supra. 

{q) Foiston v. Craehroodey 4 Co. («) Ibid, 

31 b ; GaUwar^s Cafe, 6 Co. 59 *; {t) Portland t. Hill, L. R. 2 Eq. 

Smith y. Gatewood, Cro. Jao. 152. 765 ; 35 L. J. 0. 439. 



344 



USES AND PROFITS IX LAND OF ANOTHER. 



oopjhold 
tenement* 



to take profits from the soil of his tenement, in excess of 
the general customary rights of a copyholder, as a custo- 
mary right to dig and carry away sand, gravel, or other 
minerals, is not a profit k prendre in the soil of another, 
but an incident of his own possession. It is therefore not 
within the Prescription Act, which regulates the prescrip- 
tive claims to profits & prendre (w). Such rights may be 
established by custom, as incidents of the grant of the 
tenement (r). 



Bights of 

oommonof 
lord. 



The lord of the soil over which there are rights of 
common retains all the beneficial uses and profits which 
are not inconsistent with the rights of the commoners; 
whatever has not been granted away remains in him 
without any special reservation. Hence where there are 
limited rights of common, or more common than is neces- 
sary for the commoners, the lord is presumptively entitled 
to take the rest for his own use (w). Where the owner of 
a farm claimed the appurtenant right of feeding sheep on 
a common, the lord of the soil was held entitled to all the 
pasture which the sheep of the farm did not consume ; and 
therefore the commoner was not entitled to take in other 
sheep to feed there (x). By custom the copyholders may 
have the whole pasture of the manorial land, to the ex- 
clusion of the lord (y) ; and by custom the lord may be 
stinted to a certain number and species of commonable 
cattle, the tenants taking all the residue of the pasture ; in 
which case a commoner may distrain the lord's cattle put 
on in excess of his stint, as he might that of a stranger (2). 
— The right of the lord in such cases is, strictly speaking, 
a profit to be taken in his own soil, and not a profit to be 



(u) Hanmer v. Chanee, 4 D. J. & 
S 626 ; 34 L. J. 0. 413. 

(v) SalUbury y. GladaUme, 9 H. 
L. C. 692 ; 34 L. J. C. P. 222. 

(it) Ellenborough, 0. J., Cowlam 
V. Slack, 16 East, 112; Bsyley, J., 
Arleit v. ElliSy 7 B. & 0. 369. 



(x) Jones y. Jtiehard, 6 A. & E. 
630. 

(y) Fotier v. iVbrtA, 1 Wm«. 
Saund. 363 (2) ; Hotkiiu y. Bohins, 
2 Wms. Saund. 324; FUher t. 
JFrm, 3 Mod. 260. 

(») KenHekY, FargUer, Tely. 129. 



CHAP. II. PROFITS A PRENDRE. 345 

taken in alteno solo; but being a profit to be taken con- 
currently with the commoners it is often spoken of as a 
right of common. Thus, '^ it is not an uncommon thing 
that the lord has demesne farms that have always been his 
freehold, and which therefore never could strictly acquire 
the right of common. Nevertheless the tenants of these 
demesne lands under the lord did enjoy the same rights of 
common over the wastes as those persons to whom lands 
had been conveyed, and they did de facto enjoy and use 
the rights of common, just as if the freeholder of the 
demesne lands was not possessed of the freehold of the 
land over which the right of common was used" (a). 

Hence in the General Inclosure Act, 8 & 9 Vict. c. 118, Statutory 
8. 27, the provision made for compensation for " any right f^^^^"". 
of pasturage which may have been usually enjoyed by the rights, 
lord or his tenants," besides the compensation for his right 
to the soil, is held to include the quasi right of pasturage 
over the wastes of the manor usually enjoyed by the lord 
or his tenants in respect of his demesne lands {h). Simi- 
larly the Lands Clauses Act, 1845, 8 Vict. c. 18, s. 99, 
provides for compensation for " any commonable or other 
rights to which the lord of the manor may be entitled, 
in lands, other than his right in the soil of such lands." 

(«) Per cur. Jfmff rave V. Indoture (b) Sfwffravev. Inclosure Commise.y 

Comtniea.; L. R. 9 Q. B. 176; 43 L. R. 9 Q. B. 162; 43 L J. Q. B. 

L. J. Q. B. 87 : Arundell y. Fal- 80. See Lloyd y. Povfis, 4 E. & B. 

mouthy 2 M. & S. 440. 485. 



346 USES AND PROFITS IN LAND OF ANOTHER. 



Section II. Creation of Profits a Prendre. 

Grant of profits k prendre — Statute of Frauds — ^profits appurtenants 

Exceptions and reserrations of profits k prendre. 

Rights aooessory to profits k prendre — ^rights accessory to mining. 

Title hj prescription at common law. 

The Prescription Act — profits appurtenant — ^profits of oopjhold tene- 

ments. 
Profits in gross— corporate rights. 
Prescriptiye usage must be lawful— certain — continuous. 

Grantof profit Profits a prendre, being incorporeal hereditaments, are 
^'^ * created by grant or by prescription. The grant of a 
profit si prendre requires a deed, whether it be granted for 
a freehold interest or for a term of years; and if not made 
by deed, it operates only as a licence and is revocable (a). 
" A valid licence for a time certain must be by deed ; to 
give a sole and exclusive right even for an hour a deed is 
necessary, and that would be a grant ; and whether the 
grantee had it in fee, or for a term of years, or even an 
hour, he could sue for a disturbance during the time that 

Statute of the interest under his grant continued" (6). — ^A right to 
take profits from land is an interest in or concerning land 
within the 4th section of the Statute of Frauds, aiui there- 
fore an agreement respecting it must be in writing signed 
by the party to be charged with it ; as an agreement re- 
specting the right of shooting and taking game (c). A sale 
of pasture to be taken by the cattle of the buyer is within 
the statute ; but a contract by the owner of pasture for the 
agistment of cattle or taking in cattle to feed is not a 
contract within the statute (rf). — ^An agreement for a 

(a) Ante, p. 198 ; Co. Lit. 9a,b; {e) Webber v. Lee, L. R. 9 Q. B. 

Duke of Somerset v. Fogwell, 5 B. & D. 315 ; 61 L. J. Q. B. 485 ; anU^ 

0. 876. p. 79. 

{b) Fereur, Holfordy, Bailey, 13 (rf) Jones v. Flinty 10 A. & E. 

Q. B. 446, citing Hopkins y. Robin- 753. 
«of}, 2 Ley. 2. 



Frauds. 



CHAP. 11. PROFITS A PRENDRE. 347 

profit i. prendre made in writing and duly signed may be 
enforced as a contract, although, not being under seal, it 
is inoperatiye in law to convey the profits contracted 
for (e). And if a profit be in fact taken under a parol 
agreement to pay for it, the payment may be recovered as 
a debt (/). Also a parol reservation of game upon a 
parol demise is sufficient to protect a person acting under 
it from being charged with a trespass in pursuit of game 
under the statute 1 & 2 Will. IV. c. 32, s. 30 (g). 

Profits k prendre which have been made appurtenant to Profits ap- 
land by former grant, or by prescription, pass with the ^ ^*^ ' 
land by any mode of conveyance that is sufficient to pass 
the land, and without express mention in the convey- 
ance (A). A demise without deed of a messuage or land, 
together with incorporeal rights which are not appurtenant 
to the demised tenement, though it may be effectual as a 
demise of the tenement, is void as a demise of the incor- 
poreal rights ; as in the case of a parol demise of land 
together with the right of shooting and taking game over 
other land (i). As to such incorporeal rights, it can 
operate only as a licence (/). 

Profits & prendre cannot be claimed by way of exception Exceptions 
or reservation from a grant of land; for an exception, Sona'^Moto 
strictly speaking, applies only to an existing part of the ^ prendre, 
thing granted ; and the term reservation, strictly speaking, 
applies only to rents and services to be rendered as the 
condition of tenure. Whereas profits & prendre are rights 
newly created by the terms of the deed of grant, and 
vested in some other person tiian the owner of the land, 
either in gross or as appurtenant to other land. Therefore 
expressions in a deed of grant purporting to except or 

(e) Smart v. Janes, 16 G. B. N. S. (A) Go. Lit. 121 b ; ante, p. 327. 

717 ; 83 L. J. G. P. 164, (t) Bird v. Higginwn, 6 A. & E. 

(/) Davi9 V. Morgan, 4 B. & G. 8 ; 824 ; The Queen v. Soekworthy, 7 

Jones y. Reynolds, 4 A. & E. 806. A. & E. 601. 

(^) Jones T. Williams, 46 L. J. 0) -^»^f P- 198 ; Jones v. Wil- 

H. 272 ; ante, p. 76. lianis, 46 L. J. M. 270. 



348 USES A3n> fboftis vx la^d of another. 

reserre profits to be taken bj the grantor can operate only 
hy being* construed tedmicallj as a re-grant from the 
grantee, coneorrent with the grant bj which he is made 
owner of the hmd A;. — A grant of land purporting to 
except and reserre to the grantor the liberty of entering 
the land to hunt and take game was held to operate effeo- 
tuallj as a re-grant to him of the profits to be taken (/). 
^ The priTilege of hawking, hunting, fishing, and fouling, 
is not either a reserration or an exception in point of law ; 
and it is only a priyilege or right granted to the lessor, 
though words of reservation and exception are used" (m). 
— So, upon a grant of a several fishery or exclusive right 
of fishing, with reservation to the grantor of catching any 
kind of fijsh for his own table, it was held that the " reser- 
vation was equal to a grant," being the same as if the 
grantee, beiug the general owner, had granted the reserved 
right to the grantor («). — ^Expressions of the above kind, 
being construed as a re-grant, may operate in favour of 
other persons than the grantor, and even in favour of 
strangers to the deed of grant ; whereas an exception or 
reservation in the strict meaning of those terms can operate 
only in favour of the grantor himself (o). 

jijccemory ^^ grant of a profit k prendre imports all rights acces- 

righto. gQjy to the taking of the profit in the usual and proper 

' manner, including such use of the land as may reasonably 
be required for that purpose. Thus a grant of growing 
trees impliedly carries with it the right to enter and cut 
the trees and cany them away iu the usual manner, and 
without liability for unavoidable damage to the ground 
and herbage in the cutting and carriage of the trees ; it 
also gives the right to enter the land with intending 
buyers, to view the trees for the purpose of selling 

{k) Ante, p. 266. (n) Seymour y. Qmrtmay, 6 Bmr. 

(0 IFiekham v. Hawker, 7 M. & 2817. 

W. 63. (o) Wiekham y. Satoker, mpra; 

(m) Fer eur. Doe y. Lock, 2 A. & Chetkam v. WiUiameon, 4 Bast, 

E. 748. 469. 



CHAP. II. PROFITS A PRENDRE. 849 

them (p). A grant of the right to fish in certain water 
was held to give the right to use the bank for fishing, 
there being no other means of getting at the fish ; but not 
the right to dig a trench and draw off the water for the 
purpose of taking the fish, because they might be taken 
with nets and other means (q). A grant of a fishery in a 
river may carry with it, according to the usage under it, 
the right of drawing nets upon the land (r). 

The right to take minerals carries with it, as an implied Rights ac- 
incident of the right, the power to enter the land and dig J^J^^ 
through the surface to the minerals, and raise and carry 
away the minerals, doing no more than what is necessary 
for the purpose («). A reservation of the coals under land 
granted was held to include the accessory rights of enter- 
ing upon the land to dig- mines, and of erecting such 
machinery as was necessary to drain the mines, and to 
draw up the coals, including a steam engine with a supply 
of water ; also the right of having a convenient and suffi- 
cient road for removing the coals profitably, including a 
properly constructed railway {t). In such cases the implied 
powers for taking the profits are not restricted by special 
powers expressly given for the same purpose, unless the 
restrictive intention is clearly expressed («). — A power to 
take gravel from a pit was held to import the right to 
take it from the sides as well as from the bottom of the 
pit, and so to cut down the surface and enlarge the pit 
laterally (r). But a general power to enter upon land 
and to search for and take the minerals, was held not to 
include the right to take a particular mineral by the 
process of taking off the entire surface of the land, although 
it could not be effectually taken otherwise {w). 

{p) Plowden, 16 ; II Go. 52 a, (t) Dandy, KingBcoU, 6 M. & W. 

LifortTs Cam; Stuktley y. Butler^ 174. See ^mm^, p. 210. 

Hob. 168. (u) Cadogan y. Armitagey 2 B. & 

iq) Plowden, 16. C. 209. 

(r) GrayY. Bond, 2 B. & B. 667. (v) Ellis y. Bromley Local Board, 



iq) Plowden, 16. C. 209. 

[r] GrayY. Bond, 2 B. & B. 667. (tO Ellis ^ 

(«) Cadogan y. Armitage, 2 B. & 46 Ij. J. C. 763. 



C. 197 ; Sogers y. Taylor, 1 H. & (ic) Hext v. GUI, L. R. 7 Cb. 

N. 706 ; 26 L. J. Ex. 203. 699 ; 41 L. J. G. 293. 



350 USES AND PROFITS IN LAND OF ANOTHER. 

IVeBcriptton The doiin to profits a prendre by prescription may he 
hiwT^^^ supported at common law, or under the Prescription Act, 
2 & 3 WilL IV. c. 71. — The rules and principles of pre- 
scription at common law, both of immemorial prescription 
and of prescriptiye evidence of modem grant, have been 
ak-eady treated of in connection with easements. The 
same rules and principles apply with the necessary modi- 
fications to profits & prendre. Profits appurtenant to a 
tenement may be claimed by immemorial prescription at 
common law ; and if the prescription is defeated by proof 
of commencement of the enjoyment within the time of 
legal memory, the enjoyment in fact may be used as 
evidence of a modem grant, though such grant be non- 
existent. For "as prescription is only evidence of an 
immemorial grant by which in time beyond memory the 
right then began to exist, it may equally begin to exist 
through the same medium, i.e. of grant, now shown or 
fairly to be presumed from usage, at the present day " {x). 

The Prescrip- The Prescription Act treats profits & prendre differently 
tion Act. from easements in requiring longer periods of enjoyment 
for proving a title. In other respects the provisions of the 
Act are the same for both. — Sect. 1 enacts " that no claim 
which may be lawfully made at the common law, by 
custom, prescription, or grant to any right of common 
or other profit or benefit to be taken and enjoyed from or 
upon any land of any ecclesiastical or lay person or body 
corporate, except such matters and things as are herein 
specially provided for, and except tithes, rents and services, 
shall, where such right, profit or benefit shall have been actu- 
ally taken and enjoyed by any person claiming right thereto 
without interruption for the full period of thirty years, be 
defeated or destroyed by showing only that such right, 
profit or benefit was first taken or enjoyed at any time 
prior to such period of thirty years ; but nevertheless such 

{x) Cowkun Y. Slack, 15 East, 108. See ante, p. 282. 



C»AP. IT. PROFITS A PRENDRE. 351 

claim may be defeated in any other way by which the 
same is now liable to be defeated ; and when such right, 
profit or benefit shall have been so taken and enjoyed as 
aforesaid for the full period of sixty years, the right thereto 
shall be deemed absolute and indefeasible, unless it shall 
appear that the same was taken and enjoyed by some 
consent or agreement expressly made or given for that 
purpose by deed or writing."— The operative words of this 
section are the same as those of the corresponding section 
relating to easements, except the periods of time. The 
construction of the words with reference to easements has 
been already treated, and is here applicable (y). 

This euactment is construed to apply only to such rights Profits ap- 
of common and other profits as are appendant or appur- 
tenant to a dominant tenement, and not to claims of profits 
in gross. This construction is consequent chiefly upon the 
fifth section of the Act, which requires the claimant of the 
right in all pleadings to allege ^' the enjoyment thereof as 
of right by the occupiers of the tenement in respect 
whereof the same is claimed for and during i^uch of the 
periods mentioned in this Act as may be applicable to the 
case." No such allegation can be made as to rights in 
gross ; they are therefore constructively excluded from the 
Act (2). Hence, as with easements, '^ tenant in fee sioiple 
ought to prescribe in his own name ; tenant for life, years, 
and at will, in the name of him who hath the fee ; and as 
he who hath not any interest cannot have any common, 
BO there is none that hath any interest, cdbeit but at will, 
and ought to have common, but what, by good pleading, 
he may enjoy it" {a). — Also, the enactment applies only to Profits of 
claims to some profit or benefit to be taken or enjoyed ^n^^ 
from or upon land of another ; therefore it does not apply 
to the claim of a copyholder by special custom of a manor 

(y) Ante, pp. 286—303. (a) 6 Go. 60 a, OatewarfTs Case; 

(^ ShuttlnPorthY. Le Fkminfff 19 see Lord Blackburn, (rtfM^many.^a/^- 

0. B. N. S. 687 ; 34 L. J. C. P. ath, L. B. 7 Ap. Ca. 660. 
309. 



352 



X7SES AND PROFITS IK LAND OF ANOTHER. 



to take profits from the soil of his own tenement, though 
in excess of the general customary rights of a copyholder ; 
such as a customary right to dig and oarry away sand and 
graveL Such customs must he proved at common law 
independently of the statute {b). 



Ftofitoin 



Corporate 
rightB. 



Profits a preiidre in gross, not heing within the Pre- 
scription Act, must he claimed hy prescription at common 
law. The claim may he supported hy evidence of imme- 
morial use and enjoyment, either in the claimant himself 
and the ancestors whose heir he is ; or in another person 
and his ancestors from whom the title is deduced ; and the 
claim must he alleged and proved according to the fact (c). 
The claimant cannot prescribe in his own person, hut must 
show an immemorial title in those from whom he claims {d) . 
— ^Profits in gross may also be claimed hy prescriptive title 
in a corporate body, to be enjoyed by individual members 
of the corporation in right of the body ; as an exclusive 
right of pasturage vested in a borough, to be taken by the 
burgesses (e) ; a several fishery in a tidal river vested in a 
borough for the benefit of the free inhabitants (/) ; a right 
of cutting turf and taking gravel and other materials for 
the benefit of the freemen of the borough (g) . Accordingly 
it is said that ^' in the common law prescription is made in 
the name of a certain person and of his ancestors, or those 
whose estate he hath, or in bodies politic or corporate and 
their predecessors ; for as a natural body is said to have 
ancestors, so a body corporate is said to have predecessors." 
An individual member of the corporate body, or the person 
who in fact takes the profit, prescribes in right of the 
corporate body (A). 



{h) Htmmer v. ChoMce, 4 D. J. & 
S. 626 ; 34 L. J. G. 413 ; Salubury 
y. Gladstone, 9 H. L. 692 ; 34 L. J. 
C. P. 222 ; pott, p. 668. 

(c) Welcome v. (Tpton, 6 M. & W. 
398 ; 6 ib. 536. 

(d) Comtcelly. Sanders, 3 B. & S. 
206 ; 32 L. J. M. 6. 



(tf) Johmon y. Bamet, L. R. 8 
C. P. 627 ; 41 L. J. C. P. 260. 

(/) Goodman y. Saitash, L. R. 7 
Ap. Ga. 633 ; 62 L. J. Q. B. 193. 

iff) The King y. Wark%corth, 1 
M. & 8. 473 ; The Queen y. Aln* 
wiek, 9 A. & £. 444. 

(A) Go.Lit. 113 b ; Fry, J., Autt'm 



CHAP. II. PROFITS A PRENDRE. 853 

The statute creates no new rights to profits, but only PreBoriptive 
shortens the period of prescription for " claims which may STla^y^* 
be lawfully made." Thus a claim of common over a 
forest of the Crown which had been actually taken and 
enjoyed for thirty years was held to be defeated by show- 
ing that at the time when the common was first taken the 
Crown was disabled by statute from granting any such 
right, so that the claim was legally impossible ; and it was 
said that the statute does not apply to any claim that could 
not be legally granted, although the commencement of the 
enjoyment does not appear (i). 

A prescriptive claim evidenced by use and enjoyment, Oertainly of 
as well as a claim by grant in express terms, must appear ^*^^* 
reasonably certain and definite in its nature and extent ; 
for a usage that is vague and uncertain cannot establish a 
right (y). A prescription to have common of pasture 
appurtenant for cattle levant and couchant on the tene- 
ment, or common appendant for such cattle as are required 
to cultivate the land, was always held to be sujfficiently 
certain, upon the principle that id certum eat quod cerium 
reddi potest (k). So a prescription to cut litter for cattle 
levant and couchant, or for the use of a farm (/) ; and a 
prescription for conmion of estovers, or the right to take 
wood and materials for the fuel and repairs of a house, 
are sufficiently certain (w). A prescription for common 
of pasture during a time of the year determined as to 
the opening and close by the commoners themselves was 
held void ; because it was unreasonable that the time of 
pasture should be determined by the persons who were 
interested in making it as long as possible. But a pre- 
scription for pasture during the season between the 



V. Amhurat, L. R. 7 C. D. 692 ; 47 692 ; 34 L. J. C. P. 222. 

L. J. C. 469. (k) 2 Co. Inst. 86. 

(f) Mill V. Ifew Forest Commiss., {f) Bean v. Bloom, 3 Wils. 466 ; 

18 C. B. 60; 25 L. J. C. P. 212. 2 W. Bl. 926 ; J)ela JTarrY, Miles, 

(j) Dela 7rarrv.Jlftfe»,L.R. 17 L. R. 17 C. D. 635; 60 L. J. C. 

0. D. 535; 50 L. J. C. 754; see 754. 

Salisbury v. Gladstone, 9 H. L. C. (m) Ante, p. 342. 

L. A A 



354 VSES AND PROFITS IN LAND OF ANOTHER, 

removal of the crops in each year and the preparing of 
the land for sowing is sufficiently certain and precise (n). 
A claim by the owner of a brick-kiln to dig and take day 
from a certain close ^' as much as was at any time required 
by him," for making bricks at the kiln, was held to be too 
yagne and uncertain to be made by prescription ; tiiere 
was no measure of the capacity of the kilrij of the quantity 
of the clay, or of the number of the bricks ; it was there- 
fore an indefinite claim to take all the clay, or in other 
words to take from the owner the whole dose (o). And 
a claim by a copyhold tenant upon an alleged custom of 
the manor for the tenants to take turf from the waste for 
the improvement of their gardens " in such quantity as 
occasion required," was held to be too "indefinite and 

J^ti^s. iincertain" (/>).— A prescriptive right may be subject to a 
condition, according to the usage established ; as a right of 
common, paying for it every year a penny; which was held 
a condition precedent, so that without payment there was no 
common, and the cattle trespassing might be distrained (q). 
A prescriptive right to enter and take minerals, paying a 
reasonable compensation for the use thereof and for all 
damage to the land, was held to be an entire prescription, 
of which the condition, though subsequent to the right, 
must be alleged and proved (r). 

Conianmty' of rj^Q ^^^g^ qj^^ enjoyment required to found a prescriptive 

title must in general be continuous («). But in claims of 
profits by prescription the enjoyment may be such as is 
not capable of continuity or repetition, as the taking of 
minerals or parts of the soil, which can be taken only onoe 
in the same spot. Such enjoyment, however, may be 
evidence of a right to take the like profits in other places 
forming part of one entire waste, manor or district (^). 

(») Saylii v. Tyssen-Amhurft, L. Eliz. 546, 563 ; Gray*8 Ckue, 6 Ob. 

E. 6 0. D. 609 ; 46 L. J. 0. 718. 78 b ; Cro. Eliz. 406. 

(o) Clafjton V. Corby, 6 Q. B. (r) Paddock v. ForretUr, 3 M. & 

416. G. U03. 

(p) Wilson V. Willes, 7 East, 121. (») Ante, p. 294. 

\q) Lovelace v. Heynolds, Cro. [t) Maxwell y. Marim, 6 Bing* 



enjoyment. 



CHAP. II. PROFITO A PRENDRE. 355 

Thus the usage of cutting turf from, a oommon was held 
to support the claim of cutting turf from every part of the 
oommon where turf could be found ; but exclusive of such 
parts as were incapable of producing turf, which therefore 
might be inclosed as against the alleged claim (yi). The 
oontinuity of enjoyment of common of pasture depends 
upon the seasons, and the kind and quantity of common- 
able stock kept from time to time, and the extent of the 
waste or district over which the oommon ranges (r). 



Section HE. Extinction op Profits a Prendre. 

• 

Beleaae — ^release of profits in part of the land — ^presumption of release 

from nooa-nser. 
Alteration in dominant tenement — severance of dominant tenement — 

exhaustion of servient tenement. 
Unity of title of profit and servient land — unity of title in part of the 

land— oommon appendant apportionable — unity of title in lord of 

manor — ^re- grant of copyhold tenements. 
Approvement and indosure of -wastes — Statutes of Merton and of 

Westminster 2 — construction of the statutes — leaving sufficiency 

of pasture. 
Approvement against copyholders — special customs to inclose. 
Approvement against turbary and other commons. 
Inolosure under Acts of Parliament. 

A release of a profit k prendre to the owner of the land Release, 
in which it is taken operates by way of extinguishment ; 
for " a man cannot have land and a common of pasture 
issuing out of the same land, et sic de cceteris^^ (a). — Where Release of 
there is common appurtenant over land held in several ofland!^^ 
tenements, a release of the common in part of the servient 
land extinguishes the whole common ; otherwise it would 
throw the whole burden upon the rest of the land, to the 

522 ; see Bame$ v. Mawton, 1 M. & 123 ; 20 L. J. Q. B. 133, po9t^ p. 

8. 77 ; Tyrwhitt v. Wynne, 2 B. & 366. 

Aid. 664. (t>) Carr v. Fotter, 3 Q. B. 681. 

(m) Peardonr. Underhill, 16 Q. B. (a) Lit. s. 480 ; Ck>. lit. 280 a. 

A A 2 






356 rsBs AXD fboftk ix lakd of akother. 

prefikiiee of the tenimts. Aoooidinglj, ^'a release of 
:-Q in one acre is an exdngoiahment of the whole* 
L!S::n.'^ But if the wbole land in which the common 
is tiken is in one ownership, a release of the common in 
psrt win nc< erdr.gnish the common in the rest, becaose it 
is an r=irr?T^es:eiit of part for the benefit of the owner and 
with ^ arnsisit ♦■ . An exelosTe right of pasture, being 
a liir^i to t^e the viijle herbage, may be released in part 
•:f tbr ljLz.-L with>:it extingoishing it in the rest, because 

of the bTirden on the rest or prejudice to 
. — ^Wh«ne there are seyeral commoners they 
EC sJl T.hi in a rdease in order to extinguish the 
ir^rc in r«ir: cr in all of the land (</). 
. '-'* X:* rK«iEiyd:n oi release or abandonment arises from 
,Mft.^i£«rr )c>;f^ r*:£>2<i3r of a pn>£t a prendre. Thns where land 
hjni r*?«: vX£iT^y€d in fee, with a reserration of a right to 
rj^i^ :tz>l .^T&rry away minaraLN and sixty years afterwards, 
c^jirtrj: wh::h thisre tad been no working or claim, the 
lir?i w^iiS j^-CTTryed to a p:in:-haser without notice of the 
rtis^rf-iri *cu h w:is hrld that no presumption arose of a 
iviiifcs* :r th-? rt^t : the Court said that " the relinquish- 
rr-cLt ."i the ri^t car.T:-:< be presumed from the non- 
^fxervbe :f it ; t:r thit ii™es are frequently porchaaed or 
ri;*5*frf\\i r:c cdy w:th:Tit any Tiew to immediate working, 
K:t f:r th-? exrrvsa? r-rarpose of keeping them un- 
^T*.Cjrht** r , Also rr:£t5 a prendre being incorporeal 
i^Kvi;:afcrL-ect5 are in.aratle of adYCxse possession, and 
th;i^f:o? th^ Scitute :i liinitadons has no application by 

A^'^^ikfN^v^ IVod:^ avv (SLTttrCiiiZLt to a dominant tenement are extin- 
^MMxtM»« 5pi;:>i5^>i whj.vlr or in r?irt bv such pennanent alteration of 



> r , i« • i .-#• T .- • ^-v^ CViX Ei*. * EcBTon. C. J-^ Bemaom r. 

>.'.< ■•• ^ \ ^x * •^■if^\ I rio.:;^^. S t. R. 401. 

/ #^^^ M. J^-«.x. I^ S. $ *" See SmUJk r. Lhfi, 9 Ex. 

Cx V .'^r . 4^ k- J. C. F- IN-. ^.i; ^ L. J. Ex. 194. 



CHAP. II. PROFITS A PRENDRE. 357 

the tenement as destroys or dimin i shes the appurtenancy 
of the profits. '^ Changes in the mode of managing farms, 
in the description of cattle kept and the kind of food given, 
and in the produce raised, the appropriation of the land 
to other uses, its conversion into nurseries, hop gardens, 
market gardens, or building ground may permanently 
diminish the demand of the commoners on the pasture of 
the common,'' and may thus work a permanent diminution 
or extinguishment of the right. Thus, in a case where the 
question arose whether the lord had left sufficient of the 
waste to satisfy the rights of the commoners, it was held 
that the average demand for the last ten years might be 
taken as a fair measure of the requirements of the com- 
moners for the future {g). Where a tenement, originally 
of arable land with common appendant for ploughing and 
manuring the land, is so built over as to be whoUy in- 
applicable for keeping or using cattle, the right of common 
necessarily ceases and is extinguished. ''But if a man has 
had common for cattle which serve for his plough appen- 
dant to his land, and perhaps of late time a house is- built 
upon part, and some part is employed to pasture and some 
to meadow, in this case the common remains appendant, 
and it shall be intended, in respect of the continual usage 
of the common, at the beginning all was arable ; but in 
pleading he ought to prescribe to have it appendant to land 
that may be ploughed, although it is not now in tillage and 
ploughed" (A). So also it was held that a right of common 
appurtenant for cattle levant and couchant was not extin- 
guished or suspended by building upon part of the land 
and turning the rest into orchard ; the capacity for main- 
taining the cattle remaining, though not in fact exer- 
ciBcd (»'). — ^Upon the same principle if a house with the 
appurtenant profit of taking estovers for fuel and repair be 
pulled down without intention of re-bmlding, the profit is 

ijf) LaseeUet v. Onslow, L. R. 2 ante, p. 334. 
Q. B. D. 449 ; 46 L. J. Q. B. 343. (t) Carr v. Lambert, L. B. 1 £z. 

(A) 4 Co. 37 a, Tyrringham's Caae, 168 ; 36 L. J. Ex. 121. 



358 



USES AND PBOFITS IN LAND OF ANUTUER. 



Serenuioe of 

domiiiaiit 

tenemfl&t. 



TfThi mff tloii 
of sement 
tcwCTneiit. 



thereby etxtiiigaislied. But if the house is rebuilt sub- 
fltantially as before, the profits are retained ; and if the 
house is altered, in particulars not materiai to the charge 
upon the servient tenement, the right to take estoTers is 
not prejudiced, but may be applied to the altered tenement 
to the same ext^it as it was enjoyed before (k). 

Severance of the tenement to which common is appur- 
tenant does not extioguish the common ; but it is appor- 
tioned to the several parts of the tenement, each of whidi 
carries with it a proportionate shareof the common accord- 
ing to the commonable cattle appertaining to that part, so 
that it can be no more charge to the tenant of the land in 
which the common is taken after the severance than it was 
before (/). "So if A. has common appendant to twenty 
acres of land and enfeofEs B. of part of the said twenty 
acres to which the common is appendant, this conmion shall 
be apportioned, and B. shall have common pro rata " (m). 
If the commoner leases to a tenant part of the land to 
which the common is appurtenant "the common during 
the lease for years is not suspended or discharged, for each 
of them shall have common rateable and in such manner 
that the land in which shall not be surcharged ; and if so 
small a parcel be demised which will not keep one ox or a 
sheep, then the whole common shall remain with the 
lessor" (n). 

A profit may be extinguished by exhaustion of the 
servient tenement. Thus a lease of minerals is practically 
determined by taking all the minerals before the expiration 
of the term. For this reason an unexpired term of years 
in minerals, after exhaustion of the minerals, was held to 
be no incumbrance upon the title, nor any breach of a 
covenant for title (p). So after exhaustion of the turf on 



{k) ZuttreWs Qm, 4 Go. 86 a; 
JBrotcn y. Tucker, 4 Leon. 241 ; 
Arlett V. Ellis, 9 B. & C. 671. 

(l) Co. Lit. 122 a ; mitfs Case, 8 
Go. 78 b. 

(m) 4 Co. 37 b, J)frringham's 



Case; BenneU y. .Bmm, Willea, 
230. 

(n) Morse V, Webb, 13 Go. 66; 8 
Co. 79 b, Wild's Case. 

(o) Spoor V. Green, L. R. 9 Ex. 
99 ; 43 L. J. Ex. 57. 



CHAP. II. PROFITS A PRENDBE. 359 

a ooimnon or on part of a oommon the lord may inclose 
against oommon of turbary or the right of cutting turf {p). 

" Unily of possession of the whole land to which a profit Unity of title 
is appurtenant and of the whole land in which the profit is ^^i^tlimd. 
taken is an extinguishment of the right. For when a man 
has as high and perdurable estate as well in the land as in 
the common and other profit issuing out of the same land, 
there the common and profit is extinct." He cannot take 
common or other profit in his own land as a separate 
right (^). — Where a person, being owner of part of the Unity of title 
laud in which the common was taken, purchased the land {^^^ ^ ^ 
to which it was appurtenant, it was held ^^ that by the said 
purchase all the common was extinct; for in such case 
common appurtenant cannot be extinct in part and be in 
esse for part by the act of the parties " (r). " So if he who 
has common appurtenant purchase part of the land in 
which^ all the common is extinct ; or if he takes a lease of 
part of the land, all is suspended" («). — ^But "oommon Common 
appendant may be apportioned because it is of common app©^4*^* 

1 1 « -• "I -L apportion- 

right, and therefore u the commoner purchases parcel of able. 

the land in which it is taken, yet the common shall be 

apportioned. But not so of a common appurtenant, or of 

any other common of what nature soever " (t). 

The lord of a manor cannot have any right of common, ■cTnitj of title 

strictly so called, over the waste of the manor, because he "^ ^^^ ®* 

'' , manor. 

is the owner of the soil; though pasture of the waste 
remaining in the lord, subject to the rights of commoners, 
is frequently so designated (u). Hence, if a tenement of 
the manor becomes vested .in the lord, all appurtenant 
rights in the wastes of the manor become merged in the 
ownership and extinguished ; and upon a re-grant of the 

(p) ClarktonY, Woodhtmte^ 5T. B. iw v. Bellamy^ 1 Leon. 43. 

412; oeepoat, p. 365. (0 Go. Litt. 122 a; 4 Co. 37 ^ 

(o) 4 Co. 38 a, Tyrringham' s Case. TyrringhanCs C<ue, 

(r) Tyrringham^a C(ue, 4 Co. 38 a ; (u) Ante^ p. 344 ; Blaokbnm, J., 

see anUf p. 366. Musgrave v. Ineloa, Comm.^ L. R. 9 

(«) 8 Co. 79 <i, WxldU Case; Kimp- Q. B. 174 ; 43 L. J. Q. B. 80. 







•T TTT*gp nsbT*' «r . And a 

- ^r-^* ^ vm X LI i-"rr'^>3rT^irr- rjj^Hs^ ic ^-CTZii:^ isd Other 
^c In* vnL KT ^zTTT^rs^ iir^ini TL Liiii iiCTrilistindmg a 

%-r-rrr^ ^'A--^ ^, " ,^^ j^ -[^ i-iiH'nj^i:: r^EUfcZns d^nusaUe 

r£rt::s of eomnioa 
•x^Trvanee of the 

tlrrn. : r tl'rx iz^ Zf.c iTTvirr'^.fc-t t:- tbe freehold. If 

grir_*>r*L izii ti-r C ::r: w:r:li o-?=:T«eI a re-grant npon 

A'.-^'^/T<-£^t Jq f^^Y tfine? tL-r IiT'i cf a ciacor exextised fcedr the 
U w*Mitb, n^r**. of - ar pTC-TeTnent,"' or imj-roTonent of the waste 
land of tr.e manor, hr inclc^sng fortions of the ini£te for 
th*? p»irj^>*« of coltiTation. and granting the inelosmes to 
thTih^Titsi to hold in sereraltr ; irfio therewith aoqnired of 
<y/rnruon right ^ common appendant" in the rosidne of the 
WiihU;, And it is said that ^ hv the common law the lord 
might imjirove against any that had common appendant, 
though not against a commoner hy grant"; for in the 
lattf.T caiiie he conld not derogate from the express terms of 

(r) nail r. Btjnm, L. B. 4 C. D. (y) Batfytr ▼. Jbrtf, S B. ft Aid. 

607 ; 46 L. J. C. 297. 153. 

(w) Uradnhaw v. Eyre^ Cro. Eliz. (z) Manham ▼. SmUery Cro. J«e. 

570; Worledfjr y. Kingtwell, Cro. 253 ; iS/y«if ▼. SSteivr, 2 Yen. 250 ; 

Klix. 704. Zaseelles y. OmAw^, L. B. 2 Q. B. 

(j) r.W/am y. ^/^Ar, 16 East, 116. D. 433 ; 46 L. J. Q. B. 333. 



CHAP. II. PROFITS A PRENDRE. 361 

his grant (a). This process of inclosure in course of time 
operated to the prejudice of the commoners .by increasing 
their number and restricting their common ; wherefore 
the right of approvement was declared and regulated in 
the following statutes. 

The Statute of Merton, 20 Hen. III. c. 4, after reciting Statute of 
that " many great naen of England which have infeoSed ®^**^^ 
knights and freeholders of small tenements in their great 
manors have complained that they cannot make their 
profit of the residue of their manors, as of wastes, woods 
and pastures, whereas the same feoffees have sufficient 
pasture as much as belongeth to their tenements," there- 
fore provided and granted to the effect that they should 
make their profit of the residue of their wastes, but upon 
the condition, that their tenants '^ have as much pasture as 
Bufficeth to their tenements and free egress and regress 
from their tenements unto the pasture." 

The Statute West. 2, 13 Edw.I.st. 1, c. 46, recites that"in Statute 

. West 2 

a statute made at Merton it was granted that the lords of 
wastes, woods, and pastures might approve notwithstanding 
the contradiction of their tenants, so that the tenants had 
sufficient pasture to their tenements with free egress and 
regress to the same ; and forasmuch as no mention was 
made between neighbours and neighbour, many lords of 
wastes, woods, and pastures have been hindered heretofore 
by contradiction of neighbours having sufficient pasture; 
and because foreign tenants have no more right to common 
in the wastes, woods, or pastures of any lord than the lord's 
own tenants " ; the statute proceeds to ordain " that the 
Statute of Merton, provided between the lord and his 
tenants, from henceforth shall hold place between lords of 
wastes, woods, and pastures, and their neighbours, saving 
sufficient pasture to their tenants and neighbours, so that 
the lords of such wastes, woods, and pastures, may make 

(a) 2 Inst. 85, 474 ; see BuUer, J., cur. Grant v. Gunnery 1 Taunt. 447 ; 
Gloter Y. Lane, 3 T. R. 448 ; per ante, p. 336. 



362 



USES AND PROFITS IN LAND OF ANOTHER. 



Exoeptioii 
of special 
grant. 



Inclosore for 
building^. 



Gonstruotion 
of statutes. 



IndoBiire. 



Gianteeof 
iraste. 



approyement of the residue; and this shall be observed 
for such as daim pasture as appurtenant to their tene- 
ments" (ft). 

Exception is made in the statute, ^^if any do claim 
common by special feoffment or grant for a certain number 
of beasts, or otherwise than he ought to have of common 
right, whereas covenant barreth the law, he shall have 
such recovery as he ought to have had by form of the 
grant made unto him." This exception does not include 
prescriptive or presumptive grants (c). 

Exception is also made of indosures ^^ by occasion of a 
windmill, sheepcote, cowhouse, inlarging of a court neces- 
sary, or courtelage " ; " and these five are put but for 
examples, for the lord may erect a house for the dwelling 
of a beast-keeper for the safe custody of the beasts, as well 
of the lords as of the commoners, depasturing there" ; also 
a house for a woodward to take care of the woods of the 
common {d). The curtilage is allowed only for the manor 
house or dwelling of the lord of the manor (e). 

These statutes do not apply to a right of conmion in 
gross, the words restricting them to commons appendant 
or appurtenant to tenements ; they are also restricted in 
terms to commons of pasture (/). — "Approvement must 
be made by some inclosure or defence that it may be made, 
several! ; for it is lawful for the tenant to put on his 
cattle into the residue of the common, and if they stray 
into that part whereof the approvement is made in default 
of inclosure he is no trespasser" {g). — The lord of the 
manor approves in right of owner of the soil and not in 
exercise of a special manorial right ; hence a grantee of the 
waste or of part thereof may approve, or a lessee for life or 



(b) 2 Co. Inst. 472. 



(c) Itobiruim v. J)uleep Sinffh, L. 
E. 11 C. D. 798 ; 48 L. J. 0. 768. 

(rf) 2 Co. Inst. 476 ; Fatriek v. 
Siubbsy 9 M. & W. 830. 

(«) ifeviU T. MatnertoHf 1 Lev. 



62 ; Sid. 79 ; fW, J., Sobimsm ▼. 
DiOeep Singh, L. K. 11 C. D. 832. 

(/) 2 Co. Inst. 86, 475; post, 
p. 366. 

is) 2 Co. Inst. 87; Barber t. 
Whiteley, 34 L. J. Q. B. 212. 



CHAP. II. PROFITS A PRENDRE. 363 

for a term of years ; but subject to the conditions imposed 
upon the lord hy the statutes {h). 

The onus of proving the sufficiency of pasture left lies Leaving 
upon the owner of the waste who makes the approve- ot^^ace. 
ment (t). Sufficiency of pasture, as the condition of in- 
closing, is to be estimated with regard to the rights and 
requirements of the conmioners at the time of the inclosure, 
and without regard to former requirements that may have 
ceased. Changes in the uses and application of the land to 
which the common is appurtenant may permanently dimi- 
nish the demands of the commoners and extinguish their 
rights; or the produce of the common may increase so that a 
smaller portion of the waste is sufficient {k). Accordingly 
it has been held, that the average demand for the last ten 
years might be taken as a measure of the requirements of 
the commoners for the future, there appearing no expecta- 
tion of an increase (/). And a subsequent deficiency of 
common will not invalidate previous approvements (w). 
"Where the waste in question had been part of a royal 
forest, in which no deer had been seen for twenty years, it 
was held that the right of the Crown to turn out deer, was 
not to be taken into consideration in determining the 
sufficiency of pasture (n). — Where the lord exercises rights 
of ownership in the soil of the existing waste without 
inclosure, by taking gravel, clay, turf or other material, 
fhe onus of proof is on the tenant and not, as in the case 
of approvement, upon the lord ; and it lies upon the tenant . 
to prove that he is entitled to and deprived of sufficiency of 
pasture (o). So ii the lord plant trees on the waste, which 
lie is presumptively entitled to do, the commoner cannot 

(A) 2 Go. Inst. 87 ; Olover t. Zane, B. 2 Q. B. D. 449 ; 46 L. J. Q. B. 

3 T. B. 447 ; Bayley, J., Arlett ▼. 338, ante, p. 357. 

,EUU, 7 B. & G. 369 ; Patrick v. (m) 2 Go. Inst. 87. 

JStubit, 9 M. ft W. 830. (») Lake y. Plaxton, 10 Ex. 196 ; 

(i) BHU Y. TKmnpMny L. B. 6 24 L. J. Ex. 52 ; see Boulcott y. 

Gh. 732. Winmilly 2 Gamp. 261. 

{k) Bayley, J., Arliit y. EUU, 7 (o) Batewny, Orem, 5 T. B. 411 ; 

B. & G. 369. HaU y. Bwnm, L. B. 4 G. D. 680 ; 

(/) LaaceUes y. Lord Otulow, L. 46 L. J. G. 297. 



364 



USES AND PROFITS IN LANJ) OF ANOTHER. 



out them down as being an obstruction ; but he must bring 
his action and prove that they unduly HiminiRb the pas- 
ture (o). 



Ap]^roT6ment 
against oopy- 
holden. 



Spedal 

ouBtomto 

inolofle. 



At common law the lord approved against copyholders 
as being tenants at will, not only in law but in fact, until 
in course of time custom confirmed their tenure, at the 
same time restricting the lord to approving only so much 
of the waste as was not required for the customary rights 
of common. Therefore a custom for the lord to inclose 
against commoners without limit or restriction cannot be 
maintained ; the lord can inclose only upon the condition 
of leaving sufiSciency of common, according to the principle 
of the Statute of Merton, which in terms applies only to 
the freeholders of the manor (p). 

By special custom of a manor the lord may approve 
with the consent of the homage, being the tenants both 
freehold and copyhold duly assembled in court ; in which 
case the condition of leaving sufficiency of common is 
excluded by the consent of the commoners (^). And it 
seems that a custom may be valid to grant waste with the 
consent of the homage at courts consisting of copyholders 
only; who would be equally interested with freeholders 
in preserving sufficiency of common. It is immaterial 
that such consent be given by the homage at a court con- 
sisting in fact of copyholders only, if the freehold's were 
duly summoned to attend (r) . There may be a custom 
for a tenant to approve with the consent of the homage ; 
but such custom was held not to supersede or abridge the 
lord's right of approvement («). A custom for the lord to 



(o) Sadgrove v. Kirhy, 6 T. R. 
483 ; Bayley, J., ArUtt v. EUit, 7 
B. & C. 362 ; potty p. 370. 

(p) Badger y. Ford, 3 B. & Aid. 
153 ; ArUti ▼. EUU, 7 B. & G. 346. 

(q) Bayley, J., Arlett v. EllU, 7 
B. & C. 368 ; Wentworth ▼. Clay, 
Ga. t. Finch, 263 ; Folkard y. Hem- 
mett, 6 T. R. 417 (a) ; BouJeott v. 



Wintnia, 2 Gamp. 261. 

(r) Laecelle* v. Ontlow, L. R. 2 
Q. B. D. 454 ; 46 L. J. Q. B. 333. 
See the ctistom stated in FhiUijuY. 
Salmon, L. R. 3 C. P. D. 97 ; 47 
Li. J. G. P. 63. 

(*) Duberley v. Page, 2 T. B. 
392 a. 



CHAP. II. PROFITS A PRENDRE* 865 

approve preyails only within the manor and against the 
tenants of the manor, and therefore cannot exclude com- 
moners who are not tenants (t), — 11 the custom be to 
grant inclosures of the waste as copyhold, it seems they 
axe to be considered as much copyhold tenements as if 
immemorially held by copy, and therefore entitled to all 
customary rights of common over the residue of the 
waste (m). Where the lord enfranchised copyhold land 
and granted it as freehold, with all such rights of common 
^* as the freeholders and tenants of the manor have used 
and enjoyed," it was held that the commons granted were 
subject to the customs of the manor, and that a custom of 
inclosure might be exercised against them, though the 
land after enfranchisement ceased to be held of the 
manor (t?). 

" Throughout all the Statute ofMerton paatura et com- Common of 

J- J j.i_'_xj.j.i» i. turbary and 

munta pasture is named, so as this statute of approvements other oom* 
doth not extend to common of pischary, of turbary, of "^o*^ 
estovers, or the like" ; and the lord cannot in general 
approve against such rights (w). The lord cannot inclose 
against common of turbary, because the turf is not renew- 
able like pasture, and therefore the commoners in course 
of time must require it aU (x). But the lord may inclose 
such parts of the waste as are not capable of turbary, or 
have been exhausted of turbary (y). And by special 
custom of a manor the lord may.approve the waste against 
common of turbary and other commons, leaving sufficient 
for the commoners (z). A custom of a manor for the 
owner of the waste to assign from time to time parts of it 

{fSSfwers* Cotnmisa, v. Glasag, (x) Grant ▼. OunneTf 1 Taunt. 

L. B. 19 Eq. 134 ; 44 L. J. C. 436. 
129, {y) Clarkaon ▼. Woodhouse, 6 T. R. 

(u) Norlhtoick ▼. Stantoay^ 3 B. ft 412, n. (a) ; Feardon v. Under* 

P. 346. hill, 16 Q. B. 120 ; 20 L. J. Q. B. 

(r) ZateelUi y. Onslow, L. R. 2 133. 
Q. B. D. 433 ; 46 L. J. Q. B. 333. («) Arlett ▼. Bllis, 7 B. & G. 371 ; 

(to) 2 Go. Inst. 87 ; Buberly v. Ziucellea v. Omlow, L. R. 2 Q. B. D. 

Page, 2 T. R. 391. 433 ; 46 L. J. Q. B. 333. 



366 USES AND PROFITS IS LAlfD OF ANOTHER. 

called moss daks to ihe oommonerSy in which to take their 
turbaiy exclusiYely of the rest of the waste, and for ih<e 
owner to inclose those parts after the turbary is exr 
hausted, was held to be a reasonable and valid custom (a). 
The lord may approve against common of pasture, not- 
withstanding that there may be common of turbary or 
other commons over the same waste against which he ooizld. 
not inclose; because they are distinct rights, and the 
inclosure against pasture is not necessarily a disturbanoe 
of the other commons (b). — Common of vicinage, being' 
merely an excuse of trespass, may be extinguished at any 
time by inclosing and fencing the common {c). — Common 
fields may be inclosed by any of the freeholders against 
the others, to the exclusion of the common right, at the 
same time extinguishing their own {d) . 

Indofloxe In modem times the inclosure of common lands and the 

ParUament. absolute extinguishment of common rights are generally 
effected by local Acts of Parliament, subject to the pro- 
visions of the General Inclosure Acts(&). Under this 
process common appendant and the customary manorial 
rights of common, common fields and IftTrnnnfl lands, 
commons of turbary and of estovers, have greatly dimi- 
nished and are rapidly disappearing; a separate and 
exclusive tenure being found to be more suitable to 
modem cultivation and requirements. An allotm^it 
made under an Inclosure Act in exchange for common 
rights extinguished by the Act creates a separate pro- 
perty with a distinct title, and is not an appurtenance of 
the tenement to which the common rights were before 
appurtenant ; so that a grant of the latter, whether with 



(a) Clarkaon ▼. WoodKcuse^ supra. 7 Co. 5 ; Sieknumy. Thorn, 2 Mod.. 

(b) Faioeett v. Strickland, Willes, 104. 

67; 6 T. R. 747 n; Bhakespeary. (0} SeethelnclomiieClaQaeBCoQp 

Feppin, 6 T. R. 741. solidation Act, 41 Qeo. 3, o. 109 ; 

\e) AnUy p. 338; WelltY^Fearey, tiie Qeneral InolosuTe Act, 8 & 9 

1 Bing. N. C. 666. Viot. 0. 118, s. 11 ; the Commons 

{d) AnU, p. 840 ; Oorhet*8 Ca$e, Act, 1876, 39 & 40 Viot. o. 56. 



CHAP. II. PROFITS A PRENDRE. 367 

or without general words including appurtenant rights, 
will not cany with it the new allotment, as it formerly 
did the appurtenant rights of common (/). 



Section IY. Bbmedies for Profits a Prendre. 

Bemedies for exduBiye profits — minerals — pasture. 

Bemediee of commoner — action for sorcbarg^g common — distress of 

cattle damage feasant — remedies against lord. 
Abatement of nnisanoe to common — nnisanoe created by lord. 
Bill of peace oonoeming common rights. 

The grantee of an exdusive right to take minerals, Bemedyfor 
being in possession by exercise of his right, may maintain ^^^^ 
an action of trespass or of ejectment against anyone who minerals, 
disturbs his possession by wrongfully entering and taking 
the minerals ; possession alone being sufficient to maintain 
an action against a wrongdoer {a). 

Upon the same principle a person in exclusive posses- Pasture, 
sion of the pasture or herbage of land may maintain an 
action of trespass against any person who wrongfully 
disturbs his possession by putting on cattle to feed, or by 
otherwise taking the pasturp or herbage (b). And he has 
all other remedies appropriate to the possession of land, 
as the remedy by distraining cattle damage feasant (c). 
The mere pasturing of cattle without any title is not such 
a possession as will support an action of trespass against 
another person who does the same, because it is not in 
fact an exclusive possession {d), — ^At the same time the 
possessor of the land subject to such exclusive rights to 
the surface profits may maintain an action for trespass to 



Q.B. 



(/) Williama t. PhUlipt, 51 L. J. 601 ; Coverdale v. Charlton, L. B. 4 

102 ; L. B. 8 Q. B. D. 437. Q. B. D. 104 ; 47 L. J. Q. B. 446. 

{a) HarJew t. Birkbeek, 3 Burr. {o) Burt y. Moore, 6 T. B. 329 ; 

1656; 1 W. Bl. 482; ;wr ewr. Bee/o9M«y. J2«;Aariif, 5A. &E.413. 

Bogera ▼. Brenton, 10 Q. B. 52; {d) Coverdale y. Charlton, L. B. 

ante, p. 64. 4 Q. B. D. 104 ; 47 L. J. Q. B. 

(6) Croehy y. JFadiWorth, 6 East, 446. 



368 CSSS AKD PROVITS IS LiNB OF AKOTHER. 

the laad in any other respect, as for digging holes into the 
Bub-Boil; though he cannot maintain an action for a 
treepase to the surface of which he has not the poa- 
BesBion {e). 

Bemed; of The remedy of a commoner against another conunooer 

AotiraJ™ ^^^ surcharging the common, that is, turning out cattle in 
Bon^upng ezcees of his right, is an action upon the case for dmnages; 
in which action a commoner is entitled to recover nominal 
damages upon proof of the wrong, wi^out showing 
any specific or substantial damage, for otherwise the wrong- 
doer might gain a prescriptiTe title hy continued enjoy- 
ment (/). He may maintain an action for surcharging, 
although he have not any cattle of his own on the common 
at the time of the surcharge {g). And he may nutinfrjin 
the action, although he is himself surchaiging, and con- 
sequently taking more profit than he is entitled to (A). — 
So, a commoner may maintaia an action for injury to the 
common hy remorlDg the manure of the cattle, though his 
proportion of the damage be inappreciable (i). 
Dutnwof A commoner may distrain the cattle of a strange 

^^^duDkge jj^magg feasant upon the conmion or may drive them out ; 
but he cannot in general distrain the cattle of a commoner 
claiming under a colour of right, becaase be cannot make 
himself judge in bis own canse. This rale applies where 
the clium ia for cattle levant and eoucbant, or for cattle pro- 
ate to a tenement, or for cattle limited by any other 
e that is a matter of jadgment But if the claim is fos- 
•er absolutely certain without reference to any other 
9, cattle commoned in excess of the number may be 
,ed, becande it requiree no jadgment to det^mine 
aber, and there can be no colonr and light for sudh 
80, if there be a close season dnring which all 

T. Cw. 3 C. fi. bSX if) WtOt T. WatHmg, 3 W. BL 

biuMT. ToW^Jr. 3W.BL 1333. 

rU>.:-:S: A«i>MT. TtM, i.) BtimnT. 7W^4T. S.TI. 

:i : J»«v T. JiaiiM, 6 A- ^1; Putdtr T. Wadtmrtk, t EMt, 



CHAP. II. PROFITS A PRENDRE. 369 

oatde are excluded, cattle commoned during that season 
may be distrained (J). In distraining cattle put on a 
common in excess of a stinted number, the last put on 
must be taken as being those wrongfully upon the 
common ; unless they were aU put on together, in which 
case so many may be takei; as are in excess of the 
number (A*). These rules apply to common pur cause de 
ricinage as well as to common appurtenant (/). 

Similar remedies apply by a commoner in the waste of a Remedies 
manor against the lord. Where the lord surcharges or *fi^*^^lo^- 
otherwise nses the waste without leaving sufficient pasture 
for the commoners, the latter may proceed against the lord 
by action. Where by custom the lord is excluded from the 
waste, or is stinted to a certain number and kind and puts 
on cattle beyond his stint, the commoner may distrain his 
cattle damage feasant (m). 

A commoner is entitled to remove any obstructions, such Abaiomoni of 
as hedf^es or fences of unlawful inclosures, whether erected ?Ji^*®l?^ ^ 
by a stranger or by the lord of the soil ; as being nuisances 
which a private person may himself abate. " If the lord 
of a manor approve part of the waste and leave not 
sufficient common in the residue, the commoner may break 
down the whole inclosure, because it standeth upon the 
g^iind which is his common" («). " Where a fence has 
been erected upon a common, inclosing and separating 
parts of that common from the residue, and thereby 
interfering with the rights of the commoners, the latter are 
not by law restrained, in the exercise of those rights, to 
pulling down so much of that fence as it may be necessary 
for them to remove for the purpose of enabling their cattle 

(J) Mary's Case, 9 Co. 112 ; Hall Fargiter, Yelv. 129 ; Cro. Jao. 208 ; 

▼. Harding, 4 Burr. 2426. per cur. Hall v. Harding, 4 Burr. 

(k) Ellis V. EowUs, "WilleB, 638. 2430 ; Atkintton v. Teaadale, 2 W, 

{l) Capex. SeoU, L. R. 9 Q. B. Bl. 817 ; 3 Wile. 278. 

269 ; 43 L. J. Q. B. 66. (n) 2 Co. Inst. 88 ; Masati v. 

(m) Hoddesdon v. Gresil, Yelv. Casar, 2 Mod. 65. 
104 ; Cro. Jac. 195 ; Kenrick v. 

1.. 11 U 



370 USES AND PROFITS IN LAND OF ANOTHER. 

to enter and feed upon the residue of the common, hut 
they are entitled to consider the whole of that fence so 
erected upon the common as a nuisance and to remove 
it accordingly ** (o). A commoner may pull down a 
dwelling-house that is wrongfully buUt upon the common; 
but not while persons are dwelling in it, on account of the 
risk of causing a breach of the peace (/?) ; at least, not 
without first giving them notice of his intention and 
requesting them to leave (q). 
Nuisance If the lord of a manor plants trees upon a common, he 

lord. is presumptively acting within his right as owner of the 

soil, and the trees are regarded as part of the soil; 
consequently it is held that the conmioners have no 
right to cut them down as a nuisance, but they must pro- 
ceed by action to prove that the trees are in excess and 
injurious to their common rights (r). So, where the lord 
turned out rabbits on the common it was held that they 
were not injurious, unless in excess ; and that a commoner 
was not justified in killing the rabbits, but must proceed 
by action to prove that they had become a nuisance to the 
common (s). 

Bill of peace. At common law where title to common was in question 
involving the rights of numerous commoners, an action 
decided the question only between the plaintiff and defen- 
dant, without binding any other persons interested, each of 
whom might litigate it separately. Therefore to avoid 
multiplicity of actions the Court of Chancery admitted a 
bill, commonly called a " bill of peace," to be brought by a 
lord against his teuants, or by tenants against the lord, 
or by tenants between themselves, concerning rights of 

(o) Bayley, J., ArM t. £1118, 7 483 ; 1 B. & P. 13; Bayley, J., 
B. & C. 362. ArUftt v. EUU, 7 B. & C. 362. 

{p) Verry v. Fiizhoice, 8 Q. B. (*) Anon., 2 Leon. 201 ; Bellao 

757. V. Langdon, Cro. Eli2. 876 ; Hades^ 

(y) IhttieaY. Williants, 16 Q. B. rfow v. 6'mje*//, Cro. Jac. 1 95 ; Yelv. 
646 ; 20 L. J. Q. B. »30. 104 ; Cooper v. MarthaU, 1 Burr. 

(r) Sadgrove v. Kirbyy 6 T. R. 259 ; Cope v. MarahaU^ 2 Wil*. 61. 



CHAP. II. PROFITS A PRENDRE. 



371 



common; and it is no objeotion to such bill that the 
defendants may each be entitled to make a separate 
defence, provided there be one general question to be 
settled which pervades the whole (t). The lord may bring 
a suit against one or more of the tenants on behalf of all, 
to be quieted in the possession of an approvement or in- 
elosure against the rights of common of all (u). And a 
tenant on behalf of himself and all other tenants, whether 
freeholders or copyholders or both, may sue the lord for 
the establishment of the rights of common over waste in- 
closed by the lord(i?). — The practice is now sanctioned 
generally in aU Divisions of the High Court by Order 
XYI. r. 9 : "Where there are numerous parties having the 
same interest in one action, one or more of such parties 
may sue or be sued, or may be authorized by the Court to 
defend in such action, on behalf or for the benefit of all 
partiesso interested." 



(Q F(fr CUT. Fowell v. Foms^ I T. 
& J. 165 ; Haidwickei L. C, York 
T. JhikingUmy 1 Atk. 282 ; Tenham 
T. Herbert, 2 Atk. 483. 

(m) Eldon, L. C, Hanson y. Qar^ 
diner, 7 Yes. 309 ; Sewern Commiw. 
T. Olatte, L. B. 7 Ch. 456 ; 41 L. J. 



0. 409. 

[v) Powell V. PowUf supra ; Smith 
Y. Broicnlow, L. R. 9 Eq. 241 ; 39 
L. J. C. 636(1); JTarriekr. Queen* a 
Coll., L. R. 6 Ch. 716 ; 40 L. J. 0. 
780 ; Betts v. Thompson, L. B. 6 Oh. 
732. See post, p. 570. 



B B 2 



372 USK3 AND PBOFTTS IN LAND OF ANOTHEK. 



CHAPTER m. 

RENTS. 

Section I. Creation of rents. 

II. Extinction and appGrtionment of rents. 
III. Bemediea for rent. 

Section L Creation of Rents. 

{ 1. Rent service. — { 2. Rent charge and annuity. — } 3. Tithe rent 

charge. 

§ 1. — Rent Service. 

Rent — rent service — distress — rent charge — ^rent seek — distress bf 
statute. 

Reservation of rent service — by deed or will — reservation to stranger. 

Reservation of rent upon gprant in fee simple — ^upon grant of particular 
estate — ^upon lease for years — tenancy at will — ^teoani^ under 
agreement for lease. 

Attornment of mortgagor as tenant to mortgagee — ^lease by mortgagor 
in possession. 

Lioiitations of rent service— construction of limitations. 

Rent of incorx>orGal hereditaments — rent of personal chattels. 

Fee farm rents — ^rents of assize — quit rents — apportionment — redemp- 
tion. 

Rent is a profit issuing out of land, which is rendered or 
paid periodically by the tenant. It is said therefore to lie 
in render^ in distinction to a profit k prendre which is taken 
from the land without the intervention of the tenant (a). 
The term " render " seems appropriate to profits rendered 
in kind, and "payment" to rent in money; thus the 
rendering of a peppercorn rent was held not to be a " pay- 

(ff) Ante, p. 186 : Co. Lit. 142 a; 10 Co. 128 a, Clunks case. 



CHAP. 111. RENTS. 373 

ment of rent" within the Conveyancing Act, 1881, 
6. 3, (4) (b). A rent of a silver penny was held to be a 
rent "having no money value" in the meaning of the 
same Act, s. 66 (e). 

At common law rents are distinguished as of three kinds: Bent sexrioe. 
rent service; rent charge ; and rent seek {d). — Kent service 
is the rent rendered for the tenure of land. The services 
of tenure consisted at common law in rendering to the lord 
profits of the land in money or in kind, or in performing 
for him work and labour or other duties which were 
equivalent to profits ; but in process of time nearly all ser- 
vices became commuted, by agreement or usage, into fixed 
money payments, or rents in the ordinary meaning of the 
term (e). — ^Rent service was attended at common law with Distresa. 
the remedy of distress ; by which if the rent were in arrear 
and unpaid, or the services imperformed, the lord might 
enter upon the land during the tenancy, and seize any per- 
sonal chattels there foimd, and detain them as a pledge for 
the payment of the arrears of rent or for tiie performance 
of the services (/). 

Sent may be payable out of land independently of Bent charge, 
tenure. The owner of land, whether in fee or for life or 
for a term of years, may grant or assign the whole of his 
estate and interest in the land, leaving in himself no rever- 
sion, but reserving a rent ; or he may grant to another a 
rent out of the land, reserving to himself the estate and 
possession. In such cases the rent has no connection with 
tenure and is not rent service, nor has it at common law 
the incidental remedy of distress. But a power of distress 
naay be given or reserved by an express clause in the deed 
of grant or conveyance, with the effect of chargiug the 
land with the rent, which is then called a rent-charge {g), 

A rent service may become disconnected with tenure by Rent seek. 



(h) IL$ Moody and Yates, L. B. 80 (e) See ante, Vol. I. Chap. I. 

O. t>. 346 ; 64 L. J. 0. 887. ** Tenure." 

(e) Se Chapman and Hobbe, L. B. (/) Lit. a. 213 ; Co. lit. 142 a; 

29 C. D. 1007 ; 64 L. J. G. 810. Bollen on Distress, 21 ; poet, p. 422. 

{d) Lit. 8. 213. ig) ^^poet, p. 386. 



Btatate. 



374 USES AND PROFITS IN LAND OP ANOTHER. 

act of the reversioner, as if he conveys away the reversion 
to which the tenure is incident, but expressly reserves to 
himself the rent ; or if he conveys away the rent separately, 
reserving the reversion and tenure. The rent is jprimd 
facte an incident of the reversion, and passes to a grantee of 
the reversion unless expreBsij reserved ; but not the rever- 
sion with the rent. By severing the rent from the tenure, 
the remedy of distress, which was an incident of the tenure, 
is no longer available at common law (g). Eents deprived 
of the remedy of distress, whether originally so created, 
or becoming so by a subsequent act, were called rents 
seek (A), 
by But by the Statute 4 Geo. II. c. 28, s. 5, it was enacted 

that " all and every person or persons, bodies politic and 
corporate, shaU and may have the like remedy by distress, 
and by impounding and selling the same in cases of rents 
seek, rents of assize and chief rents, which have been duly 
answered or paid for the space of three years, within the 
space of twenty years before the first day of this present 
session of Parliament, or shall be hereafter created, as in 
case of rent reserved* upon lease " (»)• Bents seek issuing 
out of or charged upon freehold interests in land without 
es^ress power of distress are distrainable under this 
statute (j) ; but rent seek issuing out of a term of years or 
chattel interest seems to have been considered not to be 
within the statute (A-). — Now by the Conveyancing Act, 
1881, 44 & 45 Vict. c. 41, s. 44, the remedy of distress is 
given, subject to the conditions of the Act, "where a 
person is entitled to receive out of any land, or out of the 
income of any land, any annual sum payable half yearly 
or otherwise, whether charged on the land or on the income 
of the land, and whether by way of rent-charge or other- 

(^) lit. 88. 225, 229 ; Sheppard's p. 383. 
Touchst. 89, 114. (J) Doddtr. Thomp$tm, L. R. 1 

(A) lit. 88. 218, 226'; Co. Lit. 0. P. 133 ; 35 L. J. C. P. 97. 

150 h. (k) Per eur. v. Cocpn, 2 

(t) See Mutgrave v. Emmerson, 10 Wils. 375 ; see Bollen on Distress, 

Q. B. 326. As to rents of assize p. 54, App. (A). 
and other kinds of rent, see poit. 



CHAP. III. EENTS. 376 

"wise, not being rent incident to a reversion." The remedy 
of distress, therefore, is now attendant npon every species 
of rent, either by common law, or under an express clause 
of distress, or by statute. 

Bent service is said to be reserved, as distinguished from Reflervation 
a specific part of the land which may be excepted. In \J^^^ 
technical language an exception refers to a part of th^ 
tenement granted and of a thing in essCy and it leaves the 
part excepted in the grantor as before ; a reservation of 
rent creates a new right which did not exist before, issuing 
out of the tenement to. the ufie of the grantor (/). — Kent By deed, 
service may be reserved by any conveyance that is effective 
to pass an estate, leaving a reversion in the grantor to 
which tenure may be incident. It may be reserved upon 
a deed of grant operating at common law, or under the 
Statute of Uses, or by way of appointment imder a power, 
or upon a grant of a reversion or remainder, or upon a 
lease for life or for years, or upon a parol lease where such 
a lease is effective (m). It may be reserved by deed poU, 
for when the grantee. accepts the deed, he agrees to the 
rent, and the rent is* reserved by the words of the grantor 
and not by the grantee (w). — It may be reserved upon a By will, 
devise by will of a particular estate; a rent service is 
thereby created which is incident to the reversion, and 
passes with it to the heir or devisee of the testator (o). 
But in the case of two independent devises of the land and 
of the rent, it is not rent service but a rent seek ; xmless 
charged upon the land by a special clause of distress, 
which would make it a rent pharge (p). 

Bent service, properly so Called, can be reserved only Reservation 
to the grantor or lessor of the particular estate out of ^ «*™"8^^'"- 
which it issues, who retains the reversion to which the 

(0 Co. Lit. 47 a; PerHiis, sa. 626, («) Co. Lit. 143 b. 

626 ; Doe v. Lock, 2 A. & E. 743. (o) Machel v. Danton, 2 Loon. 33. 

(»i) Co. Lit. 144 a ; pont, p. 376. \p) Webb v. Jipgn^ 4 M. & S. 120. 



376 



USES AND PROFITS IN LAND OF ANOTHER. 



rent is incident ; it cannot be reserved to a stranger to the 
estate {q). Payment of rent to a stranger may be imposed 
as the condition of an estate, with a right of re-entry for 
breach of the condition ; but it is not properly a rent, nor 
can the stranger take advantage of the condition by 
entry (r). 



At common law, before the Statute of Quia Empforeft, 
^Sb'^m^, ™ 18 Edw. I. c. 1, " if a man had made a feoffment in fee 
simple, by deed or without deed, yielding to him and to his 
heirs a certain rent, this was a rent service, and for this 
he might have distrained of common right ; and if there 
were no reservation of any rent, nor of any service, yet 
the feoffee held of the feoffor by the same service as the 
feoffor held of his lord next paramount" («). After the 
statute, a feoffment in fee created no new tenure to the 
feoffor, but the feoffee held the land immediately of the 
lord next paramount by force of the statute ; and if a new 
rent was expressed to be reserved, it was not rent service, 
nor was there any right of distress without an express 
clause to that effect, making it a rent charge (t). — The 
statute applied only to the alienation of the whole fee ; 
and if a grant was made for a particular estate, in tail or 
for life, rendering a certain rent, the reversion remaining 
in the grantor; or if several particular estates were granted 
in succession, leaving a reversion in the grantor, the rent 
was rent service and attended with the right of distress («)• 
If the grant was made for a particular estate with re- 
mainder over in fee, leaving no reversion in the grantor, 
the grantees held of the superior lord by force of the 
statute ; the rent reserved was not rent service and there 
was no right of distress, without an express clause (r). 
If a lease be made for a term of years, reserving rent, 



Onatof 
paitioiilar 



of r«ttl upon 



W' Lit. 8. 346; Co. lit. 47 a, 
143 A. 

{r\ Lit. 8. 345 ; Jenison t. i>x- 
iu^um^ 1 P. Wms, 557. 

V Lit. 8. 210. Soo/» 5/, p. 3S3. 



(t) AnU, Vol. I. p. 18 ; Lit. 
8. 215 ; Bradbury \. Wright^ Dougl. 
627. 

(«) Lit. 8. 214; Co. Lit. 142*. 

.♦•; Lit. 8. 21:'>. 



CHAP. III. BENTS. 37? 

it is a rent service, and the lessor may distrain at common lease for 
law (tr). By the Statute of Frauds, 29 Car. 11. c. 3, s. 1, y®*"* 
it is required that all leases should be made in writing and 
signed ; and by 8 & 9 Vict. o. 106, s. 3, it is required that 
leases required to be in writing shall be made by deed. 
But the Statute of Frauds, s. 2, excepts " all leases not 
exceeding the term of three years from the making 
thereof, whereupon the rent reserved to the landlord 
during such term shall amount imto two-third parts at 
the least of the full improved value of the thing demised." 
Therefore in leases by parol within the exception rent 
service may be reserved, as in a lease at common law. — 
If a lessee for a term of years makes an underlease for a Underlease. 
less term leaving a reversion, however small, and reserving 
a rent, it is a rent service at common law with a right of 
distress (a:). And a tenant from year to year, underletting 
for a term of years, has a reversion with right of distress (y) . 
But upon an assignment of a term of years, leaving no 
reversion in the assignor, but reserving a rent, there is no 
tenure and consequently no rent service strictly so called, 
nor any right of distress at common law ; and an under- 
lease for the whole term is equivalent to an assignment in 
this respect (s). 

Bent may be reserved on a tenancy at vdll and the Tenancy at 
lessor may distrain for arrears ; but it is not rent service 
strictly so called, because there is no tenure (a). — ^Where, Tenancy 
as frequently happens, a tenant enters and takes possession ^nt'fo?*^ 
imder a mere agreement for a lease, not operating as a l®«®« 
legal demise, he was considered at common law to be in 
the position of a tenant at will until a lease was executed, 
and if there was a fixed rent reserved it was recoverable by 

{w) Lit. s. 214. 24 ; Pollock v. Staci/, 9 Q. B. 1033 ; 

(x) JTade Y. Marsh flAich, 2l\. see WoUaston v. HakewiU, 3 M. 

(y) Tenterdeii, C. J., Curtis v. & O. 297 ; Beardman v. TFilson, 

Wheehn; Mood. &M. 493. Per cur. L. R. 4 C. P. 67 ; 38 L. J. C. P. 

Oxley ▼. JatMs, 13 M. & W. 214. 91. 

(«) Par»j«iferv. ?r^A«-,8Taunt. (a) Lit. s. 72; Co. Lit. 67*; 

693^ Thorn v. Wookomhe^ 3 B. & 142*; Ander son y. Midland Ry. Co.^ 

Ad. 586 ; Greece v. Corrie^ 6 Bing. 3 E. & E. 614 ; 30 L. J. Q. B. 94. 



378 



USES AND PROFITS IN LAND OF ANOTHER. 



Attornment 
of mortgagor 
as tenant to 
mortgagee. 



distress. But upon payment of rent a tenancy from year 
to year was implied in law (ft). The Court of ChaneeEry 
would decree specific performance of the agreement by the 
execution of a lease according to its terms ; and the rent 
and remedies would then be regulated by the terms of the 
lease. Under the Judicature Acts, the same remedies are 
given in all Divisions of the Court ; therefore " a tenant 
holding imder an agreement for a lease of which specific per- 
formance would be decreed, stands in the same position as 
to liability as if the lease had been executed. He is not 
since the Judicature Act a tenant from year to year, he 
holds under the agreement, and every branch of the Court 
must give him the same rights. There are not two estates 
as there were formerly, one estate at common law, by 
reason of the payment of the rent, from year to year, and 
an estate in equity imder the agre^nent. There is only 
one Court and the equity rules prevail in it. The tenant 
holds under an agreement for a lease ; he holds, therefore, 
under the same terms in equity as if a lease had been 
granted" (c). 

It is usual in mortgages, for securing pimctual payment 
of the interest upon the mortgage debt, to insert an attorn- 
ment clause, by which the mortgagor attorns or acknow- 
ledges himself to be tenant to the mortgagee at a certain 
rent, equal to or greater than the amoimt of the interest. 
The tenancy thus created carries with it the power of 
distress, with all the usual rights and incidents, whether 
of the common law or statutes, of a distress for rent 
service (d). Where the attornment was made to a receiver 
of the mortgaged estate, it was held effectual to entitle 
him to distrain under it(^). In the case of a second mort- 
gage, operating only upon the equity of redemption. 



{b) Antey Vol. I. pp. 201, 206; 
Anderson Y. Midland Ry O?., 3. E. & 
E.614; SOL. J. Q.B. 94: seeTm- 
emt T. Godson, 4 D. M. & G. 546. 

{e) Jessel, M. B., WaUh y. Lont' 
d^,L.R.2lG.D. 14; d2L.J.C.2. 



See Coatsworth v. Johmon, 55 L. J. 
Q. B. 220. 

(d) Kearsley v. Philip», L. R. 11 
Q. B. D. 621 ; 52 L. J. Q. B. 581. 

{e) Jolly Y. Arbuthnot, 4 D. & J. 
224 ; 28 L. J. 0. 547. 



CHAP. III. EKNT8. 



379 



though there can be no legal tenancy, the attornment 
clause ifl effectual by way of contract or estoppel, and 
enables the mortgagee to distrain (/), and a similar attorn- 
ment clause may be inserted in successive mortgages (g). 
But such attornment is mthin the Bills of Sales Act, 1878, 
8. 6, which enacts that it " shall be deemed to be a bill of 
sale of any personal chattels which may be seized or taken 
under such power of distress " (h). The rent reserved be- 
tween mortgagor and mortgagee in an attornment clause, 
if greater than necessary to secure the mortgage debt and 
interest, may operate in fraud of the bankruptcy law, and 
therefore be void against other creditors (i). 



If a ihortgagor, remaining in possession after conveying Lease by 
his title to the mortgagee, make a lease reserving a rent, ^^ S^s^^' 
the lessee entering under it cannot dispute his title, and 
the mortgagor has a reversion by estoppel to which the 
rent is incident with the right of distress, so long as the 
possession of the lessee continues. The lease is, in general, 
wholly void as against the mortgagee, who may enter at 
any time and evict the lessee ; or he may give notice to 
the tenant to pay the rent to him, which the tenant may 
accept (/). But the mortgagee has no claim against the 
mortgagor for rents or profits received whilst he remains in 
possession (A). — By the Conveyancing and Law of Pro- 
perty Act, 1881, 44 & 45 Vict. c. 41, s. 18, a mortgagor 
in possession has now a limited statutory power of making 
leases valid against the mortgagee and aU other incum- 



(/) Morton ▼. Woods, L. R. 4 
Q. B. 293 ; 38 L. J. Q. B. 81. 

(^) £x parte JPimnett, Be Eitchitif 
L. B. 1« C. D. 226 ; 60 L. J. C. 
212. 

(h) Re Willit, Ex parte Eennedy, 
L. R. 21 Q. B. D. 384 ; see Hall 
Y. Con\fori, L. R. 18 Q. B. D. 11 ; 
56 L. J. Q. B. 185. 

(i) Ex parte JTilliamSy L. R. 7 0. 
D. 138 ; 47 L. J. B. 26 ; He Stockton 
Iron Co., L. R. 10 CD. 335; 48 
L. J. G. 417 ; Ex parte Jackson, L. 



R. 14 C. D. 726 ; Ex parte Voisey, 
Re Knight, L. R. 21 0. D. 442 ; 62 
L. J. C. 121. 

(j) Ante, Vol. I. p. 290; Alchome 
V. Gomme, 2 Bing. 64 ; Johnson v. 
Jones, 9 A. & E. 809 ; Underhay v. 
Read, L. R. 20 Q. B. D. 209 ; 67 
L. J. Q. B. 129. 

(Jc) Yorkshire Building Co. v. 
MuUan, L. R. 35 C. D. 125; 56 
L. J. C. 562 ; Garjit y. Allen, 57 
L. J. C. 420. 



of ra&t- 



380 USES AND PROFITS l>' LAND OF ANOTHER. 

branoers. The leases authorised ore : (1) an agricnltiiral 
or occupation lease for any term not excee^g twenty-one 
years ; and (2) a building lease for any term not exceeding 
ninety-nine years. The section farther provides numerous 
requirements for such leases, as to possession, rent, and 
other matters for the security of the mortgagee. 

The reservation of rent service must be made ivith 
proper words of limitation to define the estate in the rent. 
If the reservation is to the lessor and his heirs, the rent is 
made incident to the reversion in fee and passes with it, 
whether to assigns in law or assigns in deed. But if the 
reservation is to the lessor only, without any words of 
limitation or construction to extend it to his heirs, it is 
a reservation to him for life only ; and the rent deter- 
mines by his death, if he die within the term. So it is, if 
the reservation is to him and his assigns, or to him and his 
executors ; unless it be reserved upon an underlease of a 
term of years, the reversion of which will pass to the 
exeoutors v^. A reservation " to the heirs " of the lessor, 
omitting the lessor himself, would be a bad reservation of 
i^nt service, because the heir would take by purchase and 
would be in the position of a stranger (iw). A reservation 
of i^nt ** to him or his heirs, is good to the lessor for the 
term of his life, and void as to his heir " ; unless the word 
**or** may be construed "and" (w). If tenant in tail 
make a lt>ase for years, reserving rent to him and his 
h«>ur^ the rent will go with the reversion to the heir-in- 
tail 0^"^.— By the Conveyancing Act, 1881, 44 & 45 Vict. 
i\ 4K s* 51 ^P, **In a deed it shall be sufficient, in the 
limitation of an estate in fee simple, to use the words in fee 
sdiitpl^ without the word heirs; and in the limitation 
of an ocftato in tail, to use the words in tail without 
thi* wv\rvls heirs of the body. (2) This section applies 

v^ iV t it, 4T *. :»:.> K y Oo. lit 214 m ; wU, Vd. I. 

v«»' V\v Liu :iU * ; i^U t. JW/A, pp. 156, 160. 
Hx^ l$xV ,*; 2 WmB. Srand. 371 (7). 



CHAP. III. REXTS. 881 

only to deedfi execute after the commencement of this 
Act." 

Beservations of rent service are constmed, if possible, so Confltmotion 
as to support the reservation and attach the rent to the tions. 
reversion. Accordingly, if the rent be reserved generally 
" during the term " without showing to whom it is intended 
to go, it will go with the reversion to the lessor and his 
heirs, or to whomsoever may be entitled to the rever- 
sion (p). In the case of a joint lease by tenants in com- 
mon, resCTving rent without saying to whom payable, it 
was held that upon the death of one of the lessors, the 
reversion being severed, the rent followed the reversion (q), 
— ^Where land is settled for estates for life with remainders 
over, and a power of leasing is given, the leases executed 
under the power take effect as if inserted in the deed of 
settlement, which also limits the reversion ; the law will 
then appropriate the rent to the successive estates in the 
reversion. In such cases the approved way of reserving 
the rent is " to reserve the rent yearly during the term, 
and leave the law to make the distribution, without an 
express reservation to any person " (r). 

" A rent must be reserved out of the lands or tenements Rent of 
wherexmto the lessor may have resort or recourse to JJ^^J^^*^ 
distrain, and therefore a rent cannot be reserved out of ments. 
any incorporeal inheritance. But if the lease be made of 
them by deed for years, it may be good by way of 
contract to have an action of debt ; but distrain the lessor 
cannot. Neither shall it pass with the grant of the 
reversion, for that it is no rent incident to the rever- 
sion "(«). If land be leased together with incorporeal 
hereditaments, with a reservation of rent, there is a 



{p) Co. Lit. 47 a ; Saeheverell v. way^r. Hart, 14 C. B. 340 ; 23 L. J. 

Froggatt, 2 Wmfl. Saund. 367. C. P. 116 ; Yellowly v. Qotcer, 11 

(q) Beer v. Beer, 12 C. B. 60 ; 21 Ex. 274 ; 24 L. J. Ex. 289. 

L. J. C. P. 124. («) Co. Lit. 47a, 142a. JetceVa 

(r) Whitlock'e Case, 8 Co. 71 a ; Case, 6 Co. 3a ; Butt^s Case, 7 Co. 

C<imbe*8 Case, 9 Co. 75: Isherwood 233; Dean <^ JFittdsor v. Gover, 2 

y. Oldhnow', 3 M. & S. 382; Qreena- WmF. Saund. 301. 



382 USES AND PBOFITS IN LAND OF ANOTHER. 

remedy by distress against the land though not against 
the incorporeal property; the rent issues wholly out of 
the land in point of remedy, but in point of render oat 
of both together (/). Where a wharf was let together 
with the easement of mooring barges in the adjaoent 
river between high and low water mark, it was held that 
the lessor could not distrain barges in the river where there 
was a mere easement («). — So "a rent cannot be reserved 
or granted out of a rent. Part of a rent may be granted, 
but a new rent cannot be reserved or granted thereout, 
because no distress can be taken of it" (r). ^'But if a 
man demiseth the vesture or hOTbage of his land, he may 
reserve a rent ; because the lessor may distrain the cattle 
upon the land. And so a reversion or a remainder of 
lands or tenements may be granted reserving a rent, for 
the apparent possibility that it may come in possession" (u). 
So a rent may be granted out of a reversion expectant 
. upon a term of years, although no distress can be made 
during the term ; and the grantee may have a receiver, or 
liiay have a sale of an adequate portion of the reversion to 
pay the rent (a?). 
Bent of Upon the same principle a rent cannot be reserved out of 

SLtielB. goods or chattels personal. A lease of goods reserving a 

rent might give a personal remedy, but not a power of dis- 
tress. But upon a lease of land together with goods and 
chattels at a rent reserved, the whole rent may be dis- 
trained upon the land; as where land is let with stock 
upon it ; or upon a letting of a furnished house or 
lodging (^). So in the case of a lease of a factory or 
part of a factory, together with steam power, gas, and 
the like appliances for the use of the demised premises, a 

(0 J>oubitofte T. Curteene, do. {x) Dawaon y. IMms, L. B. 2 C. 

Jao. 463 ; see 2 Wins. Sannd. 304. P. D, 38 ; 46 L. J. G. P. 62. 

(ti) Buatard t. Capel^ 8 B. & G. (y) Neuman t. AmderUm, 2 B. ft 

141; £7a/7tf/Y.^i»Air<i,6Bmg. 150. P. X^. B. 224; citing Spencer's 

(v) Hardwicke, L. G., Stafford t. Case, 6 Go. 17 ; Farewell y. Dickem- 

Buckley, 2 Yes. sen. 178. wn, 6 B. & G. 251. See Saimom ▼. 

{w) Co. lit. 47a, 142a. Matthews, 8 M. & W. 827. 



CHAP. III. RENTS. 383 

rent reserved for the whole is considered as issuing out 
of the fixed property, and attended with the right of 
distress (z). 

Some rents service have received special designations. Fee farm 
Fee farm is rent in perpetuity reserved upon a grant in fee "^ ' 
simple. " After the statute of quia emptores granting in 
fee farm, except by the king, became impracticable ; because 
the grantor parting with the fee is by operation of that 
statute without any reversion, and without a reversion there 
cannot be a rent service" {a). Bent granted or reserved 
in perpetuity since the statute would be rent seek at com- 
mon law, imless charged upon the land by an express 
clause of distress. As rent seek it would be distrainable 
only by virtue of the Statute 4 Geo. II. c. 28 {b). 

The customary rents service of the freehold and copy- Bents of 
hold tenants of manors, when fixed or assized in amount by ""'^®' 
custom or otherwise, were called rents of assize; in distinc- 
tion to rents that remained arbitrary or variable. They Qiut rente, 
were also called quit rentsy because they were paid instead 
of all other services, of which the tenant thereby became 
discharged or quit. The rents of the freehold tenants 
were called the chief rents of the manor (c). The rents of 
the copyhold tenants are distrainable at common law {d), 
^^Rack rent is only a rent of the full value of the tenement 
or near to it" ; it is a popular expression with no technical 
significance {e), — Where quit rents have been paid, but, 
as is often the case, it has become uncertain out of what 
lands they are issuable and distrainable, the Court of 
Chancery, upon proof of payment within a reasonable 
time, will decree payment of all arrears and future pay- 

(2) Saby V. Greaves, L. B. 6 C. (b) Ante, p. 374 ; Bradbury v. 

P. 694; 37 L. J. C. P. 261. See JTriyht, supra; £ivis y. TTatwn, 6 

WiUes, J., Ib,y and see Marshall v. M. & W. 265. 

Sehqfield, 52 L. J. Q. B. 58. (c) 2 Ck). Inst. 19 ; 2 Blackst. 

(a) Hargrave's Note (5) to Co. Com. 42. 

Lit. 143 6; ante, p. 376; Bradbury id) Laughter y. Humphrey, Cro. 

V. Wright, DougL 627, n. ; Att.- Eliz. 624 ; see ante, p. 377. 

Gen, T. Coventry, 1 P. Wms. 306. (e) 2 Blaokst. Com. 43. 



384 



USES AND PROFITS IK LAND OF ANOTHER. 



Apportum- 
ment by 
statute. 



Redemption 
of rents. 



ments ; and if neoessaiy, the Court will proTide a remedy 
by ascertaining the boundaries (/). 

By the " Act for the Indosure of Land," 17 4 18 Vict, 
c. 97, 88. 10 — 14, it is provided that " where any lands or 
hereditaments are charged with any fee farm rent, rent 
seek, rent of assize, or chief rent, or other annual or periodi- 
cal fixed rent or other certain payment, any persons respec- 
tively interested in such lands and in the said rent or other 
payment issuing therefrom may make application in 
writing to the oonmiissioners," who are therein authorised 
" by order under their hands and seal to apportion the said 
rent or other fixed payment among all the lands charged 
with the payment thereof, and also, where necessary, to 
determine the extent, identity, and boundaries of the land 
and hereditaments charged with such rent or payment." 

By the Conveyancing and Law of Property Act, 1881, 
44 & 45 Vict. c. 41, s. 45, " A quit rent, chief rent, rent 
charge, or other annual sum issuing out of land " may now 
be redeemed by payment or tender of a sum of money, 
certified by the Copyhold Commissioners as the amount of 
money in consideration whereof the rent may be redeemed, 
to the person entitled to the rent. " On proof to the com- 
missioners that payment or tender has been so made, they 
shall certify that the rent is redeemed ; and that certificate 
shall be final and conclusive; and the land shall be thereby 
absolutely freed and discharged from the rent." "This 
section does not apply to tithe rent charge, or to a rent 
reserved on a sale or lease, or to a rent made payable under 
a grant or licence for building purposes ; or to any sum or 
payment issuing out of land not being perpetual." 

(/) BrtdgewaUr y. Edwards^ 6 Bro. P. C. 368 ; Duke of Leedt y. Bavell, 
1 Ves. sen, 171 ; ante, p. 10. 



i 



CHAP. 111. RENTS. 385 



§ 2. Eent charge and Annuity. 

Bent charge — grant of rent charge — grant of diatreas— Bills of Sale 

Act, 1878. 
Beeervation of rent upon g^ot in fee — upon assignment of term — 

Beverance of rent service and reversion. 
Ldmitations of rent chargpe — estate tail — disentaUment. 
Seisin, entry and ocqupanoj of rent. 
Bent as real or personal estate — arrears of rent. 
Annuity. 

Annuity charged upon land — upon rents and profits of land. 
Xiimitation of annuity — in fee — for life— annuity for maintenance — 

trust to buy annuity — gift of annual income. 
Charge of annuity in administration of assets upon real or personal 

estate 
B^^tration of annuity and rent charge. 

A rent chaxge may be created by the owner of land Bent charge, 
granting a rent out of it with an express power to distrain 
upon the land ; or by the owner granting or assigning all 
his estate in the land, leaving no reversion, but reserving a 
rent with power to distrain ; or by the owner of a rever- 
sion with rent service dissevering the rent service from the 
reversion and tenure of the land («). 

" If a man seised of certain land grant, by a deed poll Grant of 
or by indenture, a yearly rent to be issuing out of the same '^ ch*'?®' 
land to another in fee, or in tail, or for term of life, with 
a clause of distress, then this is a rent charge ; and if the 
grant be without clause of distress, then it is a rent 
seek" (6). As a rent seek it is distrainable by the statute 
4 Geo. II. c. 28 (c) . In the same manner a rent charge may 
be devised by will {d). — ^A rent charge may be granted out 
of a term of years ; and it may be granted for the life of 
the grantee, so as to be a charge during the term, if the 
grantee so long live ; and in such ease the grantee hath but 

(a) Ante, p. 373; pott, p. 387. son, L. B. 1 0. P. 133 ; 35 L. J. 

(b) Lit. s. 218. C. P. 97. 

{e) AnUt^. 374 ; Dodde y. Thomjf^ {d) See ante, p. 375. 

L. c; c 



distrefis. 



886 USES AND PROFITS IN LAND OF ANOTHER. 

a chattel (e). " When a rent is granted out of land in 
fee and out of a term of years, to have and perceive to 
the grantee for the term of his life, this, as an estate of 
freehold according to the purport of the deed, cannot issue 
out of the term for years, but out of the land which the 
grantor hath in fee simple only" (/). 

Grant of If the owner of land grant to another, that if he be not 

yearly paid a certain sum, then it shall be lawful for him 
to distrain upon the land, this is a good rent charge, 
because the land is charged with the rent by way of 
distress ; but the person of the grantor cannot be charged, 
because he doth not grant any rent, but only that the 
grantee may distrain {g). If land be demised with- a 
reservation of rent, and it is further agreed in the same 
deed that if the rent be behind the lessor may distrain for 
the same in certain other land, both the lands are chai^fed, 
the one with the rent service, and the other with a distress 
for the rent by way of penalty {h). And the latter would 
be chargeable with the distress as against an assignee who 
took it with notice (t). " If a man seised of lands in fee 
bindeth his goods and lands to the payment of a yearly 
rent to A., this is a good rent charge with power to distrain, 
albeit there be no express words of charge, nor to dis- 
train" (y ). If he charge his goods only upon certain land^ 
it is not a distress properly so called, but operates only by 
way of covenant or licence for taking the goods (k), 

Billa of Sale By the Bills of Sale Act, 1878, 41 & 42 Vict. c. 31, s. 6, 
" Every attornment, instrument, or agreement, not being 
a mining lease, whereby a power of distress is given by 
way of security for any debt or advance, and whereby any 
rent is reserved or made payable as a mode of providing 

(e) Butt's Casey 7 CJo. 23 a ; Safety (i) Daniel r. Stepney, L. K. 9 Ex. 

V. Elgoody 1 A. & E. 191 ; post, 185. 

p. 391. 0) Co. Lit. 147 «. 

.„_... ^ ^^.j jpf,f^^^ y JSdwards, 2 Ex. 



Act. 



(/) BuUU Case, sttpra. 
(y) Litt. 8. 221 ; Co. Lit. 46 h ; 
7 Co. 24 a, Butt's Case, 



732 ; 17 L. J. Ex. 258. See J2« 
Sankey Brook Coal Co., L. B. 12 Eq. 
(A) Co. Lit. 147 a; 7 Co. 23 *, 472; 41 L. J. C. 119. 
ButVs Case, 



CHAP. III. RENTS. 387 

for the payment of interest on such debt or advance, or 
otherwise for the purpose of such security only, shall be 
deemed to be a bill of sale of any personal chattels which 
may be seized or taken under such power of distress." 
This enactment applies to the attornment clause in a mort- 
gage whereby the mortgagor in possession attorns tenant 
to the mortgagee ; though it does not apply to the power 
of distress incident by common law to the rent service re- 
served in a lease (/). An agreement for letting a pubKc- 
house, stipulating for the exclusive supply of goods by the 
lessor, and for power to distrain for money due for such 
goods supplied, was held to be within the Bills of Sale 
Acts, and must conform to those Acts in form, registration 
and other requirements (»i). 

After the passing of the Statute of Quia Emptores a con- Reeeryation 
veyance in fee simple created no new tenure between the ^^^J^ 
grantor and the grantee, and therefore a rent reserved 
upon the grant was not rent service and had no common 
law right of distress. But the reservation of rent may be 
attended with an express clause, that if the rent be in 
arrear, it shall be lawful for the grantor or his heirs to 
distrain ; the rent then becomes a rent charge, because the 
land is charged with the rent by the distress. So if 
tenant in fee simple grant away the land for a particular 
estate as for life or in tail with remainder in fee, or for 
several particular estates in succession with remainder in 
fee, leaving no reversion, but reserving a rent, it is not 
rent service ; but it may be made a rent charge by an 
express clause of distress («). — If a lessee for a term of Upon assign- 
years assign the whole term, or imderlease for the whole ^[^erlaise 
term, reserving rent, but leaving no reversion, the rent is of term, 
not rent service and is. not distrainable at common law, 

(0 Ee Willis, L. R. 21 Q. B. D. {m) Pulbrook v. Aahby, 56 L. J. 

384 ; HaU v. (hmfort, L. R. 18 Q. Q. B. 376. 

B. D. 11; 66 L. J. Q. B. 186; (n) Lit. tfs. 216—217; ante, p. 

ante, p. 379. 376. 

C C 2 



388 USES AND PROFITS IN LAND OF ANOTHBB. 

unless there be an express clause of distress (o). But such 
rent would be recoverable by action of debt during tie 
continuance of the term, or upon a covenant to pay the 
rent. It is assignable, and the statute of 4 Anne, c. 16, 
s. 9, dispenses with the attornment of the tenant {p). 
Severanoe of A rent originally reserved as rent service incident to the 
a^ reverb, reversion of the land demised, may become dissevored from 
the reversion, by the landlord granting away the rent and 
reserving the reversion ; or by the landlord granting away 
the reversion and expressly reserving the rent. In such 
cases the distress which was an incident of rent service and 
impliedly annexed to the reversion is lost at common kw; 
the rent becomes a rent seek charged upon the land, and 
distrainable only by the statute 4 Oreo. II. c. 28 {q). A 
grant of the reversion passes the rent as incident to it^ 
unless the rent is expressly reserved ; but a grant of the 
rent does not pass the reversion (r). A devise of "rents" 
in a will may sometimes be construed to mean the rever- 
sion to which the rents are incident, according to the 
intention appearing in the will («). 

limitatioiiflof The grant of a rent charge, which is an incorporeal 
hereditament, must be made by deed ; and the terms of 
limitation, like those of rent service, are construed strictly 
according to the general rules of construction applied to 
limitations of real estate (t) , — A rent charge may be limited 
by way of use, upon which the Statute of Uses will operate 
to vest the legal estate, as by limiting land to A. and lus 
heirs, to the use that B. shall have an annual rent out of 
the some ; or by granting a rent out of the land to A. and 
his heirs to the use of B. ; in which cases the statute will 

(o) Ante, p. 377 ; Farmenter t. L. J. Q. B. 374 ; poat, p. 472. 

Wtbber, 8 Taunt. 593; Frewe y. (?) Lit. as. 226— 229, anto, p. 374. 

CorHCj 5 Bing. 24 ; Faacoe v. Fatcoe, (r) lit. s. 229. 

3 Bing. N. C. 898. («) Kerry v. Derrick, Cro. Jac 

{p) Fotdtney y. Holmes, Strange, 104 ; Maundy y. Mamdy, 2 Stra. 

405 ; JSaker v. OoeUing, 1 Bing. N. 1020. 

C. 19 ; Williame y. Hayward, 28 {t) Ante, p. 380. 



CHAP. III. RENTS. 389 

execute the uses, and with attendant remedies of distress 
and entry, if such remedies be expressly declared as 
uses (m). If it be further declared that the cestui que me is 
to hold the rent to the use or upon trust for another, the 
latter uses are not operated upon by the statute, but are 
trusts or equitable interests only (r). — If a rent be granted 
to one and his heirs, and the power to distrain to him only, 
this is a rent charge for his life and a rent seek after, the 
power to distrain not being extended to the heirs ; so with 
a power to enter for non-payment of the rent (tr). 

Eent may be limited foran estate tail, being a" tenement" Estate tail, 
within the ^ioiuiQDe Bonis, 13 Edw.I. c. 1, West. 2. "This 
is the only word which the said statute that created estates 
tail useth; and it includeth not only all corporate inherit- 
ances, which are or may be holden, but also all inheritances 
issuing out of any of those inheritances, or concerning or 
annexed to or exerciseable within the same, though they lie 
not in tenure ; therefore all these without question may be 
intailed. As rents, estovers, commons, or other profits 
whatsoever granted out of land " (x), — Estates tail in rents Diaentail- 
were formerly barred by Fines and Eecoveries ; they are 
expressly included in the Act for the Abolition of Fines and 
Recoveries, 3 & 4 Will. IV. c. 74, and may now be dis- 
entailed and converted into fee simple by a deed under 
that Act. Where the rent is originally limited to the 
grantee for an estate tail, with remainder to another in 
fee, it is a perpetual rent, and the tenant in tail may bar 
the remainder and enlarge his estate tail in the rent into a 
fee simple absolute. But where the rent is originally 
granted for an estate tail only, it is limited to the con- 
tinuance of his issue in tail ; the tenant in tail may by a 
disentailing deed convert his estate in the rent into a 

(«) 27 Hen. 8, ci 10, as. 1, 4, 6 ; («?) Ante, Vol, I. pp. 120, 126. 

1 Sanders on Usee, 4th ed. 107 ; 2 (w) Co. Lit. 147 A; Ilasscll v. 

Jb. 28. See Havergill v. Hare, Cro. Oowthwaiie, Willee, 607. 

Jao. 510, as to entry ; Cook v. (x) Co. Lit. 20 a, 
Serkf 2 Mod. 138, as to distress. 



390 



r54ES \^ny froftts nr la^id of a^other. 



determmaHe or base fee durmg the eontiinumce of iasae, 
tat ke cannot enlarge it into a fee simple (y). If rent 
8ervi<;e be reserve^! upon a grant of land for an estate tail, 
the tenant in tail of the land can bar the reversion^ but he 
cannot bar the rent, beeanse it is a separate tenement dis- 
tinct from the landi'r). Tenant in tail of land cannot 
grant a rent charge out of the land as against the issae in 
tail, without exe<:ating a disentailing assnrance (a). 



ai wttL lienty as b^ing an incorporeal hereditament, is incapable 
of seL*in, entry or ooenpancT; bnt for some pnrpoees 
payment of rent is a possession equivalent to seisin (6). 
FormerlT seisin was net^essarr to maintain an assize or 
other real action; and payment of rent was a sufficient 
seisin for this pnijM^se /•). Payment of rent was also 
sufficient seisin to create a new root of descent under 
the old law of inheritance, which traced descent from 
the person last seised (</). ITpon the grant of a 
rent charge at common law the mere delivery and 
acceptance of the deed of grant give no actual seisin 
or pr»ssession of the rent ; bnt if the grant be made 
by a dee«l operating under the Statute of Uses the grantee 
is "deemed and adjudged in lawful possession'' of the 
rent by the words of the statute, which expressly includes 
" rents, reversions and other hereditaments." The distinc- 
tion is important with reference to the " actual possession" 
of a rent chai^ required for the qualification of a county 
Toter nnder the Reform Act, 2 WilL IV. c. 45, s. 26 (e). 



(y Butler's note toCo. Lit. 29S a; 
Smith T. Bam/t'^-tj, Carter, 52; 
Anrm.j 12 Mod. 513 ; t'hapVkn t. 
Chiiplin. 3 P. Wms. 229. 

(z; Whi*f ▼. West, Cro. Eliz. 792. 

(fly Lainh^rt ▼. Austin, Cro. Eliz. 
333; Fairfax ▼. Lerbu, 2 Vem. 612. 

(b) Lit. ss. 233—240 ; Co. Lit. 
160 a; iJruiit v. Chriitchurch^ L. 
R. 12 Q. B. D. 365 ; 53 L. J. Q. 
B. 177. 



[c) Lit. 8. 233; Co. Lit. 153 «, 
1 60 a. Reala ctiona were aboUflbfid 
by 3 & 4 WiU. 4, c. 27, 8. 36. 

{d) Co. Lit. lbh\ anU, Vol. L 
p. 61. 

W Co. Lit. 160a; anie^ VoL L 
p. 103 ; Meelis v. Biaim, 18 C. B. 
N. S. 90 ; 34 L. J. C. P. 88 ; Had- 
ffliVs Cote, L. R. 8 C. P. 306 ; 42 
L. J. C. P. 146 ; Orme't Ca$t, L, 
R, 8 C. P. 281 ; 42 L. J. C. P. 38. 



CHAP. 111. RENTS. 891 

— For the reason that rent does not admit of entry, if a EDtry. 

rent charge be granted upon condition, and the condition 

be broken, the rent is ipso facto extinct without entry ; 

although entry is in general necessary to divest a freehold 

in possession upon the breach of a condition {^f), — ^Also, in Oocmpanoy. 

the case of a rent pur autre vie and death of the tenant 

pending the life, there can be no general occupancy; but 

there may be a special occupant by the express words of 

the grant, (though not properly called an occupant but 

rather a special grantee), or under the statute 1 Vict. c. 26, 

8. 6, (repealing but substantially re-enacting the statute 

29 Car. II. c. 3, s. 12,) which expressly includes incorporeal 

hereditaments (g). A rent reserved upon an assignment of 

an estate pur autre vie is a rent charge pur autre vie, which 

passes to the heir or executor of the assignor, upon his 

death pending the life, according to the terms of the 

reservation (A). 

Bent charge limited for an estate of freehold is real Rent a« real 
estate ; and if the land is of customary tenure, the rent estateT^^ 
follows the rules of the tenure ; as the tenure of ancient 
demesne, or of gavelkind, or of Borough English («). A 
rent charge pur autre vie is a freehold estate ; but in case of 
the death of the owner pending the life without leaving a 
special occupant, it passes to the executor, to be applied 
and distributed as personal estate, by the statute 1 Vict, 
0. 26, s. 6 (y). — Eent charge granted for a term of years, 
and rent charge granted out of a term of years, though 
Hmited for the life of the grantee, are personal estate, and 
pass to the executor of the deceased grantee, together 
with the rights of distress (k). — Eent service follows the 

(/) Co. Lit. 218a ; ante, Vol. I. (A) Jenison v. Lexington^ 1 P. 

p. 225. Wms. 665. 

(^) Co. Lit. 41*, 388 a; Hastel (i) Robinson on Gavelkind, 79. 

Y. Gowthwaite, WiUes, 500 ; Sear^ See Knolles' Case, Dyer, 5 b, 

park V. Hutchinson, 7 Bing. 178; U) Chatpld v. BerchtoWt, L. R. 

ChatJUld V. Berchtoldt, L. R. 7 Ch. 7 Ch. 192 ; 41 L. J. C. 255. 

192 ; 41 L. J. C. 255 ; ante, Vol. I. (A?) Butt's Case, 7 Co. 23 a; Saffery 

p. 193. T. Elgood, 1 A. & E. 191. 



^^? rJTD Tt FT*^ ZT ILi^n IF LT* ^H 




iirrzT* r ^i- jtuvj-r , n "c Vt:' t ir is TnHtit^t : rr is ml 
T ■^''TF^-z^ -:frrj>- itlL ;^iae*5 jT T5if* i*ar :r €X2<jiir«3r, 'with 
iii- :T'^-^^?=: tl ' . Zr-^ir 5«^-tjl'^ r«*3rr^i ir«:iL & Lease for 
■^-^sr?, IT- r ;»:.^:i^-L zrnL "ie r^^-=gcsi:ii- w*?nnje4 a rent 
z-.Tzr- rr — -ar?*- inii js y^smn^ jsoT'* ii . — Arrears of 

'^ r zsir aarriiz**. letirxe*! doe at 
-■■HF^r T?;!. jsta.r-*. An»i rasB to the 



r«r»*- ••-•1 



-r>ir r ici -■ lt- ir^-minziiS^Lrs :c r^nr to the d€ath 
■r "iir '— ="_r r • . Azjl x»'v "iie €x.^z^mr ^-•««» by statute 
":!►* _Li> z^-mr-:*' r ii-^r-'^-^ tzr f^iin. izt^sirs is the testator 
iiM^l. n. lis in— ime • Ar ?- nizi»'iL la'^" s.'=r:h«3' tie h«r 
hj r "ii?* -en— ^iiTx f "iii* rents' £ :& fr^^-ji rent tad any 
npr " c^rmzi 5 j izr-jaz* it-irie*! rij* it his -iaecease (/>}. 

*-■■»»-■ - * Ai uiiLnir^ "J? 1 J'^^J Ta7:=.'?:it it a eertain sum of 

3L''Ti-^ znzr— L T' in.'ri>^ i^ f-^, f :r life, or f^r years, 
liLiT'-rur "iit^ T»2rs tl i zz^ mzz :r rulj-"* An animitT as 
1 HHT^ ^•-TsriiLl ,«:LjrLiL c ic »*-r^— ♦ r law 'iid ii«:^ cbaige 
riff ^iiz.« i t tht^ rnzLT r iz. Ij* Ir:rcizi*r ; h-:t did it cbazge 
"iit^ h»^ir t "iiff ie*'*"k?^i zrizit :r- alii:-'izti he ti>Tk assets by 

'j^ ij-ir TTL^ eirre^y bicnd in the grant 



T zifcrTznr^^t £ :':ZI_riti t: : . X:w bv the ConTer- 
Lzj-izL^ Azn. I>rL 44 i 4-> Yi.^ c. 41. Sw 59, a contract, 
'>ii.'L :r -''Jz^vz^'jL zz^L^ ieil riapie after the commence- 
n*^!it :f tirf Ai^ -tl:-n^ r.c eiq^eased to bind the 
r-crs. si^tZ :^»2rEt-r in liw to tied the heirs, and real 
«Cit^, i5 T-rZ i5 tl-e exrCTitcss and administrators and 
T^rTs nil -^scite, •:• tie f«er5»:-n TnaVing the same, as if 
hr£r? m-f-r^ extr^rs^*?*! : ^ Int ** onlv if and so far as a con- 
trary intentfrc i* nrc exyi^sacd.** — A rent diaige, as being 



' Ai2e. 7. !.>.\ S*'i/---',7 T. * S2 Hen. 8, c 37, aa. 1, 4 ; 8 

F''*pre-\ J Wiitf. S»=ai- i7l. 4 4 WilL 4, c, 42, as. 37, 38. 

« IT* '.;/'# '.>». r>T«-, 5*. 5 Co. Lit. 162«; OpuPs Out, 

% I-:^-^- c: T. /'.iy, L. R. 7 4 Co. 4S*: Edriek't Cau, 5 Co. 

P. D. t: ; 5: JL J. P«:.b. 2?. Se* IIS «; Pre^nU x. BoueJkrr, 3 B. & 

!»*'}■ pa T, Mey:^ \ Wm&. Saosd. AA. 849. See^pocT, p. 418. 

2S6 *, dt^d^:.*.', p. 426 : appoitaaii- (j) Oo. Lit. 144 *. 



CHAP. Ill, RENTS. 



393 



an annuity, imports the remedy by personal action against 
the grantor, nnless the personal liability is expressly 
excepted ; and the grantee has the election to proceed by 
action against the grantor, or by distress for the rent in 
arrear ; but he cannot do both together (r). The grant of 
a mere power of distress upon land for an annual sum 
impliedly creates a rent charge, but without personal Ka- 
bility of the grantor («). Upon a reservation of rent 
service the grantee or lessee of the land was not chargeable 
personally by writ of annuity at common law, because the 
words of reservation were taken as those of the grantor only 
and not of the grantee {t) ; but rent service was recoverable 
at common law by a real action ; and under the statute 
8 Anne, c. 14, s. 4, by an action of debt (w). 



An annuity expressly charged upon land is in the nature Annnii^ 
of a rent, n it is charged by a clause of distress, it ^^ ""^^ 
becomes a rent charge; if it is charged upon land generally 
without any power of distress, it is a rent seek, to which 
the statute 4 Geo. II. c. 28 applies and gives a power of 
distress (r). — An annuity charged generally upon land pre- Upon rents 
sumptively charges not only the annual rents and profits ^^^"*^** °^ 
but also the land itself {ic) ; it may be charged upon the 
annual rents and profits only, without recourse to the corpus 
of the land (x) ; or it may be charged primarily upon the 
rents and profits, with recourse to the corpm for the annual 
deficiency (y) ; or it may be charged upon the annual rents 
and profits, with a cumulative charge upon the rents and 



(r) Lit. S9. 219, 220 ; see Bodwell 
V. Bodwell f Oo. Car. 171 ; post, p. 
471. 

(<) Ante, p. 386. 

(0 Co. Lit. 144 a, 

(u) Fo$t, p. 472. 

(r) Antey p. 374 ; Hard^icke, 
L. C, Stafford v. Buckley ^ 2 Ves. 
sen. 177 ; ButteryY.Bobifuon, 3Bing. 
392 ; SoUory y. leaver^ L. R. 9 £q. 
22 ; 40 L. J. C. 398. 

{w) Fearton y. HelUiceU^ L. K. 18 



Eq. 411 ; Eowarth v. Bothwell, 30 
Beav. 516 ; 31 L. J. G. 449. 

(x) J'oater V. Smith, 1 Ph. 629 ; 
Stel/oxY. Suffden, Johns. 234 ; Tatea 
▼. Yates, 28 Beav. 641 ; 29 L. J. C. 
874 ; Baker v. Baker, 6 H. L. C. 
616; 27 L. J. 0. 417; Miehelly, 
Wilton, L. R. 20 Eq. 269 ; 44 L. J. 
C. 490. 

(y) Be Grant, 52 L. J. C. 652 ; 
Be Maaon, L. R. 8 C. D. 411 ; 47 
L. J. C. 660. 



394 



USES AND PROFITS IN LAND OF AN0THB1U 



profits of succeeding years until the arrears of the annuity 
are discharged (s). The incidence of the charge in these 
respects depends upon the construction of the terms in 
which it is granted. 



Limitatioii of 
axmoitiee — 
in fee; 



for life. 



" If an annuity be granted to a man and his heirs, it is 
a fee simple personal," or " a personal inheritance which 
the law allows to descend to the heirs ; " and " not only 
the grantee, but his heir and his or their grantee also shall 
have a writ of annuity." It is assignable, and devisable 
by will ; it passes by a will of personal estate and by a 
residuary bequest of personalty, but not to executors rirtute 
officii {a). A limitation of an annuity " for ever," without 
the limitation " to the heirs," has not the like effect ; it is 
not inheritable, but passes to the executor as a mere 
annuity (6). A limitation of an annuity to a man and 
" to the heirs of his body " is construed like a fee simple 
conditional upon issue ; and upon his satisfying the condi- 
tion of having issue it becomes his absolute personal pro- 
perty. It does not admit of a limitation in remainder (c). 
— The grant of an annuity to a person without words of 
limitation is presumptively an annuity for his life only. 
Also the grant of an annuity to one expressly for life, with 
remainder to another without words of limitation, is pre- 
sumptively given to the latter for his life only ; " the 
duration of the life of the first taker is expressed, not for 
the purpose of limiting the gift to the first taker, but of 
limiting the commencement of the gift to the second or 
successive takers " (d). The Wills Act, 1 Vict. c. 26, 



(z) Sooth V. Coulton, L. R. 5 Ch. 
684 ; 39 L. J. C. 622 ; Birch v. Sher- 
ratty L. R. 2 Ch. 644 ; 36 L. J. C. 
925 ; Tai/lor v. Tat/lor, L. R. 17 Eq. 
324 ; 43 L. J. C. 314 ; ITorwald v. 
Muzent, L. R. 17 C. D. 167 ; 60 
L. J. C. 776. 

(rt) Co. Lit. 2 a, 144 b ; Stafford 
Y. Buckley y 2 Ves. sen. 177 ; Aubin 
Y. Daly, 4 B. & Aid. 69 ; Gerard v. 



Bodm, Hetley, 80. 

{b) Taylor v. Martindale, 12 Sim. 
158. 

(c) Co. Lit. 20 a ; Tamer r. Tur- 
ner, Ambl. 776 ; Stafford r. Buckley, 
supra; ante, Vol. I. p. 35. 

(d) Fry, J., Bliyht v. Hartnoll, 
L, R. 19 C. D. 297; 51 L. J. C. 
164 ; dissenting from Evant y. 
Walker, L. R. 3 0. D. 211. Blewitt 



CHAP. III. RENTS. 



395 



8. 28, makes no difference in the creation of an annuity in 
this respect (e). But the grant to a person of an annuity 
for a term of years, or ptir autre vie, or until a certain 
event, as the death or marriage of another, without further 
limitation, is not also impliedly limited to the life of the 
annuitant ; and if he die within the term his executors will 
take the continuance of the annuity (/). The grant of an Annuity for 
annuity to children " for their maintenance and educa- ™*^te°®^^- 
tion " is construed as giving them the annuity for their 
lives, and not during minority only ; because " mainte- 
nance would certainly last beyond minority, and education 
would not necessarily end with minority " (g). 

A direction to trustees or executors to purchase an Trust to pur- 
annuity for a person is presumptively construed as an a^nuiy. 
annuity for life only ; but if the trust be to apply certain 
property, or the proceeds of the sale of property, in the 
purchase of an annuity of a certain amoimt for a person, 
it is presumptively a perpetual annuity (A). A direction 
merely to appropriate sufficient property to answer an 
annuity is not sufficient to extend it beyond the life of the 
annuitant (i) ; nor is a charge of the annuity upon pro- 
perty generally, for the property may be equally susceptible 
of a charge of an annuity for life or in fee, and there is no 
presumption that the . duration of an annuity should cor- 
respond with the limits of the estate charged (J ). — ^A gift Gift of annual 
of the annual income of property, or of a certain amount 
of the income is an absolute gift of the property out of 
which it issues, in perpetuity (k). 



T. Sobertit Cr. & Ph. 274 ; TaUsY. 
Jf addon, 3 Mac. & Q. 632. See 
Manaergh v. Campbell, 3 D. & J. 
237 ; 28 L. J. C. 61. 

(e) Nieholh y. HawJces, 1 Hare, 
342 ; 22 L. J. C. 256. 

(/) Savery v. Dyer, Ambl. 139 ; 
Be Ordj L. R. 12 C. D. 22. 

(g) mikifu V. JodreU, L. R.' 13 
0. D. 664 ; 49 L. J. 0. 26. 

(A) Kerr v. Middlesex Moepiial, 2 
D. M. & a. 676. 



(0 Kindersley, V.-C, Bignold v. 
GiUsy 4 Drew. 343 ; 28 L. J. C. 
368 ; Re Grove's Trusts, 1 Giff . 74 ; 
28 L. J. C. 636 ; Re Taber, 61 L. 
J. 0. 721. 

(j) misan V. Maddison, 2 Y. & 
0. 0. 372. See Mansergh v. Camp' 
bell, 3 D. & J. 237 ; 28 L. J. C. 61. 

(k) Stokes Y.'Heron, 12 CI. & F, 
161 ; Blewitt v. Roberts, Cr. & Ph. 
280 ; Fawson v. Fawson, 19 Bear. 
146 ; 23 L. J. G. 964. 



396 



USES AND PROFITS IN LAND OF ANOTHER. 



Charge of Annuities given by will are in general treated as 

a^dnwiia- legacies, of the value of the annuity estimated at the 
tionof aaaets. testator's death (/). So, under a direction in a will to buy 
an annuity for a person, whether for life or in perpetuity, 
the annuitant is entitled to have the money value instead 
of the annuity, which he would himself be able to sell and 
convert into money (w). And if the annuitant die before 
the annuity is bought, his personal representative becomes 
entitled to the value (n). Hence in* the administration of 
assets the personal estate is primarily liable to pay 
annuities, in the absence of intention appearing in the 
will to the contrary ; and a mere charge of the annuity 
upon the real estate is not sufficient to show a contrary 
intention (o). But an annuity may be charged upon 
certain land primarily, by way of what is called a demofi- 
strative legacy, with recourse to the personal estate only in 
case of deficiency of the land specifically charged there- 
with {p) \ or it may be charged exclusively upon land, 
as in the form of a rent charge upon specific land, with 
powers of distress and entry {q) ; or it may be charged 
proportionately upon both the real and personal estate, 
which is impliedly the case where they are constituted a 
Priority. mixed fund for payment of charges (r). — ^An annuity has 
no priority over other legacies merely because it is charged 
upon land, or secured by powers of distress and entry. An 
annuity bequeathed in bar of dower was held to have 
priority, if there were in fact any dowable lands dis- 
charged by it ; but not otherwise («). 



(5 Ward V. Grey, 26 Beav. 491 ; 
29 L. J. C. 74 ; Malins, V.-C, Roper 
V. Ropery L. R. 3 C. D. 720. 

(m) Stoka v. Cheeky 28 Beav. 620 ; 
29 L. J. C. 922 ; Be Broume's Will, 
27 Bear. 324. 

(») Day V. Day, 1 Drew. 669 ; 22 
Ij. J. C 878. 

(o) Bough ton v. Boughion, 1 H. 
L. C. 406 ; Yonge v. Furte^ 20 Beav. 
380 ; 24 L. J. C. 643 ; Be MuffeH, 
Weekly Notes, 1888, p. 185. 



(p) Mann v. Copland, 2 Hadd. 
223 ; Viekers v. Pound, 6 H. L. C. 
885 ; 28 L. J. G. 16 ; Paget v. RuUh, 
1 H. & M. 663 ; 32 L. J. C. 468. 

(q) Pooh V. Heron, 42 L. J. C. 348 ; 
PaUhing v. Bameit, 61 L. J, C. 
74. 

(r) Allan v. Gott, L. R. 7 Ch. 
439; 41L. J. 0. 671. 

(») Boper V. Boper, L. R. 3 C. D. 
714. 



CHAP. III. RENTS. 397 

By the Act for the better protection of purchasers, 18 Eegistration 
Vict. c. 15, s. 12 (substituted for the statutes 17 Geo. III. ^1 re^'^ 
0. 26, and 63 Geo. III. c. 141, which provided for the oliarge. 
registration of annuities and rent charges), it is enacted 
that : — " Any annuity or rent charge granted after the 
passing of this Act, otherwise than by marriage settlement, 
for one or more life or lives, or for any term of years or 
greater estate determinable on one or more life or lives, 
shall not affect any lands, tenements or hereditaments, as 
to purchasers, mortgagees or creditors," imless and until 
a memorandum of the same shall be registered to the 
effect and in the manner provided in the Act. Sect. 14 
provides that the Act shall not extend to require the 
registry of annuities or rent charges given by will. — The 
enactment does not obviate the effect of notice; and a 
grant of an annuity or rent charge, not registered, is not 
therefore void against a purchaser or mortgagee who takes 
the land with notice of the charge, but the annuitant 
retains his priority (t). An agreement to grant an 
annuity is not within the statute, and may be specifically 
enforced against the grantor or his representatives, as 
against creditors, without registration (w) ; and a bond 
securing payments of interest upon a principal debt is not 
within the statute {v). 

(rt Oreaces v. Tojleid, L. R. 14 (i;) Best, J., Winter v. Mouseley, 

0. D. 563 ; L. B. 60 G. 118. 2 B. & Aid. 806. 

(ti) meldY, SmUh, UVes. 491. 



398 



rSES AND PROFITS IN LAND OF ANOTHER. 



Tiiherent 
charge. 



Valuation of 
tithe. 



§ 3. Tithe Bent charge. 

Tithe rent charge — Commutation Act. 

Valuation and apportionment of tithe. 

Com average — valuation of rent charge. 

Discharge of tithe and suhetitution of rent charge. 

Remedy hj distress — by writ of possession — no remedy by sale. 

Extraordinary tithe — Redemption Act. 

Tithe rent charge as freehold estate — ^tithe rent charge upon copyhold. 

Merger of tithe rent charge. 

Grant or lease of land subject to rent charge— liability of tenant to 

pay rent chargfe — contribution from co-owners of land charged. 
Assessment of tithe rent charge for rates and taxes. 

By the "Act for the Cominutation of Tithes in 
England and Wales," 1836, 6 & 7 WiU. IV. e, 71, a 
special kind of rent charge was created, in commutation of 
the ancient prescriptive charge of tithe upon the produce 
of land. The Act abolished tithe, and substituted a rent 
charge based upon statutory authority and subject to 
statutory rules; thereby superseding the earlier law of 
tithe, which, therefore, has no longer any practical interest. 
The following are the principal results and provisions of 
the Commutation Act {a). 

Under sect. 37, the clear average value of the tithes of 
every parish, according to the average of seven years 



(a) A BiU is now before Parlia- 
ment, entitled "The Tithe Rent 
Charge Recovery and Variation 
BUI,'* which, if passed into an Act, 
will make material alterations in 
the law relating to the tithe rent 
charge, as stated above. The 
chief proposed alterations are, the 
abolition of distress for the re- 
covery of tithe rent charge; and 
the substitution of proceedings in 
the County Court, involving an 
inquiry into the net profits of the 
land to the owner, to the amount 
of which the rent charge is to be 
restricted; upon which proceedings 



the judge may make an order for 
payment, to be enforced by a 
receiver, but not personally against 
the owner or occupier, nor by sale 
of the land. An alternative remedy 
is by injunction to the occupier to 
pay the rent charge due, and not 
to pay any rent to the landlord 
until the rent charge has been 
paid to the tithe owner. The Bill 
further proposes to assess the rent 
charge in future upon a triennial 
average of prices, instead of the 
septennial average provided by the 
Tithe Commutation Act. 



CHAP. 111. RENTS. 399 

preceding^ was awarded ^^as the sum %o be taken for 
calculating the rent charge to be paid as a permanent 
commutation of the said tithes." Under sects. 60 — 55, the Apportion- 
total amount awarded for every parish was apportioned 
among the lands of the parish, having regard to their 
average titheable produce and productive quality, and a 
draft apportionment was made stating " the name or 
description and the quantity of the several lands; the 
names and description of the several proprietors and 
occupiers thereof ; and the amount charged upon the 
said several lands, and to whom and in what right the 
same shall be respectively payable." 

Sect. 56 provided that immediately after the passing of Com average, 
the Act, and in the month of January in every year an 
advertisement should be inserted in the London Gazette, 
" stating what has been during seven years then next 
preceding the average price of an imperial bushel of 
British wheat, barley, and oats, computed from the weekly 
averages of the com returns." And sect. 57, " that Valuation of 
every rent charge charged upon any lands by any ap- '^^ charge, 
portionment shall be deemed to be of the value of such 
number of imperial bushels of wheat, barley, and oats, as 
the same would have purchased at the prices so ascer- 
tained by the advertisement published immediately after 
the passing of this Act, in case one third part of such 
rent charge had been invested in the purchase of wheat, 
one third part in the purchase of barley, and the 
remaining third part thereof in the purchase of oats ; and 
the respective quantities of wheat, barley, and oats, so 
ascertained shall be stated in the draft of every ap- 
portionment " (6).— By the "Com Eetums Act, 1882," 
45 & 46 Vict. c. 37, s. 9, the Board of Trade is required 
to cause to be published in the London Gazette the weekly, 

(b) In the foIlo-wing year, 1837, the proTisions of the said Act, are 

it was declared by statute, 1 Vict. 7«. O^d. for a bashel of wheat, 

c. 69, B. 7, '* that the prices at which 3«. ll^d, for a bushel of barley, 

the conversion from money into and 2s. dd, for a bushel of oats." 
com is to be made, according to 



400 



US£S AND PROFITS IN LAN13 OF ANOTHER. 



Biflcharge of 
tithe. 



Sabstitation 
of reot 
oharge. 



Bemodyby 
distrefls. 



Writ of 
possession. 



quarterly, annual and septennial average prices of com ; 
and to state the annual and septennial average for the 
imperial bushel; and by s. 10, the statement of the 
septennial average price so published is substituted for 
the advertisement referred to in s. 56 of the above statute 
of Will. IV. ; which section is also repealed. 

Sect. 67 enacted that the land " shall be absolutely dis- 
charged from the payment of all tithes " ; — " and instead 
thereof there shall be payable thenceforth to the person 
mentioned in the said apportionment a sum of money 
equal in value, according to the prices ascertained by the 
then next preceding advertisement, to the quantity of 
wheat, barley, and oats respectively mentioned therein, in 
the nature of a rent charge issuing out of the lands charged 
therewith ; and such yearly sum shall be payable by two 
equal half-yearly payments; and the sum of money 
thenceforth payable in respect of such rent charge shall 
vary so as always to consist of the price of the same 
number of bushels of wheat, barley, and oats respectively, 
according to the prices ascertained by the then next pre- 
ceding advertisement : provided that nothing herein con- 
tained shall be taken to render any person whomsoever 
personally liable to the payment of any such rent charge." 

By sect. 81, '^ In case the said rent charge shall be in 
arrear and unpaid for the space of twenty-one days, it 
shall be lawful for the person entitled, after having given 
or left ten days' notice in writing at the residence of the 
tenant in possession,, to distrain upon the lands liable to 
the payment thereof for all arrears of the said rent chai^, 
and to dispose of the distress and otherwise act in relation 
thereto as any landlord may for arrears of rent : provided 
that not more than two years' arrears shaU at any time be 
recoverable by distress " (c). 

By sect. 82, ^^ In case the said rent charge shall be in 



{e) The owner of the rent charge 
is entitled to 2s. 6d. for each notice 
to distrain ; and may send notice by 



post in a reg^tered letter. 23 ft 24 
Vict. c. 93, ss. 29, 30. 



CHAP. III. RENTS. 401 

arrear and unpaid for the space of forty days, and there 
shall be no sufficient distress on the premises liable to the 
payment thereof," — " the owner of the rent charge may 
sue out a writ of habere facias possessianem^ directed to the 
sheriff, conmianding him to cause the owner of the rent 
charge to have possession of the lands chargeable there- 
with, until the arrears of rent charge, and costs of the writ 
and execution, and of cultivating and keeping possession 
of the lands, shall be fully satisfied : provided always that 
not more than two years' arrears over and above the time 
of such possession shall be at any time recoverable." And 
by a later Act power is given to the owner of the rent 
charge, having taken possession imder such writ, " to let 
the land for any period not exceeding one year in posses- 
sion at such rent as can be reasonably obtained for the 
game" (c). — By sect. 85, the powers of distress and entry 
given by the Act are made to extend to every part of the 
land situate in the parish occupied by the same person as 
is the occupier of the lands on which such rent charge is in 
arrear, whether occupied by him as the owner or as tenant 
holding imder the same landlord. 

The rent charge being the creation of the Act has no other No remedy by 
remedies than those given by the Act. There is no jurisdic- ^^' 
tion in equity to make it a charge upon the inheritance of 
the land, or to extend the charge beyond the terms of the Act. 
Consequently in the event of the statutory remedies failing 
by reason of there being nothing upon the land to distrain, 
and the land being unproductive for occupation, the owner 
of the rent charge cannot claim to have the land sold for 
satisfaction of arrears (d). This is in accordance with the 
nature of the original tithe which was taken from the pro- 
duce of the land only, and was no charge upon the land 
itself. So before the conmiutation fliere was no personal 
liability in respect of the tithe ; as now there is no personal 
liability for payment of the rent charge (<?). 

(c) 6 & 6 Vict. 0. 54, s. 12. {e) Sect. 67, ante, p. 400 ; Cock- 

td) Bailey V. Badham, L. B. 30 bum, J., Bedford v. Sutton Cold- 
O. X). 84 ; 64 L. J. C. 1067. Jield, 3 C. B. N. S. 476. 

I.. D U 



402 



USES AND PBOFTTS IS LAXD OF ANOTHER. 



Extraofdi- 
naxj tithe. 



Bedemption 
Act. 



Tithe lent 
charge as 
freehold 
estate. 



In the case of land cnltivated as hop gionnds, orchards, 
fmit, plantations and market gardens, it was farther pro- 
Tided that the amount of rent charge apportioned shall be 
distinguished into two parts, whidi shall be called the 
ordinary chaise and the extraordinary charge, and the 
extraordinary charge shall be a rate per imperial acre; and 
all lands which shall cease to be so caltiyated shall be 
charged only with the ordinary charge upon such landiB, 
and all lands which shall be newly so cultivated shall be 
charged with an additional amount of rent charge per 
imperial acre equal to the extraordinary charge {/). 

By the Extraordinary Tithe Redemption Act, 1886, 
49 & 50 Vict. c. 54, s. 1, "No extraordinary charge shall 
be levied on any hop ground, orchard, fruit, plantation or 
market garden, newly cultivated as such after the passing 
of this Act." And by sects. 2, 3, 4, it is enacted that the 
capital value of the extraordinary charge payable at the 
date of the Act shall be estimated ; and that the land shall 
be charged with a rent charge of four per cent, on sach 
capital value in lieu of the extraordinary charge, and 
which shall be recoverable in the same way as rent charge 
in lieu of ordinary tithe. Sect. 5 provides for redemption 
of the extraordinary charge, or of the substituted rent 
charge, by payment of the amount of the capital value. 

The Commutation Act, s. 71, declares that " every estate 
for life or other greater estate in any such rent charge 
shall be taken to be an estate of freehold ; and every estate 
in any such rent charge shall be subject to the same lia- 
bilities and incidents as the hke estate in the tithes 
commuted for such rent charge." Accordingly the statu- 
tory rent charge is an hereditament descendible and devis- 
able in the same manner as freehold land. It is real assets 
in the hands of the heir or devisee of a deceased owner. 
It may be limited upon conveyance or by will for the 
same estates and by the same terms as freehold land. 

(/) 6 & 7 WiU. 4, c. 71, 8. 42 ; 2 & 3 'V^ct. o. 62, ss. 26—33. 



CHAP. III. RENTS. 403 

But being an incorporeal hereditament it cannot be con- 
Teyed without deed. It is within the Act for the Abolition 
of Fines and Eecoveries, 3 & 4 "Will. IV. o. 74, which 
expressly includes tithes, and it may be disentailed by a 
deed under that Act. — The tithe rent charge upon land of Tithe rent 
copyhold or other customary tenure is not affected by ^^foi^^'^ 
manorial customs, because the tithe for which it was 
substituted, as a lay hereditament, must have originated 
within legal memory, having previously belonged to 
ecclesiastical corporations to T^ch descents and other 
customary rules did not apply. Accordingly it is not 
affected by the special rules of gavelkind or borough 
English tenure {g). 

The tithe rent charge retains a special quality of the Merger of 
original tithe in being an hereditament distinct from the charge!^* 
land ; so that it is not, like an ordinary rent charge, merged 
and extinguished in the ownership of the land where they 
vest in the same person ; as it was said of tithes " no unity 
of possession can either extinguish or suspend them " (A). 
By the Commutation Act, s. 71, it is expressly declared 
that " no such rent charge shall merge or be extinguished 
in any estate of which the person entitled to such rent 
charge may be seised or possessed in the lands on which 
the same shall be charged." But provision is made by 
the same section for tenant in fee simple or in fee tail 
merging and extinguishing the tithe rent charge by a 
declaratory deed. And further provision is made for 
facilitating merger by 1 & 2 Vict. c. 64, and by 9 & 10 
Vict. c. 73, ss. 18, 19. — Provision is made for redeeming Redemption, 
the rent charge by 9 «& 10 Vict. c. 73, ss. 1, 2 ; 23 & 24 
Vict. c. 93, s. 31 ; and by 41 & 42 Vict. c. 42. 

Where the owner of land and of the tithes of the same Grant or lease 
land granted and conveyed the land, " together with all f^^^^l^ 
profits, hereditaments and appurtenances to the premises 

iff) Doe T. Bishop of Zlandaf, 2 (A) 11 Co. 13 b, PnddUU Case. 

B. &P. N. R. 491. 

bd2 



404 USES AND PROFITS IN LAND OF ANOTHER. 

belonging or appertaining," it was held that the tithe did 
not pass by the conveyance, because it was a distinct 
hereditament which did not belong or appertain to the 
land (t). For the same reason a lease made by the clerical 
incumbent of a rectory, of glebe land, rendering a certain 
rent in discharge of all demands, but not mentioning the 
tithe, was held not to give possession of the land tithe 
free {J). And a demise of land and tithe by an instru- 
ment not under seal was held ineffectual to pass the tithe, 
as being a distinct incorporeal hereditament which could 
only be conveyed by deed; and consequently an entire 
rent reserved, being partly for the land and partly for the 
tithes, could not be distrained for upon the land, nTil€»» 
separately apportioned (k). 
Liability of But the Commutation Act, s. 80, has now provided that 

^tdhaxgeJ " oveiy tenant or occupier who shall occupy any lands by 
any lease or agreement subsequent to such commutation, 
and who shall pay any such rent charge, shall be entitled 
to deduct the amount thereof from the rent payable by hiTn 
to his landlord and shall be allowed the same in account 
with the said landlord." Therefore a lease or agreement 
for a lease of land, made since the Act and whether by deed 
or not, is presumptively free of the rent charge; and 
though expressed to be " tithe free " in the terms of the 
lease or agreement, such words are mere surplusage, and 
the whole rent is appropriated to the land {I). — The tenant 
or occupier may, however, renounce his presumptive rig^ht 
to deduct payment of the rent charge from the rent, and 
BO make himself liable for the payment as between him- 
self and his landlord (m). But there is no personal lia- 
bility of the occupier or of the landlord to pay the tithe 
owner, whose only remedies are those given by the statute 
by distress or occupation of the land (n). Hence if goods 

(i) Chapman t. Gatcombe, 2 Bing. (/) Meggitony. B<Hves, 7 Ebc. 68o ; 

N. G. 516 ; Bee Fhillipa y. Janes, 3 21 Ij. J. Ex. 284. 

B. & P. 362. (m) Pariah t. SUeman, 1 D. F. &; 

{j) Farkint v. Sinde, Cro. Eliz. J. 326 ; 29 L. J. C. 96 ; Jeffrey v. 

161. NeaUy L. R. 6 C. P. 240 ; 40 L.. J. 

(k) Gardiner t. TFiUiamson, 2 B. C. P. 191. 

& Ad. 836. («) 6 & 7 WiU. 4, c. 71, s. 67 ; 



CHAP. III. RENTS. 405 

of an outgoing tenant after the expiration of his term, or 
goods of a third party, being upon the land, axe distrained 
for the rent charge, which he is thus compelled to pay, 
he has no claim against the landlord or occupier to recover 
the money as paid to their use, because they are not 
discharged from any liability by the payment (o). — By Tenant leav- 
14 & 15 Vict. c. 25, s. 4, " If any occupying tenant of charge un- 
land shall quit, leaving unpaid any tithe rent charge P"^* 
-which he was by the terms of his tenancy legally or equit- 
ably liable to pay, and the tithe owner shall give notice of 
proceeding by distress for recovery thereof, it shall be 
lawful for the landlord or the succeeding tenant or occu- 
pier to pay such tithe rent charge, and to recover the 
amount against such first named tenant or occupier in the 
same manner as if it were a debt by simple contract." 

A right of contribution is given by statute between (Contribution 
co-owners of land subject to the same rent charge. By o^^|^" 
5 & 6 Vict. c. 54, s. 16, " In case any land charged with 
one amount of rent charge shall belong to two or more 
landowners in several portions, and the owner of any one 
of such portions or his tenant shall have paid the whole of 
such rent charge or any portion thereof greater than his 
first proportion," he or his tenant may proceed to claim 
contribution from the other landowners ; jurisdiction is 
given to two or more justices of the peace to determine 
the proportion of contribution and to order payment of 
the amount with costs ; and thereupon the claimant may 
take the like proceedings for enforcing payment of the 
amount 'and with the like restriction as to arrears as are 
given to the owner of the rent charge (p). 

By the Commutation Act, s. 69, " Every rent charge Aasessment of 

Tout nTiAy iyft 

payable as aforesaid instead of the tithe shall be subject to for rates and 



taxes. 



antif p. 400. See Willoughby v. (o) Griffinhoofe v. JDaiibtiz^ 5 E. 

WiUmghby, 4 Q. B. 687 ; ChHstie & B. 746 ; 26 L. J. Q. B. 237. 
V. jBarAw, 53 L. J. Q. B. 637. {p) The Quern v. mUianu, 21 

L. J. M. 150. 



406 



USES AND PB0F1T8 IN LAND OF ANOTHER. 



all parliamentarj, paxocliial, and ooontj, and other rates, 
charges, and assessments in like manner as the tithes 
commuted for such rent charge have hitherto heen 
subject." The assessment of the rent charge for income 
tax is made upon the net annual value, deducting rates 
and taxes and the necessary costs of collection (;). 



Beleaseof 
rent to the 
tenant. 



Section II. Extinction and Apportionment of Bents. 

Release of rent— discharge of land from rent. 

Merger of rent in the possession of the land charged — ^poeaessian of 
part of the land— possession for limited estate — possession hj act 
of law. 

Merger of rent service — merger of reyersion to vhibh rent inddent. 

Eviction of tenant by lessor — eviction by title panunoont — eviction of 
grantor of rent charge. 

Apportionment of rent — ^by partition of the rent — by partition of the 
reversion — partition by act of law — partition by tenant. 

Apportionment of conditions — under the Conveyancing Act, 1881. 

Apportionment of rent to time at common law — in equity — apportion- 
ment by terms of limitation. 

Apportionment by statute — ^between lessor and lessee-Tbetween saooes* 
give owners of rent. 

Apportionment Act, 1870 — rent apportioned between real and penonul 
estate— between tenant for life and remainderman — between as- 
signor and assignee j)f lease. 

A release of rent service by the landlord to the tenaat 
of the land operates by way of extinguishment of the 
rent ; ^' for the tenant cannot have service to be taken of 
himseU, nor can one man be both lord and tenant "(a). 
A release of rent charge to the tenant of the land charged 
operates in the same maimer; because ''a man cannot 
have land and a rent issuing out of the same land" (6). 
If a man have a rent charge he may release to the tenant 



(q) Steveru v. Bishopf L. R. 19 
Q. B. D. 442 ; 57 L. J. Q. B. 283. 



(a) Lit. 8. 479 ; Co. Lit. 280 a. 

(b) Lit. 8. 480 ; Co. Lit. 280 «. 



CHAP. UI. BENTS. 407 

of the land more or less, and reserve part (c). And he 
may do the same with rent service (d). 

At common law a release of part of the land from a Diechaxgeof 
rent charge prirnd facie discharged the whole land, and ^f ^"* 
extinguished the rent, because the rent being entire 
and issuing out of every part of the land, could not 
be thrown exclusively upon the rest of the land, nor 
apportioned to the several parts, without the consent 
of the owners of the land. An owner of land, upon 
the release of part from a rent, may make it charge- 
able upon the residue; which amounts to a new grant of a 
rent out of that part of the land (e). — Now by the statute 
22 & 23 Vict. c. 35, s. 10, it is enacted that " the release 
from a rent charge of part of the hereditaments charged 
therewith, shall not extinguish the whole rent charge, but 
shall operate only to bar the right to recover any part of 
the rent charge out of the hereditaments released; without 
prejudice nevertheless to the rights of aU persons interested 
in the hereditaments remaining unreleased and not con- 
curring in or confirming the release." Under this enact- 
ment a release of part of the land with the concurrence of 
the owner or owners of the unreleased part leaves the 
unreleased ^ort prima facie chargeable with the whole rent. 
A release of part of the land without the concurrence of 
the owner or owners of the unreleased part operates 
without prejudice to their rights, and therefore leaves the 
unreleased part chargeable with only a proportionate part 
of the rent ; for the right of the owner of part of land 
chargeable with an entire rent, upon being compelled to 
pay more than his share, is to have contribution from the 
other owners, in proportion to their respective shares (/). 

Bent, whether rent service or rent charge, is merged Mer^r of 
and extinguished by the owner of the rent acquiring pos- J^^ ^' 

land charged. 



{c) Co. lit. 148 a. (/) JBooth v. Smith, 'L.'R. 14 Q. 

(^ Lit. 8. 638. B. D. 

(e) Ck). Lit. 147 b. 



(^ Lit. 8. 638. B. D. 318 ; 54 L. J. Q. B. 1 19. 



408 rSES AND PROFITS IN LAND OF ANOTHER. 

session of the land out of which the rent issues for an 

estate equal to or greater than his estate or interest in the 

Poaaeflsion of rent {g). But if the owner of the rent acquire possesaon 

Smd. of part only of the land, there is a difference in the effects 

upon a rent charge and upon a rent service. " If a man 

hath a rent charge to him and to his heirs issuing out of 

certain land, if he purchase any part of this to him and to 

his heirs all the rent charge is extinct and the annuity 

also ; because the rent charge cannot by such maimer be 

apportioned" (h). "If the grantee of a rent charge 

purchase parcel of the land, and the grantor by his deed, 

reciting the said purchase of part, granteth that he may 

distrain for the same rent in the residue of the land, this 

amounteth to a new grant, and the same rent shall be 

taken for the like rent or the same in quantity" (i). — So, 

if a person grant a rent charge upon certain land, and 

afterwards devises to the grantee of the rent charge a part 

of the land out of which it issues, which the devisee 

accepts, the whole rent charge is thereby extinguished; 

and that without regard to the intention of the testator (y). 

Possefidon — If the owner of the rent acquire possession of the land 

estate. ^^^ <^ estate less than his estate in the rent, the rent is 

suspended only, and not extinguished, and it will revive 

upon the determination of his possession of the land. 

Thus, a rent charge for life is suspended by the grantee 

accepting a lease for years of the land ; and it revives 

upon the determination, forfeiture or surrender of the 

lease [k). And possession of part of the land under such 

circumstances suspends the rent for the whole (/). 

^*^*^^ ^y If part of the land charged comes to the owner of the 

rent by descent, the rent is apportioned according to the 

value of the land, because the land comes to him not of 

his own act, but by course of law. So also if the rent 

(y) FirtMttH T. jLihcardty 2 Ex. 388. 

732. (A) Feto v. PemberUm, Cro. Car. 

(A^ Lit, s, 222 : Co. lit. 147 *. 101. 

(•) Co. Lit, 147 *. (0 Co. Lit. 148 h ; Hodgkim v. 

0) IttttHftt V. /V«, 1 Bing. N. C. Rohton, 2 Lev. 143 ; 1 Vent. 277. 



CHAP. III. RENTS. 409 

comes by descent to the owner of part of the land, the 
rent is apportioned (m). 

"But if a man which hath a rent service purchase Mergrcrof 
parcel of the land out of which the rent is issuing, this "° »ervio©. 
shall not extinguish all, but for the parcel only. For a 
rent service in such case may be apportioned according to 
the value of the land" (n). " As if a man maketh a lease 
for life or years reserving a rent, and the lessee surrender 
part to the lessor, the rent shall be apportioned. So if the 
lessor recovereth part of the land in an action of waste, or 
entereth for a forfeiture in part, the rent shall be appor- 
tioned" (o). If the rent service be such that it cannot be 
apportioned, as the delivery of a horse, hawk, or other 
indivisible chattel, if the lessor purchaseth parcel of the 
land, the entire service is extinguished because it cannot be 
claimed for part only of the land (p). 

Rent service being incident to the reversion of the .Merger of 
demised estate was extinguished at common law by whfXrMit 
merger of the reversion in the inheritance; as where f^ryice 
tenant for term of years demised for a less term at a 
certain rent, leaving in himself the reversion of the ori- 
ginal term, and afterwards acquired the reversion in fee, 
or assigned the reversion of his term to the reversioner in 
fee, the rent service became extinguished with the rever- 
sion to which it was incident (q). But now by 8 & 9 
Yict. 0. 106, s. 9, it is enacted " that when the reversion 
expectant upon a lease of any tenements or heredita- 
ments shall be surrendered or merged, the estate which 
shall for the time being confer as against the tenant under 
the same lease the next vested right to the same tene- 
ments or hereditaments shall, to the extent and for the 
purpose of preserving such incidents to and obligations on 



i; 



(m) Lit. B. 224 ; Co. Lit. 149 b, 8 Co. 104 b, Talbot's Com. 

\n) Lit 8. 222. (q) Webb v. Rtuaelly 3 T. R. 393 ; 

o) Co. Lit. 148 a. Thorn v. TTookombe, 3 B. & Ad. 

{p) Lit. 8. 222 ; and see Lifc. 586. 
8. 814 ; 6 Co. 1 ^, Brutrton's Case; 



410 



USES AND PROFITS IN LAND OF ANOTHER. 



the same reversion as, but for the surrender or rnerg^ 
thereof, would have subsisted, be deemed the reveraon 
expectant on the same lease." 



Eviotion of 
tenant by 
lessor. 



Eviction by 
title para- 
mount. 



If the lessor wrongfully enter upon the land demised 
and evict the lessee, the rent service is suspended so long 
as the eviction continues. And " if the lessor enter upon 
the lessee for life or years into part, and thereof disseise 
or put out the lessee, the rent is suspended in the whole, 
and shall not be apportioned for any part" {q). But 
when the lessor enters lawfully into part, as upon a 
surrender or forfeiture or the like, the rent is appor- 
tioned (/•). A mere trespass or a wrongful entry, without 
an eviction and expulsion of the lessee, is no answer to a 
claim for the full rent (s). The obstruction of an ease- 
ment appurtenant to the demised premises is not such an 
eviction from any part of the premises as will operate a 
suspension of the rent or of any part of it (t). 

In the case of eviction by title paramount to the lease 
the rent service is apportionable according to the value of 
the land, and the lessor may distrain for an apportioned 
part ; and the covenants of the lease are correspondingly 
apportionable (m). As, "if a man be seised of two acres of 
land, of one in fee simple and of another in tail, and make 
a lease for life or for years of both acres, reserving a rent ; 
the donor or lessor dieth ; the issue in tail avoideth the 
gift or lease ; the rent shall be apportioned " (r). So, if a 
man lease land of which he is seised in fee, together with 
land which he has a power of leasing, at one entire rent, 
and the power is not well executed, upon the lessee bemg 



{ii) Co. Lit. 148 *. 

(r) Co. Lit. 148 6. See Baynton 
T. Mot^nH, L. R. 21 Q. B. D. 101. 

\^»\ jittmt V. Cope, 1 Cowp. 242 ; 1 
Wma. Saund. 204 (2), Salmom t. 

\^t\ }miiam4 T. Ha¥ttard^ 28 L. J. 
g. B. 374. 



(ti) 3 Co. 22 by JTalker's Que; 
Smith T. Maling$y Cro. Jao. 160; 
Sttventon y. Lamhard, 2 East, 575 ; 
Mayor of Swansea t. Thomat, L. B. 
10 Q. B. D. 48 ; 52 L. J. Q. B. 
340. 

(v) Co. Lit. 148 d. 



CHAP. III. RENTS* 411 

ejected from the latter, the rent is apportionable (w). A 
defect of title is immaterial to the claim for rent, unless 
and until the lessee is actually evicted and expelled from 
possession under it (x). But if there be a charge or 
incumbrance upon the land, as a ground rent, rent charge 
or mortgage, which the lessee is compelled to pay to the 
benefit of the lessor, he may treat the payment as pay- 
ment of so much rent to the lessor (y). If there be both 
adverse title and possession of part of the land at the time 
of the lease, so that the lessee cannot enter upon that part, 
the lease, as to that part, is wholly void, and the reserva- 
tion of rent is not apportionable (2). But if the lessee 
enters upon and possesses the rest of the demised land, he 
may be liable to pay the value of the use and occupa- 
tion of the part possessed {a). 

A rent charge granted out of land is not apportioned by Eviction of 
eviction of the grantor from part of the land; "for against ^11? charge, 
his own grant he shall not take advantage of the weakness 
of his own estate in paxt.'' So, " if a man grant a rent 
charge out of two acres, and after the grantee recovereth 
one of the acres against the grantor by a title paramount, 
the whole rent shall issue out of the other acre" (6). And 
** if the land out of which the rent charge is granted be 
recovered by an older title and thereby the rent charge is 
avoided, yet the grantee shall have a writ of annuity " (c). 

Apportionment or partition of rent may be effected by Apportion- 
partition of the entire amount ; or by partition of the time ™®^* ^* '®^** 
during which it is accruing due. As to the amount, 
" there are two modes of apportioning rent, one by grant- 
ing the reversion of part of the land out of which the rent 

(w) Doe v. MeyUr, 2 M. & S. (s) Keale t. MacJccnziOy 1 M. & 

276. "W. 747; Gardiner v. JFillianuon, 

(z) BoodU T. Campbell, 7 M. & G. 2 B. & Ad. 336. 

386. (a) Tomlinson t. Day^ 2 B. & B. 



{v) lb. ; Johnson v. Jones, 9 A. 680 ; 6 Moore, C. P. 558. 
E. 809. (b) Go. Lit. 148 b. 

{e) Ck>. Lit. 148 a ; ante, p. 392. 



stem. 



412 VSES ASTD riOFTTS IH LAKD OF A370THE1L 

i^ues: tLe other hv gnntiBg part of the rent to one person 
and part to ancohcr " (<*). 

Br puthSoa Rent, irhether rent serrice ot rent diarge, may be divided 
in amount^ and assi^ed in several parts, by deed or will, 
whilst the reveracn and the tenement charged remain 
entire ; and the as>i^ee of a part of the rent may sue 
or distrain for the amount of his part separately. The 
attornment or cc^nsent of the tenant of the land to such 
partition of the rent is not neoeesary ; for though he may 
thereby be subjected to several actions or distresses, it 
would be only by reason of his own default in not paying 
the rent </». 

Bj-partitioa Bent service is apportioned by law upon a partition 
e perer- ^£ ^j^^ reversion to which the rent is incident. If the par- 
tition is made in undivided shares, the rent is apportioned 
in amoimt according to the number of shares ; and each 
partitioner may distrain in his own right upon aU the 
demised premises, but only for the amount of his own 
share (/•). If the partition is made by granting the rever- 
sions of several parts of the demised premises separately, 
the rent is apportioned according to the Talue of the 
several parts; and each reversioner may distrain upon 
his own part only for the rent apportioned to that part. 
In such case the tenant is not bound by an apportionment 
without his consent, and if he disputes the amount claimed, 
it must be settled in the legal proceedings taken by the 
several reversioners for their respective shares of the 
rent (/). Accordingly, " if a man make a lease for yeara 
reserving a rent, if he grant away part of the reversion, 
the rent shall be apportioned by the common law, and 
albeit the grantee of part demand or claim more in his 

(e) Abbott, G. J., Bliu t. CoUina, (^) Philpott t. JDohimon, 6 Bing. 

5 B. & Aid. 882. 104. 

(d) Ardt V. Watkin, Cro. Eliz. (/) BUtB v. Cfc/Ziiw, 5 B. & Aid. 

637, 661 ; CoUntme v. Wright, 2 876 ; RoberU v. SiuU^ 1 M. & G. 

Lev. 239 ; Rivia t. Watson^ 6 M. & 677. 
W. 255. 



CHAP. III. KENTS. 413 

action of debt or avowry than is due, yet shall he recover 
so much as the jury shall find upon a just apportionment 
to be due" (g). So, " If a man makes a lease of three acres 
each of equal yearly value, rendering 3«. rent, and the 
lessor grants the reversion of one acre, and the tenant 
attorns, the grantee shall have 12rf. rent, for although it 
was one lease, one reversion, and one rent, yet that was 
incident to the reversion which was severable, and the 
rent shall wait upon the reversion and upon every part 
of it" (A). The lessor who grants away the reversion in 
part of the demised premises remains entitled to the 
value apportioned to the reversion of the part retained; 
and he may recover that amount upon the covenant by 
the lessee to pay the rent reserved (t). And the grantee 
of the reversion in part may also recover upon the cove- 
nant the amount of rent apportioned to his part {J), A 
lease may in terms reserve several rents for several parts 
of the demised premises, which are then distinct rents, 
charged only upon the several parts respectively, and 
incident respectively to the reversions of the several parts ; 
but where a lease expressly reserved an entire rent, and 
afterwards apportioned that rent to several parts, it was 
construed as charging the rent upon the whole, with a 
mere declaration of the values of the several parts which 
made up the whole rent {k). 

A partition of the reversion in parts of the land may be Partition by 
caused by act of law. "Where lands of different tenures, *°* ° 
as freehold and leasehold, or freehold and copyhold, are 
demised together at an entire rent, and upon the death of 
the lessor they pass by descent to different persons, the 
rent is apportioned to each according to the value of the 
lands; and the covenants and conditions are also ap- 

(^) 2 Go. Inst. 604. See Steer Stcansea v. ThomtUy L. R. 10 Q. B. 

▼. Moyle, Cro. Eliz. 771 ; West r. D. 48 ; 62 L. J. Q. B. 340. 

ZasMelU, Cro. Eliz. 861 ; Collint v. (f) Twynam t. JPickard, 2 B. & 

Harding, 13 Go. 67. Aid. 106. 

(A) 8 Co. 79 ft, Wild's Case, {k) Knight's Case, 6 Co. 64 b ; 

(i) Co, Lit. 148 a; Mai/or of Winter's Case, Dyer, 30Sb, 



414 T*ii*^ ax:> nxiWTXs is lasd of axothek. 



p'r:j-ii#r-i t: tit* r^^ezCT* liZfis ' . Sx nfon a jrant 
jrti** "tj t-TiAz.^ iz. j:r:^f n an*! 'ieath of one, the le- 
T-r^ c 2* L— jir*L HL'i ti* r^nt is a^rord-i-c^i iriih the 

Si2iiluiT. where a bo^Qse and 



'1 ?«?^ 



rT^i'.IL « . 



fim-T-zr* v-rrr l-t ii iz. entire r^riit, the interest in the 
'z.- "^^ lzjL 'Li*r ' * - r r- " ' , ru . c*=*:*'niii^ sevei>Bd, it was hdd 
tLtC tl^ rv-* vii arT« r£' ci'.le i>?rareea the serefal 



< _y * . 



•ao: 



'•*unra re 



?ir"miii ly I--:i" is z* c iTTtrticaTtle cy anj act or di^osdon of 
ZL^ ir^.A-z il c*^. Trhi iH th-^ ozn-.GiPeiioe or consent of 
tl^ -¥-i.-rr f tl-r rriii : xTL'i ihr-irh the tenant aliens part 
:f tl»^ lizii. tl»* r^»r.-E*iir* t:r the entire lent remain 
zz.^-/:^i : - Az. eii^Tti a was niade Lt the Statute 
V' ' £'*.' ''"•'. ^"^ E»iw. L e. 1- Before the statute, 
1-1 z. Lz ili-ri-iririi ct rsirt •:! a tenement held in fee, the 
L -ri r_irlt -iLytriin nr*:-!! the Luid aliened or npon the 
liz 1 Tr-i^^rr-:*! f :r the wh-:le of his siarricess as if the whole 
trc-r— -^zt rvzLiin-rii ill the p:«sse»ion of his tenant. But 
th* 5CJ.n:e, ^iz-^r d^: luring that ''it shall he lawful to 
r-Trrj fr^E^ziia to sell at his own pleasure his lands and 
t-nTZi-nt* r tcrt ■:£ th-rm." f r«3Tid»f^l that "" if he sell any 
TJirt . I sn h lin is or tenements to anv, the feoffee shall 
inn-Li'-t-'y h li it of the chief lord, and shall he 
f rthirl-h Ji::rg^ with the service, for so much as ought 
t-: T^rrtcin t-: thr same ohirrf loid for that parcel according 
t> the qz.inti:y :f the land or tenement sold; and the 
5;ime Tsirt cf the service shall cea^e to he taken hy the 
iliri ::ri ty the han-ls of the feoffor" (7). Services 
whi.h ar>? entire and indivisible, as the deliveiy of a horse, 
cr a hawi, .:r the like, are not apportionahle nnder the 
star^te, hnt ea.h fec'ffee holds hy the entire of such 
servi:e5 to W rendered in full as at common law (r). 

~ Cvx lit* -15 «; Hn:'^ t. y Bro^m r, Sore, Cro. Elix. 

^ -^ 1 Aad- «: : *^ m-. L-zwt t. 63.3 : 3 Co. 24 «, WaOter't Out; 

M •» > Ctvv F-' 77-2, Ckrxstit r. Bmrker^ 53 Ii. J. Q. B. 

f. //r- T, J.^, 1* C. R 60; 537. 

21 L. J, C. P. 124. .q] 2 iMt 603; per eur. SoOo- 

S*:w»jm T. MsT:lrM^ S IL k «r».v T. Berkelof, 6 B. & O. 10. 



V. 5'-7. y Brucrioii't due, 6 Co. 1; T*/- 

hf-i'B Cusf, S Co. 104 6 ; anUj p. 409. 



CHAP. in. REirrs. 415 

Conditions of re-entry for non-payment of rent and Apportion- 
other conditions annexed to estates, were considered at ^^^ons 
common law as entire and indivisible, and not apportion- 
able by any act of the lessor to several parts of the rent or 
to several parts of the demised premises ; so that neither a 
grantee of the reversion in part, nor the lessor reserving 
the reversion in part, could take advantage of the condition. 
" As if the lease be of three acres, reserving a rent, upon 
condition, and the reversion is granted of two acres, the 
rent shall be apportioned by the act of the parties, but the 
condition is destroyed ; for that it is entire and against 
common right." But by act of law a condition may be 
apportioned ; as if a lease is made of two acres of different 
tenure, which upon the death of the lessor pass by descent 
to different persons, each of them may enter for the con- 
dition broken («). 

The law in this respect was altered by 22 & 23 Vict. Under the 
c. 35, s. 3, which made conditions of re-entry for non-pay- ^"^^j^'^^" 
ment of rent apportionable with the rent and the reversion. 
And now it is provided more generally by " The Convey- 
ancing and Law of Property Act, 1881," 44 & 45 Vict. 
c. 41, s. 12 (1), " notwithstanding the severance by con- 
veyance, surrender, or otherwise, of the reversionary estate 
in any land comprised in a lease, and notwithstanding the 
avoidance or cesser in any other manner of the term granted 
by a lease as to part only of the land comprised therein, 
every condition or right of re-entry, and every other con- 
dition contained in the lease, shall be apportioned and shall 
remain annexed to the severed parts of the reversionary 
estate as severed, and shall be in force with respect to the 
term whereon each severed part is reversionary, in like 
manner as 'if the land comprised in each severed part, or 
the land as to which the term remains subsisting, as the 
case may be, had alone originally been comprised in the 
lease." — (2.) "This section applies only to leases made 
after the commencement of this Act." 

(«) Co. Lit. 215 a ; 5 Co. 55 b, Knighi's Case, See anUy p. 413. 



X. 1 ""— 3^ ■■ '1 T^fcT lJ ' * ^L ■ ■, ~ ^ -^ •tar 



■ •• a J ■ ^ _ fc 



j *^— -* • • ^ .-^ -• r IT-**—. tJSr.-i^r^ u — rr j»rrar. O^*^ ^— . j-r 

.^-^ .iiz^-r '•-r r» "iirr z-ltZ l Ziii^-^r ti*? viimt f '•r life 

TU^Z'-rr f Zlf- ^-IT- :♦- aia^ Zi' r-rHr WT;? lie till tll«? feSfit 



iT^#r^«iii- ji.'.'zrT' f _j wt*! tli»? nl»? :f Li^r. aii'i ini'i«rr tne saune 

^ . .^ iir izLS^iZ.'*^ i^- "T— 1 zj- '.l— ! i^iin^t me tenant for an 

I--, rr czi-^cr f r'rnr * . 1 1^ if the tenant in fact con- 

tiiLir-i zi :«"r:Ji"i c ift-rr tij* le-j-il •ietrrmination of the 

t'!i:iz.' "T ir.'i Tfii'i 1 5JIZ1 f ZLvz-rx IS oii'l foF rent, th«>ugh 

r. c sCn tlT i--r i^ 5?i' i, ti* tn-inei' 5*3 f<ii«l was o^nsidered 

fz. -r.-iftj Iff ir T»"rti CA' Le t^rTar^en tii»? iereral persons under 

t1 zi tl*r :o:ir:id c 'ark? h-rli: azd the reTeraoner having 

r«r*^->^i the wh le an- int wa^ hell b.^ond to aecoimt for 

a Tr T«:rtf rtLite rart to the f»:»rnier owner or his representa- 

tiTe -• . A ^"^.r^ir eiiltr was held to arise between the 

rp-Tiv^L.tiitive of a tenant in tail deceased without iasne 

az'l t?.e remaicdennan. npjn a lease made by the former 

which determine*! with his death v. 

^pt^>rty>o- A rent or other p«erio»lical payment may be reseired or 

of ijmiutu». «:-harged to a«-rue due from day to day, and is then ap- 

j^^rtione*! in respect of time by the express terms of the 

rejservation or charge ; and in some cases it is construed to 

be apportionable in order to carry out the intention and 

purpose of the charge. Such is the general rule of con« 

(f) 10 Co. 128 IT, Clun's com; Xni^A^ t. j^oi^A/mi, 12 Bear. 312. 
ZtparU Smyth, 1 SwaoHt. 337. (y) Faget y. Gee, AiAbL 198; 3 

{h) Jenner y. MorgaUy 1 P. Wms. Swanst. 694 ; Temon y. Vernon, 2 

192 ; Hay y. Falmer, 2 lb. 602. Bro. C. C. 659; KeviU y. JkttitM^ 

(z) Mawkint y. Kelly, 8 Yes. 308 ; 15 Sim. 466. 



CHAP. III. RENTS. 417 

• 

fitniction with charges for the maintenanoe of children; 
though made payable at fixed times, they are considered as 
accruing due from day to day, because intended for the 
daily maintenance of the children (2). The same rule of 
construction applies to a charge for the maintenance of a 
wife living apart from her husband (a). — ^Interest upon Interest, 
debts payable at fixed periods is considered to accrue due 
from day to day ; as a mortgage debt, though it be charged ' 
upon land and made distrainable as rent by an attornment 
clause (b). So, the interest upon a bond, conditioned for 
half-yearly payments, is apportionable in relieving against 
the penalty (c). — At common law annuities in general were Ammities. 
not apportionable, including government annuities, and 
dividends of the public funds [d). 

Statutes have been passed to amend the strict rule of the Apportion* 
common law and to make rents and other periodical pay- ™^^^f 
ments generally apportionable. The first of these statutes, 
11 Greo. II. c. 19, s. 16, applied to the case of rent reserved 
at fixed periods in leases made by tenants for life, which 
determined by the death of the lessor ; and it enabled his 
executor or administrator to recover from the lessee "a 
proportion of such rent, according to the time such tenant 
for life lived of the last year, or other time, in which the 
said rent wos growing due." By an Amendment Act, Between 
4 & 6 Will. IV. c. 22, s. 1, this enactment was extended lessee.^ 
to leases made by tenants pur autre vie, and to all leases 
which determine on the death of the person making the 
same, although not strictly tenant for life. 

These enactments enlai'ged the liability of the tenant Between guo- 
apportionately to the duration of his lease, but they did not ©£ rent. 

(«) Jr«y V. Palmer, 2 P. "Wms. {e)