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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. 
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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 
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J)emy  8vo.     1897.    Friee  12«.  6d,  eloth, 
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Hood  and  GhaUis'  Conveyancing  and  Settled  Land  Acts, 

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Greenwood's  Manual  of  the  Practice  of  Conveyancing, 

showine  the  present  Practice  relating  to  the  Daily  Routine  of  Conyevancing  in  Soli- 
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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  prupertjr — 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  Eabkmtjntb. 

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.  London,  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. 
WDtshtai  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.  0  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  0 

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'  0  . 
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"  vnntrrr^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.«jfig  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 — emieumint  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  rmurii^  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. 

Pnnwaij  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. 

Property  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  &  0  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  pitipeiiv,  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. 

0 )  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-^  rriAyrfn  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  rmHfiT^  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  diminishes  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. 


TfThimfftloii 
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. 


•TTTT*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.  Realactiona  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^rT?;!.  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 0  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  nTiAyiyft 

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  '*  -  rr- "'  , 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^fcTlJ'  *^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)  Per  eur.  Howell  v.  ffan/orth, 

602;  BeynUh   v.   Martin^   3   Atk.  supra;  Banner  y,  Lotce,  13  Yea.  135. 

330 ;  Sheppard  v.  Wilton,  4  Hare,  {d)  Sherrard  v.  Sherrard,  3  Atk. 

396.  602;   JTiUon   y.   Earmofi,   2   Ves. 

(a)  Howell  v.  Hanforth,  2  W.  Bl.  sen.    672  ;  Raahleigh  v.  Master,   3 
1016.                      ,  Bro.  0.  C.  101 ;  Fearlff  v.  Smith,  3 

(b)  Pearly  y.  Smith,  3  Atk.  260 ;  Atk.  260.    ^^eepoat,  p.  419. 
JSdwardtY  }Farunek,2F.WmB.n6. 

L.  E  R 


^^^li^  A3^  FVC-FITS  IS  LASD  OF  AXOTHEE. 

of  ownership  of  the  rent  dariiig 
'ii*r  fTzr^if  J  :r  i  l-^nje  4z.i  T*?i:i rng  the  aconal  of  rent; 
1^  ZL  tie  iiLse  :f  :l»r  i-iatli  of  a  tenant  in  fee  ample,  when 
tirf  -^1.  l-T  r^ir  i>  t-r-r"-  ?  -i  j?  t*:.  his  estate  passed  to  his  heir 
ic  ir^TL5.=^  wiiiiiiit  4z.y  i'  TOTtionment  up  to  the  time  of 
ifs  ff-i-tl :  T  -rrrc  tie  -ieith  of  a  tenant  for  life  of  settled 
liZiL  -^iir^ji  tie  -s^r  :>  ioj^jt:  z  rents  went  to  the  remainder- 


tn  •*  . — Li  -iri-3'  t-:  iZLenl  the  law  id  this  respect  it  was 


firii^  ^L  --i  •:  J  4^3  Wli  IT.  c.  22,  s.  2,  "  That  aU 
r^Hii*  5»rrri-  »r  r«^rr^i  en  anv  l<ease  hr  a  tenant  in  fee  or 
f  :r  kz,j  2irr  zLt-ezvit.  ct  >y  any  lease  granted  nnder  any 
T«"Wrr.  xzfi  iZ  rrnts  cLiT^  and  other  rents,  annuities,  and 
aZ  'tl-j-  ray^i-ects  of  evay  desoiption  made  payahle  or 
e — -Tg^  i-*  it  fii-E^i  f«^«:d5  nnder  any  instrument  that 
scjII  ':e  •ri'r'.tir-^i  sit^*  the  j<isang  of  this  Act,  shall  he 
iTt«:cti:^-f»i  5»:.  tLit  -z-n  the  death  of  any  person  interested 
L  rents  or  other  f^yments,  or  on  the  determina- 
ctl-a-  n:e;ins  of  the  interest  of  snch  person,  he 
cr  iis  e-ie»r:it:r5w  sJiLiniftrators,  or  asagns  shall  he  entitled 
to  a  irrpird  n  of  ^;:oh  rents  and  other  payments  according 
t*:  tie  tizie  wlivh  shjj  hare  elapsed  from  the  last  period 
cf  TiiTTEient,  anl  sLiIl  have  the  same  remedies  as  for 

A.  • 

re^xTertns'  $^:h  entiie  rents  and  payments;  hut  so  that 
T*crf«:iis  liille  to  f^ay  rents  reserved  hy  any  lease  ahaU.  not 
te  re:?.:rted  to  for  sceh  apportioned  parts,  hut  the  entire 
rents  shall  be  received  and  recovered  by  the  persons  who 
if  this  Act  had  n<3t  jcassed  would  have  been  entitled  to  such 
entire  rents,  and  such  pDrtions  shall  be  recoverable  from 
sueh  f^rs^'us  by  the  parties  entitled  to  the  same  in  any 
action  or  suit,  in  law  or  in  equityJ 


» 


Appamon.  **  The  Apportionment  Act,  1870,"  33  &  34  Vict,  c  35, 

J^t^*    ^        has  now  provided  for  the  apportionment  of  rents  and  other 

periodical  payments  in  more  general  and  comprehensiTe 

terms,  superseding  for  the  most  part  the  former  Acts. 

(<*}  KorriM  t.  Marrisom,  2  lladd.  268. 


CHAP.  III.   RENTS.  419 

After  Tedting  that  "  rents  and  some  other  periodical  pay- 
ments are  not  at  eonunon  law  apportionable  (like  interest 
on  money  lent)  in  respect  of  time,  and  for  remedy  of  some 
of  the  mischiefs  and  inconveniences  thereby  arising  divers 
statutes  have  been  passed,"  it  proceeds  to  enact  as 
follows : — Sect.  2.  "  Prom  and  after  the  passing  of  this  Bents  to 
Act  aU  rents,  annuities,  dividends,  and  other  periodical  5^^  ^^ 
payments  in  the  nature  of  income,  (whether  reserved  or 
made  payable  under  an  instrument  in  writing  or  otherwise) 
shall,  like  interest  on  money  lent,  be  considered  as  accruing 
from  day  to  day,  and  shall  be  apportionable  in  respect  of 
time  accordingly." 

Sect.  3.  "The  apportioned  part  of  any  such  rent,  Tinfeof  pay. 
annuity,  dividend,  or. other  payment  shall  be  payable  or  °^^*' 
recoverable,  in  the  case  of  a  continuing  rent,  annuity  or 
other  such  payment,  when  the  entire  portion  of  which  such 
apportioned  part  shall  form  part  shall  become  due  and 
payable,  and  not  before;  and  in  the  case  of  a  rent, 
annuity,  or  other  such  payment  determined  by  re-entry, 
death,  or  otherwise,  when  the  next  entire  portion  of  the 
same  would  have  been  payable  if  the  same  had  not  so 
determined,  and  not  before." 

Sect.  4.  "  All  persons  and  their  respective  heirs,  execu-  Remedies, 
tors,  administrators  and  assigns,  and  also  the  executors, 
administrators  and'  assigns  respectively  of  persons  whose 
interests  determine  with  their  own  deaths,  shall  have  such 
or  the  same  remedies  at  law  and  in  equity  for  recovering 
such  apportioned  parts  as  aforesaid  when  payable,  as  they 
jespectively  would  have  had  for  recovering  such  entire 
portions  as. aforesaid  if  entitled  thereto  respectively ;  pro- 
vided that  persons  liable  to  pay  rents  reserved  out  of  or 
charged  on  lands,  or  other  hereditaments  of  any  tenure, 
and  the  same  lands  or  other  hereditaments,  shall  not  be 
resorted  to  for  any  such  apportioned  part  of  an  entire  or 
continuing  rent  as  aforesaid  specifically,  but  the  entire  or 
continuing  rent,  including  such  apportioned  part,  shall  be 
recovered  and  received  by  the  heir  or  other  person  who,  if 

E  £  2 


^"rr  1-»L  i  r  'irra.  irr.-cdiTia.':>  -EZria  tiis  Act  or 


"  t"r  tir  <Ei'E*7:it«:«5  or  otiier 


^^1    1    •Ii  til*    !- .ciCriL.'rLic:   if  tiis  Act.  th^  word 

till  :_-•'  Tf^  izii  lH  t»s5>iI::2^  jsivziests  or  lenderings 
i.  It^L  :!:  :r  i.  ri**^  r;Lr:;z^  if  r?r.:  or  nihe.  The  ward 
"^  tTTT'iini^  Hi  L":ii-^  sr.  .itTas  *i.i  pensons.  Xhe  word 
""  2.^  jLteiii*  *"  TT.  •■'ayy  iZ  T«aT2i-aits  ixj^ie  bv  the  name  of 
ij-rjirfzsi.  Vr -li  :t  .cb^wise  out  of  the  lerenue  of  trading 
:r  :tjj^  t'li-L:  :*:t=.T<&zi;€s.  «i:TislIe  between  all  or  any  of 
ti»*  n*TZL':»^s5  :f  fn  i  e:iL.i«iiii€s,  whether  such  payments 
v.i~  ::•*•  ii--UkZv  uLiie  or  declared  at  any  fixed  times  or 
ccL^Tviie;  iz^i  all  scich  divisible  rerenne  shall,  for  the 
5rr-T»:'?r^  if  this  Act,  be  deemed  to  have  accmed  by  equal 
Ch^Y  iii-:?^eTi.eL^  daring  and  within  the  period  for  or  in 
rE<v^:^  of  wiiih  the  payment  of  the  same  reyenue  shall  be 
de»:lar^i  or  exy»resaed  to  be  made  "  {/).  Sect  6,  excepts 
frc-m  the  Act  "^  any  annual  sums  made  payable  in  policies 
of  aa^nranc-e/* — Sect.  7,  excepts  "  any  case  in  which  it  is 
or  shall  be  expressly  stipulated  that  no  apportionment  shaU 
take  plac-e  "  (^). 

The  intention  of  this  Act  is  said  to  be  to  aasimilate  rent 
to  a  debt  for  money  lent  of  which  the  interest  aocmes  due 
from  day  to  day ;  and  the  effect  of  the  Act  is  that  rent, 
which  by  sect.  2  is  to  be  considered  as  accruing  from  day 
to  day,  becomes  rent  in  arrear  for  the  purpose  of  yesting 
it  in  the  owner  for  the  time  being,  although,  by  sect.  4,  it 
is  not  in  arrear  for  the  pui^pose  of  claiining  it  from  the 
tenant  of  the  land  before  the  time  fixed  for  payment  by 
Apportion-      his  lease.    Accordingly  rents  are  now  apportioned  between 

mont  between 

(/)  BeeJottM  T.  Ogls,  L.  B.  8  Gh.      lU  Grifith,  L.  B.  12  C.  D.  665. 
192 ;  41  L.  J.  0.  633;  Cox's  TrmU,  (a)  Tyrrm  y.  Clark,  2  Biew.  86; 

L.  B.  9  C.  D.  169 ;  47  L.  J.  0.  736 ;       23  L.  J.  0.  283. 


CHAP.  III.    RENTS.  421 

the  real  and  personal  estate  of  a  deceased  owner ;  so  that  real  and  per- 
the  heir  or  the  devisee  (whether  by  specific  or  residuary  ^°  ^^  ' 
devise)  takes  the  accruing  rent  only  from  the  day  of  the 
death,  the  personal  representative  taking  the  apportioned 
part  up  to  that  date ;  unless  a  contrary  intention  be  ex- 
pressed by  will  (A).  So  upon  a  specific  legacy  of  stock  in 
a  public  company  the  dividends  were  held  to  be  appor- 
tioned between  the  estate  of  the  testator  and  the  specific 
legatee  (i).  The  Act  applies  in  this  respect  to  wills  made 
before  the  Act,  so  far  as  they  come  into  operation  after 
the  Act  (J). 

So  where  land  is  settled,  or  is  let  under  the  powers  of  a  Tenant  for 
settlement,  the  rents  and  other  periodical  payments  issuing  m^deriMn. 
out  of  the  land  are  apportioned  between  the  estate  of  a 
deceased  tenant  for  life  and  the  remainderman,  or  between 
other  successive  estates  upon  a  change  of  ownership.     In 
the  case  of  renewable  leaseholds,  the  fines  for  renewal  are 
of  the  nature  of  rent  payable  in  advance  for  the  whole 
period  of  renewal  and  therefore  presumptively  belong  to 
the  tenant  for  life  or  other  present  owner,   like   rent 
accrued  due  and  other  casual  profits  ;   but  it  is  generally 
provided  in  settlements  that  fines   shall  be  treated  as 
capital  to  be  invested  for  the  uses  of  the  settled  land  {k). 
— The  Act  al5o  applies  upon  the  assignment  of  a  lease,  so  Between 
that  the  assignor  remains  liable  to  the  lessor  for  an  ajipor-  **«!^°'  ^^ 
tioned  part  of  the  accruing  rent  up  to  the  day  of  assign-  leaae. 
ment  (/).     And  upon  the  liquidation  of  a  company  who 
are  lessees  of  premises,  of  which  the  liquidator  takes  to  the 
lease  for  the  benefit  of  the  company,  the  rent  is  appor- 
tioned ;  the  lessor  must  prove  for  the  amount  due  at  the 
commencement  of  the  liquidation,  and  can  distrain  in  fuU 

(A)  Capron  v.  Capron,  L.  R,  17  Eq.  329 ;  44  L.  J.  C.  168. 

Eq.  288  ;  43  L.  J.  0.  677  ;  Saahtck  \j)  Comtahle  v.  Constable,  supra; 

▼.  TedXey^  L.  R.   19  Eq.  271 ;  44  Lawrence  v.  Lawrence,  L.  R.  26  G. 

Ij.  J.  C.  143 ;  Constable  y.  Constable,  D.  796 ;  63  L.  J.  0.  982. 

li.  R.  11  C.  D.  681 ;   48  L.  J.  0.  Ui)  Brigstockey,  Brigstocke,  L.  R. 

621 ;  Brownriffo  v.  Pike,  L.  R.  7  8  C.  D.  367 ;  47  L.  J.  C.  817. 

P.  J>.  61 ;  51  £.  J.P.  29.  (0  Stvansea  Bank  Y.Thomas,  L.R. 

(0  B>Uock  Y.  Folloek,  L.  R.  18  4  Ex.  94  ;  48  L.  J.  Ex.  344. 


0 


422  rSE8  AlfD  FBOFTIB  IK  I.AHD  OF  AKOTHSB. 

only  for  sdbseqiient  rent  (m).  But  where  a  testator 
directed  his  execator  to  release  his  tenant  from  all  rent 
due  and  owing  to  him  at  the  time  of  his  decease,  the 
bequest  was  constmed  to  apply  only  to  the  rent  accraed 
due  at  the  preceding  quarter-day,  and  not  also  to  an 
apportioned  part  of  the  rent  accruing  due  at  his  death  (iv). 


Segtiok  m.  Bemedibs  for  Bent, — (1)  Distress. 

{  1.  DistresB. — \  2.  Things  dutrainaUe. — {  3.  Wrangfal  distzen. 

§  I.  Distress.     * 

Bemedies  for  renfc  in  aivear— difltreas. 

Conditions  of  right  of  distreas — ^rent  oertain  in  amount — rent  pajahle 

at  certain  time — distress  for  sorioes. 
Bent  in  arrear — limitation  of  arrears — ^nnder  express  tmsts— of  rent 

in  hankmptcy— of  rent  of  agricnltond  holdings. 
Distress  during  tenancj — possession  after  determination  of  lease — \>j 

custom  of  the  oountiy — ^holding  orer  after  demand  of  possession — 

after  giTing  notice  to  quit. 
Distress   upon   demised   tenement — uj>on   serrient  tenement — upon 

common. 
Distress  off  the  demised  tenement— distress  of  goods  fraudolentfy  re- 
moved. * 
Distress  \sj  bailiff — ^hailifb  to  be  certificated. 
Distress  to  be  taken  in  daytime — ^breaking  into  tenement — breaking 

inner  doors— taking  possession  of  goods. 
Impounding  distress — impounding  on  the  premises — ^puUic  and  pmata 

pounds — ^feeding  impounded  cattle — liability  of  distrainer  for  state 

of  pound. 
Statutory  power  of  selling  distress — sale  upon  the  premises — coDstrac- 

tion  of  statutes,  as  to  notice  of  distress — time  of  sale — appraisement 

— price— charges — ^sale  of  distress  optional — ^tender  of  rent  before 

sale. 

Remedies  for       The  ordinary  remedies  at  common  law  for  non-payment 
'*"*•  of  rent  are  distress ;  action  of  debt  or  of  covenant,  if  there 

(m)  lU     South    Kensingtim    Co-  0.  768. 

operative  Stores,  L.  R.  17  CD.  161;  («)  Re  Zuetu,  65  L.  J.  C.  101, 

60  L.  J.  C.  447 ;  Se  Oak  FiU  Col-  Fry,  J.,  ditsentienie. 
liery,  L.  B.  21  C.  D.  322  ;  61  L.  J. 


CHAP.  III.   BBNTS.  '   423 

be  a  covenant  to  pay ;  and  ejectment,  if  there  be  a  condi- 
tion of  re-entry  for  non-payment. 

Distress  is  the  remedy  by  act  of  the  party  himseK,  DLstrees. 
"without- the  intervention  of  legal  process;  he  may  enter 
upon  the  land  out  of  which  the  rent  issues  and  seize  any 
moveable  goods  found  thereon,  and  detain  them  as  a 
pledge  for  payment  of  rent  in  arrear  (a). — ^Distress  is 
regulated  as  to  the  conditions  of  exercising  the  right,  and 
as  to  the  time,  place  and  mode  of  conducting  it  by  rules 
of  the  oonmion  law,  amended  from  time  to  time  by 
statutes,  chiefly  in  giving  a  modified  power  to  sell  the 
distress  and  take  satisfaction  for  the  rent  out  of  the  pro- 
ceeds of  the  sale.  A  distress  given  by  grant  or  agreement 
may  restrict  or  alter  the  ordinary  rules  of  distress  by 
express  terms  of  stipulation ;  but  merely  affirmative  words 
will  not  be  construed  to  do  so,  if  they  are  not  inconsistent 
with  the  ordinary  rules  (b). 

The  principal  conditions  of  exercising  the  right  of  dis-  Conditions 
tress  are  that  there  is  a  rent  certain  in  amount,  and  pay-  di^^.^ 
able  at  a  certain  time ;  that  rent  is  in  arrear  and  unpaid 
within  the  limits  of  time  prescribed  by  law.;  and  that  the 
tenancy  upon  which  the  rent  was  reserved  is  continuing. 

A  distress  can  only  be  made  for  rent  which  is  certain.  Rent,  certain 
or  which  can  be  reduced  to  a  certainty  (c).  Where  a  lease  ^  "^o^*- 
was  made  of  tithes  together  with  a  tithe  bam,  reserving  a 
certain  rent,  but  the  demise  being  by  an  instrument  not 
under  seal  was  void  as  to  the  tithes,  it  was  held  that  there 
was  no  right  of  distress ;  because  the  whole  rent  was  not 
recoverable,  and  no  certain  part  was  reserved  for  the  bam 
*  apart  from  the  tithes  {d).  In  such  a  case  if  the  demise 
were  valid  the  rent  would  issue  out  of  the  whole  property 
and  would  be  distrainable  out  of  the  land,  though  no  dis- 
tress could  be  made  upon  the  tithe  {e), — ^A  rent  is  not  con- 

(a)  Ante,  p.  373.  ie)  Co.  Lit.  96a,  142a. 

{b)  Co.  Lit.  206  a;  Giles  Y.Spen-  [d)  Gardiner  y.  Williamson,  2  B. 

eer,  3  C.  B.  N.  S.  244 ;  Se  Swale  &  Ad.  336. 

Briek  Co.,  62.L.  J.  C.  638.  (e)  lb.  ;   Doubitofte  t.    Curteene, 


424  USES  AND  PlM)FITS  IN  LAND  OF  ANOTHKB. 

sidered  to  be  nncertam  for  thie  purpose  of  a  distress  which 
can  be  made  certain  by  computation  or  by  measurement, 
or  which  is  subject  to  occasional  reductions  or  additions, 
or  which  may  depend  upon  a  contingency ;  provided  that 
it  may  be  reduced  to  a  certainty  at  the  time  of  distrain- 
ing :  as  a  rent  assessed  upon  the  quantity  of  hay  or  com 
or  other  produce  grown  upon  the  land ;  or  an  additional 
rent  to  be  paid  if  the  land  be  ploughed  or  used  in  a  parti- 
cular manner;  or  a  rent  assessed  upon  the  number  of 
bricks  made  upon  the  land,  or  upon  the  quantity  of 
minerals  taken  out  of  it  (/).  The  demise  of  part  of  a 
factory  with  steam  power  for  working  machines  at  a 
stated  sum  per  annum,  subject  to  deduction  for  hindrances 
caused  by  defective  supply  of  power  proportionate  to  the 
time,  was  held  to  give  a  sufficiently  certain  rent  to  be 
recoverable  by  distress  (//).  So  with  a  lease  of  a  mill  for 
a  term  of  years  at  the  annual  payment  of  a  fixed  sum  for 
every  loom  which  the  lessee  should  work,  and  stipulating 
for  a  minimum  number  to  be  paid  for  in  advance  [h).  So 
with  a  rent  payable  by  a  member  of  a  building  society, 
imder  a  mortgage  to  the  society,  assessed  at  the  amount 
of  an  instalment  of  the  debt  together  with  the  subscrip- 
tion, interest,  and  fines  payable  as  a  member;  the  rent 
in  such  cases  is  mere  matter  of  calculation,  and  it  is  no 
objection  that  it  is  fluctuating  in  amount  (f). 
Rmtpftyable  The  rent  must  also  be  certain  as  to  the  time  of  pay- 
JnJJ^^**"^  ment.  It  may  be  reserved  yearly,  or  every  two  or  more 
j-ears ;  or  half-yearly,  quarterly,  monthly,  or  daily,  or  at 
any  certain  periods  of  time(y).  A  reservation  upon  a 
lease  at  vnily  '^  paying  after  the  rate  of  eighteen  pounds  a 
year,"  was  held  void,  for  the  uncertainty  of  the  time  of 


Cn>.  Jwj,   452  ;    2  Wms,  Sannd.  C.  P.  694 ;  37  L.  J.  O.  P.  251. 

804  ;    JWh  <»^   niMtisor  ▼,    Gonr ;  (A)   WaUh  y.  lotudale,  L.  R  21 

.s.j.'Mc^H  V.  M^iitMrws,  S  M.  &  W.  C.  D.  9. 

SJ:  ;  .iM.V,  p.  S82.  (i)  Ex  parU   Voisey,  S$  Knight, 

V 1)  Jstmri  T,   Gracif,  6  Q,  B.  L.  R.  21  C.  D.  442 ;  62  L.  J.  0. 

146*  121. 

(f)  S,Jh¥  T.   (^ivtfiYtt,   L.   R.    3  0)  Go.  lit.  47  a. 


CHAP.  III.    RENTS.  425 

payment  (A;).  A  reservation  of  rent  "at  Michaelmas  o^ 
"within  a  month  after"  was  held  to  give  the  lessee  the 
election  to  pay  it  at  any  time  within  the  period  limited,  so 
that  it  was  not  due  and  distrainable  until  the  end  of  the 
month  (/).  Bent  may  be  reserved,  payable  in  advance, 
and  is  then  distrainable  on  the  first  day  of  the  term  {m). 
Itent  may  be  reserved  payable  on  certain  days,  and  dis- 
trainable if  demanded ;  a  demand  at  any  time  after  it  is 
due  being  a  condition  of  the  distress  (w) .  It  may  be  reserved 
payable  on  certain  days,  and  in  advance  if  demanded ;  and 
then  it  could  not  be  distrained  for  as  due  in  advance  with- 
out demand  (o).  Under  an  express  covenant  rent  may  be 
payable  on  a  day  after  the  expiration  of  the  term  {p). 

A  distress  may  be  taken  for  services,  if  they  are  suffi-  Distress  for 
ciently  certain  or  can  be  reduced  to  a  certainty.  "  As  a  *®'^^®^' 
man  may  hold  of  his  lord  to  shear  all  the  sheep  depastur- 
ing within  the  lord's  manor ;  and  this  is  certain  enough 
albeit  the  lord  hath  sometime  a  greater  number  and  some- 
time  a  lesser  number  there,  yet  being  referred  to  the 
manor  which  is  certain  the  lord  may  distrain"  (q).  A 
tenure  of  land  by  the  service  of  cleaning  the  parish  church, 
or  of  ringing  the  church  bell  at  stated  times,  was  held  to 
constitute  a  service  for  which  a  distress  might  be  made  (r). 
"  There  appears  to  be  a  difficulty  in  the  case  where  a  dis- 
tress is  taken  for  a  service  unperformed  at  a  past  time,  as 
to  how  long  it  is  to  be  kept  as  a  pledge ;  it  may  be  taken 
that  if  the  service  was  performed  on  the  next  occasion,  the 
distress  would  be  at  an  end  "  («). 


A  distress  can  only  be  made  for  rent  in  arrear ;  and,  there-  j^^ 
fore,  not  until  after  the  day  upon  which  it  becomes  due,  the  "^ear 

(A)  Farker  t.  SarriSy  4  Mod.  79,  G.  D.  9,  cited  above. 
Dolben,  J.,  dissentiente,  (n)  Go.  Lit.  202  a. 

(I)  Filkington    y.    Balton,    Gro.  (o)   WiUiama  v.   Solmet,   8   Ex. 

Eliz.  575;  BlundetCs  Case,  Gro.  Eliz.  861 ;  22  L.  J.  Ex.  283. 
565 ;  Clunks  Oue^  10  Qo,  127  h.  ip)  JECopkint  y.  HeUnore,  supra, 

(m)  Buckley  v.  Taylwr,  2  T.  B.  \q)  Go.  Lit.  96  a. 

600 ;.irolland  y.  PaUer,   2   Stark.  (r)  Doe  y.  Benham^  7  Q.  B.  976; 

161 ;  Ropkim  y.  Eelmore,  8  A.  &  E.  JheY.  Billett,  7  Q.  B.  983. 
463;   Wabh  y.  Lonsdale^  L.  B.  21  («)  Pdreur^Doey.Bmham^aupra. 


in 


426  USES  AND  PBOFITS  IN  LAND  OF  ANOTHER. 

tenant  having  nntil  midnight  of  that  day  for  pajmCTt. 
At  oommon  law  if  the  lessor  died  on  the  rent-daj  before 
midnight  the  acoruing  rent  together  with  the  right  of 
distress  passed  with  the  reversion  or  title,  and  not  as 
arrears  to  his  executor ;  hut  it  is  now  apportionable  hj 
statute  («). — The  time  for  distraining  may  be  postponed 
by  express  terms  of  the  lease ;  but  a  clause  of  distress  in 
merely  affirmative  terms,  that  if  the  rent  be  behind  for  so 
many  days  the  lessor  may  distrain,  does  not  take  away  the 
common  law  right  of  distraining  immediately  the  rent  is 
due  (0. 
Limitation  By  the  3  &  4  Will.  IV.  c.  27,  s.  42,  "  No  arrears  of  rent, 

o  arrears.  ^^  ^£  interest  in  respect  of  any  sum  of  money  chaiged 
upon,  or  payable  out  of  any  land  or  rent,  or  in  respect  of 
any  legacy,  or  any  damages  in  respect  of  such  arrears  of 
rent  or  interest,  shall  be  recovered  by  any  distress,  action 
or  suit,  but  within  six  years  next  after  the  same  respeetivdy 
shall  have  become  due,  or  next  after  an  acknowledgment 
of  the  same  in  writing  shall  have  been  given  to  the  person 
entitled  thereto  or  his  agent,  signed  by  the  person  by 
whom  the  same  was  payable  or  his  agent."  By  the  3  &  4 
Will.  IV.  c.  42,  s.  3,  the  personal  remedy  by  action  of 
debt  or  covenant  for  arrears  of  rent  or  interest  of  money 
charged  upon  land  is  expressly  limited  to  twenty  years ; 
and  it  is  held  not  to  be  impliedly  limited  to  six  years  by 
the  former  statute,  which  is  construed  as  applying  only  to 
remedies  against  the  land  by  distress  or  otherwise  («). 
ExpresB  By  the  "  Eeal  Property  Limitation  Act,  1874,"  37  & 

trustB  of  rent,  gg  y-^^  ^  57^  g   jq^  « ^f^-g^  ^^  commencement  of  this 

Act  no  iaction  suit  or  other  proceeding  shall  be  brought  to 
recover  any  sum  of  money  or  legacy  charged  upon  or  pay- 
able out  of  any  land  or  rent,  at  law  or  in  equity,  and 

{»)   Duppa   Y.    Mayo,    1    Wmck  (u)  Faget  y.  Foley,  2  Bing.  N.  C. 

Saund.  286  b ;  ante,  p.  416.  690 ;  Straehan  y.  Thomae,  12  A.  & 

(t)  Co.  Lit.  206  a ;  per  eur,  in  E.  636 ;  Hun^rey  y.  Qery,  7  C.  B. 

Giiee  y.  Spencer,  8  C.  B.  N.  S.  263 ;  667  ;  Sunterr,  Noekoids^  llLkQt. 

Me  Swale  Brick  Co.,  62  L.  J.  0.  640. 
638. 


CHAP.  III.   RENTS.     .  427 

seoTired  by  an  express  trust,  or  to  recover  any  arrears  of 
rent  or  of  interest  in  respect  of  any  sum  of  money  or  legacy 
so  charged  or  payable  and  so  secured,  or  any  damages  in 
respect  of  such  arrears,  except  within  the  time  within 
which  the  same  would  be  recoverable  if  there  were  not  any 
such  express  trust."  By  the  above  statute  3  &  4  Will.  IV. 
0.  27,  8.  25,  express  trusts  of  land  or  rent  were  protected 
from  limitation  by  time,  until  they  had  been  conveyed  to  a 
purchaser  for  a  valuable  consideration ;  which  protection 
is  now  abolished  (v). 

By  the  Bankruptcy  Act,  1883,  46  &  47  Vict.  c.  52,  Rent  in 
8.  42,  a  distress  levied  upon  the  goods  of  a  bankrupt  after  ^^' 

tiie  commencement  of  the  bankruptcy  is  available  only  for 
one  year's  rent  accrued  due  prior  to  the  date  of  the  order 
of  adjudication ;  and  the  person  to  whom  the  rent  may 
be  due  must  prove  under  the  bankruptcy  for  the  siurplus 
of  arrears  (to). 

By  the  Agricultural  Holdings  Act,  1883,  46  &  47  Vict.  Rent  of 
c.  61,  s.  44,  "  After  the  commencement  of  this  Act  it  shall  J^SLm!" 
not  be  lawful  for  any  landlord  entitled  to  the  rent  of  any 
holding  to  which  this  Act  applies  to  distrain  for  rent, 
which  became  due  in  respect  of  such  holding  more  than 
one  year  before  the  making  of  such  distress. — Provided 
that  where  it  appears  that  according  to  the  ordinary  course 
of  dealing  between  the  landlord  and  tenant  of  a  holding 
the  payment  of  the  rent  of  such  holding  has  been  allowed 
to  be  deferred  until  the  expiration  of  a  quarter  of  a  year 
or  half  a  year  after  the  date  at  which  such  rent  legally 
became  due,  then  for  the  purpose  of  this  section  the  rent 
of  such  holding  shall  be  deemed  to  have  become  due  at 
the  expiration  of  such  quarter  or  half  year  as  aforesaid,  as 
the  case  may  be,  and  not  at  the  date  at  which  it  legally 
became  due"  (a?). 

(v)  See  Muffhes  y.  CoUa,  L.  R.  27  (x)  Re  Bew^  Ex  parte  Bull,  L.  R. 

C.  I).  231 ;  63  L.  J.  C.  1047.  18  Q.  B.  D.  642 ;  66  L.  J.  Q.  B. 

(it)  Qeepost,  p.  468.  270. 


428  VSES  AXD  PROFITS  IN  LAND  OF  ANOTHER. 

Distress  du-  At  common  law  distress  could  only  be  made  during  the 
"^  ^*  continuance  of  the  tenancy  upon  which  the  rent  was  re- 
served; and  a  distress  made  after  the  tenancy  had  ceased 
WM  wrongful,  whether  the  tenancy  expired  by  lapse  of  time 
or  was  determined  by  forfeiture  or  by  eviction  (a?).  Hence 
if  a  lessor,  having  an  option  of  forfeiture,  distrains  for 
rent,  he  thereby  presumptively  recognizes  and  affirms  the 
continuation  of  the  tenancy,  without  which  the  distress 
would  be  wrongful,  and  cannot  afterwards  claim  the  for- 
feiture ;  but  if  he  has  first  claimed  the  forfeiture  by  bringing 
ejectment  or  otherwise,  he  cannot  afterwards  distrain  for 
rent  (y).  Hence  also  no  distress  could  be  made  at  com- 
mon law  for  rent  falling  due  the  last  day  of  the  tenancy, 
because  the  rent  is  not  in  arrear  till  midnight  and  the 
term  then  ends  (s). 
PoflseMion  In  the  case  of  a  tenant  keeping  possession  after  the 

minationof      determination  of  his  lease,  it  is  enacted  by  8  Ann.  c.  14, 
lease.  g^  g^  ^j^g^^  u  jj.  gj^all  be  lawful  for  any  person  or  persons 

having  any  rent  in  arrear  or  due  upon  any  lease  for  life  or 
lives,  or  for  years,  or  at  will,  ended  or  determined,  to 
distrain  for  such  arrears,  after  the  determination  of  the 
said  respective  leases,  in  the  same  maimer  as  they  might 
have  done,  if  such  lease  or  leases  had  not  been  ended  or 
determined."  By  sect.  7,  "  provided  that  such  distress  be 
made  within  the  space  of  six  calendar  months  after  the 
determination  of  such  lease,  and  during  the  continuance 
of  such  landlord's  title  or  interest,  and  during  the  posses- 
sion of  the  tenant  from  whom  such  arrears  become  due." 
By  3  &  4  WilL  IV.  c.  42,  ss.  37,  38,  the  same  extension  is 
given  to  a  distress  by  the  executors  or  administrators  of  a 
lessor  for  the  arrearages  of  rent  due  to  such  lessor  in  his 
lifetime. — The  Statute  of  Anne  applies  to  continued  pos- 

(;r)  Bridges  y.   Smyth,   6    Bing.  (y)  Co.  Lit.  211  d ;  3  Co.  64  h, 

410 ;    Hoperaft  y.   Keys,   9  Bing.  FennantU  Case ;   Doe  y.  Darby,  8 

613  ;  Bunu  y.  Richardson,  4  Taunt.  Taunt.  638  ;    Orimwood  y.   JVo», 

720  ;  Grimwood  y.  Moss,  L.  R.  7  supra. 

C.  P.  360  ;  41  L.  J.  0.  P.  239.  («)  Co.  lit.  47  h. 


CHAP.  III.    RENTS.  429 

session  of  the  tenant,  whether  permissive  or  wrongful,  and 
whether  of  the  whole  or  of  a  part  only  of  the  demised 
premises  (a).  It  applies  to  the  possession  of  the  executors 
or  administrators  of  the  tenant  after  his  death  (b) .  It  seems 
that  it  does  not  apply  to  possession  after  determination 
of  the  tenancy  hy  a  forfeiture  (c).  Distress  under  this 
statute  justifies  taking  goods  fraudulently  removed,  under 
the  power  given  by  the  statute  11  Geo.  II.  (d). 

Where  by  the  custom  of  the  country  an  outgoing  tenant  By  ougtom  of 
has  the  possession  for  a  certain  time  after  the  expiration  of  °^"°"^' 
his  lease  for  the  purpose  of  working  the  away-going  crops, 
the  landlord  retains  the  right  to  distrain  during  the  con- 
tinued possession  of  the  tenant,  independently  of  the 
Statute  of  Anne  and  of  the  six  months  limit  of  that 
statute  {e).  Sut  the  landlord  cannot  distrain  crops  of  the 
outgoing  tenant  for  rent  due  from  the  incoming  tenant, 
for  he  can  only  let  the  land  subject  to  the  rights  of  the 
former  (/).  Where  the  tenant  upon  the  cesser  of  his 
landlord's  estate  has  the  right  to  hold  over  imtil  the  end 
of  the  then  current  year  of  his  tenancy,  instead  of  his 
claims  to  emblements,  under  the  statute  14  &  15  Yict. 
c.  25,  s.  1,  the  succeeding  landlord  becomes  entitled  to  his 
fair  proportion  of  the  rent,  and  may  recover  it  by  dis- 
tress {g). 

By  the  statute  4  Geo.  II.  c.  28,  s.  1,  "  In  case  any  tenant  Holdingr  over 
for  any  term  of  life,  lives  or  years,  shall  wilfully  hold  over  of  possess^ 
any  lands,  tenements  or  hereditaments  after  the  determina- 
tion of  such  term,  and  after  demand  made  and  notice  in 
writing  given  for  delivering  the  possession  thereof  by  his 
landlord  or  lessor,  such  person  so  holding  over  shall,  for 

(a)  IfutUtl  T.  StaunUm^  4  3.  &  0.  (d)  Post,  p.   433  ;   see  Gray  r. 

51.  Siait,  62  L.  J.  Q.  B.  412. 

(*)  Taylerson  v.  TlfterSf  7  A.  &  E.  (e)  Bewan  v.  Delahay,  1 H.  Bl.  8  ; 

110 ;  Braiikwaite  y.  Cooksey,   1  H.  see  Boraston  v.  Green^  16  East,  81. 

BL  466.  (/)  See  Baton  y.  Souihby,  Willea, 

(e)  Willes,  J.,  Grimwood  t.  Moat^  136. 

L.  B.  7  0.  P.  365  ;  41  L.  J.  0.  P.  {g)  Haines  v.  WeUh,  L.  R.  4  0. 

239.  P.  91 ;  38  L.  J.  G.  P.  118 ;  ante, 

p.  47. 


430  USES  AND  PROFITS  IN  LAND  OF  ANOTHER. 

and  during  the  time  he  shall  so  hold  over,  pay  to  the 
person  so  kept  out  of  possession  at  the  rate  of  double  the 
jearlj  value  of  the  lands,  tenements  and  hereditaments  so 
detained,  for  so  long  time  as  the  same  are  detained,  to  be 
recovered  by  action  of  debt ;  against  the  reoovering  of 
which  said  penalty  there  shall  be  no  relief  in  equity." 
This  statute  is  a  penal  statute  and  is  construed  strictly;  a 
weekly  tenancy  is  not  a  term  of  years  within  the  meaning 
of  the  statute ;  nor,  it  seems,  is  a  quarterly  tenancy  {g). 
Wilful  holding  over  is  construed  as  excluding  holding  over 
by  mistake  or  under  a  bond  fide  claim  (A).  There  is  no 
power  of  distress  under  this  Act,  because  th^re  is  no 
certainty  of  the  double  value  (t). 
Holding  over  By  the  statute  11  Geo.  II.  c.  19,  s.  18,  "In  case  any 
notice  to  quit,  tenant  shall  give  notice  of  his  intention  to  quit  the 
premises  by  him  holden  at  a  time  mentioned  ijx  such 
notice,  and  shall  not  accordingly  deliver  up  the  possession 
thereof  at  the  time  in  such  notice  contained,  then  the  said 
tenant  shall  from  thenceforward  pay  to  the  landlord  or 
lessor  double  the  rent  or  sum  which  he  should  otherwise 
have  paid,  to  be  levied,  sued  for  and  recovered  at  the  same 
time  and  in  the  same  manner,  as  the  single  rent,  before 
the  giving  such  notice  could  be  levied,  sued  for  or  re- 
covered ;  and  such  double  rent  or  simi  shall  continue  to  be 
paid  during  all  the  time  such  tenant  shall  continue  in 
possession  as  aforesaid."  The  double  rent  is  recoverable 
by  distress ;  the  notice  is  not  required  to  be  in  writing, 
but  it  must  be  a  valid  notice  determining  the  tenancy  (A). 

BistresB  must  .    A  distress  by  conamon  law  can  be  made  only  upon  the 
the  demifl^^  land  or  tenement  out  of  which  the  rent  issues.     By  the 
tenement.        Statute  of  Maxlebridge,  52  Hen.  IH.  c.  15,  it  was  de- 
clared, in  confirmation  of  the  conomon  law,  that  "  it  shall 

(g)  Lloyd  v.  Bosbee,  2  Gamp.  453 ;  (i)  Wilmot,  J.,  I\wmin9  y.  Bow- 

Wilkinson  y.  MaU,  8  Bing.  N.  C.  Uson,  1  W.  BL  635. 

508.  {k)  TUnminsY. HowUmn^  1W,BL 

(h)  Swi^ftn  y.  Bacon,  6  H.  &  N.  533  ;  Johnstone  y.  Mudlestons^  4  B. 

846 ;  30  L.  J.  Ex.  368.  &  0.  922. 


CHAP.  111.   RENTS.  431 

be  lawful  for  no  man  from,  henceforth,  for  any  maimer  of 
canse,  to  take  distresses  out  of  his  fee,  nor  in  the  king's 
highway,  nor  in  the  common  street,  but  only  to  the  king 
or  his  officers."  It  is  a  prerogative  right  of  the  Crown  to 
distrain  upon  any  lands  or  tenements  of  the  debtor,  of 
whomsoever  they  may  be  holden ;  provided  they  are  in 
his  personal  possession  (/). — The  highway  is  privileged 
from  distxess,  though  within  the  fee  or  tenements  de- 
mised  {m).  A  distress  for  toll  can  be  made  only  upon  the 
highway  and  is  an  implied  exception  from  the  statute  (n). 
Under  a  bill  of  sale  goods  may  be  seized  upon  a  highway, 
and  the  provision  of  the  Bills  of  Sale  Act,  1882,  s.  13, 
that  the  goods  seized  ^'  shall  remain  on  the  premises  where 
they  were  seized"  for  five  days  before  sale  does  not 
apply  (o). — ^A  distress  may  be  made  on  any  part  of  the 
demised  premises  for  the  whole  rent;  and  notwithstanding 
the  premises  have  been  underlet  by  the  tenant  in  parts 
to  different  sub-tenants  (p).  But  if  there  be  separate 
demises  of  two  tenements  at  distinct  rents  to  the 
same  tenant,  there  must  be  separate  distresses;  distress 
cannot  be  made  on  the  one  tenement  for  the  rent  of 
the  other  or  of  both  (q). — ^A  distress  cannot  be  made  Servieot 
upon  land  which  is  merely  servient  to  the  demised 
tenement  in  respect  of  appurtenant  rights  of  easement  or 
profit;  as  where  a  wharf  was  let  with  the  easement  of 
mooring  barges  over  the  adjacent  river  frontage,  it  was 
held  that  the  barges  could  not  be  distrained  in  the  river, 
though  they  were  fastened  to  the  wharf  (r).  So,  where 
mines  are  leased  apart  from  the  surface  of  the  land,  and 
the  plant  and  machinery  used  for  the  purpose  of  working 

(/)  Co.  lit*  161  0;  2  Co.  Inst.  (p)  See  Sh^ffery  y.  £Iffood,  1  A.  & 

131 ;  see  Duke  of  Leeds  ▼.  Fowell,  1  E.  194  ;  and  see  4  Geo.  II.  0.  28, 

Yes.  sen.  172;   AU.-Oen,  y,   Co'  s.  6. 

ventry,  1  P.  Wms.  306.  {q)  Soffer8Y.£irkmire,2BtTajigey 

(01)  Co.  Lit.  160  b.  1040;  Bedford  t.  Sutton  Coidfield, 

(»)  Smith  V.  Shepherd,  Cro.  Eliz.  3  C.  B.  N.  S.  449 ;    27  L.  J.  C.  P. 

710.  106  ;  FhiUipa  y.  Whiteed,  2  E.  &  E. 

(0)  (yNeil  T.   OUf/  Finanee  Co.,  804  ;  29  L.  J.  Q.  B.  164. 

L.  B.  17  Q.  B.  D.  234.  (r)  Buezard  v.  Capel,  8  B.  &  C, 

141 ;  6  Bing.  150. 


432 


USES  AKl)  PBOFITS  IN  LAND  OF  ANOTHER. 


OOnUDOIL. 


the  mines  are  placed  upon  the  surface,  they  cannot  he 
Pm^mi  i^oii  distrained  for  the  rent  of  the  mines  («) . — ^But  hy  the  statute 
11  Geo.  n.  c.  19,  8.  8y  a  lessor  or  landlord  may  "  take  and 
seize,  as  a  distress  for  arrears  of  rent,  any  cattle  or  stock 
of  their  respective  tenant  or  tenants,  feeding  or  de- 
pasturing  upon  any  common  appendant,  or  appurtenant, 
or  any  ways  helonging  to  all  or  any  part  of  the  premises 
demised  or  holden." 


BifltresBoff 
the  demised 
tenement. 


Goods 

fraudnlentlj 

removed. 


At  common  law  goods  could  not  he  followed  and 
distrained  off  the  tenement,  though  the  tenant  purposely 
removed  them  to  prevent  distress.  Exception  was  made 
where  cattle  were  driven  off  to  prevent  a  distress  in  view 
of  the  distrainor;  he  might  then  freshly  follow  and 
distraiu  the  cattle  off  the  land,  and  even  upon  the  high- 
way (/).  But  cattle  cannot  he  distrained  damage  feasant , 
if  driven  off  the  premises  hefore  actual  seizure  {t). 

By  the  statute  11  Geo.  II.  c.  19,  s.  1,  "In  case  any 
tenant  or  tenants,  lessee  or  lessees,  for  life  or  lives,  term  of 
years,  at  will,  sufferance  or  otherwise,  of  any  messuages, 
lands,  tenements  or  hereditaments,  upon  the  demise  or 
holding  whereof  any  rent  is  or  shall  be  reserved,  due,  or 
made  payable,  shall  fraudulently  or  clandestinely  convey 
away,  or  carry  off  or  from  such  premises  his  or  their  goods 
or  chattels  to  prevent  the  landlord  or  lessor  from  distrain- 
ing the  same  for  arrears  of  rent  so  reserved,  due,  or  made 
payable,  it  shall  be  lawful  for  every  landlord  or  lessor, 
within  the  space  of  thirty  days  next  ensuing  such  con- 
veying away  or  carrying  off  such  goods  or  chattels  as 
aforesaid,  to  take  and  seize  such  goods  and  chattels 
wherever  the  same  shall  be  found,  as  a  distress  for  the 
said  arrears  of  rent ;  and  the  same  to  sell  and  otherwise  to 
dispose  of  in  such  manner  as  if  the  goods  had  been 
actually  distrained  by  such  landlord  in  and  upon  such 


is)  See  Be  Oak  Pitt  CoOiery  Co., 
li.  B.  21 0.  D.  32S ;  61 L.  J.  0. 770. 


(t)  Co.  lit.  1610/  2  Co.  Inst. 
132. 


CHAP.  III.  RENTS.  433 

premises  for  such  arrears  of  rent."— Sect.  2,  excepts  "  such 
goods  and  chattels  which  shall  be  sold  bond  fide  and  for  a 
Talnable  consideration  to  any  person  not  privy  to  such 
fraud." — Sects.  3 — 6,  impose  a  penalty  upon  any  tenant 
so  fraudulently  removing  goods  and  any  person  assisting 
in  the  removal,  and  provide  for  recovery  of  the  penalty. 
And  sect.  7  gives  a  special  power,  upon  the  conditions 
therein  stated,  to  break  open  and  enter  into  any  house  or 
other  place  to  take  and  seize  such  goods  (w). 

The  fraudulent  intention  to  prevent  distress  must  be  ConBtmctioii 
proved  as  a  matter  of  fact,  as  by  evidence  that  no  sufficient 
distress  was  left  and  other  circumstances ;  a  mere  removal 
of  goods  whilst  rent  is  in  arrear  is  not  sufficient  to  raise 
the  presumption  of  fraud  (r).  And  a  removal  of  goods 
with  intention  to  avoid  distress  is  not  necessarily  fraudu- 
lent, as  there  may  be  a  bond  fide  question  of  the  right  to 
distrain  {w), — The  statute  applies  only  to  goods  removed 
whilst  subject  to  distress,  and  makes  them  distrainable  as 
if  they  had  not  been  removed.  Goods  cannot  be  taken 
which  were  removed  before  the  rent  was  due  (x) ;  or  which 
were  removed  after  the  right  to  distrain  had  ceased  by 
the  termination  of  the  tenancy  (y),  or  by  the  landlord 
having  conveyed  away  his  reversion  (z). — ^The  statute  is 
expressly  restricted  to  the  goods  of  the  tenant  or  lessee,  and 
does  not  apply  to  goods  of  another  person;  which  the  tenant 
may  lawfully  remove  to  prevent  their  being  distrained  by 
the  superior  landlord  (a) .  A  creditor  of  the  tenant  may  take 
goods  in  satisfaction  of  his  debt,  with  notice  of  an  intended 
distress,  and  lawfully  remove  the  goods  to  prevent  their 
being  distrained  (6). 

fii)  SeejMM/,  p.  436.  Q.  B.  412. 

\v)  Tarry  v.  Duncan^  7  Bing.  243.  (y)  Gray  v.  Stait^  supra  ;  ahd  see 

(to)  John  Y.  Jenkins,  1  C.  &  M.  ante,  p.  428. 

^27.  (z)  Ashmore  v.  Hardy,  7  C.  &  P. 

(x)  North/ield  v.   ITightingale,    1  601. 

0.  &  M.  230  n. ;  Rand  y.  Vaughan,  (a)  Thornton  y.  Adams,  6  M.  & 

1  Bing.  N.  C.  767  ;  Gray  v.  Stait,  S.  38. 

L.  B.  11  Q.  B.  D.  668  ;  62  L.  J.  {b)  Bach  y.  Meats,  6  M.  &  S.  200. 

L.  F  F 


434 


"USES  AND  PEOFITS  IN  LAND  OF  ANOTHER. 


DistreeBlnr 
bailiff. 


Bailiffs  to  be 
certifioated. 


As  to  the  manner  of  making  a  distress  for  rent,  it  may 
be  made  by  the  party  himself,  or  by  his  bailifF  tinder  a 
sufficient  warrant  or  authoriiy  to  distrain ;  it  mnst  be  taken 
in  the  daytime ;  and  it  mnst  be  taken  without  breaking 
into  the  demised  premises. 

A  distress  may  be  made  in  person,  or  by  a  baiM  or  agent 
duly  authorized  in  that  behalf.  The  authoriiy  is  not 
required  by  law  to  be  in  writing  ;  but  it  is  usual  to  sign 
a  formal  authority  in  writing,  commonly  called  a  "  war- 
rant of  distress."  A  distress  made  by  a  bailiff  without 
authority  previously  given,  may  be  supported  by  sub- 
sequent ratification  of  the  person  on  whose  behalf  it  was 
made  (s).  The  employer  is  responsible  for  acts  of  his 
bailiff  which  are  within  the  scope  of  the  employment; 
but  he  does  not  impliedly  indemnify  the  bailiff  beyond 
warranting  to  him  the  right  to  distrain  (a). — By  the  Law 
of  Distress  Amendment  Act,  1888,  51  &  52  Vict.  c.  21, 
s.  7,  "From  and  after  the  commencement  of  this  Act 
(31  Oct.  1888)  no  person  shall  act  as  bailiff  to  levy  any 
distress  for  rent,  imless  he  shall  be  authorized  to  act  as  a 
bailiff 'by  a  certificate  in  writing  under  the  hand  of  a 
county  court  judge ;  and  such  certificate  may  be  general 
or  apply  to  a  particular  distress  or  distresses,  and  may  be 
granted  at  any  time  after  the  passing  of  this  Act,  in  such 
manner  as  may  be  prescribed  by  rules  under  this  Act." 
And  "  if  any  person  not  holding  a  certificate  imder  this 
section  shall  levy  a  distress  contrary  to  the  provisions  of 
this  Act,  the  person  so  levying,  and  any  person  who  has 
authorized  him  so  to  levy,  shall  be  deemed  to  have  com- 
mitted a  trespass  "  (b). 


(e)  1  Saund.  347,  n.  (4),  Potter 
V.  Jiorth  ;  Maclean  y.  Dunn,  4  Bingp. 
722. 

{a)  BuUen  on  Distress,  130. 

(b)  The  above  Act,  s.  9,  repeals 
tbe  Agriculturtil  Holdings  Act, 
1853,  46  &  47  Vict.  o.  62,  s.  52, 


which  enacted  to  nearly  the  same 
effect  as  to  agiicnltoiai  holdings. 
As  to  the  latter  Act  see  Be  SanderSy 
Ex  parte  Sergeant^  54  L.  J.  Q.  B. 
331  ;  Coode  y.  Jonet,  L.  R.  17 
Q.  B.  D.  714  ;  65  L.  J.-  Q.  B.  476. 


CHAP.  III.  RENTS. 


435 


A  distress  must  be  made  in  the  daytime,  that  is,  between  DiBtress  must 
sunrise  and  sunset ;  and  it  lies  upon  the  distrainor  to  show  daytime."^ 
that  he  is  acting  legally  in  this  respect.  A  distress  made 
in  the  night  is  a  trespass,  for  which  the  tenant  of  the  land 
may  recover  damages  and  the  value  of  goods  taken  {c). 
Where  a  landlord  after  sunset  took  measures  forcibly 
to  prevent  the  removal  of  goods,  in  order  that  he  might 
distrain  them  the  next  day,  which  the  owner  of  the  goods 
forbore  to  resist,  it  was  held  that  the  latter  could  not  claim 
for  a  wrongful  conversion  and  deprivation  of  the  goods, 
because  they  remained  in  his  possession  and  control  until 
the  distress  was  legally  made  (d). 

It  is  not  lawful  at  common  law  to  break  into  a  house,  Breakuig  into 
either  through  the  outer  door  or  otherwise,  for  the  purpose  ^'"®' 
of  entering  to  distrain  {e).  It  is  lawful  to  open  an  outer 
door  for  that  purpose  in  the  usual  way,  by  turning  a  key 
or  latch ;  provided  the  door  is  fastened  merely  to  keep  it 
closed,  and  not  to  prevent  people  entering  (/).  An  entry 
to  distrain  may  be  made  through  an  open  window ;  and  a 
window  partly  opened  may  be  opened  wider  for  the  pur- 
pose of  entering  (g) ;  but  it  is  not  lawful  for  that  purpose 
to  open  a  closed  window,  though  not  fastened  (h).  The 
same  rule  a]^>lLes  to  buildings  of  all  kinds,  as  stables, 
bams  and  outhouses ;  also  to  enclosures  of  land.  It  is  not 
lawful  to  break  open  outer  doors,  windows,  gates  or  fences 
to  take  a  distress  (t).  Where  a  landlord  and  tenant  occu- 
pied adja<%nt  tenements,  being  tenants  in  common  of  the 
partition  between  them,  it  was  held  no  trespass  for  the 


(e)  Tutttm  V.  Darke^  6  H.  &  N. 
647 ;  29  L.  J.  Ex.  271 ;  Blackburn, 
J.,  Aitaek  Y.  Bramwelly  3  B.  &  S. 
630;  32  L.  J.  Q.  B.  160.  **But 
for  damage  featant  one  may  distrain 
in  the  night,  otherwise  it  may  be 
tiie  beasts  will  be  gone  before  he 
can  take  them."    Co.  Lit.  142  a, 

{d)  England  y.  Cowky^  L.  R.  8 
:^3L.  126;  42  L.  J.  Ex.  80 ;  Martin, 
B.,  ditsentienU, 


(e)  Semayne*8  ease,  6  Co.  92  a ;  1 
Smith's  L.  C. 

(/)  Ugan  v.  Shileoek,  7  Ex.  72 ; 
21  L.  J.  Ex.  56. 

{g)  Crahtree  v.  Sobimon,  L.  R.  16 
Q.  B.  D.  312 ;  54  L.  J.  Q.  B.  644. 

(A)  yath  y.  Ztteas,  L.  B.  2  Q.  B. 
690 ;  8  B.  &  S.  631. 

(i)  Co.  Lit.  161  a;  Brown  y. 
Qlen,  16  Q.  B.  264 ;  20  L.  J.  Q.  B. 
206. 


F  F  2 


436 


USES  AND  PROFITS  IN  LAND  OP  ANOTHER. 


inner  doors. 


Taking 
poflseesion  of 
g^oods  dis- 
trained. 


landlord  to  remove  the  partition,  and  that  thus  entering 
without  trespass  he  might  lawfully  distrain  (i) . — ^In  all  cases 
of  unlawful  entry  the  distrainor  is  a  trespasser  ab  initio ; 
the  distress  is  void ;  the  goods  taken  cannot  be  dealt  with 
as  a  distress,  or  applied  in  discharge  of  the  rent ;  and  the 
tenant  may  recover  the  goods  or  their  full  value  {J) .  By  the 
statute  11  Geo.  11.  c.  19,  s.  7,  a  special  power  is  given  to 
break  into  any  house,  close  or  place,  to  take  goods  fraudu- 
lently removed  from  the  demised  premises  to  prevent 
distress  (A;).  And  it  seems  that  a  special  power  to  break 
into  the  demised  tenement  may  be  acquired  by  express 
stipulation  with  the  tenant  (/). — After  an  entry  has  been 
lawfully  made,  inner  doors  and  fastenings  may  be  broken 
open,  if  necessary,  in  order  to  find  goods  distrainable  (m). 
If  a  distrainor  lawfully  in  possession  of  a  distress  is  for- 
cibly ejected,  or  if  in  his  temporary  absence,  not  having 
abandoned  the  distress,  the  house  or  premises  are  closed 
against  him,  he  may  lawfully  break  in  to  recover  pos- 
session (n). 

Distress  is  made  by  the  distrainor  or  his  bailifi  taking 
possession,  actual  or  constructive,  of  the  goods,  upon  the 
premises  out  of  which  the  rent  issues.  Entering  into  a 
house  and  taking  possession  of  some  specific  goods  as  a 
distress  in  the  name  of  all  the  goods  in  the  house  is  a  good 
distress  of  all  {o).  And  where  the  landlord  prevented  the 
removal  of  goods  from  the  demised  premises  under  a  claim 
of  distraining  them  there,  it  was  held  a  sufficient  taking 
possession  {p).  Where  a  bailiff  entered  upon  the  premises 
and  gave  a  written  notice  that  he  had  distrained  the  goods 
specified  in  the  notice,  it  was  held  to  be  a  sufficient  taking 


{%)  Gould  Y.  Bradttock,  4  Taunt. 
562. 

{j)  Attach  T.  BramweUf  3  B.  & 
S.  620 ;  32  L.  J.  Q.  B.  146 
432. 
LumUy  y.  Simmotu.  66 

L.  ^ 

(m)  Brown  y.    Daun,  Bull.  N. 
P.  81. 


(k)  Ante,  p. 
(/J  See  Zum 
I.  J.  C.  769. 


(n)  Eagleton  y.  Outterufye,  11  M. 
&  W.  466 ;  Bannister  y.  Myde,  29 
L.  J.  Q.  B.  141. 

(o)  Holt,  C.  J.,  in  Ihd  y. 
Monger,  6  Mod.  216. 

(p)  Wood  y.  Nunn,  6  Bing*.  10 ; 
Oramer  y.  Mott^  L.  B.  6  Q.  B.  367 ; 
39  L.  J.  Q.  B.  172. 


CHAP.  III.  RENTS.  .  ,  43? 

possession  upon  which  to  charge  the  landlord  with  an  ex-* 
cessive  distress  {q).  Where  a  landlord  sent  a  bailiff  to 
distrain  for  a  sum  of  rent  and  costs  of  distress,  which  was 
paid  by  the  tenant  to  prevent  the  distress,  it  was  held 
that  the  landlord  was  estopped  from  denying  that  he 
had  actually  distrained,  in  an  action  for  an  excessive 
distress  (r). 

At  common  law  the  landlord  having  taken  a  distress  for  Remoyal  and 
rent  was  required  to  remove  the  goods  off  the  demised  ™§iJSeM  ^ 
premises ;  and  if  he  kept  them  there  beyond  a  reasonable 
time  for  removal,  he  became  a  trespasser.  He  was  further 
required  to  put  them  in  a  pound,  that  is,  some  fit  and 
proper  place  for  Keeping  the  goods  taken  ;  but  he  was  not 
allowed  to  impound  them  on  the  premises  (s).  He  Was  not 
restricted  to  place  or  distance,  and  might  cause  much  trouble 
to  the  tenant  by  distraining  his  cattle  and  impounding 
them  in  several  and  distant  places ;  for  remedy  of  which 
hardship  the  Statute  of  Marlebridge,  52  Hen.  III.  c.  4, 
provided,  that  "  none  from  henceforth  shall  cause  any  dis- 
tress that  he  hath  taken  to  be  driven  out  of  the  county 
where  it  was  taken.''  The  statute  1  &  2  P.  &  M.  c.  12j 
s.  1,  further  provided,  '*  that  no  distress  of  cattle  shall  be 
driven  out  of  the  hundred  where  such  distress  is  taken, 
except  it  be  to  a  pound  overt  within  the  same  shire  not 
above  three  nules  distant  from  the  place  where  the  said 
distress  is  taken ;  and  that  no  cattle  or  other  goods  dis- 
trained or  taken  by  way  of  distress  for  any  manner  of  cause 
at  one  time  shall  be  impounded  in  several  places,  whereby 
the  owner  shall  be  constrained  to  sue  several  replevies  for 
the  delivery  of  the  said  distress."  The  statute  imposes  a 
penalty,  but  does  not  render  the  distress  void  {t). 

Now  by  the  statute  11  Geo.  II.  c.  19,  s.  10,  it  is  made  Lnpounding 

(q)  Swam  V.  Falmouth,  8  B.  &  C.  («)  Griffin  v.  Scott,  2  Ld.  Raym. 

456.  1426. 

(r)  Sutekina  v.  Scott,  2  M.  &  W.  (0  Gimbart  v.  Peki\  Stra.  1272  ; 

809.  Woodcroft  v.  Thompson,  3  Lev.  48. 


438  USES  AND  PROFITS  IN  LAND  OF  ANOTHER. 

on  the  pT6«      lawful  '^  for  any  person  lawfully  taking  any  distress  for  any 
°"*^'  kind  of  rent  to  impound  or  otherwise  secure  the  distress  so 

made,  of  what  nature  or  kind  soever  it  may  be,  in  such 
place,  or  in  such  part  of  the  premises  chargeable  with  the 
rent,  as  shall  be  most  fit  and  convenient  for  the  impound- 
ing and  securing  such  distress."  Since  this  enactme'bt  it 
has  become  the  general  practice  to  impound  goods  distrained 
by  securing  them  upon  the  premises ;  or  j  with  the  assent  of 
the  tenant,  by  leaving  them  as  they  stand  upon  the  premises 
without  any  removal  (t?).  The  distrainor  may  lock  np  the 
goods  in  part  of  the  premises,  if  necessary  for  their  security; 
but  he  cannot  lock  up  the  whole  premises  to  the  exclusion 
of  the  tenant  without  his  consent ;  if  he  cannot  impound 
them  safely  upon  the  premises,  he  must  impound  them 
elsewhere  (w).  No  separate  charge  for  impounding  can 
be  made,  where  the  distress  is  impounded  on  the  pre- 
mises (x). 
Fablio  and  j^^  common  law  pounds  were  distinguished  as  public  and 

pound.  private.     It  was  customary  in  manors  to  provide  a  pubUc 

pound  for  common  use,  and  to  appoint  a  pound  keeper. 
The  duty  of  the  pound  keeper  was  to  receive  into  the 
pound  aU  distresses  brought  to  him,  chiefly  cattle,  but 
without  any  responsibility  on  his  part  for  the  taking  or 
detaining ;  goods  impounded  being  considered  in  custody 
of  the  law,  whence  they  can  be  released  only  by  the  legal 
process  of  replevin,  unless  by  consent  of  the  distrainor  (y). 
This  public  or  manor  pound  was  called  a  pound  overly  that 
is,  open  of  access,  to  which  the  owner  of  cattle  impounded 
might  come  to  find  them  and  to  feed  them,  and  in  which 
they  remained  at  his  risk.  The  private  pound  was  that 
provided  by  the  distrainor  himself,  to  which  the  owner  of 

(r)  JFathbom  y.  Black,  11  East,  (x)  Child  r.  Chamherlaw^  5  B.  & 

406  ;  Th&mM  y.  Harries,  1  M.  AG.  Ad.  1049. 
696.  (y)  Bodkin  v.   PfWtU,  2  Gowp. 

(w)  EtherUm  y.  Popplewell,  1  East,  476 ;  Hawkins,  J.,  Oreen  y.  Duekett, 

139 ;   Woods  y.  Ihtrrant,   16  M.  &  L.  R.  11  Q.  B.  D.  280  ;  62  L.  J. 

W.   149  ;   Smith  y.  Athforth,   29  Q.  B.  436. 
L.  J.  Ex.  269. 


CHAP.  III.  BENTS.  439 

the  distress  had  no  access;  in  which,  therefore,  the  distrainor 
kept  cattle  impounded  at  his  own  risk  and  cost  (z). 

In  order  to  secure  the  feeding  of  cattle  impounded  it  is  Feedingr 
now  provided  hy  the  statute  6  &  6  Will.  IV.  c.  59,  that  ^^^"^ 
"  every  person  who  shall  impound  any  cattle  or  animal  in 
any  common  pound,  open  pound,  or  close  pound,  or  in  any 
inclosed  place  is  required  to  find,  provide,  and  supply  such 
cattle  and  animal  daily  with  good  and  Bu£Scient  food," 
under  a  penalty  of  five  shillings  a  day.  It  is  further  pro- 
vided that  he  may  recover  from  the  owner  of  such  cattle  or 
animal,  not  exceeding  double  the  value  of  the  food  supplied, 
by  proceeding  before  a  justice  of  the  peace ;  or  if  he  think 
fit,  he  may,  after  notice,  sell  the  cattle  or  animal,  and  apply 
the  proceeds  of  the  sale  in  discharge  of  the  value  of  the 
food,  rendering  the  overplus,  if  any,  to  the  owner. 

The  distrainor  is  in  all  cases  personally  responsible  that  liabiHtyof 
the  pound  used  by  him,  whether  public  or  private,  is  a  fit  gtate^^'  ^ 
and  proper  place  for  keeping  the  distress;  and  he  is  liable  pound, 
for  loss  of  or  damage  to  the  distress  caused  by  insiifficiency 
or  defects  of  the  pound,  as  for  the  escape  of  cattle,  or  for 
putting  cattle  into  a  pound  too  small  to  hold  them  properly, 
or  in  such  a  bad  condition  that  they  become  depreciated  in 
value.     But  he  would  not  be  responsible  if  the  distress 
escaped,  died,  or  was  stolen,  without  any  default  or  negli- 
gence on  his  part;  and   he   might  then  take  another 
distress  (a). 

At  conmion  law  a  distress  was  kept  impounded  as  a  Sale  of 
pledge  until  restored  by  replevin,  or  redeemed  by  payment ;  ^^"' 
but  it  afforded  no  direct  means  of  obtaining  satisfaction. 
The  statute  2  W.  &  M.  sess.  1,  c.  5,  s.  2,  first  gave  the 
means  of  obtaining  satisfaction  by  sale  of  the  goods  dis- 
trained. After  a  preamble  stating  that  "whereas  the 
most  ordinary  and  ready  way  for  recovery  of  arrears  of 

{z)  Co.  lit.  47  b ;  Holt,  C.  J.,      662 ;   JFilder  v.  Spe^r,  8  A.  &  E. 
Vaspor  Y.  JEdwards,  12  Mod.  664.         547  ;  Siffnell  y.  Clark,  6  H.  &  N. 
(a)  ratjHfr  y.  Edwardt,  12  Mod.      486  ;  29  L.  J.  Ex.  267. 


440  USES  AND  PROFITS  IN  LAJSD  OF  ANOTHER. 

i^nt  is  by  distress,  yet  such  distresses  not  being  to  be  sold, 
bat  only  detained  as  pledges  for  enforcing  the  payment  ol 
such  rent,  the  persons  distraining  have  little  benefit  there- 
by," for  remedy  thereof  it  proceeds  to  enact  "  that  where- 
any  goods  shall  be  distrained  for  rent  reserved  and  due 
upon  any  demise,  lease,  or  contract  whatsoever,  and  the 
tenant  or  owner  of  the  goods  so  distrained  shall  not,  within 
five  days  next  after  such  distress  taken,  and  notice  thereof, 
with  the  cause  of  such  taking,  left  at  the  chief  mansion- 
house  or  other  most  notorious  place  on  the  premises  charged 
with  the  rent  distrained  for,  replevy  the  same,  in  such  case 
the  person  distraining  shall  and  may  (in  manner  therein 
provided)  cause  the  goods  and  chattels  so  distrained  to  be 
appraised  by  two  sworn  appraisers ;  and  after  such  appraise- 
ment shall  and  may  lawfully  sell  the  goods  and  chattels  so 
distrained  for  the  best  price  that  can  be  gotten  for  the 
same,  towards  satisfaction  of  the  rent  for  which  the  said 
goods  and  chattels  shall  be  distrained  and  of  the  charges  of 
such  distress,  appraisement  and  sale  ;  leaving  the  overplus, 
if  any,  for  the  owner's  use."  The  statute  4  Geo.  II.  c.  28, 
s.  5,  gives  "  the  like  remedy  by  distress  and  by  impounding 
and  selling  the  same,  in  cases  of  rent  seeks,  rents  of  assize, 
and  chief  rents  as  in  case  of  rent  reserved  upon  lease  "  {b). 
Sale  upon  the  The  statute  11  Geo.  II.  c.  19,  s.  10,  applies  to  "  any  dis- 
tress for  any  kind  of  rent,"  and  after  providing  that  it  shall 
be  lawful  to  impound  the  distress  upon  the  premises,  as 
already  noticed,  gives  the  power  "  to  appraise,  sell  and  dis- 
pose of  the  same  upon  the  premises,  in  like  maimer  and 
imder  the  like  directions  and  restraints,  as  any  person 
taking  a  distress  for  rent  may  now  do  o£E  the  premises,"  by 
virtue  of  the  above  statutes  (c), 
Conrtnictioii  .  It  is  a  statutory  condition  of  a  sale  of  the  distress,  that 
as  to  notice  iiotioe  of  the  distress,  with  the  cause,  be  given  to  the  tenant 
ofdiBtresB.  Jn  the  manner  provided  in  the  Act;  and  it  is  usual  to 
deliver  with  it  an  inventory  of  the  goods  taken.    The 

{b)  Ante,  p.  374.  ,    (e)  Ante,  p.  437. 


CHAP.  Ill,  RENTS*  441 

notice  is  not  conclusiYe  as  to  the  things  taken,  in  support 
of  an  action  for  a  wrongful  distress ;  and  if  some  of  them 
be  not  distrainahle,  the  actual  taking  may  be  limited  to 
such  as  are  (6?). — The  five  days  allowed  for  replevin  are  Time  of 
reckoned  from  the  time  of  notice  left,  from  which  time  ^'^^' 
there  must  be  five  clear  days  or  intervals  of  twenty  four 
hours  each,  before  the  goods  can  be  lawfully  appraised 
and  sold  (e).  By  the  Law  of  Distress  Amendment  Act, 
1888,  51  &  52  Vict.  c.  21,  s.  6,  "  the  period  of  five 
days  shall  be  extended  to  a  period  of  not  more  than 
fifteen  days,  if  the  tenant  make  a  request  in  writing  in 
that  behalf"  (/).  A  reasonable  time,  according  to  the 
circumstances,  may  be  taken  after  the  five  days  for  the 
purpose  of  appraisement  and  sale;  and  a  further  time 
may  be  taken  with  the  consent  of  the  tenant  {g)i —  • 
Appraisement  of  the  goods  before  sale  by  two  sworn  Appraise- 
appraisers  (to  be  sworn  by  the  sheriff,  undersherifF,  or  ™^*- 
constable  of  the  hundred,  parish  or  place),  was  also  a  statu- 
tory condition;  but  which  the  tenant  might  dispense 
with  (A).  This  condition  is  now  repealed  by  the  Law 
of  Distress  Amendment  Act,  1888,  s.  5,  "  except  in  cases 
where  the  tenant  or  owner  of  the  goods  and  chattels  by 
writing  requires  such  appraisement  to  be  made ;  and  the 
landlord  or  other  person  levying  a  distress  may,  except  as 
aforesaid,  sell  the  goods  and  chattels  distrained  without 
causing  them  to  be  previously  appraised"  (t).  The  two 
appraisers  must  be  reasonably  competent,  but  they  need  not 
be  professional  {k).  They  must  not  be  interested  in  the 
distress,  and  therefore  the  distrainor  himself  cannot  act  as 

{d)  £eeIliY.Denbiffh,29lj.J,C.'P.  208;   Fisher  v.  Alffar,  2  C.  &  P. 

278.  374. 

{e)   WaUaeey,King,  1  H.  Bl.  13;  (A)  Biggim  ▼.  Goode,  2  C.  &  J. 

Harper  ▼.  Taswelly  6  C.  &  P.  166.  364  ;  Bishop  v.  Bryant,  6  C.  &  P. 

(J)  This  Act  repeals  s.  57  of  the  484. 

Agricultural  Holoings  Act,  1883,  (i)  This  Act  repeals  s.  60  of  the 

which  enacted  to  the  same  effect  Agricultural  Holdings  Act,  to  the 

^01  agricultural  holdings  only.  same  efPeot. 

(^)  FiU  Y.  Shawy  4  B.  &  Aid.  (k)  Boden  y.  By((m,  6  G.B.  429. 


442 


USES  AND  PROFITS  IK  LAND  OF  ANOTHER. 


Prioe* 


Charges  of 
distress. 


one  of  them  (»). — ^The  sale  must  also  be  "  for  the  best  price 
that  can  be  gotten."  The  sworn  appraisement  is  presomp- 
tively  the  best  price,  until  the  contraiy  be  shown;  and 
the  goods  may  be  sold  to  the  sworn  appraisers.  It  is  not 
necessary  to  have  a  sale  by  public  auction;  nor  is  the 
actual  sale,  whether  by  auction  or  not,  a  conclusiye  test  of 
the  best  price  (/ ).  By  the  Law  of  Distress  Amendment 
Act,  1888,  61  &  52  Vict.  o.  21,  s.  5,  a  sale  by  public  auction 
may  be  had  at  the  request  in  writing  and  at  the  cost  of  the 
tenant  (A*).  The  goods  must  be  sold  free  of  all  coTenants 
or  restrictions  that  may  affect  the  price ;  if  the  tenant  has 
covenanted  to  consume  hay  and  straw  upon  the  premises, 
the  landlord  having  distrained  such  goods  cannot  sell  them 
subject  to  the  like  condition,  but  must  sell  them  abso- 
lutely (/).  The  landlord  cannot  take  the  goods  at  the 
appraised  value  in  discharge  of  so  much  rent,  instead  of 
selling  them  for  the  best  price  that  can  be  gotten  in  satis- 
faction of  the  rent ;  unless  by  consent  of  the  tenant  or  of 
the  owner  of  the  goods  (m). — Goods  distrained  may  be  sold 
^*  towards  satisfaction  of  the  rent  and  of  the  charges  of  the 
distress,  appraisement  and  sale,  leaving  the  overplus,  if 
any,  for  the  owner's  use."  Where  the  rent  does  not  ex- 
ceed twenty  pounds,  the  charges  are  fixed  by  57  Geo.  IIL 
0.  93  (sched.) ;  if  the  rent  exceeds  that  amount,  the  charges 
must  be  reasonable,  and  the  amount  may  be  questioned  in 
an  action  for  not  leaving  the  overplus  according  to  the 
statute  (n).  By  the  same  statute,  sect.  6,  the  broker  or 
person  distraining  is  required  to  give  a  signed  copy  of  his 


i?: 


(i)  Lyon  v,  Weldon,  2  Blng.  334. 
f )  Walter y.  £umbaU,  1 L.  Baym. 
63  ;  4  Mod.  390 ;  Keightley  y.  Birch, 
3  Camp.   524 ;  Smith  y.  Mhforth^ 
29  L.  J.  Ex.  259. 

(J6\  The  above  Act  repealed  s.  50 
of  me  Agricultural  Holdingps  Act, 
1883,  wMch  enacted  to  the  same 
effect  for  agricultural  holdings  only. 
See  ante,  p.  441. 


m  Eawhins  y.  Walrond,  L.  B.  1 
C.  P.  D.  280 ;  46  L.  J.  C.  P.  772. 
See  Roden  v.  EyUm,  6  G.  B.  427. 

(m)  King  ▼.  England,  4  B.  &  S. 
782 ;  33  L.  J.  Q,  B.  146. 

(n)  Lyon  y.  Tomkiet,  I  M.  &  W. 
603.  By  the  Distreas  Amendment 
Act,  9upra,  s.  8,  the  Lord  Chan* 
oeUor  may  make  rules  for  r^^- 
lating  the  fees,  chargee  and  ex- 
penses in  distroBses. 


CHAP.  III.  BENTS.  443 

charges,  and  of  all  costs  of  the  distress  to  the  person  on 
whose  goods  the  distress  is  levied ;  but  a  landlord  not  per- 
sonallj  interfering  in  the  distress  is  not  liable  for  the 
neglect  of  his  broker  to  deliver  a  copy  (o). 

The  sale  of  a  distress  under  the  above  statutes  is  optional;  Sale  optional. 
a  landlord  having  distrained  for  rent  may  detain  the  dis- 
tress as  a  pledge  at  common  law  instead  of  selling  it{p). 
But  he  can  bring  no  action  for  the  rent  so  long  as  he 
detains  the  distress,  though  it  may  be  insufficient  in 
value  (g).  He  cannot  detain  the  distress  on  the  premises 
beyond  the  five  days  allowed  for  replevin  by  the  statute ; 
for  the  right  of  impounding  upon  the  premises  under  11 
Greo.  II.  c.  19,  is  only  given  for  the  convenience  of  selling, 
and  continues  only  so  long  as  may  be  necessary  for  that 
purpose ;  and  if  the  distress  is  not  removed  within  a 
reasonable  time  after  the  five  days  the  distrainor  is  answer- 
able as  a  trespasser,  imless  the  tenant  consents  (r).  The 
sale  of  com  and  hay,  distrainable  and  saleable  by  statute 
2  W.  &  M.  c.  5,  s.  3 ;  and  of  growing  crops,  distrainable 
and  saleable  by  11  Geo.  II.  c.  19,  s.  8,  is  made  compul- 
sory ;  such  goods  being  of  a  perishable  kind  («). 

The  tenant  or  owner  of  the  goods  may  prevent  the  sale  Tender  before 
not  only  by  replevin,  as  expressly  provided  in  the  statute,  ®*^®' 
but  also  "  upon  an  equitable  construction  of  the  statute " 
by  a  tender  of  the  amount  of  rent  and  costs  within  the  five 
days,  and  a  sale  after  such  tender  would  be  wrongfid  {t). 
At  common  law  a  tender  after  impounding  was  too  late  to 
avoid  the  distress ;  but  replevin  may  be  made  at  any  time 
during  the  continuance  of  the  distress  (u), 

{o)  Hart  V.  Leaeh,  1 M.  &  W.  660.  Winterbmmey.Morgan,  1 1  Ea8t,396. 

{p)  Bayley,  J.,  Lear  t.  JSdmonds,  («)  Fer  cur,  FiggoU  v.  Biriles,  1 

1  B.  &  Aid.  169 ;  Mudd  t.  Bavetwr,  M.  &  W.  448,  post,  p.  446. 

2  B.  &  B.  662.  (t)  Johnson  y.  Upham,  2  E.  &  E. 
(q)  Lehain  v.  Fhilpott^  L.  B.  10  260 ;  28  L.J.  Q.  B.  262,  overruling 

Ex.  242 ;  44  L.  J.  Ex.  226 ;  post,       Mlis  y.  Taglory  8  M.  &  W.  416. 
p.  471.  (m)  Fosty  p.  462  ;  Jacob  y.  King, 

(r)  Fitt  V.  Shewj  4  B.  &  Aid.  208 ;      6  Taunt.  461. 


444 


USES  AND  PROFITS  IN  LAND  OF  ANOTHER. 


§  2.  Things  Distrainable. 


Things 
sabject  to 
dis^^ss.   • 


Fixtures. 


Things  distrainable — fixtures. 

Animals. 

Perishable  goods — oom  and  hay — growing  crops. 

Things  in  personal  use. 

Implements  of  trade — ^beasts  of  plough — condition  of  privilege. 

Goods  of  strange  distrainable — exceptions  in  fayonr  of  trade — goods 
deliTered  for  working — tools  and  implements  of  trade— agricultural 
implements. 

Gkwds  delivered  to  agent  for  selling — for  safe  keeping— for  canying — 
oonvoyanoes  used  for  privileged  goods. 

Cattle  taken  in  to  feed. 

Protection  of  the  goods  of  lodgers. 

Goods  in  custody  of  the  law— goods  taken  in  execution — liability  of 
sherifP  after  notice  of  rent  due. 

Goods  in  possession  of  receiver — goods  in  bankruptcy — goods  of  com- 
pany under  winding  up. 

By  the  common  law  all  moveable  goods  and  chattels 
which  are  the  subjects  of  property,  may  be  taken  as  a 
distress  for  rent;  except  when,  imder  certain  circumstances, 
they  become  privileged  (a).  But  a  power  to  distrain  given 
by  deed  or  agreement  may  be  extended  or  restricted,  as  to 
the  things  distrainable,  beyond  the  rules  of  the  common 
law  (b). 

Fixtures,  in  the  strict  meaning  of  the  term,  that  is  things 
annexed,  actually  or  constructively,  to  the  land  or  to  build- 
ings upon  the  land,  being  considered  in  law  as  part  of  the 
land  itself,  are  not  distrainable  {c) ;  as  the  rails  and  sleepers 
of  a  railway  (d).    Beasons  given  for  this  rule  are;  that 


(a)  Co.  lit.  47  a. 

(b)  Re  Swale  Brick  Co,,  52  L.  J. 
C.  638 ;  Eortford  v.  WebaUr,  1  O. 
M.  &  R.  696. 


[c)  Ante,  p.  120;  Co.  Lit.  47^; 
jra>Ut  y.  Smith,  4  T.  R.  504  ;  Do/- 
ton  Y.  Whittem,  3  Q.  B.  961. 

(rf)  Turner  v.  Cameron,  L.  R.  5 
Q.  B.  306 ;  39  L.  J.  Q.  B.  125. 


CHAP.  III.  RENTS. 


445 


fixtures  cannot  be  severed  without  damage  to  the  land  or 
building ;  that  they  cannot  be  restored  in  statu  quo  ;  that 
no  part  of  the  land  itself  can  be  taken  in  distress,  but  only 
the  inducta  or  illata  upon  it  {e).  Nor  can  "  tenants'  fix- 
tures "  be  distrained  and  remoYed  by  the  landlord,  though 
removeable  by  the  tenant  during  his  tenancy  (/). — Keys, 
windows,  and  the  like  moveable  appurtenances  of  a  house 
are  parcel  of  the  freehold  by  construction  of  law,  and 
therefore  not  distrainable.  Also  title  deeds  and  other 
docimients  and  evidences  of  title  follow  the  land  to  which 
they  relate,  and  are  not  distrainable;  so  with  the  deed 
chests  or  boxes  exclusively  appropriated  to  keeping 
them  {g), 

Animals/grflg  naturae ^  not  being  the  subject  of  property,  AnimaU. 
cannot  be  taken  as  a  distress;  but  animals  reduced  into 
possession,  as  deer  in  a  park,  birds  in  a  cage,  dogs  and 
other  tame  animals  may  be  taken  {h).  Animals  kept  for 
use  as  horses,  sheep  and  cattle  may  be  taken,  with  the 
exception  or  privilege  that  those  used  for  working  the  land 
must  be  postponed  to  other  available  goods  (i). 

Things  of  a  perishable  nature,  which  cannot  be  detained  Perishable 
in  pledge  for  the  necessary  time  without  loss  or  damage,  ""^8^- 
nor  restored  in  the  same  condition  as  when  taken,  are 
privileged  from  distress ;  as  dead  meat,  milk,  fruit,  vege- 
tables and  the  like.  Nor  is  the  common  law  on  this  point 
affected  by  the  statutory  power  of  sale  given  by  2  W.  &  M. 
0.  5  (y). — It  seems  that  money  is  exempt  from  distress 
unless  enclosed  in  a  bag  or  box,  because  of  the  risk  of 


(e)  See  Simpson  v.  Hartopp,  WU- 
les,  612;  1  Smith's  L.  G.  180; 
Gilbert  on  Distress,  34,  cited  per 
eur.  HellatceU  y.  Eatttcood,  6  Ex. 
311 ;  Darby  r.  Harris,  1  Q.  B,  896. 

(/)  Darby  v.  Harris,  1  Q.  B. 
896 ;  HeUawell  v.  Easttcood,  supra. 

(ff)  Ante,  pp.  Ill,  126;  per  eur, 
HeUawelly,  Eastwood,  6  Ex.  311. 

{h)  Co.  Lit.  47  a  ;  Lavies  t. 
Towell,  Willes,  46 ;  as  to  property 


in  dogs,  see  Binstead  y.  Buck,  2  W. 
Bl.  1117.  Sect.  40  of  2  &  3  Vict. 
0.  71,  which  gives  power  to  metro- 
politan police  magistrates  to  order 
delivery  of  "  foods**  tmlawfully 
detained,  is  hela  to  include  dogs  as 

rls.    The  Queen  v.  Slade,  67  L.  J. 
120. 
(»)  Post,  p.  449. 

(j)  Morky  v.  Ptneombe,   2  Ex. 
101. 


446  USES  AND  PROFITS  IN  LAND  OF  ANOTHER. 

I08S,  and  the  difficulty  of  identifying  and  restoring  it  in 

replevin,    ixold  and  silver  may  be  distrained,  and   are 

to  be  taken  at  least  at  thdir  intrinsic  value  (k). 

Com  and  hay.      Com,  straw,  hay  and  the  like  were  not  distrainable  at 

oonunon  law,  because  of  the  risk  of  damage  in  removal ; 

but  carts  loaded  with  com  might  be  distrained,  for  they 

might  be  removed  and  restored  with    safety  (/).     The 

statute  2  W.  &  M.  sess.  1,  c.  5,  s.  3,  after  reciting  that  such 

things  could  not  be  distrained  for  rent,  enacted  that  ^'  it 

shall  be  lawful  for  any  person  having  rent  arrear  and  due 

upon  any  demise,  lease,  or  contract,  to  seize  and  secure  any 

sheaves  or  shocks  of  com,  or  com  loose  or  in  the  straw, 

or  hay  lying  or  being  in  any  bam  or  granary,  or  upon  any 

hovel,  stack,  or  rick,  or  otherwise  upon  any  part  of  the 

land  charged  with  the  rent,  and  to  lock  up  or  detain  the 

same  in  the  place  where  the  same  shall  be  found,  for  and 

in  the  nature   of    a  distress,  tmtil    the  same  shall  be 

replevied ;  and  in  default  of  replevying  the  same  within 

the  time  aforesaid,  to  sell  the  same  after  such  appraisement 

thereof  to  be  made"(w).     This  statutory  power  applies 

to  rent  charge  as  well  as  to  rent  reserved,  to  which  the  sale 

given  by  sect.  2  is  confined  (»).     The  statutory  sale  of 

these  things  is  compulsory ;  that  of  things  distrainable  at 

common  law  is  optional  (o). 

Growing  Growing  crops  of  com,  grass  or  other  product  were  not 

^*°^'  distrainable  at  common  law,  because  annexed  to  the  soil 

and  not  available  for  any  purpose  until  properly  cut  and 

gathered.     By  the  statute  11  Geo.  II.  c.  19,  s.  8,  it  was 

enacted  that  "  it  shall  be  lawful  for  every  lessor  to  take 

and  seize  all  sorts  of  com  and  grass,  hops,  roots,  fruits, 

pulse  or  other  product  whatever,  which  shall  be  growing 

(*)  2  Bac.  Abr.   109;   Moir  v.  bjr9  &  10  Vict.  c.  95,  s.  96. 
Munday^  cited  1  Burr.  690.  Konej,  (T)  Co.  Int.  47  a. 

bank  notes  and  securities  for  money  hn)  See  sect.  2,  ante,  p.  439. 

were  made  seizable  under  a  writ  of  (n)  Johnson  y.  Faulkner,  2  Q.  B. 

Jleri  faeiaSf  by  the  statute,  1  &  2  925 ;  ante,  p.  440. 
Vict.  0.  110,  s.  12,  and  nnder  an  (o)  Fer  eur.  FiggoU  v.  Firtlet,  1 

ezeoation  out  of  the  County  Court  H.  &  W.  448  ;  ante,  p.  443. 


CHAP.  III.  BENTS.  447 

on  any  part  of  the  estates  demised  orholden,asa  distress 
for  arrears  of  rent;  and  the  same  to  cut,  gather,  make,  cure, 
carry,  and  lay  up,  when  ripe,  in  the  bams  or  other  proper 
place  on  the  premises ;  and  in  convenient  time  to  appraise, 
sell,  or  otherwise  dispose  of  the  same  towards  satisfaction 
of  the  rent  for  which  such  distress  shall  have  been  taken, 
and  of  the  charges  of  such  distress,  appraisement  and  sale, 
in  the  same  manner  as  other  goods  may  be  seized,  dis- 
trained and  disposed  of;  and  the  appraisement  thereof  to  be 
taken  when  cut,  gathered,  cured,  and  made,  and  not  before." 
— This  statute  applies  in  terms  only  to  lessors  and  landlords, 
and  therefore  to  rent  service  only ;  the  grantee  of  a  rent 
charge  cannot  distrain  growing  crops,  imless  the  power  be 
expressly  given  him  by  the  terms  of  his  grant.  Where  a 
rent  charge  was  granted,  with  power  to  distrain  for  arrears 
and  to  dispose  of  the  distress  "  in  the  same  manner  as  dis- 
tresses for  rents  reserved  upon  leases  for  years,"  it  was 
held  upon  the  construction  of  the  deed,  that  the  reference 
to  rents  applied  only  to  the  mode  of  disposing  of  the  dis- 
tress, and  did  not  extend  the  power  to  growing  crops  (/?). 
— ^A  sale  of  the  crops  in  a  growing  state  is  not  authorized 
by  the  statute ;  it  is  wholly  void  and  has  no  effect  upon 
the  property;  but  it  does  not  affect  the  legality  of  the 
distress,  and  the  tenant  has  no  cause  of  action  except  for 
the  damage,  if  any,  caused  by  the  irregularity  of  the 
sale  (q).  A  sheriff  seizing  growing  crops  in  execution 
must  sell  them  standing,  he  cannot  recover  expense  in- 
curred in  cutting  and  making  them  (r).  The  words  "other 
product"  include  all  things  of  a  like  kind  to  those  men- 
tioned, but  not  trees  and  shrubs  in  a  nursery  garden, 
■which  remain  exempt  from  distress  («).  The  crops  of  an 
outgoing  tenant,  which  he  retains  the  right  of  cutting  and 
carrying,  cannot  be  distrained  upon  for  rent  of  the  incoming 
tenant ;  for  the  tenant's  right  to  take  the  growing  crops 

{p)  Miller  v.  Greept  2  0.  &  J.  M.  326 ;  Soffera  v.  Farker,  18  0.  B. 

142  ;  8  Bing.    92  ;  see  Johnson  r.  112;  25  L.  J.  0.  P.  220. 

Faulkner,  2  Q.  B.  925.  (r)  S^  IToodham,  L.  B.  20  Q.  B. 

(q)  Owen  v.  Zephf  3  B.  &  Aid.  D.  40 ;  57  L.  J.  Q.  B.  46. 

470 ;  Droudlove  y.  TwemUw,  1  C.  &  («)  Clark y.  OaskarthfSTmaiAZU 


448 


USES  AND  PROFITS  IN  LAND  OF  ANOTHER. 


Gk)od8m 
penonalTiBe. 


Implements 
of  trade. 


is  paramount  to  that  of  the  landlord  {t). — ^The  growing 
crops  thus  msule  distrainahle  by  the  statute  become  subject 
to  replevin  as  goods  and  chattels  (u).  The  statutory  sale 
of  a  distress  of  growing  crops  is  compulsory  (r). 

Goods  in  the  actual  use  of  a  person  are  privileged  from 
distress;  as  a  horse  which  a  man  is  riding;  or  an  axe 
with  which  he  is  cutting  wood,  or  a  loom  with  which  he 
is  weaving ;  because  the  taking  of  things  out  of  personal 
possession  tends  to^  a  breach  of  the  peace  {tc).  So,  wearing 
apparel  in  actual  use  on  the  person  is  not  distrainahle  (x) . 
By  the  Law  of  Distress  Amendment  Act,  1888,  51  &  52 
Vict.  c.  21,  s.  4,  exemption  from  distress  for  rent  is 
extended  to  ''  any  goods  or  chattels  of  the  tenant  or  his 
family  which  would  be  protected  from  seizure  in  execution 
under  s.  96  of  the  County  Courts  Act,  1846,"  (re-enacted 
by  the  County  Courts  Act,  1888,  s.  147,)  namely,  "the 
wearing  apparel  and  bedding  of  such  person  or  his  family, 
and  the  tools  and  implements  of  his  trade,  to  the  value  of 
five  pounds." — ^A  horse  and  cart  cannot  be  distrained  as 
damage  feasant  whilst  being  led  or  driven  by  a  person  (j/)  ; 
but  a  dog  accompanying  a  person,  and  not  otherwise  in 
personal  possession  and  use,  may  be  distrained  damage 
feasant  (s). 

A  privilege  from  distress  attaches  to  some  things  only 
under  the  condition  that  other  sufficient  distress  can  be 
found  upon  the  premises.  By  the  common  law  "  no  man 
shall  be  distrained  by  the  utensUs  or  instruments  of 
his  trade  or  profession,  as  the  axe  of  a  caipenter,  or  the 
books  of  a  scholar,  while  other  goods  may  be  dis- 
trained" (a).     If  such  things  are  also  in  actual  use  at  the 


(t)  Eaton  Y.  Southby,  Willee,  131. 

(m)  Olover  v.  Colea^  1  Bing.  6. 

\v)  Fer  cur.  I^goH  r.  BiHles^  1 
M.  &  W.  448 ;  ante,  p.  446. 

(ic)  Ck>.  lit.  47  a  ;  Simpson  v. 
Eartoppj  WiUes,  512;  1  Smith's 
L.  C. 

(x)  Biitet  T.  CaldweU,  Peake,  36  ; 
JBayne*  r.  Smith,  1  Eep.  206 ;  see 


B 


Sunbol/Y.  Afford,  3  H.  &  W.  248. 

(y)  Storey  v.  Robineon,  6  T.  R. 
138  ;  Field  r.  Adamet,  12  A.  &  £. 
649. 

(z)  Bunch  T.  Kenninyton,  I  Q.  B. 
679. 

(a)  Co.  Lit.  47  a  :  Simpmn  y^ 
Martoppf  WiUes,  612 ;  1  Smith'n 
L.  C. ;  O^ton  v.  FM-ner,  4  T.  IL 


CHAP.  III.  RENTSi 


449 


time,  they  become  absolutely  privileged,  as  above  stated  (6). 

— Also  by  the  statute  28  Ed.  I.  e.  12,  which  is  declara-  Beasts  of  the 

tory  of  the  common  law,  "  no  man  shall  be  distrained  by  ^  ^^^  * 

Ids  beasts  that  work  his  land,  nor  by  his  sheep,  so  long 

as  there  can  be  found  other  chattels  sufficient  for  the 

demand"  (c). 

Such  things  sj^eprimd  facie  distrainable,  and  it  lies  upon  Condition  of 
the  tenant  to  prove  the  condition  of  privilege  by  evidence  ^^"^  ^^^' 
that  sufficient  other  chattels  could  be  found  {d),  Gfrowing 
crops,  distrainable  by  statute,  are  not  available  as  other 
chattels  for  this  purpose ;  because  they  cannot  be  sold 
until  they  are  cut  and  carried  (e).  The  sufficiency  of  the 
other  chattels  is  to  be  estimated  at  the  time  of  taking  the 
distress;  and  not  by  the  subsequent  sale  (/).  If  there 
are  other  distrainable  goods  of  sufficient  value  on  the  pre- 
mises at  the  time,  the  distress  is  wholly  wrongful  and  may 
be  treated  as  a  trespass  by  the  owner  of  the  goods  (g). 
Such  things,  when  rightfully  taken,  have  no  further 
privilege  of  being  postponed  in  the  sale  {h). 


As  a  general  rule,  the  ownership  of  distrainable  goods  Goods  of 
found  upon  the  demised  premises  is  immaterial ;  they  are  diS^aable. 
equally  liable  to  distress,  whether  they  belong  to  the 
tenant  or  to  a  stranger.  And  the  statutory  power  to  sell 
goods  distrained  enables  the  landlord  to  sell  the  goods  of  a 
stranger,  and  to  apply  the  proceeds  in  discharge  of  the 
rent  (*).  The  statutory  power  to  follow  and  distrain  off 
the  premises  goods  removed  to  prevent   distress  applies 


665  ;  Karvey  y.  Foeock,  11  M.  &  W. 
740. 

(b)  AnU,  p.  448. 

(tf)  Co.  Lit.  47  a ;  2  Co.  Inst. 
132  ;  Jenner  v.  Yollandy  6  Price,  6  ; 
Keen  v.  JPriesi,  4  H.  &  N.  236  ;  28 
L.  J.  Ex.  157.  The  privilege  does 
not  apply  to  a  distress  for  rates, 
which  is  in  the  nature  of  an  exe- 
cution for  a  statutory  debt,  and 
not  a  mere  pledge  to  be  detained 
till  payment.  Hutehins  t.  Cham^ 
bert,  1  Burr.  688. 


i; 


(d)  Anon.y  Dyer,  312. 

(tf)  Fiffffott  V.  Birtles,  1  M.  &  W. 
441.     See  ante,  p.  447. 

(/)  Jenner  v.  Tollandy  2  Chitty, 
167  ;  6  Price,  5. 

(^)  Nargatt  v.  Kias,  1  E.  &  E. 
439  ;  28  L.  J.  Q.  B.  143. 

(A)  Jenner  v.  YoUandy  supra. 

(i)  Cramer  v.  Mottj  L.  B.  6  Q.  B. 
360;  39  L.  J.  Q.  B.  172;  per  Black- 
bum,  J.,  Lyons  v.  Elliott ^  L.  R.  1 
Q.  B.  D.  213. 

G  O 


450 


USES  AND  PROFITS  IN  LAND  OF  ANOTHER. 


ExceptioDs 
in  favour  of 
trade. 


only  to  goods  of  the  tenant  or  lessee  {j). — ^The  above  role 
applies  in  distraining  for  all  rents  properly  so  called, 
whether  rent  service  or  rent  charge  (k) ;  and  in  distraining 
for  annuities  charged  upon  the  land  (/) ;  but  it  cannot 
be  applied  to  a  power  given  by  covenant  or  agxeenient  to 
seize  goods  as  a  distress  or  security  for  any  debt  or  pay- 
ment, not  being  a  rent  issuing  out  of  land  (m).  The 
distress  under  an  attornment  clause  in  a  mortgage  deed  is 
a  distress  for  rent,  attended  with  all  the  incidents  of  such 
distress,  whether  common  law  or  statutory,  and  the  goods 
of  a  stranger  may  be  taken  under  it(»). — A  landlord  may 
by  special  agreement  renounce  the  right  of  distraining  the 
goods  of  a  stranger  (o).  And  a  mortgagee  in  posseesion 
is  not  liable  to  account  to  his  mortgagor  for  loss  of  rent 
caused  by  his  neglecting  to  distrain  goods  which  do  not 
belong  to  the  tenant  of  the  premises  {p).  Qoods  of  the 
tenant  seized  by  the  grantee  of  a  bill  of  sale  are  distrain- 
able  so  long  as  they  remain  upon  the  premises ;  and  the 
grantee  is  required  by  the  Bills  of  Sale  Act,  1882,  bs.  7, 
13,  to  keep  the  goods  upon  the  premises  for  five  clear  days 
after  the  seizure  to  enable  the  grantor  to  apply  to  a  judge ; 
but  he  is  not  bound  to  keep  them  there  to  enable  the 
landlord  to  distrain ;  and  he  may  remove  them  at  any 
time  with  the  consent  of  the  grantor  for  whose  benefit 
only  the  five  days  are  allowed  (q). 

Exceptions  to  the  above  rule  are  made  by  law  under  a 
general  principle  in  favour  of  trade.  The  goods  of  a 
stranger  are  privileged  from  distress,  which  have  been 
"  delivered  to  a  person  exercising  a  trade,  to  be  carried, 


(J)  Thornton  t.  Adams,  5  M.  & 
S.  38 ;  ante,  p.  434. 

{k)  Saffery  v.  Elgood,  1  A.  &  E. 
191 ;  Johnson  t.  Faulkner,  2  Q.  B. 
925. 

(/)  See  Mtuprait  v.  Gregory,  1  M. 
k  W .  633. 

(«n)  Freeman  v.  Edwards,  2  Ex. 
732 ;  see  Re  Sankey  Brook  Coal  Co,, 
L.  B.  12  Eq.  472 ;  41  L.  J.  C.  119. 


(n)  Kearsley  v.  FhUine,  L,  R,  11 
Q.  B.  D.  621 ;  62  L.  J.  Q.  B.  581 ; 
see  ante,  p.  378. 

(o)  Fowkea  t.  Joyce,  2  Vem.  129 ; 
Honford  v.  Webeter,  1  C.  M.  &  R. 
696 ;  see  Gilee  v.  Spencer,  3  C.  B. 
K.  S.  2^3. 

(p)  Cocke  T.  Oray,  1  Giff.  77; 
26  L.  J.  C.  607. 

iq)  Lane  t.  Tyler,  66  L.  J.  Q.  B. 
461. 


CHAP.  III.  RENTS.  461 

"WTOnglit  or  manufactured  In  the  way  of  his  trade"  (r). 
The  privilege  is  restricted  to  the  premises  of  the  trader  or 
workman.  If  he  is  employed  in  his  business  upon  the 
premises  of  the  owner  of  the  goods,  or  to  deal  with  them 
on  other  premises  than  his  own,  there  is,  in  general,  no 
privilege  against  distress  for  the  rent  of  those  premises  («). 
But  goods  delivered  for  carriage  are  exceptional  in  being 
privileged  during  the  carriage  in  all  places  {t). 

The  following  are  examples  of  this  privilege  :  A  horse  Goods  de- 
sent  to  a  smith's  shop  to  be  shod ;   cloth  or  garments  ^o^^i*'' 
delivered  to  a  tailor  to  be  worked  up  or  repaired ;  com 
delivered  to  a  miller  to  be  ground  (w) ;  materials  delivered 
to  a  weaver  to  be  woven  (t?) ;  beasts  sent  to  a  butcher  to  be 
slaughtered  (w) ;    a  ship   delivered  to   a  shipbuilder  for 
repair  in  his  dockyard  (x). — There  is  no  privilege  for  goods  Goods  made 
made  by  a  workman  or  trader  for  delivery  to  a  buyer  or  ®^' 

employer,  although  made  to  order,  and  at  the  cost  of  the 
buyer ;  as  in  the  case  of  a  ship  built  to  order  in  the  ship- 
builder's yard,  and  paid  for  by  instalments  as  completed. 
There  must  be  a  delivery  of  the  goods  or  materials  by  the 
owner  to  the  workman  or  trader,  actual  or  constructive,  in 
order  to  create  the  privilege  (y). 

Tools  and  implements  of  trade  delivered  to  a  workman  Tools  and 
for  use  in  his  business  are  not  privileged,   although  de-  ^de!"'^'^    ^ 
livered  for  the  special  purpose  of  working  particular  mate- 
rials:   as  where  looms  were  lent  to  weavers  for  use  at 
their  own  homes,  and  material  provided  for  weaving,  it 
was  held  that  though  the  material  was  within  the  privilege. 


(r)  Willea,    C.    J.,   Simpson   v.  L.  0. 
Sartoppf  Willes,    516;    1    Smith  (v)  JUde   v.  BurUy,   Gro.  Eliz. 

li.  0.  8th  ed.  450;  Clarke  r.  Mill-  549  ;    Wood  v.  Clarke,  1  C.  &  J. 

wall  Dock  (%.,  L.  B.  17  Q.  B.  D.  484 ;  Gibson  v.  Iveaony  3  Q.  B.  39. 
494 ;  66  L.  J.  Q.  B.  378.  (w)  Brown  v.  Skevill,  2  A.  &  E. 

(s)  Lyons   y.   miioity    L.    B.    1  138. 
Q.  B.  D.  214 ;  46  L.  J.  Q.  B.  159 ;  {x)  Clarke  v.  MillicaU  Bock  Co., 

Crosier  v.  Tomkinson,  Barnes,  472 ;  55  L.   J.   Q.   B.   378 ;   L.   B.   17 

2  Kenjon,  439.  Q.  B.  D.  494. 

(t)  Fost,  p.  463.  (y)  Clarke  v.  Milhcall  Dock  Co.^ 

{u)  Go.   Lit.   47  a;    Simpson    y.  supra. 
Sartopp,   Willes,   512;    1    Smith, 

gg2 


452 


USES  AinO  PROFITS  IN  LAND  OF  ANOTHER. 


Affricullural 
implements. 


lave  stock 
for  bzeediDg. 


Gas  fittbgH. 


Goods 
deliverei  to 
agent  for 
belling. 


the  weaving  looms  were  not  (z).  So  the  casks  of  a  brewer 
delivered  to  a  publican  to  be  used  bj  him  for  keeping  the 
beer  until  it  is  consumed,  according  to  the  practice  of  the 
trade,  are  not  privileged  (a).  Tools  and  implements  of 
trade  under  such  circumstances  are  privileged  conditionally 
in  right  of  the  workman  or  trader,  if  other  sufficient  dis- 
tress can  be  found;  and  they  are  privileged  absolutely 
while  in  actual  use  (6). 

A  special  privilege  was  given  to  agricultaral  implements 
and  machinery  by  the  Agricidtural  Holdings  Act,  1883, 
46  &  47  Vict.  c.  61,  s.  45,  providing  that,  "  Agricultural  or 
other  machinery  which  is  the  hoiidfide  property  of  a  person 
other  than  the  tenant,  and  is  on  the  premises  of  the  tenant 
under  a  bond  fide  agreement  with  him  for  the  hire  or  use 
thereof  in  the  conduct  of  his  business ;  and  live  stock  of 
all  kinds  which  is  the  bond  fide  property  of  a  person  other 
than  the  tenant,  and  is  on  the  premises  of  the  tenant 
solely  for  breeding  purposes,  shall  not  be  distrained  for 
rent  in  arrear." — ^A  special  exception  is  also  made  by 
statute  of  meters  and  fittings  for  gas  let  for  hire  by  gas 
companies;  which  are  exempted  from  distress  for  rent 
by  tiie  Grasworks  Clauses  Act,  1847,  10  &  11  Vict  c.  15, 
s.  14(c). 

Goods  delivered  to  an  agent  for  the  purpose  of  selling 
in  the  way  of  his  business  are  privileged ;  as  goods  con- 
signed for  sale  to  a  factor  or  to  a  commission  agent  (d) ; 
and  goods  delivered  to  an  auctioneer  to  sell  on  his  own 
premises,  or  on  premises  occupied  by  him  for  that  pur- 
pose (<?).  But  if  an  auctioneer  is  employed  to  sell  goods 
upon  the  premises  of  another  person,  there  is  no  privily 


{z)  Gorton  v.  Falkner,  4  T.  R. 
666 ;  Wood  v.  Clarke,  1  C.  &  J.  484. 

(a)  TouU  Y.  JaeJaon,  7  M.  &  W. ' 
460. 

ip)  lb,,  ante,  p.  448. 

[c)  Gat  Light  and  Coke  Co,  y, 
iTardy,  L.  B.  17  Q.  B.  D.  619 ;  66 
L.  J.  Q.  B.  168. 


(d)  Gilman  y,  ElUm^  3  B.  ft  B. 
76 ;  Findon  y.  McLaren,  6  Q.  B. 
891. 

{e)  Adams  y.  Grane,  1  G.  &  H. 
380 ;  Broum  y,  ArtmdeU^  10  C  B. 
64;  WiUiam»Y,Holme9y%'E^.m\ 
22  L.  J.  Ex.  283. 


CHAP.  III.  RENTS. 


-453 


•against  a  distress  of  the  goods  for  the  rent  of  those 
premises,  whether  they  are  the  goods  of  the  tenant  himself, 
or  of  another  person  who  has  sent  them  there  for  sale  (/). 
— Goods  exposed  for  sale  in  a  public  market  or  fair  are 
privileged  from  distress  (g). 

Goods  delivered  to  a  person  for  safe  keeping  in  the  Goods 
way  of  his  trade  are  privileged ;  as  goods  deposited  with  ^e^^^^I 
a  warehouseman  or  wharfinger  (A) ;  goods  deposited  at  a 
furniture  warehouse  (t) ;  goods  pledged  to  a  pawnbroker  (j). 
The  goods  of  a  guest  at  an  inn  are  privileged  whilst  they 
remain  upon  the  premises  of  the  innkeeper;  but  if  the 
innkeeper  places  them  upon  the  premises  of  others,  the 
goods  are  there  liable  to  distraint  (A).  Horses  and 
carriages  delivered  to  a  livery  stable  keeper  to  stand  at 
livery  have  been  held  not  to  be  privileged ;  because,  it  was 
said,  the  purpose  of  delivering  the  goods  upon  the  premises 
was  to  remain  there  at  the  will  of  the  owner,  and  the  work 
done  upon  them  was  merely  incidental  to  that  purpose  (/). 

Goods  delivered  to  a  carrier  are  privileged ;  also  goods  Goods 

,,__  #11*  A#]      ^ 

carried  on  their  way  to  a  fair  or  market.     These  cases  canrin^ 
are  exceptional  in  this  respect,  that  the  goods  are  privileged 
during  the  carriage,  on  whatever  premises  they  may  be 
lodged  (m). — The  privilege  of  the  goods  in  the  above  cases  Conveyances 
extends  to  all  things  accessory  to  the  delivery  of  the  goods,  goods. 
"  Thus  the  horse  or  carriage  conveying  goods  is  so  privi- 
leged ;  and  so  also  the  basket  or  packages  •  in  which  they 


(/)  ZyoM  V.  Elliott,  L.  B.  1 
Q.  B.  D.  210 ;  46  L.  J.  Q.  B.  159. 

(^)  Co.  Lit.  47  a. 

(A)  Thompson  y.  Maskiter,  1  Bing. 
283. 

(i)  Miles  V.  Furher,  L.  R.  8  Q.  B. 
77;  42  L.J.  Q.  B.  41. 

0)  Swire  v.  Leach,  18  C.  B.  N.  S. 
479;  34  L.  J.  C.  P.  160.  The 
sheriff  may  take  in  execution  goods 
pledged  to  a  pawnbroker,  whether 
redeemable  or  not,  and  may  sell 
them  when  the  period  for  redemp- 
tion has  expired:  Re  Hollason,  56 
Ji.  J.  C.  768 ;  L.  R.  34  C.  D.  496. 


(At)  jRobinson  y.  Walter,  3  Bulstr. 
269  ;  Croiicr  y.  Toinkinson^  2  Ken- 
yon,  439 ;  Barnes,  472. 

(/)  Francis  y.  JFyatt,  1  W.  Bl. 
483 ;  3  Burr.  1498 ;  Parsons  y. 
Gingell,  4  C.  B.  645 ;  but  eee  Cock- 
bum,  C.  J.,  Miks  y.  Farhcr,  L.  R. 
8  Q.  B.  82;  42  L.  J.  Q.  B.  41; 
Cocks  y.  Gray,  1  GifP.  77 ;  26  L.  J.  C. 
607. 

(m)  Co.  Lit,  47 «;  Gisboum  y. 
Hurst,  1  Salk.  249;  Alderson,  B., 
Muspratt  y.  Gregory,  1  M.  &  W. 
647 ;  Blackburn,  J.,  Lyons  y. 
Elliott,  L.  R.  1  Q.  B.  D.  214;  45 
L.  J.  Q.  B.  169. 


454  USES  AND  PBOFITS  IK  LAfn>  OF  AKOTHEK. 

are  enveloped"  (n).  But  there  is  no  privflege  for  a  con- 
veyance sent  for  the  delivery  of  goods  not  privileged;  as 
in  the  case  of  a  boat  sent  by  a  buyer  to  the  premises  of  the 
seller  to  be  laden  with  goods  there  sold  and  delivered  by 
the  latter  in  the  way  of  his  trade  (o).  The  conveyance  ia 
such  cases  so  long  as  retained  in  the  possession  of  the 
owner,  while  waiting  for  and  discharging  or  loading  goods, 
would  be  privileged  by  reason  of  the  personal  use  and 
possession  (/>). 
Ckttle  taken  Cattle  taken  in  to  agist  or  feed  had  no  privilege  at 
"*  common  law  (q) ;  but  they  are  now  conditionally  privil^ed 

by  the  Agricultural  Holdings  Act,  1883,  46  &  47  Tict 
c.  61,  s.  45,  which  provides  that  "where  live  stock 
belonging  to  another  person  has  been  taken  in  by  the 
tenant  of  a  holding  to  which  this  Act  applies,  to  be  fed  at 
a  fair  price  agreed  to  be  paid  for  such  feeding  by  the 
owner  of  such  stock  to  the  tenant,  such  stock  shall  not  be 
distrained  by  the  landlord  for  rent,  where  there  is  other 
8u£Scient  distress  to  be  found ;  and  if  so  distrained  there 
shall  not  be  recovered  by  such  distress  a  sum  exceed- 
ing the  amount  so  agreed  to  be  paid  for  the  feeding." 
Cattle  put  on  by  the  owner,  having  purchased  the  exclu- 
sive right  to  feed  the  grass  on  the  land,  are  not  privileged 
under  this  section  (r) .  The  "  fair  price  "  in  the  above  section 
may  be  settled  by  way  of  barter  as  well  as  in  cash ;  as  by 
agisting  cattle  for  their  milk  («).  By  sect.  46,  any  dispute* 
in  respect  of  any  distress  having  been  levied  contrary  to 
this  Act  may  be  heard  and  determined  by  the  County 
Court,  or  by  a  court  of  summary  jurisdiction. 

Protection  of       By  the  statute  34  &  35  Vict.  c.  79,  "  An  Act  to  protect 
lodgers.  t^®  goods  of  lodgers  against  distresses  for  rent  due  to  the 

(n)  Alderson,    B.,   Muapratt   v.  ^ou7*«  v. /([>y«,  2  Vem.  129;  ifort- 

.Gregory,  1  M.  &  W.  647.  ford  v.  WebtUr,  1  C.  M.  &  B,  ^9%, 

(o)  Mmprait  t.  Gregory^  1  M.  &  (r)  Masters  v.  Great,  L.  B.  20 

W.  633 ;  3  lA.  677.  Q.  B.  D.  807. 

(p)  lb.,  ante,  p.   448 ;   Bede  y.  («)  London  f  Yorkshire  Bmk  r. 

Burley,  Cro.  Eliz.  649.  BeUon,  L.  E.  15  Q.  B.  D.  467;  64 

{q)  Rolle,  Abr.  "Distress."    See  L.  J.  Q.  B.  668. 


CHAP.  ni.  RENTS. 


455 


superior  landlord,"  it  is  enacted,  s.  1,  "  If  any  superior 
landlord  shall  levy  a  distress  on  any  furniture,  goods,  or 
chattels  of  any  lodger  for  arrears  of  rent  due  to  such 
superior  landlord  by  his  immediate  tenant,  such  lodger 
may  serve  such  superior  landlord  with  a  declaration  in 
writing  setting  forth  that  such  furniture,  goods,  or  chattels 
are  the  property  or  in  the  lawful  possession  of  such  lodger; 
and  also  setting  forth  whether  any  and  what  rent  is  due 
from  such  lodger  to  his  immediate  landlord;  and  such 
lodger  may  pay  to  the  superior  landlord  the  rent,  if  any, 
so  due,  or  so  much  thereof  as  shall  be  suj£cient  to  discharge 
the  claim  of  such  superior  landlord."  Sect.  2,  "If  any 
superior  landlord,  after  being  served  with  the  before-men- 
tioned declaration,  and  after  the  lodger  shall  have  paid  or 
tendered  the  rent  which  by  the  last  section  such  lodger  is 
authorized  to  pay,  shall  levy  or  proceed  with  a  distress  on 
the  furniture,  goods,  or  chattels  of  the  lodger,  such  superior 
landlord  shall  be  deemed  guilty  of  an  illegal  distress  "  (t), 
—If  a  landlord,  having  distrained  the  goods  of  a  lodger, 
sells  them  within  the  statutory  five  days,  the  lodger  may 
maintain  an  action  for  the  irregularity;  for  he  is  prevented 
by  the  sale  of  the  goods  from  serving  a  declaration  entitling 
him  to  the  benefit  of  the  Act  {u), 

GKxkIs  in  the  custody  of  the  law  are  privileged  from  dis-  GoocU  in 
tress ;    such  is  the  position  of  things  already  distrained ;  j^,   ^ 
and  of  things  taken  in  execution,  so  long  as  the  sheriff 
retains  possession  (f?). — But  in  the  case  of  things  taken  in  Ooo^  taten 
execution  it  has  been  provided  by  the  statute  8  Anne,  c. 
14,  8.  1  {w)y  "  that  no  goods  or  chattels  whatsoever,  being 


{()  As  to  the  form  and  seryice  of 
thedecUratioii,  Bee  ThwaitesY.  JFild^ 
ing,  L.  R.  12  Q.  B.  D.  4  ;  52  L.  J. 
Q.  B.  734 ;  Ex  parte  Harris,  65 
li.  J.  M.  24.  As  to  what  conBti- 
tates  a  lodger  within  the  meaning 
of  the  Act,  see  Phillips  y.  Henaon, 
li.  R.  3  C.  P.  D.  26 ;  47  L.  J.  0. 
P.  273 ;  Morton  v.  Falmer,  61  L.  J. 
Q.  B.  7 ;  Ness  v.  Stephenson,  L.  R. 


9  Q.  B.  D.  245 ;  Eeawood  v.  Bone, 
L.  R.  13  Q.  B.  D.  179. 

(»)  Sharp  T.  Fowls,  L.  R.  12  Q. 
B.  D.  385 :  53  L.  J.  Q.  B.  309. 

(p)  CJo.  Lit.  47  a;  WhaHon  v. 
Naylor,  12  Q.  B.  673.  See  Blades 
Y.  ArundaU,  1  M.  &  S.  711. 

(u;)  As  to  things  taken  in  exe- 
cution by  the  County  Court,  see 
the  County  Courts  Act,  1888,  s.  160. 


i 


45S  USES  AND  PROFITS  IN  LAND  OF  ANOTHER. 

in  or  upon  any  messuages,  lands  or  tenements  which  are  or 
shall  be  leased  for  life  or  lives,  term  of  years,  at  will  or 
otherwise,  shall  be  liable  to  be  taken  by  virtue  of  any  exe- 
cution,  unless  the  party  at  whose  suit  the  said  execution  is 
sued  out  shall,  before  the  removal  of  such  goods  from  off 
the  said  premises  by  virtue  of  such  execution,  pay  to  the 
landlord  of  the  said  premises  all  such  sum  or  sums  of  money 
as  are  or  shall  be  due  for  rent  due  for  the  said  premises  at 
the  time  of  taking  such  goods  or  chattels  by  virtue  of  sack 
execution ;  provided  the  said  arrears  of  rent  do  not  amomit 
to  more  than  one  year's  rent ;  and  in  case  the  said  arrears 
shall  exceed  one  year's  rent,  then  the  said  party,  at  whose 
suit  such  execution  is  sued  out,  paying  the  said  landlord 
one  year's  rent,  may  proceed  to  execute  his  judgment  as  he 
might  have  done  before  this  Act ;  and  the  sheriff  is  hereby 
empowered  and  required  to  levy  and  pay  to  the  plaintiff  as 
well  the  money  so  paid  for  rent  as  the  execution  money." 
liability  of      — ^The  sheriff  may  rightfully  carry  out  the  execution  until 
notice  of  rent   he  has  notice  of  rent  being  due ;  but  on  having  such  notice 
^^^'  at  any  time  before  removal  of  the  goods  and  payment  of 

the  proceeds  to  the  execution  creditor,  he  cannot  proceed 
with  the  execution  unless  the  rent  is  paid ;  and  if  he  does, 
he  is  liable  to  an  action  at  the  suit  of  the  landlord  (:r). 
The  damage  in  such  action  is  primd  facie  to  the  amount  of 
one  year's  rent  due ;  but  it  is  open  to  the  sheriff  to  show  in 
mitigation  of  damages  that  the  value  of  the  goods  removed 
was  less  than  that  amount  (y) .  No  formal  notice  or  demand 
of  the  rent  is  required ;  it  is  sufficient  if  the  sheriff  is 
proved  to  have  had  notice  of  rent  being  due;  but  the  sheriff 
is  not  bound  to  inquire,  or  to  give  notice  of  the  execution 
to  the  landlord  (s).  In  an  action  by  the  execution  creditor 
against  the  sheriff  for  not  levying  under  his  writ,  it  is  a 
sufficient  answer  that  he  had  notice  of  rent  due  and  that  tke 

(x)     Falgrave    t.      Windham,    1  (y)  Thomas  v.  Mirthwue,  L.  R 

StTMige,  212 ;   Armitt  v.   Oamett,       19  Q.  B.  D.  663 ;  66  L.  J.  Q.  B. 
3  B.  &  Aid.  440  ;  Cocker  t.  Mm-       653. 

^rove,  9  Q.  B.  223 ;     Wharton  v.  («)  Andrews  v.   Jhxm,   3  B.  & 

J^af/ior,  12  Q.  B.  673.  Aid.  645 ;  see  Smith  r.  Buttell,  3 

Taunt.  400. 


CHAP.  111.  RENTS.  457 

execution  creditor  refused  to  pay  it ;  for  "  until  the  rent  be 
paid,  there  are  no  goods  out  of  which  the  sheriff  is  bound 
to  levy,  that  is,  which  he  is  bound  to  sell  (a)." 

Goods  sold  in  execution  upon  the  premises  retain  the  Goods  sold 

•   •1        ji  j*j_         -!•  Ill*        fi  liii  execution. 

privilege  from  distress  dunng  a  reasonable  time  for  removal ; 
but  if  afterwards  left  by  the  buyer  for  an  unreasonable  time, 
the  execution  is  at  an  end  and  the  privilege  ceases ;  the 
landlord  then  has  no  claim  under  the  statute,  but  is  free  to 
distrain  (6).  Thus  growing  crops  taken  and  sold  in  execu- 
tion are  privileged  from  distress  for  the  rent  due  at  the 
time  of  taking  them,  until  they  are  cut  and  carried ;  but  if 
left  upon  the  ground  for  an  unreasonable  time  (which  is  a 
question  of  fact  with  reference  to  the  circumstances  of  the 
case),  they  become  liable  to  be  distrained  for  that  and  for 
subsequent  rent  ((?). — The  landlord  can  only  claim  under  Rent  pending 
the  statute  of  Anne  the  rent  accrued  due  at  the  time  of  ®*®^^^>®°- 
taking  the  goods  in  execution,  and  not  rent  accruing  due 
pending  the  execution  (d).  But  by  14  &  15  Vict.  c.  25, 
8.  2,  in  the  case  of  growing  crops  seized  and  sold  by  virtue 
of  any  execution,  "  such  crops,  so  long  as  the  same  shall 
remain  on  the  land,  shall,  in  default  of  sufficient  distress  of 
the  goods  and  chattels  of  the  tenant,  be  liable  to  the  rent 
which  may  accrue  due  after  any  such  seizure  and  sale,  and 
to  the  remedies  by  distress  for  recovery  of  such  rent." — By  ^^^  ^  ^ 
56  Geo.  III.  c.  50, "  An  Act  to  regulate  the  sale  of  farming  premises, 
stock  taken  in  execution,"  the  sheriff  is  prohibited  from 
selling  or  carrying  off  crops  or  produce  contrary  to  the 
covenants  and  agreements  of  the  tenant ;  but  he  may  sell 
them  subject  to  agreement  to  use  them  upon  the  premises; 
and  in  all  such  cases  it  shall  not  be  lawful  for  the  landlord 
to  distrain  such  crops  or  produce,  or  Qjiy  beasts  or  imple- 
ments employed  in  working  qr  consuming  them  (e). 

(a)  Cocker  t.  Jfusffrove,  9  Q.  B.  Wharton  v.  Naylor,  12  Q.  B.  673. 
235.  {d)  Hoskint  v.  Kniphi,  1  M.  & 

(b)  Smiths. Runell,  3Tannt.400;  S.  245  ;  Reynolds  ▼.  Barford,  7  M. 
Be  Davis,  Ex  parte  Folien,  65  L.  J.  &  Gt.  449 ;  Be  Davis,  55L.  J.  Q.  B. 
^.  B.  217.  217. 

{e)  Eatonv.  Southby.Willes,  131;  {e)   Wright  v.  Deices,  1  A.  &  E. 

Feaeoek  v.  Purvis,  2  B.  &  B.  362;      ^41. 
WrUfht  V.  Detces,  1  A.  &  E.  641 ; 


Goods  in 


458         U5BS  ASD  FBorns  ui  i*A3n>  of  ahothsb. 

(roods  in  the  pooocaiHon  of  a  leoeiTer  of  the  Coart  of 
Chancery  are  considered  as  in  the  poflseasion  of  the  Goxsit 
hy  its  officer,  and  no  distress  or  proceeding  can  be  taken  to 
interfere  with  the  possession  withoot  leave  of  the  Coort ; 
which  wonld  in  general  he  granted  to  a  landlord  to  secoie 
the  prioritr  of  his  claim  for  rent  (/). 

The  goods  of  a  hankmpt  vested  in  the  receiver  or 
trostee  nnder  the  Bankruptcy  Acts  are  in  a  gimilftT  posi- 
tion ;  but  the  right  to  distrain  for  rent  is  reserved  to  the 
landlord,  sabject  to  limitation  (^).  Bj  the  Bankraptey 
Act,  1883,  46  A  47  Yict.  c.  52,  s.  42  (1)  (re-enacting 
Bankraptey  Act,  1869,  s.  34),  "the  landlord  or  other 
person  to  whom  any  rent  is  due  from  the  bankrupt  may 
at  any  time,  either  before  or  after  the  commencement  of 
the  bankraptey,  distrain  upon  the  goods  or  effects  of  the 
bankrupt  for  the  rent  due  to  him  from  the  bankrupt  with 
this  limitation,  that  if  such  distress  for  rent  be  levied  after 
the  commencement  of  the  bankruptcy  it  shall  be  available 
only  for  one  year's  rent  accrued  due  prior  to  the  date  of 
the  order  of  adjudication,  but  the  landlord  or  other  person 
to  whom  the  rent  may  be  due  from  the  bankrupt  may 
prove  under  the  bankruptcy  for  the  surplus  due  for  which 
the  distress  may  not  have  been  available."  (2)  "  For  the 
purposes  of  this  section  the  term  'order  of  adjudication' 
shall  be  deemed  to  include  an  order  for  the  admimstration 
of  the  estate  of  a  debtor  whose  debts  do  not  exceed  fifty 
pounds,  or  of  a  deceased  person  who  died  insolvent "  (A). — 
If  the  trustee  in  bankruptcy  do  not  disclaim  the  lease 
imder  sect.  55,  the  landlord  may  distrain  in  full  for  rent 
accrued  due  subsequent  to  the  bankruptcy. 
Goods  of  com-  By  the  Companies  Act,  1862,  25  &  26  Vict.  c.  89, 
TOding-up.  s.  163,  "  where  any  company  is  being  wound  up  by  the 
Court  or  subject  to  the  supervision  of  the  Court,  any  dis- 

(/)  Be  Sutton,  32  L.  J.  0.  437  ;  Cochrane,   L.   R.   20  Eq.  282 ;  44 

£u4ull  y.  Sast  Anglian  Eu.,  3  Mac.  L.  J.  B.  87. 

&  a.  118;  i2<?  Siiffleld,  L.  B.  20  (A)  See  sects.  122,  125;  lU  Fry- 

Q.  B.  B.  693.  man's  Estate,  L.  B.  38  G.  1).  468 ; 

iff)  Ex  parte  Ttll,  L.  B.  16  Eq.  57  L.  J.  C.  862. 
97 ;    42  L.  J.   B.   84 ;    Ex  parte 


CHAP.  III.  RENTS. 


459 


tress  or  execution  put  in  force  against  the  estate  or  effects 
of  the  company  after  the  commencement  of  the  winding-up 
shall  he  void."  But  this  section  is  to  he  read  together 
■with  sect.  87,  as  excepting  "  proceedings  with  leave  of  the 
Court  and  subject  to  such  terms  as  the  Court  may  im- 
pose "(i). — The  Court  will  not  in  general  give  leave  to 
distrain  for  arrears  of  rent  due  at  the  commencement  of 
the  vinding-up ;  for  which  the  landlord  must  prove  as  a 
debt  like  any  other  creditor  (y).  But  the  Court  gave 
leave  to  distraiu  for  such  arrears  against  goods  and  effects 
of  the  company  which  were  charged  beyond  their  value  to 
debenture  holders,  because  the  company  retained  no  pro- 
perty in  them  (k).  As  to  rent  accrued  due  since  the  com- 
mencement of  winding-up,  the  Court  will  give  leave  to  dis- 
train when  it  is  inequitable  that  the  company  should  rely 
upon  the  above  sect.  16'i ;  as  where  the  possession  of  the 
land  has  been  retained  for  the  benefit  of  the  company,  or 
for  the  winding-up,  so  that  the  rent  may  be  charged  as 
costs  properly  incurred;  but  not  where  it  has  been  retained 
partly  for  the  benefit  of  the  landlord  (/).  A  mortgagee, 
applying  to  distrain  for  his  interest  as  rent  under  an 
attornment  clause  in  the  mortgage  deed,  was  refused 
leave  (m).  An  action  of  debt  for  rent  will  not  lie 
against  a  liquidator,  holding  the  land  merely  in  that 
capacity  («). — ^A  landlord  may  distrain  upon  premises  held 
by  his  tenant  as  trustee  for  a  company,  for  all  arrears 
accrued  due  both  before  and  after  winding-up  of  the  com- 
pany ;  for  he  is  not  a  creditor  of  the  company  and  has  no 
right  of  proof  for  the  rent ;  and  in  such  distress  he  may 
take  any  goods  of  the  company  found  upon  the  pre- 
mises (o).     So  a  landlord  may  distrain  upon  the  premises 


(0  ^  Exhall  Coal  Co.,  4  D.  J.  & 
S.  377 ;  33  L.  J.  C.  595 ;  Be  Lanca- 
shire Cotton  Co.,  L.  B.  35  G.  D. 
656;  56L.  J.  C.  761. 

{j)  Re  Tradert^  Co,,  L.  B.  19 
Eq.  60 ;  44  L.  J.  C.  172 ;  Be  Coal 
Consumer^  Am.,  L.  B.  4  C.  D.  625 ; 
46  L.  J.  C.  501. 

{k)  Be  New  City  Club,  L.  B.  34 
O.  D.  646 ;  56  L.  J.  0.  332. 


(/)  Be  Lancaehire  Cotton  Co.,  L. 
B.  35  C.  D.  656 ;  56  L.  J.  0.  761 ; 
Be  Oak  Pit's  Colliery,  L.  B.  21  C. 
D.  322 ;  51  L.  J.  0.  768. 

(m)  Be  Zaneashire  Cotton  Co,, 
supra. 

(n)  Graham  t.  JSdye,  L.   B.  20 

Q.  B.  D.  683 ;  67  L.  J.  Q.  B.  406. 

.  (o)  Be  Exhall  Coal  Co.,  4  D.  J.  & 

S.  377 ;  33  L.  J.  G.  595  ;  Be  Lundy 


distress. 


460  I^SES  AMD  PROFITS  IN  LAND  OF  ANOTHER. 

of  a  tenant  who  lias  sub-let  to  a  company,  for  all  airears 
of  rent ;  and  he  may  take  goods  of  the  company  npon  the 
premises  (y). 


§  3.  Wrongful  Distress. 

Wrongful  distress. 

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. 
Irregular  distress — trespass  ab  inUio — actions  for  irregular  distresses. 
Ezcessiye  distress — value  of  distress  taken — distress  for  exoesaive  claim. 
Rescue— pound  breach. 
Beplevin — jurisdiction    of    sheriff — juriAdiotion    of    Count j  Ck>urt  — 

security  to  prosecute — avowry  and  cognizance — writ  of  eapias  in 

tcithemam. 

Wrongful  distresses  are  distinguished  as  heing  illegal, 
irregular,  or  excessive : — An  illegal  distress  is  where  the 
goods  are  taken  in  an  illegal  manner,  or  taken  without 
any  right  to  distrain,  or  detained  after  the  right  to  distrain 
has  ceased. — An  irregular  distress  is  a  distress  taken  legally 
under  a  right  to  distrain,  but  afterwards  conducted  in  an 
irregular  manner. — An  excessive  distress  is  where  goods  are 
taken  to  an  excessive  amoxmt  in  proportion  to  the  rent  due. 
The  difPerent  remedies  and  circumstances  of  the  wrong 
require  these  forms  of  wrongful  distress  to  be  treated 
separately. 
Illegal  An  illegal  distress,  whether  taken  in  an  illegal  manner, 

6r  without  right  to  distrain,  is  a  trespass,  for  which  the 
tenant  or  owner  of  the  goods  may  bring  an  action ;  and  in 
such  action  he  may  recover  the  goods  taken,  or  their  full 
value  as  damages,  without  any  reduction  on  account  of 
rent  due ;  for  the  person  thus  taking  goods  illegally  is  not 

QraniU  Co.,  L.  R.  6  Gh.  462 ;  40  (y)  £e  Carria^€  Supplu  Ass.y  L. 

L.  J.  0.  588 ;  Me  Regent  Stores,  L.  R.  23  0.  D.  164  ;  52  L.  J.  C.  472 ; 
R.  8  C.  D.  616 ;  47  L.  J.  C.  677.         Se  New  Citv  Club,  L.  R.  34  C.  D. 

646  ;  56  L.  J.  C.  332. 


CHAP.  III.  RENTS.  461 

allowed  to  say  that  he  has  applied  the  goods  in  satisfaction 
of  rent  against  the  will  of  the  owner  (s).  The  following  Distress  taken 
are  instances  of  illegal  distress,  according  to  the  rules  Sanni^ 
above  stated  for  making  a  legal  distress,  which  may  be 
treated  as  distinct  trespasses: — Distress  made  after  the 
tenancy  and  possession  has  ceased ;  or  after  the  six  months 
allowed  by  the  Statute  8  Anne,  c.  14,  where  the  possession 
is  continued  (a), — Distress  made  on  the  highway,  or  else- 
where than  on  the  demised  premises;  except  goods  fraudu- 
lently removed  to  avoid  the  distress,  which  may  be  taken 
wherever  they  may  be  found  (6). — Distress  made  in  the 
night  time,  between  sunset  and  sunrise  ((?). — Distress  made 
by  unlawfully  breaking  into  the  premises  (of ). — Distress 
taken  of  things  not  distrainable ;  or  of  things  privileged 
from  distress,  where  other  distrainable  goods  might  be 
taken  (e). 

Distress  when  no  rent  is  due,  or  without  any  right  to  Where  no 
distrain,  is  a  trespass  at  common  law(/).  And  by  the  '®^'^"®* 
Statute  2  W.  &  M.  sess.  1 ,  c.  5,  giving  the  power  of  selling 
goods  distrained  for  rent,  it  is  enacted  (sect.  5)  that 
'^  in  case  any  such  distress  and  sale  as  aforesaid  shall  be 
made  for  rent  pretended  to  be  in  arrear  and  due,  where  in 
truth  no  rent  is  in  arrear  or  due  to  the  person  distraining, 
then  the  owner  of  such  goods  or  chattels  distrained  and 
sold  as  aforesaid,  shall  and  may,  by  action  of  trespass  or 
upon  the  case  to  be  brought  against  the  person  so  distrain- 
ing, recover  double  of  the  value  of  the  goods  or  chattels  so 
distrained  and  sold,  together  with  full  costs  of  suit." 

A  sufficient  tender  of  the  rent  due  makes  the  subsequent  After  tender 
taking  of  a  distress  wrongful ;  a  tender  after  taking  a  dis- 
tress and  before  impounding  makes  the  subsequent  detainer 
of  the  goods  wrongful ;  tender  after  the  impoimding  is  too 

(«)  P«-  eur.,  Attack  v.  Bramtcell^  146. 

3  B.  &  S.  620 ;  32  L.  J.  Q.  B.  146.  {e)  AnUy  p.  444 ;  Nargatt  v.  ifkw, 

(a)  Ante,  p.  428.  1  E.  &  E.  439 ;   28  L.  J.  Q.  B. 

(*)  Anie.-g.AZQ.  143;  Keen  v.  Prieet,  4  H.  &  N. 

(e)  Ante,  p.  436.  236 ;  28  L.  J.  Ex.  167. 

(rf)  AnU,p.AZ6;  Atta^kr.Bram*  (/)  Co.  Lit.  160*, 
well,  3  B.  &  S.  620 ;  32  L.  J.  Q.  B. 


462  VSBS  AND  PB0F1T8  11?  LAND  OF  ANOTHER. 

late  and  has  no  effect  in  ayoiding  tHe  distresB,  the  goods 
then  being  in  custody  of  the  law  and  recoTerable  only  by 
legal  process.  The  owner  of  the  goods  must  then  replevy 
tlie  goods  and  bring  an  action  of  repleTin,  the  judgment 
in  which  assesses  the  amount  due,  if  any,  with  return  of 
the  goods  replevied  as  security  for  payment;  he  may  after- 
^*anls  tender  the  amount  assessed  to  redeem  the  goods  and 
render  farther  detainer  wrongful  (g).  The  same  rule 
applies  to  an  impounding  or  securing  upon  the  premises 
under  the  Statute  11  Geo.  II.  c.  19,  s.  10 ;  although  the 
taking  and  impounding  under  that  statute  may  be  one 
and  the  same  act  (h).  A  tender  after  impounding  and 
within  the  five  days  allowed  by  statute  for  replevin  before 
$Hle  {\revent$  a  sale,  but  does  not  otherwise  invalidate  the 
d:s:i\x!%^  which  may  be  kept  impounded  as  a  pledge  at 
vv:v,u:v^n  Uw.    A  sale  after  tender  within  the  five  days  is 

mr\^v.i:tul.  and  the  owner  of  the  goods  may  recover  the 

*       * 

$s\N<«xA  i&e«-  A  :<^\vi:xl  vli:^tre$s  foT  the  same  rent  is  iU^al,  unless  the 

.l;>crvts>  £iilt>d  to  satisfy  the  rent  without  any  &alt  of 

::.r.    A  s^\>nd  distress  may  be  taken,  where 

%vr^    iLv^C    su£cient   distrainable  goods  upon  the 

i>,^^.,^^  Tv^  s4:i>fT  tbe  fii^ ;  or  where  insufficient  goods 

%\cv  :xk; e  c-y  £ii;:^c;Ake  irf  th«r  value  (J) ;  or  where  the 

!t^^  %:fe^  Y::^>,lr:KW£  a:  the  request  of  the  tenant,  or  upon 

dt:ft  <,^v?t^.  c:  Vy  >i:rL  f  :*■  paym€fit  of  the  rent  which  he 

>vux  \>i^j  >x  t,"  r^fJTt.rc;:   •*  *    But  no  other  distress  can  be 

'^..v^lvv  .:  41  t,  crr^:C  i:,>cr«S'  ije  lueiaa  wduntazilv  withdrawn 


*■■>%* 


^ 


« « 


Vs<^  '  "     7  >  .,-'-•"»      ^"-w*  T.  Tnci»ti^  L.  B.  11  Q.B.  D. 


.>,.    -  ...     •  .     .'  vV.  :*^  ^  S^-  i^*;  5*  L.  J.  Q.  B.  4»;  M 

.    ^-^  >  r  IL  *-J.  i*f     r^  L  J.  i  Bl  iM; 

^    «r'  «   « xf<^>Tt.<H.  «£wt..v«:»'  *-4B!!a&xr  ?S*  .    T't..'^    t.   jiarw.    S 

,«^«M.^>4. 1MV  S  iMwt.  «k  «a.-  >»».  C  3^  I^--  ^:  .  k2  I«  J.  Q-  B  737. 


CHAP.  III.  RENTS.  463 

by  the  distrainor  without  sufficient  reason  (/)  ;  or  if  the 
distrainor  wilfully  takes  an  insufficient  distress,  where  a 
sufficient  distress  might  have  been  taken  (m). — ^An  entire  Separate 
rent  cannot  be  divided  for  making  separate  distresses ;  but 
rent  falling  due  at  different  times  may  be  distrained  for 
sepcutitely ;  or  one  distress  may  be  made  for  all  arrears 
then  due  under  the  same  demise  (n). 

At  common  law  an  irregularity  in  the  conduct  of  a  Irregular 
distress  vitiated  the  whole,  and  rendered  the  original  "^**'®^' 
entry  and  taking  wrongful ;  according  to  the  doctrine  of 
law,  that  "  when  entry,  authority,  or  licence  is  given  to 
any  one  by  the  law,  and  he  doth  abuse  it,  he  shall  be  a 
trespasser  ab  imtt'o^' (o).  Consequently  at  common  law  Treepaaa 
the  tenant  might  sue  for.  an  irregular  distress  as  an  ori-  ^  *"*^*^' 
ginal  trespass,  and  recover  full  damages  independently  of 
rent  due  (p).  But  the  application  of  this  doctrine  to  the 
conduct  of  a  distress  was  taken  away  by  the  statute 
11  Geo.  II.  c.  19.  Sect.  19  of  which,  after  a  preamble 
stating ''  the  very  great  hardship  upon  landlords  and 
other  persons  entitled  to  rents,  that  a  distress  duly  made 
should  be  thus  in  effect  avoided  for  any  subsequent 
irregularity,'^  proceeds  to  enact  "  that  where  any  distress 
shall  be  made  for  any  kind  of  rent  justly  due,  and  any 
irregularity  or  unlawful  act  shall  be  afterwards  done  by 
the  party  or  parties  distraining,  or  by  his  or  their  agents, 
the  distress  itself  shall  not  be  therefore  deemed  to  be 
imlawful,  nor  the  party  or  parties  making  it  to  be  deemed 
a  trespasser  or  trespassers  ab  initio;  but  the  party  or 
parties  aggrieved  by  such  unlawful  act  or  irregulariiy 

(/)  Smith  ▼.   Goodwin^   4   B.   &  (n)  Eutehina  y.  Chambers,  1  Bnrr. 

Ad.  413  ;  Lear  y.  CaJdeeott,  4  Q.  B.  589  ;  Gambrell  y.  Falmouth,  4  A.  & 

123 ;  Dawson   y.    Cropp,   1   0.    B.  E.  73. 

961 ;  Ba^ffe  y.  Matcby,  8  Ex.  641 ;  (o)  Per  eur.,  Six  Carpenters^  Case, 

22  L.  J.  Ex.  236.  8  Co.  146  a.    The  doctrine  does  not 

(m)  Anon,,  Cro.  Eliz.  13 ;  WaUis  apply  to  an  authority  or  licence 

y.  Savill,  2  Lutw.  1536 ;  ffulehins  given  bj  a  i^ady.    EUenborongh, 

y.  Chambers,  1  Bnrr.  589.  C.  J.,  Diicliam  y.  Bond,  3  Gamp.  526. 

{p)  Ante,  p.  460. 


464 


USES  AND  PROFITS  IN  LAKD  OF  ANOTHER. 


Actiofls  for 

irregular 

distresses. 


shall  or  may  reoover  full  satisfaction  for  the  special 
damage  he  or  thej  shall  have  sustained  thereby  and  no 
more."  Sect.  20  provides  "  that  no  tenant  or  lessee  shall 
reoover  in  any  action  for  any  such  unlawful  act  or  ir- 
regularity, if  tender  of  amends  hath  been  made  by  the 
party  distraining  before  such  action  brought." — The  effect 
of  the  statute  is  to  preserve  the  validity  of  the  distress  and 
of  the  sale  under  it  from  being  affected  by  a  mere  ir- 
regularity in  conducting  it  (q) ;  and  to  limit  the  claim  of  the 
tenant  to  the  damage  caused  by  the  irregularity,  deducting 
the  rent  due  and  the  charges  of  the  distress  so  far  as  it  was 
regular;  and  if  no  special  damage  be  proved,  he  is  not 
entitled  to  nominal  damages  upon  mere  proof  of  the 
irregularity  (r). 

The  following  irregularities  have  been  held  actionable 
under  the  statute :  Selling  the  goods  distrained  before 
the  expiration  of  the  statutory  five  days  («) ;  selling  with- 
out a  proper  appraisement  {t) ;  not  selling  for  the  best 
price  that  could  be  got  (w) ;  selling  growing  crops  stand- 
ing (f ) ;  not  leaving  the  over-plus  of  the  price,  after  satis- 
fying the  rent  and  charges,  in  the  hands  of  the  sheriff  for 
the  owner's  use  (tc). — Trespasses  committed  in  excess  of 
the  right  of  distress  are  not  irregularities  within  the 
statute,  but  form  distinct  causes  of  action:  As  turning 
the  tenant  out  of  possession  (x) ;  remaining  in  possession 
after  the  time  allowed  by  law  (y) ;  breaking  into  the 
premises ;  taking  non-distrainable  goods  and  the  like  (z). 


(q)  Wallace  v.  King,  1  H.  Bl.  13 ; 
Lym  V.  Weldon,  2  Bing.  834. 

(r)  Rogers  v.  Parker,  18  C.  B. 
112 ;  25  L.  J.  C.  P.  220  ;  Luea*  v. 
TarUlon,  3  H.  &  N.  116 ;  27  L.  J. 
Ex.  248 ;  Biggin*  v.  Goode,  2  C.  & 
J.  864. 

(»)  WaUaee  v.  King,  1  H.  Bl.  13 ; 
Sharp  V.  Fowle,  L.  K.  12  Q.  B.  D. 
385 ;  63  L.  J.  Q.  B.  309. 

(t)  Biggint  v.  Goode,  2  G.  &  J. 
864. 


{u)  Foynter  v.  BttehUiy,  5  C.  &  P. 
512 ;  Thompson  y.  Wood^  4  Q.  B. 
493. 

(r)  Rogers  v.  Parker^  18  C.  B.  1 12 ; 
26  L.  J.  C.  P.  220. 

(m?)  Lyon  v.  Tomkiet,  1  M.  &  W. 
603. 

(x)  Etherton  y.  Poppletoeli,  1  East, 
139;  Smith  v.  As^forih,  29  L.  J. 
Ex.  259. 

(y)  WinUrboume  v.  Morgan,  11 
East,  395 ;  ante,  p.  443. 

(s)  Ant€,  p.  461. 


CHAP.  III.  RENTS. 


46g 


An  esoessive  distress  consists  in  taking  goods  unreason-  ExoesaiYe 
ably  in  excess  of  what  is  necessary  to  secure  the  rent  due. 
By  the  Statute  of  Marlebridge,  62  Hen.  III.  c.  4,  declaratory 
of  the  common  law,  it  is  enacted  that  ^^  distresses  shall  be 
reasonable,  and  not  too  great ;  and  he  that  taketh  great 
and  unreasonable  distresses,  shall  be  grievously  amerced 
for  the  excess  of  such  distresses."  An  action  lies  upon 
this  statute  for  taking  an  excessive  distress ;  but  the 
distress  is  not  on  that  account  void,  and  it  may  be 
detained  for  the  rent  in  fact  due  (a).  The  tenant  in  such 
action  is  entitled  to  at  least  nominal  damages  for  being 
deprived  for  a  time  of  the  use  of  his  goods ;  and  he  may 
recover  substantial  damages  on  that  account,  or  for  having 
to  procure  sureties  to  an  excessive  amount  to  replevy  the 
goods ;  or  for  having  to  pay  a  sum  in  excess  of  the  rent 
due  to  redeem  the  goods  (6).  He  may  recover  for  an 
excessive  distress  of  growing  crops,  though  they  are  not 
removeable  until  ripe,  by  reason  of  the  inconvenience  of 
being  deprived  of  the  possession  and  management  (c). 
He  may  recover  in  respect  of  goods  of  which  he  has  the 
mere  possession  and  enjoyment,  without  any  legal  or 
equitable  ownership  (d). 

A  landlord  is  not  bound  to  calculate  very  nicely  the  value  Value  of 
of  the  goods  seized.  "  All  that  he  is  bound  to  do  is,  to  ^dned. 
exercise  a  reasonable  and  an  honest  discretion ;  he  is  autho- 
rized to  protect  himself  by  seizing  what  any  reasonable  man 
would  think  adequate  to  the  satisfaction  of  his  claim"  {e). 
"  For  example,  if  the  lord  distrains  an  ox  or  a  horse  for  a 
penny,  if  there  were  no  other  distress  upon  the  land  holden, 
the  distress  is  not  excessive ;  but  if  there  were  a  sheep  or 
swine,  &c.,  then  the  taking  of  the  ox  or  horse  is  excessive, 

(a)  Jffuichint  y.  Chambers,  1  Burr.  441. 
590;  Z^fi^T.  ifMM^j^,  2Str.  861.  {d)  Fell  y.  Whittaher,  L.   B.  7 

iP)  Chandlery.  DouUon.S'H..  &  G.  Q.  B.  120 ;  41  L.  J.  Q.  B.  78. 
663 ;  34  L.  J.  Ex.  89.     QeeJBapliu  (^  Wilde.  G.  J.,  Hoden  y.  J?yton, 

y.  Fisher,  7  Bing.  153.  6  C).  B.   430  ;    Bajley,   J.,    mi- 

(e)  Figgott  y.  BirtUe,  1  M.  &  W.  Umghby  y.  Backhouse,  2  B.  &  G.  823. 

L.  H  H 


466 


USES  AND  PROFITS  IN  LAND  OF  ANOTHER. 


Distress  for 

ezcessiYe 

dami. 


because  he  might  have  taken  a  beast  of  less  valtie  "  (/). 
The  excess  is  tested  by  the  real  value  of  the  goods,  and 
not  conclusively  by  the  proceeds  of  a  sale  of  them,  though 
that  is primd  facie  evidence  of  their  value;  and  the  distress 
may  be  proved  excessive,  though  the  sale  did  not  in  &ct 
realise  the  rent  due  (p).  If  gold  and  silver  b^  taken,  which 
have  a  certain  known  value,  the  excess  is  apparent  upon 
the  face  of  it,  and  the  taking  of  the  excess  amounts  to  a 
trespass  (A). — ^In  computing  the  amount  of  rent  due  for 
which  the  distress  may  be  taken,  allowance  is  to  be  made 
for  ground  rent,  land  tax,  property  tax,  and  other  charges 
paid  by  the  tenant  in  relief  of  the  land  or  the  landlord, 
which  he  may  be  entitled  to  consider  as  payments  in 
reduction  of  the  rent  (t). 

A  distress  for  an  excessive  claim  of  rent  beyond  what  is 
in  fact  due  is  not  actionable,  unless  the  excessive  claim  is 
the  cause  of  some  special  damage  to  the  tenant.  The  land- 
lord is  not  concluded  by  the  amount  of  his  claim,  but  may 
limit  the  seizure  and  sale  to  the  sum  really  due,  so  as  to 
avoid  an  excessive  distress  (j).  A  person  in  distraining 
is  not  bound  to  give  any  notice  of  the  cause  of  the  distress, 
except  as  a  statutory  condition  of  selling  the  goods  taken ; 
and  he  lUay  allege  one  cause  for  the  distress  and  justify  for 
another  {k).  Accordingly,  a  landlord  having  distrained 
upon  two  tenements  as  claiming  the  sum  of  rents  due  for 
each,  it  was  held  that  he  might  justify  the  distress  as  con- 
stituting separate  distresses  for  the  several  rents  (/). 


Beflone. 


If  a  distress  is  illegal,  the  tenant  may  resist  the  taking 
with  force ;  as  where  no  rent  is  due,  or  where  cattle  are 


(/)  2  Co.  Inst.  107. 

(V)  Smith  V.  Ashforthy  29  L.  J. 
Ex.  269 ;  ante,  p.  442. 

(A)  Moir  Y.  Munday,  cited  in 
ffutehifu  V.  Chambers,  1  Buir.  690, 
and  in  Crmcther  ▼.  Bamshottom,  7 
T.  B.  668. 

(0  Carter  v.  Carter,  6  Bing.  406 ; 
see  Saptford  t.  Fletcher,  ♦  T.  B. 
611;    Taylor  y.  Zamira,  6  Taunt. 


624 ;  Clennell  v.  Bead,  7  Tannt.  50. 

(J)  Tancredy,  Leyland,  16  Q.  B. 
669 ;  20  L.  J.  Q.  B.  316 ;  Glyn  t. 
Thomas,  11  Ex.  870;  25  L.  J.  Ex. 
125  ;  French  v.  Fhillips,  1  H.  &  N. 
664 ;  26  L<  J.  Ex.  82. 

(k)  Ante,  p.  440.  Per  cw,  Crttc- 
ther  Y.  Bamsbottem,  7  T.  B.  664. 

(0  Fhillips  T.  Whitsed,  2  E.  &  £. 
804 ;  29  L.  J.  Q.  B.  164. 


CHAP.  III.   RENTS.  467 

distrained  in  the  highway,  or  where  goods  are  taken  which 
are  privileged  from  distress.  After  an  illegal  distress  hcus 
been  taken,  the  tenant  may  resoue  or  retake  it  at  any  time 
before  it  has  been  impoimded ;  when  impounded  it  is  in 
the  custody  of  the  law,  and  he  must  proceed  to  recover 
possession  by  replevin  (w). — ^Poimd-breach,  or  breaking  Poimd 
the  pound  to  rescue  a  distress,  is  a  misdemeanor,  indictable  ™^®*°"' 
at  common  law.  The  party  distraining  has  also  a  remedy 
for  pound-breach  or  rescue  by  retaking  the  goods,  or  by 
action.  And  by  the  statute  2  W.  &  M.  c.  5,  s.  4,  it  is  enacted 
"  that  upon  any  poimd-breach  or  rescous  of  goods  or 
chattels  distrained  for  rent,  the  person  grieved  thereby 
shall,  in  a  special  action  upon  the  case,  recover  his 
treble  damages  and  costs  of  suit  against  the  offender ;  or 
against  the  owner  of  the  goods  distrained,  in  case  the 
same  be  afterwards  found  to  have  come  to  his  use  or 
possession."  The  statute  applies  to  pound-breach  where 
the  impounding  is  upon  the  premises  under  the  statute 
11  Geo.  II.  c.  19  (n).  If  the  distrainor  quits  possession, 
and  the  owner  retakes  the  goods,  it  is  no  rescue  (o).  So, 
if  a  distrainor  takes  the  goods  out  of  poimd  for  the  purpose 
of  using  them,  it  is  an  abuse  of  the  distress  which  renders 
the  detaining  wrongful,  and  the  owner  of  the  goods  may 
retake  possession  {p). 

Eeplevin  is  a  summary  proceeding  by  the  owner  of  Eeplevin. 
goods  taken  in  distress  for  obtaining  an  immediate  return 
of  possession,  upon  giving  security  to  prosecute  an  action 
for  the  taking;  in  which  action,  if  the  distress  be  proved 
illegal,  he  may  recover  damages ;  but  if  legal,  he  may  be 
adjudged  to  return  the  goods  distrained  {q).  Replevin 
may  be  obtained  at  any  time  before  the  property  in  the 

(m)  Co.  Lit.  160  *,  161  a;  4  Co.  (o)  KnowlM t. JBlake,  6 Bhxg, 499; 

11  bf    BeviVs   Case;    Cotstaorth  v.  Dod y.  Mimffer,  6  Moa,  216. 

B0tuon,  1  L.  Raym.  104 ;  1  Salk.  (p)  Smith  v.  JFriffht,  6  H.  &  N. 

247 ;  Urth  v.  Furvis,  6  T.  R.  432.  821 ;  30  L.  J.  Ex.  313. 

See  Farrett  Nav.  Co,  v.  Slower ,  6  {q)  Co.  Lit.  146*;  per  cur.  Men' 

M.  &  W.  564.  nie  t.  Blake,  6  E.  &  B.  842 ;   26 

(«)  Firth  Y,  FurvU,  6  T.  R.  432.  L.  J.^Q.  B.  401. 

hh2 


468 


USES  AND  PROFITS  IK  LAND  OF  ANOTHER. 


JuriBdiction 
of  sheriff. 


JuriBdiction 
of  Goanty 
Court. 


goods  has  been  changed  by  sale  under  the  distress  (r) ;  and 
being  an  ex  parte  proceeding,  it  dpes  not  affect  the  dis- 
trainor, or  render  a  sale  wrongful  until  he  has  notice 
thereof  («).  It  seems  that  a  tenant  cannot  contract  him- 
self out  of  the  common  law  right  to  replevy,  and  that  a 
clause  of  distress  expressed  to  be  free  of  replevin  is  so  far 
void  of  effect  (/). 

By  the  Statute  of  Marlebridge,  52  Hen.  III.  c.  21,  the 
sheriff  was  invested  with  original  jurisdiction  to  grant 
replevin,  and  by  the  statute  of  West.  II.,  13  Edw.  I.  c.  2, 
it  was  required  "  that  sherifis  shall  not  only  receive  of  the 
plaintiffs  pledges  for  the  pursuing  of  the  suit,  before  they 
make  deliverance  of  the  distress,  but  also  for  the  return  of 
the  beasts,  if  return  be  awarded"  (u).  By  the  statute 
11  Geo.  II.  c.  19,  s.  23,  "to  prevent  vexatious  replevins  of 
distresses  taken  for  rent,"  it  was  required  that  the  sheriff 
should  take  in  his  own  name  from  the  plaintiff  and  two- 
responsible  persons  as  sureties,  "a  bond  in  double  the 
value  of  the  goods  distrained,  and  conditioned  for  prosecu- 
ting the  suit  with  effect  and  without  delay,  and  for  duly 
returning  the  goods  and  chattels  distrained  in  case  a 
return  of  the  goods  shall  be  awarded."  And  it  was 
further  required  that  if  the  bond  were  forfeited  the  sheriff 
should  assign  the  bond  to  the  distrainor  at  his  request, 
that  he  might  bring  an  action  and  recover  thereupon  in 
his  own  name. 

The  jurisdiction  to  grant  replevin  has  by  recent  statutes 
been  transferred  from  the  sheriff  to  the  County  Courts.  By 
the  County  Courts  Act,  1888,  61  &  62  Vict.  o.  43  (repeal- 
ing and  re-enacting  in  similar  terms  provisions  of  the 
County  Courts  Act,  1866),  it  is  enacted  as  follows: — 
Sect.  134.  "The  sheriff  shall  have  no  powers  and  responsi- 
bilities with  respect  to  replevin  bonds  and  replevins ;  but 


(r)  Jacob  y.  King^  6  Taunt.  460 ; 
anUf  p.  443. 

{»)  Moumey  ▼.  Dawaon,  6  A.  ft  E. 
766. 


i: 


(0  Go.  Lit.  146 &;  2 Co. Inst.  140. 

(u)' 2  Inst.  139.  There  may  be  a 
special  franchise  to  gtajit  lepleyin. 
Mounaey  y.  Jknca^n,  6  A.  &  £.  752. 


CHAP.  III.    RENTS.  469 

the  registrar  of  the  Court  of  the  district  shall  be  em- 
powered, subject  to  the  regulations  hereinafter  contained, 
to  approve  of  replevin  bonds,  and  to  grant  replevins,  and 
to  issue  all  necessary  process  in  relation  thereto;  and 
such  process  shall  be  executed  by  the  bailiff.  Such  regis- 
trar shall,  at  the  instance  of  the  party  whose  goods  shall 
have  been  seized,  cause  the  same  to  be  replevied  to  such 
party,  on  his  giving  one  or  other  of  such  securities  as  are 
mentioned  in  the  next  two  succeeding  sections." 

Sect.  135.  "  Where  a  replevisor  shall  wish  to  commence  Security  to 
proceedings  in  the  High  Court  he  shall,  at  the  time  of  P'^^®^^  • 
replevying,  give  security,  to  be  approved  of  by  the  regis^ 
trar,  for  an  amount  sufficient  to  cover  the  alleged  rent  or 
damage,  and  the  probable  costs  of  the  cause  in  the  High 
Court,  conditioned  to  commence  an  action  of  replevin 
against  the  seizor  in  the  HigH  Court,  within  one  week  from 
the  date  thereof,  and  to  prosecute  such  action  with  effect 
and  without  delay,  and,  unless  judgment  thereon  be  ob- 
tained by  default,  to  prove  before  such  superior  Court 
that  he  had  good  ground  for  believing  either  that  the  title 
to  some  corporeal  or  incorporeal  hereditament,  the  rent  or 
value  whereof  exceeded  20/.  by  the  year,  was  in  question, 
or  that  such  rent  or  damage,  or  the  volae  of  the  goods 
seized,  exceeded  20/.,  and  to  make  return  of  the  goods  if  a 
return  thereof  shall  be  adjudged."  Sect.  136,  requires 
the  replevisor  to  give  security  to  the  like  amount,,  condi- 
tioned for  bringing  an  action  of  replevin  in  the  County 
Court,  but  without  the  condition  as  to  title  and  amount  of 
claim. 

In  the  action  of  replevin  the  pleading  of  the  defendant  Avowry  and 
is  technically  called  an  avomy  or  cognizance,  the  former  ^fi*'"^*^^®' 
being  the  justification  of  the  distrainor  in  his  own  right, 
the  latter  that  of  a  bailiff  in  right  of  the  distrainor.  It  is 
equivalent  to  an  original  statement  of  claim  for  rent  due ; 
to  which  the  plaintiff  -in  replevin  must  plead  as  if  he  were 
in  the  position  of  defendant,  and  therefore  his  answer  is 
called  a  pka,  instead  of  a  replication.    The  judgment  for 


470  USES  AND  PROFITS  IN  LAND  OF  ANOTHER. 

the  plamtiff  in  replevin  is  to  recover  the  damages  of  the 
wrongful  taking  and  the  costs  of  suit ;  the  judgment  for 
the  defendant  is  that  he  have  a  return  of  the  goods  to  hold 
Writ  of  eapias  to  him  irreplevisable,  and  for  damages  and  costs. — ^If  the 
.  ^'"*  goods  are  eloigned^  that  is,  removed,  so  that  they  cannot  be 
delivered  in  replevin,  or  under  a  judgment  for  return  of 
the  distress  in  an  action  of  replevin,  a  writ  of  capias  in 
icithernam  may  be  issued,  commanding  that  other  goods  be 
taken  for  the  distress  in  place  of  those  eloigned  {v). — ^The 
bailiff  duly  authorized  to  execute  replevin  may  break  into 
a  house  or  close  to  take  the  goods;  which  cannot  be  done 
in  execution  of  a  distress  or  of  any  civil  process  (tr).  The 
owner  of  the  goods  must  attend  at  the  place  of  impounding 
to  receive  the  goods  replevied  {x). 

{v)    2  Go.   Inst.   140;    Chitty's  •  Case;  oftte, -p,  iS5. 

"                   Practice  and  Forms.  {x)  Fer  cur.  Hellawall  y.  EoMt- 

(w)  Stat.  West.  I.  o.  17 ;  2  Go.  vmd,  6  Ex.  312. 
Inst.  193;   6  Go.  93  o,  SemayneU 


CHAP.  ni.   BENTS.  471 


Section  IV.  Remedies  foe  Bent, — (2)  Action  and 

Be-sntrt. 

Action  for  rent — ^snspended  by  diBtreafH'injnnotion  against  distress 
pending  action. 

Action  of  debt  for  rent — debt  from  privity  of  estate — action  by  exe- 
cutor for  arrears  of  rent — ^reut  a'speoialty  debt. 

Goyenant  to  pay  rent— privity  of  contract. 

Action  for  use  and  occupation. 

Condition  of  re-entiy  on  non-payment  of  rent — demand  of  payment— 
ejectment — relief  against  condition— conditio^  of  entry  to  take 
profits. 

Summary  proceedings  for  recovery  of  possession. 

Jurisdiction  to  grant  a  receiver  or  sale— remedies  under  Ckmyeytmdng 
Act,  1881. 

The  landlord  or  lessor,  instead  of  distraining,  may  pro-  Action  for 
eeed  by  action  to  recover  rent;  but  if  he  distrains,  no  ^^^* 
action  will  lie  for  the  same  rent  pending  the  distress. 
The  effect  of  a  distress  in  suspending  the  right  of  action  suspended  by 
is  independent  of  the  sufficiency  of  the  goods  taken,  which 
is  necessarily  uncertain  until  the  value  is  ascertained  by 
sale  {a).    If  a  distress  fails  to  produce  satisfaction  of  the 
rent  from  any  cause  not  due  to  the  fault  of  the  landlord ; 
as  if  it  perishes,  or  escapes,  or  is  rescued,  or  is  relinquished 
at  the  request  of  the  tenant,  or  produces  by  sale  an  insuffi- 
cient sum ;  the  landlord  may  then  distrain  again,  or  he 
may  proceed  by  action  to  recover  the  rent  remaining  due ; 
and  it  lies  upon  the  tenant,  if  he  relies  upon  the  distress  as 
an  answer  to  the  claim  for  rent,  to  prove  that  it  produced 
satisfaction,  or  failed  to  do  so  by  some  default  of  the  land- 
lord .(6). — ^An  injunction  was  granted  against  a  landlord  Injunction, 
distraining,  pending  an  action  respecting  the  liability  to 

(a)  Lehain  v.  Phillpotty  L.  E.  10       157 ;  Lingham  v.   Wanen,  2  B.  & 
Ex.  242 ;  44  L.  J.  Ex.  225.  B.  36 ;  Eudd  v.  Ravmoi^^  2  B.  &  B. 

(b)  Lear  t.  Edmonds,  1  B.  &  Aid.       662 ;  ante,  p.  462. 


472 


USES  AND  PKOFITS  IN  LAND  OF  ANOTHER. 


the  rent,  but  only  upon  the  terms  of  the  tenant  paying 
the  rent  into  Court  (c). 


Action  of 
debt  for  rent. 


Debt  from 
privity  of 
estate. 


The  action  for  the  recovery  of  a  freehold  rent,  that  is, 
a  rent  issuing  out  of  land  for  life,  in  tail,  or  in  fee, 
whether  rent  service,  rent  charge,  or  rent  seek,  was,  at  the 
common  law,  by  the  real  action  of  novel  disseisin;  the 
denial  of  rent  upon  demand  being  a  disseisin  of  the 
rent(ef).  The  personal  action  of  debt  would  not  lie  at 
common  law  for  freehold  rents,  for  which  there  was  the 
higher  remedy  by  real  action ;  but  it  would  lie  for  rents 
not  of  freehold,  that  is  rents  reserved  on  leases  for  years, 
for  which  a  real  action  would  not  lie  (e).  By  the  statute 
8  Anne,  c.  14,  s.  4,  an  action  of  debt  for  rent  was  given 
for  rent  service  due  upon  leases  for  life  or  lives  in  the  same 
manner  as  for  rent  due  upon  a  lease  for  years ;  but  this 
statute  did  not  extend  to  a  rent  charge  or  annuity  where 
the  relation  of  landlord  and  tenant  did  not  subsist  (/"). 
By  the  statute  3  &  4  Will.  IV.  c.  27,  s.  36,  real  actions  were 
abolished,  and  the  higher  remedy  being  thus  removed,  it 
was  held  that  the  personal  action  of  debt  would  lie  for 
freehold  rents  of  all  kinds,  whether  rent  services  or  rent 
charges  (^). 

The  action  of  debt  may  be  founded  on  privity  of  estate 
independently  of  contract,  that  is  to  say,  the  land  being 
considered  the  debtor,  the  tenant  may  be  charged  as 
pernor  or  taker  of  the  profits,  though  he  may  not  be  under 
any  personal  contract  to  pay  the  rent.  Hence  an  action 
of  debt  for  rent  lies  against  an  assignee  of  the  lease  or 
tenancy,  and  at  the  suit  of  an  assignee  of  the  rent,  upon 
the  privity  of  estate  {h).     This  doctrine  does  not  apply  to 


(e)  Shaw  v.  Jersey,  L.  R.  4  G.  P. 
D.  369 ;  48  L.  J.  0.  P.  308. 

(rf)  Lit.  88. 233—236 ;  Fitzherbert, 
N.  B.  178. 

(e)  Lit.  88.  68,  72 ;  Co.  Lit.  47  b; 
4  Go.  49  b,  OgmlVa  Cote. 

If)  Webb  V.  Jiffffs,  4  M.  &  8. 
113  ;  Bandall  v.  Miffby,  4  M.  &  W. 


133. 

{a)  Thomas  y.  Sylvester,  L.  B.  8 
Q.  B.  368 ;  42  L.  J.  Q.  B.  237  ; 
Christie  y.  Barker,  63  L.  J.  Q.  B. 
637. 

{h)  WalkerU  Case,  3  Go.  22  a; 
Allen  V.  Bryan,  6  B.  &  G.  612. 


CHAP.  III.   RENTS.  473 

land  out  of  the  jurisdiction  of  English  Courts ;  an  action 
will  not  lie  for  rent  of  such  land  upon  ground  of  privity 
of  estate  only,  without  a  personal  contract  (i).  It  is  also 
expressly  excepted  from  application  to  the  tithe  rent 
charge  by  the  terms  of  the  Tithe  Commutation  Act,  s.  67, 
which  provides  that  nothing  in  the  Act  "  shall  be  taken  to 
render  any  person  whomsoever  personally  liable  to  the 
payment  of  such  rent  charge  "(y).  It  does  not  apply  to 
the  liquidator  of  a  company  holding  the  land  in  that  capa- 
city only  (A:). 

An  executor  or  administrator  at  common  law  had  an  Action  by 
action  of  debt  for  arrears  of  rent  reserved  on  leases  for  ®*ecutor  for 

arrears  of 

years,  accrued  due  at  the  death  of  the  owner;  also  for  rent, 
arrears  of  freehold  rent  of  which  the  deceased  owner  was 
tenant  for  life,  the  estate  of  freehold  having  ceased  at  his 
death ;  and  a  right  of  distress  was  given  in  such  cases  by 
statute  3  &  4  Will.  IV.  c.  42,  ss.  37,  38.  Neither  the 
heir  nor  executor  at  common  law  had  any  remedy  for 
arrears,  of  freehold  rents,  whether  rent  services  or  rent 
charges,  accrued  due  at  death  of  a  tenant  of  the  rent  in 
fee  simple,  fee  taU,  or  for  lives,  where  the  estate  of  freehold 
was  continuing ;  but  by  statute  32  Hen.  VIII.  c.  37,  s.  1, 
both  an  action  of  debt  and  a  right  of  distress  were  given 
to  the  executor  or  administrator  for  such  arrears  (/). 
All  rents  are  now  apportioned  up  to  the  time  of  death,  and 
the  apportionment  is  recoverable  accordingly  (m). 

The  debt  for  rent  is  considered  as  a  specialty  debt,  Rentaspe- 
though  the  rent  be  reserved  upon  a  parol  demise,  and  not  ^    y   ®   • 
secured  by  bond  or  covenant ;  and  it  had  the  priority  of 
such  debts  at  common  law  (/»).     But  the  statute  32  &  33 

(i)  Granworth,  L.  C,  Vincent  ▼.  Fresoott  t.  Boucher,  3  B.  &  Ad.  849 ; 

Gordon,  4  B.  M.  &  G.  654  ;   TThit-  Blackburn,  J.,  Thomas  v.  Sylvester, 

aker  t.  Forlfea,  L.  R.  10  G.  P.  683 ;  L.  R.  8  Q.  B.  371 ;  42  L.  J.  Q.  B. 

44  L.  J.  G.  P.  332.  237 ;  ante,  p.  392. 

IJ)  Ante,  p.  400.  («)  Ante,  p.  419. 

Oraham  t.  Edge,  L.  B.  20  |n)    Thompson    v.     Thompson,    9 


{k)    Gn 
Q.  B.  D. 


683.  Pnoe,   471 ;    Clouffh  v.   French,   2 

(/)   Go.    Irifc.    162  a;     1    WmB.       CoU.  277.   Qee  Talbot  y.  Shrewsbury, 
Saiind.  282,  Duppa  v.  Mayo;  soe      L.  B.  16  £q.  28  ;  42  L.  J.  G.  877. 


474 


USES  AND  PROFITS  IN  LAND  OF  ANOTHER. 


Yict.  0. 46,  wliich  depriyed  speoialiy  debts  of  prioiiiy  in  the 
administration  of  the  estates  of  deceased  persons,  extends 
to  debts  for  rent  (o).  The  doctrine  of  specialty  debts  is 
peculiar  to  English  law,  and  does  not  apply  to  rent  of  land 
out  of  the  jurisdiction  (p). 


GoTenant  to 
pay  rent. 


Privity  of 
contract. 


.  It  is  usual  in  leases  for  the  lessee  to  enter  into  an  express 
covenant,  binding  himself,  and  his  heirs,  executors,  and  as- 
signs for  the  payment  of  the  rent ;  and  the  words  of  reser- 
vation of  rent  in  a  lease,  as  "  yielding  and  paying,"  and  the 
like,  if  executed  by  the  lessee,  make  a  covenant,  because 
importing  agreement  (q) .  The  covenant  runs  with  the  land, 
that  is,  it  is  annexed  by  law  to  the  estate  demised  and 
passes  with  it,  so  as  to  bind  an  assignee  of  the  land  for  the 
time  being,  by  reason  of  the  privity  of  estate,  so  long  as 
he  remains  assignee.  The  benefit  of  the  covenant  also 
runs  with  the  reversion  in  the  land,  or  in  any  part 
thereof  (r).  The  personal  liability  of  the  original  lessee 
upon  his  covenant  remains,  though  he  have  assigned  away 
his  estate,  and  the  lessor  have  accepted  the  assignee  as 
tenant.  ^^  An  action  of  covenant  remains  after  the  estate 
is  gone ;  but,  generally  speaking,  when  the  land  is  gone, 
the  action  of  debt  is  gone  also,  debt  being  maintainable 
because  the  land  is  debtor.  Covenant  is  founded  in  a 
privity  collateral  to  the  land"  («).  But  untij.  the  lessor 
accept  the  assignee  as  his  tenant,  the  lessee  remains  liable 
to  him  in  debt  as  well  as  in  covenant  (t). 


Action  for  use      An  action  lies  at  common  law  to  recover  a  reasonable 
wi^  occupa-     ^^^  ^^  remimeration  for  the  use  and  occupation  of  land 


(o)  SelTastingif  Shirefy.  Scutinffs, 

L.  B.  6  0.  D.  610 ;  47  L.  J.  0. 137. 

{p)   Vincent  ▼.  Gordon,  4  D.  M. 

&  a.  561. 

{q)  1  Bac.  Abr.  Gorenant  B,  p. 
630 ;  Finch,  L.  0.,  SolHs  t.  Carr, 
2  Mod.  91. 

(r)  Spencer'' 8  Case,  5  Co.  17  ^ ; 
Leake  on  Contracts,  2nd  ed.  1215, 
1225,    1231 ;    Conyeyancing   Act, 


1881,  44  &  45  Vict.  c.  41,  88.  10, 
11. 

(»)  Wilson,  J.,  MiUs  ▼.  Amnol,  1 
H,  Bl.  445 ;  AuriolY.  MUU,  4  T.  R. 
98 ;  Randall  y.  JSLighy,  4  M.  &  W. 
134. 

(0  Walker's  Case,  3  Co.  22 «; 
see  Mayor  of  Swansea  y.  ThomaSj 
L.  B.  10  Q.  B.  D.  48. 


CHAP.  III.    RENTS.  475 

imder  circtunstances  which  raise  a  presumptive  oontraot  to 
pay  for  it;  and  the  mere  fact  of  use  and  occupation  of 
land  by  pennission  of  the  owner  is  presumptive  evidence 
of  a  contract  to  pay  to  the  owner  the  value  of  the  occupa- 
tion. "  The  obligation  is  co-extensive  with  and  measured 
by  the  enjoyment ;  as  soon  as  the  occupation  ceases,  the 
implied  contract  ceases ;  and  as  no  express  time  is  limited, 
the  remuneration  must  necessarily  accrue  from  day  to 
day  "  {u). — In  aid  of  this  form  of  action  it  was  enacted  by 
the  statute,  11  Geo.  11.  c.  19,  s.  14,  "That  it  shall  be 
lawful  for  the  landlord  to  recover  a  reasonable  satisfaction 
for  the  lands,  tenements,  or  hereditaments  held  or  occupied 
by  the  defendant  in  an  action  on  the  case  for  the  use  and 
occupation  of  what  was  so  held  or  enjoyed;  and  if  in 
evidence  on  the  trial  of  such  action  any  parol  demise  or 
any  agreement  (net  being  by  deed)  whereon  a  certain  rent 
was  reserved  shall  appear,  the  plaintiff  in  such  action  shall 
not  therefore  be  nonsuited,  but  may  make  use  thereof  as 
an  evidence  of  the  quantum  of  the  damages  to  b«  re;;* 
covered." — The  presumptive  contract  to  pay  rent  arising 
from  the  occupation  of  land  may  be  rebutted  by  showing 
that  the  occupation  was  under  a  lease  by  deed,  or  imder  an 
express  contract  to  a  different  effect  (t?),  or  with  a  different 
person  (tc).  A  claimant  cannot  waive  a  trespass  and 
wrongful  occupation  of  land,  and  charge  a  rent  as  for  a 
permissive  use  and  occupation  (a;).  The  possession  of  a 
vendor  holding  over  after  the  time  for  completion  of  the 
sale  is  adverse,  and  he  cannot  be  -charged  by  the  purchaser 
with  a  rent  for  the  use  and  occupation.  If  the  possession 
is  wrongful  Tie  may  be  turned  out  by  ejectment  and  is 
liable  in  trespass  for  mesne  profits  (y),  A  tenant  holding 
over  after  the  expiration  of  his  lease  may  be  charged  for 

(«)  Per  cur.  Qibton  y.  Kirk,  1  Q.  462 ;  Sloper  v.'  Saunders,  29  L.  J. 

B.    866 ;     ffellier    y.    SilcoXy     19  Ex.  275. 

L.  J.  Q.  B.  295  ;  Churehward  v.  (tr)  Coxy.  Knight,  18  C.  B.  646  ; 

Ford,  2  H.  &  N.  446  ;  26  L.  J.  Ex.  25  L.  J.  0.  P.  314. 

364.  (x)  Turner  v.  Cam$ron  Coal  Co.,  5 

(r)  Sail  Y.  Burgees,   6  B.  &  C.  Ex.  932. 

382 ;   JFalle  y.  Ateheson,   3  Bing.  (y)  Tew  y.  Jones,  13  M.  &  W.  12. 


476  USES  AND  PROFITS  IN  LAND  OF  ANOTHER. 

• 

use  and  oocupation,  and  presumptively  upon  the  terms  of 
his  lease  (m). — The  rent  payable  for  the  mere  use  and 
occupation  of  land  is  presimiptively  meaauoed  in  amount 
by  the  value  of  the  tenement  and  the  duration  of  the 
occupation ;  and  it  accrues  due  from  day  to  day  until  the 
occupation  ceases.  When  a  parol  demise  or  agreement  at 
a  fixed  rent  is  shown,  it  serves  to  regulate  the  amount  as 
to  the  rate  and  the  time  of  payment  {n). 

Condition  of        j^  further  security  for  rent  is  commonly  provided  in 

re-entry  on  t»i» 

non-payment  leases  by  an  express  condition  for  re-entry  upon  non-pay- 
of  rent.  ment.     At  common  law  an  estate  of  freehold  could  not  be 

defisated  by  a  breach  of  condition  without  actual  entry ; 
but  a  term  of  years,  being  a  chattel  interest  arising  by 
contract,  might  be  limited  to  cease  upon  a  mere  condition 
without  entry.  Conditions  for  payment  of  rent  are  usually 
framed  in  the  terms,  that  if  the  rent  shall  be  in  arrear  for 
a  certain  time,  it  shall  be  lawful  for  the  lessor  to  re-enter 
the  demised  premises  and  repossess  them,  as  in  his  former 
estate,  thereby  requiring  an  actual  entry  by  the  lessor  to 
enforce  the  condition,  as  with  estates  of  freehold  upon  con- 
dition at  common  law  (o).  Entry  imder  the  condition 
determines  the  lease,  but  it  does  not  discharge  the  rent 
due,  and  the  lessor  retains  an  action  of  debt  to  recover  the 
arrears  (j9). 
Demand  of  The  right  of  re-entry  for  non-payment  of   rent  was 

subject  at  common  law  to  the  implied  conditions  precedent 
of  a  demand  of  the  rent,  which  was  required  to  be  made  at 
the  appointed  time  and  place  of  payment,  and  to  specify 
the  exact  sum  due ;  and  "  it  was  the  established  rule  of 
the  Court  of  Chancery  and  of  the  Courts  of  conmion  law 
that  no  forfeiture  of  property  could  be  made,  unless  every 

(m)  Bayley  v.  Bradley^  6  C.  B.  (o)  Lit.  88.   328 — 831 ;   Bede  v. 

896;   LeriY.  Letcia,  6  C.  B.  N.  S.  Farr,  6  M.  &  S.   121;    Amtbyx, 

766  ;  30  L.  J.  C.  P.  141.  Woodward,  6  B.  &  C.  519  ;  Liddy 

(n)  Tomlinson  v.  Day,  2  B.  &  B.  v.  Kennedy,  L.  R.  6  H.  L.   134. 

680 ;  per  cur,  Gibson  v.  Kirk,  1  Q.  See  ante.  Vol.  I.  p.  226. 

B.  866.  {p)  3  Co.  23  b,  JTaUier't  Case. 


CHAP.  III.    RENTS,  477 

oondition  precedent  had  been  strictly  and  literally  complied 
with  "  (y).  The  condition  of  a  demand  required  at  com- 
mon law  may  be  modified  or  wholly  excluded,  by  express 
.terms  of  the  lease ;  and  the  demand  must  then  be  made  or 
not  acoording  to  the  terms  and  in  the  manner  stipulated  (r). 

By  the  Conmion  Law  Procedure  Act,  1852,  15  &  16  Ejectment. 
Vict.  c.  76,  8.  210,  re-enacting  4t3^eo.  II.  c.  28,  s.  2,  "In 
all  cases  betwecoi  landlord  and  tenant  as  often  as  it  shall 
happen  that  one  half-year's  rent  shall  be  in  arrear,  and 
the  landlord  or  lessor  to  whom  the  same  is  due  hath  right 
by  law  to  re-enter  for  the  non-payment  thereof,  such  land- 
lord or  lessor  shall  or  may,  without  any  formal  demand  or 
re-entry,  serve  a  writ  in  ejectment  for  the  recovery  of  the 
demised  premises.  And  if  it  shall  be  proved  that  half-a- 
year's  rent  was  due  before  the  said  writ  was  served,  and 
that  no  sufficient  distress  was  to  be  found  on  the  demised 
premises  countervailing  the  arrears  then  due,  and  that  the 
lessor  had  power  to  re-enter,  then  the  lessor  shall  recover 
judgment  and  execution  in  the  same  manner  as  if  the  rent 
in  arrear  had  been  legally  demanded  and  a  re-entry  made." 
The  action  of  ejectment  is  equivalent  to  a  re-entry,  and 
operates  as  an  unequivocal  and  conclusive  election  to  deter- 
mine the  lease  («). — "The  proper  course  for  a  landlord 
who  has  a  right  of  re-entry  is  to  bring  an  action  for  eject- 
ment, as  prescribed  in  the  above  statute ;  yet  it  is  sufficient 
if  the  tenant,  being  in  default,  chooses  to  acquiesce  in  the 
re-entry  "  (t).  And  where  proceedings  are  pending  before 
the  Court  and  the  right  of  re-entry  is  clear,  the  Court  will 
order  possession  to  be  given  up,  without  an  action  of  eject- 
ment (w).  A  forcible  entry  is  unlawful  by  the  statute 
6  Bich.  II.  c.  8;  and  a  right  of  re-entry  under  a  oondition 
of  a  lease  does  not  justify  an  entry  by  force.     "  The  rights 

{q)  Co.  Lit.  201  h;  per  cur,  John-'  (»)  Jones  y.  Carter ,   15  Iff.  &  W.  • 

Sony.  Lyttl^ 9 Iron  Agency y  L.  K.  6  718;   Grimtcood  y.  Mo8»i  L.  R.  7 

O.  D.  694.  C.  P.  360 ;  41  L.  J.  O.  P.  239. 

(r)  J)oe  V.  MaaUrs,   2  B.   &  G.  {t)  £e  Brain,  L.  B.  18  Eq.  409 ; 

490 ;  rhillipe  y.  Bridge,  L.   B.  9  44  L.  J.  0.  103. 

C.  P.  48  ;  43  L.  J.  0.  P.  13.  («)  General  Share  Co,  y.   Wetley 

Brick  Co.,  L.  R.  20  0.  D.  260. 


478  USES  AND  PROFITS  IN  LAND  OF  ANOTHER. 

of  persons  who  liave  a  right  of  entry  are  to  enter  in  a 
peaceable  manner,  and  if  they  cannot  do  so,  thej  must 
resort  to  the  Courts  "  (r). 
Belief  agauurt      The  Court  of  Chancery  exercised  an  original  jurisdiction 

condition  of       if  i  i  »     a  ff  m  j# 

re-cntiy.  ">  reueve  a  tenant  against  a  condition  of  re-entry  for  non- 
payment of  rent.  This  jurisdiction  is  now  regulated  by 
statute  and  may  be  exercised  by  all  Divisions  of  the  High 
Court.  The  tenant  may  proceed  for  relief  at  any  time 
within  six  monfhs  after  execution  in  the  ejectment ;  and 
in  support  of  such  proceeding  must  bring  into  Court  the 
arrears  of  rent  claimed  and  the  costs  of  the  landlord  (if). 
The  Conveyancing  Act,  1881,  44  &  45  Vict.  c.  41,  s.  14, 
providing  generally  for  relief  against  re-entry  and  forfei- 
ture for  breaches  of  covenants  and  conditions  in  leases, 
expressly  excepts  from  its  effect  "  the  law  relating  to  re- 
entry, or  forfeiture,  or  relief  in  case  of  non-payment  of 
rent,"  which  was  provided  for  by  previous  statutes. 

Condition  of         Rent  may  be  further  secured  by  a  condition  in  the  lease, 

pro^.  *  ^^^  ^  *^®  ^®^*'  ^®  ^  arrear,  it  shall  be  lawful  for  the  lessor 
to  enter  and  hold  the  land  and  take  the  profile  to  his  own 
use  until  the  arrears  are  satisfied.  Upon  such  a  condition 
a  demand  of  the  rent  is  not  required  before  entry,  as  upon 
the  condition  to  re-enter  absolutely,  unless  it  be  expressly 
stipulated  for ;  because  there  is  no  forfeiture  or  transfer  of 
estate,  but  only  an  interest  by  the  agreement  of  the  parties 
to  take  the  profits  in  the  nature  of  a  distress,  subject  to 
*  which  the  estate  of  the  tenant  continues  as  before.  A 
similar  power  may  be  given  to  secure  a  rent  charge  (x). 

Summary  By  the  statute  11  Greo.  n.  c.  19,  s.  16,  it  is  provided,  to 

Forrecove^     avoid  " the  expense  and  delay  of  recovering  in  ejectment," 

of  poBsesaion.    — « that  if  any  tfenant  holding  any  lands,  tenements,  or 

hereditaments  at  a  rack  rent,  who  shall  be  in  arrear  for  one 

{v)  Fry,  J.,  Edwich  v.  ffawkes,  (x)  Lit.  b.  327;  Co.  Lit.* 203  a; 

L.  R.  18  0.  D.  199  ;   8.  C.  Edrvig$  HavergiU  v.  Hare,  Cro.  Jac.  610; 

V.  Hawker,  60  L.  J.  C.  677.  Jemoii  ▼.  Cotoley^   1  Wms.  Sannd. 

(fr)  16  &  16  Yict.  o.  76,  ss.  210  112<;;  HasseUy,  OowthuHUie,WmeB, 

—212  ;  23  &  24  Yict.  c.  126,  s.  1.  600  ;  Doe  v.  Hartley,  1  A.  &  E.  766. 


CHAP.  III.   RENTS.  479 

year's  rent,  shall  desert  the  demised  premises  and  leave 
the  same  iinonltivated  or  unoocupied,  so  as  no  sufficient 
distress  can  be  had  to  countervail  the  arrears  of  rent,"  the 
landlord  or  lessor  may  take  proceedings  before  justices  of 
the  peace,  as  therein  prescribed,  who  are  empowered  to  put 
him  into  the  possession  of  the  demised  premises,  "  and  the 
lease  thereof  to  such  tenant  shall  from  thenceforth  become 
void."  By  sect.  17,  tenants  may  appeal  to  the  next  justices 
of  assize.  The  landlord  must  have  a  right  of  re-entry  in 
order  to  proceed  imder  this  section  (y).-«— Further  summary 
jurisdiction  for  recovery  of  possession  is  given  to  justices  by 
the  statute  1  &  2  Vict.  c.  74,  when  the  term  or  interest  of  the 
tenant  of  any  house,  land,  or  corporeal  hereditament,  held 
at  wiU  or  for  any  term  not  exceeding  seven  years,  at  a 
rental  not  exceeding  twenty  pounds  a  year,  shall  have 
ended  by  legal  notice  to  quit  or  otherwise,  and  such  tenant 
shall  neglect  or  refuse  to  deliver  up  possession.  And  by  Jurisdiction 
the  County  Courts  Act,  1888,  61  &  52  Vict.  c.  43,  s.  138  ^^h'!''*^ 
(re-enacting  the  County  Courts  Act,  1866,  s.  60),  juris- 
diction is  given  to  the  County  Court  "when  the  term 
and  interest  of  the  tenant  of  any  corporeal  hereditament, 
where  neither  the  value  of  the  premises  nor  the  rent  pay- 
able shall  have  exceeded  fifty  pounds  by  the  year,  shall 
have  expired,  or  shall  have  been  determined  by  notice  to 
quit,  and  such  tenant  shall  neglect  or  refuse*  to  deliver 
up  possession  accordingly  "  (s). 

The  Court  of  Chancery  had  an  original  jurisdiction.  Jurisdiction 
now  extended  to  aU  Divisions  of  the  High  Court,  to  raise  ^?i^ror  sale, 
rent  charges  and  annuities  charged  upon  land  by  appoint- 
ing a  receiver  of  the  rents  and  profits ;   and,  if  necessary, 
by  ordering  a  sale  or  mortgage  of  so  much  of  the  land  as 
may  be  required  to  discharge  the  arrears  {a).    But  the 

(y)  Ex  parte  JPilian,  1  B.  &  Aid.  (a)  DukeofLeedsy,  Bowell,  1  Yea. 

869.  sen.  171 ;   Cupit  v.  Jackson,  McCl. 

(z)  See  Friend  v.  Shaw,  L.  R.  20  496;  13 Price,  721 ;  OravesT.  Hicks, 

Q.  B.  D.  374.  11  Sim.  561 ;    White  y.  James,  26 


480 


USES  AND  PROFITS  IN  LAND  OF  ANOTHER. 


Remedies 
under  Con- 
veyancing 
Act,  1831. 


Court  will  not  apply  the  extraordinary  remedies  of  a 
reoeiyer  or  sale,  unless  the  ordinary  legal  remedies  of 
distress,  action  or  entry  are  unavailable  or  insufficient  (b). 
The  Court  ordered  a  sale  of  the  glebe  lands  of  an  ecclesi- 
astical corporation  in  satisfaction  of  a  rent  charge,  which 
had  been  charged  upon  the  land  for  a  term  of  years  for 
the  execution  of  improvements  under  the  statutory  powers 
of  the  Inclosure  Commissioners;  the  rent  charge  being 
secured  with  powers  of  entry  to  take  the  profits  and  of 
distress,  but  these  powers  having  become  useless  by  reason 
of  the  land  being  imoccupied  and  profitless,  and  a  receiver 
being  useless  for  the  same  reason  {c).  The  Court  refused 
to  order  a  sale  of  land  in  satisfaction  of  arrears  of  the 
tithe  rent  charge,  because  it  is  a  charge  upon  the  annual 
profits  only  and  not  upon  the  inheritance  {d). 

'By  the  Conveyancing  Act,  1881,  44  &  45  Vict.  c.  41, 
the  remedies  for  rent  charges  and  other  annual  sums  are 
given  a  statutory  definition  and  application.  By  s.  44  (1), 
"  Where  a  person  is  entitled  to  receive  out  of  any  land 
any  annual  sum,  payable  half-yearly  or  otherwise,  whether 
charged  on  land  or  on  the  income  of  land,  and  whether  by 
way  of  rent  charge  or  otherwise,  not  being  rent  incident 
to  a  reversion,  then,  the  person  entitled  to  receive  the  same 
shall  have  such  remedies  for  recovering  the  same  as  are 
described  in  this  section." —  (2)  "  If  at  any  time  the  annual 
sum  is  unpaid  for  twenty-one  days,  the  person  entitled 
may  enter  into  and  distrain  on  the  land  charged,  and 
dispose  according  to  law  of  any  distress  found." — (3)  "If 
at  any  time  the  annual  sum  is  impaid  for  forty  days,  then, 
although  no  legal  demand  has  been  made  for  payment 
thereof,  the  person  entitled  may  enter  into  possession  of, 


Beav.  191 ;  28  L.  J.  0. 179 ;  Horton 
V.  Hall,  L.  R.  17  Eq.  437. 

{b)  Sollory  v.  Leaver,  L.  E.  9  Eq. 
22 ;  40  L.  J.  C.  398 ;  Kebey  v. 
Keltey,  L.  B.  17  Eq.  495. 


(e)  SeottUh  Widowe' Fundv,  Craig, 
L.  R.  20  C.  D.-208;  61  L.  J.  C. 
363. 

{d)  BaUey  v.  Badham,  L.  R.  30 
G.  D.  84 ;  64  L.  J.  C.  1067 ;  ante^ 
p.  401. 


CHAP.  III.    RBNT8.  481 

and  hold  the  land  ohai^ed,  and  take  the  income  thereof, 
until  thereby  or  otherwise  the  annual  smn  and  all  arrears 
thereof  and  all  costs  occasioned  by  non-payment  are  fully 
paid;  and  such  possession  when  taken  shall  be  without 
impeachment  of  waste." — (4)  "In  the  like  case  the  person 
entitled,  whether  taking  possession  or  not,  may  also  by 
deed  demise  the  land  charged,  or  any  part  thereof,  to  a 
trustee  for  a  term  of  years,  with  or  without  impeachment 
of  waste,  on  trust,  by  mortgage,  or  sale,  or  demise,  to  raise 
and  pay  the  annual  sum  and  all  arrears  thereof  and  all  costs 
occasioned  by  the  non-payment." —  (5)  "  This  section  applies 
only  if  and  so  far  as  a  contrary  intention  is  not  expressed 
in  the  instrument  under  which  the  annual  sum  arises,  and 
shall  have  effect  subject  to  the  terms  of  that  instrument 
and  to  the  provisions  therein  contained." — And  (6)  "This 
section  applies  only  where  that  instrument  comes  into 
operation  after  the  commencement  of  this  Act." 


II 


4^  USES  AND  PROFITS  Yff  LAND  OF  ANOTHEB. 


CHAPTER  IV. 
PUBLIC  USES  OF  LAND. 

Section   I.  Highwajrs. 

II.  Local  CQBtomB. 

Section  I,  Highways. 

{  1.  Highways  ia  general — §  2.  Origin  and  extinction  of  liighi 

§  3.  ICaintenanoe  and  repair  of  highways — §  4.  Bemediea  relating 
to  highways. 

§  1.    HlOHWATS  IN  GENERAL. 

Pablio  rights — general  and  local. 

H]ghway-~different  kinds  of  highway — cattle  way — ^railwaj — na,yig' 
able  river — towing  path. 

Public  way  withont  thoroughfare — public  commons  and  open  ^aoes. 

Ownership  of  soil  of  highway — land  at  sides  of  highway — inclosing  up 
to  highway — conveyance  of  land  abutting  on  highway. 

Rights  of  ownership  of  highway — trespass  on  highway. 

Ownership  of  highways  under  statutes — ^Turnpike  Acts — ^Public  Health 
Act — Metropolis  Local  Management  Act — compensation  for  high- 
ways taken. 

Limits  of  highway — termini— width — deviation. 

Use  of  highway  by  public — public  meetings — excessive  traffic — ^loco- 
motive eng^es — tramways — ^telegraphs. 

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

Fencing  land  adjoining  highway — cattle  straying  through  defect  of 
fences — ^fencing  nuisances  on  adjoining  land. 

Public  rights.  The  rights  in  alieno  solo  aboTe  treated  belong  to  a 
g^^J]*^  *^*  person  in  a  private  or  corporate  capacity,  and  are  rights 
of  property  in  the  strict  meaning  of  the  term.  The 
rights  in  alieno  solo  here  treated  belong  to  a  person  only 
as  one  of  the  public;  and  they  differ  from  rights  of 
property  in  having  no  determinate  owner,  personal  or 
corporate.  They  arek  common  to  the  public  at  large,  or 
to  a  part  of  the  public  limited  by  a  certain  locality  or 


CHAP.  IV.   HIGHWAYS.  488 

deecripiion ;  and  they  are  distinguished  accordingly  as 
being  general  or  local.  Of  the  former  kind  are  all  public 
rights  of  way,  highways,  bridges,  and  the  like,  which  are 
for  the  use  and  accommodation  of  all  subjects  of  the 
realm.  Of  the  latter  kind  are  privileges  of  persons  within 
some  limited  district  of  using  land  for  purposes  of  local 
convenience  ;  such  as  a  right  of  way  to  church  or  market, 
or  a  right  of  enjoying  an  open  space  for  exercise  or 
recreation.  The  former  kind  of  public  rights  are  founded 
npon  the  general  custom  of  the  realm  or  common  law;  the 
latter  upon  the  special  custom  of  the  district  or  lex  loci  (a). 
— The  public,  as  such,  can  acquire  no  right  to  take  profits 
in  alieno  solo  (b), 

A  public  way  or  highway  is  a  right  of  passage  for  the  Highway. 
pubKc  in  general.  It  resembles  an  easement  in  regard  to 
the  servient  tenement,  but  differs  from  an  easement  in 
there  being  no  dominant  tenement,  without  which  there 
can  be  no  easement  properly  so  called.  But  "  in  truth,  a 
public  road  or  highway  is  not  an  easement;  it  is  a 
dedication  to  the  public  of  the  occupation  of  the  surface  of 
the  land  for  the  purpose  of  passing  and  repassing,  the 
public  generally  taking  upon  themselves  (through  the 
parochial  authorities  or  otherwise)  the  obligation  of 
repairing  it.  It  is  clear  that  that  is  a  very  different  thing 
from  an  ordinary  easement,  where  the  occupation  remains 
in  the  owner  of  the  servient  tenement  subject  to  the 
easement"  (c). 

It  is  said  "  there  be  three  kinds  of  ways  :   first,  a  foot-  Different 
way ;   the  second  is  a  footway  and  horseway,  and  this  .,^yf  °     ^ 
vulgarly  is  called  a  pack  or  drift  way  also ;    the  third, 
which  contains  the  other  two  and  also  a  cartway."     But 
ways  may  further  vary  according  to  the  limitations  of 
their  creation,  as  either  expressed  in  terms  or  implied  in 

(a)  PoBif  p.  649.  (c)  Oaims,   L.  J.,    Bangeley  v. 

'(b)  Neill  Y.  Devonshire,  L.  B.  8      Midland  Ry,,  L.  B.  3  Gh.  311 ;  37 
Ap.  Ca.  135 ;  poet,  p.  660.  L.  J.  C.  316. 

Il2 


4S1 


USES  ASD  noras  is  i.A2n>  or  another. 


Cattle 


BAflwaj. 


nnge  iV;. — **  HigliwaT*'  is  tbe  genenl  term  for  all  kinds 
of  pablie  wajs,  whether  carriageway,  haraewaT,  or  foot« 
waj;  and  it  serres  to  describe  them  all,  except  where  it  is 
material  to  state  the  spedes  of  wav  (</).  In  the  construc- 
tion of  the  Highway  Acts  it  is  provided  that  "  the  word 
*  highways'  shall  be  understood  to  mean  all  roadsy  bridges 
(not  being  county  bridges;,  carriageways,  cartways,  horse- 
ways, bridleways,  footways,  causeways,  churchways,  and 
payements"  (/>).  In  an  indosure  Act  the  word  '^road" 
was  construed  to  include  a  footway  (/).  The  cause- 
ways by  the  sdes  of  high  roads  are  part  of  the  high- 
way, and  the  surveyor  is  bound  to  secure  them  from 
injury  by  carriages  Ig). — ^^  In  general  a  public  highway  is 
open  to  cattle,  though  it  may  be  so  unfrequented  that  no  one 
has  seen  an  instance  of  their  going  there ;  but  the  pre- 
sumption would  be  for  cattle  as  well  as  carriages,  otherwise 
cattle  could  not  be  driven  from  one  part  of  the  kingdom  to 
another"  {h).  And  an  adjacent  owner  cannot  complain  of 
the  nuisance  caused  by  the  ordinary  driving  of  cattle  along 
the  highway  (t).  But  cattle  are  lawfully  on  the  highway 
only  for  the  purpose  of  passing  and  repassing  (j). 

A  railway  constructed  under  an  Act  of  Parliament,  to 
be  used  by  the  public  with  waggons  and  carriages,  was 
held  to  be  "  a  public  highway  to  be  used  in  a  particular 
mode"  ;  and  a  company  incorporated  to  make  and  main- 
tain it  was  held  liable  to  an  indictment  for  taking  up  the 
rails,  and  to  a  mandamus  to  restore  them  (k). — "By  the 
Railway  Clauses  Act,  8  Vict.  c.  20,  s.  92,  as  to  railways  con- 
structed under  that  Act,  it  is  expressly  provided  that  "  upon 


{e)  Co.  lit.  56  a;  pott,  p.  603. 

(d)  Holt,  C.  J.,  The  Quern  v. 
Saintif,  6  Mod.  255;  AUen  y.  Or- 
monde 8  East,  4;  Ellenborongfa, 
C.  J.,  The  King  r.  Salop,  13  East,  95. 

{e)  5  &  6  Will.  4,  c.  50,  8.  6. 

(/)  Logan  v.  Burton,  6  B.  &  C. 
613. 

(^)  6  &  6  Will.  4,  c.  60,  8.  24 ; 
£IIU  V.  Woodhridge,  29  L.  J.  M. 
183. 


(A)  MaosBeld,  G.  J.,  Ballard  x, 
lygeon,  1  Taunt.  283. 

(f)  Truman  v.  London,  Brighton 
By.,  L.  R.  11  Ap.  Ca.  46;  66  L.  J. 
C.  354. 

U)  Doraeton  v.  Fajne,  2  H.  Bl. 
627  ;  2  Smith,  L.  C. 

(A)  The  King  v.  Setem  Bg.,  2 
B.  &  Aid.  646.  See  Bo^e  t.  Skil- 
ton,  4  B.  &  Ad.  726. 


CHAP.  IV.    HIGHWAYS.  '  485 

payment  of  the  tolls  demandable  all  persons  shall  hd 
entitled  to  use  the  railway  with  engines  and  carriages 
properly  constructed,  subject  to  the  regulations  to  be  from 
time  to  time  made  by  the  company  by  virtue  of  the  powers 
hereby  and  by  the  special  Act  conferred  upon  them." 
But  where  special  agreements  are  made  with  the  company 
for  the  use  of  the  railway,  the  rights  of  the  parties  are  no 
longer  governed  by  the  provisions  of  the  Act,  but  depend 
upon  the  terms  of  the  agreement  (/). 

A  public  navigable  river  is  analogous  to  a  highway,  and  Navigable 
has  the  legal  rights  and  incidents  of  a  highway,  for 
passage  of  the  public,  for  the  carriage  of  goods,  and  for 
the  accommodation  of  riparian  owners.  The  right  of 
navigation  is  generally  proved  by  the  immemorial  usage, 
which  also  prescribes  the  mode  and  limits  of  the  naviga- 
tion (w).  Tidal  rivers  axe  primd  facie  public  for  navigation 
at  conmion  law  ;  and  the  right  of  navigation  along  a  tidal 
river  includes  the  right  of  grounding  on  the  bed  of  the 
river  until  the  tide  serves,  whenever  it  is  necessary  for  the 
purpose  of  navigation  (n). — A  towing  path  on  the  bank  of  Towing  path. 
a  public  navigable  river  or  canal  is  a  highway  for  the  par- 
ticular purpose  of  towing  vessels ;  and  for  such  purpose 
"  the  towing  path  must  be  taken  to  include  so  much  of  the 
bank  as  is  reasonably  and  properly  used  as  such  (o)."  The 
right  of  using  the  bank  of  a  navigable  river  for  a  towing- 
path  does  not  exist  generally  at  common  law ;  but  it,  may 
be  established  by  custom,  or  by  special  grant,  or  by  ■ 
statute  (p).  A  towing  path  may  become  also  a  public 
footway  by  general  use  for  that  purpose  (q).  The  con- 
servators of  a  river  navigation,  with  statutory  powers  to 
maintain  the  navigation  and  towing  paths  and  to  take 

(/)  Great  Northern  Ry.  v.  Eastern  (o)  Fer   eur.    Winch    v.    Thame* 

Counties  Ry.,  9  Hare,  306  ;  21  L.  Cmserv.,  L.  B.  7  C.  P.  469  ;  41  L. 

J.  C.  837.  J.  0.  P.  248. 

(m)  Ante,  p.  166.    Original  Hart-  ip)  Ante,  p.  158  ;  Ballv,  Herbert, 

lepool  Coll.  y.  Gibb,  L.  R.  5  C.  D.  3  T.  R.  253 ;  see  Simpson  v.  Scales, 

713  ;  46  L.  J.  C.  311.  2  B.  &  P.  496. 

(n)  Colchester  v.  Brooke,  7  Q.  B.  {q)  Grand  Junction   Canal  Co.  y. 

839 ;  anU,  p.  162.  Fetty,  L.  B.  21  Q.  B.  D.  273  ;  57 

L.  J.  Q.  B.  572 ;  aeepost,  p.  508. 


466 


VSSS  AND  PBOFITS  IN  LAND  OF  ANOTHER* 


tolls  for  the  use  of  the  same,  are  held  responsible  to  those 
using  the  towing  paths  for  their  being  in  proper  repair 
and  condition  (^).  Such  conservators  are  presumptiyelj 
not  the  owners  of  the  soil,  but  have  the  right  and  duty  of 
maintaining  the  towing  paths  for  the  use  of  the  public  and 
preventing  obstructions  (r).  The  towing  path  of  a  tidal 
river,  that  could  only  be  used  at  certain  times  of  the  tide, 
was  held  to  be  extended  in  use  by  an  improvement  in  the 
river,  which  rendered  it  navigable  at  all  times  («). 

Pablio  way  A  cul  de  soCy  OT  way  without  a  thoroughfare,  may  be 

S^^hfare.  P^^^^^^  5  *^^^g^  *^®^  ^Y  ^®  difficulty  in  proving  it  so 
by  reason  of  the  limited  use  (t),  A  public  way  or  street 
without  a  thoroughfare  cannot  be  converted  into  a  public 
thoroughfare  by  the  owner  of  the  adjoining  land  opening 
a  way  through  the  end(«^).  If  a  public  highway  be 
legally  stopped  at  one  end,  it  presumptively  remains  a 
highway,  though  no  longer  a  thoroughfare  (t?).  Thus 
where  inclosure  commissioners  of  a  pariah  stopped  a  foot- 
path through  the  parish  which  passed  into  the  adjoining 
parish,  it  was  held  that  the  part  of  the  footway  in  the 
latter  parish  remained  public,  though  without  the  former 
thoroughfare  (w).  But  where  the  stopping  of  two  roads 
had  the  effect  of  rendering  access  of  the  public  to  an  inter- 
mediate crossrroad  impossible,  it  was  held  that  the  latter 
was  no  longer  a  highway  (z). 

Commons  and  open  spaces  may  be  free  to  the  use  of  the 
whole  public  for  the  purpose  of  exercise  and  recreation, 
under  statutes  providing  in  that  behalf.     The  rights  of 


FuUicoom- 
monfl  and 
open  spaoee. 


(q)  Wineh  t.  Thame»  Oonterv,^ 
L.R.9C.P.378;  43L.J.C.P.  167. 

(r)  Zee  Ooruerv,  y.  Button,  L.  B. 
6  Ap.  Ca.  686 ;  51  L.  J.  0.  17. 

(«)  I%e  King  v.  Tippett,  3  B.  & 
Aid.  193. 

(t)  The  King  y.  Lloyd,  1  Camp. 
'260 ;  Rugby  Charity  y.  Aferyweather, 
11  East,  375,  n. ;  Wood  y.  Veal,  6 
B.  &  Aid.  454  ;  Bateman  y.  Bluek, 
18  Q.  B.  870 ;  21  L.  J.  Q.  B.  406; 
Soueh  y.  East  London  By,,  L.  B.  16 


Eq.  108  ;  42  L.  J.  G.  477 ;  Vemm 
y.  St.  Jamet,  Weetminster,  L.  B.  16 
CD.  449;  49  L.  J.  C.  130. 

(ti)  Woodyer  y.  Hodden,  5  Taunt. 
125. 

(v)  The  King  y.  Dowmhire,  4  A* 
&  £.  713. 

{u>)  Gwyn  y.  Hardwieke,  1  H.  & 
N.  49  ;  26  L.  J.  M.  97. 
-     {x\  Bailey  y.  Jamieeon,  L.  R.  1 G. 
P.  D.  329. 


CHAP.rV.  HIGHWAYS. 


487 


the  public  over  suoli  places  are  analogous  to  rights  of  waj 
over  highways;  but  they  are  generally  restricted  and 
regulated  by  bye-laws  made  under  the  statutory  powers, 
by  which  they  are  created  (y).  Bights  of  this  kind  for 
the  benefit  of  the  local  public  of  a  parish  or  district  may 
be  established  by  local  custom  (z).  The  grant  of  a  space 
for  the  use  of  certain  houses,  as  a  square  or  garden,  gives 
a  private  way  only,  and  no  public  right  of  use  (a). 

In  the  absence  of  evidence  to  the  contrary,  the  pre«  Ownership 
sumption  is  that  the  soil  of  the  highway  belongs  to  the  ??  *^^  °' 
owner  of  the  inclosed  lands  between  which  it  passes ;  and  if 
the  land  on  each  side  of  the  road  is  held  by  different  owners, 
the  presumption  is  that  each  side  of  the  highway  to  the 
medium  filum  via  belongs  to  the  owner  of  the  adjoining 
land  {b).   .  The    presumption    is    rebutted    by    sufficient 
contrary  evidence  respecting  the  ownership;  as  that  the 
highway  was  set  out  imder  an  inclosure  Act,  which  also 
allotted  the  ownership  of  the  soil,  or  left  it  in  the  lord  of 
the  manor  (c).     So,  where  the  lord  of  the  manor  took  tolls 
and  rents  for  the  use  of  the  soil  of  the  highway  in  a  town, 
for  holding  markets  and  other  purposes,  it  was  held  suffi*. 
cient  evidence  to  rebut  the  presumption  of  ownership  in 
favour  of  the  adjoining  tenements  {d). 

The  presumption  includes  land  at  the  sides  of  the  high-  Land  at  aldee 
way  between  it  and  the  adjoining  inclosure.    "  It  is  a  primd  °'  ^g^^ay* 
facie  presumption  that  waste  land  on  the  sides,  and  the 
soil  to  the  middle  of  a  highway  belongs  to  the  owner  of 


(y)  See  the  Metropolitan  Ckxm- 
mons  Act,  1866  (29  &  30  Vict.  c. 
122) ;  the  GommonB  Act,  1876  (39 
A  40  Vict.  o.  56} ;  the  Metropolitan 
Open  Spaoee  Act,  1877  (40  &  41  Vict, 
c.  35) ;  the  Open  Spacea  Act,  1887 
(50  &  51  Vict.  c.  32) ;  the  Settled 
Estates  Act,  1877  (40  &  41  Vict. 
o.  18),  8.  20;  the  Settled  Land  Act, 
1882  (45  &  46  Vict.  c.  38),  s.  16 ;  the 
Commonable  Bights  (compensation 
Act,  1882  (45  &  46  Vict.  o.  15). 


i; 


(z)  Qeepoit,  p.  559. 

(a)  Duncan  y.  ZomcA,  6  Q.  B. 
904. 

(b)  Grose  v.  JFett,  7  Taunt.  41. 
See  ffolmet  v.  BeUingkam^  7  C.  B. 
N.  S.  329 ;  29  L.  J.  C.  P.  134  ; 
anUf  p.  204. 

(«?)  The  King  v.  Hatfield^  4  A.  & 
E.  156;  Hooper  y.  Bourne^  L.  R, 
3  Q.  B.  D.  259. 

{d)  Beckett  y.  leede,  L.  R,  7  Ch. 
421. 


469  USES  AKD  PROFITS  IN  LAN1>  OF  ANOTHER. 

the  adjoining  land.  The  rule  is  founded  on  a  supposition^ 
that  the  proprietor  of  the  adjoining  land  at  some  former 
pmod  gave  up  to  the  public  for  passage  all  the  land 
between  his  indosure  and  the  middle  of  the  road "  (e). 
Ana«[it  highways,  being  for  the  most  part  nnindosed, 
gait?  the  liberty  of  deviating  from  the  beaten  track  when- 
eY^ar  it  became  impassable,  therefore  the  owner  of  the  land 
eoold  not  inclose  without  leaving  sufficient  space  for 
deviation.  But  when  proper  provision  was  made  for 
repair  of  the  road,  these  spaces  were  no  longer  used  bj 
the  public  and  reverted  absolutely  to  the  owner  (/).  The 
rule  k$  not  confined  to  freeholders.  *'It  applies  equally 
whether  the  party  occupying  the  adjoining  land  be 
a  freeholder,  leaseholder,  or  copyholder.  Ajs  to  the 
fi^^cvrty^  a  copyholder  stands  in  the  place  of  the  lord; 
tlv  leijeehclder  in  the  place  of  the  lessor**  (^). — ^But 
when^  the  Luid  between  the  highway  and  the  adjoining 
u^:^Ol^ttre  vvronninicates  with  open  waste  or  other  land,  the 
('cviHizircioii  in  fawHir  of  the  adjoining  owner  maybe  met 
by  a  :^trvc^:er  preeampdon  that  all  such  land  lying  togeth® 
^  tn  tbL*e  :sftiiie  ownership  ^A).  It  may  also  be  met  by 
e>^>^cv*>e  o£  cwner^p  of  other  parts  of  the  land  similarly 
$vt*<^A:5\l :  JLni  **  i:  t  h:>r  the  judge  to  decide  whether  there 
^  $uvli  a  urL::y  cf  cLauracter  in  the  different  parts  as  to 
r>^c!^i.^r  i^^^iscvi^^  a£ecc;r,g  a  part  not  in  dispute,  admissible 
>»*u\  r::,cvcv!e  to  tie  psirt  in  dispute"  (i).  The  presump- 
^:o<fc  :R.*Jk>f  jC^*  be  rvcctied  bv  direct  evidence  of  title  to  the 
yvt'-r^r>  :  *>  bv  >iLowi:i^  thit  the  land  had  been  allotted 
^"'^VT  dfc:x  uovocjt::::^  A.c  as  Wing  waste  of  the  manor  (j). — 
\\*sv\v^>*^  ^  T*V  o^fcv-c  >  i  ifc2>i  ocec  ^?  the  hishwav  may  indose  it  up 
to  :>.o  V.    ;:  oi  :Ix^*  ii*iway.     The  Highway  Act,  186i, 


^'  V^4>%^ 


^    ^    ^\   v^    <iv  -^   T.   >  .CK.       r  R  *  C  507. 

*  K\  *.. »    <^,  i    •: "tme  t.  »«/,  7  TBimt.  59. 

t  >i,%  <T.\    ,  >cv     v\\<-»w'ru  C.   w  .       ^M/MMft  T.  Amdy^  S  C.  B.  N.  S. 


1^-  R  D.  i^:  :  4^  L.  J.  Q.  B.  J67. 


CHAP.  IV.    HIGHWAYS.  •  489 

27  &  28  Vict.  c.  101,  s.  61,  which  imposes  a  penalty  upon 
an  incroachment  by  building  or  fencing  ^^  on  the  aide  of  or 
sides  of  any  carriage-way  within  fifteen  feet  of  the  centre 
thereof,"  applies  only  to  the  land  within  the  limits  of  the 
highway,  and  not  to  land  at  the  side  of  the  highway 
beyond  those  limits,  though  within  fifteen  feet  of  the 
centre.  The  section  does'  not  extend  the  protection  of  the 
highway  to  fifteen  feet  from  the  centre,  where  the  highway 
is  in  fact  less  than  that  width ;  nor  does  it  protect  any  part 
of  a  highway  which  is  in  fact  beyond  fifteen  feet  from  the 
centre  {k), 

A  like  presumption  applies  in  the  construction  of  con-  Conreyance 
veyances.  Where  land  adjoining  a  highway  is  conveyed  tingon*  ^* 
by  a  description  in  general  terms,  or  as  abutting  on  a  tighway. 
highway,  "the  presumedly  right  construction  is  that  it 
passes  the  soil  ad  medium  filum  vicE^^\  and  the  presumption 
prevails,  though  reference  is  made  to  a  plan  or  measure- 
ment which  does  not  include  any  part  of  the  highway  (/). 
So,  "  where  the  owner  of  two  pieces  of  land  conveys  them 
to  a  purchaser,  if  a  public  road  lies  between  them,  the 
soil  of  the  road  passes  by  the  conveyance,  although  the 
conveyance  is  silent  as  to  its  existence,  and  although  the 
particular  measurement  of  each  piece  is  given,  and  would 
exclude  the  road  "  (w). — But  where  a  conveyance  described 
two  parcels  of  land  by  reference  to  a  plan  and  schedule,  in 
which  they  were  respectively  numbered,  and  a  road  lying 
between  them  was  separately  numbered  and  entered  as  the 
property  of  another,  it  was  held  that  the  conveyance  did 
not  pass  the  road  (n).  And  where  the  land  purchased  was 
described  as  bounded  by  an  intended  new  street,  it  was  held 
that  the  site  of  the  street  did  not  pass,  and,  the  intention 

(A)  JSaaton  v.  Richmond  Highway  (m)  Per  cur.   Salisbury  v.   Great 

Boardy  L.  R.  7  Q.  B.  69 ;  41  L.  J.  Northern  Ry.,  6  C.  B.  N.  S.  209. 

M.  25 ;  poatj  p.  547.  See  the  like  rule  stated  respeoting 

(/)  Simpson  v.  Leyidy^  8  C.  B.  the  bed  of  a  river,  in  Miektethwatt 

N.  8.  433;   Berridge  v.   Ward,  10  v.   Newlay  Bridge   Co.,   L.  R.   33 

G.  B.  N.  S.  4 16 ;  ii^  cur.  The  Queen  C.  D.  133 ;  ante,  p.  154. 

V.  Strand  Union,  4  B.  &  6.  526 ;  33  (n)  Salisbury  ▼.  Great  Northern 

L.  J.  Q.  B.  300.  By.,  5  fc.  B.  N.  S.  174. 


490 


USES  AND  PROFITS  IN  LAND  OF  ANOTHER. 


not  having  been  carried  out,  it  remained  the  property  of 
the  vendor  (o). 


Rights  of 
ownership  of 
highway. 


Trespass  on 
highway. 


*^  The  owner,  who  dedicates  to  public  use  as  a  highway 
a  portion  of  his  land,  parts  with  no  other  right  than  a  right 
of  passage  to  the  public  over  the  land  so  dedicated,  and 
may  exercise  all  other  rights  of  ownership,  not  inconsistent 
therewith"  (p).  Thus,  trees  growing  upon  the  highway, 
though  they  may  be  removeable  as  obstructions  to  the 
traffic,  presumptively  belong  to  the  owner  of  the  soil  {q). — 
The  ownership  of  the  soil  of  a  highway  is  sufficient  to 
entitle  the  owner  to  claim  superfluous  land  taken  by  a 
railway  company  adjoining  the  highway,  as  being  the 
"adjoining  owner"  under  the  Lands  Clauses  Act,  1845, 
s.  127 ;  and  to  preclude  the  owner  of  land  adjoining  the 
highway  on  the  other  side  from  so  claiming  (r). — ^The 
owner  is  rateable  in  respect  of  the  highway,  if  he  deriyes 
any  profit  from  it,  as  in  the  case  of  tolls  payable  for  its 
use  (s).  But  the  owners  of  the  soil  of  a  highway  were 
held  not  chargeable  with  contribution  to  the  expense  of  the 
sewers  and  paving  of  a  new  street,  as  being  "  owners  of 
land  abutting  on  such  street,"  under  the  Metropolis 
Management  Act,  1862,  25  &  26  Vict.  c.  102,  ss.  52,  77, 
and  the  PubHc  Health  Act,  1875,  38  &  39  Vict.  o.  55, 
s.  150,  the  ownership  not  being  profitable  or  beneficial  (t). 

The  owner  of  the  soil  may  bring  an  action  of  trespass 
for  an  invasion  of  his  possession  (u) ;  and  he  may  maintain 
an  action  of  ejectment  to  recover  possession  of  an  encroach- 


(0)  Zeigh  V.  Jack,  L.  B.  5  Ex.  D. 
264 ;  49  L.  J.  Ex.  220. 

{p)  Per  cur.  St,  Mary  Newington 
V.  Jacobs,  L.  R.  7  Q.  B.  47;  41 
Xi.  J.  M<  72. 

{q)  TSttfier  v.  Jtingtcood  Highway 
Soard,  L.  R.  9  Eq.  418. 

(r)  Hooper  v.  Bourne^  L.  R.  3 
Q.  £.  D.  259. 

(*)  See  The  King  v.  Mersey  Nav, 
Co.,  9  B.  &  0.  95 ;  The  King  v. 
Thomas,  9  B.  &  C.  1 14 ;  Lewis  v. 
Swansea,  5  E.  &  B.  508 ;  25  L.  J. 


M.  33. 

(0  Flumstead  Board  v.  BriHsh 
Land  Co.,  L.  R.  10  Q.  B.  203;  44 
L.  J.  Q.  B.  38 ;  Great  Eastern  By, 
v.  Hackney  Board,  L.  R.  8  Ap.  (>u 
687 ;  52  L.  J.  M.  105 ;  Hampstead 
Vestry  v.  Cotton,  L.  R.  16  Q.  B.  D. 
480.  See  Lighthound  y.  Bebingtom 
Board,  L.  R.  14  Q.  B.  D.  853 ;  55 
L.  J.  M.  94. 

(m)  Lade  y.  Shepherd,  2  Strange, 
1004;  Stevens  y.  Whistler^  11  £tft» 
51. 


CHAP.  lY.   HIGHWAYS,  491 

ment  wrongfully  made  (t?).  The  Court  will  also  grant  an 
injunction  to  restrain  a  continuing  trespass  to  the  soil  of  a 
highway ;  as  where  a  person  opened  the  surface  and  laid 
waterpipes  in  the  soil  without  the  consent  of  the  owner, 
and  without  any  statutoiy  authority  for  that  purpose  (w), 
— ^A  person  using  a  highway  for  any  purpose  other  than 
passing  and  repassing  according  to  the  lawful  use,  is  a 
trespasser  against  the  owner  of  the  soil  (^) ;  as  if  he  puts  his 
cattle  upon  the  highway  to  feed  (^).  And  if  cattle  are 
trespassing  upon  the  highway  and  they  escape  into  the 
adjacent  land  through  defect  of  fences,  the  latter  trespass 
is  not  excused,  as  it  would  be  if  the  cattle  were  lawfully 
using  the  highway  for  passing  only  (z).  A  person  who 
uses  a  highway  in  search  of  game  commits  a  "trespass 
by  entering  or  being  upon  land  in  search  of  game  *'  within 
the  statute  1  &  2  Will.  IV.  c.  32,  s.  30,  and  may  be  con- 
yicted  of  an  offence  under  that  statute,  which  imposes  a 
penalty  upon  such  a  trespass  (a). 

The  owneiship  of  the  soil  of  highways  vested  in  public  Ownership 
bodies  by  Act  of  Parliament,  depends  upon  the  construe-  ^^^  ^^^" 
Son  of  the  Act.     The'  Turnpike  Acts  did  not,  in  general,  statutee. 
divest  the  property  in  the  soil.     The  duty  of  maintaining 
the  road  was   vested  in   trustees;   but  the  property  in 
the  soil,  and  whatever  rights  were  consistent  with  those  of 
the  public,  remained  as  before  (J).    The  Turnpike  Acts,  Turnpike 
for  the  most  part,  have  recently  been  repealed,  and  the 
roads  converted  into  "  main  roads "  under  the  control  of 
tiie  local  authority  as  surveyor  of  highways  (c). — By  the 

(v)  Ooodtitle  y.  Alktr^  1   Bizrr.  (z)  Dovaston  y.  J*ayne,  2  H.  Bl. 

133.  627 ;  2  Smith,  L.  0.     See  Faweett 

(tc)  Goodton  y.  Richardson,  L.  B.  v.  York  and  Midland  £t/.,  16  Q.  B. 

9  tab.  221;  43  L.  J.  C.  790.    See  610;  20L.  J.Q.B.222  ; /K»t^j>.601. 

The  Queen  y.  Longton  Gas  Co,,  29  (a)  The  Queen  v.  Praii,  4  £.  &  B. 

li.  J.  M.  118.  860 ;  24  L.  J.  M.  113  ;  ante,  p.  76. 

(x)  Lade  y.  Shepherd,  2  Starange,  {b)    Salisbury  y.   Great  Northern 

1004 ;  impost,  p.  495.  By.,  5  G.  B.  N.  S.  208:  Kenyon, 

(y)  Stevens  y.  Whistler,  11  East,  C.  J.,  Davison  y.  GilL  1  East,  69. 

61.  (c)  See  Highway  Aot,  1878,  41 

&  42  Vict.  c.  77,  8. 13,  post,  p.  624. 


492  USES  AND  PROFITS  IN  hAVD  OF  ANOTHKR. 

PubUo  Health  PubUo  Health  Act,  1875,  38  &  39  Vict.  c.  55,  s.  149, "  AU 
streets,  being  highways  repairable  by  the  inhabitants  at 
large,  within  any  urban  district  shall  vest  in  and  be  under 
the  control  of  the  urban  authority."  This  enactment  not 
only  gives  the  control  of  the  highway,  it  divests  the  pro- 
perty and  possession  of  the  surface  from  the  former  owner 
and  vests  it  in  the  local  authority  for  all  purposes  of  the 
Act  (d).  The  property  thus  vested  includes  the  herbage 
growing  upon  the  sides  of  the  highway,  so  as  to  entitle  the 
Metropolis  local  authority  to  let  it  for  pasture  (6). — The  Metropolis 
Mfi^agement  j^^^^  Management  Act,  1855,  18  &  19  Vict.  c.  120,  s.  96, 
enacts  in  similar  words  and  with  the  same  effect ;  but  the 
property  thus  vested  in  the  board,  including  only  so  much 
of  the  surface  as  is  necessary  for  the  highway,  does  not 
entitle  the  local  authority  to  remove  telegraph  i^dres  laid 
across  the  highway  above  the  houses  (/).  The  property 
of  the  local  authority  in  the  soil  of  highways  continues 
only  so  long  as  the  highways  continue ;  and  if  they  are 
legally  stopped  or  diverted,  the  statutory  title  ceases  and 
the  land  reverts  to  the  former  owner  (g). 
Compenaation  Acts  of  Parliament  which  give  statutory  powers  to  take 
uLeaf  ^*^  highways  for  public  purposes  usually  disregard  the  interest 
of  the  original  owner  of  the  soil.  Thus  railway  companies 
generally  have  powers  to  take  streets  and  public  ways, 
without  compensating  the  owners  of  the  soil,  or  dealing" 
with  them  as  for  the  purchase  of  land  (//).  But  for 
tunnelling  imder  a  highway  they  must  proceed  to  pur- 
chase the  land,  or  to*  give  compensation  in  the  usual 
way  (i).  So  gas  and  water  companies  are  generally  em- 
powered to  break  open  the  soil  of  public  streets'  and  high- 
ways and  lay  down  pipes,  without  compensation  to  the 

(rf)  Burgeu  v.  Northwiek  Boards  (^)  RolUr.  St.  George,  Southuark^ 

L.  K.  6  Q.  B.  D.  264 ;  60  L.  J.  L.  R.  14  C.  D.  786 ;  49  L.  J.  C. 

0.  P.  219.  691. 

le)  CoverdaU  v.  Charlton,  L.  R.  4  (h)  Touch  y.  East  London  By,,  L. 

Q.  B.  D.  104 ;  47  L.  J.  Q.  B.  446.  R.  16  Eq.  108  ;  42  L.  J.  C.  477. 

(/)   Wandsworth  v.    United  Tel.  {%)  Banuden  Y.  Manehetter  By.,  I 

Co.,  t.  R.  13  Q.  B.  D.  904  ;  63  L.  Ex.  723. 
J.  Q.  B.  449. 


CHAP.  IV.   HIGHWAYS.  493 

owner  of  the  soil,  except  for  damage  thereby  done  to  his 
property  below  the  surface  {J). 

In  pleading  a  public  highway  it  is  not  necessary  to  state  Limits  of 
any  termini^  because,  as  it  is  said,  "  a  highway  leads  over  tennSf' 
the  whole  kingdom  from  sea  to  sea'';   differing  in  this 
respect  from  a  private  way,  in  pleading  which  it  is  neces- 
sary to  state  both  the  terminus  d  quo  and  the  terminus  ad 
quern  with  certainty  {k), 

"  In  the  case  of  an  ordinary  highway  running  between  Width  of 
fences,  although  it  may  be  of  a  varying  and  unequal  ^  ^*^* 
width,  the  right  of  passage  or  way,  primd  facie  and  unless 
there  be  evidence  to  the  contrary,  extends  to  the  whole 
space  between  the  fences ;  and  the  public  are  entitled  to 
the  entire  of  it  as  the  highway,  and  are  not  confined  to 
the  part  which  may  be  metalled  or  kept  in  order  for  the 
more  convenient  use  of  carriages  and  foot  passengers  "  (/). 
"  All  the  ground  that  is  between  the  fences  is  prestimably 
dedicated  as  highway,  unless  the  nature  of  the  ground  or 
other  circumstances  rebut  that  presumption."  But  where 
a  road  runs  over  open  ground  and  there  are  no  fences, 
there  is  nothing  to  raise  the  presumption  that  any  part  of 
the  open  groimd  beyond  the  road  actually  used  has  been 
dedicated  as  highway  (w). — Where  a  highway  had  been 
set  out  under  an  Inclosure  Act  of  the  width  of  fifty  feet, 
and  twenty-five  feet  only  of  the  space  had  been  used  as  a 
beaten  road  and  the  rest  had  become  overgrown  with  trees 
and  impassable ;  it  was  held  that  the  trees  were  removable 
as  a  public  nuisance,  though  when  removed  they  might  be 
the  property  of  the  owner  of  the  soil ;  for  that  the  public 

{/}  Thompson  v.   Sunderland  Gat  (I)  Fereur.  Queen  y.  United  King' 

Co.,  L.  R.  2  Ex.  D.  429 ;  46  L.  J.  dom  Telegraph  Co,,  2  B.  &  S.  647  ; 

"Rt.  610  ;    Normanton  Gas    Co.  v.  31  L.  J.  M.  166.     And  see  Morris 

JPope,  52  L.  J.  Q.  B.  629.  v.  Mobbe,  L.  R.  3   Ex.  D.  268 ; 

{k)  HaUey*B   Case,   Latoh.   183  ;  Wilkirn  t.  Day,  L.  B.  12  Q.  B.  D. 

8  Salk.  183;   Rouse  v.  Bardin,  1  110, 

H.  Bl.  352 ;  Taunton,  J.,  Simpeon  (m)    Blaokbnni,    J,,    Easton   r. 

T.  Lewthwaits,   3  B.   &  Ad.  233 ;  Richmond  Highway  Jioard,  L.  R.  7 

ante,  p.  208.  Q.  B.  75  ;  41  L.  J.  M.  25. 


494 


USES  AND  PBOFItS  IN  LAND  OF  ANOTHER. 


Deviation 
from  hi^h« 
way. 


rights  could  not  be  lost  or  abandoned  over  any  part  of  the 
highway  (n).  So,  where  ditches  were  ont  through  the 
strips  of  grass  land  at  the  sides  of  the  made  road,  being* 
parts  of  tiie  highway,  to  the  obstruction  of  persons  walk- 
ing and  riding,  they  were  held  to  be  a  public  nuisance ; 
which  could  not  be  justified  unless  necessarily  made  for 
the  draining  of  the  road  (o). — ^Encroachments  by  makin^f 
any  building  or  fence  upon  the  sides  of  a  highway  within 
fifteen  feet  of  the  centre  are  subject  to  a  special  penalty 
imder  ihe  Highway  Act  (p). 

At  common  law  if  a  highway  through  unindosed  land 
was  impassable  for  want  of  repair,  the  limits  of  the  way- 
being  indefinite,  the  public  might  pass  on  the  adjacent 
ground  (g).  But  if  a  highway  was  originally  dedicated 
within  defined  limits,  there  was  no  right  of  deviation  extra 
viam  (r).  If  the  limits  of  a  highway  were  originally  un- 
defined the  owner  of  the  land  might  inclose  against  devia- 
tion ;  but  subject  to  the  condition  of  leaving  a  sufficient 
space  for  the  public,  and  keeping  it  in  such  repair  as  to 
prevent  the  excuse  for  deviation ;  and  he  is  then  charge- 
able with  the  repair  as  long  as  the  indosure  continues  (»). 
But  where  an  ancient  highway  over  open  common  fields 
was  set  out  of  a  certain  width  by  the  commissioners  under 
an  Inclosure  Act,  it  was  held  that  the  allottees  who  in- 
closed the  adjoining  land  were  not  liable  to  repair,  because 
the  highway  was  defined  by  the  authority  of  the  Act^  and 
not  by  their  inclosure8(^). — ^Where  the  owner  of  the  soil 
wrongfully  obstructs  a  highway,  the  public  are  justified  in 
deviating  over  his  land,  but  the  original  highway  is  not 
lost  however  long  the  deviation  continues ;  nor  does  such 


{n)  Turner  Y,  RiHgu>ood  Highway 
Board,  L.  R.  9  Eq.  418  ;  The  King 
V.  Wright,  3  B.  &  Ad.  681. 
'  (o)  Nicol  r.  Beaumont,  53  L.  J.  0. 
853. 

•    {^)&eeSastonT,BiehmondSigh'' 
wag  Board,  ntpra  ;  post,  p.  547. 

{q)  Aheor  y.  Freneh,  2  Show.  28 ; 
Mansfield,  O.  J.,  Taykr  y.  White- 
head,  2  Dougl.  748. 


(r)  The  Kinffv,  Fleeknow,  1  Buir. 
461 ;  Arnold  Y.  Holbrook,  L.  R.  8 
Q.  B.  96 ;  42  L.  J.  Q.  B.  SO. 
•  (*)  Dtmeom^a  •  Oaee,  Cro.  Gar. 
366 ;  The  King  r.  Stoughtm,  2  Wms^ 
Sannd.  160 ;  Abbott,  G.  J.»  Steel 
Y.  Frickett,  2  Stark.  468.  ' 

(4  TheKtngr^I^knew,  iBorr. 
461. 


CHAP.  IV.   HIGHWAYS,  496 

deviation  establish  any  permanent  dedication  of  the  new 
waj,  hecanse  it  is  referred  to  the  obstruotion  for  its  origin 
and  oontinnanoe  (u). 

The  public  are  entitled  to  use  a  highway  for  passing  Public  uae  of 
and  repassing,  on  foot,  or  with  horses,  carts,  and  cattle,  ^  ^*^* 
according  to  the  species  of  highway ;  any  other  use  of  the 
highway  that  obstructs  the  public  use  of  any  part  of  the 
highway  for  passing  and  repassing  is  a  nuisance  which 
may  be  met  by  indictment  on  behalf  of  the  public,  or  by 
action  at  the  suit  of  a  person  suffering  damage,  or  in  some 
eases  by  summary  proceedings  for  penalties.  It  may  also 
be  a  trespass  against  the  owner  of  the  soil  (r). 

There  is  no  right  at  common  law  in  the  public  to  occupy  Pablio 
any  part  of  a  highway  for  the  purpose  of  holding  public  ™^^fi^- 
meetings  («?).  Collecting  a  crowd  and  addressing  them, 
whereby  part  of  a  highway  was  obstructed,  though  the 
passage  by  another  part  was  left  open,  was  held  to  be  an 
offence  within  the  Highway  Act,  1835,  5  &  6  Will.  IV, 
0.  50,  s.  72,  which  imposes  a  penalty  upon  any  person 
"  who  shall  in  any  way  wilfully  obstruct  the  free  passage  of 
any  highway  "  {x).  There  is  no  right  of  holding  a  public 
meeting  on  a  common  dedicated  to  the  use  and  recreation 
of  the  public  under  the  Metropolitan  Commons  Act,  1866, 
29  &  30  Vict.  c.  122;  and  a  bye-law  prohibiting  the 
delivery  of  any  public  speech  or  address,  except  by  per- 
mission of  the  proper  authority,  was  held  valid  (p).  There 
is  no  general  right  of  holding  and  addressing  public  meet- 
ings in  royal  parks,  although  the  public  may  have  been 
prescriptively  licensed  to  enter  and  use  them  for  recreation 
and  exercise;  and  by  the  Parks  Begulation  Act,  1872, 

(m)  AUor  Y.  French,  2  Show.  28  ;  Graham,  4  Times,  L.  R.  212;  Ex 

l%e  King  ▼.  Warde,  Gro.  Oar.  266  ;  parte  Lewis,  L.  R.  21  Q.  B.  D.  191 ; 

D«fr«  y.  Hawkins,  8  0.  B.  N.  S.  67  L.  J.  M.  108. 

848;  29  L.  J.  0.  P.  343.    As  to  (x)  Homer  v.  Cadman,  66  L.  J. 

deviation  from  a  priyate  way,  see  M.  110;  Baek  ▼.  Holmes,  67  L.  J. 

anU,  p.  209.  M.  37. 

(«)  See  ante,  p.  491 ;  post,  p.  642. 

{w)  See  Charles,  J.,  The  Queen  t. 


(y)  J>e  Morgan  v.  Meirop,  Board. 
L.B.6Q.  B.D.  166 ;  49  L.  J.M.61. 


496 


USES  AND  PROFITS  IN  LAND  OF  ANOTHER. 


Excessive  and 
extraoidizuuy 
traffic. 


35  &  36  Vict.  c.  15,  which  applies  to  royal  parks  under 
the  management  of  the  commissioners  of  public  works,  the 
delivering  of  a  public  address,  except  in  accordance  with 
the  rules  provided  by  the  Act,  is  made  a  penal  offence  (y). 

No  complaint  can  be  made  of  nuisance  caused  merely 
by  the  extension  or  enlargement  of  lawful  traffic ;  as  by 
an  incessant  driving  of  great  numbers  of  cattle  in  the 
usual  manner  (z) ;  or  by  an  increased  canying  of  stone 
from  quarries  in  the  ordinary  carts  and  loads  (a).  But 
carrying  an  excessive  and  unusual  weight  upon  a  highway 
is  a  nuisance  indictable  at  common  law  {b).  By  the  High- 
way  Act  of  1878,  41  &  42  Vict.  c.  77,  s.  23,  special  provi- 
sion is  made  for  the  recovery  of  extraordinary  expenses 
incurred  by  highway  authorities  in  repairing  the  highway 
by  reason  of  damages  caused  by  excessive  weights  or  extra- 
ordinary traffic,  from  any  person  by  whose  order  such 
Locomotives,  weight  or  traffic  has  been  conducted  (c). — The  use  of  the 
highway  for  the  modem  traffic  of  locomotive  engines  iis 
regulated  by  the  Locomotive  Acts,  1861,  24  &  25  Vict, 
c.  70 ;  1865,  28  &  29  Vict.  c.  83 ;  and  the  Highways  and 
Locomotives  Act,  1878,  41  &  42  Vict.  c.  77  (rf).— The  use 
of  highways  for  the  construction  and  working  of  tramways 
is  regulated  by  the  Tramways  Act,  1870,  33  &  34  Vict, 
c.  78.  A  tramway  laid  upon  the  highway  without  statu- 
tory authority  is  indictable  as  a  nuisance,  though  attended 
with  convenience  to  those  of  the  public  who  use  it;  for 
part  of  the  public  are  not  excused  in  using  the  highway 
for  their  own  convenience  in  a  manner  which  obstructs  it 
to  the  rest  of  the  public  {e). 

Statutory  power  has  been  given  to  telegraph  companies 


Tramways. 


Telegraph 
posts. 


(y)  Bailey  v.  Wiliianuon,  L.  R.  8 
Q.  B.  D.  118;  42L.  J.  M.49. 

(z)  See  Truman  y.  London  and 
Brighton  Ry, J  L.  R.  11  Ap.  Ga.  45  ; 
66  L.  J.  C.  354. 

(a)  Wallington  t.  Hoakinsy  L.  R. 
6  Q.  B.  D.  206 ;  60  L.  J.  M.  19. 

{b)  3  Salk.  183,  EgerlyU  Comc. 
'    \e)   Wallington  v.  Hoakins,  supra ; 
jLveland  v.  Lucas,  L.  R.  6  0.  P. 


D.  211 ;  49  L.  J.  O.  P.  643;  TM 
Board  y.  Gunning,  51  L.  J.  M.  49. 

(d)  See  The  Queen  y.  KiteKener, 
L.  R.  2  C.  0.  R.  88  ;  43  L.  J.  M. 
9  ;  ParkynsY.  Preist,  L.  R.  7  Q.  B. 
D.  313  ;  60  L.  J.  H.  C.  148. 

(e)  The  Queen  y.  Train,  2  B.  ^b  S. 
640;  31  L.  J.  M.  169;  aee  Brad- 
bum  y.  Morrit,  L.  R.  3  0.  D.  819. 


CHAP.  IV.   HIGHWAYS.  •      497 

to  place  and  maintain  telegraph  posts  upon  any  publio 
road  with  the  consent  of  the  road  authority  (/). — Tele- 
graph posts  placed  upon  a  highway  without  statutory 
authority,  though  not  placed  upon  the  made  road  or  foot- 
path and  though  leaving  sufficient  space  for  public  traffic, 
were  held  to  be  an  indictable  nuisance ;  for  the  publio  are 
entitled  to  the  whole  space  of  the  highway  and  to  every 
part  of  it  {g).  But  telegraph  wires  carried  in  the  space 
above  the  houses  are  not  an  infringement  of  highway 
rights ;  which  extend  only  to  so  much  of  the  surface  and 
space  above  as  is  necessary  for  the  public  traffic  (A). 

"  Where  there  is  a  public  highway,  the  owners  of  land  Special  use 
that  comes  up  to  it  have  a  right  to  go  on  it,  for  the  pur-  owner, 
pose  of  using  it,  at  any  spot  from  their  own  land ;  he  who 
has  dedicated  the  land  to  all  the  public  has  no  right  to 
complain  that  those  particular  persons  have  come  on  it  at 
that  spot  more  than  any  other"  («).  The  owner  of  land  Aooees. 
adjoining  a  highway  may  maintain  an  action  for  obstruct- 
ing the  access  to  and  from  the  highway,  and  may  claim 
damages  or  an  injunction ;  and  in  the  case  of  a  publio 
company  acting  with  statutory  powers  he  may  claim  com- 
pensation for  his  land  being  injuriously  affected  by  the 
obstruction  of  access  (/).  A  publio  way  differs  in  this 
respect  from  a  private  way,  which  can  be  used  only  for  the 
service  of  the  dominant  tenement,  and  between  the  pre- 
scribed termini  (A). — The  owner  of  land  adjoining  a  high- 
way, being  therefore  presumptively  owner  also  of  the  soil 
of  the  highway  subject  to  the  rights  of  the  public,  was 
held  entitled  to  cross  the  footpath  of  the  highway  from 

(/)  Telegraph  Acts,  1863  (26  &  (i)    Blackburn,    J.,  MarshaU  v. 

27  Vict.  0.   112)  ;    1868  (31  &  32  Ulleswater  Kav,,   L.   R.    7  Q.   B. 

Vict.  c.  110).  166;  41  L.  J.  Q.  B.  46;  Caime, 

is)  Queen  v.  Untied  Kingdom  Te-  L.  0.,  Lyon    v.  Fi»hmonger$*    Co., 

legraph  Co.,  2  B.  &  8.  647;  31  L.  L,  R.  1  Ap.  Ca.  676;  46  L.  J.  C. 

J.  M.  166.  68. 

(h)   Wandsicorth  v.   United  Tele-  {J)  Caledonian  Ry,    v.    Walker' i 

arapk  Co.,  L.  R.  13  Q.  B.  D.  904  ;  Trustees,  L.  R.  7  Ap.  Ca.  259. 

63  L.  J.  Q.  B.  449.  (k)  Ante,  p.  208. 

L.  K  K 


498  USES  AND  PROFITS  IN  LAND  OP  ANOTHER. 

the  oarriage  way  into  his  premises  with  carriages  for  the 
conveyance  of  persons  and  goods,  although  he  unavoidahly 
damaged  the  pavement  in  so  doing ;  for  that  "  the  appro- 
priation, made  to  and  adopted  by  the  public,  of  a  part  of 
the  street  to  one  kind  of  passage  and  another  part  to 
another,  does  not  deprive  him  of  any  rights,  as  owner  of 
the  land,  which  are  not  inconsistent  with  the  right  of 
passage  by  the  public"  ;  and  that  "the  provisions  of  the 
Highway  Acts  are  subordinate  to  the  paramount  rights 
reserved  by  the  owner"  (/).     Where  a  highway  together 
with  the  adjacent  houses  had  sunk  in  consequence  of  the 
working  of  mines  below  the  surface,  it  was  held  that  the 
highway  authority,  in  exercise  of  the  ordinary  duty  of 
repairing  the  road,  was  justified  in  raising  it  to  the  original 
level,  though  the  access  to  and  from  the  sunken  houses 
was  thereby  obstructed  (m). — ^But  a    highway  may  be 
originally  dedicated  to  the  public  with  reservation  of  a 
fence  against  adjoining  land;  so  that  the  owner  of  the 
adjoining  land  would  have  no  right  to  break  through 
and  make  a  thoroughfare  to  such  highway  (n).     So,  land 
may  be  sold  with  reservation  to  the  vendor  of  a  wall  or 
fence  between  the  land  sold  and  a  highway;  the  purchaser 
of  the  land  could  not  then  trespass  upon  the  wall  to  reach 
the  highway ;  it  is  immaterial  how  narrow  the  strip  is  by 
which  he  is  separated,  if  his  land  does  not  "  front,  adjoin, 
or  abut"  upon  the  highway,  he  has  none  of  the  rights  or 
liabilities  of  a  frontager  (o). 
Ua©  of  high-        The  owner  of  a  tenement  adjoining  a  highway  is  also 
serWoe  of         entitled  to  make  a  reasonable  use  of  the  highway  for  the 
prem^^        special  service  of  his  tenement ;  as  for  receiving  ooalfi  into 
a  cellar  through  a  coal-hole  in  the  pavement ;   for  loading 
and  unloading  goods  from  carriages,  and  for  other  like 

(5  St,  Mary,  Newington  y.  Jaeobt,  («)   Woodyer  v.  Sadden,  5  Taunt. 

L.  K.  7  Q.  B.  47 ;  41  L.  J.  M.  72.  126. 

See  SeUor9  y.  Matlock  Board,  L.  B.  (o)  Brewer  y.  Brown,  L.  R.  28 

14  Q.  B.  D.  936.  C.  D.  309;  64  L.  J.  G.  606 ;  Liffkt- 

(m)  Burgess   y.  Northwick  Local  hound  y.  Bebinyton,  L.  R.  14  Q.  B. 

Board,  L.  R.  6  Q.  B.  D.  264  ;  60  D.  849 ;  64  L.  J.  M.  0.  130. 
L.  J.  0.  P.  219. 


CHAP.  IV.   HIGHWAYS.  499 

temporary  obstructions ;  but  subject  to  legal  responsibility 
for  an  excess  or  abuse  in  the  exercise  of  such  right  (/?). 
Accordingly,  for  the  tenant  of  premises  on  the  highway  to 
keep  horses  and  carts  standing  an  unreasonable  time  upon 
the  highway  for  the  convenience  of  his  private  business  is 
an  indictable  nuisance;  and  if  it  causes  damage  to  a 
neighbour,  it  is  matter  for  an  action  or  for  injimction  (q) ; 
but  it  is  not  such  a  permanent  nuisance  as  entitles  a  rever- 
sioner of  the  adjacent  land  to  sue  (r). — "  So  as  to  repairing 
a  house,  the  public  must  submit  to  the  inconvenience 
occasioned  necessarily  in  repairing  the  house  ;  but  if  this 
inconvenience  is  prolonged  for  an  unreasonable  time,  the 
party  may  be  indicted  for  a  nuisance "  (a).  And  if  a  person 
places  building  materials  upon  the  highway  and  thereby 
obstructs  the  access  to  another  person's  house,  and  causes 
loss  and  inconvenience,  he  may  be  charged  in  an  action 
for  special  damages  {t).  A  custom  of  the  City  of 
London  for  any  person,  having  occasion  to  erect  or  pull 
down  any  building,  to  erect  a  hoarding  to  enclose  part  of 
the  highway,  with  the  licence  of  the  Lord  Mayor,  was 
held  a  reasonable  and  valid  custom  (m). — The  occupier  of 
premises  adjoining  a  highway  is  not  entitled  to  use  the 
sides  of  the  highway  for  cutting  wood  (t?),  and  a  claim  by 
custom  for  the  inhabitants  of  a  town  to  stack  wood  upon 
the  sides  of  the  highway  for  the  use  of  their  houses  was 
held  unreasonable  and  bad  (w).  The  keeping  of  agricul- 
tural implements  or  other  goods  upon  the  sides  of  the  high- 
way until  wanted  for  use  is  illegal  (x) ;  so,  the  keeping  of 
public  vehicles  standing  upon  the  highway  waiting  for 

i}p)  Ter  cur.  The  Queen  v.  Longton  404  ;  Fritz  v.  Hobson^  L.  R.  14  0. 

Gat  Co.,  29  L.  J.  M.  118.  B.  542 ;  49  L.  J.  C.  321. 

(q)  The  King  y.  Rus»elly  6  East,  (u)  Bradbee  y.  Christ's  Hospital, 

427 ;  Benjamin  y.  Storr,  L.  B.  9  G.  4  M.  &  G.  714. 

P.  400  ;  43  L.  J.  G.  P.  162.  (i;)  The  King  v.  Jones,  3  Gamp. 

(r)  Mott  Y.  Shoolbred,  L.  R.  20  230. 

Eq.  22  ;  44  L.  J.  G.  380.  {w)  Fowler  y.  Sanders,  Gro.  Jao. 

(«)  EllenboroQgh,  G.J.,  TheKing  446. 

▼.  Jones,  3  Gamp.  231.  (x)  Wilkins  y.   J)ay,   L.   R.  12 

{t)  Bush  y.  Steinman,  1  B.  &  P.  Q.  B.  D.  110. 

KK2 


500 


USES  AND  PROFITS  IN  LAND  OF  ANOTHER. 


Use  of  public 
river  by  ripa- 
rian owner. 


passengers  an  unreasonable  time  (y) ;  and  the  keeping  bj 
an  innkeeper  of  the  carriages  of  his  gnests  upon  the 
highway  (2). — ^The  occupier  of  a  house  cannot  enter  upon 
and  open  the  soil  of  the  adjoining  highway  for  the  purpose 
of  laying  down  service  pipes  for  gas  or  water,  without 
statutory  authority,  even  with  consent  of  the  owner  of  the 
soil  (a)  ;  nor  can  he  open  the  soil  to  make  an  entrance  to 
cellars  under  the  highway ;  where  such  openings  exist 
they  are  presumedly  made  before  the  dedication  of  the 
highway,  or  under  a  local  custom  (b). 

Upon  the  same  principle  a  riparian  owner  upon  a  public 
navigable  river,  being  a  highway,  has  a  special  and  ex- 
clusive right  of  access  to  and  from  his  land,  besides  his 
right  of  navigation  in  common  with  the  rest  of  the 
public  (c)  ;  and  this  right  is  protected  by  an  action  for 
damages,  or  for  an  injunction,  or  by  a  claim  for  compen- 
sation (d).  He  has  also  the  right  of  mooring  vessels  oppo- 
site his  premises  for  the  loading  and  imloading  of  goods, 
subject  to  the  public  rights  of  navigation  and  the  like 
rights  of  his  neighbours ;  and  for  this  purpose  he  is  not 
restricted  to  the  space  opposite  his  own  premises,  but  may 
moor  a  vessel,  being  of  an  ordinary  size  and  kind,  which 
extends  in  length  beyond  his  own  premises  {e).  So,  a  dock 
owner  is  entitled  to  access. for  vessels  from  a  public  river 
through  his  dock  gates  at  all  reasonable  timed ;  but  he  has 
no  right  to  place  a  permanent  obstruction  opposite  his 
dock  gates  for  the  purpose  of  preventing  other  vessels 
mooring  there  (/), 


(y)  The  King  y.  Crostf  3  Gamp. 
224. 

(z)  Gerring  ▼.  BarJUld,  16  C.  B. 
N.  S.  697. 

(a)  The  Queen  y.  Longion  Got  Co., 
29  L.  J.  M.  118 ;  Goodson  y.  JOch- 
ardeon,  L.  R.  9  Gh.  221 ;  43  L.  J. 
G.  790;  ante,  p.  491. 

{b)  Per  eur.  The  Queen  y.  Longton 
Gas  Co.f  supra, 

(e)  Bosey.  Groves,  6  H.  &  G.  613  ; 
Att.'Gen,  y.  Thames  Conserv.,  1  H. 
&M.  1;  Marshall  Y,  Ullestcater  Nav., 


L.R.7Q.B.166;  41L.  J.Q.  B.41; 
JBell  y.  Quebec,  L.  B.  5  Ap.  Ga.  84 ; 
see  Ait,' Gen.  Straits  Settlement  y. 
Wetngss,  L.  R.  13  Ap.  Ga.  192  ;  57 
L.  J.  P.  G.  62 ;  and  see  ante,  p. 
156. 

{d)  Zgon  V.  Fishmongers^  Co.,  L. 
R.  1  Ap.  Ga.  662  ;  46  L.  J.  G.  68. 

(e)  Original  Hartlepool  Coll.  y. 
Gibb,  L.  R.  6  G.  D.  713 ;  46  L.  J. 
G.  311. 

(/)  Original  Hartlepool  ColL  y. 
Gxbb,  sfipra. 


CHAP.  IV.   HIGHWAYS.  601 


There  is  no  obligation  upon  the  owner  of  adjoining  land  Fencing  land 

■*  *  tiling 
way. 


to  fence  against  the  highway ;  he  presumptively  does  so  }^iS^^^ 
only  for  his  own  protection  and  convenience.  If  cattle 
heing  driven  along  the  highway  lawfully  and  in  a  proper 
manner  stray  on  to  the  adjoining  land  through  defects  in 
a  fence  without  any  negligence  of  the  driver,  and  eat  the 
grass  or  crops  there  growing,  the  owner  of  the  cattle  is 
excused  the  trespass ;  but  he  is  bound  to  remove  the  cattle 
as  soon  as  it  is  reasonaUy  possible  to  do  so  imder  the  cir- 
cumstances (g).  If  cattle  being  on  the  highway  without 
lawful  excuse,  that  is,  for  any  other  purpose  than  a  lawful 
use  of  the  highway  for  passage  to  and  fro,  stray  on  to  the 
adjoining  land,  .though  through  a  defect  of  the  fence,  the 
trespass  is  not  excused.  "  The  question  whether  the  owner 
of  the  cattle  is  a  trespasser  or  not,  by  his  cattle,  depends 
upon  the  fact  whether  he  was  passing  and  repassing  and 
using  the  road  as  a  highway,  or  whether  his  cattle  were  in 
the  road  as  trespassers"  (A).  The  same  rule  applies 
whether  the  highway  is  through  open  unf  enced  fields  or 
through  the  streets  of  a  town ;  so  where  an  ox  being 
driven  in  a  usual  and  proper  manner  through  a  town, 
strayed  into  an  open  shop,  and  there  did  damage  to  the 
goods,  it  was  held  that,  no  negligence  being  proved  against 
the  driver,  the  owner  of  the  ox  was  not  liable  for  the  tres- 
pass and  damage  done  (i). — A  person  suffering  his  cattle 
to  stray  off  his  own  land  on  to  the  highway  through  defect 
of  his  fence  or  otherwise,  is  liable  to  compensate  for  all 
damage  caused  by  his  cattle  being  unlawfully  upon  the 
highway;  nor  can  he  recover  for  any  injury  they  mfiy 
meet  with  as  trespassers.  But  railway  companies  are 
boTmd  by  statute  to  fence  their  lines  against  cattle  of  the 
adjoining  owners,  and  therefore  cattle  straying  upon  the 

(y)  Dovaston  v.  Payne,  2  H.  Bl.  (A)  Lovaston  v.  Payne^  supra. 

627 ;  2  Smith,  L.  0. ;  Ooodwyn  v.  (»)  Tillett  v.  fFardy  L.  R.  10  Q. 

ChevOey,  4  H.  &  N.  631 ;  28  L.  J.  B.  D.  17  ;  62  L.  J.  Q.  B.  61. 
Ex.  298. 


502 


USES  ANP  PBOFITS  IN  LAND  OF  ANOTHER. 


nuiaanoo 

adjoiiixDg 

highwaj-. 


line  througli  defect  of  fences  are  not  considered  to  be 
"wrongfully  upon  the  line  as  against  the  company  and  tlieir 
servants  {j).  And  in  the  case  of  lerel  crossings  of  rail- 
ways, the  statutory  obligation  to  keep  the  gates  closed  is 
absolute  against  aU  persons  or  cattle,  whether  lawfully 
using  the  highway  or  not ;  and  the  owner  of  the  cattle 
straying  upon  the  line  from  the  highway  through  open  or 
defective  gates  may  recover  for  their  loss  {k). 

The  owner  of  land  adjoining  a  highway  who  makes  an 
excavation,  or  causes  any  other  kind  of  danger,  so  near  to 
the  highway  as  to  constitute  a  public  nuisance,  is  bound  to 
fence  it  against  persons  using  the  highway,  at  the  risk 
of  liability  for  all  damage  occasioned  by  the  nuisance ;  and 
he  who  continues  such  danger  is  as  responsible  as  he  who 
originally  caused  it.  Except  under  such  special  circum- 
stances,  an  owner  of  land  is  imder  no  obligation  to  fence 
excavations  or  dangers  upon  his  own  land  as  against 
strangers ;  though  he  may  become  liable  for  negligence  in 
respect  of  the  state  of  his  premises  towards  persons  coming 
there  by  leave,  or  on  business  (/). 


{/)  Child  V.  Hearrif  L.  R.  9  Ex. 
176  ;  43  L.  J.  Ex.  100;  Sharrody. 
London^  N.  W,  Ry.,  4  Ex.  680; 
20  L.  J.  Ex.  185  ;  anie^  p.  260. 

{k)  Fawcett  y.  York  ^  Midland 
By.,  16  Q.  B.  610 ;  20  L.  J.  Q.  B. 
222  ;  see  Charman  ▼.  South  Fastem 
Sy.,  W.  N.,  1888,  p.  182;  ante, 
p.  262. 


{I)  Coupland   v.    Sardinghiun^   3 
Gamp.  398 ;  Barnes  y.  Ward^  9  C. 

B.  892 ;  Hadley  v.  Taylor,  L.  R.  1 

C.  P.  53 ;  Hountell  t.  Smyth,  7  C. 

B.  N.  S.  731 ;  see  Corley  y.  HiU,  4 
G.  B.  N.  S.  556 ;  Indermam-  r. 
Damn,  L.  R.  2  G.  P.  311 ;  36  L.  J. 

C.  P.  181;  WhiU  v.  France,  L.  R. 
2  0.  P.  D.  308  ;  46  L.  J.  C.  P.  823. 


CHAP.  IV.   HIGHWAYS.  603 


§  2.  Origin  and  Extinction  of  Highways. 

Origin  of  highways — ^highways  by  statnte. 

Dedioation  of  highway — dedication  by  act  of  owner — dedication  pre- 

snmed  from  public  use — presumption  rebutted. 
D^cation  by  owner  in  fee — by  reversioner — presumption  of  title  to 

dedicate — dedication  by  corporate  body. 
Acceptance  of  dedication  by  public — adoption  by  parish. 
Dedication  for  limited  time— to  limited  public — for  limited  use. 
Dedication  subject  to  obstructions — gates — ^ploughing — markets  and 

fain — ^public  way  subject  to  private  way. 
Highway  subject  to  tolls — toll  thorough — toll  traverse — ^toll  of  ferry 

and  other  tolls— prescription  for  toll  on  highway — exemptions 

from  toll — distress  for  toll— rating  of  toll. 
Extinction  of  highway — stopping  and  diverting  highways  at  common 

law — by  statutes^destruotion  of  way. 

Highways  may  be  referred  to  two  origins :  the  legisla-.  Origin  of 
tive  authority  of  an  Act  of  Parliament ;  and  dedication  by  ^'gl^^ays. 
the  owner  of  the  land.     A  highway  may  be  established  by 
immemorial  prescription  at  common  law ;  but  by  reason  of 
the  doctrine,  noticed  hereafter,  that  public  use  is  evidence 
of  dedication,  "  it  is  never  practically  necessary  to  rely  on  " 
prescription  "  (a). — ^In  pleading  a  public  highway  it  is 
sufficient  to  allege  that  it  is  a  public  highway,  without 
stating  the  origin,  whether  statutory  or  prescriptive,  and 
without  stating  any  termini  or  limits  (b). 

Turnpike  Acts  and  railway  Acts  are  familiar  instances  Highways  by 
of  statutes  creating  public  ways.     Powers  of  setting  out  8***^^*®' 
highways  are  also  given  in  inclosure  Acts,  in  order  to  adapt 
the  public  ways  to  the  altered  conditions  of  the  indo- 
sures  (c). — ^It  is  not  necessary  that  a  statute  in  creating  a 

(a)  L.  Blackburn,  ifannv.^roefttf,      As  to  pleading  private  ways,  see 
L.  B.  10  Ap.  Ga.  386;  Brett,  J.,       ante,  p.  208. 

Cubiit  V.  Maxse,  L.  B.  8  G.  P.  714;  {e)  Inclosure  Glauses  Gonsolida- 

42  L.  J.  G.  P.  278.  tion  Act  (41  Geo.  III.,  c.  109),  s.  8 ; 

(b)  Atpindall  v.  Brown,  3  T.  B.  General  inclosure  Act,  1845  (8  &  9 
265;  \)Mi  w&&8peddxng^.  Ittzpalrick,  Vict.  c.  118),  s.  34. 

Ij.  B.  88  G.  D.  410,  potty  p.  505. 


504 


USES  AXD  PROFITS  IN  LAND  OF  ANOTHER. 


highway  should  in  express  terms  declare  the  way  to  be  a 
public  highway ;  it  is  sujHBcient  if  it  gives  a  public  right 
to  use  the  way  for  the  purpose  of  passage;  the  right 
of  public  use  makes  it  a  highway,  and  all  the  legal 
incidents  of  a  highway  follow  (of ).  And  the  intrinsic 
force  of  the  statute  is  sufficient  alone  to  make  a  publio 
highway  according  to  its  terms,  without  any  condition  of 
acceptance  by  the  public ;  which  is  necessary  to  establish  a 
highway  by  dedication  (^). — ^The  provisions  of  a  statute 
creating  a  public  highway  must  be  strictly  followed ;  and 
upon  this  principle  it  was  held  that  if  an  Act  be  passed 
for  making  a  public  road  between  two  places,  the  making 
of  the  entire  road  is  presumptively  a  condition  prece- 
dent to  any  part  becoming  a  highway,  at  least  for  the  pur- 
pose of  charging  the  parish  with  repair ;  but  the  Act  may 
give  a  discretion  as  to  completing  the  road,  and  as  to  opening 
it  to  the  public  so  far  as  it  is  made  (/).  The  Inclosure 
CJlauses  Consolidation  Act,  41  Geo.  III.  c.  109,  ss.  8,  9, 
which  provide  for  the  setting  out  of  roads  and  the  putting 
of  them  in  complete  repair,  is  construed  as  making  com- 
plete repair  a  condition  precedent  of  a  road  becoming 
public ;  and  it  is  held  that  merely  setting  out  a  road  under 
the  Act  is  not  sufficient  to  make  it  a  highway  (g). 


Dedication  of 
highway. 


By  act  of 
owner. 


A  highway  may  also  be  created  by  dedication  of  the 
way  to  the  public  use,  and  acceptance  of  the  way  by  the 
public.  The  dedication  may  be  proved  by  some  act  of  the 
owner  of  the  land,  or  by  public  use  from  which  such  act 
can  be  presumed.  No  formality  or  conveyance  is  required 
by  law  for  the  dedication  by  the  owner  of  the  land ;  it  is 
sufficient  that  it  is  evidenced  by  some  imequivocal  act,  or 


{d)  Campbell,  C.  J.,  The  Quern  y. 
Zordsmerey  15  Q.  B.  696. 

{e)  The  King  v.  Zyon,  6  D.  &  R. 
497 ;  see  Cubitt  v.  Maxse,  L.  R.  8 
C.  P.  704 ;  42  L.  J.  C.  P.  278, 
po9t,  p.  608. 


(/)  The  King  v.  Cumberwortk^  3 
B.  &  Ad.  108;  The  King  v.  Edge 
Lane,  4  A-  &  E.  723  ;  The  Queen  v. 
French,  L.  R.  4  Q.  B.  D.  607 ;  48 
L.  J.  M.  175. 

{g)  C\«W«  V.  J/iM?w,  L.  R,  8  C.  P. 
704  ;  42  L.  J.  0.  P.  278. 


CHAP.  IV.    HIGHWAYS.  605 

agreement,  or  declaration  of  intention.  But  if  a  party  to 
an  action  in  which  a  highway  is  in  question  relies  on  any 
specific  acts  of  dedication  or  specific  declarations  of  inten- 
tion to  dedicate,  whether  alone  or  jointly  with  evidence  of 
puhlic  use,  he  may  be  required  to  give  particulars  of  the 
nature  and  dates  of  the  said  acts  or  declarations,  and  the 
name&  of  the  persons  by  whom  the  same  were  done  or 
made  (h). — "If  the  owner  of  the  soil  throws  open  a  passage, 
and  neither  marks  by  any  visible  distinction  that  he  means 
to  preserve  all  his  rights  over  it,  nor  excludes  persons  from 
passing  through  it  by  positive  prohibition,  he  shall  be  pre- 
sumed to  have  dedicated  it  to  the  public  "  (i).  Sa  if  the 
f)wner  of  the  soil  closes  an  ancient  way  and  opens  a  new 
one,  it  is  presumptively  a  dedication  of  the  new  way; 
though  the  public  by  using  it  are  not  precluded  from 
claiming  the  original  way,  unless  it  has  been  legally 
stopped  (y ).  An  agreement  by  the  owner  of  the  land  to 
dedicate  a  public  way  may  operate  eventually  as  a  dedica- 
tion, if  it  be  duly  completed,  and  the  way  be  adopted  and 
accepted  by  the  public;  but  the  agreement  may. fail  of 
execution  from  various  causes  before  the  dedication  is  com- 
plete {k). — "  If  there  be  an  unequivocal  act  of  dedication^ 
it  may  take  place  immediately.  For  instance  if  a  man 
builds  a  double  row  of  houses  opening  into  an  ancient 
street  at  each  end,  making  a  street,  and  sells  or  lets  the 
houses,  that  is  instantly  a  highway  "  (/). 

The  fact  of  the  public  use  of  a  way  is  presumptive  Dedieatioxi 
evidence  of  a  dedication  to  the  public  by  the  owner  of  the  fa^W)iio 
soil ;  and  it  lies  on  the  party  disputing  the  dedication  to  ^»««' 
show  a  superior  title,  or  to  explain  the  public  use  in  a 
maimer  to  rebut  the  presumptive  effect  (w).     The  public 

(A)  Spedding  y.  lii^HUriek,  L.  R.  302 ;  Barraelough  y .  Johruon,  8  A.  & 

88  CI.  D.  410.  E.  99  ;  Eealey  y.  Battey,  L.  R.  19 

(i)  L.  Ellenborough,  C.  J.,  The  Eq.  375;  44  L.  J.  C.  642;  see  Alt,- 

Kingy.  Lloyd,  1  Camp.  262.  Oen,  y.  Biphosphate  Co.,  L.  R.  11 

(j)  ^eeJDawesY.Uawkint^^CB.  C.  D.  341  ;  49  L.  J.  C.  68. 

N.   S.  848  ;  29  L.  J.  0.  P.  343 ;  (/)    Chambre,     J.,     Woodyer   y. 

Allnutt  y.  rott,  1  B.  &  Ad.  302.  Hodden,  5  Taunt.  137. 

(k)  Allnutt  y.  Fott,  1  B.  &  Ad.  (m)  Jarvis  y.  Dean,  3  Bing.  447 ; 


o.    m , 


:o:c  =i:at  be  certain 


**,j^— 


V:  W  V.  Ill*:  Tta»«  Kli*    ^ZTCC 


«  . 


Ths  duiaUoii  of 
epiaids  upuu  tiie 
^ip  d^efiidte  space  of  dme 
t^.z^  zr^^'.TL'.^rfi  IT  1a^:  \r:i  iz.  aZ  «:i:-?i  cases  the  time  is 
a  icATtrriil  i2T«^il-^!i:t  ii  *Si  rf  tie  iv^escmed  dedkadon  io). 
A  W4 T  rri^jh,Zj  Sff^  'jnz  as  a  private  var.  to  be  used  and 
r*:TA£r^  Tjj  c^T*-Ahi  r<«^T50T3  o^ J.  icaj  become  a  bigbwajr 
hr  \rj:'2/:  '^*er  «r:n::ir^tlT  established,  notiritfastandiiig  the 
diitLinltr  of  rt'i^i^r  yii^^.TT  g  the  paolic  uae  and  preveudng 

it    ;>  . 

The  j^resomption  mar  be  rebutted  hv  showing  that  the 
way  was  used  br  the  public  not  as  of  right,  but  hy 
parti'^Iar  lioena?  or  Rificranc-e  of  the  owner,  or  as  a  mere 
ory;ai^ional  tre^rq^ass  from  a  public  waj  for  sake  of  con- 
TeDience  'qj ;  or  by  showing  that  it  was  referable  to  some 
expresft  agreement  operating  only  as  a  temporary  or  oon- 
ditional  license  which  was  revocable  under  the  cxrcam- 
stanccs,  or  which  expired  according  to  its  terms  (r).  The 
presumption  cannot  be  rebutted  by  a  mere  Yerbal  declara- 
tion of  the  intention  of  the  owner  to  the  contrary,  without 
any  actual  interruption  or  obstruction  of  the  public  use ; 
but  the  public  use  of  a  way  being  only  presumptiTe 
evidence  of  the  dedication,  a  single  act  of  interruption  by 
the  owner  is  of  more  weight  than  many  acts  of  enjoyment 
by  the  public  («).    Accordingly  the  erection  of  a  gate  or 


Th4  Queen  v.  Petrie,  4  £.  &  B.  737 ; 
24  L.  J.  Q.  B.  165. 

(n)  Per  eur.  AU.'Oen.  v.  Siphot' 

fhate  Co.,  L.  R.  11  C.  D.  841  ;  49 
t,  J.  0.  73 ;   Maddook  v.  WalUuey 
JJoard,  6ft  L.  J.  Q.  B.  267. 

(o)  (ilbba,  J.,  JFoodyer  v.  Had" 
dfHf  5  Taunt.  186;  Rugby  Charity 
7\'ua(ee9  T.  MerryweatheTf  11  East, 
370  n. ;  L.  Blaokbunii  Mann  t. 
Jlroflie,  L.  R.  10  Ap.  Ca.  886.  Ao- 
conlitiff  to  Hcotoh  law  there  is  a 
UxoA  iwriod  of  forty  years  required 


to  establish  a  public  way  by  pre- 
scription ;  and  such  way  may  be 
lost  by  a  period  of  forty  years  €k- 
dnsion  of  the  public;  Mann  y. 
Brodie^  supra. 

(p)  The  Qu^en  v.  BradJlOd,  L.  B. 
9  Ct.  B.  662 ;  43  L.  J.  M.  155. 

(q)  MaddoekY.  JFalkuey  Board,  55 
L.  J.  Q.  B.  267. 

(r)  BarraeUmgh  v.  Johnumy  8  A. 
&  £.  99  ;  The  King  y.  JIudeon,  2 
Strange,  909,  ante,  p.  506. 

{*)  littledale,  J.,  BarraeUmgh  ▼. 


CHAP.  IV.   HIGHWAYS.  507 

oT)stacle  across  the  way,  though  soon  after  knocked  down, 
was  held  sufficient  to  rebut  the  intention  of  dedication  {t). 

Dedication  of  a  public  way  can  only  be  made  by  an  Dedication  by 
absolute  owner  in  fee  simple.  "  Nothing  done  by  a  lessee,  owner  m  ee , 
without  the  consent  of  the  owner  of  the  fee,  would  give  the 
right  of  way  to  the  public."  Accordingly,  where  the  land 
had  been  held  under  a  lease  for  ninety-nine  years,  during 
which  the  public  had  used  a  way,  emd  at  the  expiration  of 
the  lease  the  reversioner  entered  and  erected  a  fence ;  it 
was  held  that,  there  being  no  evidence  of  a  dedication 
before  the  lease,  or  of  the  consent  of  the  reversioner  during 
the  lease,  the  public  had  acquired  no  right,  and  he  was 
entitled  to  stop  the  way(w).  For  the  use  of  the  way 
during  the  lease,  being  presumptively  no  injury  to  the 
reversion,  and  therefore  not  actionable  at  the  suit  of  the 
reversioner,  was  no  evidence  of  right  against  him  (r).— A  by  pever- 
consent  and  dedication  by  the  reversioner  may,  however,  "^oner. 
be  presumed  from  the  particular  circumstances  of  the  case, 
and  it  is  said  that  ''after  a  long  lapse  of  time  and  a 
frequent  change  of  tenants,  from  the  notorious  and 
uninterrupted  use  of  a  way  by  the  public,  it  should  be 
presumed  that  the  landlord  had  notice  of  the  way  being 
used,  and  that  it  was  so  used  with  his  concurrence"; 
and  notice  to  the  steward  or  agent  of  the  property  is  for 
such  purpose  notice  to  the  landlord  (w).  In  the  case  of 
copyhold  land  the  public  use  of  a  way  is  presumptive 
evidence  of  dedication  against  the  lord  of  the  manor, 
without  proof  of  his  ever  having  been  in  possession  of  the 
tenement  (x). 

Public  use  presumes  a  dedication  by  an  owner  having  Preeumption 
title  to  make  it,  sjid  primd  facie  dispenses  with  any  inquiry  ^^^^ 

Johmon,  S  A.  &  E.  106  ;  Parke,  B.,  (i^)  BaxUr  t.  Tayhr,  4  B.  &  Ad. 

I^U  y .  Sutkiuon,  1 1  M.  &  W.  830.  72. 

(t)  MoberU  v.  Karrj  1  Camp.  282,  (w)  Ellenborougb,  C.  J.,  The  King 

n.  iff) ;  Healey  v.  Bdtley,  L.  R.  19  v.  Barr^  4  Camp.    16 ;    Jarvit  ▼. 

£q.  388 ;  44  L.  J.  C.  642.  Dean,  8  Bing.  447. 

iu)  Wood  V.   Veal,  5  B.  &  Aid.  {x)  Bowere  y.  Bathuret,  49  L.  J. 

464.  C.  294. 


508  USES  A3ID  PBOFIT8  Uf  LAND  OF  ANOTHER. 

into  the  title  or  act  of  dedication;  bat  the  presomption 
may  be  lebntted  by  showing  that  no  sach  owner  in  fact 
existed  as  coold^  or  did  make  the  presumed  dedication. 
And  as  the  dedication  mnst  hare  been  coeval  with  the 
public  use,  it  is  su£Bcient  that  a  title  could  then  have  existed 
to  support  the  dedication,  and  such  a  title  will  then  be 
presumed,  although  it  may  appear  that  subsequent  owners 
had  no  such  power,  or  did  not  acquiesce  in  the  dedica- 
tion (j/).  If  bj  reason  of  the  uncertainty  as  to  any  other 
ownership  the  title  may  be  presumedly  Tested  in  the  Crown, 
the  public  use  may  establish  a  dedication  against  the 
T>e3ieAtiaik  by  Crown  (s). — ^A  corporate  body  or  public  company  holding 
bodj.  land  ^or  the  purposes  of  their  undertaking  may  dedicate  a 

public  highway,  provided  such  use  of  the  land  is  not 
inconsistent  with  the  act  or  object  of  their  incorporation  ; 
and  with  that  restriction  a  dedication  may  be  presumed 
against  them  from  public  use  {a).  Thus  a  canal  company 
was  held  capable  of  dedicating  a  public  carriage  way  over 
a  bridge  of  the  canal  and  of  dedicating  a  public  footway 
along  a  towing  path  of  the  canal,  subject  to  the  use  of  the 
bridge  and  towing  path  for  the  purposes  of  the  canal ;  and 
such  dedications  may  be  justly  presumed  from  long  public 
use  (ft). 

Acceptance  of      '^  It  is  not  compulsory  on  the  public  to  accept  the  use  of 

pB^Uc!*^       ^  ^^y  when  offered  to  them ;  but  both  dedication  by  the 

owner  and  acceptance  by  the  public  must  concur  to  create 

a  highway,  otherwise  than  by  statute.     Acceptance  by  the 

public  is  ordinarily  proved  by  user  by  the  public;  and 

user  by  the  public  is  also  evidence  of  dedication  by  the 

Adoption  by    owner  "  (f). — Bepair  of  the  road  by  the  parish  is  evidence 

^"*    *  of  acceptance  by  the  public,  but  not  conclusive ;  because 

the  parish,  though  bound  to  repair,  if  the  public  at  large 

(.v)  TJie  Quern  v.  Sast  Marky  11  {b)  Grand    Surrey  Canal  Cb.   t. 

Q.  B.  877 ;   The  Queen  v.  Fetrie,  4  ITali,  1  M.  &  G.  392  ;  Grand  June- 

E.  &  B.  737 ;  24  L.  J.  Q.  B.  166.  turn  Canal  Co.  v.  Petty,  L.  R,   21 

(«)  Turner  v.  WaUh,  L.  R.  6  Ap.  Q.  B.  D.  273  ;  67  L.  J.  Q.  B.  672. 

Ca.  636  ;  60  L.  J.  P.  G.  66.  See  Muliiner  v.  Midland  £y.,  L.  R. 

(a)  The  King  v.  Leakey  6  B.  &  11  G.  D.  611  ;  48  L.  J.  G.  268. 
Ad.  469.  (e)  Brett,    J.,    Cuhitt  v.  Jfoxsr, 


CHAP.  IV.    HIGHWAYS.  509 

accept  the  road,  is  only  part  of  the  public  for  the  purpose 
of  acceptance.  "If  the  road  has  been  used  by  people 
in  the  parish,  it  furnishes  evidence  pro  tanto  of  its  being 
a  way  for  the  rest  of  the  public,  and  if  the  parish  have 
repaired  it,  it  furnishes  a  strong  inference  that  it  is  a 
public  highway ;  but  it  only  raises  a  strong  presumption, 
and  there  is  no  estoppel  against  a  parish  in  such  a  case ; 
the  adoption  by  the  parish  does  not  necessarily  as  a  matter 
of  law  make  a  road  public,  nor  does  their  refusal  to  adopt 
it  prevent  its  being  so  "  (c/). 

"  There  can  be  no  dedication  of  a  way  to  the  public  for  Pedication  for 
a  limited  time,  certain  or  uncertain.  If  dedicated  at  all,  it  ^^^^^  *i™e- 
must  be  dedicated  in  perpetuity."  The  dedication  is  an 
irrevocable  licence  to  the  public  to  uuae  the  way  (e).  Dedi- 
cation by  the  lessee  of  a  term  would  operate  as  a  licence 
during  the  term,  as  against  himself  8md  his  assignees ;  but 
it  would  not  create  a  public  way  as  regards  the  chcu*ge  of 
repair  and  other  legal  incidents  (/). — An  Act  of  Parliament 
may  create  a  highway  for  a  limited  time,  as  was  generally 
the  practice  with  Turnpike  Acts,  which  were  limited  in 
their  operation  to  a  term  of  years,  and  then  renewed  from 
time  to  time.  In  such  case  the  highway  has  by  statute 
during  the  term  all  the  legal  incidents  of  a  highway,  as  to 
the  rights  of  the  public  and  obligation  to  repair ;  but  it  is 
not  a  permanent  highway,  except  by  continual  renewal  of  • 
the  Act  of  constitution  {g).  The  use  and  repair  of  the 
road  during  the  term  will  not  serve  as  evidence  of  a 
permanent  dedication  or  acceptance,  because  they  are 
referable  to  and  explained  by  the  provisions  of  the  Act  (A). 

L.  R.  8  C.  P.  704 ;  42  L.  J.  C.  P.  343. 

278.     F^   cur.  Att.-Gen.   v.  ^i'  (f)  Ait.'Gen,  y.  Biphosphate  Co., 

phoaphute  Co.,  L.  R.  11  CD.  340;  L.  R.   11  C.  D.  338;  49  L.  J.  C. 

49  L,  J.  O.  68.  68. 

(d)  Littledale,  J.,   The  King  y.  {g)  The  Queen  y.  Lordstnere,   15 

Leake,  6  B.  &  Ad.  484  ;  JRoberit  y.  Q.  B.  689  ;  19  L.  J.  M.  215  ;  The 

Hunt,  15  Q.  B.  17.  King  v.  Winter,  8  B.  &  C.  792. 

{e)  Byles,  J.,  Davcfe  y.  Hawkins,  {h)  The  King  v.  Mtllor,  1  B.  & 

8  C.  B.  N.  S.  858  ;  29  L.  J.  C.  P,  Ad.  32. 


510 


USES  AND  PROFITS  IN  LAND  OF  ANOTHER. 


Dedication 
to  limited 
public. 


For  limited 
TiBe. 


There  cannot  be  a  dedication  to  a  limited  part  of  the 
public,  with  the  effect  of  creating  a  public  way  bo  limited ; 
it  would  operate  as  a  licence  only,  without  the  legal 
incidents  of  a  public  way;  and  upon  this  principle  a 
dedication  to  a  parish  is  not  a  dedication  to  the  public, 
the  parish  being  only  a  part  of  the  public  (i ).  A  limited 
part  of  the  public,  as  a  parish,  may  have  a  right  of  way 
by  custom;  which  is  a  presGriptiye  title  founded  upon 
immemorial  use  and  enjoyment  in  the  particular  place 
with  which  such  part  of  the  public  are  identified  (y). — 
There  may  be  a  dedication  of  a  highway  to  the  public  for 
a  limited  use,  as  for  a  foot-way,  or  for  a  bridle-way. 
There  may  also  be  a  dedication  of  a  general  highway, 
with  the  exception  of  a  particular  use,  as  the  carriage  of 
coals.  In  such  cases  ''the  public  must  take  the  way 
secundum  formam  doni;  if  they  cannot  take  according  to 
that,  they  cannot  take  at  all."  The  right  given  cannot  be 
more  extensiye  than  the  gift  imports  (k).  And  th^^  may 
be  a  dedication  limited  to  occasional  use,  as  a  bridge  for 
the  use  of  the  public  only  in  times  of  flood,  when  an 
adjoining  ford  is  dangerous,  and  to  be  closed  at  all  other 
times  (/).  So  the  public  may  acquire  the  right  to  pass 
over  land  adjoining  the  sea  shore,  when  the  tide  preyents 
the  use  of  a  public  way  along  the  shore  (m). 


Dedication 
nabject  to 
obstructioxifl. 


The  dedication  of  a  way  may  be  made  subject  to 
obstructions  and  incumbrances  existing  in  the  original 
construction ;  as  in  the  case  of  a  new  street  in  which  there 
may  be  projecting  door  steps,  cellar  doors,  coal  holes,  and 
the  like;  and  if  obstructions  haye  existed  beyond  liying 
memory,  they  may  be  presumed  to  be  coeval  with  the 
street  and  with  the  original  dedication.  Any  such  ob- 
structions erected  after  the  dedication  of  the  way  become 


(i)  FtioU  V.  HmkiMon,  11  M.  & 
W.  827 ;  ante^  p.  609. 

U\  See/NM^,  p.  649. 

(*)  Stajpord  ▼.  Coyney,  7  B.  &  0. 
267. 


(0  The  King  y.  Buehmgkamy  4 
Camp.  189 ;  The  King  v.  Norihamp^ 
Urn,  2  M.  &  S.  262. 

(m)  See  Maddoek  v.  JFattaeey 
Board,  66  L.  J.  Q.  B.  267. 


CHAP.  IV.    HIGHWAYS. 


511 


nidsanoes,  and  those  who  placed  them,  or  who  afterwards 
mamtain  them  there  are  responsible  for  the  consequences  (n). 
— Thus,  a  public  way  may  be  dedicated  subject  to  the  gates  Gates  and 
and  stiles  existing  upon  it ;  which,  if  erected  upon  a  pre-  ^* 
viously  existing  highway,  would  be  indictable  (o).  The 
right  of  placing  works  upon  the  highway,  which  may 
prove  obstructions,  is  in  some  cases  given  by  statute,  as 
the  fire-plugs  connected  with  waterworks,  under  Water- 
works Acts ;  trap  doors  connected  with  public  sewers  and 
the  like  (p). — A  way  over  land  may  be  subject  to  the  Houghing, 
occupier  ploughing  up  the  beaten  track  whenever  plough- 
ing is  necessary  for  the  cultivation  of  the  land ;  and  where 
it  appeared  that  as  far  back  as  living  memory  went  a 
footpath  across  a  field  had  been  so  ploughed  up,  it  was 
held  that  the  proper  inference  was  that  the  original  dedi- 
cation of  the  field  had  been  made  subject  to  the  right  of 
ploughing  (q).  When  the  dedication  is  thus  qualified  the 
public  have  no  right  of  deviation  from  the  prescribed  line 
of  way  upon  the  occasions  of  the  ploughing  (r).  A  way 
may  be  dedicated  subject  to  the  owner  of  the  land 
pasturing  cattle  over  it{s). — A  highway  may  by  imme-  Markets  and 
morial  custom  be  subject  to  the  holding  of  a  market  or  ^""* 
fair  upon  certain  days,  leaving  sufficient  space  for  public 
passage  (i^).  And  a  way  may  be  dedicated  subject  to  the 
right  of  the  adjacent  occupiers  to  place  goods  and  exercise 
their  business  upon  the  spaces  in  front  of  their  tene- 


(«)  Per  eur.  The  Queen  v.  Longton 
Gat  Co.,  29  L.  J.  M.  123 :  Fieher 
V.  JFVww,  Cooper  v.  Walker,  2  B.  & 
S.  770;  31 L.  J.  Q.  B.  212.  See 
Sandford  y.  Clarke,  L.  B.  21  Q.  B. 
D.  398,  poet,  p.  545. 

(o)  JafM*  T.  Mayward,  Gro.  Car. 
184 ;  Bateman  y.  Burge^  6  G.  &  P. 
391.  As  to  the  width  of  gates 
across  public  cartways  and  horse- 
ways, see  5  &  6  Will.  4.  c.  50,  s.  81. 

{p)  MooreY.  Lambeth  Waierworke, 
55  L.  J.  Q.  B.  304. 

(q)  Mercer  y.  Woodgate,  L.  B. 
5  Q.  B.  26 ;   39  L.  J.   M.   21 ; 


Arnold  v.  Blaker,  L.  B.  6  Q.  B. 
433 ;  40  L.  J.  Q.  B.  185. 

(r)  Arnold  y.  Holbrook,  L.  B.  8 
Q.  B.  96 ;  42  L.  J.  Q.  B.  80.  See 
ante,  p.  494. 

(«)  Coverdale  v.  Charlton,  L.  B.  4 
Q.  B.  D.  104  ;  47  L.  J.  Q.  B.  446. 

(0  Elwood  V.  Bullock,  6  Q.  B.  383 ; 
Att.'Gen.  v.  Homer,  55  L.  J.  Q.  B. 
193  ;  L.  B.  11  Ap.  Ca.  66;  Homer 
y.  Whitechapel,  55  L.  J.  C.  289.  By 
the  Fairs  Act,  1871  (34  &  35  Vict, 
c.  12),  power  is  giyen  to  abolish 
fairs. 


512 


USES  AND  PROFITS  IN  LAND  OF  ANOTUEB* 


Poblic  way 
Babjeot  to 
private  way. 


Highway, 
subject  to  toll. 


ToU 
thorougb. 


ments  (u)  ;    but  such   a  right   cannot   be    pr^criptively 
acquired  after  the  original  right  of  way  (v), 

A  public  way  may  be  dedicated  subject  to  a  private 
way  over  the  same  ground;  as  a  public  footway  over  a 
private  road  for  carriages,  where  the  use  of  carriages  would 
be  primd  facie  a  nuisance  to  the  foot  passengers.  In  such 
case  the  private  way  must  have  preceded  the  public  right, 
or  at  least  must  have  been  contemporary  with  it ;  because 
no  private  right  could  have  been  acquired  by  grant  or 
prescription  in  derogation  of  the  public  right.  "The 
owner  of  the  servient  tenement  could  not  dedicate 
absolutely  to  the  public  so  long  as  it  remained  subject 
to  the  prior  right ;  he  could  give  nothing  but  what 
he  himself  had,  a  right  of  user  not  inconsistent  with  the 
private  easement*'  (er).  A  private  way  may  become  pre- 
sumptively dedicated  also  as  a  public  way  by  evidence  of 
public  use,  and  as  such  it  would  be  repairable  by  the 
parish ;  but  the  subsequent  dedication  does  not  m^ge  the 
private  way,  nor  the  special  remedies  appropriate  to  it  (jr). 

The  right  of  taking  toll  from  the  public  is  a  franchise 
emanating  from  the  prerogative  of  the  Crown,  and  may 
be  vested  in  a  subject  by  charter  or  royal  grant,  or  by  im- 
memorial prescription,  which  imports  such  grant.  It  may 
also  be  created  by  statute,  as  in  modem  times  by  Turn- 
pike Acts,  which  create  highways  subject  to  the  condition 
of  toU,  but  attelided  with  the  legal  incidents  of  a  public 
highway  at  common  law(y).  Toll  upon  a  highway  is 
distinguished  at  common  law  as  being  toll  thorough  or  toll 
traverse,  ToU  thorough,  which  generally  occurs  in  some 
town  or  borough,  is  a  toll  granted  in  consideration  of 


(«)  Le  Neve  v.  Mile  End,  8  E.  & 
B.  1064;  27  L.  J.  Q.  B.  208; 
Movant  v.  Chamberlain,  6  H.  &  N. 
641  ;  30  L.  J.  Ex.  299. 

(f)  Fowler  v.  Sanders,  Cro.  Jac. 

446. 

(«?)  Per  cur.  The  Queen  v.  Chor^ 
ley,  12  Q.  B.  620 ;  Grand  Surrey 
Canal  v.  Mall,  1  M.  &  G.   392; 


Brownhw  t.  Tomlineon,  1  M.  &  G. 
484. 

[x)  Allen  v.  Ormond,  8  East,  4 ; 
Patteson,  J.,  Duncan  t.  I/weh,  6 
Q.  B.  916  ;  The  Queen  t.  BradJIM^ 
L.  B.  9  Q.  B.  662 ;  43  L.  J.  AT. 
166. 

(y)  The  Queen  y.  Lordtmere^  16 
Q.  B.  689 ;  19  L.  J.  M.  216. 


CHAP.  IV.    HIGHWAYS.  613 

doing  some  service  of  public  benefit  upon  .the  highway,  as 
repairing  the  road,  or  maintaining  a  bridge  or  a  ferry ;  it 
cannot  be  imposed  without  some  beneficial  consideration 
commensurate  with  the  toll  (s).  Accordingly,  a  claim  of 
toll  to  be  taken  throughout  all  parts  of  a  town  cannot  be 
supported  upon  the  consideration  of  repairing  only  some 
of  the  streets  of  the  town  ;  toll  can  be  claimed  for  passage 
over  those  streets  only  which  there  is  the  duty  to  repair  {a). 

Toil  traverse  is  a  toll  granted  in  consideration  only  of  Toll  traverEe. 
a  public  way  over  the  land  of  the  grantee ;  the  way  being 
dedicated  to  the  public  subject  to  the  toll,  in  consideration 
of  the  grant  of  the  toll  to  the  owner  of  the  land ;  for  no 
man  can  take  a  toU,  as  such,  even  in  his  own  land  for  a 
public  way  without  the  licence  of  the  Crown ;  and  if  he 
accepts  a  charter  to  take  toll  for  a  way  over  his  land,  he 
impliedly  dedicates  the  way  to  the  public  (6).  It  seems 
therefore  that,  except  imder  such  charter,  a  person  cannot 
dedicate  a  way  subject  to  toll;  the  dedication  would 
amount  merely  to  a  licence  to  use  the  way  from  time  to 
time  in  consideration  of  paying  the  toll,  and  would  be 
revocable  at  any  time  (c).  —  Hence  in  claiming  a  toU 
thorough  a  sufficient  continuing  consideration  must  be 
alleged  and  proved ;  but  "  a  toll  traverse  is  said  to  differ 
from  a  toll  thorough  in  this,  that  no  consideration  for  it 
need  be  averred.  This  does  not,  however,  mean  that  there 
need  be  no  consideration  for  it ;  it  merely  expresses  that, 
as  there  can  be  no  toll  traverse  except  in  respect  of  going 
over  the  land  of  the  grantee,  the  consideration  of  using 
the  land  is  implied  from  the  character  of  the  toU,  and 
need  not  be  further  averred  than  by  stating  it  is  a  toU 
traverse"  {d). 

(z)    Nottingham      v.      Lambert^  graye'8Tract8,p.  10.    ^eQEickardt 

Willee,  111.  V.  Bennett,  1  B.  &  G.  223. 

(a)  Truman  r.  Walgham,  2  "Wila.  (e)  Austerberry  v.  Oldham^  L.  R. 

296 ;  Hill  v.  Smith,  4  Taunt.  620  ;  29  0.  D.  760  ;  66  L.  J.  C.  633. 
Brett  V.  BeaUt,   10  B.  &  C.  608  ;  (rf)    Per  cur,  Brecon  Markets  Co. 

Brecon  Market*  Co,  v.  Neath  Ry.y  v.  Neath  and  Brecon  By.,  L.  R.  7 

L.R.8C.P.  167;  42L.J.C.P.63.  C  P.  666;  41  L.  J.  C.  P.  257; 

{b)   Hale   de  Jure  Maris,  Har-  James  t.  Johnson,  2  Mod.  143. 

L.  L  L 


514 


USES  AND  PROFITS  IN  LAND  OF  ANOTHER. 


Toll  of  ferry 
and  other 
tolls. 


I^xeflonptioiL 
for  toll  on 
highwaj. 


A  f eny  is  a  francbise  analogous  to  toll  thorough,  giving 
a  right  to  take  toll  for  convejing  passengers  and  goods 
across  a  river,  in  consideration  of  the  duty  of  providing 
and  maintaining  the  means  of  conveyance ;  and  "  no  man 
may  set  up  a  common  ferry  for  all  passengers,  mthout  a 
prescription  time  out  of  mind  or  a  charter  from  the 
king  "  («).  A  similar  toll  may  be  granted  for  pontagej  or 
the  maintenance  of  a  bridge  (/).  Tolls  analogous  to  toll 
traverse  may  be  claimed  for  the  use  of  land  for  various 
other  purposes ;  as  for  landing  goods  at  a  wharf  {g) ;  or 
for  bringing  and  delivering  goods  in  a  town  (A) ;  or  for 
ships  entering  and  using  a  port  {%) ;  the  claim  of  toll  in  all 
such  cases  having  originated  in  the  ownership  of  the  land, 
and  the  dedication  of  it  to  public  use.  Such  tolls  may  be 
appurtenant  to  a  manor,  and  pass  with  a  conveyance  of 
the  manor  (y). 

Where  a  highway  has  originally  existed  free  of  toll,  no 
toll  can  be  subsequently  imposed  without  a  sufficient  con- 
sideration, as  of  repairing  the  road  or  a  bridge.  Hence 
'^  a  man  cannot  prescribe  to  have  toll  for  passing  in  the 
king's  highway,  for  that  it  is  the  inheritance  of  every  man 
to  pass  on  the  king's  highway,  which  is  prior  to  all  pre- 
scriptions ;  and  therefore  if  a  man  will  plead  such  a  pre- 
scription he  must  show  a  reasonable  cause  for  its  com- 
mencement, which  is  not  to  be  presumed  "  {k).  But  a  toll 
traverse,  originally  well  created,  may  subsequently  be  dis- 
severed from  the  title  to  the  land ;  and  where  a  toll  had 
been  taken  from  time  immemorial  without  any  apparent 
consideration  beyond  the  use  of  the  highway,  and  the  toll 


{e)  Hale  de  Jure  ifarit,  Har- 
gprave's  Tracts,  p.  6 ;  Payne  v.  Far^ 
tridge,  1  Show.  231  ;  S,  G,  Fain 
T.  Fatrkk,  3  Mod.  289  ;  Blieset  y. 
Earl,  Willes,  612  (a)  ;  Feier  v. 
Kendal,  6  B.  &  G.  703 ;  Trotter  r. 
Harruy  2  Y.  &  J.  286. 

(/)  2  Co.  Inst.  701 ;  mcholl  v. 
Allen,  1  B.  &  S.  916 ;  31  L.  J. 
Q.  B.  283. 

(ff)  Criepe    t.  Selwood,    3    Lev. 


422  ;  Colion  ▼.  Smith,  I  Cowp.  47. 

(A)  Bickardt  y.  Bennett,  1  B.  & 
0.  223. 

(i)  Yarmouth  y.  Baton,  3  Bmr. 
1402;  The  Queen  y.  Durham,  28 
L.  J.  M.  232 ;  Exeter  y.  Warren, 
6  Q.  B.  773. 

0)  Jamee  y.  Johneon,  2  Mod.  144. 

(k)  Nottingham  y.  Lambert,  Wllks, 
111 ;  see  Smith  y.  Shepherd,  Gro. 
Eliz.  710. 


CHAP.  IV.    HIGHWAYS.  515 

and  the  land  had  been  originally  vested  in  the  same 
person,  though  since  severed;  it  was  held  to  be  rightly 
presumed,  in  favour  of  a  legal  origin,  that  the  toll  had 
been  granted  in  oonsideration  of  the  original  dedication  of 
the  highway,  and  therefore  might  be  claimed  as  a  toll 
traverse  (/). 

A  grant  may  be  made  of  toll,  with  exemption  of  a  oer-  Exemption 
tain  part  of  the  public;  as  the  toll  upon  com  imported 
into  the  City  of  London,  with  exemption  of  freemen  of 
the  city  {tn).  Such  exemption  may  be  proved  by  imme- 
morial custom ;  as  a  custom  for  the  inhabitants  of  a  town 
to  pass  a  ferry  toU  free  (n). — ^There  are  also  statutory 
exemptions  from  toll  on  turnpike  roads  applied  to  certain 
persons  and  upon  certain  occasions,  namely,  the  Queen 
and  the  Eoyal  family,  the  military  forces,  the  police, 
ministers  and  persons  attending  church  on  Sundays,  8md 
funerals,  horses,  carts  and  implements  of  husbandry,  agri- 
cultural manures  and  produce,  the  carriage  of  materials 
for  repair  of  roads  and  bridges,  county  elections,  and 
various  other  matters  (o).  Also,  no  tolls  can  be  demanded 
or  taken  for  any  horse,  or  beast,  or  cattle  of  any  kind,  or 
for  any  carriage  of  any  kind,  "  which  shall  only  cross  any 
turnpike  road  or  shall  not  pass  above  one  hundred  yards 
thereon"  {p). 

A  prescriptive  right  to  toll  may  be  attended  with  a  pre-  Difttress  for 
seriptive  right  to  seize  goods  subject  to  toll  upon  the  high- 
way, as  a  distress  to  recover  the  toU  {q).  The  General 
Turnpike  Act,  3  Geo.  IV.  c.  126,  s.  39,  gives  power  to 
seize  and  distrain  any  horse,  cattle,  carriage,  or  other  thing 
upon  which  toll  is  imposed,  or  any  of  the  goods  or  chattels 

(Q  Pelhum  r.  Pkkertgill,  1  T.  R.  289.     See  Lockwood  y.  TFood,  6  Q. 

660  ;  Riekardi  v.  Bennett,  I  B.  &  G.  B.  61. 
223.  io)  3  Geo.  4,  c.  126,  as.  26—32. 

(m)  Ceekeedgey,  Fanehaw,  Dougl.  Ip)  3  Geo.  4,  c.  126,  s.  32;  4  & 


119  ;  Lord  Blackburn,  Ooodman  v.  6  Vict.  c.  33 ;  Bueeey  y.  Storey, A  B. 

SalUuh,  L.  R.  7  Ap.  Ga.  657 ;  see  &  Ad.  109. 

MiddUton  y.  Lambert,  1  A.  &  E.  401.  (q)  Smith  y.  Shepherd,  Gro.  Ells. 

(ft)  FayneY,  Fartridge,  1  Shower,  710. 
231 ;  S.  C.  Fain  y.  Fatrick,  3  Mod. 

ll2 


516 


USES  AXD  PROFITS  IN  LAND  OF  ANOTHER. 


Rating  of 
tolls. 


of  the  person  refusing  to  pay  the  toll ;  xidth  power  to  sell 
the  things  so  seized  and  distrained.  Tolls  may  also  be 
recovered  as  a  debt,  by  action  (r). 

ToUs  in  general  are  not  rateable,  unless  taken  as  profits 
of  the  occupation  of  land.  "  Under  the  Statute  of  Elizabeth 
(43  Eliz.  c.  2,  for  the  relief  of  the  poor)  the  owner  of  tolls 
per  86  is  not  rateable.  Tolls  to  be  rateable  must  be  con- 
nected with  the  occupation  of  land,  so  as  to  be  considered 
as  increasing  the  yalue  of  the  land"(«).  —  Hence  toll 
traverse,  being  taken  in  consideration*  of  the  use  of  the 
land,  presumptively  implies  the  occupation  of  the  land 
and  is  rateable.  Accordingly  a  toll  traverse  taken  on  a 
bridge  was  held  rateable  as  being  a  profit  of  the  occupa- 
tion of  the  bridge,  and  repairs  done  by  the  owner  of  the 
toU  were  held  to  be  referable  to  his  ownership  of  the 
bridge,  and  not  merely  to  an  obligation  in  consideration  of 
the  toll  (f).  ToU  thorough,  which  is  taken  in  respect 
merely  of  repair  of  the  road  or  other  beneficial  service, 
imports  no  occupation  of  the  land,  and  is  not  rateable  (v). 
So,  the  toll  of  a  ferry  is  not,  in  general,  rateable  (r).  The 
tolls  of  turnpike  roads  were  expressly  exempted  from  rating 
to  any  public,  or  parochial  rate  by  the  General  Turnpike 
Act,  3  Geo.  IV.  c.  126,  s.  51. 


Extinction  of  "  It  is  an  established  maxim,  once  a  highway  always  a 
highway ;  for  the  public  cannot  release  their  rights,  and 
there  is  no  extinctive  presumption  or  prescription  from 
disuser " ;  nor  can  a  prescriptive  claim  of  any  kind  arise 
against  a  highway  from  adverse  use  or  occupation  {w). 

Stopping  and       The  mode  of  legally  stopping  or  diverting  a  highway  at 


(r)  Seward  r.  Baker,  1  T.  R.  616. 

{s)  Coleridge,  J.,  Lewis  ▼.  Swan^ 
sea,  6  E.  &  B.  508  ;  25  L.  J.  K.  37; 
see  ante,  p.  487. 

(0  The  Queen  y.  Salisbury,  8  A.  & 
E.  716. 

(«)  The  King  ▼.  Eyre,  12  East, 
416 ;  The  King  v.  Bamee,  1  B.  & 
Ad.  113. 


(r)  The  King  y.  NiehoUon^  12 
East,  330 ;  The  Queen  y.  North  f  S. 
Shields  Ferry,  1  E.  &  B.  140 ;  22 
L.  J.  M.  9. 

(w)  BjlcBy  J.,  Dawes  y.  Hawkins^ 
8  C.  B.  N.  S.  868 ;  29  L.  J.  C,  P. 
343  ;  Vooght  y.  Winehy  2  B.  ft  Aid. 
662;  Turner  y.  Bingwood  Board, 
L.  R.  9  Eq.  418,  ante,  p.  494. 


CHAP.  IV.    HIGHWAYS.  517 

common  law  was  by  the  writ  of  ad  quod  damnum^  which  divertmg 
was  an  original  writ  issuing  out  of  and  returnable  into  oonMmm  law. 
Chancery,  directing  the  sheriff  to  inquire  by  a  jury 
whether  the  proposed  stoppage  or  diversion  would  be 
detrimental  to  the  public.  Upon  a  return  to  the  writ  that 
no  detriment  would  accrue,  the  crown  might  grant  a 
licence  to  stop  or  divert  the  way.  But  the  return  was 
traversable  at  Quarter  Sessions ;  and  it  was  no  bar  to  an 
indictment  for  a  nuisance  {x).  A  new  way  opened  in 
place  of  a  way  stopped  imder  a  writ  of  ad  quod  damnum 
became  forthwith  a  public  highway  (y).  Proceedings 
under  this  writ  have  long  since  fallen  into  disuse,  being 
superseded  by  the  more  efficient  procedure  by  statute. 

A  highway  may  now  be  diverted  and  turned,  or  it  may  By  statutes. 
be  entirely  or  partially  stopped,  by  an  order  of  Quarter 
Sessions,  founded  upon  a  certificate  of  justices,  certifying 
either  that  the  proposed  new  highway  is  nearer  or  more  com- 
modious to  the  public,  or  that  the  highway  proposed  to  be 
stopped  is  unnecessary ;  the  proceedings  being  taken  under 
the  General  Highway  Act(s). — Also  by  the  Highways 
Act,  1878,  41  &  42  Vict.  c.  77,  s.  24,  a  highway  authority 
may  apply  to  the  Court  of  summary  jurisdiction  of  the 
petty  sessional  division  in  which  a  highway  is  situate  for 
an  order  "  declaring  such  highway  unnecessary  for  public 
use,  and  that  it  ought  not  to  be  repaired  at  the  public, 
expense."  And  if  the  Court  make  such  order,  "the 
expenses  of  repairing  such  highway  shall  cease  to  be 
defrayed  out  of  any  public  rate"(«). — By  the  General 
Inclosure  Act,  1845,  8  &  9  Vict.  c.  118,  s.  62,  power  is 
given  "  to  set  out  and  make  public  roads  and  ways,  in  and 
over  the  land  to  be  inclosed,  and  stop  up,  divert,  or  alter 
any  of  the  roads  or  ways  passing  through  the  land  to  be 
inclosed,  or  through  any  old  iuclosures  in  the  parish  in 

{x)  The  King  v.  Warde,  Cro.  Car.  Tracts,  p.  10.     See  ante,  p.  605. 

266  ;  ExparU  Fennor,  3  Atk,  766 ;  («)  5  &  6  Will.  4,  o.  60,  ss.  84 

Tenterden,   C.   J.,     The   King    r.  —91. 

Rusaell,  6  B.  &  C.  699.  (a)  Sec  the  Highway  Act,  1864, 

(y)   Hale  de  /.    Marie,   Hargr.  27  &  28  Vict.  c.  101,  s.  21. 


518 


USBS  AND  PROFITS  IN  LAND  OF  ANOTHBR. 


DestmctioQ 
of  way. 


which  the  land  to  be  inclosed  shall  be  situate  "(6).  An 
Inclosnre  Act  giving  power  to  stop  highways  within  a 
parish  was  held  to  authorise  stopping  a  way  through  the 
parish,  though  the  way  through  the  adjoining  parish  was 
thereby  stopped  at  the  extremity  and  converted  into  a 
cul  de  sac  (c). — If  both  ends  of  a  highway  be  legally 
stopped,  it  is  practically  extinguished,  by  reason  of  the 
public  being  deprived  of  all  access  to  the  intermediate 
part ;  but  the  stopping  of  one  end  only  would  not  neces- 
sarily have  that  effect,  for  it  may  remain  a  highway  in 
all  other  respects  with  access  from  elsewhere  (rf). 

A  highway  may  be  extinguished  in  fact  by  the  destruc- 
tion of  the  land  on  which  it  passes ;  as  in  the  case  of  the 
road  and  the  land  being  washed  away  by  the  sea;  the 
ordinary  liability  to  repair  does  not  extend  to  replacing 
the  land  as  the  foundation  of  the  road  (e).  In  the  case  of 
a  partial  destruction,  as  by  a  landslip,  the  liability  to 
restore  the  road  depends  upon  whether  it  is  reasonably 
practicable  to  do  so  within  the  limits  of  repairing, 
properly  so  called  (/). 


{b)  See  Somhy  v.  Silvester^  L.  R. 
20  Q.  B.  D.  797. 

(c)  Oxvyn  v.  Hardwicke^  1  H.  & 
N.  49;  25  L.  J.  M.  97,  ante, 
p.  486. 

[d)  Bailey  t.  Jamieson,  L.  R.  1 
C.  P.  D.   329;   see   I%tf  King  r. 


Jhtonshire,  4  A.  &  E.  698 ;  Gvyn 
y.  Hardwiekef  supra. 

(e)  The  Queen  y.  £amber,  5  Q.  B. 
279;  The  Queen  y.  Hornsea,  23 
L.  J.  K.  69. 

(/)  The  Queen  Y.Greenh(no,Jj.R. 
1  Q.  B.  D.  703 ;  45  L.  J.  M.  141. 


r 


CHAP.  IV.   HIGHWAYS.  519 


§  3.  Maintenance  and  repair  of  Highways. 

Liability  of  parish  to  repair  at  oommon  law— liability  of  townahip  or 

district  by  oustozn. 
Bepair  of  new  highways — turnpike  roads — private  ways  made  public 

by  order  of  justices. 
Conditions  of  liability  of  parish  under  the  Highway  Act — certificate 

of  justices — highways  not  repairable  by  the  parish — ^highways 

declared  unnecessary. 
Bepair  under  Highway  Acts — highway  board — district  fund. 
Main  roads — transfer  of  main  roads  to  county  council — delegation  to 

district  council. 
Improvement  of  highways — statutory  powers  of  improvement. 
Liability  to  repair  by  prescription — by  tenure  of  land — by  inolosure — 

discharge  of  liability  by  tenure  or  otherwise. 
Bepair  of  bridges— Statute  of  Bridges — construction  of  statute. 
New  bridges — repair  of  new  bridges — conditions  of  repair  by  county — 

improvement  of  bridges. 
Bridges  built  under  statutes — canal  bridges— railway  bridges — turn- 
pike road  bridges. 
Transfer  of  bridges  to  county  councils. 
What  structures  are  county  bridges— approaches  to  bridges— roadway 

of  bridges — ^property  in  bridges — ferry. 

The  general  principle  as  to  repair  of  highways  is  stated  Liability  of 
as  follows : — "  The  parish  is  at  common  law  bound  to  re-  ^^j^.*^ 
pair  all  public  highways  within  it ;  this  being  the  mode 
by  which  each  parish  contributes  its  share  towards  the 
public  burthen  of  repairing  all  highways,  instead  of  all  the 
public  roads  being  repaired  by  one  general  tax ;  and  its 
inhabitants  receive  an  equivalent,  not  in  the  use  of  those 
roads  in  particular,  but  in  the  use  of  all  the  public  roads 
in  the  reahn  "  («). — "  A  township  or  oth^  known  portion  Liability  of 
of  a  parish  may  by  usage  and  custom  be  chargeable  to  the  disSct  Ey  ' 
repair  of  the  highways  within  it";  to  the  exemption  of  custom, 
the  rest  of  the  parish  (6).     And  the  district  of  a  parish 

(a)  Parke,  J.,  The  King  v.  Leake,  (fi)  The  King  v.  EeeUafieldy  1  B.  & 

6  B.  &  Ad.  482 ;  per  cur,  Bmeey  v.      Aid.  359 ;  The  King  v.  MatJUld,  4 
Storey,  4  B.  &  Ad.  109.  B.  &  Aid.  75  ;  The  Queen  v.  Heage, 

2  Q.  B.  128. 


620 


USES  AND  PROFITS  IN  LAND  OF  ANOTHER. 


thus  exclusively  bound  by  custom  to  repair  its  own  high- 
ways, in  consideration  of  such  liability,  is  presumptively 
exempt  from  the  general  liability  of  the  pansh  to  repair 
all  other  highways  (c).  A  claim  to  such  exemption  would 
be  unreasonable  and  void,  unless  supported  by  the  con- 
sideration of  repairing  the  roads  within  the  district ;  so 
that  if  in  fact  there  are  no  roads  within  the  district,  the 
claim  cannot  be  maintained  (d).  Accordingly,  a  parish 
may  be  divided  into  several  districts,  the  inhabitants  of 
each  of  which  may  be  bound  by  custom  to  repair  its  own 
highways  as  if  it  were  a  separate  parish,  with  exemption 
from  the  repair  of  the  highways  in  the  rest  of  the 
parish  {e).  The  liability  of  the  parish  at  large  is  imposed 
by  common  law,  which  is  judicially  noticed ;  but  the  Uabi- 
lity  or  exemption  of  a  part  of  a  parish  is  by  special  custom, 
which  must  be  alleged  and  proved  by  the  party  asserting 
it  (/).  Extra  parochial  districts  may  be  chargeable  with 
repair  by  custom  ;  but  it  seems  that  they  cannot  be  charged 
at  common  law{g). — There  cannot  be  a  custom  for  the 
inhabitants  of  a  parish  or  district  to  repair  the  highways 
in  another  parish  or  district,  for  customs  are  essentiallj 
restricted  to  the  locality  in  which  they  prevail.  Such  an 
arrangement  may  be  made  by  agreement  between  two 
parishes  or  districts,  and  will  be  effectual  so  long  as  it  is 
carried  out  (/<).  But  a  mere  agreement  with  other  parties 
to  repair  the  roads  cannot  discharge  a  parish  &om  the 


(c)  Freeman  v.  Heady  4  B.  &  S. 
174  ;  32  L.  J.  M.  226 ;  The  Queen 
V.  RoUett,  L.  R.  10  Q.  B.  469 ;  44 
L.  J.  M.  190. 

(d)  The  Queen  v.  RolUtty  supra; 
Lusb,  J.,  dissefUientej  holding  that 
the  contingent  liability  to  repair 
new  roads  would  be  a  sufficient 
consideration. 

•  {e)  The  King  v.  Jiridekirky  11 
East,  304 ;  The  King  v.  Kings' 
Keu'ton,  1  B.  &  Ad.  826;  The  Queen 
y.  Bamoldtwiek,  4  Q.  B.  499  ;  The 
Queen  v.  Ardslrv,  L.  R.  3  Q.  B.  D. 


255 ;  47  L.  J.  M.  65. 

(/)  Per  cur.  The  King  v.  Shejield, 
2  T.  R.  Ill  ;  The  King  y.  Fender' 
ryn,  2  T.  R.  513 ;  The  King  v.  Hal- 
field,  4  B.  &  Aid.  76. 

[g)  The  King  y.  KingtmooTf  2  B. 
&  C.  193. 

{h)  The  King  v.  St.  Giles,  Cam- 
bridge, 5  M.  &  S.  260  ;  The  King  v. 
Maehynlleih,  2  B.  &G.  166;  Davm 
y.  Wilhughby,  5  B.  &  S.  920;  U 
L.  J.  M.  37  ;  The  Queen  y.  Ardsley, 
L.  R.  3  Q.  B.D.  255;  47  L.  J.M. 
65. 


CHAP.  IV.    HIGHWAYS. 


521 


oommon  law  liability  to  do  so ;  nor  can  it  charge  the  other 
parties  with  the  pubKo  liabiKty  (i). 

At  oommon  law  the  liability  of  the  parish  to  repair  ex-  Repair  of 
tended  to  all  new  highways  within  it,  whether  created  by  l^&^^ays 
statute  or  by  dedication,  which  were  not  otherwise  speci- 
ally provided  for  in  their  creation.  And  "  by  the  general 
rule  of  law,  the  inhabitants  of  any  district,  who  were 
liable  to  the  repair  of  all  the  roads  therein  previously  to 
the  introduction  of  a  new  highway,  are  also  liable  to  the 
repair  of  that  highway  "  (,;).  Thus,  where  a  way  origin- 
ally set  out  as  a  private  way  under  an  Inclosure  Act,  to  be 
used  and  repaired  by  particular  persons  only,  afterwards 
became  a  public  way  by  user,  it  was  held  that  the  parish 
thereupon  became  liable  for  the  repair  (k).  Where  a  public 
foot- way  had  been  constructed  outside  the  parapet  of  an 
ancient  bridge,  which  was  repairable  by  the  tenants  of 
certain  land,  rattone  temira?,  it  was  held  that  the  public 
were  liable  to  repair  the  foot-way  (/).  And  where  a  public  . 
foot- way  is  acquired  over  a  private  carriage  way,  or  where 
a  public  foot- way  is  enlarged  into  a  private  carriage  way, 
the  liability  of  the  parish  to  repair  is  limited  to  the 
foot- way,  and  they  are  chargeable  only  pro  rata  (m), — 
Upon  this  principle  the  turnpike  roads  created  by  statute  Turnpike 
become  repairable  by  the  inhabitants  of  the  parish  or  dis-  '^*  ' 
trict ;  and  the  imposition  of  toUs  in  aid  of  repair  imports 
no  exemption  from  liability,  in  the  event  of  the  tolls  prov- 
ing inadequate,  or  the  turnpike  trustees  neglecting  their 
duty  to  repair  (n).     Turnpike  trusts  and  toUs  have  for  the 


new 


(»)  The  Queen  t.  Athby  FolviUsy 
L.  R.  1  Q.  B.  213;  35  L.  J.  M. 
154  ;  2i^  King  v.  Liverpool,  3  East, 
86 ;  see  The  King  v.  St.  Gewge^  3 
Camp.  222. 

(/)  The  King  v.  Netherthong,  2  B. 
&  Aid.  179  ;  The  King  v.  Sheffield, 
2  T.  R.  106 ;  The  QueetiY.  Bamolds- 
tpick,  4  Q.  B.  499. 


9 


(k)  The  Queen  v.  Bradfield,  L.  R. 
Q.  B.  652  ;  43  L.  J.  M.  155  ;  see 


The  King  v.  St.  Benedict,  4  B.   & 
Aid.  447  ;  see  ante,  p.  506. 

(/)  See  The  King  v.  Middlesex, 
3B.&  Ad.  201. 

(y;i)  King  v.  West  Riding,  2  East. 
353  (a). 

(n)  The  King  v.  Kethn-ihotig,  2 
B.  &  Aid.  179  ;  Bussey  v.  Storey,  4 
B.  &  Ad.  98  ;  The  Queen  v.  Lorde- 
were,  15  Q.  B.  689 ;  The  Queen  v. 
French,  L.  R.  3  Q.  B.  D.  187. 


522  USES  AND  PROFITS  IN  LAND  OF  ANOTHER. 

moet  part  been  abolished,  leaving  the  liability  for  the 

repair  of  the  roads  upon  the  parishes  and  districts  in  which 

PriTstewajs   they  are  situated  («).     By  the  Highway  Act,  1862,  25  & 

by  onicT  of      26  Vict.  c.  61,  s.  36,  "  Where  the  inhabitants  of  any  parish 

juatiees.  ^j^  desirous  of  undertaking  the  repair  and  maintenance 

of  any  drift-way,  or  any  private  carriage  or  occupation 

road,  in  return  for  the  use  thereof,  the  district  surveyor 

may  at  the  request  of  the  inhabitants  in  vestiy  assembled, 

and  with  consent  of  the  owner,  apply  to  Justices  in  Petty 

Sessions ;  and  upon  such  application  it  shall  be  lawful  for 

the  Justices  to  declare  the  same  to  be  a  public  carriage 

road  to  be  repaired  at  the  expense  of  the  public." 

CoDditMnsaf        The  liability  to  repair  a  newly  dedicated  highway  at- 
P«ri:!(h  under    taohed  to  the  parish  at  common  law  without  any  formality 
Midway  Act.  or  condition,  beyond  the  acceptance  of  the  dedication  by 
the  public  at  lai^  (o).     But  by  the  Highway  Act,  1835, 
5  &  6  Will.  rr.  c.  50,  s.  23,  certain  formalities  are  required 
to  be  gone  through  as  a  condition  of  the  liability.     It 
enacts  ^^  that  no  road  made,  or  hereafter  to  be  made,  by  or 
at  the  expense  of  any  individual  or  private  person,  body 
pi^litio  or  corporate,  shall  be  deemed  or  taken  to  be  a  high- 
w;)y  which  the  inhabitants  of  any  parish  ^all  be  compel- 
lable or  liable  to  repair,  unless  the  person  proposing  to 
dtxliv^site  such  highway  to  the  use  of  the  public  shall  give 
thr^*  calendar  months'  notice  in  writing  to  the  surveyor  of 
the  )vm4i  of  his  intention  to  dedicate  such  highway  to  the 
u$o  of  the  public^  and  shall  have  made  the  same  in  a  sub- 
$^tautial  manner,  and  to  the  satis&ction  of  the  said  surveyor 
t\^i«x>*uv  of    and  of  two  justices  of  the  peace  of  the  division  in  which 
jiuMK^.  ^^^^^j^  highway  is  situate,  who  are  hereby  required  to  view 

the  same^  ai\d  to  certify  that  such  highway  has  been  made 
in  a  sul^tautial  manner,  which  certificate  shall  be  enrolled 
at  the  Quarter  8e^ons ;  then  and  in  such  case  after  the 

i*^  $W  llw  Tttnpike  Acts,  ISTO,      way  Act,  1878,  41  &  42  Vict,  c  77, 
1$;4  ;  $3  ^  S4  Viot.  e.   7X  &  10 ;       8.  IS,  pnt^  p.  624. 
SiT  v"^  S$  VicK  cw  ^,  «.  10 :  Higli-  (o)  Amfe,  p.  508. 


CHAP.  IV.   HIGHWAYS.  523 

Baid  highway  shall  have  been  used  by  the  pubKo,  and  duly 
kept  in  repair  by  the  said  person  for  the  spaoe  of  twelve 
calendar  months,  such  highway  shall  for  ever  thereafter  be 
kept  in  repair  by  the  parish  in  which  it  is  situate :  provided 
nevertheless  that  on  receipt  of  such  notice  the  surveyor  of 
the  said  parish  shall  call  a  vestry  meeting,  and  if  such 
vestry  shall  deem  such  highway  not  to  be  of  sufficient 
utility  to  the  inhabitants  of  the  said  parish  to  justify  its 
being  kept  in  repair  at  the  expense  of  the  parish,  a 
justice  of  the  peace  shall  summon  the  party  proposing  the 
new  highway  to  appear  at  the  next  special  sessions,  and 
the  question  as  to  the  utility  of  such  highway  shall  be 
determined  at  the  discretion  of  such  justices  "  (p), 

A  highway  may  still  become  public  by  dedication  and  HigrhwayBnot 
acceptance,  although,  by  reason  of   non-compliance  with  i!J*p^^® 
the  above  formalities,  it  may  not  be  a  highway  which  the 
inhabitants  of  the  parish  are   compellable  to   repair  (g). 
The  person  who  dedicated  the  way  would  not  become 
bound  to  repair  it  by  reason  of  the  dedication ;  nor  would 
he  become  so  by  reason  of  his  having  done  merely  voluntary 
repairs.     A  highway  may  thus  be  newly  created  by  dedi- 
cation, without  obligation  upon  any  person  to  repair  it  (r). 
So  highways  which  have  been  declared  by  order  of  justices,  Highways 
obtained  under  the  Highways  Act,  1878,  to  be  "  unnecessary  ^e^^^'^ed 
for  public  use,"  cease  to  be  repairable  by  the  public,  but  do 
not  cease  to  be  highways ;  and  if  they  afterwards  become 
of  public  use,  the  liability  to  repair  may  be  revived  («). 

The  maintenance  and  repair  of  highways  are  now,  for  Bepair  under 
the  most  part,  regulated  by  statutes,  commonly  known  as  Acto^^*^ 
the  "HBghway  Acts"  {t).    These  Acts  provide  for  the  com- 

(j>)  As  to  this  section,  see  Tlie  Viot.  o.  101,  s.  21 ;  41  &  42  Vict. 

Quern  y.  Bagge,  44  L.  J.  M.  45.  c.  77,  s.  24 ;  ante,  p.  517. 

(q)  Roberts  y.  Hunt,  15  Q.  B.  17.  it)  The  Highway  Act,  1835,  5  & 

(r)  Roberts  y.  Hunt,  supra;  The  6  Will.  4,  o.  50;    1862,  25  &  26 

Queen  y.  Wilson,  18  Q.  B.  348 ;  21  Vict.  c.  61 ;    1864,  27  &  28  Vict. 

L.  J.  Q.  B.  281 ;  Healey  y.  Batley,  c.  101 ;  1878,  41  &  42  Vict.  c.  77  ; 

L.  B.  19  Eq.  375  ;  44  L.  J.  G.  642.  and  see  the  Local  Qoyemment  Act, 

(«)  See  Highway  Acts,  27  &  28  1888,  post,  p.  525. 


624  USES  AND  PROFITS  IN  LAND  OF  ANOTHER. 

bination  of  parishes  and  any  places  maintaining  their  own 
highways  into  "  highway  districts ;"  and  for  the  formation 

Kghway  of  a  "  highway  board  "  for  each  district,  consisting  of  way- 
wardens elected  in  the  several  places  within  the  district, 
and  of  the  justices  acting  for  the  county  and  riding 
within  the  district.  And  by  these  Acts  all  the  property, 
debts,  powers,  rights,  duties,  liabilities,  capacities  and  in- 
capacities, of  the  surveyors  of  the  parishes  forming  the 
district  are  vested  in  and  attached  to  the  highway  board; 
who  are  required  to  appoint  a  district  surveyor  to  act  as 
agent  of  the  board  in  the  performance  of  their  duties. — 

District  fund.  By  the  Acts  of  1862,  1864,  the  expenses  incurred  for 
officers  and  for  the  conmion  use  of  the  district  were  charged 
to  a  district  fund,  contributed  by  the  several  parishes  rate- 
ably;  and  the  expenses  of  maintaining  and  keeping  in 
repair  the  highways  of  each  parish  were  made  a  separate 
charge  upon  each  parish,  as  at  common  law.  But  by  the 
Act  of  1878,  s.  7,  all  the  expenses  of  maintaining  and  re- 
pairing the  highways  within  the  district,  together  with  all 
other  expenses  of  the  board,  were  charged  upon  the  dis- 
trict fimd.  This  section  was  held  to  change  only  the 
inoidenoe  of  the  expense,  without  transferring  to  the  board 
at  hurge  any  right  to  dispute  the  liabihty  to  repair,  which 
is  r\^forr\xl  by  the  Act  of  1862,  s.  18,  to  the  waywarden  of 
tho  |\\rish :  and  in  case  of  the  waywarden  disputing  the 
liability  an  indictment  must  be  brought  against  the  parish, 
i\$  at  ctmmion  law,  and  not  against  the  board  (u). 

Ma^  «\>*xK  Tilt*  Act  of  1S78,  s.  13,  created  a  dass  of  roads  called 
^*  main  rv>ads»**  consiisting  of  turnpike  roads  which  ceased 
to  W  suvh  ^noe  a  certain  time  before  the  passing  of  the 
Aot :  atul  rvvidsi  oniened  by  the  county  authority  to  be  main 
t\v^\K  **  by  iv<tson  of  being  a  medium  of  communication 

,^^   : ,*y  ih<  -^/>  ?r */*«-*,  ^MiT  602;  56  L.  J.  M.  131 ;  bat  see  77U 

X    ,V  v-^^  I .  K.  :^  ^.  R  D.  .>ti3;  Qttttn  r.  Jfcyor  of  Wakefeid^  57 

vVi    I .    J     \|,    ».^:  ;     rW  C*^^  T.  li.  J.  3f.  52  ;  /»*/,  p.  639. 
A.,»v*  //   ^.v*\.  I,   R.  {<>  Q.  B.  D. 


CHAP.  IV.   HIGHWAYS.  525 

between  great  towns,  or  a  thoroughfare  to  a  railway 
station  or  otherwise."  And  it  provided  as  to  main  roads 
that  "  one-half  of  the  expenses  inonired  by  the  highway 
authority  in  the  maintenance  of  such  road  shall  be  paid  to 
the  highway  authority  by  the  coimty  authority  out  of  the 
county  rate,  on  the  certificate  of  the  surveyor  of  the  coimty 
authority  to  the  effect  that  such  main  road  has  been  main- 
tained to  his  satisfaction  "  (r). 

By  the  Local  Government  Act,  1888,  51  &  52  Vict.  Transfer  of 
c.  41,  8.  11  ^1),  "  Every  road  in  a  coimty  which  is  for  the  county 
time  being  a  main  road  within  the  meaning  of  the  High-  oo^i^oil- 
way  Act,  1878,  inclusive  of  every  bridge  carrying  such 
road  if  repairable  by  the  highway  authority,  shall,  after 
the  appointed  day,  (Ist  April,  1889,  see  s.  109,)  be  wholly 
maintained  and  repaired  by  the  council  of  the  county  in 
which  the  road  is  situate,  and  such  council  diall  have  the 
same  powers  and  be  subject  to  the  same  duties  as  a  high- 
way board,  and  may  further  exercise  any  powers  vested  in 
the  council  for  the  maintenance  and  repair  of  bridges,  and 
the  enactments  relating  to  highways  and  bridges  shall 
apply  accordingly ;  and  the  execution  of  this  section  shall 
be  a  general  county  purpose,  and  the  cost  thereof  shall  be 
charged  to  the  general  county  account." — (2)  "Provided 
that  any  urban  authority  may  within  twelve  months 
claim  to  retain  the  powers  and  duties  of  maintaining 
and  repairing  a  main  road  within  the  district  of  such 
authority,  and  thereupon  they  shall  be  entitled  to  retain 
the  same,  and  the  council  shall  make  to  such  authority 
an  annual  payment  towards  the  cost  of  the  maintenance 
and  repair." — (3)  The  amount  to  be  agreed  on,  or 
determined  by  arbitration. — (4)  "  The  county  council 
and  any  district  council  may  from  time  to  time  contract 

(r)  Highway  Act,  1878,  ss.  13—  494;  63  L.  J.  M.  6;  Lancaster  v. 

15.      What   are    tumpilEe   roads  Newton^  66  L.  J.  M.  17.     What  is 

within  thia  enactment,   see    We»t  **  maintenance"  of  the  road  within 

Biding  v.  The  Qugen,  L.  B.  8  Ap.  the  Act,  see  Leek  Commits,  v.  Staf" 

Ca.  781  ;  53  L.  J.  M.  41 ;  Lanea-  ford,  L.  R.  20  Q.  B.  D.  794 ;    67 

thire  v.  Rochdale,  L.  K.  8  Ap.  Ca.  L.  J.  M.  G.  102  ;  poety  p.  627. 


526  USES  AND  PROFITS  IN  LAND  OF  AK0TH8R. 

for  the  undertaking  bj  the  district  oonncil  of  ihe  mainten* 
anoe,  repair,  improvement  and  enlargement  of  any  main 
road;  and,  if  the  county  council  so  require,  the  distzict 
council  shall  undertake  the  same,  and  such  xmdertakijig 
shall  be  in  consideration  of  such  annual  payment  by  the 
county  council  as  may  from  time  to  time  be  agreed  npon, 
or  in  case  of  difference  be  determined  by  arbitration." — 
(5)  ''  In  no  case  shall  a  county  council  make  any  pay- 
ment until  the  county  council  are  satisfied  by  the  report  of 
their  surveyor  that  the  road  has  been  properly  maintained 
and  repaired." — (6)  "A  main  road  and  the  materiaLs 
thereof  and  all  drains  belonging  thereto  "  shall,  except  as 
aforesaid,  vest  in  the  county  council. 
Delegation  to  By  s.  28  (2),  power  is  given  to  the  county  coimcil  to 
council.  delegate  "  any  powers  or  duties  transferred  to  them  by 

this  Act,  either  to  any  committee  of  the  county  council, 
or  to  any  district  council  in  this  Act  mentioned." — ^And 
by  s,  100,  the  expression  "district  council"  means  "any 
district  council  established  for  purposes  of  local  govern- 
ment under  an  Act  of  any  future  Session  of  Parliament ; 
and  until  such  council  is  established"  means,  "as  regards 
the  provisions  of  this  Act  relating  to  highways  and  main 
roads,  a  highway  authority."  "  The  expression  *  highway 
authority '  means,  as  respects  an  urban  sanitary  district, 
the  urban  sanitary  authority,  and  as  respects  a  highway 
district,  the  highway  board,  or  authority  having  tiie  powers 
of  a  highway  board." 

Improyement  The  parish  at  common  law  is  not  bound  to  put  a  high- 
of  highways.  ^^^  ^^^  better  condition  than  it  has  been  time  out  of 
mind,  but  as  it  has  been  usually  at  the  best  (tr).  Nor  has 
it  any  liability  or  power  to  widen  and  enlarge  a  highway 
that  is  insuflScient,  for  it  has  no  power  to  take  the  addi- 
tional land  required  (x).    Nor  can  an  owner  of  land  ad- 

M  The    Queen  v.    Cluworth,   1  (x)  The  Queen  ▼.  Stretford^  2  L. 

giJk  369.  Raym.  1169;    11  Mod.   66;    Tkt 

King  y.  Leron,  4  B.  &  C.  670. 


CHAP.  IV.    HIGHWAYS.  527 

joining  a  highway,  by  extending  the  width  of  the  road, 
throw  the  burden  of  repairing  the  newly  dedicated  part 
upon  the  parish  (y). — The  obligation  to  repair  does  not 
extend  to  the  restoration  of  a  road,  which  has  been  totally 
destroyed  by  being  swept  away  by  the  sea(s).  But  the 
raising  of  a  road,  which  had  sunk  through  subterraneous 
mining,  to  the  former  level,  was  held  to  be  an  ordinary 
repair  within  the  duty  of  a  surveyor  of  highways,  requir- 
ing no  statutory  power  and  raising  no  claim  for  compensa- 
tion from  the  owners  of  the  adjoining  tenements  which 
were  left  at  the  lower  level  (a).  The  conversion  of  a 
macadamised  road  into  a  road  paved  with  granite  setts  was 
held  not  to  be  an  expense  incurred  in  the  ^'  maintenance  " 
of  the  road  within  the  Highway  Act,  1878,  s.  13,  entitling 
the  highway  authority  to  payment  of  half  the  expense  by 
the  county  authority  (6). 

By  the  Highway  Act,  1835,  5  &  6  Will.  IV.  c.  50,  Statutory 
s.  82,  power  is  given  to  justices  to  order  highways  to  be  Sprovement. 
widened  and  enlarged,  to  the  limit  of  thirty  feet  in 
breadth,  provision  being  made  for  compensation  to  the 
owner  of  the  land  taken.  And  by  sect.  67,  the  surveyor 
has  power  "  to  make,  cleanse,  and  keep  open  all  ditches, 
drains,  and  watercourses  as  he  shall  deem  necessary,  in 
and  through  any  lands  or  grounds  adjoining  or  lying  near 
to  any  highway,"  subject  to  compensation  to  the  owner  (c). 
—By  the  Highway  Act,  1864,  27  &  28  Vict.  c.  101, 
88.  47,  48,  power  is  given  to  highway  boards  to  make 
improvements  in  the  highways  and  to  borrow  money  for 
the  purpose.  The  improvements  authorised  are:  "  the  con- 
version of  any  road  that  has  not  been  stoned  into  a  stoned 
road ;  the  widening  of  any  road,  the  levelling  roads,  the 
making  any  new  road,  and  the  building  or  enlarging 

(y)  Biehardt  v.  Kessiekf  67  L.  J.  (a)  Burgess  v.  Northiciek,  L.  R.  6 

H.  C.  48.  Q.  B.  D.  264 ;  60  L.  J.  Q.  B.  219. 

(z)  The  Queen  y.  Bambefy  5  Q.  B.  {b)  Leek  Commies,  v.  Stafford^  L. 

279  ;  The  Queen  t.  Hornsea,  23  L.  B.  20  Q.  B.  D.  794  ;  67  L.  J.  M.  C. 

J.  M.  69  ;  see  The  Queen  v.  Oreen-  102 ;  see  ante,  p.  626. 

how,  L.  B.  1  Q.  B.  D.  703  ;  46  L.  {e)  See  Croft  y.  Btckmanstoorth, 

J.  M.  141 ;  see  ante,  p.  618.  67  L.  J.  G.  689. 


ir^ii 


ys^        r>Ej  A5D  noFiTs  m  laxd  op  another. 

"irll^rt? :  tl-r  i:iz^  '^f  anr  other  work  in  respect  of  hig^h- 
TTLji  c«-—  -  i  or^iiaiiy  repairs  essentdAl  to  placing  any 
iarf^r  ii^fr±T  in  a  prt^ier  state  of  repair." 

"  A  TAT^  -zLiT  pe-r5.>n  cannot  be  boond  to  repair  by  pre- 


1^ 


*«jr_3»t:  !!.  *r-  '.,  tlit  he  and  all  his  ancestors  have  repaired, 
if  It  :tr  ~  c  ir  rrtfre.-t  of  the  tenure  of  his  land,  taking  of 
t  Z.  :r  :c]i^  rr  £: :  for  the  act  of  the  ancestor  cannot 
-iULTc^  tl-^  hrrir  wirh>:it  pn.^fit/'  Bat  a  corporation,  sole 
r  ±jrrre^i:e»  tzat  t*?  '^-^und  to  repair  by  prescription  only, 
*  •  1,  tJiAT  ^'^T  *^'^  th-ir  predecessors  time  ont  of  mind 
iiLT-T  rv^oirvi:  f  :r  a  c»:»rporation  may  bind  their  successors, 
-'  ~  rlzL-jiz^  ti:e  same  c»3rp>rationtr).  A  corporation  may 
rtf  :«  klz.'1  :.:■  rrrair  by  the  terms  of  their  charter,  by  accept- 
ii  i  they  b:»und  themselres,  according  to  the 
rvroirs:  and  the  poblic  may  enforce  the 
■iti  :=.  -  -  And  the  grant  of  a  charter,  with  charge  of 
r.  :rjLy  c^  irLiIie-l  as  the  legal  origin  of  a  prescriptive 


«.-.*.! 


Tl-r  tcz^Tire  of  laui  to  which  the  burden  or  service  of 
rv:*iir{rjr  a  r:al  is  prescript!  vely  annexed,  is  a  sufficient 
o  -  si  :fr:kri::i  f:r  iLirgiiig  the  tenant  with  the  repair;  and 
ie  is  t^hri  rally  described  as  liable  to  the  repair  ratione 
•-•# '  -ff  '  -  In  suoh  «ise  the  parish,  which  is  charged 
wi:li  rrrciir  at  o.^nimon  law,  or  a  part  of  the  parish, 
v>^;q^*i  by  custom,  may  diseharge  itself  by  pleading  and 
pr.^vir.z  with  certainty  that  another  person  is  bound  to 
rvvvvir:  ani  only  in  the  event  of  his  default  the  liability 
ivv^rrs  :o  :2ie  y^arish  ^f). 

The  inhabitants  of  a  parish  or  district  cannot  be  charged 
wi:h  iial  ility  by  i^as.m  of  the  tenure  of  land,  because  as 
inhabitants  unincorporated,  they  cannot  hold  land ;  their 

•   15  Co.  r^\  C^M  *f£ndfr$;  2  (^-^  Tke  Kwg  v.  Kerriaon^  1  M.  & 

tV  Ins*,  TOO :  Ihi  KtMf  t.  A.  OiUi^       S.  4^. 
^  M.  «:  S.  ir^O.  (/)  Tke  King  v.  Haifield^  4  B.  * 

r  I^A<  L  ^t$  T.  ITi^Zry,  3  B.  &  AM.  75  ;  Tke  Qmeem  r.  £fy,  15 Q.  B. 
Ad.  ;:/  827 ;  19  L.  J.  M.  223  ;  Holt,  C.  J., 

Amon.^  1  L.  Bajm.  725. 


CHAP.  IV.    HIGHWAYS.  529 

liability  is  at  common  law  or  by  custom  (g). — The  obliga- 
tion to  repair  by  reason  of  tenure  runs  with  the  land,  and 
with  every  part  of  the  land,  so  that  a  tenant  of  any  part  is 
primarily  liable  to  the  whole  charge  of  the  repair ;  upon 
discharging  which  he  becomes  entitled  to  claim  contribu- 
tion from  the  other  tenants.  If  the  owner  of  the  whole 
sell  several  parts,  and  agree  with  the  several  purchasers  to 
discharge  them  of  the  liability  to  repair,  such  agreement 
affects  the  incidence  of  the  liability  as  between  the  parties 
only,  and  does  not  affect  the  remedy  of  the  public ;  for  a 
tenant  has  no  power  to  apportion  the  charge  as  against  the 
public  (h). 

Liability  to  repair  a  highway  may  arise  at  common  law  Bepair  by 
from  the  inclosure  of  the  adjacent  land.  Where  the  public  ^^J^^* 
from  time  immemorial  have  used  to  deviate  from  an  open 
highway  whenever  it  was  out  of  repair  and  impassable, 
if  the  owner  of  the  land  incloses  the  adjoining  land,  he 
incurs  the  obligation  of  keeping  the  road  in  such  repair  as 
to  prevent  the  necessity  for  deviating.  He  is,  in  general, 
entitled  to  inclose,  as  owner  of  the  land ;  subject  to  the 
right  of  the  public  to  have  a  road  of  sufficient  width  and 
in  a  proper  state  of  repair.  But  he  is  chargeable  with  the 
repair  only  so  long  as  the  inclosure  is  continued,  and  upon 
opening  it  to  the  highway  again,  the  liability  ceases ;  in 
this  respect  differing  from  a  liability  to  repair  ratione 
tenuroB  which  is  permanently  incident  to  the  tenure  of  the 
land  (0-  The  Highway  Act,  1862,  25  &  26  Vict.  c.  61, 
8.  46,  now  provides  that  "  no  person  shall  become  liable  for 
the  repair  of  a  highway  by  erecting  fences  between  such 
highway  and  the  adjoining  land,  if  such  fences  are  erected 
with  the  consent  in  writing  of  the  Highway  Board  of  the 
district,  or  of  the  surveyor  or  other  authority  having  juris- 
diction over  the  highway." 

The  Highway  Act,  1862,  25  &  26  Vict.  c.  61,  s.  34,  Diaoharge 

(^)  The  King  t.  Machynlleth^   2      Duchess  of  Buckluffh,  1  Salk.  358. 
B.  &  C.  166.  (*)  The  King  v.  Stoughlan,  2  Wma. 

{h)  2  Co.  Inst.  700 ;  The  Queen  y.      Saund.  160 ;  ante^  p.  628. 

1j»  m  M 


->v«>  I«EJ  A3T)  FBijFTTS  I3f  LXSU  OF  ASi/THEK- 


cfjri<,nZri  or  f«=:r5«:ii  is  lii'.le  t«>  reioir  bj  rE<ia*Jii  of 
tcnire  of  anj  land  or  otL-ersrise  LjW5«:«rver,  ^-^jTT  "be  *i- 
yid^i  in  the  Tr.;ir.ri«rr  prjvM'-il  fcjr  the  Act  to  be  out 
of  KT^,  the  Hi^LiraT  Riord  of  the  district  mav  dirE<!t 
tLerr  surveyor  to  rejair  the  same;  and  the  eipeiii€s 
sLilL  te  jaiJ  ly  the  party  li^icle  to  rerair'*  /  . — Ar.d 
by  se:t-  -j->.  any  j-ErTs*:a  or  e»>rr-:'ratfon^  liat-Ie  to  repair 
anr  L:;rhvaT  Iv  rea.'i*:!!  of  tenure  of  lani  or  other- 
wiie,  mar  ai  r ! v  to  iiistiC'es  in  t-etrr  seasons,  who,  after 
exanlnfiiS'  the  miitter.  *•  rhalh  if  they  think  fit,  make  an 
ord-r  thit  =TL-h  hi^h'W'ay  shall  thereafter  he  a  highway  to 
le  repair*^  and  maintained  by  the  parish,  and  shall  in 
s^eh  orier  fix  a  certain  som  to  be  p«aid  by  such  person  or 
c»:'Tp<ration  to  the  highway  board  in  full  di5»:harge  of  all 
claims  thereafter  in  resp^ect  of  the  repair  and  maintenance 
of  sneh  highway."  By  the  Highway  Act,  1864,  27  4  28 
Tict.  c,  101,  s.  24,  the  Highway  Board  may  apply  under 
the  above  section  for  the  same  pnTjK)se. — The  Local 
Government  Act,  IS-SS,  «,  97,  e3rpressly  provides  that 
"  nothing  in  this  Act  with  req)eet  to  main  roads  ^lall  alter 
the  liability  of  any  person  or  body  of  p)eTSDns,  corporate 
or  nnincorporate,  not  being  a  highway  authority,  to  main- 
tain and  reppair  any  road  or  pjart  of  a  road  "  (i). 

Be:>air  ci  Bridges  in  highways  are,  as  regards  the  public  use,  pwurt 

of  the  highway;  but  as  regards  rep)air,they  are  at  common 
law  charged  presumpjtively  upon  the  inhabitants  of  the 
county,  and  not,  with  the  rest  of  the  highway,  up)on  the 
jKirish*  By  immemorial  custom  the  inhabitants  of  a  ipar- 
ticular  district  within  the  county,  as  a  hundred,  riding, 
city,  borough,  township  or  pxarish,  may  be  bound  to  reppair 
thebridges  within  such  district  (7").  A  p>articular  p>erson  or  a 
body  corporate  may  be  bound  to  repwur  a  bridge  by  reason 
of  the  tenure  of  lands  or  tenements  to  which  the  repair  is 

(h)  See  Highwsy  Act,  1864, 8.  23.  {j)Aaio  what  are  county  loidgei, 

(i)  See  antr,  p.  525.  aoepe§t,  p.  536. 


CHAP.  IV.    HIGHWAYS.  531 

incident ;  and  a  body  corporate  may  be  bound  to  repair  by 
prescription  only.  But  the  liability  ^r«/w4/ac/>  lies  upon 
the  county,  who  can  discharge  themselves  only  by  proving 
that  some  other  district  or  person  is  liable  for  the  re- 
pair {k). 

The  Statute  of  Bridges,  22  Hen.  VIII.  c.  5,  entitled  "An  Statute  of 
Act  concerning  the  amendment  of  Bridges  in  Highways,"  ^"*^«^- 
after  reciting  that  "  in  many  parts  of  this  reahn  it  cannot 
be  known  and  proved  what  himdred,  riding,  city,  borough, 
town,  or  parish,  nor  what  person  certain  or  body  politic, 
ought  of  right  to  make  such  bridges  decayed ;  by  reason 
whereof  such  decayed  bridges  for  the  most  part  lie  long 
without  any  amendment,  to  the  great  annoyance  of  the 
king's  subjects;"  for  the  remedy  thereof  enacts,  "that  in 
every  such  case  the  said  bridges,  if  they  be  without  city  or 
town  corporate,  shall  be  made  by  the  inhabitants  of  the 
shire  or  riding  within  which  the  said  bridge  decayed  shall 
happen  to  be ;  and  if  it  be  within  any  city  or  town  corpo- 
rate, then  by  the  inhabitants  of  every  such  city,  or  town 
corporate,  wherein  such  bridges  shall  happen  to  be."  And 
if  part  of  any  such  bridges  happen  to  be  within  the  limits 
of  one  shire,  riding,  city,  or  town  corporate,  and  part  with- 
out, the  inhabitants  shall  be  charged  to  repair  such  part  as 
is  within. 

This   statute  is  declaratory  of  the  common  law,  and  Constraction 
creates  no  new  liabilities ;  it  applies  only  to  counties  and  s^tute, 

to  cities  and  boroughs,  which  are  liable  to  the  repair  of 
bridges  by  common  law  or  by  custom,  with  the  consequence 
of  imposing  upon  them  any  public  bridge  within  their 
limits  of  which  it  cannot  be  known  or  proved  what  person 
certain  is  to  make  the  repair.  Therefore,  where  by  the 
extension  of  a  borough  a  bridge  was  brought  within  the 
boundaries,  the  borough  being  imder  no  general  customary 
liability  to  repair  bridges,  it  was  held  that  the  statute  had 

(k)  2  Co.  Inst.  700 ;  The  King  t.  King  y.  Send&n,  4  B.  &  Ad.  628. 
Wett  Siding,  6  Barr.  2594 ;  Ths  As  to  repair  rtUione  Unura,  see  anUf 
King  y.  Salop,  13  East,  97 ;   The      p.  528. 

M  M  2 


532  rSBS  AND  PROFITS  IN  LAND  OF  ANOTHER. 

no  opefadon,  and  the  liability  remained  fixed  upon  the 
oonntr,  although  the  extended  borough  was  withdrawn 
from  the  county  rate  (/). — ^The  word  "riding"  in  the 
statute  is  not  restrained  to  districts  called  by  that  name, 
but  includes  any  division  of  a  county  which  corresponds  to 
a  riding  ^^w).  The  county  of  a  town  created  by  charter  is 
a  **  shire''  within  the  Act,  and  liable  to  the  repair  of  public 
bridges,  to  the  exclusion  of  the  liability  of  the  county  from 
which  it  was  taken  (n). 

Kew  briajpes.  «  None  can  be  compelled  to  make  new  bridges,  where 
neT«p  any  were  before,  but  by  Act  of  Parliament "  (o). 
And  the  liability  of  the  county  to  repair  bridges  does  not 
extend  to  the  making  of  a  bridge,  where  there  was  none 

^Mttolaew  before  yp^.  "If  a  man  make  a  bridge  for  the  common 
gvxxi  of  all  the  subjects,  he  is  not  bound  to  repair  it ;  for 
no  jvuticular  man  is  bound  to  reparation  of  bridges  by  the 
common  law,  but  rafione  fenune  or  prtp&cnpfionis  ;*'  but  if 
it  is  afterwards  used  by  the  public,  it  becomes  a  public 
bridge,  and  repairable  at  common  law  by  the  county  {g). 
Thuss  when^  the  inhabitants  of  a  township  built  a  carriage 
bridge  over  a  ford«  where  there  was  before  only  a  foot 
bridge  repairable  by  the  township,  and  the  public  always 
afterwards  used  the  bridge,  it  was  held  that  the  county 
was  boimd  to  re^vur  it  as  a  carriage  bridge,  the  township 
remaining  liable  ptv  mfd  for  the  repair  of  it  as  a  foot 
bridge  ^r).  So  where  a  public  footbridge  was  added  to 
an  ancient  carriage  bridge  which  was  repairable  rafione 
tttiunry  the  county  was  held  liable  for  the  repair  of  the  foot 

;r  Om*  9/  Bridf^  13  Co.  33;  of  the  oomiiKm  Imw,  2  Co.  Inst.  29 ; 

rw  UMm  T.  St^  Amuw,  T  Q.  B,  and  see  3  tdlotf  t.  AUetu  1  B.  &  S. 

»*»•  916;  31  L.  J.  Q.  B.  48. 

(•.^  Tkt  Q^tem  t.  f  .>,  15  Q.  B.  {p)  littledale,  J.,  IH#  Jum#  t. 

S27  ;  19  L.  J.  M.  223.  iVrow,  4  B.  &  C.  680. 

(m)    TA*   Qium  T.   SomtA^tmpim^  \^tf\  2  Inst.  701. 

L.ILl7Q.B.D.424;6oL.J.M.  (r)  Tks  Kimf  r.    Wat  Mi^mf,! 


^^'  East,  353,  n.  (a) ;  and  see  7^ , 

(o)  2  Co.  Insl.  701 :  eee  Hagna      t.   West  Midimm^  5  Bmr.  2694 :  2 
Carta,  22  Ed.  I.  e.  15,  declantoz7      W.  Black.  685. 


CHAP.  IV.    HIGHWAYS.  533 

Iridge  (»).  Where  a  person  for  his  own  benefit  built  a  mill 
and  a  bridge,  where  before  there  was  a  public  ford,  so 
that  the  public  of  necessity  used  the  bridge  instead  of  the 
ford,  it  was  held  that  the  county  and  not  the  miUowner 
was  bound  to  repair  (t).  Where  the  owner  of  a  public 
ferry  built  a  bridge  in  place  of  the  ferry,  which  became  by 
use  a  public  bridge,  upon  the  bridge  being  afterwards  re- 
moved by  the  owner  of  the  ferry,  the  county  was  held 
bound  to  rebuild  it  (w). 

If  a  new  bridge  is  not  of  public  utility,  it  may  be  re-  Conditions 
moved  as  a  nuisance ;  but  if  acquiesced  in  and  used  by  the  ^^^^  ^ 
public,  though  not  of  absolute  necessity,  it  is  presimied  to 
be  of  public  utility  and  becomes  a  public  bridge ;  and  as 
such,  it  is  thereupon  chargeable  upon  the  ooimty  at  com- 
mon law,  without  any  formal  act  of  acceptance  (r). — But  Satiaf action 
now  by  43  Geo.  III.  (1803),  c.  59,  s.  5,  "for  the  more  ^^5^ 
clearly  ascertaining  the  description  of  bridges,  hereafter  to 
be  erected,  which  inhabitants  of  counties  shall  be  liable  to 
repair  and  maintain,"  it  is  enacted  "  that  no  bridge  here- 
after to  be  erected  or  built,  by  or  at  the  expense  of  any 
private  person  or  persons,  body  politic  or  corporate,  shall 
be  deemed  to  be  a  county  bridge,  which  the  inhabitants  of 
any  county  shall  be  liable  to  repair,  unless  such  bridge 
shall  be  erected  in  a  substantial  and  commodious  manner, 
under  the  direction  or  to  the  satisfaction  of  the  coimty 
surveyor"  (if). — This  enactment  only  applies  to  bridges 
newly  erected  or  built  after  the  passing  of  the  Act ;  and 
the  widening,  or  improving,  or  even  rebuilding  since  the 
Act  of  a  bridge  existing  before  does  not  bring  it  within 
the  Act  (a;).     The  satisfaction  of  the  above  condition  is 

(«)  The  King  t.  Middlesex^  3  B.  BeeThs  Queen  y.  Southampton^  L.  B. 

&  Ad.  201.    Seean^,  p.  521.  17  Q.  B.  D.  424 ;  56  L.  J.  M.  112 ; 

(0  The  King  y.  Kent,  2  M.  &  S.  19  Q.  B.  D.  590. 

513.  (w)  See  the  Highway  Act,  1878, 

(«)  The  King  v.  Bueke,  12  Eaat,  41  &  42  Vict.  c.  77,  as.  21,  22. 

192.  W  The  King  v.  Laneoihire,  2  B. 

(v)  The  King  v.  Weet  Riding^  2  &  Ad.  813;  The  King  y,  Devonshire, 

East,  342 ;  Abbott,  G.  J.,  The  King  5  B.  &  Ad.  383. 
y.  Netherthong,  2  B.  &  Aid.  183. 


of 


5^A  r«I3  AXD  TMOTTTS  tS  UkSD  OF 

nrx  or-E^r-IiiiTe  Tij<a  tii^  oTTHitT,  ucless  the  bridge  is  also 
of  p-i\Ii:-  TLtilitT  and  ai  rt^l  by  the  inhabitants  ij/). 

The  oicintT  at  comm-n  law  are  bound  to  repair  and 
p-.A-r.^ATTi  a  piVlio  bri*l^  in  the  state  in  which  it  was  built 
and  be»:aiiie  pn&Iio  :  tni  it  is  said  that  '*  as  a  cotrnty  is  not 
b:'iiid  to  n::kke  a  bri'ige,  it  is  not  Vjiind  to  widen  one, 
b^itiase  the  a.iiition  fc^rond  the  existing  width  would  be 
pro  Unto  a  new  bri'ige"  -■.  Xow  bv  the  statute  43 
Geo.  TTT,  c,  -30,  after  re«:iting  that  "  doubts  have  arisen 
how  jEar  the  said  inhabitants  are  liable  to  improve  such 
bridges  when  thev  are  not  sufficiently  commodious  for  the 
public,"  it  is  enacted  s.  2;  that  justices  in  quarter 
fieseions  may  *'  opler  such  britlges  to  be  widened,  improved, 
and  made  commodious  for  the  public,"  and  if  neeessaiy 
"  order  the  same  to  be  rebuilt,  either  on  the  old  site,  or 
on  any  new  one  more  convenient  to  the  public";  and 
power  is  given  for  the  purchase  of  land  for  the  purpose. 

Bridges  boili        "Where  statutory  power  is  given  to  a  person  or  corporate 

2J|^[gg^  body  to  make  a  bridge  to  carry  a  public  highway,  for  their 

own  private  purposes,  it  may  be  an  express  or  implied 

condition  of  the  exercise  of  their  power  that  they  maintain 

and  repair  the  bridge ;  and  in  such  case  though  the  public 

necessarily  use  the  bridge,  there  is  no  liability  resulting 

Canalbridges.  upon  the  county  or  district  for  the  repair ;    as  where  a 

canal  company  or  navigation  commissioners  are  empowered 

by  statute  to  cut  through  a  highway,  thereby  rendering 

a  bridge  necessary  to  carry  the  road  (a). — ^In  the  ease  of 

Kaflwsy  railways  crossing  highways,  it  is  enacted  by  the  Bailway 

^^«^'  Clauses  ConsoKdation  Act,  8  Vict.  c.  20,  s.  46,  that  either 

the  road  shall  be  carried  over  the  railway,  or  the  railway 

shall  be  carried  over  the  road,  by  means  of  a  bridge,  of  the 

construction  provided  in  ss.  49 — 52;   "and  such  bridge, 

(y)    The   Queen   v.    Southampton,  land  ▼.  The  King,  3  B.  &  P.  854. 
L.  B.  17  Q.  B.  D.  424  ;  56  L.  J.  M.  (a)  The  King  v.  Zindaey,  14  East, 

112.  317  ;  The  Kinq  v.  Kerrieon,  3  M.  & 

(z)  The  King  v.  Devon,  4  B.  &  C.  S.  526  ;  The  Queen  v.  Ely,  16  Q.  B. 

679 ;  ante,  p.  526 ;  but  see  Cumber-  827 ;  19  L.  J.  M.  223. 


CHAP.  IV.    HIGHWAYS,  635 

with  the  immediate  approaches,  and  all  other  necessary 
works  connected  therewith,  shall  be  executed  and  at  aU 
times  thereafter  maintained  at  the  expense  of  the  com- 
pany." The  roadway  is  part  of  the  bridge  which  the 
company  by  this  section  are  bound  to  make  and  main- 
tain (b). — ^Bridges  built  by  trustees  of  a  turnpike  road  Turnpike 
under  an  Act  of  Parliament  are  public  bridges  which  the  ^^^*^^^^S^' 
county  is  bound  to  repair ;  and  the  coimty  may  be 
charged  primarily,  although  the  trustees  may  receive  tolls 
which  are  applicable  to  the  repair  of  the  road  (c).  But 
these  bridges  are  within  the  above  Act  of  43  Geo.  III., 
and  if  bmlt  since  the  Act,  they  are  not  chargeable  upon 
the  county,  unless  erected  in  a  substantial  manner  and  to 
the  satisfaction  of  the  county  surveyor  (d).  By  33  &  34 
Yict.  c.  73,  s.  12,  "Where  a  turnpike  road  shall  have 
become  an  ordinary  highway,  aU  bridges  which  were  pre- 
viously repaired  by  the  trustees  of  such  turnpike  road  shall 
become  county  bridges  and  shall  be  kept  in  repair  accord- 
ingly." 

By  the  Local  Government  Act,  51  &  52  Vict.  o.  41,  s.  3,  Transfer  of 
"  There  shall  be  transferred  to  the  council  of  each  county  qou^  ^ 
on    and    after  the  appointed  day   (1   April,   1889,  see  co^moilfl. 
sect.   109)  all  business  done  by  the  quarter  sessions  in 
respect  of  the  several  matters  following,  namely,  (inter  alia) 
(viii.)  Bridges  and  roads  repairable  with  bridges,  and  any 
powers  vested  by  the  Highways  Act,  1878,  in  the  county 
authority." — By  sect.  6,  "  The  coimty  council  shall  have 
power  to  purchase  or  take  over  on  terms  to  be  agreed  on, 
existing  bridges  not  being  at  present  county  bridges,  and 
to  erect  new  bridges,  and  to  maintain,  repair,  and  improve 
any  bridges  so  purchased,  taken  over,  or  erected." — ^And 
by  sect.  11,  "  every  road  in  a  county  which  is  for  the  time 

{b)  Bury  v.  Lancashire  ^  T.  -By.,  shire,   4  B.  &  0.   196.      See   Th^ 

L.  R.  20  Q.  B.  D.  486 ;  67  L.  J.  King  v.  Lancashire,   2  B.  &  Ad. 

Q.  B.  280.  813. 

(«?)  The  King  v.   West  Riding,  2  {d)  The  King  ▼.  Derbyshire,  3  B. 

East,  342 ;    The  King  v.  Oxford-  &  Ad.  147, 


636 


USES  AND  PROFITS  IN  LAND  OF  ANOTHER. 


What  are 

oowaty 

bridges. 


Approaches 
to  bridges. 


being  a  main  road,  inclusive  of  every  bridge  carrying  such 
road,  if  repairable  by  the  highway  authority,  shall,  after 
the  appointed  day,  be  whoUy  maintained  and  repaired  by 
the  council  of  the  county ;  and  such  council  shall  have  the 
same  powers  and  be  subject  to  the  same  duties  as  a  high- 
way board,  and  may  further  exercise  any  powers  vested  in 
the  council  for  the  purpose  of  the  maintenance  and  repair 
of  bridges,  and  the  enactments  relating  to  highways  and 
bridges  shall  apply  accordingly  "  (e). 

The  bridges  within  the  common  law  liability  of  the 
county  to  repair  are  such  only  as  carry  a  highway,  whether 
footway,  bridleway,  or  carriage  way,  over  a  river  or  water- 
course ;  there  must  be  "water  flowing  in  a  channel  between 
banks  more  or  less  defined,  although  such  channel  may  be 
occasionally  dry  "  (/) .  A  causeway  over  meadows  occasion- 
ally flooded  with  water,  having  culverts  at  intervals  to  let  the 
water  pass  through  for  the  safety  of  the  structure,  was  held 
not  to  be  a  bridge  repairable  by  the  county  {g).  It  is  not  a 
necessary  condition  of  a  county  bridge  that  it  must  have 
parapets  (h). 

"By  the  common  law,  declared  and  defined  by  the  Statute 
of  Bridges,  22  Hen.  VIII.  c.  5,  s.  9,  it  is  enacted  "  that 
such  part  of  the  highways  as  lie  next  adjoining  to  the  ends 
of  any  bridges  distant  from  any  of  the  said  ends  by  the 
space  of  three  hundred  foot,  be  made,  repaired,  and 
amended,  as  often  as  need  shall  require."  The  liability  of 
the  county  to  repair  extends  to  the  approaches  thus  de- 
fined ;  and  a  new  bridge,  becoming  a  public  bridge,  cames 
with  it  the  same  approaches  repairable  by  the  county  (*). 
But  the  liability  to  repair  approaches  does  not  apply  to 
a  substantive  bridge  situate  within  the  limits  (/). — ^The 
prescriptive  liability  of  a  person  or  corporate  body  to  repair 


t 


(e)  See  aniff  p.  625. 

[/)  Fer  cur.  The  King  v.  Oxford- 
shire,  1  B.  &  Ad.  301.  See  The 
King  v.  Salop,  13  East,  95. 

{g)  The  King  v.  Oxfordshire, 
supra. 


(h)  The  King  v.  Whitney,  3  Ad. 
&  El.  69. 

(t)  The  King  v.  West  Riding,  7 
East,  688 ;  6  Taunt.  284. 

0)  The  King  v.  Levm,  14  East, 
477. 


CHAP.  IV.    HIGHWAYS*  537 

a  bridge  primd  facie  includes  repair  of  the  approaches 
within  the  same  limits  (k). 

By  the  Highway  Act,  5  &  6  Will.  IV.  o.  50,  s.  21,  "  If  Roadway  of 
any  bridge  shall  hereafter  be  built,  which  shall  be  liable  by  "  ^^^* 
law  to  be  repaired  by  and  at  the  expense  of  any  county  or 
part  of  any  county,  then  all  highways  leading  to,  passing 
over,  and  next  adjoining  to  such  bridge  shall  be  from  time 
to  time  repaired  by  the  parish,  person,  or  body  politic  or 
corporate,  or  trustees  of  a  turnpike  road,  who  were  by  law 
before  the  erection  of  the  said  bridge  bound  to  repair  the 
said  liighways :  provided  that  nothing  herein  contained 
shall  extend  to  exonerate  or  discharge  any  county  from 
repairing  the  walls,  banks,  or  fences  of  the  raised  cause- 
ways and  approaches  to  any  such  bridge,  or  the  land 
arches  thereof."  The  effect  of  this  enactment  is  to  throw 
the  repair  of  the  surface  roadway  upon  the  parish,  or  other 
persons  by  law  bound  to  repair  the  highway,  leaving  the 
repair  of  the  structure  upon  the  county  (l).  Bridges 
carrying  a  public  highway  over  or  under  a  railway  are 
required  by  the  Railway  Clauses  Act,  1845,  *'  to  be  exe- 
cuted and  maintained  at  the  expense  of  the  company"; 
and  tmder  this  enactment  the  company  are  bound 
to  repair  the  roadway,  as  well  as  the  structure  of  the 
bridge  {in), 

A  bridge,  which  is  part  of  a  highway,  is  presumptively  Property  in 
the  property  of  the  owner  of  the  soil  on  which  it  stands,  °"^fi^' 
subject  to  the  public  right  of  free  passage  (;?).  But  the 
materials  of  a  public  bridge  may,  by  license  of  the  owner 
of  the  soil,  remain  the  property  of  the  original  owner 
after  building  them  in,  subject  to  the  dedication  to  public 
use ;  so  that  if  afterwards  removed  or  taken  to  pieces,  they 
revert  to  him  in  exclusive  possession  (o). 

Where  there  is  no  bridge  in  a  highway  through  a  river,  Ferry. 

{k)  The  Queen  t.  Lincoln,  8  A.  &  280.     See  ante,  p.  634. 

E.  66.  («)  2  Co.  Inst.  705. 

(/)  The  Queen  y.  Southampton,  L.  (o)  Harrison  v.  Farker,  6  East, 

B.  17  Q.  B.  D.  424.  164.     See  The  King  v.  Bucks,  12 

(m)  Bury  v.  Lancashire  %  Y.  By.,  East,  192.    And  see  ante,  p.  107. 
L.  R.  20  Q.  B.  486  ;  57  L.  J.  Q.  B. 


538  VSES  AND  PROFITS  IN  LAND  OF  ANOTHER. 

it  is  a  prerogatiYe  right  of  the  Crown  to  grant  a  pablic 
ferry  with  charge  of  toll ;  therefore  "  no  man  may  set  up 
a  common  ferry  for  all  passengers  without  a  prescription 
time  out  of  mind  or  a  charter  from  the  king."  The 
grantee  is  bound  '^  to  give  attendance  at  due  times,  keep  a 
boat  in  due  order,  and  take  but  reasonable  toll ;  for  if  he 
fail  in  these  he  is  fineable"  (j^). — The  building  of  a  bridge 
in  place  of  a  ferry  ispi'imd/ade  wrongful  and  actionable, 
as  being  a  disturbance  of  the  ferry ;  and  the  owner  of  a 
ferry  cannot  convert  it  into  a  bridge  without  license 
of  Crown ;  but  the  Crown  may  do  so  by  its  prerogative 
right,  and  the  bridge  so  erected  may  become  a  public 
bridge,  and,  as  such,  repairable  by  the  county  {q). 


§  4.  Remedies  relating  to  Highw^ays. 

Lidictment  for  non-repair — against  Bnryejor  of  highways — against 
highway  authority. 

Action  for  non-repair  against  county  or  parish — against  sDrreyor — 
against  highway  authority — against  person  or  body  corporate. 

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

Indictment  for  nuisance — nuisances  upon  highway. 

Action  for  nuisance — special  damage — action  against  surveyor — against 
local  board — abatement  of  nuisance. 

Summary  remedies  for  nuisances — penalties  for  wilful  obstruction — 
encroachment  on  sides  of  highway — ^removal  of  nuisance. 

Remedy  for  The  ordinary  remedy  of  the  common  law  for  the  repair 
S^^ctoOTt;  ^  of  a  highway  is  by  indictment  at  the  suit  of  the  Crown, 
on  behalf  of  the  public  collectively,  against  the*  inhabi- 
tants of  the  parish,  or  the  person  or  persons  who  are  liable 
for  the  repair.  The  indictment  charges  that  the  road  is  a 
highway,  the  liability  to  repair,  and  the  want  of  repair. 
The  judgment  upon  conviction  is  a  fine ;  which  by  statute 

(p)  Hale  <fe«7'.ifamy  Hargrove's       192;  Payne  y.  Partridge,  1  Show. 
Tracts,  6.     See  ante,  p.  514.  255 ;  S.  C.  Pain  t.  Patrick,  3  Mod. 

{q)   The  King  v.  Btwkf,  12  East,       294, 


CHAP.  IV.    HIGHWAYS. 


639 


is  to  be  applied  towards  the  repair  and  amendment  of  the 
highway  (a).  The  proceeding  being  a  criminal  one  in 
form,  the  Court  cannot  grant  a  new  trial ;  but  the  Court 
may  suspend  all  proceedings  upon  the  judgment,  so  as  to 
give  an  opportunity  for  a  fresh  indictment  to  be  brought  {b). 

An  indictment  for  not  repairing  a  highway  will  not  lie  against:  sur- 
against  the  parish  surveyor  of  highways,  he  being  a  sta-  Jj^hway  • 
tutory  officer  against  whom  special  remedies  are  provided 
by  the  Highway  Acts,  to  the  implied  exclusion  of  any 
other  procedure  (c).     Hence  also  an  indictment  for  not  against 
repairing  a  highway  will  not  lie  against  a  highway  board,  authority, 
or  other  statutory  authority,  who  merely  stand  in  the 
place  of  surveyor  of  highways,  his  duties  and  liabilities 
being  transferred  to  them  by  statutes.     The  indictment 
must  be  brought,  as  at  common  law,  against  the  parish, 
or  Qther  person  or  corporate  body,  who  are  primarily  liable 
to  repair  {d).     But  it  is  held  that  an  indictment  will  lie 
against  a  local  highway  authority  who  dispute  their  lia- 
bility tmder  an  order  for  repairs  made  by  the   county 
authority  under  the  Highway  Act,  1878,  41  &  42  Yict. 
0.  77,  s.  10  {e). 


No  proceedings  by  action  can  be  taken  against  the  Action  for 

inhabitants  of  a  county,  or  parish,  or  district,  or  other  against*"' 

indeterminate  body  of  persons;  because  of  the  uncertain  county  or 

and  fluctuating  character  of  such  persons;   and  because  '  * 

there  is  no  <Jorporate  fund  out  of  which  satisfaction  could 

be  made;  and  because  of  the  public  nature  of  their  duty  (/). 

— ^Nor  can  any  action  for  damages  for  mere  non-repair  against  sur- 
veyor ; 


(«)  2  CJo.  Inst.  701 ;  6  &  6  Will.  IV. 
c.  50,  8.  96. 

(*)  The  King  v.  Wandsworth,  I 
B.  &  Aid.  63 ;  The  King  v.  Sutton, 
6  B.  &  Ad.  52 ;  The  Queen  v.  Dun- 
can, L.  R.  7  Q.  B.  D.  198;  50 
L.  J.  M.  96 ;  per  cur.  The  Queen  v. 
Southampton,  L.  R.  19  Q.  B.  D. 
699;  66L.  J.  M.  118. 

(c)  Per  cur.  The  Queen  v.  Mayor 


of  Toole,  L.  R.  19  Q.  B.  D.  608; 
56  L.  J.  M.  131.    ^>GQpost,  p.  541. 

(rf)  The  Queen  v.  Mayor  of  Poole, 
eupra  ;  per  cur.  Loughborough  High- 
way Board  v.  Curzon,  L.  R.  16  Q. 
B.  D.  670;  65  L.  J.  M.  122. 

{e)  The  Qtteen  v.  Wakefield,  L.  R. 
20  Q.  B.  D.  810 ;  57  L.  J.  M.  62. 

(/)  Russell  V.  Men  of  Devon,  2 
T.  R.  667. 


540 


USES  AND  PROFITS  IN  LAND  OF  ANOTHER. 


against 

highway 

authoritj. 


Action 
against 
person  or 
corporate. 


of  the  highway  be  brought  against  a  surveyor  of  highways 
appointed  by  the  parish  under  the  HSghway  Acts;  the 
surveyor  being  substituted  for  the  parish  by  tlie  statute 
merely  for  the  more  convenient  performance  of  the  duty 
of  the  inhabitants,  with  no  new  UabiHty,  and  the  prin- 
cipal not  being  liable  to  such  an  action,  the  surveyor,  as 
agent,  cannot  be  made  liable  (g).  The  statute  43  Geo.  III. 
c.  59,  s.  4,  which  provides  that  the  inhabitants  of  a  county 
may  be  sued  in  the  name  of  their  surveyor  does  not  give 
any  such  action ;  the  intention  of  the  statute  being  only 
to  afford  a  more  convenient  remedy  in  cases  in  which  the 
county  would  be  liable,  and  not  to  create  any  new  lia- 
bility (^). — Accordingly  it  is  held  that  no  such  action 
will  lie  against  a  vestry  incorporated  under  the  Metropolis 
Local  Management  Act,  18  &  19  Vict.  c.  120,  in  whom 
are  vested  all  the  powers  and  duties  of  the  surveyor  of 
highways  (t).  And  no  such  action  will  lie  against  a  local 
board  of  health,  constituted  imder  the  Public  Health  Acts, 
which  place  the  board  in  the  position  of  the  surveyor  of 
highways,  over  all  "  streets"  or  "  highways  repairable  by 
the  inhabitants"  (j).  But  the  surveyor  of  highways  or 
highway  authority  appointed  by  statute  may  be  liable  to 
an  action  lor  damages  caused  by  an  actual  obstruction  or 
nuisance  created  or  placed  upon  the  highway  by  them,  or 
by  their  servants,  or  by  their  order  (k). 

But  against  a  determinate  person  or  body  corporate 
-^^  under  liability  to  repair  a  highway,  as  in  the  case  of  a 
person  bound  to  repair  ratione  tenurcBy  or  a  corporate  body 
under  liability  for  repair  by  charter  or  by  statute,  an 
action  will  lie  for  non-repair,  so  far  as  to  recover  special 
damage  sustained  by  an  individual,  over  and  above  the 


(^)  Young  V.  Davis,  2  H.  &  G. 
197  ;  31  L.  J.  Ex.  260. 

{h)  McKinnon  v.  Fenton,  9  Ex. 
609  ;  23  L.  J.  M.  97. 

(t)  Parsons  v.  St,  MathetOy  Beth- 
nal  Green,  L.  R.  3  C.  P.  56;  37 
Ij.  J.  C.  P.  62. 


0)  11  &  12  Vict.  c.  63,  88.  68, 

117;  16  &  16  Vict.  c.  42,  s.  13; 
Gibson  V.  Mayor  of  Preston,  L.  R.  5 
Q.  B.  218;  39  L.J.  Q.  B.  131. 

Uc)  Foreman  v.  Canterbury,  L.  R. 
6  Q.  B.  214 ;  40  L.  J.  Q.  B.  138. 
^leQposty  p.  545. 


CHAP.  IV.   HIGHWAYS. 


541 


general  injury  suffered  by  the  public  in  common ;  the 
public  injury  being  matter  for  an  indictment  only  and  not 
a  cause  of  private  action  (/). 

Summary  remedies  for  non-repair  of  a  highway  are  pro-  SuMiary 
vided  by  statute : — By  the  Highway  Act,  1835,  5  &  6  non-repair 
Will.  IV.  c.  50, 8.  94,  "  If  any  highway  is  out  of  repair  the  g^^^r  • 
surveyor  of  the  parish  or  other  person  chargeable  is  liable  to 
a  penalty  upon  conviction  by  justices  of  the  district ;  who 
may  further  order  that  the  repairs  of  the  highway  be  done 
within  a  certain  time,  and  in  default  the  said  surveyor  or 
other  person  shall  forfeit  a  sufficient  sum  of  money  to  be 
applied  to  the  repair."  By  sect.  95,  if  the  obligation  of 
such  repairs  is  denied  by  the  surveyor  on  behalf  of  the 
parish,  or  by  any  other  party  charged  therewith,  the  jus- 
tices are  required  to  direct  an  indictment  to  be  preferred ; 
and  the  judge  before  whom  the  indictment  is  tried  may 
order  the  costs  to  be  levied  out  of  the  highway  rate  (m). — 
By  the  Highway  Act,  1862,  25  &  26  Vict.  c.  61,  ss.  18, 19,  against 
a  similar  remedy  is  provided  against  highway  boards,  in  b<»rd. 
place  of  the  parish  surveyor ;  but  giving  the  power  to  deny 
the  liability  to  repair  to  the  way-warden  of  the  parish  and 
not  to  the  board  or  their  surveyor ;  consequently  the  board 
are  concluded  by  an  admission  of  the  way- warden  (w). 
The  summary  remedy  under  these  statutes  applies  where  a 
highway  is  admitted,  and  the  state  of  repair  and  the  lia- 
bility to  repair  only  are  disputed ;  if  a  bond  fide  question  is 
raised  as  to  the  way  being  a  highway,  there  is  no  jurisdic- 
tion in  justices  to  determine  it  for  the  purpose  of  ordering 
an  indictment  for  not  repairing  (o). 

A  summary  remedy  is  also  given  by  the  Highway  Act, 


{X)  Lyme  JRe^ia  y.  Henley ^  3  B.  & 
Aa.  77;  Sartnally.  Ryde  Commia,, 
4  B.  &  S.  361 ;  33  L.  J.  Q.  B.  39 ; 
Ohrby  y.  Ryde  Commit,,  5  B.  &  S. 
743;  33  L.  J.  Q.  B.  296  ;  per  eur, 
Bathurti  y.  Maepherson,  L.  B.  4 
Ap.  Ca.  269. 

(m)  The  Queen  y.  Ipslones,  L.  R. 
3  Q.  B.  216 ;  37  L.  J.  M.  37 ;  The 


Queen  y.  Zee,  L.  R.  1  Q.  B.  D.  198; 
45  L.  J.  M.  54. 

(w)  Zouahborouffh  y.  Curzon,  L.  R. 
16  Q.  B.  D.  566 ;  55  L.  J.  M.  122. 

(oj  The  Queen  y.  Farrer,  L.  R.  1 
Q.  B.  658 ;  35  L.  J.  M.  210 ;  The 
Queen  v.  Heanor,  6  Q.  B.  746.  See 
llling worth  y.  Bulmer  Highway 
Board,  62  L.  J.  Q.  B.  680. 


542  USES  AND  PROFITS  IN  LAND  OP  ANOTHER. 

Order  of  1878,  8.  10,  providing  that  where  oomplaint  is  made  to  the 

rityto  xepab'  ooimty  authority  that  a  highway  authority  has  made  default 
in  maintaining  or  repairing  any  of  the  highways  within 
their  jurisdiction,  the  county  authority,  after  due  inquiry 
and  report  by  their  sunreyor,  may  make  an  order  limitiBg 
a  time  for  the  performance  of  the  duty  of  the  highway 
authority ;  and  if  such  duty  is  not  performed  by  the  time 
limited,  the  county  authority  may  appoint  some  person  to 
perform  such  duty,  and  order  that  the  expenses  shall"  be 
paid  by  the  authority  in  default.  If  the  highway  autho- 
rity give  notice  that  they  decline  to  comply  with  the  order 
until  their  liability  has  been  determined  by  a  jury,  the 
county  authority  may  direct  an  indictment  to  be  preferred 
against  the  highway  authority  to  try  the  liability  (p).  It 
seems  that  this  remedy  does  not  supersede  the  former 
statutory  remedies ;  and,  from  the  construction  put  upon 
the  former  enactments,  that  it  only  applies  to  admitted 
highways,  and  that  there  is  no  jurisdiction  if  the  existence 
of  the  highway  is  denied  (q).  Under  the  Local  Govern- 
ment Act,  1888,  s.  3,  the  powers  of  the  county  authority 
to  the  same  effect  are  vested  in  the  county  council  (r). 

Indictment  The  public  remedy  for  a  nuisance  upon  a  highway,  other 

ornuiflance.  jtj^q^  mere  non-repair,  is  by  indictment;  the  placing  or 
causing  a  nuisance  upon  a  highway  being  a  misdemeanour 
at  common  law  punishable  by  fine  and  imprisonment. 
Eepeated  indictments  may  be  brought  for  a  continued 
nuisance  on  a  highway ;  and  if  necessary  the  judgment  of 
the  Court  may  order  that  a  nuisance  still  existing  shall  be 
abated  (s).  The  indictment  being  upon  a  criminal  charge, 
there  can  be  no  new  trial  after  an  acquittal  or  conviction ; 
but  the  Court  may  stay  the  judgment  to  give  opportunity 

(p)  The  Queen  y.  Wakefield^  L.  R.  (r)  See  anUy  p.  535. 

20  Q.  B.  D.  810  ;  57  L.  J.  M.  52 ;  («)  The  King  y.  Fafypineau^  Stn. 

mU,  p.  639.  686 ;   The  King  y.  Stead,  8  T.  B. 

{q)  Per  cur,  Loughborough  H,  B,  142 ;  see  The  King  y.  Ineledm^  13 

y.  Cunon.  L.  B.  16  Q.  B.  D.  668,  Eaut,  164. 
573 ;  55  L.  J.  M.  122 ;  mte,  p.  541. 


CHAP.  IV.    HIGHWAYS. 


543 


to  prefer  a  fresh  indictment  {t). — AppKcation  may  also  be 
made  to  the  Court  by  information  in  the  name  of  the 
Attorney-General,  as  plamtiff  on  behalf  of  the  public, 
for  an  injunction  to  restrain  a  nuisance  or  a  threatened 
nuisance  (i/). 

Any  encroachment  upon,  or  obstruction  of  a  highway  NuiBancea 
constitutes  a  nuisance  that  may  be  subject  of  indictment ;  ways, 
but  whether  nuisance  or  not  is  a  question  of  fact,  and  a 
jury. may  find  the  nuisance  charged  so  inappreciable  as  not 
to  render  the  defendant  ciiminally  liable  (v).  A  nuisance 
on  a  highway  cannot  be  justified  upon  the  ground  that  the 
detriment  to  some  of  the  public  is  counter-balanced  by  ad- 
yantages  to  others ;  or  that  on  the  whole  it  is  beneficial  to 
the  public  in  general  (tr). — The  following  nuisances  upon 
highways  have  been  held  to  be  indictable  :  placing  a  gate 
upon  a  highway,  although  not  locked  (x). — ^Ploughing  up 
an  ancient  foot-path ;  but  in  such  cases  the  way  may  have 
been  originally  dedicated  subject  to  the  gate,  or  to  the 
right  of  ploughing  (y), — ^Using  a  highway  in  an  unreason- 
able manner,  as  for  depositing  goods  ;  or  for  standing  car- 
riages for  an  unreasonable  time  or  for  other  purposes  than^ 
reasonable  traffic  (s).  "  The  building  of  a  house  in  a  larger 
manner  than  it  was  before  whereby  the  street  became 
darker  is  not  any  public  nuisance  by  reason  of  the  darken- 
ing," for  which  nn  indictment  could  be  maintained  (a). 
CoUecting  crowds  on  a  highway  to  the  obstruction  of  the 
passage  of   the  public  is  a  nuisance;   and  a  person  is 


(0  I^  Queen  y.  Jtuisell,  3  E.  & 
B.  943;  23  L.  J.  M.  173;  The 
Queen  v.  Johnson^  2  E.  &  E.  613 ; 
29  L.  J.  M.  133;  The  Queen  v. 
Charley,  12  Q.  B.  515;  The  Queen 
Y.  Duncan,  L.  B.  7  Q.  B.  D.  198 ; 
60  L.  J.  M.  95.    See  anU,  p.  539. 

(u)  Att.-Oen,  v.  Shrew»bury,  L. 
R.  21  C.  D.  762 ;  67  L.  J.  C.  746. 
See  Wdllaeey  Loedl  Board  v.  Oraeey^ 
L.  B.  36  G.  D.  693. 

(v)  The  King  y.  Tinddll,  6  A.  & 
£.  143 ;  The  Queen  y.  EmteU,  3  E. 


&  B.  942 ;  23  L.  J.  M.  173. 

{w)  The  King  v.  Ward,  4  A.  &  E. 
384;  AtL'Qen.  y.  Teny,  L.  R.  9 
Ch.  423  ;  disapproving  The  King  y. 
Ruetell,  6  B.  &  C.  566. 

{x)  James  v.  Sagward,  Oro.  Car. 
184. 

{g)  See  ante,  p.  611. 

(«)  Ante,  p.  499  ;  Wilkins  v. 
Day,  L.  R.  12  Q.  B.  D.  110; 
Harrie  v.  Mobbe,  L.  R.  3  Ex.  D.  268. 

(a)  Holt,  O.  J.,  The  King  v. 
Webb,  1  L.  Raym.  737. 


544 


X'SES  AND  PROFITS  IN  LAND  OF  ANOTHEH. 


responsible  for  causing  such  obstruction,  though  he  him- 
self remains  on  private  ground  (a). 


Acti<ni  for 
nuisanoe. 


Special 
damage. 


It  is  a  principle  of  law  that  where  an  indictment  will 
lie  for  a  public  nuisance  there  is  no  remedy  by  action, 
except  for  special  or  particular  private  damage  sustained 
from  it.  Therefore  in  cases  of  nuisance  upon  a  highway 
a  person  who  is  merely  hindered  from  using  the  way  in 
common  with  the  rest  of  the  public  must  proceed  by 
indictment.  But  if  he  sustain  some  special  damage  to 
himself  or  to  his  property,  which  is  not  common  to  others, 
as  by  himself,  or  liis  horse  and  carriage,  being  thrown 
down,  he  has  an  action  to  recover  that  damage  against 
the  person  who  caused  the  nuisance  (6).  Local  highway 
authorities  have  no  greater  power  in  this  respect  than  a 
private  person ;  they  may  proceed  by  indictment,  or  by 
information  in  the  name  of  the  Attorney-General  on 
behalf  of  the  public  for  an  injunction  to  restrain  tiie 
nuisance;  but  they  cannot  bring  an  action  in  their  own 
name,  except  for  some  special  and  particular  damage 
caused  to  them  by  the  nuisance  (c). — The  plaintiJBE  in  such 
action  must  allege  and  prove  some  direct,  particular  and 
substantial  damage,  different  from  that  sustained  by  the 
public  in  general  from  the  destruction  of  the  passage; 
as,  that  the  sale  of  goods  was  lost,  or  that  goods  were 
deteriorated,  by  obstruction  of  the  carriage  (d) ;  that 
additional  expense  was  incurred  in  carrying  goods  by 
another  way  (e) ;  that  the  plaintiff  was  prevented  by  the 
obstruction  from  carrying  his  com,  which  became  damaged 


(a)  Homer  v.  Cadman,  66  L.  J. 
M.  110;  Back  v.  Holmes,  57  L.  J. 
M.  37  ;  ante,  p.  496 ;  and  see  post^ 
p.  646. 

ib)  Co.  Lit.  66  a;  Jveson  v.  Moore, 
1  L.  Rayxn.  486  ;  as  cited  and  ex- 
plained m  Soltau  y.  Le  Held,  2  Sim. 
N.  S.  146 ;  Erie,  J.,  Mieket  v.  Me- 
tropolitan My.,  5  B.  &  S.  161 ;  34 


L.  J.  Q.  B.  269 ;  Benjamin  v.  SUrr, 
L.  R.  9  C.  P.  400  ;  43  L.  J.  C.  P. 
162. 

(e)  JFallasei/  Local  Board  Y.Grveeff 
L.  R.  86  C.  D.  693. 

{d)  Iveson  v.  Moore,  1  L.  Raym. 
486 ;  12  Mod.  262. 

{e)  Bote  Y.  Milee,  4  M.  &  S.  101; 
Oreaely  y.  Codling,  2  Bing.  263. 


CHAP.  IV.    HIGHWAYS.  545 

by  rain  (/) ;  that  caxts  and  horses  were  kept  standing  an 
unreasonable  tune  before  his  business  premises,  whereby 
the  premises  were  rendered  dark  and  unwholesome,  and 
the  access  obstructed,  to  the  loss  of  customers  and  ma- 
terial diminution  of  his  business  (g) .  But  it  is  not  sufficient 
for  the  plaintifE  to  prove  merely  that  he  was  delayed,  in 
common  with  all  other  persons  using  the  way,  by  being 
obliged  either  to  remove  the  obstruction,  or  to  go  by  a 
longer  way(/*). — ^The  action  will  lie  against  a  landlord 
who  lets  premises  with  a  public  nuisance,  as  well  as  against 
the  lessee  who  continues  the  nuisance  (i). 

An  action  for  special  damage  wiU  lie  against  the  sur-  Action 
veyor  of  highways,  or  the  highway  authority  appointed  as  sSveyor ; 
surveyor  of  highways  by  statute,  in  respect  of  an  actual 
nuisance  or  obstruction  caused  by  them,  or  by  persons  in 
their  employment.     Thus  a  local  board,  as  surveyor  of 
highways,  was  held  liable  for  damage   sustained  by  a 
pei^son  falling  over  a  heap  of  stones  placed  in  the  highway 
by  their  servants  (j). — ^Local  boards  may  also  be  liable  for  against 
damages  caused  by  the  defective  and  dangerous  state  of 
sewers,  watercourses,  gratings,  toaps,  ^d  any  other  artificial 
constructions  vested  in  them  in  their  various  capacities, 
which  are  placed  or  left  in  the  highway  so  as  to  be  a 
nuisance  to  the  public  (k). 

The  same  principle  applies  to  the  abatement  of  a  nuis-  Abatement 
ance  by  act  of  the  party.    "An  individual  who  is  only  ^  ^^^^^^^' 
injured  as  one  of  the  public  can  no  more  proceed  to  abate 
than  he  can  bring  an  action."     But  "  a  public  nuisance 
becomes  a  private  one  to  him  who  is  specially  and  in  some 

(/■)  Maynell  v.  Salimarsh,  1  Keb.  {k)  White  v.  Hindley  Loc.  Boards 

847.  L.  R.  10  Q.  B.  219 ;  44  L.  J.  Q.  B. 

{ff)  Benjamin  v.  Storr,  L.  R.  9  1 14 ;  Blackmore  y.  Mile  End,  L.  R. 

C.  P.  400;  43  L.  J.  C.  P.  162;  9  Q.  B.  D.  451;  61  L.  J.  Q.  B. 

Fritz  V.  Eobwn,  L.  R.   14  C.  D.  496 ;  Kent  v.  Worthing  Lae,  Boards 

b^'l ;  49  L.  J.  C.  321.  L.  R.  10  Q.  B.  D.  118;  52  L.  J. 

(A)  Winterbotham  v.  Derby ^  L.  R.  Q.  B.  77  ;  Bathurst  v.  Macpheraon, 

2  Ex.  316 ;  36  L.  J.  Ex.  194.  L.  R.  4  Ap.  Ca.  256.    As  to  tram- 

(t)  Sandfordy,  Clarke^  L.  R.  21  ways,   see    Howitt  y.   Nottingham 

Q.  B.  D.  398.  Tramway  Co.,  L.  R.  12  Q.  B.  D. 

(J)  Foreman  y.  Canterbury,  L.  R.  16;  63  L.  J.  Q.  B.  21. 
6  Q.  B.  214 ;  40  L.  J.  Q.  B.  138. 

1..  N  N 


546 


USRS  AND  PROFITS  IN  LAND  OP  ANOTHER. 


particular  way  inconvenienced  thereby,  as  in  the  case  of  a 
gate  across  a  highway  which  prevents  a  traveller  from 
passing,  and  which  he  may  therefore  throw  down"(i). 
A  person  can  abate  an  obstruction  to  a  way  only  when  it 
is  necessary  for  him  to  use  the  part  of  the  way  that  is 
obstructed ;  he  is  not  justified  in  destroying  the  obstruction, 
if  he  can  conveniently  pass  without  doing  so  (/). 


Snnuxiaiy 
remedies, 
penaltiee  for 
wilful  ob- 
stmction. 


Summary  remedies  against  nuisances  are  given  by  the 
Highway  Act,  1835,  5  &  6  Will.  IV.  c.  60 :— Sect.  72 
imposes  a  penalty,  if  any  person  shall   do  any  of  the 
specified  acts  of  injury,  damage,  or  annoyance  upon  a 
highway,  which  are  particularly  mentioned  therein,  or  in 
general  terms,  "  if  any  person  shall  in  any  way  wilfully 
obstruct  the  free  passage  of  any  highway."    Omitting  to 
remove  an  obstruction  may  be  a  wilful  obstruction  within 
this  section ;  as  where  a  wall  fell  into  the  highway  and 
the  owner    after  notice  left  it  there  {m).      And  for  a 
surveyor  of  highways  in  repairing  a  road  to  leave  stones 
upon  it  at  night  insufficiently  fenced  and  lighted  was  held 
to  be  within  the  section  (»).     But  suffering  trees  to  grow 
over  the  adjacent  highway  was  held  not  to  be  a  wilful 
obstruction  within  the  section ;  though  it  may  be  matter 
of  indictment  (o).    A  crowd  of  persons  standing  upon  a 
highway,  or  upon  any  part  of  a  highway,  are  an  obstruction 
to  the  free  passage ;  and  a  person  collecting  or  causing  such 
a  crowd  may  be  convicted  of  a  wilful  obstruction,  and 
though  he  was  not  himself  upon  the  highway  {p).    A 
person  who  being  upon  private  ground  adjoining  a  high- 


(k)  Per  cur.  Mayor  of  Colchester  v. 
Brookcy  7  Q.  B.  377;  Jeasel,  M.  R., 
Bagshaw  v.  Buxton  Local  Boards  L. 
R.  1  C.  D.  224 ;  46  L.  J.  C.  260 ; 
James  v.  Hayward^  Gro.  Car.  184. 

(/)  Bateman  y.  Bluck,  18  Q.  B. 
870 ;  21  L.  J.  Q.  B.  406 ;  Ditnee  v. 
Teiley,  16  Q.  B.  276 ;  19  L.  J.  Q.  B. 
449 ;  Arnold  v.  Holbrooke  L.  R.  8 
Q.  B.  96  ;  42  L.  J.  Q.  B.  80. 


(m)  Gully  y.  Smithy  L.  R.  12 
Q.  B.  D.  121 ;  63  L.  J.  M.  35. 

(w)  FearrUey  v.  Ormsby,  L.  R.  4 
C.  P.  D.  136. 

(o)  JTalker  v.  Homer,  L.  R.  1 
Q.  B.  D.  4  ;  46  L.  J.  M.  34,  Cock- 
bum,  C.  J.,  dissentiente. 

{p)  Homer  v.  CadmoM,  65  L.  J. 
M.  110;  Back  v.  Holmes,  57  L.  J. 
M.  37.    See  ante,  p.  496. 


CHAP.  IV.   HIGHWAYS.  647 

way  collects  a  crowd  upon  the  highway  is  guilty  of  the 
obstruction  caused  by  it  (q).  The  police  or  any  person 
may  prosecute  the  offender,  notwithstanding  there  is  a 
vestry  or  local  board  having  control  over  the  highway  (r). 

The  Towns  PoUce  Clauses  Act,  1847,  10  &  11  Vict. 
c.  89,  which  is  incorporated  in  the  Public  Health  Act,  1875, 
"  with  respect  {inter  alia)  to  obstructions  and  nuisances  in 
the  streets,  for  the  purpose  of  regulating  such  matters  in 
urban  districts,"  provides  by  s.  28  that  "  every  person 
who  in  any  street,  to  the  obstruction,  annoyance,  or 
danger  of  the  residents  or  passengers,  commits  any  of  the 
following  offences  shall  be  liable  to  a  penalty  hot  exceeding 
forty  shillings  or  may  be  committed  to  prison  for  not  ex- 
ceeding fourteen  days."  The  Act  proceeds  to  enumerate 
the  various  offences,  and  amongst  them  "by  means  of 
any  cart,  carriage,  truck  or  barrow,  or  any  animal,  or 
other  means  wilfully  causes  any  obstruction  in  any  public 
footpath  or  other  public  thoroughfare." 

The  Highway  Act,  1864,  27  &  28  Vict.  c.  101,  s.  51,  Encroach- 
imposes  a  penalty,  "  If  any  person  shall  encroach  by  S^^^way^ 
making  any  bmlding,  or  pit,  or  hedge,  ditch  or  other 
fence,  or  by  placing  any  dung,  compost,  or  other  material 
for  dressing  land,  or  any  rubbish,  on  the  side  or  sides 
of  any  carriage  way  or  cart  way  within  fifteen  feet  of 
the  centre  thereof,  or  by  removing  any  soil  or  turf  from 
the  side  or  sides  of  any  carriage  way  or  cart  way, — ^not- 
withstanding that  the  whole  space  of  fifteen  feet  from  the 
centre  of  such  carriage  way  or  cart  way  has  not  been 
maintained  with  stones  or  other  materials  used  in  forming 
highways"  {a). — The  "  sides"  intended  by  this  enactment 
are  part  of  the  highway,  not  including  any  space  beyond 
the  actual  limits  of  the  highway,  though  such  space  may 
be  within  fifteen  feet  of  the  centre  of  carriage  way.     If 

(g)  Sack  y.  HoJmei,  57  L.  J.  M.  («]   See  the   former   enactment 

37.  agamst  encroachment  of  the  High- 

(r)  Back  v.  Holmes^  supra,  way  Act,  1836,  s.  69. 

N  N  2 


548  USES  AND  PROFITS  IN  LAND  OF  ANOTHER. 

the  highway  extends  beyond,  the  statute  gives  the  special 
protection  of  a  penalty  against  encroachment  only  to  so 
much  as  is  within  fifteen  feet  of  the  centre ;  but  if  the 
highway  does  not  extend  so  far,  the  statute  has  no  appli- 
cation beyond  the  width  of  the  highway  (t). 
Removal  of  By  the  Highway  Aot,  1835,  s.  73,  "If  any  matter  or 

thing  whatsoever  shall  be  laid  upon  any  highway  so  as  to 
be  a  nuisance,  and  shall  not,  after  notice  given  by  the 
surveyor,  be  forthwith  removed,  it  shall  be  lawful  for  the 
surveyor,  by  order  in  writing  from  any  one  justice,  to 
clear  the  said  highway  by  removing  the  said  matter  or 
thing,  and  to  dispose  of  the  same,  and  to  apply  the 
proceeds  towards  the  repairs  of  the  highway " ;  at  the 
expense  of  the  person  who  laid  the  same  upon  the 
highway. — ^Upon  an  application  to  justices  under  this 
section,  they  have  to  determine  the  question  whether  there 
is  a  highway  or  not;  and  their  jurisdiction  is  not  ousted 
where  the  party  charged  is  the  owner  of  the  land  and 
denies  that  there  is  a  highway  over  it(w).  The  sections 
94,  95,  enabling  justices,  when  the  -  liability  to  repair  is 
denied,  to  order  an  indictment,  apply  only  to  admitted 
highways,  and  if  there  is  a  bond  fide  dispute  as  to  the 
existence  of  a  highway,  they  have  no  jurisdiction  (r). — It 
seems  that  after  it  has  been  judicially  decided,  upon  an 
indictment  or  other  legal  proceedings,  that  there  is  an 
obstruction  or  nuisance  upon  a  highway,  the  surveyor  or 
highway  authority  may  lawfully  remove  the  nuisance, 
although  no  special  statutory  authority  be  given  for  that 
purpose  ;  and  the  Court  will  not  restrain  them  in  so  doing 
merely  upon  that  ground  (fr).  A  conviction  by  justices 
of  an  encroachment  on  a  highway  justifies  the  surveyor 

(t)  JSaston  y.  Richmond  Highway  Queen  v.  Toutig,  52  L.  J.  M.  6o. 
Board,  L.  R.  7  Q.  B.  69 ;  41  L.  J.  (t-;  The  Queen  v.  Farrar,  L.  R.  1 

M.  25.     See  Lowen  v.  Kaye,  4  B.  &  Q.  B.  658 ;  35  L.  J.  M.  210.    See 

G.  3 ;  and  see  Tuiill  v.  West  Ham,  ante,  p.  541. 
li.  R.  8  0.  P.  447.    As  to  limits  of  {w)  Jessel,  M.  R.,   Bagshaw  r. 

highway,  see  ante,  p.  493.  Buxton  Local  Board,  L.  R.  1  G.  D. 

(m)  WiUiama  v.  Adams,  2  B.  &  S.  220 ;  45  L.  J.  G.  260. 
312;   31  L.  J.  M.  109.    See  The 


CHAP.  IV.   LOCAL  CUSTOMS,  649 

in  remoying  it,  although  the  conviction  may  be  wrong  (a?). 
But  if  a  highway  authority  order  the  removal  of  a  nui- 
sance upon  their  own  judgment,  without  a  judicial  decision, 
they  do  so  at  their  own  risk  as  to  the  facts  of  there 
being  a  nuisance  and  upon  a  highway;  nor  is  the  sur- 
Teyor  justified  merely  by  the  order  of  the  authority  {y). 


.  Section  II.  Local  Customs. 

liocal  cnBfcoms — custom  and  common  law — custom  and  statute  law — 

custom  and  proscription— local  usages  of  trade. 
Usage  as  evidence  of  custom — immemorial  usage — Prescription  Act. 
Usage  as  of  right. 
Certainty  of  usage  as  to  place-— custom  limited  to  locality — certainty 

of  usage  as  to  persons. 
Certainty  of  usage  as  to  the  rights  created. 
Reasonableness  of  usage — usage  against  law — reasonable  customs — 

usage  repugnant  to  ownership. 
Customs  to  take  profits  of  land — claims  to  profits  by  custom  disallowed 

— profits  subject  to  tolls  or  fees— customs  of  mining. 
Customs  to  take  profits  by  presumed  Crown  grant — no  presumption  of 

statute — customs  under  grant  to  corporation— customs  supported  as 

charitable  uses. 
Customs  of  manors — customary  rights  of  copyhold  tenants— freehold 

tenants — occupiers. 

Custom  is  unwritten  local  law  prevailing  by  usage  in  a  'ijoatl 
certain  district,  as  a  town,  or  parish,  or  manor.  By  custom 
a  local  public  or  class  of  persons,  as  the  inhabitants  of  a 
town  or  parish,  may  be  entitled  to  have  some  use  or  quasi 
easement  of  land :  as  to  have  a  way  over  certain  land  to 
church  or  market ;  or  to  hold  a  fair  or  market  at  a  certain 
place ;  or  lo  take  water  from  a  spring ;  or  to  have  a  water- 
ing place  for  cattle ;  or  to  have  an  exercise  and  recreation 
ground  {a), 

(x)  Keane  v.  Esf/nolds,  2  E.  &  B.  (y)  Mill  ▼.  Hawker,  L.  R.  10  Ex. 

748.  92  ;  44  L.  J.  Ex.  49. 

(a)  ^wpoat,  p.  559. 


550  USES  AND  PROFITS  IN  LAND  OF  ANOTHER. 

Custom  and  Custom  or  local  law,  so  far  as  it  prevails,  displaces  the 
oommonlaw.  common  law,  which  is  the  general  custom  preraQiiig 
throughout  the  realm :  consuetude privat  communem  legem  (h). 
"  A  custom  which  has  existed  from  time  immemorial  with- 
out interruption  within  a  certain  place,  and  which  \&  ceriam 
and  reasonable  in  itself,  obtains  the  force  of  a  law,  and  is, 
in  effect,  the  common  law  within  that  place  to  which  it  ex- 
tends, though  contrary  to  the  general  law  of  the  reahn  "  (c). 
The  general  custom  of  the  realm  or  common  law  is  judi- 
cially noticed  and  administered  by  the  Courts ;  but  local 
custom  is  not  judicially  noticed.  Consequently  it  is  neces- 
sary for  a  party  who  relies  upon  a  local  custom  to  plead  it 
with  particularity,  and  to  prove  it  as  pleaded,  in  order  to 
displace  the  common  law.  For  instance,  the  customs  of 
manors  prevailing  generally  throughout  the  realm  is  com- 
mon law,  presumptively  applicable  in  all  manors ;  but  the 
special  custom  of  a  particular  manor,  in  variance  from  the 
general  custom,  must  be  alleged  and  proved  by  the  party 
asserting  it  {d), — General  public  rights  also  differ  from  the 
local  public  rights  which  exist  by  custom,  in  that  the  former 
are  attended  with  the  remedy  by  indictment,  a  proceeding 
in  the  name  of  the  Crown  on  behalf  of  the  public ;  as  in 
the  case  of  an  obstruction  of  a  highway.  A  private  action 
does  not  lie  for  a  public  right,  except  in  the  case  of  special 
and  particular  damage  happening  to  a  person,  different 
from  the  rest  of  the  public  (e).  But  an  indictment  does 
not  lie  on  behalf  of  a  class  or  section  of  the  public  for  an 
obstruction  of  a  local  right,  which  does  not  affect  the  public 
in  general ;  and  therefore  the  only  remedy  is  by  action, 
which  any  person  who  is  within  the  custom  may  bring  in 
respect  of  his  interest  in  the  right,  and  irrespective  of 
special  or  particular  damage  sustained  by  him  individually. 
Thus,  in  a  case  where  it  appeared  that  the  inhabitants  of  a 

{h)  Lit.  a.  169.  {d)  9  Co.  75^  Combe's etue;  Bui- 

(c)  Fer  cur.  Loekwood  y.  Wood,  6      land  v.  Hilly  L.  B.  2  Eq.  765;  3d 
Q.  B.  64.  L.  J.  C.  439. 

{e)  See  ante,  p.  544. 


CHAP.  IV.  LOCAL  CUSTOMS.  551 

oertain  district  had  by  oustom  a  watering  jplace  for  their 
cattle,  it  was  adjudged  that  any  inhabitant  might  have  an 
action  for  an  obstruction ;  for  otherwise  they  would  be 
without  remedy,  because  such  an  obstruction  is  not  indict- 
able as  a  public  nuisance  (/). 

No  custom,  whether  local  or  general,  can  be  alleged  Cuafcomand 
against  an  Act  of  Parliament,  because  that  is  matter  of 
record.  But  an  Act  which  is  merely  declaratory  of  the 
common  law  is  generally  construed  as  having  no  greater 
force  or  effect  than  the  common  law  which  it  confirms; 
therefore  a  custom  may  be  alleged  against  it.  And  an  Act 
which  is  in  affirmative  terms  only  is  generally  construed  as 
not  taking  away  either  common  law  or  local  customs  {g). 

Custom  and  prescription  are  both  founded  on  usage ;  but  Custom  and 
custom  differs  from  prescription  in  connecting  the  right  ^^^^^^ 
with  the  land  instead  of  with  the  person.  '^  In  the  common 
law  a  prescription,  which  is  personal,  is  always  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.  A  custom,  which  is  local,  is  alleged  in 
no  person,  but  laid  within  some  manor  or  other  place ''  (//). 
— ^Also,  prescription  in  deriving  title  from  a  person  neces- 
sarily implies  an  original  grant  to  some  person  from  whom 
the  title  is  derived ;  and  "  no  prescription  can  have  had  a 
legal  origin,  where  no  grant  could  have  been  made  to  sup- 
port it."  But  custom  in  assigning  certain  uses  of  the  land 
is  subject  to  no  similar  restriction.  It  gives  rights  to  per- 
sons as  belonging  to  a  class  determined  by  their  connection 
with  the  placip,  as  the  inhabitants  of  a  town  or  parish ;  and 
to  persons  so  described,  being  incapable  to  purchase  land,  no 
grant  could  be  made  (t). — ^It  should  be  observed  that  the 

(/)  Wettbury  y.  Fowell,  cited  in  (A)  Co.  Lit.  113  A;  4  Co.  32a; 

Ftneux  ▼-  Hovendm,  Cro.  Eliz.  664 ;  6  Co.  60  h,  Oateteard*8  cote.     See 

and  in  Co.  Lit.  66  a ;  Earrop  v.  ante,  p.   288.     Weetbiuy,   L.  C, 

Hir$i,  L.  R.  4  Ex.  43 ;  38  L.  J.  Hanmer  v.  Chance,  34  L.  J.  C.  416. 

Ex.  1.  (»)  Co.  Lit.  3a;  per  eur.  Lock' 

(0)  Co.  Lit.  113  a,  116  a;  2  Co.  wood  v.  Wood,  6  Q.  B.  64. 
Li0t  200. 


afcs^  «x  r 


iZ'2  T^ES  JLS:D  TW0¥TTS  ES  JJLSD  or  ANOTHER. 

t-2!^  "•rresei  dm  **  is  8c?sj€tiin€siised  in  a  general  meaning 
zi  IT- J  tii±  i»x-iir£«l  ly  long  usage,  vheiher  an  indiTidual 
tfiLr  f  :c:3!i^i  m  grsrt,  or  the  title  of  a  class  of  persons  by 
nst:=i:  iiL*i  r:  is  E?E»>=ssanr  to  examine  the  context  and 
-fr7iz=_>"iz.-:4^  in  zri^  to  asciertain  the  title  designated  as 

L-etl  nHifs  T'jir  TirL..:ii  Ixiil  Tisa^^s  of  poiticiiLir  trades  and  bnsi- 
rritig*  r?w  villi.  e:r.tr:l  cc  n^Ddifr  contracts  and  dealings  in 
tl-r  Tli-ie  -wl-f:^  tiiey  pserail,  are  not  eostomSy  properly 
**:  .*^T-L  1^  ^Li-rills'  the  foTce  of  local  law.  They  deriTe 
tiT-r  lizLi'^g-  '^r.-^x  only  from,  the  parties  contracting 
^li  rrfrT^i:^  *:•  ti'?  Ix«l  usage  of  trade,  and  thereby 
in:''-:Tt.j::kr^g'  tL?  nfa^  into  their  agreement,  unless  they 
errrrfi>  an  intrnnrn  :■:•  the  contrary.  Such  usages  need 
n-r-n  -ir  i-^^r-imsw  b?  nxe-i  and  immemorial;  it  is  sufficient 
if  lirT  iz?r  c^rTt^in  an!  iresamptiTely  known  to  the  paities 
a:  z^  tim^  :f  o:ntr*:-ti^.  Thus,  -'an  agricultural  custom 
n-erC  n:c  Live  scteiiCeri  frc-m  time  immemorial;  but  it 
mnfC  L&Te  jc  :«?iiC«ed  f ex  a  leaskjnable  length  of  time,  and  it 

Fstj-.  w  Tlr  nfc^  nr«?tS5aLry  to  scjport  a  custom  must  haTe  con- 


mr-monau 


ithout  interruption,  and  as 
c  f  ri^rl: :  it  m-ift  ce  c«tain  as  to  the  place,  and  as  to  the 
peis.ns ;  ani  it  most  be  certain  and  reasonable  as  to  the 
sn':  'r^.^-initter.  cr  riiits  abated  T '. 

TTss^  fr:ni  time  irnnemoiiaL  as  in  the  case  of  prescrip- 
ti:n.  di:-f^  fr:zn  the  l-ecinning  of  the  reign  of  King 
Ei  hjiri  I-  A.r.  li-S^^  ' .  .  But  pp>:»f  of  modem  usage  is 
pr>E<;:niTtiTe  CTiien:^  cf  in-i-nnite  e^irliar  existence ;  and 
a  7>^r^^^r  ;;i5;ige  for  tw^iity  years,  unexplained  and  unoan- 
tradiwTai,  is  hell  to  be  suffident  eridence  for  a  jury  to 

•^  S«  nfr/w.X*rrtrw.^T.  Wxdy  C.  P.  D.  129;  47  L.  J.  C.  P.  S31. 
(  Q.  K  tV^.  See  Ijemts  on  Cnntracte^  2iid  ed., 

L.  K.  ::  C.  D.  ^*;    o:  L_  J."  C.  :    Co.  liu  110  J:  percmr.  Jy 

^:.     5^«e  Ifri  x.  Forr,  4  £».*«.       t.  :^-<;:4,  9  A.  4  £.  421. 
1^*;  J-/£'*-^   T.  J^  >,   L.  R  3  ■'  S<o  <ii£r.  p.  2S3. 


CHAP.  IV.   LOCAL  CUSTOMS.  553 

find  the  existence  of  an  immemorial  custom  (n).  The 
presumption  from  modem  usage  may  be  rebutted  by  proof 
of  the  origin  or  non-existence  of  the  custom  within  the 
time  of  legal  memory.  Thus  it  was  held  that  the  claim 
of  a  custom  to  erect  stalls  at  the  Statute  sessions  appointed 
for  the  hiring  of  labourers  could  not  be  supported ;  be- 
cause Statute  sessions  were  first  established  in  the  reign  of 
Edward  III.,  within  legal  memory  (o).  And  it  was  held 
that  a  custom  to  take  toU  upon  goods  sold  in  a  market  did 
not  extend  to  sales  by  sample,  because  sales  by  sample, 
which  are  contracts  for  delivery  of  goods  out  of  the  market, 
are  of  modem  introduction,  and  contrary  to  the  origin  and 
intention  of  markets  {p).  Upon  this  principle  the  pro- 
duction of  a  customary  of  a  tkianor,  compiled  within  the 
period  of  legal  memory,  omitting  the  custom  in  question, 
was  held  to  be  conclusive  against  its  prior  existence  (q). — 
A  presumption  of  continuance  may  be  made  prospectively 
as  weU  as  retrospectively ;  so  that  a  usage  proved  up  to  a 
certain  date  is  presimied  to  continue  until  some  evidence 
appears  to  the  contrary ;  for  mere  non-user,  without  inter- 
ruption of  the  right,  does  not  affect  the  validity  of  a 
custom.  Thus  a  custom  found  by  a  jury  to  have  existed 
till  the  year  1689,  there  being  no  evidence  of  its  abolition, 
was  held  to  continue  an  existing  custom  at  the  date  of 
the  inquiry  (r). 

Customs  are  not  within  the  Prescription  Act,  "for  Freflcription 
shortening  the  time  of  prescription,"  which  provides,  s.  2,  '^^^' 
that  no  claim  to  an  easement,  after  an  enjoyment  of  twenty 
years,  shall  be  defeated  by  showing  only  that  it  was  first 
enjoyed  at  any  time  prior  to  such  period  of  twenty  years ; 
for  the  section  is  construed  to  apply  only  to  easements 
strictly  so  called,  which  are  claimed  in  right  of  a  dominant 

(fi)   The  King  r.  JoHffe,  2  B.  &  C.  {q)  Anglesey  r.  Sat  her  f  on,  10  M. 

64  ;  see  Shepherd  v.  Fayne,  16  C.  B.  &  W.  218  ;  Portland  v.  JJiii,  L.  R. 

N.  S.  132  ;  33  L.  J.  C.  P.  168.  2  Eq.  765  ;  36  L.  J.  C.  439. 

{o)  Simpson  v.    IFeiis,    L.   R.  7  (r)  Scales  v.  Key,   11  A.  &  E. 

Q.  B.  214  ;  41  L.  J.  M.  106.  819. 

{p)  milY.  Smilh,4Tfi\int.  620. 


554  USES  AND  PROFITS  IN  LAND  OF  ANOTHER. 

over  a  servient  tenement  (r).  Nor  are  cnstoms  within 
sect.  6  of  the  same  Act,  which  provides  that  ''no  presump- 
tion shall  be  allowed  in  support  of  any  claim,  npon  proof 
of  the  enjoyment  of  the  right  claimed  for  any  less  period 
of  time  than  for  snch  period  mentioned  in  the  Act  as  may 
be  applicable  to  the  case"  («). 

XJaage  aa  of         «  Eqnally  in  the  case  of  custom  as  in  that  of  preecrip- 
'  tion,  long  enjoyment,  in  order  to  establish  a  right,  must 

have  been  '  as  of  right  * ;  and  therefore  neither  by  violence, 
nor  by  stealth,  nor  by  leave  asked  from  time  to  time"  (f). 
Thus  a  claim  of  custom  against  the  owners  of  a  fishery, 
for  the  inhabitants  of  the  place  to  have  a  licence  to  fish  npon 
payment  of  a  customary  fee,  was  held  bad ;  because,  the 
fishing  being  by  licence,  there  had  been  no  such  enjoy- 
ment as  of  right  as  would  support  a  custom  (a). — ^An  im- 
memorial usage  proved  in  fact  must  be  presumed  to  be 
rightful,  if  it  be  reasonably  possible  for  it  to  have  had 
a  legal  origin ;  but  if  such  presumption  be  contradicted  by 
the  facts  proved,  or  be  otherwise  unreasonable,  the  proved 
usage  may  be  accounted  for  by  the  forbearance  of  the 
servient  owner,  who  may  have  allowed  the  usage  without 
interruption  knowing  that  it  could  not  grow  into  a  right ; 
until  some  change  of  circumstances,  such  as  an  extension 
of  the  usage,  or  an  increase  of  the  value  of  the  property 
affected,  may  make  it  necessary  for  him  to  resist  {v). 

Certainty  of         The  usage  must  be  defined  with  certainty  as  to  the 

iifiaflre  as  to  ^  ,  . .  .■,  .  .  ■, 

place.  place  where  it  prevails ;  as  a  county,  a  parish,  a  manor,  a 

town  or  borough.    "  A  custom  cannot  be  alleged  generally 
within  the  kingdom  of  England ;  for  that  is  the  common 

(r)  Mounsey  v.  Ismay,  3  H.  &  0.  C.  P.  486;   36  L.  J.  C.  P.  217. 

486 ;  34  L.  J.  £x.  62.     See  ante.  And  see  an(ey  p.  292. 

p.  286.  M  Fer  eur.  Saltaah  y.  Ooodman, 

(«)  Hanmer  y.  Chance,  4  D.  J.  L.  R.  5  C.  P.  D.  451 ;  Goodman  y. 

&  S.  626;  34  L.  J.  C.  413.    See  Saltash,  L.  B.  7  Ap.  Oa.  633;  52 

ante,  p.  301.  L.  J.  Q.  B.  193  ;  Mivert  y.  Adamt, 

{t)  See  ante,  p.  287.  L.  B.  3  Ex.  I).  372 ;  48  L.  J.  Ex. 

(w)  Milla  y.  Colchester,  L.  B.   2  47. 


CHA.P.  IV.   LOCAL  CUSTOMS.  555 

law  "(if).  A  custom  extending  over  the  whole  kingdom, 
though  limited  to  particular  persons,  is  a  general  custom 
or  common  law ;  as  the  custom  of  merchants,  and  of  inn- 
keepers, and  of  carriers,  and  other  general  customs  prevail- 
ing throughout  the  realm.  "  It  has  not  been  usual  for  a 
long  time  to  allude  to  such  customs  in  pleadings,  because 
no  proof  is  required  of  their  existence  ;  they  are  considered 
as  adopted  into  the  common  law,  and  as  such  are  recognized 
by  the  judges  without  any  evidence.  These  are  called 
customs  because  they  only  apply  to  particular  descriptions 
of  persons,  and  do  not  affect  all  the  subjects  of  the  realm ; 
but  if  they  govern  all  persons  belonging  to  the  classes  to 
which  they  relate,  they  are  to  be  considered  as  public 
laws  "(a?). — Custom  has  no  application  beyond  its  local  Custom 
limits;  there  cannot  be  a  custom  in  one  place  giving  ^^^^ 
any  right  or  duty  in  another  place  (y).  Thus  a  copy- 
holder cannot  claim  by  custom  of  the  manor  to  have  com- 
mon in  land  which  is  not  parcel  of  the  manor;  but  he 
must  prescribe  for  such  common  in  the  name  of  the 
lord  (2).  And  there  cannot  be  a  custom  in  a  parish  for 
the  inhabitants  to  repair  the  roads  in  another  parish,  or  to 
have  their  roads,  repaired  by  another  parish  (or).  So  it 
was  held  that  an  alleged  custom  for  the  inhabitants  of  a 
parish  to  exercise  horses  in  a  place  beyond  the  limits  of 
the  parish  could  not  be  supported;  because  "a  custom 
could  not  be  claimed  on  behaU  of  the  inhabitants  of  one 
place  to  be  exercised  and  enjoyed  in  another  and  different 
place  "  (6).  A  claim  of  custom  cannot  be  made  in  respect 
of  a  separate  close  or  tenement  over  another  close,  as  that 
the  occupiers  of  the  one  have  immemorially  used  a  way 
over  the  other ;  such  right  must  be  claimed  by  prescription 
in  the  owner  of  the  fee,  as  an  appurtenance  of  the  tene- 

{w)  Go.  Lit.  110  5.  31  a. 

he)  Fereur.Oifordr.  Tarborough,  {a)  Dawson  v.  Willoughhy,  5  B. 

6  Bing.  164.  &  S.  920 ;  34  L.  J.  M.   37 ;  Th$ 

(y)  6  Co.  61  0,  OaUward*8  case;  Quern  r.  Ardsley^  L.  R.  3  Q.  B.  D. 

per  eur.  The  King  t.  Eeelesfield^  1  256 ;  47  L.  J.  M.  65. 

B.  &  >yd.  360.  (b)  Sowerby  y.  Coleman,  L.  B.  2 

{z)  FoUUm  Y.    Crachroody  4  Co.  Ex.  96 ;  36  L.  J.  Ex.  57. 


namgeBBto 


556  USES  AND  PKOFITS  IH  LAKD  OF  AXOTHXBL 

ment ;  or  it  might  be  claimed  by  the  occupier  as  being  one 
of  inhabitants  all  of  whom  are  entitled  bj  custom  to  use 
the  way  (r). 
Couintj  of  The  usage  must  also  define  and  limit  with  certainty  the 
persons  privil^ed  or  affected  by  it.  '^A  custom  which 
would  comprehend  within  it  all  the  subjects  of  the  Crown 
would  be  bad,  on  the  ground  of  its  amounting  to  the 
conmion  law ''  {d).  Thus,  a  custom  allied  ''  for  all  per* 
sons,  for  the  time  being,  being  in  a  parish,"  to  haye  the 
liberty  of  playing  at  lawful  games  upon  a  certain  dose, 
was  held  bad ;  because  '^  customs  must  in  their  nature  be 
confined  to  individuals  of  a  particular  description,  and 
what  is  common  to  all  mankind  can  never  be  claimed  as  a 
custom ; "  but  such  a  custom  claimed  for  all  the  inhabitants 
of  a  parish  would  be  good  (e).  The  word  ^*  inhabitants" 
is  sufficiently  restrictive;  but  it  has  in  itself  no  further 
definite  meaning,  and  depends  for  explanation  upon  the 
evidence  of  the  usage  (/).  ^^  It  seems  that  a  grant  to  the 
inhabitants  of  a  parish  means  the  inhabitants  of  houses 
within  the  parish,  and  must  be  restricted  to  houses  lawfully 
erected  "  (g),  A  custom  for  the  victuallers  attending  a  fair 
held  at  a  certain  time  and  place  to  erect  booths  for  the 
purpose  of  their  trade  was  held  good,  because  the  generalitj 
of  the  persons  was  sufficiently  limited  by  the  conditions 
of  being  victuallers,  and  of  attending  the  fair  (A).  But  a 
claim  of  a  custom,  for  "  poor  householders  "  residing  within 
a  township  to  cut  and  carry  away  dead  wood,  was  held 
void  for  imoertainty ;  it  being  impossible  to  ascertain  who 
was  entitled  under  the  description  of  "poor"(#).  And 
for  the  same  reason  it  was  held  that  a  custom  for  ^'poor 

{c)  Baker  t,  Brereman,  Cro.  Car.  (^)  Jerael,  M.  H.,  Chilton  y.  Corp. 

418.     Seean^*,  p.  288.  London,  L.   R.   7  C.  D.   744;  47 

(rf)  Per  eur.  Ty»on  v.  Smith,   9  L.  J.  C.  439. 
A.  &  E.  423.  (A)  Tyton  y.  Smith,  9  A.  &  C 

{€)  Fitch   V.  Raichng,  2  H.  Bl.  423.    See  J?/if oorf  v.  Jw/focit,  6  Q. B. 

393.  383. 

(/)  Pereur.TheKingy.Mashiter,  (i)  Selby  v.  Rolntuon,   2  T.  R. 

6  A.  &  E.  163 ;  The  King  v.  Davie,  768.     See  jw)«/,  p.  567. 
6  A.  &  E.  374. 


CHAP.  IT.    LOCAL   CUSTOMS.  557 

parishioners'^  to  glean  in  the  harvest  field  oould  not  be 
maintained  (». 

The  usage  must  also  define  with  certainty  the  rights  or  Certainty  of 
privileges  created  by  the  custom  ;  but  it  is  sufficient  if  the  SSeng^ta 
effect  of  the  usage  can  be  ascertained  with  reasonable  cer-  created, 
tainty,  applying  the  maxim,  cerium  est  quod  cerium  rcddi 
potest.  Upon  this  principle  a  custom  to  take  a  reasonable 
fee  or  toll  is  sufficiently  certain,  though  the  sum  is  not 
fixed  by  the  usage,  but  is  varied  from  time  to  time  accord- 
ing to  the  value  of  money  and  the  circmnstances  of  the 
consideration  rendered ;  and  *'what  shall  be  deemed  in  law 
to  be  reasonable,  shall  be  judged,  all  circumstances  con- 
sidered, by  the  judges  of  the  law,  if  it  come  judicially 
before  them  "  (A-).  Customary  rights  to  be  exercised  upon 
land  between  the  removal  and  re -sowing  of  the  crops  are 
sufficiently  certain  as  to  times  of  beginning  and  ending, 
which  can  be  ascertained  by  all ;  as  in  the  case  of  common 
fields  and  lammas  lands  (/).  An  alleged  custom  of  a 
manor  for  all  tenants  of  collieries  to  sink  pits  and  to  place 
the  earth  and  rubbish  in  heaps  upon  the  land  "  near  "  to 
the  pits,  was  held  void  for  uncertainty,  both  as  to  the  land 
to  be  covered  and  the  time  it  should  remain  so  (;w). 

The  usage  must  be  reasonable  ;  or  rather,  it  must  not  Reaaonable- 
be  unreasonable ;  "  for  whatsoever  is  not  against  reason  °®"  ^  usage, 
may  well  be  admitted  and  allowed "(«).     And  "if  no 
reason  can  be  given  for  the  beginning  of  a  custom,  yet 
non  sequiiur  this  custom  to  be  for  this  cause  unreasonable, 

(J)  Steel  ▼.  Houghton,  1  H.  Bl.  (0  Jewel,  M.  R.,  Jay/wv.  2Vm«i- 

51.  Amkur$t,  L.  R.  6  C.  D.  609;  46 

(k)  Card  v.  Callard,  6  M.  &  S.  L.  J.  C.  718.     See  ante,  p.  340. 

72,  citing  2  Co.  Inst.  222;  per  cur.  {m)  Broadbent  v.*  Wilkt,  Willes, 

MilU  V.  Colchester,  L.  R.  2  C.  P.  360 ;    1    Wile.   63.     See  Boffert  v. 

486 ;  37  L.   J.  C.  P.  278 ;  S.  C,  Taylor,  1  H.  &  N.  706 ;  26  L.  J. 

L.  R.  3  O.  P.  676.     See   Wihon  Ex.  206. 

V.  Hoare,  10  A.  &  E.  236 ;  Lay-  (n)  Lit.  8.  80 ;  Co.  Lit.  62  a  ;  per 

bourn  ▼.  Crisp,  4  M.  &  W.  330.  cur.  The  King  v.  Ecelesfield,  1  B.  & 

Aid.  867. 


658  USES  AND  PROFITS  IN  LAND  OF  ANOTHER. 

and  against  reason  at  tlie  beginning  of  it"  {o).  ''  When 
it  is  said  that  a  custom  is  void,  because  it  is  nnreasonabley 
nothing  more  is  really  meant  than  that  the  unreasonable 
character  of  the  alleged  custom  condusiydj  proves  that 
the  usage,  even  though  it  may  have  existed  immemoriallyy 
must  have  resulted  from  accident  or  indulgence  and  not 
from  any  right  conferred  in  ancient  times  "  {p).  Whether 
an  alleged  custom  is  inadmissible  in  law  as  being  un- 
reasonable is  a  question  of  law  for  the  Court  to  decide 
upon  the  facts  found  (q). 
Usage  against  «  j^  custom  is  not  unreasonable  merely  because  it  is  con- 
trary to  a  particular  maxim  or  rule  of  the  common  law ; 
for  '  consuetudo  ex  certa  causa  rattonabili  usitata  privat 
commutiem  legemy  as  the  custom  of  gavelkind  and  borough 
English  which  are  directly  contrary  to  the  law  of  descent^ 
or  the  custom  of  Eent  which  is  contrary  to  tihie  law  of 
escheats.  Nor  is  a  custom  unreasonable  because  it  is  pre- 
judicial to  the  interests  of  a  private  man,  if  it  be  for  the 
benefit  of  the  commonwealth ;  as  the  custom  to  turn  the 
plough  upon  the  headland  of  another,  in  favour  of  hus- 
bandry ;  or  to  dry  nets  on  the  land  of  another  in  favour 
of  fishing.  But,  on  the  other  hand  a  custom  that  is  con- 
trary to  the  public  good  or  prejudicial  to  the  many  and 
beneficial  only  to  some  particulcu:  person  is  repugnant  to 
the  law  of  reason ;  for  it  could  not  have  had  a  reasonable 
commencement "  (r) ;  as  a  custom  alleged  for  the  in- 
habitants of  a  town  to  maintain  a  nuisance  upon  a  high- 
way (s). — ^But  "no  custom  or  prescription  can  take  away 
the  force  of  an  Act  of  PcurUament "  {t), 

ip)  Coke,  C.  J.,  Hix  ▼.  Gardener ^  cur.  Tyton  v.  Smith,  9  A.  &  £.  421 ; 

2  i^ulsir.  195.  adopted  in  Bradbum  y.  Foley,  L.  R. 

{p)  Ld.  Cranworth,  Jfary.  iSfl/u-  3  C.  P.  D.  135;  47  L.  J.  C.  P. 

bury  y.  Gladstone,   9  H.   L.  692;  331. 

Hatherley,  L.  C,  Warrick  y.  QueenU  (r)  Per  eur,  Tyton  y.  Smith,  9  A. 

Coll,  L.  R.  6  Ch.  722 ;  40  L.  J.  G.  &  E.  421 ;  and  see  Abbott,  C.  J., 

780.     *'  Consueiudo  contra  rationem  The  King  y.  JoUffe,  2  B.  &  C.  59. 

introdueta  potius  ueurpatio  quam  eon-  See  per  eur.  The  King  y.  Mayor  of 

auetudo  appellari  debet,*^     Go.  Lit.  London,  9  B.  &  0.  29. 
113  a.  (<)  Fotcler  y.  Sanders,  Gio.  Jao. 

{q)  Go.  Lit.  66  b,  59  b;  per  eur.  446. 
Belt  y.   Warden,  Willee,  204  ;  per  {t)  Qo.  Lit.  113<i;  see  ante,  p.  651. 


r 


CHAP.  IV.  LOCAL  CUSTOMS. 


559 


According  to  the  above  principles  the  following  customs  Reasonable 
have  been  allowed: — ^A  custom  for  the  inhabitants  of  a 
town  to  walk  or  ride  for  health  and  exercise  over  a  private 
close  of  land  was  supported  as  reasonable  and  valid  {u)y 
also  to  play  all  kinds  of  lawful  games  upon  a  private 
close  (r),  or  to  erect  a  maypole  and  dance  for  recreation  (ir) ; 
also  a  custom  for  the  inhabitants  of  a  parish  to  use  a 
"village  green"  for  exercise  and  recreation  and  for  all  lawful 
sports  and  pastimes  (ip). — ^A  custom  alleged  for  the  inhabit- 
ants of  a  town  to  walk  and  ride  over  a  close  of  arable 
land  for  health  and  exercise  at  '^  all  seasonable  times  in  the 
year,"  was  held  reasonable  and  valid,  being  construed  by 
the  Court  to  mean  all  times  seasonable  for  the  land,  ex- 
cluding the  season  when  the  com  was  growing  (y).  And 
a  custom  alleged  for  inhabitants  to  enjoy  any  lawful 
recreation  upon  certain  land  **  at  all  times  of  the  year " 
was  held  good,  because  imphedly  limited  by  judicial  con- 
struction to  seasonable  times  (z).  The  claim  of  a  custom  ' 
for  the  inhabitants  of  a  city  to  hold  horse  races  upon  a 
close  of  land  on  a  certain  day  in  every  year  was  held  to  be 
maintainable,  whether  the  day  was  in  fact  seasonable  or 
not ;  for  the  usage  being  immemorial,  the  validity  must  be 
determined  with  reference  to  the  state  of  the  land  at  its 
origin,  and  not  at  the  time  of  pleading  (a). — "  The  right 
to  perambulate  parochial  boundaries,  to  enter  private  pro- 
perty for  that  purpose,  and  to  remove  obstructions  that 
might  prevent  this  from  being  done  prevails  as  a  notorious 
custom  in  all  parts  of  England;  but  a  custom  on  that 


(«)  BeU  y.  WardeU,  Willee,  202. 

\v)  Filch  ▼.  EawHnff,  2  H.  Bl. 
394.  See  MilUehamp  y.  Johtuon, 
Willes,  206  b. 

(w)  Abbot  Y.  Weekly,  1  Lev.  176 ; 
Ball  ▼.  Nottingham,  L.  B.  1  Ex.  D. 
1;  46L.  J.  Ex.  60. 

(x)  Forbes  v.  Feelet.  Commisa., 
L.  R.  16  Eq.  61 ;  42  L.  J.  C.  97. 
See  Sammerton  v.  Honey,  24  W.  B. 
603;  cited  L.  B.  17  C.  D.  698. 
And  see  the  Ck^mmonB  Act,  1876, 


39  &  40  Vict.  c.  66,  ae  to  the 
allotment  of  recreation  grounds, 
and  the  preservation  of  puhBcrights 
over  commoDB. 

(y)  Bell  V.  Warden,  WiUes,  202. 
See  Sotcerby  v.  Coleman,  L.  B.  2 
Ex.  96 ;  36  L.  J.  Ex.  69. 

(z)  Sail  V.  Nottingham,  L.  B.  1 
Ex.  D.  1 ;  46  L.  J.  Ex.  60. 

(a)  Mouneey  v.  Ismay,  1  H.  &  G. 
729 ;  32  L.  J.  Ex.  94. 


560 


USES  AND  PROPITS  IN  LAND  OF  ANOTHER, 


U8age  repag- 
nant  to 
ownership. 


occasioti  to  enter  a  partioular  house  which  is  neither  upon 
the  boundary  line,  nor  in  any  manner  wanted  in  the  course 
of  the  perambulation,  cannot  be  supported"  (a). 

A  usage  which  tends  to  deprive  the  owner  of  all  bene- 
ficial use  of  his  property  is  repugnant  and  unreasonable, 
and  therefore  cannot  be  supported  as  a  legal  custom  (6). 
For  this  reason  the  claim  of  a  custom  could  not  be  supported, 
for  the  inhabitants  of  a  parish  to  exercise  and  train  horses 
upon  land,  without  limit  as  to  the  number  of  horses,  or  as 
to  the  time  of  year  (r).  So,  a  custom  claimed  in  a  manor 
for  working  collieries  without  making  compensation  for 
damage  to  the  surface  or  buildings  {d).  And  a  custom 
claimed  to  work  minerals  by  sinking  pits  and  laying 
the  earth  and  rubbish  on  the  land  near  to  the  pits  for  an 
imlimited  time,  was  held  to  be  unreasonable  as  it  might 
deprive  the  tenant  of  the  whole  benefit  of  the  land  {e). 


Customs  to 
take  profits 
of  land. 


It  is  a  general  rule  of  law  that  a  claim  by  custom  to  a 
profit  d  prendre,  that  is,  to  take  some  material  profit  from 
the  land  is  unreasonable  and  void ;  because  the  effect  of 
the  perpetual  use  of  such  a  custom  by  an  indefinite  number 
of  persons,  as  all  the  inhabitants  of  a  place,  would  neces- 
sarily tend  to  the  destruction  of  the  subject-matter  of  the 
custom.  Uses  of  the  nature  of  easements  are  the  only- 
rights  over  land  admissible  as  the  subject  of  custom,  strictly 
so  called.  "A  custom  that  every  inhabitant  of  such  a  town 
shall  have  a  way  over  such  land  either  to  the  church  or 
market,  &c.  is  good;  for  it  is  but  an  easement  and  no 
profit ''(/). — The  prescriptive  title  to  a  profit  k  prendre 
differs  from  a  custom  in  being  vested  in  a  certain  person 
by  whom  it  may  be  released  or  extinguished ;  whereas  "  a 


(a)  Taylor  v.  Devei/,  7  A.  &  E. 
409 ;  Goodday  y.  Michelle  Cro.  Eliz. 
441. 

ib)  Per.  nur.  Hilton  y.  Granville^ 
6  Q.  B.  730. 

(r)  Sowerby  y.  Coleman,  L.  B.  2 
Ex.  9S  ;  36  L.  J.  Ex.  69. 

{d)  JBCiUon  r.  OranviUe^  9upra, 


(«)  Broadbent  y.  Wilket,  WiUes, 
360 ;  Wilket  y.  Broadbent^  1  Wils. 
63 ;  ante,  p.  657. 

(/)  6  Go.  60  b,  GatewanTa  ease  / 
per  cur.  Race  y.  Ward,  4  E.  &  B. 
713;  24  L.  J.  Q.  B.  163;  and 
Rivert  y.  Adatn*,  L.  B.  3  Ex.  D. 
364 ;  48  L.  J.  Ex.  47. 


CHAP.  IV.  LOCAL  CUSTOMS. 


661 


costom  has  no  oertain  person  who  can  extinguifih  it,  for  as 
soon  as  he  who  releases  it  removes,  the  new  inhabitant 
shall  have  it "  {g).  Also  a  prescriptive  title  in  a  person  is 
founded  upon  grant,  and  therefore  extends  to  whatever  is 
grantable  {h) . 

Under  the  above  rule  the  following  claims  of  customs  Claimfl  to 
have  been  disallowed :  a  custom  for  the  inhabitants  of  a  ^om 
town  or  parish  to  take  common  of  pasture  (t) ;  a  custom  dwallowBd. 
for  the  inhabitants  of  a  parish  to  cut  underwood  or  lop- 
wood  for  fuel  (y) ;  a  custom  for  the  inhabitants  of  the 
district  of  an  ancient  forest  to  cut  and  cany  away  brake, 
fern,  heather,  and  litter  {k) ;  a  custom  to  glean  in  the 
harvest  field  (/) ;  a  custom  for  the  householders  of  a  parish 
to  cut  and  pick  up  dead  wood  and  carry  it  away  for  fuel ; 
but  '^  it  might  have  been  otherwise  if  the  claimant  could 
have  stated  that  he  was  possessed  of  a  certain  ancient 
tenement,  and  so  prescribed  in  a  que  estate^  (m).  A 
crown  grant  for  the  inhabitants  in  a  forest  to  gather  dead 
sticks  was  allowed  upon  demurrer,  because  such  a  grant 
might  possibly  take  effect  by  implied  incorporation  of  the 
inhabitants  for  the  purpose  of   the    grant  (w). — By  the  caaimtotake 

1  1.  1  11  jij-i*  minerals. 

same  rule  no  claim  can  be  made  by  custom  to  take  mme- 
rals,  stone  or  any  part  of  the  soil,  from  the  land  of 
another  (o).  A  claim  by  inhabitants  to  enter  a  close  of 
land  to  take  sand  drifted  from  the  sea  shore,  was  held  bad, 
because  the  drifted  sand  had  become  part  of  the  soil  {p). 
A  usage  for  the  inhabitants  of  a  parish  of  taking  gravel 
out  of  another  person's  land  for  the  purpose  of  repairing 


iff)  6  Co.  60a,  Oateward's  eate;  per 
cur,  Att.'Oen.  y.  Mathiat,  4  K.  &  J. 
679 ;  27  L.  J.  C.  766.  See  anUy  p.  366. 

(h)  ^eeanteyf,  281. 

(t)  Gatewardfis  com,  6  Go.  69  b; 
Weekly  y.  Wildmanj  1  Ld.  Bajrm. 
405  ;  Orimitead  y.  Marlowe^  4  T.  R. 
717. 

{J)  divert  y.  Adams,  L.  R.  3 
Ex.  D.  361;  48  L.  J.  Ex.  47; 
ChiltoH  y.  Corp.  London^  L.  R.  7 
C.  D.  736 ;  47  L.  J.  O.  433. 

{k)  See2>«  laWarry.  Miles,  L.  R. 

L. 


17  C.  J).  536 ;  49  L.  J.  C.  490. 

(/)  Sleel  y.  Houghtm,  1  H.  BL 
51 ;  antCf  p.  557. 

(m)  SeU>y  y.  Bobinsofi,  2  T.  R. 
758;  ante,  p.  551. 

(n)  Willingale  y.  Maitland,  L.  R. 
3  Eq.  105 ;  36  L.  J.  C.  64  ;  ChiUon 
y.  Corp,  London,  L.  R.  7  C.  D.  736 ; 
47  L.  J.  0.  433.     Fast,  p.  565. 

(o)  Att.'Oen.  Y,  Mathias,  27  L,  J, 
C.  761. 

{p)  Blewett  y.  Treyonniny,  3  A. 
&  E.  554. 

O  O 


562         rsEs  ASD  FBafiis  nc  i.Ain>  of  A^rontEiu 


tbe  Idg^wBT  cazmot  be  soppoited  as  a  custom,  at  oommoa 
1a  V,  l^caose  it  is  a  pn^  a  prendie ;  nor  can  it  giTe  a  pro- 
scrfrtiTe  li^t.  because  tbe  inhafaitantB,  not  bemg  incorpo- 
rated.  aze  iceaj^ble  of  taking  a  giant  (7).  A  nsage  of 
a^^•^£ra^e  f  :-r  the  tenant  to  pick  and  cany  away  stones  in 
tie  rrxes  of  cdtiTation  was  held  landing  between  land- 
I:r«i  and  teiiant,  in  the  absoiee  of  expreHS  agreement  upon 
the  ni^rtcr;  b:it  sa*:h  nsage  does  not  amoant  to  a  ens- 
t-:ni  prirerly  so  called^  nor  is  the  subject  a  profit  ut 
c.'Vw  *:^.\  b^t  a  piofit  of  the  daoused  premises  (r). — 
A  e:i5tor!i  jlead^d  for  all  the  inhabitants  of  a  parish  to 
ar.gle  and  c&tcii  £sh  in  a  private  water  or  river,  was  held 
lcii.t*e«:4Cie  it  elaim^  a  profit  a  prendre^  and  might  lead  to 
th-e  d^strivti^n  of  the  subject-matter  to  which  it  applied; 
^^jii  a  claim  to  anele  for  and  catdi  the  fish,  withcmt 
c^\'^'r^  a  ^-t  to  cany  them  away,  would  be  equally 
cf^tm.tiv^e  of  the  s*ibjeet-mattar,  and  bad*' («) ;  nor  can 
&i:y  rl^hr  l^  act^oired  by  usage  for  the  public  in  general 
to  h>a  in  private  waters  or  rivers,  navigable  or  non-navi- 
Calle  r  .  So  a  custom  all^^ed  for  all  the  free  inhabitants 
•:f  a  b  r.TiL^h  to  di^lge  for  oysters  in  a  several  fisheiy  of 
the  b:r*::i^h.  wtis  held  bad  ■  u) ;  but  a  grant  of  the  fishery 
cf  oysters  to  the  corporate  boroagh  to  be  taken  and  en- 
j:yed  ly  the  **  free  inhabitants*^  during  certain  times  of 
the  year,  withrnt  stint,  was  held  good,  because  a  profit  k 
prendre  might  f;iss  to  the  borough  by  the  grant,  which 
might  also  f  re^scribe  the  mode  of  enjoyment  by  the  inhabi- 
10  ttke  tanti  r  . — ^A  custom  for  the  inhabitants  of  a  district  to  go 
nr^  n  a  i:I'>:ie  of  land  to  take  water  from  a  natural  stream, 
sj ring,  or  well  may  be  valid;  because,  fiowing  water 


i    \\ - *rr'».> v.3Vi.*>»,  14 C.  B.       44 li.  J.  IL  17  ;  Aarw t.  Suieitr, 
X.  S,  l;    :  S2  L.  J.  C-  P.  240.  L.  B.  9  Q.  B.  D.  162  ;  yeiO 


r.  i  -  T.   Z  ♦.-    L.  R.  21       IkfmuJkin,  L.  &.  8  Ap.  G*.  135. 
C.  D.  i4 ;  oi  L.  J.  C.  V4I :  €%Uj       See  mU.  p,  180. 


p.  f5.     Arid  <iee  «w«  p.  ooi.  ,«    Smiissk  t.  Gmdmtm^  L.  R  7 

*    Caisir^-,   C,  J.,   ii.-cW  r.  Q.  B.  D.  106 ;  50  L.  J.  Q.  B.  SOS. 

l-.^-M*-^^,  4  £.  i:  B.  :U  /  ;  L^-^  >    Gmdmmm  r.  SalUaA,  L.  B.  7 

T.  /  --^  6  C.  B.  <:.  Ap.  Ca.  6S3;  52  Lu  J.  Q.  B.  1«. 

H   /<.i«  r.  .V  A  J.',  4  B.  Jt  S.  See    ££   Frntfrtk^m    Frm   Fuia^ 

^S> :  ?o  L.  J.  M.  CO :  Ei-^r^Ta  L.  B.  36  C.  D.  329;  mud  aee/M<» 

T.  I  wM«u>  L.  B.  10  Q.  b1  ^2 ;  p.  566. 


CHAP.  IVi   LOCAL  CUSTOKS.  563 

no  part  of  the  soil  nor  the  subject  of  property,  the  right 
daimed  is  a  mere  easement  and  not  a  profit  k  prendre  (to). 

It  seems  that  a  custom  for  taking  a  profit  in  alieno  solo  Profits  snb- 
or  for  an  occupation  of  the  soil  may  be  valid,  if  supported  it^feee. 
by  the  consideration  of  a  customary  payment  to  the  owner ; 
as  in  the  case  of  stallage  at  a  customary  fair  for  which  a 
reasonable  toll  is  payable  (;r).  So  with  a  custom  to  fish 
upon  payment  of  a  reasonable  fee,  which  might,  in 
favour  of  ancient  enjoyment,  be  deemed  a  sufficient  re- 
striction on  the  one  hand,  and  satisfaction  or  return  for  the 
profit  taken  on  the  other,  to  make  the  custom  reason- 
able (y). 

A  custom  of  mining,  subject  to  payment  of  toll,  pre-  Castomsof 
Taik  in  the  coimty  of  Cornwall,  which  is  known  as  tin  °"^^fi^* 
bounding.  .  The  custom  is  that  any  tinner,  t.  ^.,  any 
person  employing  himself  in  tin  mining,  may  acquire  to 
himself  the  right  of  mining  for  tin  in  waste  or  uninclosed 
land,  by  marking  out  boundaries  for  his  working,  and 
obtaining  .possession  from  the  Stannary  Court.  He  is 
then  entitled  to  work  the  mine,  rendering  toll  tin,  or  a 
certain  portion  of  the  produce,  to  the  owner  of  the  soil. 
He  is  at  the  same  time  bound  to  work  the  mine,  and 
cannot  preserve  or  renew  the  right  without  working  (»). 
Subject  to  the  custom  of  bounding,  "  the  ownership  of  a 
tin  mine  in  Cornwall  is  in  the  owner  of  the  freehold  of  the 
soil,  rations  soliy  by  the  common  law  of  England,  applicable 
to  it  as  to  any  other  mineral  district  in  any  other  part  of 
England "(«).  The  working  of  mines  subject  to  the 
custom  under  the  jurisdiction  of  the  Stannary  Court  is 
now  regulated  by  the  Stannaries  Acts,  1869, 32  &  33  Vict. 

{uf)  Saee  t.   Ward^  4  E.  &  B.  Lutw.  1617. 

702 ;  24  L.  J.  Q.  B.  153 ;  Manning  iy)  See  MiUs  y.  Colehstter,  L.  B. 

T.  JFatdiOe,  6  A.  &  E.  768 ;  Knight  2  G.  P.  484  ;  36  L.  J.  G.  P.  216. 

T.  Woore,  3  Bing.  N.  0.  3 ;  Smith  (z)  Bogera  v.  ^renton^  10  Q.  B. 

▼.  Archibald,  L.  R.  6  Ap.  Ca.  489 ;  26 ;  Att.-Gen,  v.  Mathiaa^  4  K.  & 

JSarrop  v.  Hint,  L.  B.  4  Ex.  43 ;  J.  679 ;  27  L.  J.  C.  766. 

38  L.  J.  Ex.  1 ;  ante,  p.  331.  (a)  Per  eur.  Rogers  v.  Brenton,  10 

{x)  Per  eur.  Tyton  v.  Smith,  9  A.  Q.  B.  49  ;    Cote  of  Stannariee,  12 

&  E.  426 ;  Bennington  t.  Taglor,  2  Go.  9. 

oo2 


564 


USES  AND  PBOFTTS  IN  LAND  OP  ANOTHER. 


c.  19 ;  1887,  50  &  51  Vict.  c.  43.  The  costom  of  tin 
bounding  farther  imports  the  easement  of  using  any 
streams  of  water  found  within  the  bounds  for  washing  Ihe 
minerals,  and  for  this  purpose  to  divert  the  water  into 
other  streams,  and  to  discharge  refuse  into  the  streams, 
though  it  tends  to  fill  up  the  bed  of  the  stream  and  cause 
an  overflow  (6).  .  This  right  is  paramount  to  the  rights  of 
others  to  the  water,  but  does  not  prevent  the  acquisition 
and  existence  of  other  ordinary  rights,  unless  in  fact 
exercised  adversely  to  them  (<?).  The  rights  to  water 
acquired  by  tin  bounders  enure  for  the  benefit  of  the  land- 
owner, upon  the  mine  being  abandoned  by  the  bounders 
and  reverting  to  the  landowner  (rf). — ^A  like  custom  pre- 
vailed in  the  Forest  of  Dean,  entitling  free  miners  within 
the  district,  in  order  of  priority  of  application,. to  have  the 
grant  of  a  gale  or  license  from  the  crown.  A  gale  entitled 
the  miner  to  work  mines  of  coal  or  iron  or  stone,  con- 
ditional upon  payment  of  rents,  royalties  and  dues,  and 
upon  the  proper  opening  and  working  of  the  gale ;  being 
subject  to  forfeiture  for  breach  of  the  conditions  {e). 
Eights  under  this  custom  are  also  now  regulated  by 
Statutes  (/). — ^A  custom  of  mining  also  prevailed  in  the 
county  of  Derby,  giving  paramount  rights  of  working 
mines  of  lead  under  all  lands  within  the  district,  which  are 
now  regulated  by  "  The  Derbyshire  Mining  Customs  and* 
Mineral  Courts  Act,"  15  &  16  Vict.  o.  clxiii  {g). 


{h)  Carlyon  v.  Zovering^  1  H.  & 
N.  784  ;  26  L.  J.  Ex.  251. 

(c)  Gaved  v.  Mart^,  19  C.  B. 
N.  8.  732  ;  34  L.  J.  C.  P.  363. 

(rf)  Ivimey  v.  Stoeker^  L.  B.  1 
Oh.  396 ;  35  L.  J.  C.  467. 

{e)  Ee  Brain,  L.  B.  18  Eq.  389 ; 
44  Ij.  J.  C.  103 ;  Morgan  y.  Craw- 
tkay,  L.  B.  6  H.  L.  304  ;  Jamet  v. 
The  Quern,  L.  R.  5  0.  D.  153 ;  43 
L.  J.  C.  754  ;  Eope  v.  Mugge-Priee, 
L.  B.  1  Ex.  D.  269 ;  45  L.  J.  Ex. 
777;  Brain  r.  Thomas,  50  L.  J. 
Q.  B.  662 ;  Ellway  y.  Bavie^  L.  B. 


16  Eq.  294 ;  43  L.  J.  G.  76 ;  Jam 
y.  Young,  L.  B.  27  C.  D.  662 ;  63 
L.  J.  C.  793. 

(/)  The  Dean  Foreet  ICnca 
Act,  1838,  1  &  2  Vict.  c.  43: 
Amendment  Act,  1861,  24  &  26 
Vict.  c.  40 ;  Amendment  Act,  1871, 
34  &  35  Vict.  c.  86.  SeeJS«7%MMf^ 
L.  B.  21  Q.  B.  D.  380. 

is)  See  Wright  v.  Bitty  L.  B.  12 
Eq.  408;  40  L.  J.  C.  558;  Ark- 
upright  y.  Evant,  49  L.  JT.  M.  82; 
Wake  y.  HaU,  L.  B.  8  Ap.  0». 
195;  52  L.  J.  Q.  B.  494. 


CHAP.  IV.  LOCAL  CUSTOMS.  565 

Imineinorial  usage  for  the  inhabitants  of  a  town  or  Oasiomsto 
parish  to  take  profits  in  the  land  of  another,  which  is  void  ^  pj^^,^ 
as  a  legal  custom  by  the  rule  above  stated,  may  in  some  crown  grant. 
cases  be  legalised  upon  the  presumed  origin  of  a  crown 
grant ;  which,  by  reason  of  the  prerogative  power  of  the 
crown  to  create  corporations,  would  have  the  implied  effect 
of  incorporating  such  persons  for  the  purpose  of  receiving 
the  grant  and  retaining  the  rights  granted,  otherwise  the 
grant  would  fail  for  want  of  a  certain  grantee  {h).    Thus 
a  grant  made  by  the  crown  to  the  inhabitants  of  a  parish, 
being  a  manor  of  the  crown,  of  the  right  to  cut  wood  for 
fuel  upon  the  wastes  of  the  manor  during  certain  parts  of 
the  year,  was  held  valid  as  incorporating  the  inhabitants 
for  the  purpose  of  taking  the  grant  (t).     Inhabitants  thus 
claiming  as  incorporate  grantees  must  sue  collectively  on 
behalf  of  the  whole  body;  they  cannot  sue  individually 
each  in  his  own  right,  as  in  the  case  of  an  individual 
claiming  under  a  custom,  who  may  s\ie  in  his  own  name 
and  in  his  own  right  (j)  .—The  presumption  of  a  crown  grant 
is  made  in  favour  of  usage  if  it  be  possible  under  the  cir- 
cumstances, in  order  to  supply  a  legal  origin  of  the  usage ; 
for  "  the  rule  of  law  is  that,  wherever  there  is  an  imme- 
morial usage,  the  Court  must  presume  everj-thing  possible, 
which  could  give  it  a  legal  origin  "  (A*).     But  the  presump- 
tion cannot  be  made  where  it  is  inconsistent  with  the 
evidence  of  usage,  or  where  it  is  inconsistent  with  a  clearly 
proved  origin  of  the  right  (/). 

In  like  manner,  if  an  Act  of  Parliament  vests  rights  in  Nopresump- 
persons,  which  they  cannot  take  otherwise  than  as  a  cor-  JjJ^  ^^  ®**' 
porate  body,  they  are  impliedly  incorporated  by  legislative 

(A)  I'er   eur,   Rivera   ▼.   Adams,  antey  p.  650. 

Ij.  B.  3  Ex.  D.  365  ;  48  L.  J.  Ex.  (k)  Mansfield,  G.  J.,  Coeksedge  y. 

47;  JeBeel,M.B„y Chilton Y, London f  Fanshaw^  1  Dougl.  132;  Selbome, 

Ij.   B.  7  0.  D.  741 ;  47  L.  J.  C.  L.  C,  Goodman  v.  Saltash^L,  B.  7 

433.  Ap.  Ga.  640. 

(i)  WillingaU  v.  Maitland,  L.  B.  (/)  Mivert  y.  Adams,  L.    B.   3 

3  Eq.  103 ;  36  L.  J.  G.  64 ;  ex-  Ex.  D.   361 ;  48  L.   J.  Ex.  47 ; 

plained  in  Chilton  y.  London^  supra.  Goodman  y.  Saltash,  L.  B.  7  Ap. 

(J)  ChUton  y.  Zondon,  L.  B.  7  Ga.  633. 
C.  D.  735 ;  47  L.  J.  G.  433.    See 


566  USES  AKD  PBOFITS  IN  LA.ND  OF  AI70TUER. 

authority  for  the  purposes  of  the  Act  (m).  But  no  pre- 
sumption can  be  made  of  the  existenoe  of  an  Act  of  Farlia* 
ment  as  the  origin  of  a  usage,  similar  to  the  al>oTe 
presumption  of  a  Crown  grant ;  "  for  such  presumption 
would  make  aU  imreasonable  customs  good";  also  because 
"  the  judge  is  theoretically  bound  to  take  judicial  notice  of 
all  Acts  of  Parliament,  and  to  be  aware  that  there  is  no 
such  Act  of  Parliament"  (n). 
Cnstoma  A  corporation  may  take  by  grant  or  by  prescription  any 

m^ra^n.  profits  of  land  which  may  be  the  subject  of  grant ;  and  by 
immemorial  usage  the  profits  granted  may  be  taken  by 
the  individual^  members  of  the  corporation,  or  by  inhabit* 
ants  or  freemen  of  a  town  or  borough,  according  to  the 
rules  of  the  corporation;  although  such  persons  collec- 
tively, without  incorporation,  coidd  not  become  entitled  to 
take  directly  in  their  own  right,  either  by  grant  or  by 
custom  (o).  Accordingly,  where  an  immemorial  usage 
showed  that  a  right  of  several  fishery  had  been  exercisedT 
by  a  borough  corporation  and  their  lessees;  and  that 
during  part  of  the  year  the  free  inhabitants  of  the  borough 
had  exercised  a  right  of  fishing  in  the  same  place,  it  was 
held  that  the  presumptive  origin,  in  order  to  legalise  tiie 
usage,  was  that  there  was  a  grant  to  the  corporation  with 
a  trust  or  condition  in  favour  of  the  free  inhabitants  in 
accordance  with  the  usage  (jo). — Profits  A  prendre  are  fre- 
quently found  thus  vested  by  immemorial  usage  in  borough 
corporations  for  the  use  and  benefit  of  burgesses,  or  of  in- 
habitants, or  of  some  particular  class  of  such  persons :  as  a 
right  of  common  of  pasture  to  be  enjoyed  by  every 
burgess  for  his  commonable  cattle  (q) ;  an  exclusive  right 
of  pasturing  an  unlimited  number  of  cattle  during  a 

(m)  Tone  Conssrv.T.  Ash,  10  B.  &  v.  Spateman;  Goodman  r.  Saliaak, 

G.   349 ;  Ex  parte  Newport  Marsh  •  L.  R.  7  Ap.  Ga.  633 ;  JSe  Famnham 

Trustees,  16  Sim.  346.  Free  Fishermen,  L.  R.  36  C.  I>.  329. 

(nj  Fer  cur.  Weekly  v.  JFildmany  (p)  Goodman  v.  Saltashy  tupra, 

1  Ld.  Raym.  407 ;  Jessel,  M.  R.,  (q)  Mellor  v.  Spateman,  I  Wms. 

Chilton  Y.  London,  L.  R.  7  C.  D.  Sannd.   343;  Fany  y.   Thomas,  6 

740 ;  47  L.  J.  C.  437.  Ex.  37 ;  Beadeworth  y.  Tirrkmgtan, 

(o)  1  Wms.  Sannd.  346  a,  Mellor  1  Q.  B.  782. 


GHAP.  IV.   LOCAL  CITSTOMS.  667 

» 

certain  season  hj  the  burgesses  (r) ;  a  right  for  the  free- 
men or  the  inhabitants  of  the  borough  to  cut  turf  and  to 
take  gravel,  clay,  and  other  materials  for  their  own  use  (s) ; 
a  right  of  several  fishery  to  be  enjoyed  by  the  inhabitants 
of  the  borough  {t). 

Immemorial  usage  for  the  inhabitants  of  a  town  or  parish,  dutomfl 
or  other  indeterminate  persons,  to  take  profits  of  land  may  ^Stable 
also  be  supported  in  some  circumstances  as  a  charitable  use  '**®®' 
or  trust.  Such  persons,  though  they  cannot,  without  in- 
corporation, be  made  grantees  of  any  legal  estate  or 
interest,  may  be  made  the  beneficial  recipients ;  and  ^^  a 
gift  subject  to  a  condition  or  trust  for  the  benefit  of  the 
inhabitants  of  a  parish  or  town,  or  of  any  particular  class 
of  such  inhabitants,  is  a  charitable  trust"  {u).  Thus,  a 
grant  of  land  ^'  that  as  many  of  the  inhabitants  of  a  parish 
as  were  able  to  buy  three  cows  might  feed  them  on  the 
land  from  May  till  August,"  was  established  as  a  charit- 
able trust  (v).  An  alleged  grant  of  the  Crown  to  the 
inhabitants  of  a  parish,  being  a  Crown  manor,  that  the 
poor  people  inhabiting  the  parish  might  cut  fuel  for  their 
own  use  upon  the  wastes  of  the  manor,  was  supported 
upon  demurrer,  as  impliedly  incorporating  the  inhabitants 
for  the  purpose  of  taking  the  grant  of  profit,  but  as  trustees 
of  a  charitable  trust  for  the  poor  (ir).  Upon  the  same 
principle  it  was  held  that  a  right  given  by  an  Inclosure 
Act,  for  the  occupiers  for  the  time  being  of  ancient 
cottages  in  the  inclosed  district  to  cut  turf  for  their  own 
use  in  certain  waste  land,  was  a  charitable  use ;  in  which 
the  owners  of  the  cottages  had  no  interest  beyond  that  the 
value  of  the  occupation  of  their  cottages  might  be  thereby 

(r)  Johruon  r.  Bametj  L.  H.  8  Oa.  642;  per  eur.  JSe  Chrittehureh 

O.  P.  627 ;  41  L.  J.  C.  P.  260.  Inclosure  Act,  L.  R.  38  C.  D.  631. 

(«)  JThUer.  CoUmatiy  Freem.  185;  (v)   Wrifht  ▼.  Hobert,  9  Mod.  64. 

The  King  v.  Warkworth,  1  M.  &  S.  {w)  Willingah  v.  Maitland,  L.  B. 

473 ;  The  Queen  y.  Alnwiek,  9  A.  &  3  Eg.  103 ;  36  L.  J.  G.  64 ;  Jeasel, 

E.  444.  M.  R.,  Chilton  v.  London,  L.  R.  7 

(t)  Goodman  v.  Saltathf  L.  R.  7  C.   D.  738.     See  He   Chrittehureh 

Ap.  Ca.  633.  Ineloeure  Jet,  L.  R:  35  C.  D.  355 ; 

(m)  Selbome,  L.  C,  L.  R.  7  Ap.  66  L.  J.  G.  674. 


568 


T78BS  AKD  PROFITS  IN  LAKD  OF  ANOTHER. 


increased  (u).  And  a  gift  to  the  copyholders  of  a  nianor, 
to  take  the  wood  growing  from  time  to  time  upon  oertain 
land  for  the  repair  of  sea  walls  within  the  manor,  was  held 
to  be  a  gift  for  a  charitable  use  {t>). 


Gnstoms  of 
numon. 


GiiBiomaiy 
rights  of 
oopyhold 
tenants. 


The  costoms  of  manors  bj  which  rights  and  profits  are 
claimed  by  tenants  of  the  manor,  freehold  and  copyhold, 
over  lands  of  the  manor  are  not  open  to  the  legal  objec- 
tions to  customs,  aboTe  stated,  of  being  unreasonable  as 
depriving  the  owner,  or  as  claiming  profits  k  prendre. 
Customary  rights  axe  claimed  by  the  tenants  of  a  manor  as 
appurtenant  to  their  tenements,  and  therefore  as  originally 
derived  from  a  grant  of  the  lord.  The  custom  of  the 
manor  prescribes  the  appurtenant  rights,  and  may  annex 
rights  of  common  or  any  other  profits  which  are  within  the 
power  of  the  lord  to  grant. — Copyhold  tenants,  whether  in 
fee  or  for  life  or  for  years,  claim  rights  and  profits  over 
land  of  the  manor  by  custom ;  as  also  they  claim  the  cus- 
tomary estate  in  their  tenements,  of  which,  except  by 
custom,  they  were  at  common  law  only  tenants  at  wilL 
They  cannot  claim  by  prescription  in  their  own  right, 
because  they  have  no  sufficient  legal  estate;  and  they 
cannot  prescribe  in  right  of  the  lord  as  the  freeholder, 
because  the  lord  cannot  have  conmion  in  his  own  soil. 
Therefore  they  can  claim  by  custom  only ;  and  the  custom 
is  good  in  law,  though  it  be  to  take  a  profit  in  the  soil  of 
another,  because  it  annexes  the  profit  to  the  tenement,  and 
not  to  the  person  of  the  copyholder  (to).  Thus  by  special 
custom  copyhold  tenants  may  daim  to  take  profits  from 
the  waste  of  the  manor ;  as  common  of  pasture,  estovers  for 
repairs  or  fuel,  quarrying  stone,  digging  sand  and  the 
like  (x).  By  custom  copyholders  may  be  entitled  to  com- 
mon, subject  to  a  payment  to  the  lord  in  money  or  in  kind; 


(m)  In  re  Christchureh  Ineloture 
Aety  L.  R.  38  C.  D.  520. 

iv)  Wilton  y.  Barnes,  L.  B.  38 
CD.  607. 


{w)  See  ante,  p.  343 ;  FoUion  ▼. 
Crachroode,  4  Go.  31  b ;  Gatetcard'M 
case,  6  Co.  60  b ;  per  eur,  Bogen  t. 
BrenUm,  10  Q.  B.  61. 

(«)  Ante,  p.  843. 


CHAP.  IV.  LOCAL  CUSTOMS.  569 

and  the  payment  may  be  a  condition  precedent  or  subse- 
quent according  to  the  custom  (y).  By  custom  copyhblders 
may  have  the  right  to  take  coal  and  other  minerals  in  the 
^aste  of  the  manor ;  and  a  custom  for  the  tenants  to  dig 
ooal,  stated  in  the  terms  of  a  customary  of  the  manor  to  be 
propriis  usisy  was  construed  to  mean  for  their  own  con- 
sumption only,  and  to  be  valid  (a).  The  onus  of  proving 
the  special  custom  of  a  manor  lies  upon  the  tenant  claiming 
under  it  (a). 

Freehold  tenants  of  a  manor  may  claim  by  grant  or  Freehold 
prescription  according  to  the  general  rule ;  but  they  may   ^"""^  * 
also  have  rights  and  profits  over  other  land  of  the  manor 
as  appurtenant  to  their  tenements  by  custom.     If  the  usage 
is  clearly  proved,  the  Court  will  presume  grants  in  con- 
formity with  it,  upon  the  general  principle  of  referring 
immemorial  usage  to  a  legal  origin,  if  possible.     ^*  It  would 
not  be  unreasonable  to  hold  that  the  right  had  originated 
in  the  grant  to  every  freehold  tenant  of  all  the  rights  and 
privileges  which  every  other  freehold  tenant  had.     It  may 
be  that  the  tenants  had  separate  grants,  and  that  a  par- 
ticular grant  was  free  from  some  claim  or  demand  on  the 
part  of  the  lord  from  which  others  were  not  free ;  but  that 
would  not  prevent  their  having  certain  privileges  in  com- 
mon with  others  "  (6).     Thus,  freehold  tenants  of  a  manor 
may  be  entitled  by  custom  to  common  appendant ;  which 
was  appurtenant  to  their  tenements  by  general  custom  or 
conmion  law  before  the  Statute  of  Quia  Enq^toi^es  (c).    So,  a 
custom  for  the  occupiers  of  land  in  a  parish  to  have 
common  appurtenant  upon  wcuste  land  of  the  parish,  with 
the  incidental  right  of  cutting  rushes  upon  the  waste  to  be 
used  for  litter  for  their  commonable  cattle,  was  supported 
as  an  appurtenance  of  the  tenements  (d).    Upon  the  same 


(y)  Oray*$  ease^  6  Co.  78  h ;  Cro.  (a)  lb. ;  ante,  p.  63. 

Ijg-    406 ;   Lovelace   v.    Reynolds,  [Vs   Warrick   v.    Queen^s    Collegey 

Cro.  Eli2.  646,  563.    See  Faddock      L.  R.  6  Ch.  716 ;  40  L.  J.  G.  780. 


▼.  Forrester,  3  M.  &  G.  927.  ie)  Ante,  p.  336. 

(f)  Portland  v.  HiU,  L.  B.  2  Eq.  (d )  Bean  v.  Bloom,  2  W.  Bl.  926 ; 


7611 


86  L.  J.  0.  489.  3  Wilfl.  466. 


670 


USES  AND  FBOFITS  IS  LAND  OF  ANOTHER. 


Occupiers, 


prinoiple  the  free  and  customaTy  tenants  within  the  boundB 
of  an  ancient  forest  may  claim  by  custom  to  have  common 
of  pasture  and-  other  common  rights  oyer  all  the  wastes  of 
the  forest,  as  appurtenant  to  their  tenements ;  and  such 
customary  rights,  as  originating  in  Crown  grants,  are 
held  to  be  paramount  to  the  local  rights  of  lords  of  manois 
within  the  forest  to  inclose  waste ;  the  Grown  in  granting 
the  manors  having  presumedly  reserved  the  for^tal 
rights  (<?). — ^If  the  copyhold  and  freehold  tenants  of  a 
manor  have  similar  customary  rights  they  may  join  ia 
claiming  them.  "  The  copyholders  might  by  custom  be 
entitled  to  that  to  which  the  freeholders  are  entitled  by 
prescription ;  and  if  the  rights  are  identical,  both  classes 
might  well  join  in  a  suit  against  the  lord  if  he  shoidd 
attempt  to  exclude  them  "  (/). 

There  can  be  no  custom  that  "  occupiers,"  or  "  inhabit- 
ants," in  a  manor  or  district,  merely  as  such,  should  have 
rights  of  common  or  other  profits,  except  as  appurtenant  to 
tenements  occupied  or  inhabited ;  because  a  profit  i 
prendre  cannot  be  claimed  by  custom  (g).  But  a  custom 
alleged  for  "  owners  and  occupiers"  to  have  common  rights 
was  construed  as  claiming  the  rights  as  appurtenant,  the 
occupiers  in  fact  enjoying  them  in  right  of  the  owners  (A). 
And  a  usage  proved  of  common  rights  by  the  freehold 
tenants  of  a  manor  and  also  by  the  inhabitants,  was  pre- 
sumed by  the  Court  to  be  used  by  the  inhabitants  as 
appurtenant  to  their  tenements,  and  in  right  of  the  free- 
holders (»).  Customary  rights  of  occupiers,  or  inhabitants, 
or  like  classes  of  persons  to  take  profits  of  land  may  also 
be  supported  in  some  cases  as  being  charitable  uses  {j). 

(jr)  Ant€,  p.  560;  Hardwicke, 
L.  C.,  Dean  of  Ely  v.  JFarren,  % 
Atk.  190 ;  Austin  y.  Amhurst^  L.  B. 
7  CD.  689;  47  L.  J.  C.  467. 

{h)  Sewers  Commiss,  y.  GUsse^ 
L.  R.  7  Ch.  456  ;  41  L.  J.  C.  409. 

(t)   Warrick  y.    Queen's    College, 
L.  R.  6  Ch,  716;  40  L.  J.  0.  780. 
.  (y)  See  ante,  p.  667. 


(e)  Sewers  Commiss,  y.  Glasse, 
L.  R.  7  Ch.  466 ;  I/.  R.  19  Eq. 
134 ;  44  L.  J.  C.  129 ;  £arl  De  la 
Warr  y.  Miles,  L.  R.  17  C.  D.  536 ; 
60  L.  J.  C.  754.     See  ante,  p.  84. 

(/)  Hatherley,  L.  C,  BetU  y. 
Thompson,  L.  R.  6  Ch.  739 ;  Potter 
y.  North,  1  Wms.  Saund.  360; 
Fisher  y.  JTren,  3  Mod.  250 ;  ante, 
p.  371. 


INDEX. 


ABAKDOmCENT. 

of  easements,  305—309. 

See  £a8ek]ent;  Lioht;  Wateb;  Wat. 
Abatement. 

of  nuisanoe  to  land,  13,  323. 

of  nuiBanoe  to  easement,  322,  324. 

of  excess  in  ase  of  easement,  323. 

of  nnisance  to  common,  369. 

of  nuisance  on  highway,  543,  647,  648. 

unnecessary  damage  in  abating  noisanoe,  325. 
Accident. 

exception  of,  in  oovenant  to  repair,  98. 

escape  of  water  bj,  145. 

trees  severed  bj,  39. 

fire  caused  by,  96, 

AOCBBTIONS. 

to  soil,  property  in,  108. 
to  banks  of  stream,  154. 
to  sea  shore,  165. 

AOQITIESCENCE. 

in  interruption  of  easement,  299. 

in  obstruction  of  easement,  319. 

as  answer  to  claim  of  injunction,  319. 
Adxibaltt. 

jurisdiction  of,  159,  161. 
AoisncENT. 

of  cattle  on  common,  336. 

distress  of  cattle  agisted,  454. 

AOBEBXKNT. 

for  lease,  tenancy  under,  877. 
AoBicuLTUBAL  Ctjstomb,  68,  429,  552,  562. 

AOBICULTUBAL  HOLDINQB. 

fixtures  and  improvements  of,  115. 
distress  for  rent  of,  427,  441,  452, 
Atb. 

distinction  of  right  to  light,  218. 
claim  to  access  of,  201,  219. 
pollution  of,  220. 


distress  of,  for  rent,  445,  449,  452,  454. 
distress  of,  damage  feasant,  368,  432,  448,  462. 
escape  of,  252,  257. 
/fr<p  natura^  property  in,  73. 
noxious,  77. 
tame,  77. 
trespass  by,  253. 
trespass  by,  on  highway,  501. 
See  Cattle  ;  Deeb  ;  Doa. 


572  INDEX. 

charge  of,  upon  land,  392. 

charge  of,  upon  corpus  or  annual  profits,  393. 

limitation  of,  in  fee  or  for  life,  394. 

assig^nable,  394. 

for  maintenance,  395. 

trust  to  purchase,  395. 

charge  of,  in  administration,  396. 

priority  of,  396. 

registration  of,  397* 

apportionment  of,  417. 

APFOBTIONXBIiT. 

of  rent, 

bj  partition  of  the  amount,  411,  412. 
bj  partition  of  the  reversion,  412. 
by  act  of  law,  413. 
of  rent  to  time,  at  common  law,  416. 

inequity,  416. 
by  terms  of  limitation,  416. 
by  statute,  417. 
between  lessor  and  lessee,  417. 
successiTe  owners,  417. 
real  and  personal  estate,  420. 
tenant  for  life  and  remainderman,  421. 
assignor  and  assignee  of  lease,  421. 
accrual  of  rent  from  day  to  day,  419. 
time  for  payment  of,  419. 
remedies  for,  419. 
apportionment  of  conditionB,  416. 
of  interest,  417. 
of  tithe,  399. 

APPBATflKTIfKWT. 

of  distress,  441. 

of  waste,  360. 

by  inclosure  for  buildings,  362. 
by  grantee  of  waste,  362. 
leaving  sufficiency  of  pasture,  363. 

against  copyholders,  364. 

by  special  custom,  364. 

agfainst  common  of  turbary,  &c.,  365. 

under  Inclosure  Acts,  366. 
Appubtbn^ct,  7,  88,  328,  333. 

of  easements,  189,  264,  275. 

of  profits  k  prendre,  327. 
Abtificiai.  Stbkam,  232.    See  Watke  ;  Watebooubsb, 
Assize. 

rents  of,  383. 
Attobnmbnt. 

of  mortgagor,  106,  378,  460,  459. 

with  distress,  is  bill  of  sale,  379,  386. 
AxTcnoK. 

sale  of  distress  by,  442. 

AVOWBT. 

in.repl6vin,  469. 


Bailiff. 

to  distrain,  oertafioated,  434. 


r 


INDEX.  573 


SuncBurTOT. 

diflclfti'mer  of  lease  by  trustee,  120. 
fixtures  of  bankrupt,  120. 
distress  for  rent  in,  427. 


ecclesiastical,  dilapidatiozis  of,  93. 
Bill  of  Peix:b,  370. 
Bill  of  Salk. 

of  growing  crops,  60. 

of  maobinery,  122. 

of  tenants'  fixtures,  123. 

of  power  to  distrain  for  interest,  379,  386. 

goods  seized  on  bigbway  under,  431. 
Bo&ouqh-Enolish. 

rent-cbarge  on  land  of  tenure  of,  391. 

custom  of,  558. 
Botes. 

tenant's  rigbt  to,  36,  342.     See  Estotxbs. 

BOUHDXBIBS. 

protection  of,  10. 

confusion  of,  10.  11. 

commission  to  aSoertain,  10. 

duty  of  tenant  as  to,  10. 

duty  of  oopybolder,  11. 

encroacbments  upon,  12. 

projections  over,  13,  235. 
SSeeFsNOE. 
Box. 

for  deeds,  125. 

plants,  border  of,  108. 
Bbidoes. 

county,  530,  536. 

repair  of,  530. 

repair  ratione  tenura,  528,  530,  532. 

statute  of  bridges,  531. 

new,  repair  of,  532. 

conditions  of  r^Miir  by  county,  633. 

improvement  of,  534. 

canal  and  railway,  534. 

on  turnpike  roads,  535. 

on  bigbways  and  main  roads,  525,  530,  536. 

tranffler  of,  to  county  councils,  535. 

approacbes  to,  536. 

roadway  of,  537. 

property  in,  and  in  materials  of,  537. 

BUILDINQS. 

property  in,  87. 

waste  in,  92,  94. 

as  fixtures,  109,  112. 

built  on  land  of  anotber,  107. 

witb  materials  of  anotber,  108. 


Gaval  Bbidobs,  534. 
Capias  in  withebnan. 

writ  of,  470. 
Cattle. 

agisted,  distress  of,  454. 

dutresB  of  damage  feasant,  368,  432,  448. 


674  IKDBX. 


Catslb— continued. 

distress  of,  on  oommon,  432. 

escape  of,  through  defective  fence,  256. 

commonable,  337. 

levant  and  couchant,  333. 

highway  for,  484. 

straying  on  highway,  491,  501. 

trespass  by,  253,  257. 
Ghabob. 

of  repairs  on  settled  land,  93,  100* 

of  annuity  on  land,  393. 

on  profits  of  land,  893. 
See  Rent-ohabob. 
Ghabttablb  Usb. 

custom  supported  as,  567. 

GHiBB,  85. 

Ghaiteia. 

animals  as,  77. 

rent  of,  382. 

settled  as  heirlooms,  136. 

within  Bills  of  Sale  Act,  60,  122. 

found  inland,  71. 

CUUBCH. 

right  to  enter,  201. 
Close. 

of  land,  6. 
Ck>AL,  68.    See  Minerals. 
Cognizance. 

in  replevin,  469. 

COIOCON. 

meaniug  of  term,  360. 

appurtenant,  333. 

appendant,  336 

in  gross,  333. 

of  pasture,  333. 

stinted,  334. 

of  turbary,  342,  365. 

of  pannage,  336. 

of  vicinage,  338,  340. 

of  estovers,  341. 

of  fishery,  176. 

lord's  rights  of,  344,  359. 

apportionment  of,  369. 

of  copyholder,  343,  360,  568. 

extinction  of,  by  merger,  359. 

approvement  against,  360,  365. 

surcharging,  368. 

nuisance  on,  369. 

distress  of  cattle  on,  432. 
CoiocoN  Fields,  340. 
ComcoNABLB  Cattle,  337. 
CoiacoNEB. 

remedies  of,  against  lord,  369. 
ComcoN  Law  and  Cusiox,  550. 

COUCXTTATION  OF  TnsB,  402. 
COXPANT. 

rent  in  winding-up  of,  459. 

COICPENSATION. 

for  compulsory  sale  of  house,  89. 


INDEX.  575 


CoxPENSAiiON  —  continued. 

for  fixtures,  104. 

for  easements  taken,  265,  315. 

for  obstruction  of  light,  315. 

for  diyerting  stream,  149. 

for  privation  of  acoess  to  navigable  river,  157. 

for  loss  of  prospect,  202. 

for  mineraui  t^en  or  severed,  57,  65. 

for  soil  of  highway,  492. 
Ck>MFULeoBY  Salb,  89.    See  Gohpsnsation. 

CONDmON. 

of  re-entry,  for  non-payment  of  rent,  476. 

ejectment  upon,  477. 

relief  against,  478. 
to  take  profits,  478. 

rent-charge  upon,  avoided  -without  entry,  391. 
apportionment  of,  415. 
C0NBEBVA.TOBY. 

as  fixture,  109,  118,  119. 

Ck)2TTBIBX7TI0N. 

to  tithe  by  co-owners,  405. 

Ck>FTH0LD. 

boundaries  of,  11. 

timber  on,  37. 

minerals  in,  62,  63. 

re-grant  of,  with  customary  rights,  360. 

enfranchisement  of,  860. 

tithes  on,  403. 

Ck>PTHOLD£B. 

estate  of,  343. 
encroachment  by,  12. 
customary  rights  of,  343,  568. 
right  of,  to  estovers,  37. 
to  minerals,  63. 
waste  by,  26. 
approvement  against,  364. 
See  AppBOVisicsNT ;  CoiocoK ;  Oubtoic 

Ck)BK. 

distress  of,  446. 

average  for  assessment  of  tithe,  399. 

COBKAOE. 

tenure  by,  136. 
CoBirwAix. 

mining  customs  of,  563. 

Ck)SP0BATI0N. 

prescriptive  title  of,  to  profits,  352. 

g^nt  of  profits  to,  565,  566. 

incorporation  of,  by  crown  grant,  565. 

dedication  of  highway  by,  508. 
Ck>i7irrT  CoTTNcni. 

transfer  of  main  roads  to,  525. 
of  bridges  to,  535. 
Ck)UHTT  DiSTBicr,  526. 

district  fund  for  repair  of  highways,  524. 

GOYBNANT. 

to  repair  demised  premises,  97,  99. 
to  pay  rent,  474. 

to  produce  deeds,  126,  132.    See  Deed0. 
running  with  land,  187,  203,  474. 


576  INDEX. 


GoTENAisT — continued. 

oonoeming  use  of  land,  203. 

apportioned  with  reversion,  413. 
Gbops,  44.    See  Gbowzno  Cbofs  ;  ExBLExmns. 
Cbown. 

prerogatiYe  rights  and  datiee  of,  167. 

proteotiun  of  sea- shore,  167. 

appointment  of  ports,  169. 

right  of,  to  wreok,  172. 

ro^alfish,  182. 

muies  of  gold  and  silyer,  70. 

treasure- trore,  71. 

property  of,  in  sea-shore,  161,  163. 
Gbown  G-BAirr. 

incorporation  of  grantees  by,  565. 
Cul-de-Sao. 

in  highway,  486. 

GnSTODT. 

of  deeds,  127,  128. 
See  Title  Deeds. 

CXTSTOK. 

and  common  law,  550. 

statute  law,  551,  558. 

prescription,  551,  553. 

usages  of  trade,  552. 

agricultural  usages,  68,  429,  552. 

usage  as  basis  of,  552. 

usage  as  of  right,  554. 

certainty  of  usage,  554,  556,  557. 

reasonableness  of  usage,  557. 

usage  against  law,  558. 

usage  repugnant  to  private  ownership,  560. 

to  take  profits,  void,  560,  561. 

to  take  minerals,  561,  5613. 

to  take  minerals  in  copyholds,  63. 

to  take  iish,  562. 

to  take  water  from  spring,  562. 

to  take  profits  on  payment  of  toll  or  fee,  563. 

of  mining  in  Cornwall,  563,  564. 

supported  by  presumption  of  Crown  grant,  565. 

supported  by  grant  to  corporate  body,  566. 

supported  as  charitable  use,  567. 

of  manors,  general  and  special,  550,  568. 

rights  of  copyholders  by,  568. 

rights  of  freeholders  bj,  569. 

rights  of  occupiers  or  inhabitants  by,  670. 

remedies  by  indictment  or  action,  550. 

OUSIOICABT  TeNUBE. 

rent  charge  on  land  of,  391. 
tithe  on  land  of,  403. 


Damage  fbasakt. 

distress  of  things,  368,  432,  448. 

tender  of  damages  for,  462. 

privilege  from  distress  of  things  in  possesflioii,  448. 
Daicaoes. 

for  disturbance  of  easement,  313,  316,  318. 

for  obstmction  of  light,  215.  . 


INDEX.  677 


'DAMAOBa—eoniinued. 

for  dishirbance  of  support  to  btxilding,  248. 

for  nuisanoe  on  highway,  644. 

for  trespass  by  animals,  264,  268. 

for  waste,  20. 

for  wrongful  sererance  of  minerals,  66. 

in  action  for  use  and  oooupation,  476. 

for  illegal  distress,  436,  460. 

for  irregolar  distress,  463. 

for  exoessiye  distress,  466. 

for  levying  execution  after  notice  of  rent  due,  456. 

special,  to  support  action  for  public  nuisance,  644 . 
Dead  wood. 

right  of  tenant  to,  36. 

custom  to  gather,  661. 
Dbbt. 

action  of,  for  rent,  472. 
Dedication. 

of  highway,  by  act  of  owner,  604. 

presumed  from  public  use,  606. 

by  owner  in  fee,  607. 

by  reversioner,  607. 

1^  corporate  body,  608. 

acceptance  of,  by  public,  608. 

adoption  of,  by  parish,  608. 

for  limited  time,  609. 

to  limited  public,  610. 

for  limited  use,  610. 

subject  to  obstructions,  610,  611. 

subject  to  private  way,  612. 

subject  to  toll,  612. 
See  HiOHWAT. 

DXBD. 

required  for  inooix>oreal  hereditament,  186,  263. 

for  titiie  rent-charge,  403. 
lioenoegranted  by,  196,  198. 
SeelrrLE  Deeds. 


in  a  parlE,  77. 

may  oe  distrained  for  rent,  78. 
Dekaio). 

of  rent  at  common  law,  476. 
Deyiatzon. 

from  private  way,  209. 

from  highway,  494,  611. 
Dilapidations. 

ecclesiastical,  93. 
DiSGLAnom. 

of  lease  in  bankruptcy,  120. 

DiSENTAILMBNT. 

on  sale  of  timber,  16. 
of  rent,  389. 

DiSTBESS. 

at  common  law,  423. 
conditions  of  right  of,  423. 
certainty  of  rent  or  services,  424,  426. 
rent  in  arrear,  426. 
limitation  of  arrears,  426,  427. 

L.  V  V 


578  ixDEX- 


,  428. 

during  yomt&aaa  after  omI  oI  leMe,  428,  429. 
for  do«ble  rent  for  MMrag  over,  430. 
OB  demaed  tenement,  430,  431. 
of  goods  finadakntl  J  naaorwd,  432. 
Ij  estifiested  batfifly  434. 
IB  dftjtbne,  435. 
bmlmg  into  lionw,  43o. 
eoB8kr«etxv«  takiBg  o£,  436. 
lemuviiur  ssd  DnpowiioTDg',  437. 
iipowndiny  oa  the  praiiiaea»  438.    See  FocaD. 
nleof.439. 

nodee  off,  as  condftinn  at  sale,  440. 
time  of  seDiii^,  441. 
appraisff  wic  nt,  441. 
sale  at  best  price,  442. 
diargea  of,  and  off  sale,  442. 
sale  opdoxxal,  443,  446. 
tender  before  sale,  443. 
things  distrahiable,  444 — 447. 
things  prrrileged  from  distreas,  448,  449. 
goods  off  stranger  distrainafaie,  449. 
cxceptioDS  in  faroar  of  trade,  4M. 
goo^  delivered  to  agent  for  sale,  4o2. 
gtiods  deilTered  for  safe  keeping'  or  caiijlug,  453. 
cattle  taken  in  to  feed,  4>>4. 
goods  of  lodger,  464. 
goods  in  ciuiodj'  of  law,  4o6. 
goods  taken  in  execntion,  4bo. 
goods  of  bankrupt,  427,  468. 
iroods  of  compan  J  windings  up,  468. 
illegal,  where  no  rent  dne,  461. 
after  tender  of  rent,  461. 
second  distress  for  same  rent,  461. 
irregular,  463,  464. 
exoeaATe,  466. 
for  exceseiTe  claim,  466. 
leacne  of,  466. 

lepierin,  467.     See  RDESfET. 
of  things  damage  feasant,  368,  432,  448. 


of  easement,  action  for,  242,  313. 

compensation  for,  316. 

injunction  against,  317. 

of  franchise,  170,  638. 
Boo. 

prDpertj  in,  446. 

distoess  of,  446. 

damage  feasant,  448. 
DcnoBZic  FaruBB,  110.    SeeFna 


Dovnujn  TgamuuiT,  189.    See  FiAamnBir. 
Dbaihaos. 

light  of,  140. 

of  mines,  142. 

easement  of  discharging,  229. 

apparent  easement  of,  270. 

of  port,  171. 


INDEX.  579 

TiABEMKyf. 

appurtenant  to  land,  189,  264,  275. 

dominant  and  servient  tenenfents,  189. 

in  gross,  190. 

conditions  of  appurtenancy,  192. 

positive  and  negative,  192,  324. 

legal  conditions  of,  199. 

spedfio  kinds  of,  199,  203. 

claims  not  admitted  as,  201. 

grant  of,  263,  264. 

efPect  of  parol  grant  of,  264. 

contract  concerning,  within  Statute  of  Frauds,  264. 

exception  or  reservation  of,  in  grant,  265. 

implied  grant  of,  266,  267,  273. 

necessary,  apparent  and  contiguous,  269,  272. 

implied  upon  grant  of  two  tenements,  274. 

passing  as  appurtenant,  275. 

passing^  as  used  and  enjoyed  with  tenement,  276,  278. 

revival  of,  after  unity-  of  possession,  277. 

rights  accessory  to,  280. 

oUigation  of  servient  owner,  211,  280.' 

release  of,  305. 

abandonment  of,  305. 

merger  of,  in  ownership,  289,  310. 

suspension  of,  during  limited  ownership,  311. 

action  for  disturbance  of,  313,  316. 

action  by  reversioner,  315. 

compensation  for,  under  Lands  Clauses  Act,  266,  315. 

injunction  against  disturbance  of,  317. 

abatement  of  obstruction  to,  322. 

SeeAiB;  Lioht;  FsBsoBipnoN ;  Supfobt;  Wateb;  Watb. 
Eavbb. 

of  house,  projecting  over  adjoining  land,  234. 

discharge  of  rain-water  from,  234. 
Hjeotment. 

action  of,  for  possession  of  mine,  55. 

on  condition  of  re-entry,  477. 

"EMBLBMSStTB,  44. 

pass  to  executor  as  personalty,  45. 

may  be  taken  in  execution,  45,  447. 

may  be  dislrained  for  rent,  46,  446. 

tenant*  s  right  to,  46. 

tenant  holding  over  to  take,  47,  429. 

tenant  at  will,  47. 

tenant  at  sufferance,  48. 

right  to,  under  mortgage,  48. 

right  to,  'Under  wrongful  possession,  48. 

pass  by  sale  or  devise  of  land,  49. 

sale  of,  within  Statute  of  Frauds,  49. 

bill  of  sale  of,  50. 
Ehoboaohxent. 

by  tenant  on  adjoining  land,  12. 

by  copyholder  on  waste,  12. 

by  riparian  owner  on  bed  of  stream,  155. 

on  highway,  490,  494,  547. 

by  bmlding  over  boundary,  13,  235. 
EnwuircmHinncNT. 

of  copyhold,  merger  of  customary  rights  by,  360. 

P  P  2 


580  INDEX. 


for  breacli  of  oomdition,  391,  476. 

ejecstmeat  upon  right  of,  477. 

to  distrain  for  rent,  435. 
Equitablb  Tevakt. 

poflsesaorj  rights  of,  26. 

title  ofj^nder  Judicature  Acts,  26,  378. 
EainxABLx  Wastb,  16,  17,  24.    See  Wasib. 

ESOBOW. 

property  in,  126. 


right  of  tenant  to  take,  36. 
common  of,  341,  568. 

£xOBFTXON. 

of  easement  in  grant,  265. 
atprqfiU  d prendre,  347. 

EZBOUTION. 

against  flxtores,  119. 

against  growing  crops,  45,  447. 

met  notice  of  rent  one,  456. 

suspension  of  rent  by,  410. 
by  title  paramount,  410. 
of  ffrantor  of  rent  charge,  411. 
of  lessee  bj  mortgagee,  379. 


Faoiob. 

distress  of  goods  consigned  to,  452. 
Faib. 

oustomaiy,  on  highway,  511. 
Fabx,  6. 
Fbb. 

tenant  in,  15,  16.    See  Tbnaot. 
Fbb  Fabx  Bemt,  383. 

distress  for,  383. 

apportionment  of,  among  lands  charged,  384 . 
Fbbob. 

obligfation  of  owner  as  to,  253. 

against  commoners,  253. 

upon  inclosure  of  common,  253. 

trespass  of  cattle  through  defect  of,  253. 

right  to  have  on  servient  tenement,  254. 

grant  of  right  to,  255. 

obligation  as  to,  between  lessor  and  leasee,  255. 

prescriptiYe  right  to,  256. 

uability  of  servient  owner  for  defects  in,  257. 

damages  recoverable  for  defect,  258. 

presumption  as  to  ownership  of,  258. 

of  mines  and  quarries,  260. 

of  railway,  260,  501. 

of  level  crossing  on  railway,  262. 

of  land  adjoining  highway,  501. 

of  nuisances  adjoining  highway,  502. 
Febbt. 

franchise  of,  514,  537. 

duty  of  grantee  of,  537. 

building  bridge  in  place  of,  538. 

toll  of,  614,  637. 


INDEX.  681 


FiBE. 

liabiHIy  of  tenant  for  damage  by,  96. 
liability  for  rent  of  premises  destroyed  by,  97. 
exception  of,  in  covenant  to  repair,  98. 
insurance  against,  100. 
rebuilding  by  insurance  office  after,  100. 

FOSHEBT. 

in  inland  water,  174. 

in  riyera  non-tidal  and  tidal,  174,  175,.  180. 

in  land  of  another,  175. 

seTeral  fishery,  176. 

freefisherr,  176. 

common  of  fishery,  176. 

qualified  fishery,  177. 

in  open  sea,  177. 

Sea  Fishery  Acts,  177. 

in  arms  of  the  sea,  178. 

Grown  grants  of,  178. 

Srescriptive  right  of,  179. 
shing  weirs,  181. 
royal  fish,  182. 
salmon,  183. 
oysters  and  shell  fish,  183. 


upon  land,  103. 

pass  to  purchaser  or  lessee,  104. 

pass  to  mortgagee,  106. 

upon  land  of  another,  107. 

annexation  of ,  108. 

buildings  as,  109,  112. 

for  trade  use,  109,  114. 

for  domestic  use,  110,  114. 

for  furniture  and  ornament.  111,  114. 

accessories  to.  111. 

tenant's  right  of  remoying,  112, 113. 

agricultural  tenant's  right  to,  116. 

removal  during  tenancy,  116. 

agreements  as  to  remoyal  of,  117. 

covenant  by  lessee  to  leave,  118. 

action  for,  119. 

execution  against,  119. 

distress  of,  120. 

in  banlmiptcy  of  tenant,  120. 

separate  assignment  of,  121. 

under  Statute  of  Frauds,  121. 

under  Bills  of  Sale  Acts,  121. 
Flood. 

extraordinary,  liability  for,  146. 

right  to  protect  against,  146. 
Fou>AOB,  336. 

FOBBST. 

law  of,  83. 

purlieus  of,  84. 

charter  of  the,  84. 

franchise  of,  86. 

waste  in,  83. 

rights  of  common  in,  84,  670. 

Fox  HUNTINQ. 

right  of,  77. 


582 


INDEX. 


of  foreflt,  85. 
of  warren,  73,  85,  330. 
of  port,  169. 
olwreok,  172. 
of  royal  fiah,  182. 
of  ferry,  514,  537. 
of  toll,  512. 
digtnrbance  of;  170,  538. 

FSSKSOLDEBS. 

cnstomazy  rights  of,  569. 
ri^ta  of,  to  mineralfl,  64. 
Fbbb  Wabben,  73,  85. 

grant  of  manor  with,  85. 

FBOnTAOEB. 

liability  of,  to  maintain  sea  wall,  168. 

FUBHIBHBD  HOUBB. 

implied  warranty  of,  in  letting,  99. 
a8  fixtures,  111,  114. 


Gjooi. 

property  in,  73. 

trespass  in  pursnit  of,  74. 

penalty  on  trespasser,  75. 

penalty  on  oocnpier,  76. 

definea  by  statute,  76. 

right  to,  severed  from  land,-  78,  199,  330. 

oyerstooidng  land  with,  79. 

Ground  Gimie  Act,  79. 

license  of  sporting,  80,  199. 

oonstmction  of  grants  and  leasee  of,  81. 

under  Indosure  Acts,  81. 

reservation  to  lord  of  manor,  82. 

rating  of,  82. 

rights  of  chase  and  warren,  85,  330. 
Gates. 

highway  subject  to,  511. 
Gavblkuti). 

rent-charge  on  land  of,  391. 

custom  of,  558. 
Gold  and  Silyeb. 

mines  of,  51,  70. 

distress  of,  446. 
Gbaivt. 

of  incorporeal  hereditament  by  deed,  185,  263. 

implied,  of  easements,  266,  269. 

no  easement  implied  in  derogation  of,  273. 

of  power  of  distress,  879,  386. 

of  crown,  incoiporating  grantees,  565. 
GsowiKa  Obopb. 

as  interest  in  land,  49. 

bill  of  sale  of,  60. 

in  bankruptcy,  49. 

distress  of,  46,  446. 

execution  on,  45,  447. 

See  EXBLEMENTB. 


INDEX.  583 


waste  in  destroying,  35,  108. 

property  in  cuttings  of,  36. 
Hexblooxs. 

customary,  136. 

personal  ohatteLs  settled  as,  136,  137. 

sale  of,  137. 

under  Settled  Land  Act,  138. 
Herbaob, 

of  land,  grant  of,  331. 

trespass  to  possession  of,  332. 

SXBEDITAICENT. 

corporeal  and  incorporeal,  8,  186,  263. 

HlGHWAT. 

distingpiished  from  easement,  483. 

different  kinds  of,  483. 

cattle  way,  484. 

railway,  484. 

navigable  river,  485. 

without  thoroughfare,  486. 

ownership  of  soil  of,  487,  491. 

inclosing  sides  of,  488. 

conveyance  of  land  adjoining,  489. 

trespass  on,  490,  501. 

ownership  of,  under  statutes,  491. 

compensation  for  taking,  490,  492. 

termini  of,  493; 

width  of,  493. 

deviation- from,  494. 

public  use  of,  495. 

public  meetings  on,  495. 

excessive  traffic  on,  496. 

locomotive  engines  on,  496. 

tramways  on,  496. 

access  to,  by  adjoining  owner,  497. 

special  use  of,  by  adjoining  owner,  498. 

fencing  by  adjoining  owner,  501. 

dedication  of,  604,  610.    See  DEDiCiiTiOH. 

franchise  of  toll  on,  612. 

exemption  from  toll  on,  515. 

no  prescriptive  claim  against,  516. 

stopping  and  diverting,  616. 

destruction  of,  618. 

repair  of,  by  parish  or  district,  519,  521. 

conditions  of  liabiliiy  to  repair  under  Highway  Act,  522. 

declared  unnecessary  by  justices,  523. 

repair  under  highway  board,  524. 

repair  of  main  roads,  524. 

repair  of  main  roads  by  county  council,  525. 

improvement  of,  526. 

liability  to  repair  by  tenure  of  land,  528,  630,  532. 

inclosure  of  land,  529. 
indictment  for  non-repair,  538. 
action  for  non-repair,  539. 
summary  remedies  for  non-repair,  541,  542. 
nuisance  on,  494,  495,  496,  499,  543. 

on  land  adjoining,  502. 
indictment  for  nuisance  on,  542. 
action  for  nuisance  on,  544. 


584'  INDEX. 


HiOHWAT — eontinusd, 

alntement  of  nniBance  on,  545. 

ranimaiy  remedies  for  xmuance  and  obBtmctiaiL,  546. 

enoroacnmenta  on  side  of,  494,  547. 

HOUKK. 

indudee  garden  and  cmtilage,  6,  88. 

extent  of,  under  oompnlaory  sale,  89. 

partition  of,  in  separate  tenements,  90. 

relative  rights  and  liabilities  of  put  owners,  91,  252. 

liabiliiy  for  repairs  of,  92. 

permissiye  waste  in,  92. 

waste  hv  pulling  down,  94. 

reasonable  use  by  tenant,  95. 

covenant  bj  lessee  to  repair,  97. 

liability  of  landlord  for  condition  of,  98. 

warranty  of  condition  on  letting  furnished,  99. 

covenant  by  lessor  to  repair,  99. 

insurance  of,  against  fin,  100. 

right  of  support  for,  245. 

support  of,  by  adjoining  house,  249.    See  Sufpost. 

naming  and  numbering,  9. 

right  of,  76,  77,  81. 


of  waste,  exemption  from,  22,  24.    See  Waszb. 

IXPLBMSSTB. 

of  trade,  privileged  from  distress,  448. 

iMFBOVBiaSNTB. 

under  Settled  Land  Act,  101. 
Inolosubb. 

of  waste,  360.    See  Appbovbicert. 

by  custom  of  manor,  364. 

of  sides  of  highway,  529. 
Inglosubb  Aotb. 

reservation  of  minerals  under,  64. 

reservation  of  game  under,  81. 

indosure  of  commons  under,  366. 
Inooiob. 

of  land,  gift  of,  7,  395. 

annuity  charg^ed  on,  393. 

InOOBFOBBAL  HEBESITAlCEZnS. 

grant  of,  185,  263. 
rent  of,  381. 

IirOUlCBBBT. 

of  benefice,  liability  for  repair,  93. 
right  of,  to  minerals  of  glebe  land,  58. 
Ibdiotmbnt. 

for  non-repair  of  highway,  538. 

against  surveyor  or  nighway  authority,  541. 

for  nuisance  on  highway,  542. 

IlTFAlVT. 

tenant  in  tail,  right  to  timber  and  minerals,  17. 
Injunction. 

to  restrain  waste,  19. 

for  disturbance  of  easements,  214,  317. 

principle  of  granting,  318. 

mandatory,  319. 

interlocutory,  320. 


INDEX.  585 


IsrjUNcnoN — continued, 

to  protect  light,  214,  321. 

against  nmBances,  220,  221. 
IifSFEcnov. 

of  title  deeds,  130.    See  Title  Deeds. 
Ikbubanob. 

against  fire,  100.    See  Fibb. 
Ibtebbst. 

of  mortgage  and  bond,  apportioned,  417. 
Ibbioation. 

easement  of  diverting  stream  for,  227. 

l.LtrttkiK  Land,  341. 

liAHD. 

terms  of  description  of,  5,  9. 

identification  of,  9. 

boundaries  of,  10.    See  Boundabies. 

property  in,  above  and  below  surface,  12. 

separate  property  in  surface  and  minerals,  13. 

includes  nouses  and  buildings,  87. 

natural  use  of,  as  regards  neighbour,  230. 

superfluous  land,  under  Lands  Clauses  Act,  14,  66,  490. 

public  uses  of,  482. 

action  for  use  and  occupation  of,  474. 

proceedings  to  recover  possession  of,  478. 
Lahdlobd. 

warranty  by,  of  condition  of  demised  premises,  99. 

liability  for  repair,  98. 

liability  for  nuisance  on  demised  premises,  146,  645. 
Lease. 

of  minerals,  55. 

by  mortgagor  in  possession,  379. 

in  exercise  of  power,  92,  100. 

tenancy  under  agreement  for,  377. 

covenants  to  repair  in,  97,  99. 

condition  of  re-entry  in,  476. 

property  in  deed  of,  and  counterpart,  126. 
Lkvaet  and  oouchant. 

cattie,  333,  338.    See  GoiocoN. 
Level  osossiNa. 

on  railway,  262,  502. 

lilOENSB. 

to  use  land,  194. 

to  build  on  land,  195. 

to  g^t  minerals,  53,  199. 

to  take  profits  of  land,  329. 

of  sporting  and  taking  game,  78,  80,  199,  330. 

not  assignable,  196. 

coupled  with  grant,  197. 

revocation  of,  195. 

notice  of  revocation  of,  196. 

LlOBT. 

easement  of,  211. 

appurtenant  to  buildings  only,  212. 

limits  over  servient  tenement,  213. 

obstruction  of,  within  fortv-five  degrees,  214. 

for  town  and  country  buildings,  214. 

application  of,  on  dominant  tenement,  215. 

for  unoccupied  tenement,  215. 


IXVEX. 


c£,  3» '?. 

for  obsowtiaB  o£,  Sla,  316. 
:Sra,  214,  121. 
i-X  524. 


TT-rr*  •=!■«.  3t.  tr 


ASGHIBBMErr, 


jnxT. 


....1.  *..». 


R.^tiTv  ;IK    See  Hswat. 


pn.Tue«« 


di5::r«f«t»  is,  4^2. 


parlxN  cm  Idiriwrny,  4,->, 

»*•-  310. 


ci  eais«»ect  is 
erf  precis  ta  owTaer»rL:s^  o^-j", 
vi  rvct»  in  land  e£Are«d,  407.  40^. 
erf  tithe  rwii-tfeaxire,  4C-^. 
of  copTboad.  bj  iiifiiiiiTiiwim,  360. 
6.    SeeHocsB. 


<»  diTstin^ 
ol.  inunstcnal  to 
aband<:i«unent  erf.  3*>7 


INDEX.  .  587 


meaning  of  texm,  68,  70. 
open,  57,  69. 

drainage  of,  142,  144,  230. 
exhauBtion  of,  under  lease,  66. 
fencing  of,  260. 
See  Mdtebau. 


property  in,  61. 

sale  of  surface  and  minerals  separately,  62. 

construction  of  grants  and  reserrations  of,  238. 

license  to  get,  63,  199. 

distinction  of  grant  and  license,  63,  64. 

exclusive  Ucense,  64. 

remedies  of  licensee  in  possession,  64. 

lease  of,  66,  240. 

right  of  tezumt  for  life  or  years  to,  67. 

rents  and  royalties  of,  69. 

ri^ht  of  working  open  mines,  67,  69. 

winning,  as  condition  of  open  mine,  60. 

woiking,  in  settled  land  by  order  of  the  Court,  61. 

by  trustees  under  powers,  61. 
powers  of  leasing,  under  Settled  Land  Act,  62. 
in  copyholds,  62. 

special  customs  for  lord  or  tenant  to  take,  63. 
in  freeholds  of  manor,  64. 
in  waste  of  manor,  64. 

reserrations  of,  under  Indosure  Act,  64,  238. 
under  land  taken  for  railway,  65,  241. 
seyerance  of,  by  railway,  66. 

construction  of  terms,  "mines,"  '* minerals,"  &c.,  67,  70. 
gold  and  silTer  mines,  70. 
customs  of  mining,  72,  663. 
See  SxTPPOBT. 

MONUICBNT. 

in  church,  heritable,  136. 

HOBIOAOB. 

by  deposit  of  deeds,  134. 

by  under-lease,  106. 

attornment  clause  in,  106,  378,  386. 

right  to  emblements  under,  48,  49. 

right  to  minerals  under,  59. 

right  to  fixtures  under,  106,  114. 

right  of  mortgagee  to  title-deeds,  124,  126. 

right  of  mortgagor  to  copies  and  inspection  of  deeds,  131. 

lease  by  mortgagor,  379. 

eviction  of  lessee  by  mortgagee,  379. 

Naxb. 

of  house,  property  in,  9. 
Kavzoatzon. 

right  of,  in  rivers,  166,  168,  162,  485. 
ofetructions  to,  157. 
towing-path,  158,  486. 
SeelUvEB. 

KZCBSSITT. 

easements  implied  from,  266. 
Negative. 

easement,  192,  324. 


588  INDEX. 


nubanoe  of,  221,  222,  223. 

eaaement  of  diffusing,  193,  224. 
NoncB. 

to  quit  tenancy,  47. 

of  revocation  of  license,  196. 

of  distress,  440. 

to  abate  nuisance,  324. 
NozioiiB  Tbaab. 

nuisance  of,  222. 
NxnBAirGB. 

of  noise,  221,  222. 

of  smoke,  221. 

of  noxious  trade,  220,  222. 

of  pollution  of  air,  220. 

of  pollution  of  water,  143,  229,  230. 

to  rights  of  common,  369,  3701 

bj  tmffic  on  railway,  223. 

on  highway,  494,  496,  496,  499,  543. 

adjoining  highway,  602. 

on  navigable  river,  157. 

indictment  for,  542. 

action  for  speouil  damage  from,  544. 

action  by  reversioner,  223. 

abatement  of,  322,  323,  545. 

notice  to  abate,  324. 

liability  of  landlord  for,  545. 

OOOUFANOT. 

ot teat purautre vie,  391. 

OOODPATIOJBr. 

identification  of  land  by,  9. 

OOOUFIEB. 

customary  rights  of,  570. 
Ofbn  Spaces. 
public,  486. 
public  meetings  on,  495. 

O-ZBIKBS. 

right  of  taking,  183. 

fAHNAas,  336. 
Pabibh. 

adoption  of  highway  by,  508. 

repair  of  highway  by,  519,  522,  523. 

agreement  by,  for  repair  ot  highway,  520. 
8ee  HiOEWAT. 
Pakk,  77,  85,  495. 
PABnnoN. 

of  surface  from  minerals,  13. 

of  house  in  separate  tenements,  90. 

ofrent,  412,  414. 
See  AppoBXioinGSNT. 
Pabtt-wazx. 

presumptive  ownership  of,  259. 

rights  and  liabilities  of  co-owner,  259. 

under  Metropolitan  Building  Act,  260. 
Pastubb. 

exclusive  right  to,  331. 

trespass  to  possession  of,  332. 

land  described  as,  332. 


INDEX. 

Paotubs — emtinued, 
oommon  of,  333. 
stinted  and  unstinted,  334,  335. 
leaving  soffioiencj  on  inolosure,  363. 
PsppBBcx>BN  Rent,  372. 
Febsobsiyb  Wastb,  18,  92. 
Pebsonal  Ghattbi^. 

within  Bills  of  Sale  Act,  60,  122. 
lent  of,  382. 
Pe[w. 

in  Churcli,  right  to,  200. 
Flaivtb. 

as  fixtures,  108. 
PLouQHnra. 

meadow,  waste  bj,  18. 
botes  for,  36,  342. 
footpath,  611. 

distraining  beasts  of  plough,  449. 
POVTAQE,  514. 
POBT. 

legal  and  commercial,  169. 
franchise  of,  169,  170. 
statutory  authority  oyer,  170. 
dues  of,  171. 

POUHD. 

public  and  private,  438. 
on  the  premises  distrained  upon,  438. 
feeding  cattle  in,  439. 
breach  of,  467. 
duty  of  keeper  of,  438. 
liability  of  distrainor  for  state  of,  439. 
Peeboqatiye. 

rights  and  duties,  167.    See  Cbown. 
Pbescbiption. 

at  common  law,  282,  350. 
title  by  non-existing  grant,  283. 
under  Prescription  Act,  285,  350. 
time  of,  for  easements,  286. 
for  Ughts,  287. 
for  claims  to  profits,  350. 
enjoyment  as  of  right,  287,  290. 
secret  enjoyment,  291. 

enjoyment  by  license  or  agreement,  292,  294. 
continuity  of  enjoyment,  294,  296,  354. 
period  next  before  action,  297. 
mterruptions  submitted  to,  299,  300. 
presumption  from  enjoyment  short  of,  301. 
disabilities  of  servient  owner,  302,  304. 
legality  and  certainty  of  usage,  353,  354,  654. 
conditional  rights,  354. 
Pbbbuicftion. 

of  ownership,  of  encroachments,  12. 
of  accretions  to  land,  108,  154,  165. 
of  fence,  258. 
of  party-wall,  259. 
of  bed  of  stream,  153. 
of  soil  of  highway,  487. 
Pbtvact. 

claim  ot  right  to,  202. 


589 


!••   -4^   «4£ 


X.    •■-•- 


^-^1. 


!••..  rif^j  »t  "U  5€xeK.  i't»!    STL   5K- 
j*-»i  ♦--j««a.»>  in.  iff-  i*i*l. 


•>.  ^ —    ***" 


'I 


eu4^jM  to  aK  licad  £«;  ^9,  ^9. 


tA  ^tnfjFdiaMrj  tixhe^  40r2« 


or/ii^jtM«  lor,  476,  478.    flee  Coamnoy. 

<if  nAt-cfajtfge  ttod  aoimiiy,  397. 

Km, 

0«mo«,  373. 
chAr^<!;,  373* 
iwx;k,  373,  374. 
Tisnerwaium  of,  375,  381. 


INDEX. 

"RssT^eontinued. 

upon  ffrant  in  fee  or  for  life,  376. 

upon  ^ase  or  underlease,  377. 

upon  tenanoy  at  will,  377. 

upon  attornment  of  mortgpagpor,  378. 

upon  lease  by  mortgagor,  379. 

limitations  of  estates  in,  880,  388. 

of  incorporealliereditamentSy  381. 

of  personal  chattels,  382. 

special  kinds  of,  383. 

grant  of  rent -charge,  385. 

g^nt  of  power  of  distress,  386. 

reservation  of,  without  reversion,  387. 

severance  of,  from  reversion,  388. 

estate  tail  in,  389. 

seisin,  entry,  and  occupancy  of,  390. 

as  real  or  personal  estate,  391. 

as  specially  debt,  473. 

release  of,  406. 

discharge  of  land  from,  407,  408. 

merger  of,  in  ownership,  409. 

suspension  of,  by  eviction,  410. 

eviction  of  grantor  of,  411. 

apportionment  of,  411,  418. 

remedies  for,  422,  471. 

covenant  to  pay,  474. 

action  by  executor  for  arrears  of,  473. 

of  company  winding  up,  469. 
See  Appobtionment  ;  Condition  ;  Distbesb  ;  Ewtbt,  etc. 
Bbpaib. 

liability  of  tenant  for,  92. 

of  ecdesiastioal  benefice,  93. 

right  to  materials  for,  36,  96. 

covenants  for,  97,  98. 

charged  on  settled  land,  93,  100. 

by  owner  of  easements,  210,  228,  279. 
"Rkplbvux, 

proceedings  in,  441,  462,  467. 

jurisdiction  of  county  court,  468. 

security  to  prosecute,  469. 

avowry  and  cognizance,  469. 

writ  of  capias  in  mthernamf  469. 
Rbscue. 

of  distress,  466. 

BsBEBVAXIOir. 

of  minerals,  construction  of,  69,  238. 
of  rent,  construction  of,  376,  381. 
of  easement,  266. 
of  profits,  347. 

BSVKBSION, 

grant  of,  9. 
rent  incident  to,  409. 
incidents  preserved  on  merger  of,  409. 

apportionment  of  rents  and  covenants  on  partition  of,  412,  413. 
Bbvebsionzb. 

property  of,  in  timber,  37. 

timber  cut  in  collusion  with,  38. 

action  by,  for  nuisance,  226. 

action  by,  for  disturbance  of  easement,  316. 


591 


/..v  .V  ';^,  "t^A* 

\*A~*h,.*y  fA  ir'/L*j^»r  i/jr  Ma  w»Z*.  KT. 
^r.rr/nKT  'iKwrutan,  i ^V.    i^^  ^*""'"' 

v/  o*AifpiXym  *jb  f/wnenA,  to  xcpair,  211,  280. 
HnrsMf  LA%h, 

r^y^tn  mA  iirif/ror«fiMSKtii  on,  93,  100,  101. 

tnUtUtt(  Um^m  (Af  f*2, 

tmUi  iff  imt)ftfr  tm,  4Z. 

naUi  fff  h^rUxAnHy  IZHs 
HtcrmiAt,  yumtsxtf  116,  179. 
Hir.wr.nitj  OnoamumKBM  ow,  167* 

riKht  tft  taking,  183. 

MtfOXN' 

nuimntui  of,  221,  223. 
imiMitnvtii  of  dijichArgSng,  224. 


INDEX.  593 

SoucrroB. 

lien  of ,  on  deeds,  125,  134. 
Spagbs. 

open  to  public,  486. 
Spobtdtq. 

rights,  78. 

li^anse  of,  80. 
SrAUiAOB,  563. 
Statutes  cztbd. 

Charter  of  John,  c.  47  (fishery),  178. 

1  Hen.  III.  (charter  of  the  forest),  84. 

9  Hen.  III.  c.  16  (rivers),  178. 

20  Hen.  III.  c.  4  (approvement  of  waste),  361. 

52  Hen.  III.  Stat.  Marlbridge,  o.  4,  s.  15  (distress),  430,  437,  465. 

c.  21  (replevin),  468. 

0.  23  (waste),  19. 

3  Ed.  I.  o.  39  (limitation  of  writ  of  right),  283. 
6  Ed.  I.  0.  5  (waste),  19. 

13  Ed.  I.  0.  1  (de  donia),  8,  389. 

0.  46  (approvement),  361. 

18  Ed.  I.  c.  1  (quia  emptores),  376,  414. 
25  Ed.  I.  c.  16  (rivers),  178. 
c.  23  (weirs  in  rivers),  181. 

28  Ed.  I.  o.  12  (distress  of  beasts  of  plough),  449. 
17  Ed.  IL  c.  11  (royal  fish),  182. 

25  Ed.  III.  Stat.  IV.  o.  4  (weirs  in  rivers),  181. 
5  Richard  II.  c.  8  (forcible  entiy),  477. 

1  Hen.  rV.  c.  12  (weirs  in  rivers),  181. 

4  Hen.  IV.  c.  11  (weirs  in  rivers),  181. 
12  Ed.  IV.  c.  7  (weirs  in  rivers),  181. 

22  Hen.  VIII.  c.  2  (limitation  of  writ  of  right),  283. 

c.  5,  8.  9  (repair  of  bridges),  631. 

82  Hen.  VIII.  c.  37,  s.  1  (distress  by  executor),  473. 

2  Phil,  and  Mary,  c.  12,  s.  1  (impounding  distress),  437. 
31  Elizabeth  c.  7  (cottafee),  334. 

43  Elizabeth  c.  2  (poor  law),  82,  616. 

21  Jac.  I.  c.  16  (limitation  of  action),  283. 

29  Charles  II.,  Statute  of  Frauds,  o.  3,  ss.  1,  2  (leasee  in  writing),  377. 

g  4  (interests  in  laud),  49, 198,  264. 

s.  6  (wills),  8. 

— 8.  12  (special  occupant),  391. 

s.  17  (sale  of  goods),  49. 

1  Will.  &  M.  St.  c.  30  (Royal  mines),  70. 

2  Will.  &  M.  sess.  1,  c.  6  (distress),  439,  443,  446,  461,  467. 

5  Wm.  &  M.  c.  6  (Royal  mines),  70. 

I  Anne  c.  7  (crown  lands),  164. 

4  Anne  o.  16,  s.  9  (attornment),  388. 

6  Anne  c.  31  (accidental  fires),  96. 

8  Anne  c.  14,  s.  1  (claim  of  rent  in  execution),  120,  455. 

s.  4  (action  of  debt  for  rent),  472, 

ss.  6,  7  (distress  after  end  of  term),  428. 

4  Geo.  II.  c.  28,  s.  1  (holding  over  after  end  of  term),  429. 
g.  5  (distress  for  rents  seek),  374, 383, 385, 388,393,440. 

II  Geo,  II.  c.  19,  ss.  I,  7  (distress  of  goods  fraudulently  removed), 

432,  436. 

s.  8  (distress  of  cattle  on  common),  432. 

8.  8  (distress  of  growing  crops),  46,  443,  446. 

: 8. 10  (impounding  and  rale  of  distress  on  premises), 

437,  440,  443,  462. 

I^  Q  Q 


594  INDEX. 

Statutes  crrvD— continued. 

11  Geo.  II.  o.  19,  s.  14  (action  for  use  and  ooeujMtion),  475. 

8.  15  (apportionment  of  rent),  417. 

8.  16  (recovery  of  possession),  478. 

8.  18  (holding  over  after  notice  to  quit),  430. 

■  8.  19  (irregular  distress  not  trespass),  463. 

8.  23  (replevin  bond),  468. 

24  Geo.  II.  c.  23  (correction  of  calendar),  341. 

13  Geo.  III.  0.  81  (common  fields),  341. 

14  Geo.  III.  c.  78,  s.  83  (rebuilding  insured  house),  100. 
8.  86  (accidental  fires),  96. 

17  Geo.  III.  c.  26  (reg^tration  of  annuity),  397. 

41  Geo.  III.  c.  lOi^,  ss.  8,  9  (roads  set  out  on  inclosure),  504. 

43  Geo.  III.  c.  59,  s.  5  (repair  of  county  bridges),  533,  535. 

48  Greo.  III.  c.  75  (bodies  cast  on  shore),  163. 

53  Geo.  III.  o.  141  (registration  of  annuiiy),  397. 

55  Geo.  III.  c.  134  (royal  miaes),  70. 

56  Geo.  III.  c.  50  (execution  against  crops  to  be  used  on  fann),  45, 
457. 

57  Geo.  III.  c.  93  (charges  of  distress),  442. 

3  Geo.  IV.  o.  126,  s.  39  (distress  for  tolls),  515. 
s.  51  (tolls  exempt  from  rates),  516. 

9  Geo.  IV.  c.  69,  s.  1  (trespass  at  night  to  take  game),  76. 

10  Geo.  IV.  c.  50  (sale  of  crown  lands),  161. 

1  &  2  WiU.  IV.  c.  32,  s.  12  (occupier  killing  game),  76,  77,  81. 
8.  30  (trespass  in  pursuit  of  game),  75,  254, 

347,  491. 

2  Will.  rV.  c.  45,  B.  26  (possession  of  rent),  390. 

2  &  3  Will.  IV.  c.  71,  Prescription  Act,  s.  1  (profits  k  prendre),  350. 

8.  2  (easements),  286,  293. 

s.  3  (lights),  287,  290,  293. 

s.  4  (period  next  before  action),  297,  299. 

8.  o  (pleading  prescription),  288,  291. 

s.  6  (period  &ort  of  prescription),  301. 

Bs.  7,  8  (exception  of  disabilitiee),  302,  304. 

3  &  4  WiU.  rV.  0.  27,  s.  35  (express  trusts  of  rent),  427. 

s.  36  (abolition  of  real  actions),  19,  472. 

8.  42  (limitation  of  distress  for  rent),  426. 

c.  42,  s.  2  (actionby  or  against  executor  for  waste),  21. 

s.  3  (limitation  of  action  for  rent),  426. 

ss.  37,  38  (distress  by  executor),  428,  473. 


c.  74  (fines  and  recoveries),  389,  403. 
c.  90,  s.  33  (lighting  and  watching),  88. 


4  &  5  Will.  IV.  c.  22,  ss.  1,  2  (apportionment  of  rent),  417, 418. 
c.  36,  8.  22  (offences  at  sea),  160. 

5  &  6  Will.  IV.  c.  50,  8.  21  Broadway  of  bridges),  537. 

s.  23  (repair  of  new  highway),  522. 

s.  72  (obstruction  of  highway),  495,  546. 

s.  82  (improvement  of  highway),  527. 

1 8.  94  (liability  of  surveyor),  541. 

c.  59  (feeding  impounded  cattie),  439. 

6  &  7  Will.  IV.  o.  71  (tithe  commutation),  396—405. 
0.  115  (common  fields),  341. 

1  Vict.  0.  26,  s.  6  (special  occupant  of  rent),  391. 
1  &  2  Vict.  0.  64  (merger  of  tithes),  403. 

0.  74  (recovery  of  possession),  479. 

5  &  6  Vict.  o.  54,  8.  12  (power  of  titheowner  to  let),  401. 
8.  16  (contribution  io  tithe  by  co-owners),  405. 

7  &  8  Vict.  c.  2,  8.  1  (offences  at  sea),  160. 


INDEX.  695 

BzATUTES  CITKD — continued, 

8  Vict.  0.  18,  Lands  ClaQses  Act,  a.  18  (oompensation  for  land),  104, 

265,  316,  490. 

8.  68  finjurionaly  affectinff  land),  149,  202,  266. 

8.  92  (oompubory  sale  of  nonse),  89. 

8.  99  (compensation  for  common  rights),  346. 

s.  127  (snperfluons  land),  14,  66,  490. 


auses  Act,  s.  46  (railway  bridges),  534. 

B.  68  (fencing  of  railway),  260. 

88.  77,  78,  79, 80  (minerals  under  railways),  66,  241. 

8.  92  (railways  as  highways),  484. 


8  &  9  Vict.  c.  106,  s.  2  (corporeal  tenements),  186. 

8.  3  (leases  by  deed),  377. 

8.  9  (merger  of  reversion),  409. 

• c.  118  (Indosure  Act),  341. 

" 8.  27  (compensation  for  lord's  rights),  346. 

8.  62  (setting  out  highways),  517. 


9  &  10  Vict.  c.  73,  s«.  1,  2  (redemption  of  tithe),  403. 

BS.  18,  19  (merger  of  tithe),  403. 

c.  102  (ports),  170. 

10  &  11  Vict.  c.  15,  s.  14  (distress  of  gas  fittings),  462. 
0.  89  (nuisanoes  in  streets),  647. 

13  &  14  Vict.  c.  21  (shortening  Acts  of  Parliament),  87. 

14  &  16  Vict.  c.  25,  8.  1  (emblements),  429. 

8.  2  (distress  of  crops  taken  in  execation),  457. 

— ^— -~— —  8.  3  (agricultural  fixtures),  116. 
8.  4  (tenant  leaving  tithe  unpaid),  406. 

16  &  16  Vict.  0.  76,  8.  210  (ejectment  for  non-payment  of  rent),  477. 

16  &  17  Vict.  c.  107  (ports),  170. 

17  &  18  Vict.  c.  97,  88.  10-14  (api)ortionment  of  rents),  384. 
c.  104,  Merchant  Shipping  Act,  ss.  439,  474  (wreck), 

172,  173. 
0.  126,  88.  79,  81  (injunction),  317. 

18  Vict.  c.  15,  8.  12  (registration  of  annuity),  397. 

18  &  19  Vict.  c.  120,  Metrop.  Local  Management  Act,  s.  96  (surreyor 

of  highways),  540. 

— — 8.  96  (highways  Tested  in  board),  492. 

8.  141  (naming  of  streets),  9. 

c.  122,  8.  83  (party  walls),  260. 

22  &  23  Vict.  0.  35,  s.  3  (conditions  of  re-entxy  apportionable),  415. 
■ 8.  10  (release  from  rent-charge),  407. 

23  &  24  Vict.  0.  93,  s.  31  (redemption  of  tithe),  403. 

24  Vict.  c.  10,  8.  36  (admiralty  court),  161. 

24  &  26  Vict.  o.  70  (locomotives  on  highways),  496. 

o.  96,  8.  28  (larceny  of  deeds),  125. 

0.  109,  8.  12  (fishing  weirs),  182. 

26  &  26  Vict.  o.  61,  Highway  Act,  1862  (highway  board),  624. 

8.  34  (repair  by  tenure),  529. 

s.  86  (order  declaring  highway),  622. 

8.  46  (inclosing  highway),  629. 

c.  89,  8.  163  (distress  against  company),  468. 

c.  102,  88.  52,  77  (paving  new  streets),  490. 

c.  108,  8.  2  ^separate  sale  of  minerals),  52. 

0.  114,  8.  1  (game),  77. 

27  &  28  Vict.  c.  101,  s.  24  (liability  to  repair  by  tenure),  630. 

'  88.  47,  48  (improvement  of  highways),  527, 

— 8.  51  (incroacnment  on  highway),  489,  547. 

28  &  29  Vict.  0.  83  (locomotives  on  highways),  496. 

29  &  80  Vict.  c.  122  (metropolitan  commons),  495. 

Q  Q  2 


596 


29  k  30  Vict,  c  62  'cnwm  rifdlKte  to  IbteAote, .  1 W- 
31  1^  32  Vict.  c.  45  ScA  Fidicriei  Art,  1868  ,  177.    ^ 
e.  122,  s.  27  (eea  diOR  Mmrrfd  to  punB;,  !••- 


32  A  33  Vict,  c  19  (•*««'?"».  J^.,^  ^,^^,    ..^ 
c.  46  (prionty  of  ipecialitj  dMs),  444. 

33  &  34  Vict.  c.  35  (Apportiomnait  Act,  1870.,  418.  ^ 

c.  73,  B.  12  (tonipike  wyd  tpdg«>,  »3». 

] c.  78  'tnuHwayB  on  liiglrir»y»;,  496. 

ZAkU  Vict.  c.  43  (eodesastical  diUpidatians;,  94. 
c.  79  Oodgen  goods  protectian),  454. 

35  1^  36  Vict.  c.  15  (royil  pwdu,,  496. 
c.  77  (fencmg  of  mma},  260. 

36  ic  37  Vict.  c.  66,  Judicatoze  Act,  as.  24,  25  (injnnctun,,  31<,  318. 
B.  25  (equitable  waate)  24. 

37  k  38  Vict.  c.  54,  s.  3  frataiig  of  game},  82. 
.  c.  57,  8.  10  'exatem  tnuta  of  rent),  426. 

38  &  39  Via.  c.  55,  PubU^  Health  Act,  a.  JM  (removal of  nmaaiice), 

221. 

a.  149  (vesting  of  hifi^wajB),  492. 

«.  150  (paving  new  street),  490. 

c.  92,  a.  51  (notice  to  qmt  agncnltozal  holding),  4< . 

39&40Vict.  c.  36(portfi),  170..  ,  ^  _^^    x    ^- 

40  &  41  Vict.  c.  18,  SB.  16,  34  (tnnber  on  settled  estates),  43- 

41  &  42  Vict.  c.  31,  B.  4  (bill  of  sale  of  crops),  W.^^ 

»    a.  6  (bill  of  sale  of  power  of  distress],  3oo. 

88.  8,  9  (bUl  of  sale  of  firtores),  121. 

c.  42  (redemption  of  tithe),  403. 

c.  73  (territorial  waters),  160. 

c.  77  (locomotives  on  highways),  496. 

s.  10  (indictment  of  highway  aatfaonty),  539. 


-    s.  23  (extraordinary  trafBc),  496. 
8.  24  (unnecessary  highway),  617. 


43  &  44  Vict.  c.  47  (Ground  Game  Act),  79,  80 

44  k  46  Viot.  c.  41,  Conveyancing  Act,  1881,  s.  3  (payment  of  rent), 

373. 

. . -    g.  6  (easements  implied  in  conveyance),  2i8. 

s.  9  (production  of  deeds),  132. 

.     B.  12  (apportionment  of  conditions),  415. 

8.  14  (rehef  against  forfeiture),  478. 

8.  16  (inspection  of  deeds  by  mortgagor),  131. 

s.  18  (leases  by  mortgagor),  379. 

s.  44  (remedies  for  rent- charges),  374,  480. 

. .    s.  45  (redemption  of  rent-charges),  384. 

8.  61  (limitations  of  fee),  380. 

8.  69  (contracts  binding  real  estate),  392. 

. s.  62  (grant  to  use  of  easements),  263. 

46  k  46  Vict.  o.  87,  s.  9  (return  of  com  averages),  399, 

o.  38,  Settled  Land  Act,  1882,  s.  2  (nunesandmmeraJa), 

70. 

SB.  2,  6,  7,  9,  11  (mining  lease),  62. 

8.  17  (sale  with  exception  of  minerals),  52. 

8S.  21,  26  (money  from  sale  of  settled  land),  101. 

8.  85  (sale  of  timber  on  settled  estates),  43. 

.__ .    8.  37  (sale  of  heirlooms),  138. 

. s.  58  (sale  by  tenant  in  tail),  17. 

.       0.  43,  88.  8,  9  (bill  of  sale  of  fixtures),  121. 

46  k  47  Viot.  o.  22  (Sea  Fisheries  Act,  1883),  177. 
c.  52,  8.  42  (distress  in  bankruptcy),  427,  458- 


INDEX.  697 

Statutbs  cited — eoniinuid, 

46  &  47  Vict.  o.  52,^8.  56  (diBclaimer  of  lease),  121. 

0.  61,'  Agricultural  Holdings  Act,    1883,   as.   1,   34 

(tenant's  fixtures),  115. 

s.  44  (limitation  of  distress),  427. 

B.  45  (distress  of  machinery  or  stock  hired),  462. 

— ■ S8.  46,  46  (distress  of  cattle  ag^isted),  464. 

49  &  60  Vict.  c.  54  (extraordinary  tithe),  402. 
60  &  61  Vict.  0.  19  (fencing  of  quarries),  70,  260. 

c.  43  (stannaries),  664. 

51  &  52  Vict.  o.  21,  ^Distress  Amendment  Act,  1888,  s.  6  (appraise- 
ment of  distress),  441. 

8.  6  (sale  of  distress),  441,  442. 

s.  7  (certificated  bailiffs),  434. 

o.  41,   Local    Goremment   Act,   1888,  s.   3   (county 

bridges),  635. 
8.  11  (mam  roads),  625. 


c.  43,  County  Courts  Act,  1888,  s.  60  (recovery  of  pos- 
session from  tenant),  479. 
88.  134,  136  (replevin),  468. 


-  B.  147  (goods  protected  from  execution),  448. 
-8.  160  (daim  of  rent  in  execution),  466. 


Stint. 

of  common,  334,  336.    See  Comcozr. 
Stobt. 

of  house  as  separate  tenement,  252. 
SnuiAic. 

natural  and  artificial,  226,  232. 

below  surface,  149. 

ohaiLre  of  course  of,  154,  157* 
SeeWATBB. 

SUBSn>ENOE. 

of  land  from  draining,  143. 
of  building,  248. 

SUFEBFLUOUB  LiAND. 

of  railway  company,  14,  66. 
minerals  under,  67. 
adjoining  highway,  490. 

SUPPOBT. 

for  surface  by  subjacent  land,  65,  236. 

presumed  upon  severance,  236. 

grant  of,  237. 

under  g^rants  and  reservations  of  minerals,  238. 

under  mining  leases,  240. 

by  minerals  under  railways,  241. 

artificial  substitute  for,  242,  244. 

by  adjacent  land,  243. 

for  btuildings,  246. 

by  g^nt  or  prescription,  246,  247,  260. 

for  building  by  adjoining  building,  249. 

of  upper  by  lower  stozy,  262. 

repair  of  servient  building,  261. 

limitation  of  action  for  disturbance  of,  242,  244. 

damage  by  disturbance  of,  248,  251. 

SUBCHABQINO. 

common,  363.    See  CoiocoN. 

SUBFAOB. 

property  in,  12. 

severance  of,  from  substratum,  61,  236. 


598  INDEX. 

Sttbfacb — eoHHnu0d. 

trespaas  to  poflsessioa  of,  332,  367. 
SeeMnmuLS. 

SXTBYSTOB. 

of  highways,  highway  authority  as,  539. 

action  for  non-repair,  639. 

summary  remedies  against,  541. 

removal  of  nniaanoe  by,  548. 
SusPBiraiON. 

of  easement  daring  ownership,  311. 
of  rent  daring  eviction,  410. 

Telsobaph  Posts. 

fixed  on  private  land,  13,  107. 
on  highways,  496. 
rating  of,  107. 

possessory  rights  of,  in  fee  simple,  15. 

in  fee  tail,  16,  17. 

for  life  or  years,  18. 
equitable,  possessory  rights  of,  26. 
liability  of,  for  waste,  18,  19,  98. 
right  of,  to  materials  for  repair,  36,  96. 
right  of,  to  remove  fixtures,  103,  112,  116. 
dutv  of,  as  to  boundaries  of,  10. 
holding  over,  remedies  against,  429,  430. 

TESA2HT  AT  "WlLL. 

waste  by,  25. 

not  liable  for  repairs,  37. 

right  of,  to  emblements,  47. 

distress  for  rent  of,  377. 

removal  of  floods  by,  at  end  of  tenancy,  117,  196. 
Tenant  fbox  iea&  to  Ysab. 

right  of,  to  emblements,  47. 

underlease  for  years  by,  377. 
TsNAirr  IN  Tail. 

not  impeachable  for  waste,  16,  17. 

sale  of  timber  by,  16. 

after  possibility  of  issue  extinct,  17. 

of  rent,  380,  388. 
Tehsbb.  f 

of  rent  before  distress,  461. 

before  impounding,  461. 

after  impounding  and  before  sale,  443,  462. 

of  damages,  to  distress  damage  feasant,  462. 
Tenement. 

meaning  of  term,  8,  9. 
Tenubb. 

liability  for  repair  by,  628,  532. 

transfer  of  liability  to  parish,  530. 
Tebxini. 

of  private  way,  208. 

of  public  way,  493. 
Tebbttobial  Watebs,  160.    See  Sea. 
Thobouohfabb,  486.    See  Cul  db  sag  ;  Hiokwat. 
TiDAii  Watebs. 

property  in,  161,  175. 

publio  navigation  erf,  166. 

fisheries  in,  178. 


INDEX.  599 


Tn>AL  Watebb — continued, 

non-tidal  waters,  162,  174,  180. 


right  of  tenant  to,  33,  34. 

estates  oultiyated  for,  33. 

right  of  tenant  to  cut,  for  repairs,  36,  37. 

property  in,  cut  during  tenancy,  23,  37. 

cut  in  collusion  with  reversioner,  38. 

severed  by  wind  or  accident,  40. 

cut  hj  order  of  court,  40. 

application  of  proceeds  of,  41. 

statatorv  powers  to  sell,  43. 

application  of  proceeds  under  Settled  Land  Act,  43. 
SeeTBBES. 
Tdoe  DOCEicoBiAL,  282,  652.    See  Pbesobiftion. 
Tin  BotTNDiNO,  custom  of,  72,  663. 
TiTHB  BxsT  Ghasoe,  398. 

com  average  for,  399. 

valuation  and  apportionment  of,  399. 

substitution  of  rent-charge  for  tithe,  400. 

distress  for,  400. 

writ  of  possession  for,  400,  401. 

personal  liability  for,  400,  404,  473. 

extraordinary,  redemption  of,  402. 

freehold  estate  in,  402. 

charged  upon  copyhold  and  customary  land,  403. 

merger  of,  403. 

redemption  of,  403. 

grant  or  lease  subject  to,  403. 

uability  of  tenant  for,  404. 

tenant  quitting  without  paying,  406. 

contribution  to,  from  co-owners,  405. 

assessment  of,  for  rates  and  taxes,  406. 
TiTLB  Deeds. 

property  in,  124. 

box  used  for,  126. 

larceny  of,  125. 

right  of  porohaser  to,  126. 

properfr  in  lease  and  counterpart,  126. 

rignt  of  mortgagee  to,  126. 

custody  of,  by  tenant  for  life,  127. 

custody  of,  by  cestui  que  trust,  127. 

control  of  court  over,  128. 

order  to  bring  into  court,  128. 

concurrent  interests  in,  128. 

of  land  sold  in  lots,  128. 

production  of ,  130. 

privilege  of  mortgagee  against  production,  131. 

right  of  mortgagor  to  inspection  and  copies,  131. 

covenant  to  produce,  126,  132 

right  to  attested  copies  of,  132. 

production  under  Conveyancing  Act,  132. 

property  in,  separate  iram  lanc^  133. 

deposit  of,  as  security,  134. 

lien  of  solicitor  on,  126,  134. 

adverse  possession  of,  136. 
Toil.. 

thorough,  612 

traverse,  513,  514. 


600  INDEX. 


Toll — continued, 

on  highway,  612,  614. 

on  turnpike  roads,  621. 

exemptionB  from,  on  highway,  616. 

pontage,  on  bridges,  614. 

of  ferry,  614,  537. 

port-dues,  171. 

distress  for,  616. 

rating  of,  616. 
TowiNO  Path,  168,  486,  608. 

TSADE. 

privflege  from  distress  in  favour  of,  448,  460. 

usages  of,  664. 
Trade  FizTUBES,  109,  114. 
Trlffio. 

extraordinary,  on  highway,  496. 
Tbakwat. 

on  highway,  496. 
Tbbabxtbs  Tbote,  71. 


timber,  32,  33. 

not  timber,  34,  39. 

growing  into  timber,  34. 

ornamental  and  shelter,  36,  42. 

property  in,  29. 

severed  by  wind  or  accident,  39. 

grant  or  exception  of,  separately,  30. 

Bcence  to  cut,  30,  330. 

contract  for  sale  of,  30. 

lease  with  exception  of,  31. 

construction  of  grants  and  exceptions  of,  32. 
SeeTDCBEB. 
Tbbspass. 

ab  initio,  463. 

in  pursuit  of  game,  74,  76. 

of  cattle,  263,  264,  267. 

on  highway,  490. 

on  possession  of  surface  of  land,  332,  867. 
of  minerals,  64,  367. 
Tbxtbtee. 

grant  of  easement  by,  272,  312. 

prescription  by,  290. 
Tubbabt. 

common  of,  342,  366. 

TUBNFIKE  BOAD. 

ownership  of  soil  of,  491. 
liability  for  repair  of,  621 . 
converted  into  main  road,  624. 
bridges  on,  636. 
toll  on,  621. 

Uxn>EBLSASB. 

rent  service  on,  377. 
for  whole  term,  387. 

I  XJlTSEEWOOD. 

right  of  tenant  to,  35. 
Unity  ov  Tttlb. 

extinction  of  easement  by,  265,  310. 
legal  and  equitable,  290,  312. 


INDEX. 


as  baflin  of  custom,  552 . 
immemorial,  662. 
certainty  of,  554. 
reasonablenera  of,  557. 
repugnant  to  ownership,  5C0. 
SeeCTTSTOX. 

USB  AND  00C?UPATI0ir. 

action  for,  474. 

ViCINAOB. 

common  of,  338. 
VnjiAOE  Gbbew. 

custom  to  use,  669. 
Vis  Major. 

waste  by,  22. 

escape  of  water  by,  145. 

Wall,  259.    See  Party  Wall. 

as  fixture,  108. 

sea  wall,  167. 
Wabeanty. 

by  landlord,  99. 
Wabben. 

as  description  of  land,  6. 

franchise  of,  85,  330. 

grant  by  crown  of,  85. 

Wastb. 

voluntary  and  permissive,  18,  92. 
equitable,  16,  24,  26. 
by  tenant  in  fee  simple,  15. 
by  tenant  in  tail,  16,  17. 
by  tenant  for  life  or  for  years,  18. 
tenant  without  impeachment  of,  22,  24,  94. 
by  tenant  at  will,  25. 
by  copyholder,  26. 
by  tenant  of  equitable  estate,  26,  93. 
covenants  and  agreements  as  to,  25,  97,  98. 
action  of,  19,  21. 
injunction  against,  19. 
damages  recoverable  for,  20. 
limitation  of  action  for,  20. 
action  by  and  against  executor  for,  21. 
waste  in  trees  and  timber,  34,  35,  37,  39. 
-   waste  in  minerals,  57. 
waste  in  houses  and  buildings,  92,  94. 

of  manor,  common  rights  on,  336,  344.     See  Cojocow. 
indosure  of,  360.     See  Appbovbmbnt. 

Watbb. 

standing  on  surface,  139,  225. 
property  of  riparian  owner  in,  140. 
percolating  below  surface,  140. 
right  of  draining  off,  140,  142. 
subsidence  caused  by  draining,  143. 
pollution  of,  below  surface,  143. 
artificial  collection  of,  143. 
liability  for  escape  of,  144,  146. 
.   collection  of,  in  houses,  146. 
,  R  R 


601 


602  INDEX. 


WATKR—eoHtiMied. 

extraordinary  flood  of,  146. 
mimiiigixi  natural  streams,  148,  226. 

running  below  surface,  149. 

ordinary  rights  of  riparian  owner,  149, 226. 

diTersion  of,  by  riparian  owner,  160. 

aoquired  riffhts  of  riparian  owner,  151. 

rignts  acquired  by  non*riparian  owner,  152. 
right  to  take,  from  land  of  another,  830,  562. 
property  in  bed  of  stream,  153. 
encroaonment  on  bed  of  streamy  155. 
rights  of  navigation,  156,  158. 
easement  of  diverting  stream,  226. 
easement  of  discharging  drainage,  Ac.,  229,  284. 
maintenance  and  repair  of  watercourse,  228,  232. 
continuance  of  artificial  stream,  232. 
riparian  owners  on  aztifioial  stream,  233. 
arandonment  of  easements  of,  309. 
Watbsoouubb. 

artificial,  easement  of  using,  226,  231. 
for  use  of  mill,  227,  228. 
for  discharging  dnunage,  229. 
maintenance  and  repair  of,  228,  232. 
claim  to,  under  Prescription  Act,  286. 
See  Stbeaic  ;  Wixkb. 
Wat. 

general  and  limited,  203. 
ownership  of  land  subject  to,  204. 
limitation  of,  by  grant,  204. 
limitation  of,  by  prescription,  206,  286. 
limited  to  service  of  dominant  tenement,  207. 
direction  and  width  of,  208 
devia^on  from,  209. 

of  necessity,  implied  ^rant  and  reservation  of,  267,  268. 
as  apparent  and  continuous  easement,  272. 
as  used  and  enjoyed  with  tenement,  276. 
construction  and  repair  of  roads  for,  210,  279. 
claim  of,  under  P^eeoription  Act,  286. 
abandonment  of,  306; 
obstruction  of,  314,  316. 
See  Easbkbiit  ;  Highway. 
Wbibs. 

fishing,  in  public  rivers,  181. 
in  private  nvers,  182. 
Well. 

draining  water  from,  141. 

pollution  of,  143. 

easement  of  taking  water  from,  331,  562. 

Will. 

rent  service  reserved  by,  375. 
repairs  charged  on  devise  by,  93. 

Willows. 

right  of  tenant  to,  35. 
SeeT^OEBB. 

WnvDPALU,  39.    See  Tixbkb  ;  Tbebs. 

WnnnoLL. 

as  fixture,  112. 

obstructing  access  of  wind  to,  201,  219. 


INDEX*  603 


WlHDOW. 

aBfixtnTO)  110. 
SeeLxoHT. 
Wnnnvo. 

mjneraU,  60. 
Wood.    SeeTniBSB;  Tbebs;  DbadWood. 
Wbboe. 

of  the  sea,  prerogatiye  right  to,  72,  172. 

franohifle  ol,  172. 

reoeiyeraofi  172. 


lohdon: 

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