Free from incumbrances.

And fur

ther assur.

ance.

times hereafter, peaceably and quietly to have, use, occupy, and enjoy the said hereby granted pew or seat, and every part thereof, without any the lawful let, suit, trouble, molestation, or interruption, of or by the said A. B., or his heirs, or any other person or persons whomsoever, lawfully claiming or to claim, by, from, or under him, them, or any of them, or by, from, or under, the said R. B., deceased; and that free and clear, and freely and clearly acquitted and discharged of and from any former grants, bargains, sales, leases, settlements, wills, and all other titles, charges, and incumbrances, whatsoever, made or done by the said A. B., and R. B., deccased, or either of them, or any other person or persons whomsoever, lawfully claiming or to claim, by, from, or under them. And further, that the said A. B. and his heirs, and all other person and persons, having, or lawfully claiming, or to claim, any estate right, title, or interest, in, or to, the said hereby granted pew or seat, by, from, or under the said A. B., or the said R. B., or either of them, shall and will, at any time hereafter, upon the reasonable request and charge of the said C. D., his heirs or assigns, make, do, and execute, or cause and procure so to be, all and every such further and lawful act, deed, matter, or thing, in the law, whatsoever, for the better conveying, assuring, and confirming the said pew or seat unto, and to the use of the said C. D., his heirs and assigns, according to the true intent and meaning of these presents. In witness, &c.(i)

(i) As to grants of pews, see pp. 465, 466.

OBSERVATIONS AND CASES.

THERE are four kinds of ways: (j) first, a foot- As to ways way; second, a horse-way, which includes a footway; third, a carriage-way, which includes both horse-way and foot-way; fourth, a drift-way. (k)

claimed.

A private way is a right which one or more per- Private sons have of going over the land of another. This ways how may be claimed either by grant, prescription, custom,(7) by express reservation, (m) as necessarily incident to a grant of land,(n) or by virtue of an inclosure act.

And

A way is said to be claimed by grant; as, where By grant. A. grants that B. shall have a way through a particular close,(o) so a covenant that another shall have and use a way, amounts to a grant.(p) if a man seized of whiteacre and blackacre uses a way through the latter to the former, and afterwards grants whiteacre, with all ways, &c., such right of way passes to the grantee.(g) Where a lease of premises described them as abutting on an intended way, without specifying the breadth, it was held that the sub-lessee was entitled to a convenient way only. (r) In an action on the case for the dis- Disturbance turbance of a right of way, leading from a public way. street through the defendant's premises to a yard at the back of the plaintiff's house, originally forming

(j) Co. Litt. 56, a.

of a right of

(k) Although a carriage-way comprehends a horse-way, yet it does not Carriage necessarily include a drift-way.-1 Taunt. 279. It is said, however, that way. evidence of a carriage-way is strong presumptive evidence of the grant of a drift-way.

(1) By custom; as, where every inhabitant of such a villa shall have a Custom. way over such land, either to church or market, is good, because it is only

an easement, but not a profit.-See Co. Litt. 110, b. Cro. Eliz. 180; and

see H. B 393.

(m) By express reservation; as, where A. grants land to another, re- Reservation serving to himself a way over such land.-See Earl of Cardigan v. Armi

(9) Staple v. Haydon, 6 Mod. 3.

(r) Harding v. Wilson, 2 B. & C. 96.

with all

ways.

part of the demise by lease to the defendant; it was held that a grant of "all ways used or enjoyed before, with" the plaintiff's premises, was good, though there was no express grant of the way in question.(s)

Conveyance If a close is conveyed, with all ways thereto belonging and appertaining, the easement will not pass except in the case of a way of necessity, where such right of way would pass, without any words of grant of ways.(t) But a way not strictly appurtenant will not pass by those words in a conveyance, unless the parties appear to have intended to use them in a sense larger than their ordinary legal sense.(u)

All ways in lease.

Ways used,

&c.

Usual words

Where the plaintiff claimed a right of way over the defendant's soil, and it appeared that in the defendant's lease, granting him all ways without exception or qualification, there was a covenant for contributing, with other occupiers of the lessor's property, to the keeping up paths, &c., used in common by them; and it was proved that the plaintiff had always used the path in question, and that there was no other path to which the covenant could apply; it was held that it might be inferred that the defendant took the soil demised to him subject to the plaintiff's right of way. (v)

A grant of the closes of W. and S., "with all ways used, occupied, or enjoyed therewith," extends to ways used, &c., over the other lands of the grantor; but does not convey to the grantee a right to ways used to and from one of those parcels over (s) Kooystra v. Lucas, 1 D. & R. 506. 5 B. & A. 830. (t) Grymes v. Peacock, Bulst. 17.

(u) Barlow v. Rhodes, 1 Crompt. & Mees. 439. The words "belonging and appertaining" are synonymous.-Id. 448. Where an underlease described the road demised, and the way granted by the words "all ways thereunto appertaining," it seems that a right of way over the original lessor's soil would not pass by these words.-Harding e. Wilson, 2 B. & C. 100. 3 D. & R. 287. One being seized in fee of the adjoining closes A. & B., over the former of which a way had immemorially been used to the latter devised to B., with the "appurtenances," it was held that the word "appurtenances" claimed a right of way over A. to B., as no new right of way was thereby created, and the old one was extinguished by the unity of seisin in the devisor.-Whalley v. Thompson, 1 B. & P.

(v) Oakley v. Adamson, 8 Bing. 356. S. C. 1 Moore & Scott, 510.

the other of them.(w) No way or other easement can subsist in land of which there is an unity of possession.(x)

tive grants

Grants of rights of way may be presumed from Presumplong enjoyment, when its commencement cannot of ways. be accounted for, unless a grant has been made. (y)

By 2 and 3 W. IV., c. 71, s. 2, in claims of right of By prescription (ways). way by prescription, when the way shall have been actually enjoyed for full twenty years without interruption, it shall be defeated or destroyed only by showing that such right was first enjoyed at any time prior to such period of twenty years; and when it has been enjoyed for full forty years, the right shall be absolute and indefeasible, unless it shall appear that the same was enjoyed by some consent or agreement, expressly given or made for that purpose by deed or writing.

Where a particular tenant relies on a presumptive presumpright, he must before this act have set forth the tive right. seizin in fee of the owner, and then have traced his own title from the owner of the fee.(2)

A person who prescribes in a que estate for a private way, cannot justify going out of it on the adjoining land because the way is impassable. (a)

(w) Plant v. James, 2 Nev. & M. 517.

General

(r) Morris v. Edginton, 3 Taunt. 24. But if a lessor having used convenient ways over his own adjoining land, during his own occupation, demises premises, with all ways appurtenant, unless it be shown in evi- words. dence that there was some way appurtenant in alieno solo, to satisfy the words of the grant, it shall be intended that he meant the ways used, and they shall pass, though he miscall them appurtenant-Id.

(y) 5 B. & Ald. 237. The uninterrupted enjoyment of a right of way Presumpfor twenty years, and no evidence that it had been used by leave or favour, tion. or under a mistake, was held sufficient to leave to a jury to presume a grant, although the road in question had been extinguished about twentysix years before, under the award of the commissioners of an inclosure act.-Campbell v. Wilson, 3 East, 294. So where there had been an absolute extinguishment of a right of way for many years by unity of possession, but the way had been used for thirty years preceding an action for its obstruction, the jury were directed to presume a grant from the defendant.-Keymer v. Summers, Bull, N. P. 74. See 3 T. R. 157. Though an uninterrupted possession for twenty years and upwards be a bar to an action on the case, yet the rule must be taken with this qualification, that the possession was with the acquiescence of the person seized of an estate of inheritance. The mere knowledge of the tenant is not sufficient, otherwise he might collude to the prejudice of his landlord.

(z) 2 Salk. 562. Com. Dig. Chimin. (D. 2.) (a) Bullard v. Harrison, 4 M. & S. 387. It is not a good justification in trespass that the defendant has a right of way over part of the plaintiff's

Justification

Limited right of

Ways of necessity.

Rector's

claim.

Implied grant.

way

A right of way for agricultural purposes, is a limited and qualified right of way, and does not necessarily confer a right to use such way for general and universal purposes. (b)

Evidence of a prescriptive right of way for all manner of carriages, does not necessarily prove a right of way for all manner of cattle. (c)

A way of necessity (d) is limited by the necessity which created it, and when such necessity ceases, the right of way also ceases; therefore, if at any subsequent period the party formerly entitled to such way, can approach the place to which it led by passing over his own land, by as direct a course as he would have done by using the old way, such way ceases to exist as of necessity.(e)

A purchaser of part of the lands of another, has a way of necessity over the vendor's other lands, if there be no convenient way adjoining; so if a man having four closes lying together, sells three and reserves the middle close, to which he has no way but through one of those sold, although he did not reserve any way, yet he shall have it as reserved to him by the law. (f)

A way of necessity passes by a grant or lease of the land without being expressed, for the land cannot be used without a way.(g)

land, and that he had gone upon the adjoining land because the way was impassable from being overflowed by a river.-Taylor v. Whitehead, 2 Dougl. 475.

(b) Jackson v. Stacey, Holt, 455. A rector cannot claim a right of way for the purpose of carrying away his tithe, unless by prescription or grant. -James v. Dods, 2 C. & M. 266. 4 Tyr. 101. The owner or occupier of the soil, provided he does it bona fide for the convenient management of the farm, has a right to vary and stop up a way by which tithe has been carried, although the alteration puts the tithe owner to great inconvenience by compelling him to use a more circuitous route for the purpose of carrying away his tithe.-Id.

(c) Bullard v. Dyson, 1 Taunt. 279. But it is evidence of a drift-way for the jury to consider, together with other evidence.-Id. The extent of the usage is evidence of a right only commensurate with the user.-Id. (d) This right of way has been commonly termed a way of necessity; but it is, in fact, only a right of way by implied grant, for there seems to be no difference where a thing is granted by express words, and where it passes as incident to the grant by operation of law.-1 Wms. Saund. 323, note. See 4 Maule & Sel. 387,

(e) Holmes v. Goring, and same v. Elliot, 9 Moore, 166. 2 Bing. 76. (f) Clark v. Cogg, Cro. Jac. 170,

(9) Beandley v. Brook, Cro. Jac. 189.