UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY DIGEST OF THE LAW OF PROPEHTY IN LAND Part III. USES AND PEOFITS OF LAND A DIGEST OF THE LAW OF USES AXD PROFITS OF LAND BY STEPHEN MAHTIN LEAKE BAEEISTER - AT - LAW LONDON : STEVENS AND SONS, 119, CHANCERY LANE, ^iito publisiTifn; iiuiy gooliiiclkr:;. 1888 T LONDON : PEINTED BY C. F. EOWOETH, GREAT NEW STEEET, FETTEE LANE, E.G. ^ -4 PREFACE. The present work foiTas the tbii-d Part of a Digest of the Law of Property in Land, of which the two preceding Parts have been ah-eady published in a separate vokime. In the Introduction to that volume the plan of the whole work, and the position in it of the j)resent 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 III., 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 aU 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. Tlio tii-st Part of tlie present volimie, under 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 bomidaries 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 Pepau-. It then gives the application of the law to the sjiecific pro- ducts of land, namely, Timber, Crops, Minerals, Game ; also to things connected with land, namely. Houses and Buildings, (s^loMS'l 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 a prendre, in application to Commons, Mining, and other profitahle rights ; and the law of Rents, 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 hojied that the present volume will bo found a useful compendium of kindred matters, which have not hitherto been presented in a collected form. Mr. Eobert Marshall Middleton, of the Inner Temple and the South-Eastern Cii'cuit, has assisted in carrying this volume through the press, by carefully revising the j)roof 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. PAGE INTRODUCTION I PART I. USES AND PEOFITS OF LAND. CHAPTER I. LAND IN GENERAL. Terms of description— land — water — manor— messuage— appurte- nants — rents, profits and uses ....... o Tenement— hereditament — corporeal and incorporeal— reversionary estates 8 Identificaticm of land, by name— by the occupation — by map . . 9 Boundaries — duty of tenant to preserve — commission to ascertain — copyholds — encroachments . . . . . . .10 Property in laud above and below the surface— partition of surface and substratum . . . . . . . . .12 CHAPTER II. POSSESSORY RIGHTS AND LIABILITIES OF TENANTS. Tenant in fee simple— fee subject to executoiy interests— equitable waste ........... 15 Tenant in tail — special taU.— after possibility of issue extinct — under Settled Land Act 16 Tenant for life or for years — liabiUty for waste . . . .18 Action of waste— damages— hmitation of action— action of waste by or au-ainst executor — waste by stranger— ci*' mcjor . . . 19 Tenant for Hfo or years without impeachment of waste— equitable waste — covenants relating to use of land demised — implied con- tract of tenant ............ Tenant at will— tenant of copyhold— waste by copyholder . . 25 Tenants of equitable estates — special trusts 26 VUi TABLE OF CONTEXTS. CHAPTEE III. TREES, WOODS AND TIMBER, PAGE Property in trees — grant of trees as separate property — licence to take trees — contract of sale of trees ...... 29 Lea*e with exception of trees . . . . . . . .31 Constnictiou of grants and exceptions of trees .... 32 Distinction of timber and other trees . . . . . .32 Eig-ht of teuaiit to cut timber— timber estate— trees not timber — imderwood, &c. — ornamental and shelter trees .... 33 Eight to cut trees for repairs or fuel, &c. — extent of right — tenant at will and copyholder ........ 36 Property in timber cut by tenant — timber cut in collusion with re- versioner — property in trees not timber ..... 37 Ti'ees severed by wind or accident . . . . . . .39 Timber cut by order or sanction of Court — application of proceeds — exercise of jurisdiction — statutory powers to sell timber — Settled Land Act 40 CHAPTEE IV. GROWING CROPS. Emblements or growing crojjs — pass to executor — may be taken in execution — may be distrained . . . . . . .44 Tenant's right to emblements — tenant for years — tenant 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 CHAPTEE Y. MINES AND MINERALS. 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 53 Relative rights of owners of surface and minerals — right of support for surface .......... 55 Lease of minerals — right of lessee to the minerals . . . .55 Rights of tenants for life or years to take minerals — open mines . 57 Mines opened by order of Court — by trustees under powers of making mining leases — under Settled Laud 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 .......... 65 Construction of terms, minerals, mines, and quarries ... 67 Prerogative of gold and silver — grants of royal mines— treasure trove — prerogative of saltpetre— public rights of mining . . 70 TAHl.K OF CONTENTS. IX CHAPTER YI. GAME AND WILD ANIMALS. PAGE Property in game aud wild animals— trespass in pursuit of game . 73 Game laws— penalties on trespasser — on occupier — game defined — noxious animals— tame animals . . . . . . 75 Right to game as separate property— contracts relating to taking game — Ground Game Act— licence to sport .... 78 Construction of grants and leases as to the game — inclosure awards 81 Rating of game as a separate tenement ...... 82 Forests— forest law— charter of the forest— chase — park — warren — grant of manor with warren 83 CHAPTEE Vn. HOUSES AND BUILDINGS. Property in land— includes houses and buildings— house includes land on which it is built— appurtenants— Lands Clauses Act . 87 Partition of house into separate tenements— relative rights of part owners .....•••••• °0 Liability of tenant for waste and repair of houses and buildings- permissive waste— charge of repair— incumbent of benefice — tenant " without impeachment of waste " .... 92 "Waste in houses and buildings— new buildings— reasonable use- superior force— accidental fire— suspension of rent . . .94 Covenant of lessee to repair— exci'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 fii'e 97 Repairs and improvements of settled estates— jurisdiction of Coui-t— Settled Land Act 100 CHAPTEE VIII. FIXTURES. Fixtures defined— fixtm-es pass with the land— to purchaser— to lessee for life or years— to mortgagee 103 Fixtures upon land of another ....... 107 What things are fixtures— fixtures for use of land— buildings and construftions upon land — fixtures for trade or business — machinery— fixtures for domestic use— funiiture— accessories to fixtiu-es- movable buildings and constructions . . . 108 Tenant's fixtures— tenant in fee simple— tenant of limited estate- trade fixtures — domestic fixtures— ornanuntal fixtures and fur- niture— agricultural fixtures— Agiicultui-alHoldings Act— right of removal during tenancy . . • • • • .112 Covenants for removal of fixtures— covenants to leave fijctures _ . 117 Fixtures as subject of action— of execution — of distress for rent- in bankruptcy of tenant— disclaimer of lease by trustee . .119 Fixtures assiirned separately from the tenement— Statute of Frauds — Bills of Sale Acts 121 X TABLE OF CONTENTS. CHAPTER IX. TITLE DEEDS ; HEIRLOOMS. PAGE Property in title deeds — freehold— leasehold — mortgages— deed box — larccuy of deeds . . . . . . . . .124 Right of piu'clmscr to deeds — lessee — mortgagee .... 12-5 Custody of deeds — as between tenant for life and reversioner — trustee and cestui que trust — coutrol of custody by Coiu't — concuiTcnt interests in same deeds — sale of land in lots . . 127 Production of deeds for inspection— privilege of mortgagee — cove- nant for production — production luider 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 heirlooms — Settled Land Act 136 CHAPTEE X. INLAND WATER. Sectiox 1. — Standing Watee. Property in standing water — riparian ownership . . , .139 "Water percolating below the surface — right of draining oft water — draining 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 Extraordinaiy floods . . . . . . . . .146 Section 2. — Running "Watee. Property in natural streams — remedies of riparian owner — streams below the sm-face ......... 148 Rights of ordinary use by riparian owners — diverting water for extraordinary use . . . . . . . . .149 Rights ac(|uired in excess of riparian rights — rights acquired by non-ri2)arian owners . . . . . . . .151 Property in bed of stream — change of bed — encroachment on bed . 153 Public nangable river — rijiarian rigbts upon navigable river — obstructions to navigation — change of course — iirivate navig- able river — towing- j)ath 156 OHAPTEE XI. SEA AND TIDAL WATERS ; SEA SHORE. The sovereignty of the sea — Admiralty jurisdiction — The Territorial Waters Act — civil jurisdiction of the Admu'alty . . .159 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 shore — public rights over sea shore 163 Prerogative riglits 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- ceivers of Wreck 172 TABLE OF CONTEXTS. XI CHAPTER XII. INLAND AND SEA FISIIEEIES. PAGE Fishery in inland waters— inland non-tidal rivers .... 174 Fishery iu land of another — several fishery — free fishery and cointnon of fishery — qualified fishery . . . . .175 Fishery iu the open sea — tsea Fisheries Acts . . . . .177 Fishery in arms of tlio sea and tidal waters — Crown grants of fishery — prescriptive fishery — uoii-tidal waters . . .178 Fishinji: weirs— iu navigable rivers— in private rivers . . .181 Koyal fish— salmon- oysters and shell fish 182 PART II. USES AND PEOFITS IN LAND OF ANOTHEE. Intkoduction 185 CHAPTEE I. EASEMENTS. Section I. Easements in general . II. Siiecific easements III. Creation of easements . IV. Extinction of easements V. Kemedies for easements 189 203 202 305 313 Section I. Easements in general. Easements appurtenant to laud — dominant and servient tenement — easement in gross . . . . . . . . .189 Conditions of appia tenancy . . . . . . . .190 Positive and negative easements . . . . . . .192 Licence to use laud — revocation of licence — notice of revocation — licence not assigiiahlo . . . . . . . .194 Licence coupled with grant — parol graut — grants irrevocable— and assignable .......... 197 Easements admissible in law — si^ecific easements — particular ease- ments — claims not admitted as easements — covenants concerning use of land . . . . . . . . . .199 Section II. Specieio Easements. ^ 1 . AVays.— § 2. Light.— § 3. Air.— § 4. "Water.— § 5. Sui^port.- ^^ G. Fences. § ] . AVays. Waj-s general and limited ........ 203 Owuer-^hip of laud subject to waj' ....... 204 Limitation of ways by graut— construction of grant as to piu-poses of way — as to mode of use ....... 205 Limitatiou by prescription ........ 20G Ways impliedly limited to service of dominant tenement . . . 207 Direction and width of way — deviation ...... 208 Consti'uction of ways — repair of ways . . . . . .210 Xii TABLE OF CO:STENTS. § 2. Lights. PAGE Easement of light arising by prescription— by grant— is acquired only for houses and builclings 211 Limits of easement— obstruction— building to angle of forty-five degrees — to-WTi and country buildings 213 Use of light in dominant tenement- unoccupied tenement— conver- sion of tenement to new use . . . • • .• . * Alteration of ancient lights— enlarging ancient lights— additional light from different dii-ection 216 § 3. AiB. Distinction of air and light as subject of easement . . • .218 Easement cannot be claimed for ixassage 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. "Watee. Eights of riparian owner in natural stream . . . . _ . 225 Easement of diverting stream through artificial watercourse— limits of easement— use of the water— maintenance and repair of ■water-com-se — 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 discliarge . _ . . . . 231 Artificial stream — riparian owners upon artificial streams — perma- nent artificial streams 232 Easement of discharging rain-water from eaves of house . . 234 § 5. SUPPOET. 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 casement- substitution of artificial support . . . 242 Support by adjacent tenement— implied upon severance of tene- ments — extent of easement — 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 grant— pre- scrijrtion — repair of servient building— injury from adjoining building 249 Support of upper story of house — repair of roof . . . .252 § 6. Fences. Obligation of fencing land— trespass of cattle 253 Right to have fence maintained upon adjoining land— grant— pre- scription ........... 254 Extent fjf right and liability— damages recoverable . . .257 O^vncrship of fence — party walls ....... 258 Fencing of mines — fencing of railways— level crossings . . .260 TABT,E OF CONTENTS. Xlll Section III. Ceeation of Easements. § 1. Grant. — J 2. Prescription. ^ 1. Geant. PAGE Easements created by grant or prescription — grant by deed — parol grant — Statute of Frauds — cxcoj^tion or reservation of ease- ments — easements taken under Lauds Clauses Act . . . 262 Implied grant of necessary easements — way of necessity . . 266 Implied grant of aj^parent and continuous easements —no easement implied in derogation of grant — easements implied upon simul- taneous grant of two tenements ...... 269 Grant of tenement ' ' witli appurtenants ' ' — grant of easements " used and enjoyed " with tenement — construction of grants — casements revived after unity of f)ossessiou — Conveyancing Act, KSSl . ._ 275 Implied grant of rights accessory to easements — right of main- tenance and repair — obligation of servient owner . . .279 § 2. Peesceiption. Prescription — distinction of easements by prescription and grant . 281 Prescription at common law — time immemorial — non- existing grant 282 The Prescription Act — prescription for ways, watercourses, and other easements — prescription for lights ..... 285 Enjoyment rec^uircd 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 Enjoyment by licence or agreement — by sufferance . . . 292 Continuous enjoyment — voluntary discontinuance — impossibility of enjoyment — ^m^ty of possession ...... 294 Enjoyment for period next before action ...... 297 InteiTuption of enjoyment — submission of dominant O'wner . . 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 Section IV. Extinction of Easements. Release — presumption from disuse ....... 305 Abandonment — ways — lights — 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. Remedies for Easements. Action for damages — nominal damage — disturbance of easement — compensation under Lands Clauses Act . . . . .313 Action by reversioner — repeated actions for continuance of dis- turbance ........... 315 Injunction — statutory and equitable jurisdiction — principles of granting injunction — mandatory injunction to remove nuisance — delay or acquiescence — interlocutory injunction . . .317 Injunction against obstnicting Hghts . . . . . .321 Abatement of nuisance to easement — abatement of nuisance to ser\'ient tenement — exercise of easement in excess — notice to abate niusance — unnecessary damage 322 XIV TABLE OF CONTENTS. CHAPTEE II. PROFITS A PEENDRE. PAGE Section I. Profits a prendre in general 326 II. Creation of profits 346 III. Extinction of profits ....... 355 rV. Remedies for profits 3G7 Section I. Peofits a Peendre in geneeal. Profits a prendre — in gross and appurtenant — conditions and limits of appurtenancy — land cannot be appiirtenaut to land . . 326 Licence to get minerals — to cut trees and tui"f — to take game and fish — to take water ......... 329 Pasture of land — herbage of land 331 Commons — common of pasture — in gross — appurtenant — cattle levant and couchant — stinted commons — unstinted commons — sheep walk — pannage ........ 332 336 338 340 341 343 344 Common appendant — commonable cattle Common of vicinage — inclosure Common fields — lammas lands Common of estovers — common of turbary Common of copyholders — profits of copyhold tenement Rights of common of lord — statutory compensation Section II. Ceeation of Peofits a Peendee. Grant of profits a prendre — Statute of Frauds — profits appurtenant 346 Exceptions and reservations of profits a prendre .... 347 Rights accessory to profits a prendre — rights accessory to mining . 348 Title by prescription at common law ...... 350 The Prescription Act — profits appiu'tenant — profits of copyhold tenements .......... 350 Profits in gross — corporate rights ....... 352 Prescriptive usage mu^t be lawful — certain — continuous . . . 353 Section III. Extinction of Peofits a Peendee. Release — release of profits in part of the land — presumption of release from non-user ........ 355 Alteration in dominant tenement— severance of dominant tenement — exhaustion of servient tenement . . . . . . 356 Unity of title of profit and servient land — unity of title in part of the land — common appendant apportionable — unity of title in lord of manor — re-grant of copyhold tenements . . . 359 Approvement and inclosure of wastes— Statutes of Merton and of Westminster 2 — construction of the statutes — leaving sufiiciency of pasture 360 Approvement against copyholders — special customs to inclose . . 364 Approvement against turbary and other commons . . . .365 Inclosure under Acts of Parliament 366 Section IV. Remedies foe Peofits a Peendee. ■ Remedies for exclusive profits — minerals— pasture . . . .367 Remedies of commoner — action for surcharging common — distress of cattle damage feasant — remedies against lord . . . 368 Abatement of nuisance to common— nuisance created by lord . . 369 Bill of peace concerning common lights 370 TABLE OF CONTENTS. XT CHAPTER III. RENTS. PAGE Section I. Creation of rents 372 II. Extinction and apportionment of rents . . , . 40G III. Kemedies for rent 423 Section I. Ceeation of Rents. § 1. Rent service — J 2. Rent charge and annuity— § 3. Tithe rent charge. § 1. Rent Seevice. Rent — rent service — distress — rent charge — rent seek — distress by statute 372 Reservation of rent service — by deed or -will — 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 of rent service — construction of limitations . . . 380 Rent of incorporeal hereditaments— rent of personal chattels . .381 Fee farm rents — rents of assize — quit rents — apportionment — re- demption 383 § 2. Rent charge and Annuity. Rent charge— grant of rent charge — grant of distress — Bills of Sale Act, 1878 385 Reservation of rent upon grant in fee — upon assignment of term — severance of rent service and reversion 387 Limitations of rent charge — 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 aimuity — 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 chaege. Tithe rent charge — Commutation Act 398 Valuation and apportionment of tithe ...... 398 Corn average — valuation of rent charge ...... 399 Discharge of tithe and substitution of rent charge .... 400 Remedy by distress — by writ of possession — no remedy bj' sale . 400 Extraordinaiy tithe — Redemption Act ...... 402 Tithe rent charge as freehold estate — tithe rent charge upon copy- hold 402 Merger of tithe rent charge ........ 403 Grant or lease of land subject to rent charge — liability of tenant to pay rent charge — contribution from co-ownicrs of land charged 403 Assessment of tithe rent charge for rates and taxes . . . 405 X-\T. TABLE OF CONTENTS. Section II. Extinction and Appoetionment of Rents. PAGE Release of rent — discharge of land from rent 406 Merger of rent in the possession of the land charged — possession 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 grantor of rent charge . ... . . . . .410 Apportionment of rent — by partition of the rent — by 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 tenns 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 Section III. Remedies foe Rent, — (1) Distress. § 1. Distress — § 2. Things distrainable — § 3. "Wrongful distress. § 1. Distebss. Remedies 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 Rent in arrear — limitation of arrears — under express trusts — of rent in bankruptcy — of rent of agricultural holdings . . 425 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 demised tenement— ujion servient tenement — upon common . . . . . . . . . . . 430 Distress off the demised tenement — distress of goods fraudulently removed ........... 432 Distress by bailiff — bailiffs to be certificated 434 Distress to bo taken in daytime — breaking into tenement — breaking inner doors — taking possession of goods ..... 435 Removal and impounding distress— impounding on the premises — • public and j^rivate poimds — feeding impounded cattle — liability of distrainor for state of poxuid 43^ 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 — tender of rent before sale 439 § 2. Things Disteainable. Things distrainable — fixtures 444 Animals ........... 445 Perishable goods — com and hay — growing crops .... 445 lAlJl.E OF COKTENTS. XVU PAGE Things in personal use 448 Iniplemeuts of trade — beasts of plough — condition of privilege . 448 Goods of strauffor Jistraiuable — exceptions in favour of trade — goods delivered for workiug — tools and implements of trade — agricul- tural implements . . . . . . . . .419 Goods delivered to agent for selling — for safe keeping— for caiTying — conveyances used for privileged goods . . . . .452 Cattle taken in to feed . . . , . . . . .454 Protection of tlie goods of lodgers ....... 454 Goods in fustudy of the law — goods taken in execution — liability of shcritf after notice of rent due . . . . . .455 Goods in possession of receiver — goods in bankiniptcy — goods of company under winding up ...... . 458 ^ 3. Wrongful Disteess. 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. 463 Excessive distress — value of distress taken — distress for excessive claim . . . . . . . . . . .465 Rescue — pound breach ......... 406 Replevin — jurisdiction of sheriff — jurisdiction of County Court — security to prosecute — avowry and cognizance — writ of capias in uitheDiam .......... 467 Section IV. Remedies foe Rent, — (2) Action and Re-entey. Action for rent — suspended by distress — injunction against distress pending action ......... 471 Action of debt for rent — debt from privnty 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-paj-ment of rent — demand of paj'mcut — ejectment — relief against condition — condition of entry to take profits . . . . . . . . . .476 Summary proceedings for recovery of possession . . . .478 Juiisdiction to grant a receiver or sale — remedies under Conveyanc- ing Act, 1881 479 CHAPTEE IV. Public Uses op Land. Section I. Highways . . . JS2 II. Local customs 549 Section I. Higuways. § 1. Highways in general— § 2. Origin and extinction of liighways — ^ 3. Maintenance and repair of highways — § 4. Remedies relating to highways. XVlil TAltLl': OF COXTKNTS. § 1. Highways IN GENERAL. PAGE Public rights — general and local ....... 482 Highway— diflfcrent kinds of highway— cattle way— railway — navigable river — towing path ....... 483 Public way witliout thoroughfare— public commons and open spaces 486 Ownership of soil of highway— land at sides of highway— inclosing up to highway— conveyance of land abutting on highway . 487 Eights of ownership of highway — trespass on highway . . _ . 490 Ownicrship of highwaj-s under statutes — Turnpike Acts — Public Health Act— Metropolis LocalManagement Act— compensation for highways taken 491 Lmiits 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 — fencing nuisances on adjoining land .... 501 § 2. Origin and Extinction of Highways. Origin of highways — highways by statute 503 Dedication of highway — dedication by act of owner — dedication presumed from public use — presumption rebutted . . . 504 Dedication by owner in fee — by reversioner — presumption of title to dedicate — dedication by corporate body ..... 507 Acceptance of dedication by public — adoption by parish . . . 508 Dedication for limited time — to limited public — for limited use . 509 Dedication subject to obstructions — gates — ploughing — markets and fairs — public way subject to private way ... . 510 Highway subject to toll — toll thorough — toll traverse — toll of ferry and other tolls— prescription for toll on highM^ay— exemp- tions from toll — distress for toll — rating of toll . . .512 Extinction of liighway— stopping and diveiting highways at com- mon law — by statute — destruction of way . . . .516 § 3. Maintenance and Repair of Highways. Liability of parish to repair at common law — liability of township or district by custom . . . . . . . .519 Repair of ikw higlnvays — turnpike roads — private ways made public by order of justices ......... 521 Conditions of liability of parish under the Highway Act — certificate of justices — highways not repairable by the parish — highways declared unnecessary ........ 522 Repair under Highway Acts — highway board — district fund . . 523 Main roads- transfer of main roads to county council — delegation to district council 524 Improvement of highways— statutory powers of improvement . 626 Liability to repair by ijrescription — by tenure of land — by inclosure — discharge of liability by tenure or otherwise . . . 528 Repair of bridges — Statute of Bridges — construction of statute . 530 New bridges- repair of new bridges — conditionsof repair by county — improvf ment of bridges ....... 532 Bridges built under statutes — canal bridges — railway bridges — turnpike road bridges ........ 534 Transfer of briflges to county councils ...... 535 What structures are county bridges — approaches to bridges— road- way of bridges— property in bridges — ferry . . . .536 TAIil.T; f)F (OXTKNTS. XIX § 4. Remedies eelatino to Highways. PAGE Indictment for non-repair — against surveyor of highways — against higliway authority ......... o38 Action against county or parish — action for non-repair against surveyor — againtt highway authority — against person or body corporate ........... 539 Summary remedies for non-repair— against surveyor — against high- way board — order of count)' authority to repair . . .541 Indictment for nuisance — nuisances upon highway .... 542 Action for nuisance— special damage— action against surveyor — against local board — abatement of nuisance .... 514 Summary remedies for nuisances — penalties for wilful obstruction — encroachment on sides of highway — removal of nuisance . . 546 Section II. Local Customs. Local customs — custom and common law — custom and statute law — custom and prescription — local usages of trade . . .549 L'sage as evidence of custom — immemorial usage — Prescription Act 552 Usage as of right . . . . . . • • . . 554 Certainty of usage as to place— custom limited to locality . . 554 Certainty of usage as to persons . 55(5 Certainty of usage as to the rights created 557 Reasonableness 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 tolls or fees — customs of mining . 560 Customs to take profits by presumed Cro-mi grant— no presumption of statute— customs to take profits under grant to corporation — customs sTipported as charitable uses 565 Customs of manors — customary rights to profits of copyhold tenants — freehold tenants— occuiners 568 b2 TABLE OF CASES. Abbot V. Weekly, 559. Abson r. Feuton, '210. Absor V. rrcncli, 494, 495. Ackroyd v. Smith, 187, 191, 197, 199. Acton r. Blundell, 141. Adams r. Clutterbuck, 78, 79. v. Grane, 452. Addington v. Clode, 283. Ainslic, re, 40, 42. Alchonie v. Gomme, 379. Aldrcd's Case, 202, 220. Allan r. Gommc, 206, 306. r. Gott, 396. Allen V. Bryan, 472. V. Orniond, 484, 512. V. Taylor, 271, 274. Allhusen v. Brooking, 78, Allnutt V. Tott, 505. AUwood r. Hey wood, 127 Anderson r. Midland Ry. ■!'. Oppenheimer, 92, Andrews v. Dixon, 450. V. Hailcs, 12. Anglesey r. Ilatherton, 553. Angus V. Dalton, 202, 245, 247, 248, 250, 263, 283, 285, 299. Anon., 390, 449, 528. r. Cooper, 374. An worth v. Johnson, 92. Arden v. i'ullen, 99. Ardley v. St. Paucras, 206, 210. Ards r. "Watkiu, 412. Ai-kwriyht r. Evans, 260, 564. r. Gell, 233, 294. Arlctt I'. Ellis, 344, 358, 363, 364, 365, 370. Armitt c. Garnctt, 456. Armory r. Delanurie, 72. Armytage, n\ 109, 110, 123. Arnold r. Blaker, 511. r. llolbiook, 488, 404, 511, 516. Ai'nsby v. Woodward, 476. 80. 377, 378. 146. Arundell r. Falmouth, 345. Ashdown Forest Case, 84. Ashmead r. Ranger, 37. Ashmore v. Hardy, 433. Aspdcn r. Seddon, 52, 187, 239, 240. Aspiudall r. Brown, 503. Aston V. Aston, 23, 24. Astry V. Ballard, 58. Atkinson r. Baker, 124. r. Teasdale, 368, 369. Attack V. Bramwcll, 435, 436, 401. Attersoll t\ Stevens, 22, 23, 56. Att.-Gen. r. Acton, 324. V. Biphosphate Co., 505, 506, 509. V. Chambers, 163, 165. V. Coventry, 383, 431. - V. Dorking, 232, 324. r. FuUertou, 10. v. Gauntlett, 288. r. Great Eastern Ry., 150, 156. r. Horner, 511. r. Jones, 164. r. Lonsdale, 155, 156, 162. r. Marlboroiigh, 16, 17. r. Mathias, 328, 561, 563. V. Mylchreest, 63. V. Nichol, 214, 314, 321. v. Parsons, 86. r. Shrewsbiuy, 543. V. Stephens, 11. V. Terrv, 156, 157, 163, 543. r. Tomiine, 12, 26, 63, 67, 68, 167. r. Thames Consorv., 500. A.-G. Straits Settlement v. "Wemyss, 157, 166, 500. Aubin r. Daly, 394. Aubrey r. Fisher, 33. Auriol c. Mills, 474. Austerberry r. Oldham, 513. Austin V. Amluu-st, 352, 570. XXll TABLE OF c;asj:s. Aveland v. Lucas, 496. Aynsley v. Glover, 215, 217, 286, 297, 302, 311, 319, 320. Bach r. Meats, 433. Back V. Holmes, 495, 544, 546, 547. Backhouse r. Bonomi, 243, 245. Bacon v. Smith, 19, 92. Badger v. Ford, 260, 364. V. South Yorkshire Ry., 158. Badkin v. Powell, 438. Bagge V. Mawby, 463. Bagnall v. Villar, 49. Bagot V. Bagot, 34, 35, 38, 40, 41, 60, 61. Bagottt;. Orr, 178, 183. Bagshaw v. Buxton Board, 546, 548. BaUey v. Appleyard, 299. V. Badham, 401, 480. V. Jamieson, 480, 518. V. Stevens, 30, 191, 327, 328, 329, 330. V. Williamson, 496. Bainr. Brand, 104, 105, 113. Bairdf. Williamson, 144, 230. Baker v. Baker, 393. V. Brereman, 288, 556. V. Gostling, 388. . V. Holtzapt'el, 97. V. Sebright, 35, 42. BaUv. Herbert, 158, 485. V. Ray, 223, 225. Ballacorkish Mining Co. v. Harrison, 54, 141, 142, 242. BaUard v. Dyson, 204, 200, 207, 281, 484. V. Tomlinson, 140, 143, 229. Bamford v. Turnley, 222. Bannatyne V. Leader, 131. Banne Fishery Case, 179. Banner v. Lowe, 417. Bannister v. Hyde, 436. Barber v. Dixon, 341. V. Whiteley, 253, 256, 362. Barclay, re, 109, 114, 120. V. Collett, 128. V. Raine, 132. Barker, re, 100. r. Davis, 76, 78. Barkshire v. Grubb, 269, 276, 278. Barlow v. Rhodes, 275, 278. Barnes v. Loach, 216, 263, 274, 275, 308. V. Mawson, 64, 355. V. Southsea Ry. Co., 89. V. Ward, 502. Barraclough v. Johnson, 505, 506. Barrington, re, 38, 39, 57. Barrington's Case, 30, 84, 330. Barton v. Dawes, 10. Basset v. Maynard, 199. Bateman, re, 201. r. Bluck, 480, 546. V. Burijc, 511. V. Hotuhkin, 34, 35, 40. Baten's Case, 13, 235, 322, 323. Bateson v. Green, 363. Eathishillr. Reed, 235, 317. Bathurstv. Macpherson, 541, 545. Batthyanv v. Walford, 93. Baxeiidale v. M'Murray, 231. Baxter v. Bower, 218, 319. V. Taylor, 303, 507. Bayley v. Bradley, 476. V. Great Western Ry., 272, 276, 307. E ay lies v. Baylies, 27. Baylis r. Tyssen-Amhurst, 191, 333, 334, 335, 341, 354, 557. Bayliss v. Fisher, 465. Baynes v. Smith, 448. Baynton v. Morgan, 410. Beadel v. Perry, 214, 320. Beadsworth v. Torkiugton, 566. Bealey r. Shaw, 152. Bean v. Bloom, 342, 353, 569. Beardman v. Wilson, 377. Bearpark v. Hutchinson, 391. Beasley v. Clarke, 293. Beauchamp v. Wiun, 6, 8, 85, 330. Beaufort v. Bates, 109. V. Swansea, 6, 164. Beaumont's Trusts, 52. Bcavan v. Delaha-y, 429. Beck V. Denbigh, 441. V. Rebow, 104, 111. Beckett v. Leeds, 487. Bcddington v. Atlee, 273, 279, 312. Bcddow V. Beddow, 318. Bedford v. Dawson, 200. V. Sutton Coldficld, 401, 431. Beer V. Beer. 381, 414. Beeston i: Weate, 227. Belauey v. Ffrcnch, 135. Bell f. Quebec, 156, 157, 500. V. Warden, 558, 559. V. Wilson, 07, 68, 69. Bellow V. Langdon, 370. Benfieldside v. Consett Iron Co., 239. Benjamin v. Storr, 499, 544, 545. Beimctt V. Glossop, 131. V. Reeve, 336, 338, 358. Bennington v. Goodtitle, 331. V. Taylor, 563. Bennion v. Cartwright, 295, 301. Benson v. Chester, 331, 335, 350. TABLE OF CASES. XXUl Bentlcy, re, 28. Bfi-kulcy's Will, 101. Benidyo c. AVuid, l^D. livvi-hnuu V. Poiicock, 3.5, 39. Bett.s V. Tliompsou, I3G3, 371, 570. Bcvil's Case, 107. Bew, re, i-n. Bewick r. Whitfield, 40. Buwlcy r. Atkinson, 294. Bihby r. (Jnvtvv, 240. Bickc'tt V. Morris, loo. Bidder r. North Staffordshire E,y., 208, 210. Biggins V. Goode, 441, 4G4. Biguoll r. Clark, 439. Bignold r. Giles, 39'). Binstead v. Buck, 44o. Birch V. Dawson, 111. V. Shcrratt, 394. Birch Wolfe v. Bii-cli, 39. Bird ('. Iliggiuson, 7S, 264, 347. Birkbeck v. Paget, 79. Birkenhead v- Loudon & N. W. Ry., 280. Birininghani ;■. Alh-n, 243, 244. Birmingham Banking Co. v. Ross, 213, 271, 272. BirrcU v. Dryer, 101. Bishop V. Bryant, 411. r. Elliott, 110. Bishop Auckland S. A. v. Bishop Auckland Ii-on Co., 221. Bissct V. Caldwell, 448. Blackburn r Edgley, 89. Blackett v. Lowes, 37. Blackmorc r. Mile End, 54.5. Blackpool Pier Co. v. Fyldo Union, 159, 100. Blades v. Arundaic, 455. r. Higgs, 74. Blake v. Buubury, 28. Blanchard r. Bridges, 271, 300. Bland i\ Lipscombc, 180, 562. Blantyre c. Clyde Navigation, 167. Blewett V. Tregonning, 109, 561. Blewitt V. Roberts, 394, 395. Blight V. HartuoU, 394. Bliss V. Collins, 412. r. Hall, 220, 225. Blisset V. Hart, 514. Blundell c. Catterall, 166, 169, 178. Blunden's Case, 425. Bodwell V. Bodwcll, 393. Bolton t'. Bolton, 208, 276. Bonner v. Groat AVestern Ry., 212. Bonomi v. Backhouse, 237, 243. Boodle c. Campbell. 411. Booth v. Aloock, 272. ■ V. Coultou, .394. Booth V. Smith. 407. Borastou v. Gieeu, 429. Bought )n, re, 135. V. Boughton, 396. V. Jewell, 132. Boulcott v. Winmill, 363, 364. Bowen v. .Tenkin, 308. Bowerr. Hill, 192, 300, 307, 313, 316. V. Peatc, 245, 249. Bowes V. Law, 319. Bowles' Case, 17, 18, 19, 2.5, 38, 40, 95. Bowlston V. Hardj--, 86. Bow.ser r. Maclean, 53, 63. Box i\ .Jubb, 146. Boyd r. Shorrock, 109. Boyle r. Tamlyn, 255, 256, 312. Bradbee v. Christ's Hospital, 251, 2.59, 499. Bradburn v. Foley, 552, 558. r. Morris, 204, 207, 496. Bradbmy v. Wright, 376, 383. Brudshaw r. Eyre, 360. Brain, re, 477, 564. V. Thomas, 564. Braithwaite v. Cooksey, 429. Brantom r. GrifSts, 50. Brassington v. Brassiugton, 135. Brecon Markets Co. v. Neath Ry., 513. Brett V. Beales, 513. r. Clowser, 272, 275. Brewer r. BrowTi, 259, 498. Bridges, Case of, 528, 532. V. Smyth, 428. Bridgewater r. Edwards, 384. Bright v. Walker, 288, 289. Brigstocke r. Brigstocke, 59, 421. Bristow V. Cormican, 102. Broadbent v. Ramsbottom, 141, 149. V. Wilks, 557, 560. Broadwater Estate, re, 102. Broder r. Saillard, 144, 235. Bromfield r. Kirber, 339, 340. Brook, e.r p., 110, 121. V. WiUet, 336. Broom r. Hore, 414. Brown's Will, 138. Brown r. Alabaster, 268, 272. ('. Arundell, 452. r. Daun, 436. /■. Glen, 435. c. Slievill, 451. r. Tucker, 358. V. AVales, 11. Browne's Will, 396. Browne v. Lockhart, 131. V. Powell, 402. f. Robins. 21.S. XXIV TABLE OF CASES. 109, Bro-\viilo-\v V. Tomliuson, 512. Browm-igtj- ;.. Pike, 392, 421. Bruce r. Helliwell, 82. Bruerton's Case, 409, 414. Brumfitt v. Roberts, 201. Brunton v. Hall, 204, 20G. Bryan v. AVhistkr, 201. V. WiuAvood, 12. Bryant r. Lefever, 201, 219, 220. Biydges r. Stephens, 35. Bubb V. Yelverton, 20. Buccleuch r. Metropolitan Board, 203, 266. ■ V. Wakefield, 64, 237, 508. Buchanan v. Andrew, 239. Buck r. Nurton, 7. Buckliurst's Case, 124, 125, 129. Buckland v. Buttei-field, 105, 115. Buckley v. Howell, 41, 52. r. Taylor, 425. Bull, ex p., 427. BuUard v. Harrison, 209, 267. BuUen v. Denning, 18, 31, 32. Bullers v. Dickinson, 216, 217. Bullock V. Dommitt, 97. Bulwer v. Bulwer, 46, 47. Bunbiu-y v. Hewson, 93. Bunch V. Kennington, 448. Burdett, re, 122. Biirgess v. Northwick Board, '498, 527. Bume V. Richardson, 428. Burt V. Haslett, 110, 118. V. Moore, 367. Burton V. Gainer, 133. Bury V. Lancashire & Y. Ry., 535, 537. Bush V. Stcinman, 499. V. Trowbridge Waterworks Co., 149. Bussey v. Storey, 515, 519, 521. Buszard v. Capel, 328, 382, 431. Bute V. Glamorgan Canal, 10. Butler V. Hunter, 249. V. Manchester & L. Ry., 195. Butt's Case, 381, 386, 391. Butt f. Imperial Gas Co., 202. Buttery v. Robinson, 393. Buxton V. North Eastern Ry., 261. Byerley v. Windus, 201. Cadogan v. Armitage, 349. Caledonian Ry. v. Sprot, 242, 246. r. Walker's Trustees, 497. Campbell v. Wardlaw, 58, 60, 61, 62. f. Wilson, 284, 288. 492, Cane v. Martin, 135. Canham v. Fisk, 148. Cannon v. Villars, 205. Ciinterburj' v. Att.-Gen., 97. Cape r. Scott, 339, 369. Capel v. Buszard, 7, 382. Capital .Fire Ins., re, 135. Capron v. Capron, 421. Carlisle r. Graham, 155, 157, 178. Carlyon v. Loveriug, 229, 287, 564. Carr v. Benson, 54, 69, 330. V. Erroll, 136. V. Foster, 296, 299, 302, 355. V. Lambert, S34, 337, 357- Carriage Supply Assoc, re, 460. Cai-rington v. Roots, 50, 198. Carruthers v. HolUs, 257, 258. Carstairs v. Taylor, 92, 146. Carter v. Carter, 466. r. Murcot, ISO, 181. Castlemain v. Craven, 93. Cavey v. Lidbetter, 220, 222. Cawkwell v. Russell, 231, 232, 323, 324. Chad V. Tilsed, 282. Chadwick v. Marsden, 231. V. Trower, 248, 249, 252. Chamber Colliery Co. v. Hopwood,, 290. Chandler v. Doulton, 465. Chaudos v. Talbot, 33. Channon v. Patch, 39. Chaplin v. Chaplin, 390. Chapman & Hobbs, re, 373. Chapman v. Cowlau, 335. r. Gatcombe, 404. Chard v. Tuck, 6. Charles v. Finchley Board, 232. Charman v. South Eastern Ry., 262, 502. Chascmoro v. Richards, 141. Chatfieldv. Berchtoldt, 391. Chauntler v. Robinson, 99, 251. Cheesman v. Hardliam, 334, 338, 340. Chcetham v. Hampson, 255. Chesham, re, 138. Chester Mill Case, 182. Chetham v. Williamson, 54, 320, 348. Chichester t'. Donegall, 131. Child V. Chamberlain, 438. V. Heam, 257, 262, 502. Chilton V. London, 336, 556, 561, 565, 566, 567. Cholmcley v. Paxton, 17, 23, 24, 41. Christchurch Inclosure Act, re, 328, 343, 567, 568. TAULE Ol" CASES. XXV Christie v. Biiikcr, -105, 114, 472. r. GoKling, 137. Church V. Tame, 283. Churchill v. Evans, 2o3, 2G0. Churcliward v. Ford, 475. r. ytuddy, 76. City Brewery Co. v. Tcnnaut, 218, 219, 322. Clarence Ry. Co. v. Great Northern Ry. Co., 280. Clark V. Ua^karth, 447. r. London School Board, 2GG. v. Tinkler, 331). Clarke r. Clark, 214. V. Millwall Dock Co., 451. V. E.ug'ge, 268. V. Somerset Comniiss., 231. V. Thornton, 102. Clarkson v. "Woodhouse, 359, 365, 366. Ciavering v. Claveriug, 59, 60. Clayton v. Corb)', 2Sy~^ 303, 327, 328, 354. Cleunell r. Read, 406. Cleveland v. Meyrick, 68. Clifford V. Hoare, 204, 209, 314. Climie r. Wood, 106, 113. Clougli V. French, 4 73. Clowes r. Stattordshire Potteries Co., 149, 317, 318. Clun's Case, 372, 416, 425. Coal Consumers' Ass., re, 459. Coatswortli v. Johnson, 378. V. Cochrane, ex p., 458. Cocker v. Cowper, 196. f. Musgrovc, 456, 457. Cockerell v. Cholmeley, 17, 23, 24, 41. Cocks V. Gray, 450, 453. Cocksedgc v. Fanshaw, 515, 565. Codling V. Johnson, 192. Colborne v. "Wright, 412. Colchester v. Brooke, 157, 162, 163, 179, 485, 546. Colebeck v. Girdlers' Co., 91, 99, 251, 252. Colegravc v. Dias Santos, 104. Coleman v. Batluu-st, 81. | Collins V. Harding, 413. ; Coltness Iron Co. i\ Black, 60). Colton V. Smith, 514. Combe's Case, 381, 550. Compton r. Richards, 274. Constable's Case, 160, 172. Constable v. Constable, 421. V. Nicholson, 562. Coode V. Jones, 434. Cook V. Bath (Mayor of), 307. V. Herle, 389. Cooker. Chilcott, 319. V. Forbes, 221. Cooper V. Crabtree, 224, 316. r. Emery, 126, 132. V. Hubbuek, 298. V. Marshall, 37(». !•. Walker, 511. Cope V. Marshall, 370. Copland V. Maxwell, 81. Corbet's Case, 339, 340, 341, 366. Corbett r. Hill, 91. Corley v. Hill, 502. Comish V. Stubbs, 49, 118, 196. Corn well v. Sanders, 352. Corry v. Great Western Ry., 261. Cory r. Bristow, 195, 200. Cotsworth V. Betison, 467. Coupland r. Hardiiigham, 502. Com-tauld 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. Cowlam V. Slack, 285, 344, 350, 360. Cowley r. Wellesley, 34, 60. Cowling V. Higginson, 207. Cox's Trusts, 420. Cox f. Bui-bidge, 254. V. Glue, 332, 368. V. Godsalve, 49. V. Knight, 475. V. Mousley, 332. Crabtree v. Robinson, 435. Cramer v. Mott, 436, 449. Crisp V. Martin, 201. V. Platel, 131. Crispe r. Belwood, 514. Croft V. Rickmansworth, 527. CroUing v. Tutinall, 112. Cromptun v. Lea, 144. Crosby r. Wadsworth, 19S, 367. Crosier i\ Tomkiuson, 451, 453. Cross r. Barnes, 100, 106. V. Lewis. 213, 285, 300. Crossley v. Lightowler, 229, 273, 306, 310, 314." r. Wadsworth, 50. Crowhurst v. Amersham Burial Board, 13, 29, 258. Crowther r. Ramsbottom, 466. Crump f. Lambert, 221, 222, 224. Cubitt V. Maxsc, 503, 504, 508. V. Porter, 259. Cull wick V. Swindell, 106. Cumberland c. The King, 534. Cupit r. Jackson, 4 79. XXVI TABLE OF CASES. Curriers' Co. v. Corbett, 217, 274, old. Cui'tis V. Daniel, 61. V. Wheeler, 377. Cuthbert i\ llobiusou, 7, 89, 275. Dacre v. Tebb, 86. Da?lish, cvp., 118, 123. Dalton y. Ang-iis, 193, 191,201, 212, 236, 237, 243, 245, 2l7, 249, 250, 283, 284, 285, 286, 291, 292. V. Whittem, 119, 444. Daly f. Beekett, 61. Dand v. Kingsoote, 208, 210, 349. Daniel v. Anderson, 276, 290, 291. V. Grade, 424. v. Hanslip, 327, 336. V. Stepney, 386. Darby v. Harris, 445. Dare v. Heathcote, 207, 295. V. Tucker, 132. Darley Main Coll. v. Mitchell, 243. Darvill V. Roper, 69. Darwin v. L'lJton, 285. Dashwood v. Ayles, 8. Davies v. Da\TLe8, 92, 98. V. Powell, 78, 445. V. Sear, 268, 272. V. Williams, 204, 288, 300, o23, 325, 370. Davis, re, 457. V. Dysart, 127. V. Eyton, 46. V. Morgan, 264, 296, 310, 347. V. Trehame, 240. Davi.soni'. Gill, 491. Dawes V. Hawkins, 210, 495, 505, .009, 516. Dawson V. Cropp, 463. V. Midland Rv., 257, 261. V. Robins, 8, 382. V. Willoughby, 520, 555. Day V. Day, 396. r. Bi-ownrigg, 9, 318. Dearden v. Evans, 63, 109. De la Warr v. Miles, 84, 282, 284, 288, 333, 336, 342, 353, 561, 570. De Morgan v. Metrop. Board, 495. Dench v. Barnptou, 26. Dennett v. Bass, 408. Dent V. Auction Mart Co., 214, 218, 314, 318, 321, 322. Denton v. Denton, 27, 41. Devonshire v. Elghin, 196. V. Lod"-e, 85. Devonshire v. Pattinsou, 6, 153, 173, 176, 180. D'Eyncourt v. Gregory, 105, 110, 111, 112, 138. Dicken v. Hamer, 58. Dickinson v. Grand Junction Canal, 141, 148, 226. Dietrichsen v. Giubelei, 25, 92. Dimes v. Petley, 546. Direct U.S. Cable Co. v. Anglo- American Tel. Co., 161. Ditcham v. Bond, 463. Dixon V. Caledonian Ry., 65. V. Metrop. Board, 146. v. AVhite, 237, 238. Dod i\ Monger, 436, 467. Dodd V. BurchaU, 268, 272. V. Holme, 248, 249. Dodds V. Thompson, 374, 385. Doe V. Aldorson, 55. V. Benham, 425. V. Bettison, 23. V. Bevis, 332. V. Billett, 425. r. Bond, 20, 95. V. Burlington, 18, 26, 94. V. Burt, 10, 90. V. Collins, 6. V. Darby, 428. V. Hilder, 305. V. Horsley, 478. V. .Tones, 12, 92, 95. V. Keeling, 223. V. Kemp, 488. V. ]jakcm;m, 7. V. Llandalf, Bishop of, 403. V. Lock, 32, 54, 78, 265, 348, 375. V. McKacg, 49, 19G. v. Maisey, 48. r. Masters, 477. V. Meyler, 411. r. Pearscy, 258, 488. V. Roe, 131. V. Webster, 6. V. Wilson, 37, 196. V. Wood, 53, 55, 329. Doherty v. Allman, 20. Doidge V. Carpenter, 335. Donaldson v. Donaldson, 88. Doran v. Wiltshire, 24, 43. Doubitofte v. Curteene, 382, 423. Dovaston v. Payne, 257, 484, 491, 501. Dowglass V. Kendal, 320. Downshire v. Sandys, 35. Drake v. Trefusis, 88. Drewell v. Towler, 200, 204. Druitt V. Christchui'ch, 390. TAliLE OF CAS1> XXVll Drury v. Kent, 327, 336. Dubcrley r. Pahoue Co. v. Man- chester, 107. Lancaster v. Eve, 107, 108, 191, 200. '('. Newton, 525. Lane v. Stanhope, 6. V. Tyler, 450. Lanfranchi v. Mackenzie, 214, 215. Langdale v. Briggs, 128. Lang-ley v. Hammond, 272, 278. Lascelles v. Onslow, 357, 360, 363, 364, 365. Latham, re, 121. Laughter v. Humphrey, 383. Lavery v. Purssell, 31. Lavies, re, 121. Lawrence v. Jenkins, 256, 257, 258. V. Lawrence, 421. V. Obee, 308. Lawson v. Langley, 302. Lawton v. Lawton, 45, 114. V. Salmon, 113. V. Ward, 208. Layboum v. Crisp, 557. Leader v. Homcwood, 116. V. Moody, 91. Lear v. Caldccott, 463. v. Edmonds, 443, 471. Loathes v. Leathes, 127, 129. Leconfield v. Dixon, 82. V. Lonsdale, 181, 182. Lee Conserv. v. Button, 158, 486. Lee V. Gaskell, 121. V. Riley, 254. TABLE OF CASES. XXXlll Lee V. Risdon, 110, 121. Leech v. Cheetham, luo. V. Sclnvwlcr, 202, 203, 212, 2G7, 271, 2So. 319, 32 J. Leeds v. Cheetham, 97. V. Powell, 6, 11, 381,431, 479. V. Stratford, 11. Leek Conamiss. r. Stafford, 525, 527. Legh V. Heald, 32. V. Hewitt, 552. LehaiQ v. Philpott, 443, 471. Leigh's Estate, 88, 101. Leigh V. Jaek, 490. Leke's Case, 257. Lemaitre v. Davis, 247, 249, 250, 287. Le Neve v. Mile End, 511. Leslie's Settlement, 88. Levi V. Lewis, 470. Lewis, ex p., 495. Lewis V. Braithwaite, 57, 63. V. Fothcrgill, GO. V. Swansea, 490, 516. Liddy v. Kennedy, 476. Lii'ord's Case, 18, 30, 31, 32, 110, 111, 232, 349. Liggiiis r. Inge, 309, 310. Lightbound v. Bebington Local Board, 259, 490, 498. Liugbam r. Warren, 471. Lisburnc v. Davies, 12. Livoscy r. Harding, 131. Livingstone v. Rawyard's Coal Co., 56. Llewellin, re, 24, 43. Llewullyn r. Jersey, 10. Lloyd's Bankiug Co., t'j;/).. Ill, 112. Lloyd V. Jones, 8, 180, 562. V. Powis, 345. V. Rosbce, 430. Lockwood V. Wood, 515, 550, 551, 552. Logan v. Burton, 484. Loudon Brewery Co. r. Tonnant, 214. London i.t Brighton Ry. r. Truman, 223. London Corp. r. Riggs, 268, 269. London Loan Co. r. Drake, 117. Loudon V- S. W. Ry. v. Flower, 99. Loudon iSc Y. Bank c. Belton, 4 54. Longbottom V. Berry, 105, 106, 109, 110, 111. Longstaft' c. Meagoe, 105. Lonsdale r. Rigg, 74, 331. Loosemoi-e v. Tiverton Ry., 67. L.rd r. Wardle, 125. Lord Advocate v. BlantjTC, 164. V. Lovat, 183. V. Young, 164. Loughborough Highway Board r. Curzon, 524, 539, 541, 542. Love V. Bell, 238. Lovelace r. lit-jnolds, 354, 569. Lovell V. Smith, 210, 305, 307. Lowe V. Carpenter, 297, 300. V. Govett, 165. Lowen v. Kaye, 548. Lowndes v. Norton, 41. Lucas, re, 422. r. Tarleton, 464. Luudey r. Simmons, 436. Lundy Granite Co., re, 459. Lusliington v. Boldero, 35, 38, 40, 42. Luttrel'l's Case, 228, 358. Lyddal r. Weston, 71. Ljdo r. Russell, 114, 116. Lyell V. Kennedy, 130. Lyme Regis v. Henley, 528, 541. Lyune v. Moody, 465. Lyon I'. Fishmonger's Co., 154, 157, 497, 500. V. Tomkies, 442, 464. V. Weldon, 442, 464. Lyons v. Elliott, 449, 451, 453. McDohall V. Lord Advocate, 183. Mackenzie c. Bankes, 140. McKinnon c. Penson, 540. Mackintosh v. Trotter, 119. Maclean r. Dunn, 434. McMauus V. Cooke, 196, 265. JVIaccy ('. Metrop. Board, 266. Machel v. Danton, 375. Maddock r. Wallasey Board, 165, 166, 506, 510. Maggison r. Bowes, 404. Magor r. Chad wick, 234. Maiufold r. Pennington, 338. Mainwaring v. Giles, 201. Makiu r. Watkiuson, 99. Maluohnson r. O'Dea, 178, 179, 180. Jlaklou (Mayor of) r. Woolvet, 183. Malton Board r. Malton ■ Manure Co.. 221. Manchester Warehouse Co. r. Carr, 96, 97. Mann v. Brodie, 503, 506. r. Copland, 396. Mannall r. Fisher, 180. Planners c. Mew, 134. Manuing v. Wasdale, 331, 563. Manuox v. Greener, 7. Manscl r. Nortou, 46. ]\Iauserj^e r. Campbell, 395. Manwood r. Myme, 36. Marfell i'. South Wales Ry., 261. L. XXXIV TABLE OF CASES. Marker v. Kenrick, 25. Marlborou-rh, re, 138. Msirlbor(iu!j:h v. St. John, 37. Mai-shall V. Green, 31. V. Schofielcl, 383. V. TJUeswater Nav., G, 107, 156, 174, 497, oOO. Marsliam v. Hunter, 360. Martin v. GiUiam, 98, V. Goble, 215. V. Porter, 56. Martyr V. Bradley, 111, 118_. V. Lawrence, 10, 90, 277. Mary's Case, 369. Mason, re, 393. Mason and Taylor, re, 135. Mason V. Cresar, 3G9. V. Hill, 310, 314. V. Shrewsbury Ry., 226, 233, 234, 287, 294, 310. Master v. Hansard, 267. Masters v. Green, 454, 331. Mather v. Eraser, 105, 109. Matson V. Baird, 262. Matts r. Hawkins, 259. Maundy «-. Maundy, 388. Maxwell v. Martin, 354. Maynell v. Saltmarsh, 545. Medway Nav. Co. v. Komney, 148, 150. Mellor V. Spateman, 335, 566. V. Watkins, 196. Mennie v. Blake, 467. Mercer v. Woodgate, 511. Merchant Taylors' Co. v. Truscott, 287. Merry v. Green, 72. Metrop. Ass. v. Brown, 111, 112. V. Fetch, 316. Metrop. Board v. London & N. W. Ey., 231. V. McCarthy, 157. Metrop. Distr. Ry. & Cosh, re, 14, 66, 67, 266. Meux V. Jacobs, 105. Michell V. Wilton, 393. Micklethwait v. Micklethwait, 36. V. Newlay Bridge Co., 154, 489. V. Winter, 67. Middleton v. Lambert, 515. Midland Ry. i: Chcckley, 67, 69. V. Haunchwood Brick Co., 66, 67. V. Miles, 66. V. Robinson, 65, 66, 241. Mildmay's Case, 16. Mildmay v. Mildmay, 41. V. Page, 183. Miles V. Etteridge, 356. V. Furber, 453. . V. Rose, 162. Mill V. Hawker, 549. . V. New Forest Commis., 328, 353. Millechamp v. Johnson, 559. Miller v. Green, 447. V. Miller, 58, 59. V. Warmington, 10. Mills V. Auriol, 474. V. Colchester, 554, 557, 563. Miner t'. Gilmour, 151. Mines, Case of, 70, 71. MinshaUy. Lloyd, 116, 119. Mitchells. CantriU, 271, 291, 294. Mogg V. Yatton, 332. Moir V. Munday, 446, 466. MoUineux v. Powell, 20. Monk, re, 93, 94. Momnouth Canal v. Harford, 293. Moody and Yates, re, 373. Moody V. Steggles, 191, 200. Moore's Banking Co., e.v p., 109, 110, 123. Moore V. HaU, 215. V. Lambeth Waterworks, 511. V. Plymouth, 8, 78, 81, 330. V. Rawson, 212, 305, 308. Morant v. Chamberlain, 511. Morgan, re, 134. Morgan i\ Abergavenny, 78. V. Crawshay, 564. V. Hardy, 98. Morley v. Clifibrd, 327, 335. V. Pincombe, 445. Morrice v. Baker, 323. Morris v. Dimes, 86, 330. V. Edgington, 368. Morrish, re, 121. Morse v. Webb, 334, 358. Moi-ton p. Palmer, 455. t>. Woods, 379. Moss V. James, 109, 116, 117, 118. Mott V. Shoolbred, 224, 499. Mounsey v Dawson, 468. V. Ismay, 199, 554, 559. Mountjoy's Case, 54, 329. Mufiett, 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, 259. Musgrave v. Emmerson, 374. V. Forster, 81. . V. Inclosure Commis., 345, 359. TABLE OF CASES. XXXV Muskett V. Hill, 53, 19S, 199, 329. Muspratt v. Gregory, 450, 453, 464. Narj^attt'. Nias, 449, 4G1. Nash V. Luca8, 435. National Manure Co. r. Donald, 310. National Mercantile Bank, ex p., 49, 50. National Provincial Ass. v. Pruden- tial Ass., 213, 216, 217. Naylorr. Collinge, 112, 118. Ncale V. Mackenzie, 411. Neill V. Devonshire, 175, 179, 180. 483, 562. Nelson v. Liverpool Brewery Co., 251. Ness V. Stephenson, 455. Nevill V. Hamorton, 362. New City Club, n; 459, 460. New River Co. v. Johnson, 141. New Windsor v. Stovell, 282. Newby v. Harrison, 320. Newcomen r. Coulson, 192, 205, 210. Newman's Estates, 43, 88, 101. Newman r. Auderton, 382. Newport Marsli Trustees, ex p., 566. Newsou V. Pender, 217, 308. Newton r. Beck, 134. Niblet V. Smith, 444. Nicholas v. Chamberlain, 270. Nicholl V. Allen, 514, 532. NichoUs r. Ilawkes, 395. Nichols r. Chapman, 335, 341. v. Marsland, 145. Nicholson, re, 135. r. Williams, 109, 171. Nicklin r. Williams, 243. Nicol ('. Beaumont, 209, 494. Nield V. London & N. W. Ry., 147. V. Smith, 397. Nitro-Phosphatcs Co. r. London & St. K. Docks Co., 145, 167. Noel V. Ward, 127. Norbury v. Kitchin, 150. Norfolk V. Arbuthnot, 15. c. Wiseman, 197. Noi-manton Gas Co. v. Pope, 247, 493. Norris v. Harrison, 418. North r. StrafPord, 11. North Eastern Ry. v. Crosslaud, 244, 246. North Western Ry. v. Elliott, 246. Northam r. Hurley, 228. . Northtield r. Nightingale, 433. Northumberland r. Houghton, 179. Northwick f. Stanway, 365. Norton v. London & N. W. Ry., 258. Nottingham v. Lambert, 513, 514, Nowel r. Smith, 257. Nuttal V. Staunton, 429. Nuttallv. Braccwcll, 151, 153, 227. Oak Pits Colliery, re, 422, 432, 459. Oats r. Frith, 380. Ognel's Case, 392, 472. Ohrby r. Ryde Commiss., 541. Oland's Case, 46. V. Bui'dwick, 47. O'Neil V. City Finance Co., 431. Onley v. Gardiner, 289, 297, 299, 303, 304. Ord, )-e, 395. Original Hartlepool Coll. v. Gibb, 157, 485, 500. Oi-me's Case, 390. Ormerod v. Todmorden Mill Co., 149, 152, 153 Orr-Ewing v. Colquboun, 150, 155, 156. Outram v. Maude, 289. Owen v. Legh, 447. Oxley V. James, 377. Packer v. Gibbins, 97. i\ Welsted,'26S. Paddock v. Fon-ester, 354, 569. Padwick v. King, 77. Paget V. Foley, 426. V. Gee, 416. V. Huish, 396. Pain V. Patrick, 514, 515, 538. Palgravo c. Windham, 456. Palk V. Shinner, 302, 304. Palmer's Case, 199. Palmer's Will, 52. Pannell v. Mill, 78, 81, 86. Parish r. Sleeman, 404. Parker v. Fii'st Avenue Hotel Co., 214. V. Harris, 425. V. Mitchell, 297. Parkin v. CressweU, 137. Parkins r. Hiude, 404. Parkyns r. Preist, 496. Parmenter i: Webber, 377, 388. Parr r. Lovegrove, 126. Pan-ett Nav. Co. r. Slower, 467. PaiTott r. Palmer, 26. Parry v. Duncan, 433. c2 XXXVl TABLE OF CASES. Parry v. Thomas, 5G6. Parsons v. Gingell, 453. V. St. Mathew, 540. Partridge 1'. Scott, 244, 245, 248, 292. Pascoe V. Pascoe, 388. Patch t;. Ward, 131. Patching V. Burnett, 396. Paton v. Sheppard, HI. Patrick v. Stubbs, 362, 363. Pattison v. Gilford, 79. Paul r. Sunimerhayes, 75, 77. Pawson V. Pawson, 395. Payne, ex p., 50. v. Partridge, 514, 515, 538. Peacock r. Purvis, 457. Pearcef. Scotcher, 162, 180, 562. Peardon v. Underhill, 355, 365. Pearly f. Smith, 417. Pearson r. Helliwell, 393. V. Spencer, 263, 267, 268, 272, 275. Pelhara tK Pickersgill, 515. Pennant's Case, 428. Pennell v. Dysart, 127. Pennington v. Brinsop Coal Co., 149, 230, 314, 318. Penny and S. E Ry., re, 202. Penruddock's Case, 235, 322, 325. Penry v. Brown, 109. Penryn (Mayor of) v. Holm, 103. Penton v. Robart, 114. Peppin V. Shakespear, 342. Perrot r. Perrot, 19, 20, 33, 38. Perry v. Fitzhowe, 195, 197, 322, 325, 370. Petch V. Tutin, 49. Peter v. Kendal, 514. Peto V. Pemberton, 408. Peyton v. Mayor of London, 249, 251. Phey.sey v. Vicary, 267, 268, 272, 275, 311. Philips V. Brydgcs, 27. V. Robinson, 125. Phillips V. Barlow, 41. V. Bridge, 477. V. Evans, 131. V. Henson, 455. V. Homfray, 22. V. Jones, 404. V. Salmon, 364. i\ Smith, 34, 35. V. Whitsed, 431, 466. Philpott V. Dobinson, 412. Pickering v. Noyes, 86, 130. Pidgeley v. Rawling, 33. Pigot V. Bullock, 23, 38. Piggott V. Birtles, 443, 446, 448, 449, 465. Pilgrem v. Pilgrem, 134. Pilkington v. Dalton, 425. Pilkington's Case, 462. Pilton, ex p., 479. Pinchin v. Blackwall Ry., 14, 266. Pindar r. Wadsworth, 20, 368. Pinnington v. Gallaud, 267, 268. Pitt V. Shew, 119, 441, 443. Place i\ Fagg, 111. Plant V. Cotterell, 136. Plasterers' Co. v. Parish Clerks' Co., 291, 296, 299. Plimmer v. Mayor of Wellington, 196. Plumstead Board v. British Land Co., 490. Poldenv. Bastard, 263, 269, 272, 277. Pollen, ex p., 457. Pollock 'V. Pollock, 421. V Stacv, 377. Pomfret r. Ricroft, 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, 507, 510. Popplewell V. Hodkiiison, 142, 143, 242, 244. Portland 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, 65, 67, 241. Powell V. Fall, 223. ,;. Powis, 335, 371. V. Salisbury, 258. Powers V. Bathurst, 507. Powley V. Walker, 25. Powys V. Blagrave, 28, 93, 101. Poynter v. Buckley, 464. Pratt V. Vizard, 125. Preece v. Corrie, 377, 388. Prescott V. Boucher, 392, 473. Press V. Parker, 90. Pretty v. Solly, 64. Price V. Neault, 196. Prichard v. Powell, 339. Priddle's Case, 403. Proctor V. Hodgson, 267, 268, 269. Proud V. Bates, 5i. V. Hollis, 208. Proudlove v. Twemlow, 447. Pugh V. Arton, 116, 117. V. Vaughan, 27. Pulbrook V. Ashby, 387. Punnett, ez p., 106, 379. Punsany v. Leader, 336. Puseyr. Pusey, 136. TABLK OF CASES. XXXVH Pyer v. Carter, 2G9, 270. Pyne v. Dor, 38, 39. Queen, The, v. Almvick, 352, 5G7. V. Ardslcv, o20, o) j. r. Ashby'Folville, 521. V. Bagge, 523. V. Baiubur, 518, 527. V. Baiuoldswick, 251, 520. i\ Battle, S2. r. Bradfield, 50G, 512, 521. V. Buckliigh, 529. V. Cambrian Ry., 8. V. Carr, 100. V. Chorley, 306, 512, 513. V. Cluworth, 520. r. Cuuuiiigliani, 161, 162. e. Duncan, 539, 543. t'. Durham, 514. r. East Mark, 508. V. Ely, 528, 532, 534, V. Furrer, 541, 548. V. Fobbing, 168. V. French, 504, 521. V. Uraham, 4 95. v. Greenhow, 518, 527. r. Heage, 519. V. Heanor, 541. V. Hockworthy, 347. V. Hornsea, 518, 527. V. Ipstones, 541. V. Johnson, 543. • V. Keyn, 159, 160. V. Kitchener, 496. V. Lee, 541. V. Lincoln, 537. t'. Longtou Gas Co., 491, 499, 500, 511. V. Lordsniere, 504, 509, 512, 521. v. Metrop. Board, 141. V. Mussou, 166. V. New Sarum, 532. V. North, 88. V. North and South Shields Ferry, 516. t'. Northumberland, 70. V. Petrie, 506, 508. V. Poole, 524, 539. V. Poulter, 215, 315. V. Pratt, 254, 491. r. Road, 75. V. RoUett, 520. V. Russell, 543. V. yaintitf, 481. V. Salisbury, 516. V. Slade, 445. Queen, The v. Southampton, 532, 533, 534, 537, 539. V. Stimpson, ISO. V. Strand Union, 489. r. Stretford, 526. V. Thurlstone, 82. 1-. Townley, 75. V. Train, 496. v. United Kingdom Telegraph Co., 493, 497. V. Wakefield, 524, 539, 542. V. Williams, 405. V. Wilson, 523. V. Young, 548. Queen's Coll. v. Hallett, 20, 95. Quincy, ej; p., 111. Quinn, vx p., 135. Race V. Ward, 330, 331, 560, 563. Rameshur Singh v. Koonj Pattuk, 234. Ramsay v. Blair, 53, 68. Ramsden v. Dyson, 196. V. Manchester Ry., 492. Rand r. Vatighan, 433. Randall (■. Rigbv, 472, 474. Rangeley v. Midland Ry , 190, 266, 483. Rashleigh v. Master, 417. Rawstron v. Taylor, 141. Raymond v. Fitch, 31. Rayner v. Preston, loO. Rede 1'. Burley, 451, 454. V. Farr, 476. Reece v. Mdler, 162, 180. Regent Stores, re, 460. Reignolds v. Edwards, 210, 307. Rensliaw v. Bean, 217. Reyuish v. Martm, 417. Reynolds v. Barford, 457. Rhodes V. Airedale Commiss., 156. Richardson, re, 125, 134. V. Watson, 6. Richards v. Fry, 298. V. Kessick, 527. V. Noble, 26. V. Rose, 249. V. Squibb, 334. t'. Swansea Improv. Co., 89. Rickards r. Bennett, 514, 515. Ricket V. Metrop. Ry., 202, 544. Ricketts r. East India Docks Ry., 257, 261. r. Salwey, 334. Rider v. Smith, 211, 255. Ridge, re, 27, 61, 02. Rigby V. Bennett, 244, 246. XXXVIU TABLE OF CASES. Rivers v. Adams, 5o4, 560, 5G1, 565. Kivis V. AVatson, 3S3, 412. Roberts, re, 121. V. Great Western Ry., 261. V. Hunt, 509, 523. V. Karr, 277, 507. V. Macorcl, 201, 212. V. Richards, 150, 152, 234. V. Roberts, 50. V. Snell, 412. Robertson i'. Gantlett, 210. Robinson r. Duleep Singh, 6, 330, 362. V. Litton, 16. V. Milne, 68, 70, 280. . V. Walter, 453. Roden v. Eyton, 441, 442, 465. Rodwell V. Phillips, 44, 45, 50. Roffey r. Henderson, 121. Rogers I'. Allen, 177, 180. V. Birkmire, 431. V. Brenton, 54, 55, 70, 367, 563, 568. . V. Parker, 447, 464. . V. Taylor, 349, 557. Rokeby v. Elliot, 60. RoUason, re, 453. Rolle i'. Whyte, 181, 182. Rolls V. St. George, 492. Rooth V. Wilson, 257. Rope V. Rugge-Price, 564. Roper V. Roper, 396. Rose V. Groves, 500. , V. Miles, 544. Rosenberg v. Cook, 67. Ross V. Peddcn, 92, 146. Rosse V. Wainman, 65, 67. Rotherham v. Green, 356. Rouse V. Bardin, 208, 493. Rowbotham v. Wilson, 55, 237, 239. Rowe V. London School Board, 265. r. Shilson, 484. Ruffey V. Henderson, 197. Rugby Charity v. Meryweather, 486, 506. Rummens v. Hare, 133. RusseU t\ East AngUan Ry., 458. . V. Men of Devon, 539. V. Shcnton, 99, 229, 251. V. Watts, 212, 273, 274. Rust V. Victoria Dock Co., 167, 317. Ryan v. Shilcock, 435. Eylands v. Fletcher, 144, 229, 230. Sacheverell v. Froggatt, 381, 392. Sacheverill v. Porter, 264, 327. Sadgrove v. Kirby, 363, 370. Saffery v. Elgood, 886, 391, 431, 450. Saint r. Pilley, 117. St. Albans v. Skipwith, 18. St. Helen's Smelting Co. v. Tipping, 220, 221, 222. St. Maiy, Newington v. Jacobs, 490, 498. Salisbury v. Gladstone, 63, 344, 352, 353, 558. V. Great Northern Ry., 489, 491. Salmon v. Matthews, 382, 414, 424. V. Smith, 410. Saltash v. Goodman, 176, 179, 554, 562. Salters' Co. v. Jay, 287. Saltpetre, Case of, 72. Salvin v. North Brancepeth Coal Co., 220. Sampson v. Hoddinott, 150, 152, 233, 316. Sanders, re, 434. r. Davis, 48, 106, 116. Sandfordr. Clarke, 511, 645. Sandwich v. Great N. Ry., 150, 151. Saner v. Bilton, 96, 97, 98. Sankey Brook Coal Co., re, 386, 450. Sapsford v. Fletcher, 466. Saunder's Case, 58. V. Newman, 228. Savery v. Dyer, 395. Savile v. Scarborough, 137. Saville's Case, 17. Sayerst^. Collyer, 317, 320. Scales V. Key, 553. Scarsdale v. Curzon^ 137. Scholes V. Hargreaves, 334. Scott V. Howard, 91. V. Jackman, 130. v. Pape, 213, 216, 217, 218, 308, 309. Scottish Widows' Fund v. Craig, 480. Scovell V. Boxall, 30, 45, 50. Scratton v. Brown, 165. Seagram r. 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, 556, 561. Sellors V. Matlock Local Board, 221, 498. Semayne's Case, 435, 470. Seiihouse v. Christian, 208, 210. Serff V. Acton Board, 205, 267, 269. TABLE OF CASES, XXXIX Sergeant, ex p., 434, Seward v. Baker, 516. Sewers Commiss. v. Glasse, 83, 84, 339, 365, 371, 570. Seymour f. Courtenay, 176, 177, 348. Shad well v. Hutchinson, 31C, 317. ShakesjX'ar v. Tejipin, 366. Sharp V. Fowle, 455, 464. Sharrod v. Loudon k N. W. R., 502. Shaw V. Jersey, 472. Sheen ;•. Kickie, 119. ShefiBeld Buildinjj Soc. v. Harrison, 111. Sheffield v. Eden, 135. V. Harrison, 109. Shelley v. Shelley, 137. Sheplierd v. Puyne, 553. • Sheppard v. Wilson, 417. Sherrard v. Sherrard, 417. Shillito V. Hobson, 125, 134. Shiretf r. Hastings, 474. Shotts Iron Co. v. Inglis, 221. Shrewsbury's Case, 26, 92. Shuttleworth v. Le Fleming, 330, 351. Siddons v. Short, 246. Simmons v. Norton, 18, 36. Simper i>. Foley, 303, 311. Simpson v. Dendy, 488, 489. V. Hartopp, 445, 448, 451. V. Savage, 224. t'. Scales, 485. V. WeUs, 553. Singleton r. Williamson, 258. Six Carpenters' Case, 462, 463. Skingley, re, 93, 98. Skull J'.' Glenister, 208. Sloper V. Saunders, 475. Smart v. Jones, 195, 329, 347. V. Morton, 23S. Smith V. Archibald, 280, 563. V. Ashforth, 438, 442, 464, 466. • V. Barnaby, 390. • V. BajTiard, 257. V. Beaufort, 131. V. Brownlow, 371. V. Darby, 55, 240. V. Day, 320, 321. V. Goodwin, 463. V. Great Western Ry. Co., 56. v. Kemp, 176. V. Keurifk, 144, 230. V. Lloyd, 356. V. Malings, 410. V. Marrable, 99. V. Martin, 6. V. Musgrave, 144, 230. v. Owen, 202. V. Ridgway, 7. Smith V. Russell, 456, 457. V. Sheplierd, 431, 514, 515. V. Smith, 320. V. Sunaan, 31. V. Wright, 467. Smyth, ex p., 416. Sneesby r. Lancashire & Y. Ry., 261. Snow V. Wliitehead, 144, 229. Sollory V. Leaver, 393, 480. Solme V. Bullock, 342. Solomon V. Vintners Co., 250, 292. Soltau V. De Held, 222, 544. Somerset v. Fogwell, 174, 175, 176, 178, 263, 346. Souch V East London Ry., 486. South Kensingion Stores, re, 422. South Motrop. Cemetery v. Eden, 208. Southport Banking Co. v. Thompson, 106, 122. Sowerby v. Coleman, 555, 559, 560. V. Fryer, 37, 93, V. Smith, 82, 86. Spackman v. Foster, 136. Speddiug v. Fitzpatrick, 503, 505. Speer I'. Crawter, 10, 11. Spencer's Case, 382, 474. Si)icer v. Barnard, 77. Spike V. Harding, 10, 11. Spooner v. Brewster, 136. Sjjoor V. Green, 56, 358. Squire v. Campbell, 10. Stafford v. Buckley, 382, 393, 394. V. Coyney, 510. Staffordshire and W. Canal v. Bir- mingham Canal, 233. Staiglit V. Biu-n, 217, 218, 309, 322. Stammers v. Dixon, 332. Standard Bank v. Stokes, 259, 260. Standou v. Chrismas, 25. Stanford v. Roberts, 129. Stanley v. Shrewsbury, 319. V. White, 30. Stannaries, Case of, 563. Stansfeld y. Portsmouth, 117. Star V. Rookesby, 253, 255. Stedman v. Smith, 259. Steel V. Houghton, 557, 561. V. Prickett, 488, 494. Steele t'. Mitlland Ry., 89. Stelfox V. Sugdeu, 393. Stephens, ex p., 121. Stevens v. BishojJ, 406. 1\ Wliistler, 490, 491. V. Woodward, 92, 146, 252. Stevenson v. Lambard, 410. Steward c. Lombe, 106, 112. Stockport Highway Bo;u-d f. Grant, 211, 251, 280. TABLE OF CASES. Stockport Waterwoi'ks v. Potter, 152, 230, 231. Stockton Iron Co., re, 379. Stokes V. Cheek, 396. V. Heron, 395. Stokoe V. Siuger.s, 308. Stone V. Yeovil, 149. Storey v. Robinson, 448. Stoughton )-. Leigh, 52, 58. Sti-achan v. Thomas, 426. Stroyan v. Kuowles, 248. Stukeley v. Butler, 34 'J. Sturges r. Bridgman, 193, 225. Styant v. Staker, 360. Suffield, re, 458. 1-. BrowTi, 200, 270, 273. Sumner v. Bromilow, 117, 118. Sunbolf V. Alford, 448. SutcUfEe r. Booth, 234. Sutherland v. Ross, 150. Sutton, re, 458. V. Moody, 74. i: Temple, 99. Swain v. Ayres, 78. Swainston v. Finn, 266. Swale Brick Co., re, 423, 426, 444. Swann v. Falmouth, 437. Swans, Case of, 75. Swansborough v. Coventry, 274. Swansea (Mayor of) v. Thomas, 410, 413, 474. Swansea Bank v. Thomas, 421. Swiiyne's Case, 37. Swindon Waterworks r. Wilts and Berks Canal, 150, 153. Swiufen V. Bacon, 430. Swire v. Leach, 453. Sym's Case, 327. Symons v. Leaker, 304. Taber, re, 395. Talbot's Case, 409, 414. Talbot V. Shrewsbury, 473. Tancred v. Ley land, 4 66. Taplin v. Florence, 195, 198. Tajjling v. Jones, 212, 216. Taylerv. Waters, 194, 195, 2G5. Taylerson »;. Peters, 429. Taylor v. Devey, 560. V. Manindale, 394. V. Mostyn, 56. V. Parry, 64. V. Pendleton, 195. V. St. Helens, 142, 228, 232. V Shafto, 240. V. Taylor, 394. V. Timson, 201. Taylor v. Whitehead, 209, 494. V. Zamira, 466. Teal V. Auty, 30. Temple v. Thring, 137. Tenant v. Goldwin, 229, 270, 273. Tenham v. Herbert, 371. Tew V. Jones, 475. Thames Conserv. v. Inland Revenue, 195. Theed v. Debenham, 214, 215. Thomas, re, 564. V. Fredricks, 78. V. Harries, 438, 462. V. Mirehouse, 456. V. Owen, 7, 89, 272, 275. V. Sorrell, 194, 198. v. Sylvester, 472, 473. • V. Thomas, 235, 311. Thompson v. Mashiter, 453. V. Pettitt, 119. V. Sunderland Gas Co., 493. v. Thompson, 473. V. Wood, 464. Thomson v. Water low, 278. Thorn v. Woolcombe, 377, 409. Thornton V. Adams, 433, 450. Thorpe v. Brumfitt, 191. Thwaites v. Wilding, 455, 462. Tickle V. Brown, 288, 293, 296. Tidd V. Lister, 27. Till, ex p., 458. Tillett V. AVard, 501. Timmius v. Rowlison, 430. Todd V. Flight, 251. Toleman and England, re, 135. ToUemache v. Toilemache, 42. Tomlinson v. Day, 411, 476. Tone Conserv. v. Ash, 566. Tone V. Preston, 287, 294. Tooker v. Annesley, 23, 40, 41, 42. Topham v. Greenside Brick Co., 107, 122. Torriano v. Young, 92, 98. Touch V. East London Ry., 492. Toule V. Jackson, 452. Tourlc y. Rand, 127. Traders' Co., re, 459. Trafford v. The King, 147. Trujjpes V. Harter, 106. Trotter v. Han-is, 514. V. Maclean, 56. Truman v. London, Brighton Ry., 484, 496. V. Walgham, 513. Tucker v. Linger, 63, 68, 552, 562. V. Newman, 235, 303. Turner v. Cameron, 109, 444, 475. V. Ringwood Highway Board, 490, 494, 516. TAHLK OF CASES. xli Turner v. Spooner, 202, 21G. V. Tunicr, 394. V. Wiilsh, 508. V. Wright, 16. Tutill V. West Ham, o48. Tutton V. Darke, 435. Twynam v. Pickard, 413. Tyrrell v. Clark, 420. Tyn-inghain's Case, 328, 337, 338, 342, 357. 358, 359. Tyrwhitt v. Wynne, 51, 355. Tyson V. Smith, 552, 556, 558, 563. Underhay v. Read, 379. United Land Co. c. Great Eastern Ry., 205. Vaisey v. Reynolds, 49. Valentine v. renny, 327. Vane v. Barnard, 24, 94. Vaspor ('. Edwards, 439. Vaughan v. Biirslem, 136. V. Taff Vale Ry., 223. Velthasen v. Oi-m.-^Iey, 162. Vennor, ex p., 517. Vernon v. St. James, 221, 486. V. Vernon, 416. Vickers v. Pound, 396. Vincent r. God.son, 378. V. Gordon, 473, 474. V. Spicer, 23. Vincr v. Vaugliaii, 58, 60. Voisey, ex p., 379, 424. Vooght V. Winch, 516. Vowles V. Miller, 258. Wade and Thomas, re, 127. Wade t'. Marsh, 377. V. Wilson, 28. Wadmore v. Dear, 8. Wads worth, re, 135. Wake V. Hall, 107, 108, 114, 564. Wakefield v. Ncwbon, 135. Waldo t'. Waldo, 41. Walker's Case, 410, 414, 472, 474. 476. Walker v. Brewster, 222. V. Homer, 546. Wallace r. King, 441, 464. Wallasey Local Board r. G rarer, 543, 544. 110, 424, Wallington v. Hoskins, 496. Wallis V. HarrLsun, 197. V. Savill, 462, 463. Walls V. Atcheson, 475. Walmsley v. Milne, 106, 109, 111. Walsh V. Lonsdale, 78, 378, 425. Walter v. Rumball, 442. r. Selfe, 220. Walton V. Waterhouse, 97. Wandsworth v. United Telephone Co., 13, 492, 497. Wan.sbrough v. Maton, 112. Warburtou r. Parke, 290. Ward V. Creswell, 178. V. Grey, 396. V. Robins, 298. V. Ward, 296, 307. Wardle r. Brocklehurst, 270, 276. Ware v. London and Brighton Ry., 14. Warren r. Matthews, 181. V. Rudall, 93, 129. Warrick v. Queen's Coll., 337, 338, 371, 558, 569, 570. Warwicker v. Bretnall, 100. Washbom v. Black, 438. Waterfall v. Penistone, 106. Waterman v. Soper, 29. Watherell r. Howells, 108. Watson v. Gray, 259. Watts V. Kelson, 228, 269, 270, 272, 276. Webb V. Bird, 201, 202, 219, 286. V. Jiggs, 375, 472. V. Lymiugton, 127. V. Paternoster, 194. V. Rus.-^ell, 409. Webber v. Lee, 79, 80, 198, 346. Weekly r. Wildman, 335, 561, 566. Weeks v. Sparke, 341. Weeton v. Woodcock, 117. Welcome r. Upton, 300, 331, 335, 352. Wells V. Pearcv, 340, 366. r. Watliug, 368. Wentworth v. Clay, 364. West f. Blake way, 119. r. LasseUs, 413. r. Moore, 40. V. White, 222. West Cumberland Inm Co. r. Km- yon, 145, 151. 230, 235, 237. West Norfolk Farmers' Co. «'. Areh- dale. 167. West Riding v. The Queen, 525. Wcstbury c. Powell, 551. We-^ston f. Arnold, 259. I,. dii TABLE OF CASES. Wlialey v. Laiug, 194. Whalley v. Lancashire Ry., 147. f. Tompson, 275, 278. Wharton r. Naylor, 455, 456, 457. AVhecldon r. Biin'ows, 273, 274. Wliilster V. Paslow, 32. Whitaker v. Forbes, 473. White V. Bass, 273. r. Coleniati, 567. V. France, 502. — — V. Hindley Board, 545. v. James, 480. V. West, 390. . Wliitehead v. Parkes, 142. Whitehouse v. Wolverhampton Ry., 66. Whitelock t'. Hutchinson, 334. Whitfield v. "Bewit, 38. Whitham v. Kershaw, 20. A\Tiitiug and Loomes, re, 126. Whitlock's Case, 381. Whitmore v. Empson, 120. v. Humphries, 12. Whorwood, n\ 137. Wickham v. Hawker, 54, 78, 80, 197, 199, 265, 348. Wigford V. GUI, 325. Wigglesworth v. Dallison, 4 6. Wigram <;. Fryer, 266, 315. Wild's' Case, 358, 359,413. Wilde, re, 123. Wilder. Waters, 109, 119. AVilder v. Speer, 439. Wilkes V. Broadbent, 560. Wilkins v. Day, 493, 499, 513. r. Jodrell, 395. "Wilkinson's Estates, 52. Wilkinson v. Hall, 430. r. Proud, 52, 53. Williams, ex. p., 379. Williams v. Adams, 548. V. Bolton, 39. V. Hay ward, 388, 410. — ^ — V. Holmes, 425, 452. V. James, 205, 206, 207, 208, 282, 324. V. Morland, 315. «-. Morris, 198. V. Phillips, 328, 367. r. Wilcox, 157, 162, 163, 182. • IK WiUiams, 17. Willingale v. Maitland, 561, 565, 567. Willis, re, 379. 387. V. Parkin.son, 11. V. Watuey, 10. Willoughby v. Backhf)use, 465. V. Willoughby, 405. Wilsou r. Bame-s, 568. Wilson v.. Fhich-Hatton, 99. V. Harman, 417. V. Hoare, 557. V. Macki-eth, 330, 342. V. Maddison, 395, V. Newberry, 258. V. Townond, 215, 295, 322. V. Waddell, 144, 230. ,,.. Willes, 328, 354. Wiltshearr. Cottrell, 104, 112. Wimbledon Conserv. v. Dixon, 207, 209, 268. Winch ». Thames Conservancy, 158, 485, 486. Winchester v. Knight, 20, 22. Windsor (Dean of) v. Gover, 381, 424. Winn?'. Ingilby, 119. Winter's Case, 413. Winter v. Brockwell, 309. V. Mouseley, 397. Winterbotham v. Derby, 645. Winterbounie v. Morgan, 443, 464. Wise V. Metcalfe, 93. Wiseman v. Booker, 257. WoUaston v. Hakewill, 377. Wood V. Clarke, 451,452. V. Gaynon, 93. V. Hewett, 107, 191, 200. V. Lake, 194. • V. Leadbitter, 194, 195, 196, 198, 263. V. Manley, 198. V. Nunn, 436. V. Saunders, 231, 282. ,-. Veal, 486, 507. V. Waud, 148, 229, 233, 234, 314. Woodcroft V. Thompson, 437. Woodham, re, 447. Woodhouse v. Walker, 19, 21, 22, 92, 93. Woods V. Durrant, 438. Woodyer v. Hadden, 208, 486, 498, 505,' 506. Woollcy V. A.-G. Victoria, 71. Woolwich Churchwardens v. Robertson, 163. Worlcdge v. Kingswell, 360. Wormald v. Muzoen, 7, 394. Woitliington V. Gimson, 272, 275. Wriglit r. Dewes, 457. v. Hobcrt, 667. V. Howard, 152. V. Pitt, 564. V. Roliotham, 129. v. Wallasty Board, 90. • V. Williams, 229, 287, 298, .'iOt. TA)5LE OF CASES. xliii "Wyatt V. Harrison, 'iio. WyucUmiii c. Way, 32. Wyun's Estiitfs, 52. Wyuue V. liuiiiburston, 128. Yarmouth r. Eaton, 171, 51 1. Yatos, n; 107, 123. Yates V. Madilan, 394. V. Task, 215, V. Yates, 393. Yea ('. Field, 129. Yearworth v. Pierce, 109. Yelluwly V. Guwer, 23, 92, 100 381. Yonge v. Furse, 39G. York V. Pilkington, 371. Yorkshire Ins. Co. v. .Clayton, 8, 13. Yorkshire Building Co. v. Mullan, 379. Young V. Davis, 540. V, Spencer, 18, 95. Zetland r. Glover lucorp. Perth, 154. i INTEODUCTION. A FORMER volume of a proposed Digest o£ tlie Law of Property in Land, after ]ia\ing given a short abstract of the Som-ces 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 diu'ation 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 succession of estates, land was there considered only in regard to its qualities, as a subject of property, of per- manence and continuous use ; being the qualities wliich 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 wliich might arise in applying the doctrine of estates, so derived, to the specific uses and profits whicli in fact constitute the beneficial elements of property in land. The use and enjoyment of land was there considered merely as flow- ing on imitedly and uniformly dming each successive estate, and as, therefore, admitting of a substitution of o^vMiership at any moment of time, without any difficulty in ascertaining the rights of successive OANoiers {a). The present volimie 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 fi'om them, more or less. For instance, the profit of land derived {a) See the Introduction to Volume I. L. B INTRODUCTION. from the natural products of growtli on the surface is more accurately descrihed as recurrent than as continuous. With some kinds of produce, as annual crops, it is uniformly recmTont, subject only to the variations of cultivation and of the seasons ; with otlier kinds of produce, as wood and timber, it is recuiTent at longer and less regular intervals. Again, the profit of land for some purjooses is neither con- 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 tlie continuance of the estate, cannot be applied strictly to those uses and profits which fail in satisfying this assumption ; and that conse- quently modifications are necessary to correct the irregular and uncertain distribution of the benefits which would occur, in regard to such uses and profits, upon the substitu- 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 tlie other hand, he might till and sow the land, and be unable to take the crop before the expira- tion of his estate. It becomes necessary, therefore, in order to secure the rights of successive owners, that jDrovi- sion be made by law for tlie purpose of securing to a present tenant the fruits of proper management and culti- vation, and at the same time of securing his successor against the risks of permanent waste and deterioration. Accordingly it is now purposed to treat successively the various uses and profits of land which are recognized in law as subjects of property ; and concurrently to ascertain INTRODUCTION. " the quantity or degree of the uses and profits appropriated by law to different estates. The fee simple being the largest estate known to the laAv, and therefore including every beneficial incident allowed by law, it is piu-poscd 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 secui-ities are pro\dded for the due enjo}Tnent 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 fi'om time to time. But it will appear that some uses and profits are capable of being appropriated in separate o^vnersllip to one person concuiTently 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 invohing possession of the land itself may be assigned in separate ownership to another person ; so far infi-inging upon the integrity of the full ownersliip and enjopnent of the fonner. Property of this kind is exemplified by rights of way, rights to the access of light, and other like rights of use, which, under the tenn " 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, tiu-f, herbage, and other like profits, known in law as " Profits d prendre" which may be severed in o^^^lership from all other uses and profits of tlie land and held as separate subjects of property. These riglits 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 PEOFITS OF LAND. Chapter I. Land in general. II. Possessory rights and liabilities of Tenants. III. Trees, Woods, and Timber. IV. Growing Crops. V. Mines and Minerals. VI. Game and Wild animals. VII. Houses and Buildirgs. VIII. Fixtmes. IX. Title-deeds and Heirlooms. X. Inland waters. XI. Sea and Tidal waters and Sea shore. XII. Fisheries. CHAPTER I. LAND IN GENEEAL. Terms of description — land — water — manor— messuage — appurtenants — rents, profits and uses. Tenement — hereditament — corporeal and incorporeal — reversionary estates. Identification of land, by 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 sm-face 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 convejauces, 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 bo described by sjiecial terms refeniug to the legal condition of the property, as manor, honor, forest, park, warren, fann ; or to the buildings upon it, as castle, hall, grange, messuage, house ; or to other distinctive cliaracteristics, as close, cm-tilage, garden, orchard. The terms of description are construed with reference to the context of the instrument and the circumstances to wliich it is applied («) . — "Ayater"is not in general a sufiicieut Water, description of the land upon which the water rests ; but it may appear fi'om the context and circumstances that it is so used and intended ; the proper description is " land covered with water "(/>). The term ''fishery" has been held sujQficieut to pass the soil of a lake, wlicre tlie con- {a) Co. Lit. 4, ; 19 l>. (A) Co. Lit. 4 r,, h. 6 USES AND rilOFlTS OF LAND. Manor. Warren. rarm. Messuage or house. Appurtenant. veyance was made by livery of seisin and with a reserva- tion of rent ; both which eu-cumstances are inapplicable to the incorporeal property in a mere right of fishery (c). — " Manor " is sufficient to pass all rights comjirised in the manor designated ; so that the demesne lands pass to the grantee, together with all seignorial rights, rents, services and casualties (c/). — "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 j^ossession of the land itself. The term " warren of conies " has been taken to pass the soil, in accordance with the intention she^\ai in the deed of conveyance ((>). — "Farm" primarily 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 (^). — "Close" in the ordinary sense denotes an inclosure or piece of land inclosed with boimdaries ; but it may from the contest or cu'cumstances receive a wider meaning (//). " By the grant of a messuage or house, the orchard, garden and cm^tilago do pass, and so an acre or more may pass by the name of a house" ; but it is a question of evi- dence in applying the deed or instrument of conveyance, what is parcel of or appurtenant to the house (i). : — It is a general rule that land cannot pass under the (c) Marshall v. Vlleswater Nav. Co., 3B. &S. 732; 32 L. J. Q. B. 139; Holford v. Bailey, 8 Q. B. 1000 ; 13 Q. B. 426 ; Devonshire v. I'aitinson, L. E. 20 Q. B. D. 263 ; 57 L. J. Q. B. 189. {d) Luke of Leeds v. Lowell, 1 Ves. sen. 172; Luke of Beaufort v. Hwamea, 3 Ex. 425. (t) lichinson v. Luleep Singh, L. R. 11 C. D. 798; 48 L. J. C. 758 ; Beauchamp v. Winn, L. R. 6 H. L. 236 ; 38 L. J. C. 556. (/) Plowden, 195 ; Lane v. Stan- hopc, 6 T. K. 345. {rj) Holmes v. Mihvard, 47 L. J. C. 522. (h) Richardson v. Watson, 4 B. & Ad. 787. (i) Co. Lit. b h; 06 l> ; Plowden, 171; Smith V. Martin, 2 Wms. Saund. 400 ; Chard v. Tuck, 3 Leon. 214; Cro. Eliz. 89; Lucy. Collins, 2 T. E. 498 ; Doe v. Webster, 12 A. & E. 442. CHAP. 1. I,ANI) IX GKNKUAI.. / mere description of an " appm-tonant " of a house or land, unless it is in fact appurtenant in tbe sense above stated ; and in that case it would pass as being included in tlio house or land described, without mention of appur- tenants (/.•). But the word " apx^iu'tenant " maybe used in a deed or ^^•ill ^^'ith reference to the context and circum- stances as intending other land lying near to, or usually . held or occupied ^\ith, 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 Rents, profits the land itself {m) ; and a devise of " rents" may pass land, ^^^ "^®^* according to a common use of the word "rents" for land {ti). A devise of the " income" of land is equivalent for this pm-pose to a de\dse of the rents and profits (o) ; and a charge upon the income of land is prima facie a charge upon the corpus; of the land (/;). — A grant of "the profit" of laud is sufficient to pass the land itself, " for what is tlic land but tlie profits thereof ? for thereby vestui'e, lierbage, trees, mines and all whatsoever parcel of that land doth pass." But the grant of a particular profit, as the vestm-e or herbage of the land, or the corn, 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 toanother to dig turves in his land and to cany them at his will and pleasure, the land shall not pass, because but part of the profit is given" (<7). — "A grant of the exclusive yse of land is a grant of tlic laud" (r). So the exclusive use (/t) Co. Lit. 121 h\ Buck V. 326 ; L. R. 35 C. D. 3-1.5. Kurton, 1 B. & P. 53 ; Smith v. {n) Kerry v. Derrick, Cro. Jac. Ridgicmi, L. R. 1 Ex. 331 ; 35 104. L. J. Ex. 198. (o) Manmx v. Greener, L. R. U (/) Plowdcn, 170, 171, Hill v. Eq. 4oG. Grange; Thomas v. Oiroi, L. R. (;;) Jformald v. Mtizecn, L. R. 20 Q. B. D. 225; 57 L. J. Q. B. 17 G. D. 1C7 ; 50 L. J. C. 776; 198 ; Cuthbert v. Eobimon, 51 L. J. and .see ante, vol. i. p. 274. C. 238. (y) Co. Lit. 4 *. (ot) Doe V. Lakcmau, 2 B. & Ad. (/) Per cur. Capel v. Buszard, 6 42 ; Johnson v. Johnson, 56 L. J. C. Bing. 169. 8 USES AND PROFITS OF LAND. Tenement. Heredita- ment. of land for all purposes to whieli the land is in fact applicable, is iiresumptive evidence of the entire owner- ship ; as in the case of an exclusive pasturage of sheep upon a mountain sheep walk, upon Avhich no other act of ownership had been exercised (-s) . The term "tenement" means primarily whatever may be the subject of tenure ; "it includes, not only all cor- porate inheritances Avliich 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 w^hatsoever granted out of land" {t). It is used as includ- ing sej)arate profits granted out of land in the Statute Be JDonia ; all such profits are within the statute and may be entailed, as a right of hunting and taking game (m). It is used in a similar meaning in the Statute of Frauds, s. 5, prescribing the form of wills (r) ; also in the Settle- ment Acts, as a right of pasturing cattle («•), or a right of warren {x) ; and in the Acts relating to the cpialification 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 (~). "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) Jones V. liioharcl, f) A. & E. 413. {t) Co. Lit. C «; 19 h\ Dawson V. RoUns, L. E,. 2 C. 1\ D. ^8 ; 4G L. J. C. P. 62. {u) Co. Lit. 19 b\ Moore v. Thj- mouth, 7 Taunt. G14. [v) Habergltam v. Vincetit, 2 Ves. jun. 232. (w) The Einrj v. Tolpuddle, 4 T. R. 671. (x) The King v. Piddletrenthide, 3 T. R. 772 ; Bcauchamp v. Winn, L. R. 6 H. L. 242; 38 L. J. C. 556. (y) Wadmore v. Dear, L. R. 7 C. P. 224; 41 L.J. C. P. 49. [z) Dashu-ood v. Aylca, L. R. 16 Q. B. D. 301 ; 55 L. J. Q. B. 8 ; Yorlcshire Ins. Co. v. Clayton, L. R. 8 Q. B. D. 423 ; 51 L. J. Q. B. 82. («) Lit. 8. 9 ; Co. Lit. 6 a ; L/oi/d V. Jones, 6 C. B. 81 ; Cockbum, C. J. The Queen v. Cambrian Ey., L. R. 6 Q. B. 427 ; 40 L. J. Q. B. 169. CIIAP. I. LAM) IN GENEKAL. 9 Things arc distinguished as corporeal and incorporeal according as tlioy arc capable or incapahlc of actual pos- session. The corporeal include land itself and all parts of land tliat are capable of separate possession, as tlie surface and substratum. The incorporeal include all uses and profits of land which may be held and enjoyed as separate subjects of proport}', 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" (/^). The terms lands, tenements, hereditaments, and other Reversionary general words descriptive of the subject of propert}^, serve also to pass all estates and interests in the property so described, whether in j)OSsession or reversion. Thus by a grant of " lands and tenements," a reversion or remainder which tlie 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 *«// his mill,'' the reversion will pass." " And if land, be knoAvn 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 pass by the name of the manor" (c). Land is usually identified in a deed or instrument by identification the proper name, by whicli 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 {d). 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 (<;). — Land is sometimes described by reference to Occupation. (A) 2 Blackst. Coin. 20. (il) Buy v. Brownrigg, L. E. 10 (c) Perkins, ss. 114, 116, 540. C. D. 294 ; 48 L. J. C. 173. (e) 18 & 19 Vict. c. 120, e. 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 descrij)tions 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 boundaries ; 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 {(j). Boundaries. Duty of tenant. Commission 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 detemiined in any other way than the ordinary legal mode. Confusion of boundaries furnishes, per sc, no ground for the interposition of the Court" (h). 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 j)i"operty 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 (/■) 3fartyr v. Lawrence, 2 D. J. & S. 261; Doe v. Mirf, 1 T. R. 701. (f/) Llewellyn v. Jersey, 11 M. & W. 183 ; Barton v. JJawcs, 10 C. B. 261 ; Squire v. Gamphell, 1 M. & Cr. 478 ; Willis v. Watney, 51 L. J. C. 181. (A) Eldon, L. 0. Speer v. Crawler^ 2 Mor. 417 ; Miller v. Warmington, 1 J. & W. 492 ; Btite v. Glamorgan Canal, 1 Phill. G84. As to fencing boundaries, see post, p. 253. (i) Eldon, L. C. A.-G. v. Fuller- ion, 2 V. & B. 264 ; Spi/ce v. Ward- ing, L. R. 7 C. D. 871 ; 47 L. J. C. 323. CHAP. 1. LAND IN GENERAL. 11 mucli of the tenant's own land as shall be equal in value to that originally granted or leased (J). 13y consent of the parties the Court will direct an inquiry in chambers to ascer- tain the boundaries ; and the Court will grant discovery 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 tlie reversioner or remainderman cannot tell to what land he is entitled, the Court will give relief by compelling the person who has occasioned the difficidty to make good, out of that which may be considered a common fund, that portion of it which belongs to another" (/). The obhgation runs with the land, and the rehef is given not only against the person guilty of the neglect, but against all those who claim imder 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 pai-t of the estate with which it has been confused, mtliout showing that the part which he holds contains the part which is lost (w) . — The same obligation exists in copyhold tenm-e. The Tenant of copyholder who holds freehold land of tlie same manor is ^'^^^ '^ ' bound to keep the boundaries distinct, and in case of con- fusion, the lord is entitled to have a commission to ascer- tain the boimdaries, or to set out as much of the freehold as is of equal value vdth. the coj^yhold lost. *' The eon- fusion of boundaries does not infer any neghgence on the part of the lord; for the tenant is in possession of the land " (»). (» Specr V. Craivter, 2 Mcr. 418 ; L. J. C. 890. TTt/Zi's V. Par^jwswj, 2 Mer. 507 ; 1 (w) A.-G. v. Stephens, supra; Swanst. 9. Godfrey v. Littk, 2 Russ. & M. {k) Broun v. Wales, L. R. lo 630. Eq. 142 ; 42 L. J. C. 45 ; Spike v. (h) Leeds v. Strafford, 4 Ves. 180; Harding, supra. See Xorlh v. Strafford, 3 P. Wms. {I) Cranworth, L. C. A.-G. v. 150 ; see Leeds v. Towell, 1 Ves. Stephens, 6 D. M. & G. 133 ; 25 sen. 172. 12 USES AND rilOFITS OF LAND. Encroach- ments. Encroach- ment by copy- holder on ■waste. It is a general rule that an oncroacliment made by a 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 ( p) . 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 ajtplies 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- jacent waste or common (r). Upon the same principle it was held that where a copyholder extended his tenement 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 presumj^ttion being in favour of a legal title, and of that most favourable to the lord (.s). But where the lord took a smTender and made a re-grant of the original tenement without the accretion, it was held that he had precluded himself from claiming it {t). Property in Property in land as defined and limited by superficial land above , ,. ,• ^ • •ji-i l^ • and below the boundaries presumptively carries with it everything con- surface, taincd beneath the surface, as mines and minerals, also the si)ace above the surface with whatever use can be made of it {u) . Therefore, if an owner of land build anything (o) Bryan v. Wintvood, 1 Taunt. 208; Doc v. Jo7ies, lo M. & W. 580 ; Lishurno v. Davies, L. R. 1 C. P. 259; 35 L. J. C. P. 193. (p) llliitniore v. llumphricx, L. R. 7 C. P. 1 ; 11 L. J. C. P. 43. {q) Andrews v. Hailes, 2 E. & B. 349. (r) Andrews v. Ilailes ; Zisburiie V. Davies, supra. (s) A.-G. V. Tomline, L. R. 5 C. D. 750; 46 L. J. C. 654. [t) S. 0. on appeal, L. R. 15 C. D. loO ; in which case the Court of Appeal thouiifht it doubtful whether the doctrine of encroach- ment by a tenant operating for the b(!nefit of the landlord applied at all to copyhold tenure, {?') Co. Lit. 4 a. CHAP. 1. I.AM) IN CiKNKUAI,. 13 projecting over the boundary, as tlic c(jrnice or eaves of a house, it is prima facie ^vrongful to tlic owner of the adjoining land, by encroaching 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 (.r). — By the right of abating a nuisance the owner of a close can justify cutting off 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, wdiich was poisoned and died in consequence of eating branches of yew growing over the boimdary, it was held that he might recover the loss fi'om the owner of the trees {;/) . Upon the same principle the owner of a house or land may prevent the carrjang of telegraph wires through the air over his property (:;). Land may bo divided into separate properties by hori- Partition of zontal as well as vertical partition, and the sui'face and the J^J^^ homon- 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 pm'j)oses may be regarded as separate houses {a) . — Under the Lands Clauses Consohda- Lands Clauses tion Act, 1845, 8 & 9 Yict. c. 18, which provides for rail- ^'*- way and other companies acqumng land for the pm'poses of their undertakings, the word "land" is taken in the ordinary sense as including the w'hole space above and {z) Batcn'' s Case, ^ Co. b'ib; Fay (;) Wandsuorth v. United Tele- V. FrcnUce, I C. B. 828 ; Harris v. phone Co., L. R. 13 Q. B. D. 904 ; Be Finna, L. R. 33 C. D. '260 ; 56 53 L. J. Q. B. 449. L. J. C. 348. {a) York.shirc Lis. Co. v. Clai/toti, {y) Crowhurstv.Amersham Burial L. R. 8 Q. B. D. 421; 51 L. J. Board, L. R. 4 Ex. D. 5 : 48 L. J. Q.B. 82. As to mines and minerals, Ex. 109. see post, p. 51. land 14 USES AND PROFITS OF LAND. below the surface ; and a railway company, although requiring only a portion of such space for the purpose of a tunnel or a bridge, are bound to take the whole ; also, lia\dng taken it, the space not required for the tunnel or Superfluous bridge does not become " superfluous land," which the comj)auy is directed by the Act, s. 127, to sell(&). 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) . {b) lie Metropolitan District Eij. 258 ; JFare v. London and Brighton and Cosh, L. R. 13 C. D. 607 ; 49 %., 52 L. J. C. 198. L. J. C. 277; Fi>whin v. Blackwall [c] Hilly. Midland Ry., L. E. 21 Rij., 5 D. M. & G-. 851 ; 24 L. J. C. D. 143 ; 51 L. J. C. 774 ; Great C. 417; Mulliner v. Midland Ry., Western Ry. v. Swindon Ry., L. R. L. R. 11 C. D. 611 ; 48 L. J. C. 9 Ap. Ca. 787. ( I'^i ) CHAPTER II. POSSESSORY EIGHTS AND LIABILITIES OF TENANTS. Tenant in fee simple — fee subject to executory interests — equitable waste. Tenant in tail — special tail — after possibility of issue extinct — luider Settled Laud Act. Tenant for life or for 5^ears — liability for ■w^aste. Action of -waste — damages — limitation of action — action of waste by or against executor — waste by stranger — vis major. Tenant for life or years without impeaclimcut of waste — equitable waste — covenants relating to use of land demised — implied con- tract of tenant. Tenant at will — tenant of copyliold — waste by copyholder. Tenants of equitable estates — special trusts. Tenant in fee simple absolute, in possession, has the largest Tenant in fee right to the uses and profits of the land, that is allowed ^^P^*^- 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 P^/^^^^T 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 rig] its as would imdidy prejudice the future possession. Though he would as tenant in fee simple be entitled to cut and take all 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 of Norfolk v. Arbuthnot, L. R. 4 C. P. D. 30G ; -18 L. J. C. P. 745. 16 USES AND PROFITS OF LAND. arc ornamcutal to tlio 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 liis death ; also against a tenant in fee subject to an executory devise to take effect upon his death under twenty-one ; in accordance with the presumed intention of the testator in such cases that the estate should pass over to the future devisee without mt^terial deteriora- Eqmtable tion {c) . — The wilf ul 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 tail. 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 down houses, as he pleases, without 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 himseK a devise. fge simple absolute, discharged of all remainders and re- versions, and of all 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 ownership, 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) Turnery. Wrif/h(, Johns. 7'iO; {d) Ante, p. 15; A.-G.\. Bulcc 29 L. J. C. 598. of Marlhorowjh, 3 Madd. 498 ; Mild- (c) Ih. ; Robinson v. Litton, 3 Atk. maifs Case, 6 Co. 41 a. ;. 209. CllAl'. II. POSSESSORY UIGIITS OF TENANTS. it entail. If ho 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 tlieni descends Avith the estate to the heii" in tail, and the piu-chaser 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 interest until executed, and is determined by his death (pcU, L. E,. .20 Eq. 541 ; 44 Cll.Vr. II. POSSESSORY llKilllS OF TKXANTS. ]0 Tlie actioii for waste at common law lay against tenant Action of in (lower, tenant by tlie cm-tesy, and guardian, the tenancy ^'^*®- in tliese cases 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 jniglit have jirovided against waste in the lease. The waste, however, though not actionable, did not change the property in the trees or minerals wasted, whieli re- mained in the lessor (/?). — 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, dming their terms, shall not make waste sale nor exile of houses woods nor of anything belonging to the tenements that thc}^ have to ferm, without special licence had by -UTiting of covenant making mention that they may do it." The term " fermors " comprehends all sucli 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(o). — A special action was given by the Statute of Grloucester, 6 Edw. I., c. 5, for the recovery of the place wasted and treble damages. This action, in common with other real actions, was abolished by the statute 3 & 4 "Will. IV., c. 27, s. 3G ; 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 Marlbridgo (p). Accordingly an action may now be brouglit to recover damages for waste against the tenant for life or for years, by the person liaviiig the immediate vested estate in reversion or remainder, for life or for 3'ears, in fee or in tail ; and such person may reco"S'er damages for the waste done, which is assessed according to his interest in tlic property (, JfaUhiid, 16 M. Sc W. 262; per Htrlakoideii's Case ; Bowies' Case, 11 ciir. iroodhousc v. Walker, L. R. 5 Co. 81 b. Q. B. D. 406 ; 49 L. J. Q. B. 611. (o) 2 Inst. 144, 299. {q) Co. Lit. bia\ 2 Wm.s. Saund. (ju) 2 "VVms. Saund. 252 r?, Greene 252 a ; see Terrot v. Perrot, 3 Atk. V. Cole; Parke, B., Harneit v. Qi; Baeon \. Smith, \ (^.B. Z\o. c2 20 USES AND PROFITS OF LAND. claimed against eontiuiied or threatened waste {>•) ; also a claim may be made for an account of the proceeds of ■waste, as the proceeds of timber wrongfully cut or of Damages. minerals wrongfully taken (.s). — The measm^e of damages is the diminished present value of the reversion, and not the cost of restoring the property to its unwasted condi- tion (/). 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 Grloucester, of forfeitiu'e and treble damages {I'l). Accordingly it is said : " The waste must be something considerable ; for if it amount only to twelve- pence or some such petty sum, the plaintiff shall not recover in an action of waste ; nam de minimis non curat lex " (?'). " 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" (?t-). Upon this princi]3le the Court will not grant an injunction unless the waste charged is " of a substantially injmious character; and if the waste be really ameliorating waste, which results in benefit and not in injuiy, or if it be so small as to be indifferent, the Court will not interfere to prevent it" (.r). The limit of actionable waste is sometimes fixed in value by agreement in the lease (//). — Waste is actionable imme- Limitation of diately it is committed, without waiting till the end of the tenancy ; although jiossibly the waste might be repaired and the land restored by the tenant during his tenancy (c) . Consequently the Statute of Limitations runs from the time of committing the waste, whether the claim be made (r) Ferrot v. Ferrot, 3 Atk. 91 ; Wachivorth, 2 East, 164. Judicature Act, 1873, 3G k. 37 {v) 3 Blackst. Com. 228. Vict. c. 66, 8. 25 (8). \w) Co. Lit. 54 rt. (s) lip. Winchester v. Kii'ifjld, 1 [x) Loherty v. AUman, L. R. 3 P. VVms. 406 ; Hir/fjinbotJuint v. K\). Ca. 724 ; Bubh v. Yelcerlon, Hawkins, L. R. 7 Ch. 67'J ; 41 L. R. 10 Eq. 465 ; 40 L. J. C. 38; L. J. C. 828. Jlollineux v. rowell, 3 P. Wms. [t) IFhilham v. Kerahaxv, L. R. 268, n. 16~ti. B. D. 613. (y) Doc v. Bond, 5 B. & C. 855. (?<) Harrow School v. Ahlerton, 2 \z) Queen's Coll. v. Uallett, 14 B. &. P. 86 ; per cur., riiulir v. East, 489. action. CHAP. II. rOSSF.SSORY lUCJlITS OF TKNANIS. l?l for damages, or for an ar-oouiit of llio proceeds of tlie waste (r/). But Avasto in non-repairing nnder a special obligation to rejiair may be a continning cause of action until the end of the tenancy [b). The action of waste by the rule of common law died witli the person, eitlier 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 injmy 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 2>art of the per- sonal estate of such person." — By the same statute, Action sect. 2, an action for waste, committed by the deceased (.°to° of ^q' tenant in his lifetime, may be maintained against his ceased tenant, executors and administrators, "so as such injury shall have been committed -VNithin 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 administi-a- tion of the estate of such person," If the action of waste to recover damages for the injmy to the reversion be barred by the death of the tenant, no claim can bo made against his estate in respect of indu'eet profit derived fi-om the waste, as the saving of exi^ense 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 (rt) Seagram v. Knight, L. R. 2 (A) Woodhouse v. Walker, L, R, Ch. G28; 36 L. J. C. 310; Uiggin- 5 Q. B. D. 404 ; 49 L, J, Q, B, botham v. Hawkins, L. R. 7 C. 609. 676; 41 L. J, C. 828. (r) 2 Inst. 305, 22 USES AND rROFlTS OF LAND. Waste Ly stranfjrer. Vii m^jor or value of property, actually acquired to tlio estate of the deceased tenant, as timber cut and minerals got and sold by him {d). AVaste 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 taking out of administration [c). The tenant is responsible for acts of Avaste committed by a stranger, thougli 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, ct qui non obstat quod obatare potest facere 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 " without impe:ichment of waste." The Statute of Marlbridgc above cited prohibited t!]). Equitable waste. Waste under Judicature Act. trustees, iu exercise of a general power of sale sold the land, excepting the timber, and the tenant for life impeach- 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 cut 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 simj)le 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 future objects of the settlement (r). By the Judica- ture Act, 1873, 3G & 37 Vict. c. 66, s. 25 (3), "an estate (o) Chohneley v. Faxion, 3 Bin<^. 207; Coclccrcll v. Cholmeloj, 10 B. & C. 5G4 ; 1 Russ. & M. 424 ; 1 CI. & R 61. (p) UormiY. JFilishire, Z S-wa,nBt. 699. (q) lie Llcivellin, L. R. 37 C. D. 317; 57 L. J. C. 316. (>•) Vane v. Barnard, 2 Vern. 738 ; L. Hardwicke, L. C. Aston V. Aston, 1 Ves. sen. 264 ; Garth v. Cotton, 1 W. & T. L. C. 674, 3rd cd. CHAP. II. POSSESSORY RIGHTS Ol' TENANTS, 20 for life witliout iiii2)o;K]imcnt of waste shall not ponfor, or be deemed to have conferred ii])!)]! the tciiaiil for life any legal right to eonnnit waste of the description known as eqnitahle waste, unless an intention to confer such right shall (expressly appear hy tlie instrument creating such estate." The general liahilit}- of a tenant for waste may also be Covenants modified, and may be wholly superseded by the express n^pntTasTo covenants and conditions of the lease respecting the mode use of laud. of iising 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 Implied implied in law, for the convenience of remedy, a contract tenant! 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 (//). No such con- tract is implied where the tenant holds under an express contract providing for the same matter {v). Tenant at will has the possession of the land, and all Tenant at the uses and j)rofits 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 ■svithout any entry." An action of waste would not (s) Joiics V. inn, 7 Taunt. 392. («) Towlei/ v. JT'rtMrr, .") T. R. {() A'iiih/side v. Thornton, 2 W. 373 ; J)ietric/isen v. Giube/ei, 14 M. Bl. nil ;" Jones v. IlUl, 7 Taunt. & W. 850. 392 ; Marker v. Kenrick, 13 C. B. (r) Standen v. Chrismaa, 10 Q. B. 188 ; 22 L. J. C. P. 129. Ml ; Jones v. IIUl, 7 Taunt. 392. will. 26 rSES AND PROFITS OF LAND. Tenant of copyhold. Traste hy copyholder. lie against tenant at will, either at common law or under the statutes which gave the action of waste against tenant for life and tenant for years («•) . 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 tuuber or minerals absolutely and immediately {x). — 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 (;:) ; 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, unless (v;) Ante, p. 19 ; Lit. s. 71 ; Co. Lit. .57 a ; Countess of Shrews- hurifs Case, Cro. Eliz. 777 ; 5 Co. l?jh; Gibson v. Wells, 1 B. & P. N. R. 290 ; Harnett v. Maitland, 16 M. & W. 2.57. {x) Hey don v. Smith, 13 Co. 67 ; Dench v. Baiuplon, 4 Ves. 700 ; Eardlci/ v. Granville, -15 L. J. C. 669 ; L. E. 3 C. D. 826 ; Att.-Gen. V. Tomlinc, L. E. 5 C. D. 7oO ; 46 L. J. C. 654. (y) Scriven on Cop. 442, 4th ed. ; Uoe V. J'turllngton, 5 B. & Ad. 507. (r) Eldon, L. C, Richards v. Noble, 3 Mer. ■ 673, overruling Loughborough, L. C, Bench v. Bamplon, 4 Ves. 706 ; Farrott v. ralmer, 3 M. & K. 639. («) Ante, p. 20. -CHAP. II. rOSSESSOllY RIGHTS OF TKNANTS. 27 expressly licensed to be uuimpcacliablo {a). Under tlie oM Judicature system of distributed jurisdiction between Com-ts of law and equity, tlie trustee having the legal title was con- sidered 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 Com't 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 (/>). Under the new system of the Judicature Acts, the legal and equitable titles are equally recognized in all tlio di^•i- sions of the High Com-t of Justice as the circumstances may require ; and the beneficial title jirevails according to the principles of equity (c). Special or active trusts to receive and apply the profits Active trusts. 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 cany out the trusts and pm-poses declared respecting it, and to secui-e its due protection and management ; and in such cases the cestui que trust or equitable o^vner, in general, acquires no right to the possession or use of the land in specie. But the Coui't exercises a jmisdiction to admit the equitable owner into the possession under circumstances which render it safe and convenient to execute the trust in that manner, upon his giving secmity for the permanent maintenance of the property ; as in eases 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., FhUips v. (r) The Judicature Act, 1S73, Bri/dgcs, 3 Vos. 127 ; Fry, L. J., ss. 24, 25. Ec Ridge, L. E. 31 C. D. 507 ; 55 (/sv. Blagrave, 629. 4 D. M. & G. 456. ( ^y ) CHAPTER III. TREES, 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. Construction of grants and exceptions of trees. Distinctii n of timber ami other trees. Riglit of tenant to cut timber — timber estate— trees not timber - under- wood, &:c. — 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 collu.sion with rever- sioner— property in trees not timber. Trees severed by wind or accident. Timber cut by order or sanction of Court— apjdication of proceeds^ exercise of jurisdiction— statutory powers to soU timber- Settled Land Act. Land iu genoral, as subject of proioertj, presumptively Property; includes all things growing upon the sui^faee, 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 presumjjtively belong to the owner of the laud ; and acts of ownership upon the trees are presimii:)tive evidence of ownership of the land. A tree growing upon the boundary of two closes, partly in each, presumptively belongs to the two owners as tenants in conmion ; but tlio jiresumptiou would bo 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 {a). (a) U'dtoiixai V. Soprr, 1 L. J»i,)i.hiim Jiinial Board, L. R. 4 Eaym. 737 ; lloldvr v. Coutes, Moo. Ex. i). 10 ; 4S L. J. Ex. lOi). & Mai. 112; per cur. Crovhiir.t \, 30 USES AND PROFITS OF LANJ). Graut of trees as separate property. Licence to take trees. Contract of sale of trees. A grant, or an exception from a graut, of the trees growing in certain land, creates a property in the trees, separate fi^om the property in the soil ; hut with the right of having them grow and subsist uj)on it (h) . An estate of inheritance in a tree may thus he 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 {(I). The separate pro- perty in trees gro^^'ing and to gro'w upon certain land, admittedl}^ the property of another, luay 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 growdng 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 propert}^ 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 d 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 ^jrimd facie a contract for the sale of an interest in land within the 4 th section of the Statute of Frauds (A). 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 (b) liford^s Case, 11 Co. 4G b. (c) 11 Co. 49 «, LifurcVs Cme. (d) Barring toil's Case, 8 Co. 136 i; per cur. Stanley v. White, 14 East, 338 ; Gordon v. Woodford, 27 Beav. 603 ; 29 L. J. C. 222. (e) Stanley v. White, 14 East, 332. (/) 11 Co. 52 ff, Liford's Case; per cur. Durham and Sutherland Jty. Co. V. Walker, 2 Q. B. 905. (g) Harrington'' s Case, 8 Co. 136i; Bailey v. Stevens, 12 C. B. N. S. 91 ; 31 L. J. C. P. 226. (h) Teal v. Auty, 2 B. & B. 99 ; Scorell V. Boxall, I Y. & J. 39G. CIIAl*. III. TKKES, ^VO()|)S AND TIMIJEIi. ' j I before severance, it is held to Le a sale of goods Avithin the 17th section of the statute (/). A lease of land for life or for years, excepting the trees Lease with growing ujion tlio land, leaves the trees in the possession trecfs^.' of the lessor, -svith the right of ]ia\-Ing tliom grow in the soil ; the trees then are no part of the demised premises, and the fruit or produce of the trees presumptively goes witli the trees (/t). Consequently, the Avrongful cutting of the excepted trees by the lessee is technically an act of trespass, being committed upon property A\'hicli 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 tresi:)ass, and the distinction is to be observed in the remedy (/). Consequently also, a covenant by the lessee not to cut trees excepted fi-om 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 tlie land ; nor wdll it run with the rever- sion ; but the benefit of it passes to the executor of the covenantee (/;/). — 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 the 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 (0 Smith X. Suriiiau, 9 B. & C. (A) Zi ford's Case, 11 Co. 60 a; 561 ; Marshall v. Greou L. R. 1 BuUen v. Denning, 5 B. & C. 842. C. P. D. 35; 45 L. J. C. P. 153; (/) Ante, p. 18 ; Goodright v. but see Laicry v. TurisieU, 57 L. J. Virian, 8 East, 190. C. 570. (ni) Raymond v. Fitch, 2 C. M. k E. 588. 32 USES AND PROFITS OF LAND. Construction of grants and exceptions. of the trees for the lessor to retain any interest in them {)i). A grant of " woods " or of " nnderwoods " is sufficient to pass the hand itself ; those terms are taken prima facie to mean not only the trees growing, but the land also npon 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 soil, that intention being shown by 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 excejit the soil ((7). An excej)tion 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 (s). Timber trcop. Trees are distinguished in law as timber trees and trees which do not bear timber, that is, wood fit for building. (h) Jlcrlahenden^ s Cane, 4 Co. C2 «; L%J'ord''H CaKC, 11 Co. 50 «. (o) Co. Lit. 4 h ; Liford''s Case, 1 1 Co. 49 b ; Ire's Case, 5 Co. \\ a; Whilster V. I'aslmr, Cro. Jac. 487. (/>) ShojJicrds'Touchfct. byPre.s- ton, 100. (r/) LeghY.lIeald, 1 B. &Ad. 622. (r) IVyndham v. JVaij, 4 Taunt. 316 ; Utilleti v. Demihig, o B. & C. 842. (.s) Dccv. Led,; 2 A. & E. 705. CIlAl'. III. TKKES, AVOODS AM) TlMliKlt. o3 By general custom oak ash and elm are timber trees, pro- vided they are of sufhcicnt age, and provided they are not too old to bear a reasonable quantity of usefvd wood ; beech, -wallow, 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 tliey will then pass under that de- scription (/). Fu- and larcli which are usually planted for profit by thinning until tlic whole plantation is cut; or for the protection of plantations of timber trees, are not gene- rally timber trees {ti). — 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 (r). Timber is not an ordinary profit of land, but is part Right of 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, altliough it be ripe for cutting or going to decay {ic). — 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 croj)s ; and tenant for life is entitled to cut and take the timber coniiug to maturity from time to time during his tenancy, {t) Co. Lit. -53 rt; Chandosx. Tal- G43 ; Auhreij v. Fisher, 10 East, hot, 2 P. Wras. 606 ; Gordon v. 446 ; but see Jcsscl, M. R., Uouij. H'oodfonl, 27 Beav. 6U3 ; 29 L. J. irood v. Jloin/icood, L. R. 18 Eq. C. 222; Jcssel, M. R., Jloin/uoud 309; 43 L. "j. C. 052, that the V. lloinjwood, L. R. 18 Eq. 309 ; test of trees beiug timber may be 43 L. J. C. 652. Bcccli is timber fixed at a greater age, or may bo in the county of Biuks, Auhnij v. fixed by girth or otlier considera- Fisher, 10 East, 41G; willow in tions by local custom. the county of Hants, Hob. 219. {w) I't-rrot v. I'l-rrot, 3 Atk. 95; [i() Harrison v. Harrison, 54 L. Seagram v. Knioht, L. R. 2 Ch. J. C. 617; L. R. 28 C. I). 220. 628; 36 L. J. C. 310; llonijicood See Pidffelci/v. Jiawlinf/, 2 Coll. 275. v. Jfoni/irood, L. R. 18 Eq. 306; (i) 45 Ed. III. 0. 3, declaratory 43 L. J. C. 652. If it be dead and of the common law, 2 Co. Inst. decayed, sec post, p. 35. L. D 34 USES AND PROFITS OF LAM). 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. c, 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" (//). Trees not Tenant for life may cut and take trees not being timber timber. . . . ° . trees ; but subject to impeachment of waste if the cutting is injui'ious to the inheritance. Cutting trees of any kind that are beneficial to the property, for protection, ornament or other j)ermanent jDui-pose 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 (2). 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). Wliere 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 {li). — Where trees are grown for timber which are as yet too young to be timber 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 insufficient growth to be {x) Honyivood v. Honytcood, L. [h) IIarrixrj?i''s Tritsis, L. R. 28 E. 18 Eq. 309 ; 43 L. J. C. G.52 ; C. D. 220 ; 54 L. J. C 617 ; Sate- Wigram, V.-C, Ferrand v. Wil- man \. Uotchkin, 31 Beav. 486 ; 32 so)i, 4 Hare, 374. L. J. C. 6. ('/) Bar/ot V. Bagot, 32 Beav. 517 ; (c) UonyicoodY. Honywood, L. R. 33 L. J. C. 116. 18 Eq. 310; 43 L. J. C. 652; [z) Co. Lit. 53 a ; J'/iillips v. Cowley v. WcUesley, L. R. 1 Eq. Smith, 14 M. & W. 589. 656, as corrected lay Jessel, M. R. (a) Ibid. in Honywood v. Ilonywood. t'HAl'. III. TRHKS, WOODS AM) TIMHKK. 35 taken in the proper course of management (d). — A tenant UuJerwood. may cut underwood in due course of liusbandry ; Lut if lie destroy the stubs from which it grows, it is waste (r) . lie may cut willow trees growing from stubs, in the ordinary way of taking the profit (,/'). So with oak coppice, wliero 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 excess or destroy the hedge it is waste (h). — A tenant Dead 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 do^vn trees that have been planted trees, or left for ornament or shelter or any permanent purpose other tlian mere profit, except so far as may be required for the improvement of the rest of the trees or for the improve- ment of tlie estate at large ; in wliicli case the Court would, in general, in allowing the cutting, require it to be done under the direction and supervision of the Com-t. If sucli timber has been cut without leave, the Com-t will direct an inquiry whether it was properly cut, and in that case only will allow the tenant for life to have the proceeds for his own benefit (/•). 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 di'ives ; or with reference to distant views from a house or grounds, for wliich reason a clump of fu's two miles from a house has been protected as being ornamental (/). On tlie other hand trees originally planted for ornament to a liouse may cease {d) Bri/dffcsy. Stcp/inis, (jMaM. (/) Co. Lit. 53 a ; Jfainrood v. 279 ; 2 Swanst. 150. Mi/iiw, Dyer, 332. {e) Co. Lit. 53 a; Batcman v. [k) Baker v. Sebright, L. R. 13 Eotchkin, 31 Beav. 48G ; 32 L. J. C. D. 179 ; 49 L. J. C. 65 ; Ltish- 0. 6. vigton v. Boldero, 6 Madd. 149 ; (/) Phillips V. Smith, 14 M. & 15 Beav. 1 ; 21 L. J. C. 49 ; Ford W. 589 ; ante, p. 34. v. Tyiite, 2 D. J. & S. 127. (.17) i%oM% ii. («) Co. Lit. 41 i; 53 i ; Ucijdon (»•) Munwoodw. Myme,'Dyer,ZZ2. V. Smith, 13 Co. 68. (.s) Co. Lit. 53 i ; Simmons v, {p) See post, J). 326. Kortoti, 7 Bing. G40. CllAl'. III. TREES, ^VOODS AM) TlMliEK. 37 it seems that wlioro the avaihibh? timhor is iuccnivcniently situated, he may sell it on the spot for tlic pm-pose of buy- ing other timber -where it is wanted, in order to save the carriage (/). A tenant at will, not being liable fur repairs, is not Tenant at will entitled to estovers of timber for that purpose (u). A copy- holderf^' 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 (r). The custo- mary right of a copyholder is appm-tenant to the tenement, iind independent of tin- title to the manor, or to the trees, wliicli may be granted or excepted from the manor without affecting the right of the copyholder («•). If the copy- liolder, 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 (.r) . As to the property in trees cut wastefull}' 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 detemiined by the severance; the trees are thereby disannexed from the land and reduced to the state of personal chattels, and the propei-ty, 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 ma}^ bring an action to recover the trees, as having become (0 Marlborough v. St. John, 5 D. 498 ; Sua,/,ic's Ciac, 8 Co. 63 ; Hn/- & Sm. 171; 21 L. J. C. 381; don v. Smith, 13 Co. 67; Ashmead Sowerhy v. Fnjcr, L. R. 8 Eq. v. Eangcr, 1 L. Rayra. 551. 417 ; 38 L. J. C. 617. («•) Swaync's Case, 8 Co. 63. ((/) Lit. s. 71 ; Co Lit. 57 a. {x) Doe v. Wihon, 11 East, 56 ; (f) Scriveu Cop. 421, 4th oil. ; Blackctt v. Lours, 2 M. &S. 494. E'lst V. Unrdinq, Cro. Eliz. 292. 38 USES A>;i) I'KOFITS OF LAND. his propei-tj from tlie 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 (//) . Tenant for life in remainder has no claim at laAv to the timber wastefully cut by the tenant in possession ; nor thougli 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 ail injunction to restrain the cutting of trees to the detriment of his expectant interest in the futirre posses- sion (a) . If the tenant in possession be unimpeachable for waste, the trees cut during his tenancy, wliether by himself or by a stranger, vest in the tenant himself the Timber cut in moment they are cut down (^). — "There is in equity an reve'iSnen'*^ exception where the owner of the &st 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 vnll not allow him to get the benefit of his own wrong." The Court, in exercise of equitable jmisdiction 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 {>/) Boivlc's Case, 11 Co. 81 /y ; Ifurrison, Johiin. 517; 29 L. J. C. Garth V. Cotton, 1 Ves. 524 ; 1 W. 70. & T. L. C. 674 ; WhitfieUv. Bewi/, («) Ferrot v. Terrot, 3 Atk. 94. 2 r. Wms. 240 ; 3 P. Wms. 2G6 ; (i) Ante, p. 23 ; Fi/ttc v. Dor, 1 Fcigof V. JJaffot, 32 Beav. 509 ; 33 T. R. 55 ; Jic Barrxmjton, L. R. L. J. C. 110 ; Chelmsford, L. C, 33 C. D. 527 ; 56 L. J. C. 177. Seagram v. Kn'ujht, L. R. 2 Ch. (c) Jesscl, M. R., Uonytvood v. 632; 36 L. J. C. 310. Jlouijuood, L. R. 18 Eq. 311 ; 43 (z) Ante, p. 23 ; T'ujot v. Bullock, L. J. C. 652 ; jMshington v. Bol- 1 Ves. jun. 479 ; per cur. Gent v. dero, 15 Beav. I ; 21 L. J. C. 49. illW. 111. TKi;i:y, WOODS AM) Tl.MlJKK. .'39 the timber (d) . So where the tenancy for life in possession Timber trees, and the ultimate reversion were vested in one person, sub- ject to intervening interests, lie 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 fi-oni- their natui-e or because t[mber°' they are not old enough or because they are too old, the property is in the tenant for life. If he cuts them down wrongfully and commits waste, the property is still in liim though he has committed a WTong and would bo liable to an action in tlie nature of waste "(/). — "Where a lessor entered upon the demised premises and cut down oak pollards which were Tinfit for timber ; it was held that the property in the trees cut vested in the tenant {g) . And where a hedge was cut by a stranger, it was held that the proj^erty in the cuttings belonged to the tenant and not to the landlord (//) . By the general rule of the cfMumou law timber severed Trees severed by wind or other accident, also timber severed by a ^y.'^'^i^^or trespasser, become the property of the person entitled to the first vested estate of inheritance, in fee or in tail ; imless the tenant in possession be unimpeachable of waste, in which case the timber so severed vests in him, as beinjr entitled to cut it himself for his own use dm-ins; liis tenancy (/). Trees, other than timber trees, severed by (d) Garth v. Cotton, 1 Ves. 524 ; property in thc^c trees he cuts 1 White & T. L. C. 623. dowu. This is uot the case at {(•) WUIiani-s V. Duke of Bolton, common hxw, and I am not aware 1 Cox, 72 ; 3 P. Wms. 268, n ; Birch that the exact point has been Wolfe y. Birch, L. R. 9 Eq. 683 ; decided in equity." As to waste 39 L. J. C. 345. in cutting yoiuig timber trees, see (/) JToui/wuod V. Jloni/wood, L. ante, p. 34. R. 18 Eq.' 311 ; 43 L. J. C. 652, {ff) Channon v. Patch, 5 B. & C. Jessel, M. R. who added, "I am 897. not sure that would follow in {h) Bcrrimaii v. Peacock, 9 Bing. equity, my impres.sion is that 384. equity woidd say that ho should (i) Pi/tic v. Dor, 1 T. R. 55 ; Ec not be allowed to take the benefit Barriiigtoii, L. R. 33 C. D. 527 ; of his own -wrong, and that he 56 L. J. C. 177. .shoidd not be alloAvcd to take the 40 TTSES AND PROFITS OF LAN'l"). wind or other accident, become tlie property of the tenant in possession, whether impeachable of waste or not (/). "Windfalls of But the Com't of Chancery has jmisdiction to order the im er. proceeds of windfalls to be invested to form a fund for the 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 pm-chase of stock, and the interest of the fund would bo 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 mndfalls 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 particidar tree (ii). Tim"ber cut by Where land is settled, and the tenant for life is impeach- tion of Court" ^^^^ ^°^" ^^'^^^6' there is no legal right to cut timber dm^ing his tenancy, though it be ripe for cutting or going to decay. Under such circumstances the Court of Chancery exercises jm-isdiction 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 Avould be justified in doing in tliis respect without a previous order whatever (j) 11 Co. 81 b, Botvys Case, v. Boldero, 15 Beav. 1; 21 L. J. cited by the Court in TooJccr v. C. 52. Anneslctj, 5 Sim. 210 ; Bateman v. (m) Jlarrlsoa v. Harrison, L. R. lloichkin, 31 Beav. 48G ; 32 L. J. 28 C. D. 220 ; 54 L. J. C. 26 ; C. 6 ; JLonyicood v. Ilonywood, L. ante, p. 33. R. 18 Eq. 300 ; 43 L. J. C. G52. (w) Re Ainslie, L. R. 30 C. D. (/.■) Bagot V. Bagot, 32 Beav. 509 ; 485 ; 55 L. J. C. 615. 33L. J.C.I IG. (o) Bewick v. Whitfield, 3 P. {I) Romilly, M. R., Lushington Wms. 2G6. CHAT. III. TKF.KS, WOODS AM) TlMIJEIl. 41 the Com-t upon ap})lication would order tliem to do. A tenant for lii'o lias no such jiower of cutting timber for the benefit of the property, and if he does so witliout 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 separately without an express authority for that piu"pose ; and a sale in excess of tlie power in tliis respect would be void both at law and in equity (q) . — Tlie Coiu-t requires Application that timber cut by its order and sanction shall be converted timber^^ ° into money and invested to form a fund representing the growing timber, and following as nearly as possible the uses and limitations of the settlement. The income of this fimd is pa3'able to the tenant for life and to tlie other successive owners of the estate, until the vesting of tlie first absolute estate of inheritance in possession, the owner of whicli, as he could liiniself have cut tlie timber, then becomes entitled to have the whole fund (/•). 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 (.s). A tenant for life " without impeacliment 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 dming his possession (f). The fund representing the timber cut so far retains the character of the real property from which it {p) Chelmsford, L. C, Seagram jraldoy. 7ra!do,V2Sim. 112; Mild- V. Kniyht, L. R. 2 Ch. 630; 36 viayy. Mildmaij, 4 Bro. C. C. 76. L. J. C. 310 ; Benton v. Benton, 7 (.v) 'Tooher v. Aiines/ei/, 5 Sim. Bcav. 388. 235 ; Tfah/o v. ll'aldo, 7" Sim. 261 ; [q] Chohneky v. Faxton, 3 Bing. 12 Sim. 107 ; JSagot v. Bagot, 32 207 ; S. C. nom., Cockerell v. Choi- Beav. 509 ; 33 L. J. C. 116. meley, 10 B. & C. .564 ; 1 CI. & {t) JFaldo v. ll'aldo, 12 Sim. 107 ; F. 61 ; JiacLleyv. Howell, 29 Beav. Phillips r. Barlow, 14 Sim. 263; 546; 30 L. J. C. 521. Gent v. Harrison, Johns, 517; 29 (>•) Jcssel, 'M. K., Honi/wood v. L. J. C. 68 ; Lowndes v. Xorton, Honywood, L. R. IS Cli.311; 43 L. K. 6 C. D. 139; 46 L. J. C. L. J. C. 652; Shadwcll, V.-C, 613. 42 USES AND rUOFlTS OF LAND. Ornamental timber. Exercise of jurisdiction. is derived, that upon the death of the owner of the inherit- ance before j^osscssion, his claim to the fund passes to his heir as real estate {k). 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 unimpeachable for waste, are cut down ; the proceeds are invested so as to follow the uses of the settlement " {iv) . A tenant imimpeachable for waste is entitled absolutely to the ornamental trees properly cut down dm-ing his possession by the order or with the sanction of the Com-t, or to the fund representing the proceeds (^'). " The principle upon which the Coui't 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, unless there are special circumstances rendering the cutting necessary or advantageous for the preservation or improvement of the jjropeiiy ; 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 Avill only authorize the cutting of such timber as is decaying or which it is l)eneficial to cut by reason that it injures the growth of other trees {z). (u) Field V. Brown, 27 Beav. 90. \v) Re Aimlie, L. R. 30 C. D. 485; 65 L. J. C. G15. (tv) Jessol, M. II., L. K. 18 Eq. 311; 43 L. J. C. 652; Lushinr/lon V. Bolder 0, 15 Beav. 1 ; 21 L. J. C. 49. {x) Baker v. Sehright, L. R. 13 C. D. 179; 49 L. J. C. 65. (y) Iltisney v. Ilusscy, 5 Madd. 44 ; Toolcer v. Anncsky, 5 Sim. 240 ; Seagram v. Ivniyht, L. R. 2 Ch. 628; 36 L. J. C. 310. {z) Hussey v. Hussey, supra; ToUemache v. Tollemache, 1 Hare, 456 ; Ferrand v. Wihon, 4 Hare, 382. Act. CHAP. 111. TUKi;s, ^\UUDS AM) TlMliER, 4-i By the Settled Estates Act, 1877, 40 & 41 Viet. c. 18, Statutory Bs. 16, 3i (re-onaeting 19 & 20 Vict. c. 120, s. 11), "It CbTr/" ""^ shall be lawful for thi; C'ourt froni time to time to authorize a sale of the Avliole 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 piu'chase 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 pa^yinent 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 new farm buildings, upon the prin- ciple that the erection of buildings is substantially the same thing as tlie purchase of an estate [a). — By the Settled Land Act, 1882, 45 & 46 Vict. c. 38, s. 35, Settled Land " Where a tenant for life is impeachable for M-aste 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-foui-th 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 i^rice of the estate wliicli must be treated as capital money payable to the trustees under the 21st section of the Act(/;). (a) Ec Newmmi's Estates, L. R. (*) Be LleuelUn, L. R. 37 C. D. 9 Ch. G81 ; 43 L. J. C. 702. 317 ; 57 L. J. C. 316 ; sec Doran v. Wiltshire, 3 Swanst. 699. 44 USES AND PROFITS OF LAND. CHAPTER IV. GEOWING CEOPS. Emblemeuts or growing crops — pass to executor — may bo taken in execution— 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 Fi'auds — Bills of Sale Act. Emblements. The term " emblements " is used to designate tlie grow- ing crops cultivated by the labour and at the cost of the tenant in possession, wliich 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 corn 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 immatm^e ; nor does it include the growing fruit of trees, as growing crops of apples and pears (b). The term as used in law conveys only the present annual crop, and not tlie future crops of cultivated products wliicli bear annual crops for several successive years, as of clover and artificial grasses (c). {a) Co. Lit. 5b b; Wms. Ex. 597, v. Jioberts, 5 B. & C. 835 ; Eodiccll 4th ed. ; per cur. Evans v. lioberts, v. I'MUips, 9 M. & W. 505. 5 B. & C. 832. {c) Graves v. Weld, -5 B. & Ad, (i) Co. Lit. 55 h; per rur. Hvnns 119. CUAl'. IV. (i ROWING CHOI'S. 45 Growing crops are treated in law as personal chattels for the following purposes : — They are transmissible at death Tass 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 eniLle- monts 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 {(/). So, in the case of a tenant for a certain term of years, if he shall so long live, whose tenancy is determined hy his death within the term, the emblements pass to his executor (r). — Growing crops Execution, may be taken in execution as personal chattels under a writ oi fieri facias. " The sheriff may &G\\fructi(>i iiuhostri- aks, as corn 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 j^roceed without the labour of man, are not emblements ; they go to the heir and cannot be seized under afi./a." {(j). Thus, "growing grass does not come within the description of chattels and cannot be seized as such under 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 manm-ance " (/^ • " Grow- 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 under a wi'it of _//. fa. by the sheriff" (/). 13y the statute 56 Geo. III. e. 50, growing crops are protected from being seized in execution under a {d) Co. Lit. 55 h ; Wms. Ex. {g) ScoveU v. lioxall, 1 Y. & J. 599,692, 4th ed.; Hardwicke, L. C. 398. Laicton v Lawton, 3 Atk. 16. (//) Per cur. Eians v. Huberts, 5 (e) Co. Lit. 55 b. B. k C. 832. (/) Baylcy, J. Erans v. liobcrts, (t) Per cur. Rodwclly. Phillips, 9 6 B, & C. 83o. M. & W. 505. 46 USES AND PROFITS OF LAND. fi.f((., where the tenant is restrained by covenant in his Distress. 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- blements. Ul^on the ex23iration of a tenancy for years by mere lapse of time, the tenant retains no riglit to the then grow- ing crops, unless by stipulation in his lease, or by a custom of the country respecting them ; because the termination of his teiTa being certain he could provide against it. So, if a tenant determines his tenancy by his own act, as by himself gi\dng notice to quit, or sm'rendering the lease, or committing waste or breach of covenant or condition which induces a forfeiture, he is not entitled to take the emblements (/.•). As where a woman holding an estate diu'ing ^\ddowhood, 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 liis lease by his bankruptcy, under a proviso for re-entry in that event {ni) ; and the incumbent of a living who determines his estate in the globe by voluntary resignation, is not entitled to take the emblements («). — But if the tenancy is determined by an uncertain event over which the tenant has no control ; as in the case of a tenant 7;««' autre vie whose tenancy is de- termined by deatli of the cestui que vie (o) ; 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- (./) See post, p. 448. (k) Co. Lit. 55 h ; Wiqglcsworth\. Dallison, Dougl. 201 ; 1 Smith, L. C. ; see Mansel v. Norton, L. R. 22 C. D. 769. (/) Gland's Case, 5 Co. 116 ff. [m) Davis v. Eyton, 7 Bing. 154. («) Bhliver V. Buhver, 2 B. & Aid. 470. (o) Graves v. Weld, 5 B. & Ad. 105. CHAP. \v. (;U()\\iN(i CKors. 47 inination of liis tenancy (y>). — It is a "general rule of law applicable to cases of this description, that where a tenant of land has an uncertain interest whicli is deter- mined either hy the act of God or tlie act of another, there lie shall liavo the emblements ; but that is not so where the tenancy is determined l)y liis own act " (q). — Thus the lessee of a woman who holds during widowhood, and whose estate is determined by her mamage, is entitled to take emblements ; and the lessee of the glebe of an incumbent who resigns ; for in these cases the tenancy is detennmed 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 entitled for liis life or for any uncertain interest, it is provided by 14 & 15 Yict. c. 25, s. 1, that instead of claims to emble- ments the tenant shall continue to hold until the expiration of the then ciuTent year of his tenanc}' ; and the succeeding landlord shall be entitled 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 (.s) . 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 imcer- tainty of the notice (i^). Under the Agricultural Holdings Act, 1875, 38 & 39 Yict. c. 92, s. 51, a year's notice is required for tenancies from year to year of agricultural holdings wdthin 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 entitled to emblements upon the determi- nation of the tenancy by the will of the lessor, but not if Ip) Co. Lit. 55 rr, *. (s) Haines v. Welch, L. R. 4 iq) Buhcer v. Btdwer, 2 B. & C. P. 91 ; 38 L. J. C. P. 118. Aid. 471. (0 Kiiigshury v. Collins, 4 Bing. (;•) Fercin: Olandv. Biirdwick, Cro. 202. Eliz. 4 60 ; Bul»rr v. Biihcer, sup. 48 USES AMD TKOFITS OF LAJsD. Tenant at sufferance. Wrongrful possession. he determines it by his own will (?^). "The law is that if tlie estate of a tenant at will he 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 ho has sown ; and that ho or his represen- tatives shall have free liberty to come upon the land to cut and carry away the corn." 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 (t'). — 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 ; ho is liable 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 secmity (?r). 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 (a-). Now by the Conveyancing Act, 1881, 44 & 45 Yict. 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. Whore the estate of the tenant is defeasible by a right paramount, he is not entitled to emblements as against the (m) Lit. s. 68 ; Co. Lit. 55 i ; 5 Co. 116 rt. {v) Eaton \-.Southhy,y^\\\e%, 131. \w) Mansfield, C. J. Keech v. Hall, Dougl. 22 ; Doe v. Maisey, 8 B. & C. 707 ; ante, vol. i. p. 290. (x) fyanciers v. Davis, L. R. 15 Q. B. D. 218; 54 L. J. Q. B. 576. CHAP. IV. fiUOWI\(; CROl'S. 49 superior title (//). A tenant in wrongful possession, against 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 (c) . Growing crops of all kinds, as being annexed to the GH-owing soil, presumptively pass by a conveyance of the land, and witirthc''lanJ. by a mortgage of the land; unless expressly excej)ted. Upon the bankruptcy of a mortgagor in possession, they belong 'prima facie to the mortgagee, as against the receiver in the banluiiptcy ; but if severed at the time of the bank- ruptcy, they pass to the receiver («). — They pass also by a DovUe. devise of the land, unless expressly excepted, or separately bequeathed (/>). A bequest of " farming stock," or of " the stock upon a farm," or of " live and dead stock-," or in otlier like tenns, passes the growing crops to the legatee (c). The growing crops may be sold and assigned separately Sale of crofs from the land, and crops to be grown on land in future ^^P-'^^'^^'^^y- years may bo the subject of separate sale and assign- ment ((/). And the right to emblements or growing crops apart from the land, AA-hether arising from sale or from tenant right, implies the accessory right of entering upon the land to take and carry away the crops in clue com-se of husbandr}-, and also a reasonable allowance of time for that purpose {o) . — A contract for the sale of emblements Statute of or grooving crops separately from the land is A\-ithiu the 17th section of the Statute of Frauds, which apj)lies to the sale of goods, and not a contract concerning an interest in ((/) Co. Lit. 55 h. Went V. J/bair, S East, 339 ; Evans (;) Hodgson v. Gascoign, 5 B. & v. H'iUiamsou, L. R. 17 C. D. 696; Aid. 88. oO L. J. C. 197, disstntiujj: from (ff) Jiaguall v. ViUar, L. R. 12 Vaisci/ v. lleyiwhls, 5 Ihiss. 12. C. D. 812; 48 L. J. C. 695; Kxp. {d) Fetch v. Tuti/i, 15 M. & W. National MercfDitile Ban/,; Ij. B,. 16 110; Gra>i'.ltain v. ILinlei/, Hob. C. D. 104; 50L. J. C. 231. 132. {!>) Hargravo'snote(l) toCo. Lit. {e) Lit. ss. 68, 69 ; Co. Lit. o6 a ; 55 b\ Shep. Touch, by Trestou, Doe v. McKaeg, 10 U. & C. 721; p. 468. Cornish v. Sliibbs, L. R. 5 C. P. (r) Coxv. Godsahe, 6 East, 004, n. ; 334 ; 39 L. J. C. P. 202. L. E 50 USES AXD PROFITS OF LAND. land witliin the 4tli section (/). Tlio sale of pasture or of a permanent crop, as of grass, to be cut or fed by tlie buyer, is a contract concerning an interest in land within the 4th section {g). 33ilLs of sale. By the BiUs of Sale Act, 1878, 41 & 42 Yict. 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 effect to the personal chattels comprised in the schedule ; but s. 6 (1) excej)ts " any growing crops sej^arately 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 (//-). The original Bills of Sale Act, 1854 (repealed by the above Act, 1878), applying to " goods and other articles capable of complete delivery," was construed not to apply to growing crops (/). If subsequently to the granting of a bill of sale including growing crops, they are severed by the grantor, they become personal chattels ; and tliG bill of sale must be registered and satisfy all rec[uirements of the Bills of Sale Acts in order to secm-e the crops to the grantee in the event of the grantor becoming bankrupt while they still remain in his possession {k) . (/) Evans v. Moherts, 5 B. & C. (A) Roberts v. Roberts, L. R. 13 829; Jones v. Flint, 10 A. & E. Q. B. D. 704; 53 L. J. Q. B. 313. 753 ; Scovcll v. Boxall, 1 Y. & J. [i) Branlom v. Griffits, L. R. 2 396; Rodivell v. RhiWi^s, 9 M. & C. P. D. 212; 45 L. J. C. P. 588; W. 501; Leake on Contracts, i;';r^. Prtywc, L. R. 11 C. D. 539. p. 258. (/«-■) Exp. National MercantileBanlc, iff) C'rossleijv. midsivorth, 6 T.ast, L. R. 16 C. D. 104; 50 L. J. C. 602; Carrinr/ton v. Roots, 2 M. &; 231. W. 248. ( '^1 ) CHAPTER V. MINES AND MINEEALS. Property in minerals — separate property in minerals — power to sell minerals separately. Licence to get minerals — distinction of licence and property — con- struction of grant or licence — exclusive licence — remedies of licensee. Relative rights of owners of surface and minerals — right of support for siu^ace. Lease of minerals — right of lessee to the minerals. Eights of tenants for life or years to take minerals — open mines. Mines opened bj-- 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 — suxierfluous land. Construction of temis, minerals, mines, and quarries. Prerogative of gold and silver — grants of royal mines — treasure trove — prerogative of saltpetre — public rights of mining. Property in land, as defined and bounded by tlie Property in superficial area, presumptively extends to everything contained below the siu'Iace, including- whatever passes under the description of minerals, except gold and silver, which are a prerogative right of the Cro^uTi (a). A convej'anco of laud in fee simple prima facie passes the minerals and everything below the sui'face (b) ; and possession of the sm'face is ])riiiid facie e^'idence of the ownership of the soil beneath, including the minerals {c). Minerals may be partitioned fi'om the surface and Separate treated as a separate subject of property. The o-s^-ner of ^^tall.' {a) Co. Lit. 4rt :posf, p. 70. (<•) Sec Tijruhitty. Vlnuic, '1 B. & {b) Egremont Burial Board v. Aid. 554 ; Scddon v. Smith, 3G Law Egrmont Iron Co., L. R. 14 C. D. Times, IGS. 158 ; 49 L. J. C. 623. E 2 52 USES AXn PROFITS OF LAND, Power to sell land c>r minerals separately. 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 siu'face 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 apply to such special form of hereditament {d). — A power or trust to sell land in general terms does not authorize a sale of the sm-f ace with exception of the minerals, or of the minerals separately from the land (f). The statute 25 & 26 Vict. c. 108, was passed to confirm dispositions of land and minerals separately, which were then liable to be 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 instrimient 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 rerpiire (^). — Under the j)Owers of the Settled Land Act, 1882, 45 & 46 Yict. c. 38, s. 17, " A sale, exchange, partition or mining lease may be made either (d) SiouffhioHV. Zeiffh, 1 Taunt. 40'2 ; Wilkinnon v. Froucl, 11 M. & W. 33 ; Mellish, L. J., Aspden v. ^eddo7i, L. R. 1 Ex. D. oOt) ; 46 L. J. Ex. 353. («) Buckley v. HowcU, 2D 33cav. 646; SOL. J. C. 524. (/) JJcaumont's Trusts, L. R. 12 Eq. 86 ; 40 L. J. C. 400 ; JFWdn' sou's Estates, L. K. 13 Eq. 634 ; 41 L. J. C. 392. {(j) Wymi' s Estates, L. E. IG Eq. 237 ; 43 L. J. C. 95. See Falmer's Will, L. R. 13 Eq. 408. rilAr. \-. MINIS AND MINKKAI.S. 53 of land ^vit]l, or witliout an exception or rosei'A'ation of all or any of the mines and minerals therein, or of any mines and minerals, and in any snch case with or without a grant or reservation of powers of working-," and other powers and ])ri\ileges connected ^ith niining purposes in rrlation to the settled land or any other land. A licence may be granted to enter land and to search Licence to get 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 under the licence ; w^hich " is no more than a mere right to a per- sonal chattel, when obtained in pm-suance of incorporeal privileges granted for the purpose of obtaining it " (//) , The licence is an incorporeal hereditament of the nature of a profit a ])rciidre in the land of another. As such, it may be claimed by prescription ; Avhereas an estate or property in the land itself cannot be so claimed, but must be claimed by a title founded on seisin or possession (/). — A Distinction of , . 1 1 p • 1 - p i licence and licence may be as benefaciai as a grant oi proj^erty as re- property, gards the getting of the minerals ; but it does not caiTv wdth it, as the latter does, any other proprietary uses and profits of the space containing the minerals. For instance, a mere licence to ■\\-ork a substratum of minerals does not give the right to use the space as a way for passage and traffic 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 (/() Per cur., Doe v. TFood, 2 B. Ca. 701 ; Didr of Hamilton v. Gra- k Aid. 739 ; Muskctt v. lUU, 5 ham, L. R. 2 Sc. Ap. 166 ; Bowser Bing. N. C. TOG. v. Marlain, 2 D. F. it J. 420 ; 30 (() ^ee pust, p. 329. WUkiitson L. J. C. 273; Je.ssel, M. K.,i;rtr(f/<'y V. Proud, 11 M. & W. 33. v. OnnivUle, L. R. 3 0. D. 832; 45 {k) Ramsay v. Blair, L. R. 1 Ap. L. J. C. GG9. 54 USES AND PllOFlTS OV LAND. Construction of grant or licence. Exclusive licence. Bemedy of licensee. bounder extracting copper witli the tin, wlio 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 hmd itself containing minerals, or only to give a licence to get minerals A^ithin 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 speaking, that is not part of the thing granted, and the licence is a new and distinct species of right which can be created 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 itseK con- taining the minerals, and not as creating a mere licence to take them {iii). — 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 (;?). "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 {I) Tcr cur., Rogers v. Brcnion, 10 Q. B. 56 ; ib., note at j). Go. [m) I'ruud v. Bates, 34 L. J. C. 406 ; Luke of Hamilton v. Graham, L. 11. 2 Sc. Ap. 166; per cur., Ballacorkish Mining Co. v. Harrison, L. R. 5 P. C. 62 ; WicM'cim v. Hawker, 7 M. & W. 63; Doc v. Lock, 2 A. & E. 743. (m) Mountjoy'' s Case, Co. Lit. 164 A, 1 And. 307; Godb. 17; 67;^;^- ham V. Williamson, 4 East, 469. [o) AVood, L. J., Carr v. Benson, L. K. 3 Ch. 532. ( IIAP. \'. MINES AND MINERALS. 55 and of ejeetinoiit, in respect of liis actual possession of tlio mine, against a wrongdoer ; though he have -not the ex- elusive possession in other respects (p). The more licence without possession taken in exercise of it would not be sufficient to maintain such action (y) . The right to minerals separate from the surface, whether Relative by grant, reservation, or licence, necessarily implies the o^fners of power to get them ; and, therefore, the right of using the surface and (, p . ■. -, p i 1 f> minerals. sm'iace so far as is reasonably necessary lor the purpose oi getting the minerals in the proper and usual manner ; according to the maxim " qiiando aJiquid conceditur, conceditur etiam id sine quo res ipsa esse iion jwtesf." For any interference with or injury to the sm'face 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 c[uestion is as to the construction of the deed (/•) . — The right of support for the Right of surface by tlie subjacent minerals is of the natm-e of an ^^PP*^^*- easement, and is treated hereafter imder the title of Easements (.v). 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 "i">^'^^- 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) JIarkrr v. Birlbcck, 3 Burr. {r) Lord Wouslcydalc, Eowbo- 1556; 1 W. Bl. 482; per cur., thum v. li'ihon, S II. L. C. 360; Rogers v. BroUon, 10 Q. B. 52. 30 L. J. Q. B. 53 ; Blackburn, J., (/). The damages for a ■\^Tongful taking of minerals are, in general, assessed at the full value of the separated minerals, mthout allo"s^ing for the costs of the wrongful acts of severance and working. Where, however, the ^\'rongful working has occurred bo)id fde, through'mistake or inadvertence, the costs of working have been allowed against the f idl value (;:) . (t) L. Cairns, Goivan v. Christie, (t/) Attcrsoll v. Stevens, 1 Taunt. L. R. 2 So. Ap. 284 ; L. Blackburn, 183. Coltncss Iron Co. v. Black, L. R. 6 {z) Martin v. Torter, 5 M. cfe W. Ap. Ca. 335 ; Bramwell, B., L'adun 351 ; Jc^on v. Vivian, L. R. 6 Ch. V. Jefcock, L. R. 7 Ex. 3!)1. 742; 40 L. J. C. 389 ; Trotter v. (w) Spoor V. Green, L. R. 9 Ex. Maclean, L. R. 13 C. D. 574; 49 99 ; 43 L. J. Ex. 57. L. J. C. 256; JAvingstone v. liaiv- [x) Smith V. Great Western It y. yard's Coal Co., Jj.'R. b Ap. Ca. 25 ; Co., L. R. 3 Ap. Ca. 165 ; 47 L. J. 'Taylor v. Mostyn, L. R. 33 C. D. C. -97 226 ; 55 L. J. C. 893. ( llVl'. \ . MINKS AND MINKUAI.S. 57 Tenant for life or for years iinpoaelialjle for waste, Ri^rhtof cannot, in general, take any minerals or materials from the or'vears'to^'^*' land 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 liko ; or for mines of metal, coal or tlio like lilddcii in lh(> cartli 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 lie may take convenient timber trees" (r/). As tenant in possession he can prevent the reversioner or any other person from taking minerals ; for his possessi, p. 36. {>f) lie Barriiir/toii, L. R. 33 C. (b) Lewis v. lirail/iwaitc, 2 B. & D. 523 ; o6 L. j. C. 175. Ad. 437. (f) lie Barringto)!, supra. (c) Ante, p. 23. 58 USES 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 oi:)en 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 imderlessee 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 princij)le 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 (/). Tenant in dower, as being tenant for life in one-thii-d of the iidierit- ance, is entitled to work open mines as part of the profits of the land ; she cannot open new mines mthout commit- ting waste, but she can prevent the opening of them by others during her tenancy (/.•) . The incumbent of a living, holding glebe land as tenant for hfe, 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 (/) . Wliere land Avas demised for a term of years by way of (/) L. Blackburn, CamphcU v. 46G ; J/i//«-v. Jfi/fcr, L. R. 13 Eq. Wardhnc, L. E. 8 Aji. Ca. 641. 263 ; 41 L. J. C. 291. {(/) Co. Lit. 54 fj; Saunders^ Case, {/c) Siouffhton v. Leir/h, 1 Taunt. 5 Co. 12 «; Asirij v. Ballard, 2 402; Dickcn v. Earner, 1 Dr. & Mod. 193. Sm. 284 ; 29 L. J. C. 778. (//) Haundem' Cane, b Co. 12 ^'. [I) lloldca v. Weekcs, 1 J. & H. (?) Viner v. Yuitghan, 2 Bcav. 278 ; 30 L. J. C. 3-5. CHAP. V. MINES AM) MINKIIAI.S. 59 mortgage, and tlio mortgagor, wlio was owner of the in^ieritance, remaining in possession opened new mines, the mortgagee, on subsequently taking possession, was held entitled to wurk the new mines opened since his mort- gage, as forming part of his security {/u). — Upon the same principle tlie tenant for life of settled land M'hich 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 pm-chase-money of part of the inheritance" (y?). 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 workino- of the mines dm'incr his possession (o). "Whether a working for mineral or material is to be What are considered an "■ open mine," which a tenant impeachable °i'^" uui^ts. of waste may work for his own use, dej)ends upon the piu'- pose for which it was opened. " If a mine or quarry has been worked for commercial profit, that must ordinaiily be decisive of the right to continue working; and, on the otlier hand, if minerals have been worked or used for some definite and restricted purpose, {c.ff. for the purpose of fuel or repah' 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 i^reparations made for opening a mine are not suflicient to entitle a (wj) £/in Beav. 635. (r) L. Blackburn, Campbell v. {x) Jingot v. Bayot, 32 Beav. 509 ; Wardlatv, L. R. 8 Ap. Ca. 647. 33 L. J. C. 116. («) lilias V. Snowdon Quarry Co., (v/) See ViiicrY.Vauyhau, 2 Beav. L. R. 4 Ap. Ca. 454 ; 48 L. J. C. 466. 811 ; Clarcring v. Claveriny, 2 P. {z) TTathorley, L. C. Lewis v. Wms. 388. TothrrqUl, L. R. 5 Ch. Ill ; llohchy {() Ellhv. Bromley Local Board, v. Llliut, L. R. 13 C. D. 277; 7 45 L. J. C. 703. Ap Ca. 43. CHAP, V. MINES AND MINERALS. Gl Wliore land is settled and the tenant for life is impeach- Mines opened able of waste, and therefore nnahle to Avork minerals, the (j^j^j. ^^ " Court exercises a jimsdietion to order or sanction the open- ing of mines and working of minerals for the benefit of the proi)crt3^ and of all parties interested ; in the same manner as with the cutting of timber. In such cases the Court will dLrect 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 tlie 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, M'hether for life or in fee, wliicli would entitle him to take the minerals for his own use {a) . The same principle applies By trustees presumptively to the proceeds of leases of minerals granted onoasulff ^" 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 infen'ed, if consistent witli tlie language of the settlement " (i). Where land Avith " 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 tliat 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) Anti',-p. 40 : Bagot v. B- ciir. lie Riilijc, lltlhird v. (c) l)aly v. Beckett, 24 Beav. Mood>j, L. R. 31 C. D. 508; 55 114. 62 USES AND TROFITS OF LAND. Mining lease under Settled Land Act. "the whole annual produce and rents" to a tenant for life, it ^vas 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) . Under the Settled Land Act, 1882, s, 6, a tenant for life of 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 pm-poses." 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, imless 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 tlie 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 cun-ent rents and profits (c) . Minerals in copyholds. By the general custom of copyhold tenure the lord of the manor retains the minerals, not by a partition of the tenement, but as freeholder of the whole tenement, including (d) Campbell v. Wardlmo, L. II . 8 Ap. Ca. 641. (e) Be Ridge, L. R. 31 C. D. 508 ; 55 L. J. C. 265. CIIAl'. V. MINES AND MINERALS. 63 the minerals, the copyhold tenant having the possession only. But the possession of the cojiyholder extends over the whole tenement and all lliat it contains above and below the sm-face, 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 sjiecial 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 sm-face of a coj^yhold tenement presumptively belong to the lord ; and the copyholder, though entitled to the possession, is not entitled to appropriate aud dispose of them to his ovra profit {(j). — If the lord wrongfully enter and take any part of the soil or minerals, the copyholder in fee who has the absolute title to the possession and to prevent theii" removal, becomes entitled to recover the full value of the soil or minerals taken, less the cost and fair profit of the work- ing (//). By special custom of a manor the copjdiold tenants may Special have the right, absolute or qualified, of getting and taking away for theu' own property the minerals imder 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 onh', as coal, sand, clay, gravel, brick-earth, or any other mineral (/) . So by special custom of a manor the lord may have the right of entering upon the possession (/) lewis y. Braithivaitc, 2 B. & (/() Alt.-Gcn. v. TomVxur, L. E. Ad. 437 ; Kcysc v. roacll, 2 E. & 5 C. D. 750 ; 4G L. J. C. C54. B. 132 ; Bowser v. Maclani, 2 D. F. (i) SaUsbim/ v. Gladstone, 9 H. L. & J. 420 ; 30 L. J. C. 273 ; Jesscl, C. 692 ; 34 L." J. C. P. 222 ; Uammr M. E.. Ilardh'ij V. Granville, L. R, v. Chanec, 4 D. J. & S. 626 ; 34 3 C. D. 832; 45 L. J. C. 672. L. J. C. 413 ; Tortlaiid v. Jfill, iff) Ihrirdeii v. JLvaiis, 5 M. & "W. L. R. 2 Eq. 765 ; 35 L. J. C. 439 ; II. See Ti(e/ccr v. Linger, L. R. Ait.-Gcn.\. Mijlchnest,'L.'R.'^ Ay^. 21 C. D. 18 ; 51 L. J. C. 713, cited Ca. 307. post, p. 68. 64 USES a>:d profits of land. Jliucrals in freeholds of manor. Minerals in waste. Inclosure of waste. of tlie tenant to work the minerals (A-). The custom may be for the lord to take one kind of mineral and the tenants another (/). The onus of proving the special custom lies upon the party claiming- the henefit of it {in) . As between the lord and the freeholders of a manor the property in the minerals depends upon the terms of the grant. Where the original grant does not appear, as is generally the case, the presumption is that the minerals form part of the freehold and pass with the freehold tene- ment. But they may have been separated and reserved to the lord ; and a partition of this kind throughout a manor may be proved by evidence of the practice of the lord to work minerals from time to time under land of freeholders within the boundaries of the manor (;?). The minerals in the uninclosed wastes of the manor, which are not in the occupation of tenants, belong to the lord in immediate possession ; and he may therefore work them in right of his ownership of the soil, subject to rights of common or other customary or acquired rights of tenants of the manor over the surface, if any such rights can be proved to exist. The lord has the right to every use and profit to be derived from the wastes, the taking of which is not inconsistent with the rights of commoners or others ; and the burden of proof lies ujion those who complain that in exercising his rights of ownershiji, he interferes with their rights (o) . — Upon inclosure of wastes under Inclosure Acts, it is a frequent practice to sever the minerals from the surface rights, by reserving them to the lord, and allotting the surface in separate freehold tenements (7;). TJnder such inclosui'cs the reservation to the lord is in general to be construed with reference to his former abso- {k) Eardley v. Granville, L. E,, 3 C. D. 826 ; 45 L. J. C. 669. (/) Curtis V. iJanicl, 10 East, 273. \m) Portland v. Hill, supra. {n) Barnes v. Maivson, 1 M. & S. 77 ; see Taylor v. Parry, 1 M. & G. 604. {o) Hall V. Pip-on, L. E. 4 C. D. 6G7 ; 46 L. J. C. 297. {p) Pretty v. SoUy, 26 Beav. C06 ; Duhe of Burclench \. Wake- field, L. R. 4 II. L. 377 ; 39 L. J. "C. 441. CHAI'. \'. MINKS AM) >[1 N KKA I,S. 65 Into tillu to llic .soil and. to ovorytliiiig constituting tlie soil ; it is therefore held to include every part of the soil that can be worked consistently vnih. the surface rights of tlie allottees ('). With respect to minerals lying under or near railways, Minerals it is provided by the Eaihvays Clauses Act, 8 Vict. c. 20, ^^f^ ''^"■ s. 77, that the railway company shall not be entitled to any mines or minerals 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 pm'chased 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 "svilling to make compensation, he shall not work or get the same (s). By s. 79 if the company be not willing to treat for the paj-nient of such compensation, the owner may work the mines in the proper and usual manner in the district. And in the latter event he vdll not be liable for any damage done to the railway from the proper working of the mines according to the Act (f). Under these sections the vendor of the land piu'chased by the railway company retains only the right to get the minerals, (-?) liosse V. Wabtmaii, 14 JI. & 133; Dixon v. Caledonian lii/., Jj.B.. "W. 859 ; Ilext v. Gill, L. R. 7 Cli. 5 Ap. Ca. 820 ; E)nn,;tou v. Metrop. 699 ; 41 L. J. C. 7G3. Bustr. lii/., L. R. 19 C. D. 559 ; 61 {)•) liosse V. Vainuuni, supra. L. J. C. 305. Brett, M. R. Pouiit- (s) Midland R,/.\. Robinson, 'L.'R. nei/ \. Clai/lon, L. R. 11 Q. B. D. 37 C. D. 38G ; 57 L. J. C. 441. 835 ; 52 L. J. Q. B. 568. See iiV (t) Great Western Ri/. v. Bennett, HoUidai/ and Wakefield, L. R. 20 L. R. 2 H. L. 27 ; 36 L. J. Q. B. Q. B. D. 699. L. F 66 USES ATs'D PROFITS OF LAND. Surface minerals. Severance of access to minerals. Superfluous land. mtliout any estate or interest in tlie land itself containing them ; tlie space occupied by the minerals belongs to the company {u). — 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 carried away in the construction 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 {cc). — Sect. 80 enables the owner of minerals, 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 incuiTcd 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 Yict. c. 18, s. 127, which requires the company to sell all such superfluous land within ten years of the com- pletion of the works, 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 {ti) Jessel, M.R. ReMetrop. Distr. Jiy. and Cosh, L. R. 13 C. D. 614. {x) Midland lly. v. llaunchwood Brick (Jo. L. R. 20 C. D. 552 ; 51 L. .J. C. 778 ; Midland Jiri. v. Mila^, 55 L. J. C. 745 ; L. R. 33 C. D. G32 ; Midland Ity. v. Robinson, L. R. 37 0. D. 386 ; 57 L. J. C. 441. See Glasgow V. Farie, Weekly Notes, 1888, p. 192. {y) Whitehouse V. Wolverhampton Rij. L. R. 5 Ex. 6 ; 39 L. J. Ex. 1 ; Midlmtd Ry. v. Miles, L.R. 30 CD. 634 ; 55 L. J. C. 251, 745 ; Mid- land Ri/. V. Miles, L. R. 33 C. D. 632; 55L. J. C. 745. CHAP. V. MINES AND MINKUALS. 67 use of the sui-faco ; it is to be sejiarated by a vertical 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 tunnel (z). — Land that has been taken compiilsorily 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 thorn, than the railway company had ; consequently, as tlio o^\^lcr of the minerals would not have been liable to the railway company for damage to the surface caused in the usual and proper A\-orking 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 Construction which can be got from underneath tlie surface of the earth << minerals" ; for the purpose of profit, unless there is something in the context or in the nature of the transaction to induce the Coiut to give it a more limited meaning" (h). 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, fi-eestone (c). Clay used for puddling or for brick making is a mineral within the Eailways Clauses Act, l'b'45, s. 77, which reserves the minerals to the vendor, upon a purchase of land b}' a railway company imder tlieii* compulsory powers (r/). China clay under a (;) lie Metrop. Disfr. Hi/, v. Cosh, (c) Eomilly, M. E. Midland Ry. L. R. 13 C. D. 607; 49 L. J. C. v. Checkloj, L. R. 4 Eq. 25; 36 277. See Cairns, L. C. Hooper v. L. J. C. 380 ; Bell v. Wihon, L. R. Bourne, L. R: 5 Ap. Ca. 1 ; 49L. J. 1 Ch. 303 ; 35 L. J. C. 337 ; Mosse Q. B. 370; Rosenberg v. Cool; 51 v. IJ'dhiman, 14 M. & W. 859; 2 L. J. Q. B. 170. Ex. 800 ; Micklethuait v. JFinter, 6 {a) Foiintney v. Claijion, L. R. 11 E.x. 044 ; 20 L. J. Ex. 313. Q. B. D. 820 ; 52 L.'j. C. 566. {d) Loosemore v. Tivertoti Ri/., (b) Mellish. L. J. JTexi v. Gill, L. R. 22 C. D. 25 ; 51 L. J. C. L. R. 7 Ch. 712 ; 41 L. J. C. 703 ; 570; Midland Ry. Co. y. Haunch wood Fry, J. A.-G. v. Tumline, L. R. 5 Brick Co., L. R. 20 C. D. 552 ; 61 c. d. 762 ; 46 l. j. c. 654. l. j. c. 778. f2 68 USES AND PROFITS OF LAND. copyliold tenement is included in the minerals to wliicli 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 is in the lord, although, in the absence of special custom, the lord cannot get it without the licence of the tenant" (e). So, beds of coprolites belong to the lord(/). Flints turned up in ploughing are minerals which prima facie belong to the landlord ; but by local agricultural custom the tenant may be en- titled to pick them off the land and sell them (g). 'mines" and The term "mine" is used in the primary meaning for quames. ^^ imdergroimd working without removing the surface, in distinction to an open working or " quany ;" the mean- ing being determined by the context and the circiun- stances in which the tenn is used{/t'). It is also used for the stratum or vein of mineral worked. By a grant of " mines " or " mines of lead," the soil itself prima 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 f>roper 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 V. Gill, L. R. 7 Qi. rick, 37 L. J. C. 128; Jones v. 712; 41 L. J. C. 763. Cwmorthcn Slate Cj., L. R. 4 Ex. (/) A.'O. V. Tomline, L. R. o D. 97; 5 ib. 93; 49 L. J. Ex. 110. C. D. 750 ; 46 L. J. C. 654. (j) Co. Lit. 6a; Shepp. Touchst. ig) Tucker v. Linger, L. R. 21 96. CD. 18 ; 51 L. J. C. 713. [k) Ramsay v. Blair, L. R. 1 [h) Turner, L. J. Belly. Wilson, Ap. Ca. 704 ; Robinson v. Milne, 53 L. R. 1 Ch. 308 ; 35 L. J. C. 340 ; L. J. C. 1074. Kindereley, V.-C. Cleveland v. Mey- CTlAr. V. MINES AND MINERALS. 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 beiuo- worked together with the ii'onstone (/). The words " mines and minerals " as commonly used Mines 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 tlio process of mining strictly so called ; they prima facie include minerals in the general meaning of the term, together \n.i\\ tlie right of working them in the manner proper to each Iciud {m). A re- servation in a Canal Act to the landowners of "all mines and minerals ic it It in or under the land" was construed to include every species of mineral Avithin the land whether got by underground or by sm-f ace working {n). 13 ut a grant of land with a reservation of " mines and minerals icithin and under the land" was construed strictly as refemng to undergromid workings only, and not permitting the quarrying of fi'eestone fi'om the siu-f ace (o) . A partition of land, excepting the " mines and minerals " and providing that they sliould 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, such as limestone, passed in severalty under the partition ; otherwise there would remain notliing unexcepted for the partition to operate upon {}>) . A buikling lease excepting the minerals, and containing express conditions for building, mipliedly carries with it the right to dig and remove so much of the surface minerals as is necessary to make the foimdations of the buildings, and the lessee may dispose of the material so removed ; but it gives no right {I) Carr v. Benson, L. R. 3 Ch. 4 Eq. 25 ; 36 L. J. C. 380. 524. (o) Bell v. IFUson, L. R. 1 Ch. {in) Mellish, L. .T. Hext v. Gill, 303 ; 3o L. J. C. 337. L. R. 7 Ch. 712; 41 L. J. C. 761. [p) Barvill v. lioper, 3 Drew. («) Midland El/, v. Chccldcy, L. R. 294 ; 24 L. J. C. 779. 70 USES AND rilOFlTS OF l.AND. to dig or move the siu-face for the iDurpose of imiiroving it as a building site, or for the purpose of brick making {q). — In the Eailways Clauses Act above refen-cd to, the " mines " excepted out of a conveyance of land to a raih\-ay company include minerals of all kinds whether forming part of the siu-face or lying undergroimd, 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 already opened or in work or not, and inclu.de all minerals and substances in, on, or imder the ^ land, obtainable by undergroimd or by surface working." In the Quarry I^encing Act, 1887, 50 & 51 Vict. c. 19, s. 4, " The term- ' quarry' includes every pit or opening made for the pur[:)Ose of getting stone, slate, lime, chalk, clay, gravel, or sand, but not any natural opening." Royal mines By the common law " aU mines of gold and silver livev^ ^"^^ 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 carry 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 King mines of gold and silver, thereof to make money" (s). The statutes 1 Will. & M. St. 1, c. 30, and 5 Will. & M. c. 6, amended by 55 Geo. III. c. 134, enacted that no mine of copper, (q) liol/inson v. Milne, 53 L. J. C. (.v) Case of Mines, Queen v. Earl 1072. Northumberland, Plowden, 336 ; 2 Ir) See ««/<>, p. 66 {x). Co. Inst. 577; Rogers v. Brenton, 10 Q. B. 48. CIlAl". ^. MINKS AM) MINKKAI.S. 71 tiu, ii'ou, or load shall be adjudged a royal mine, although gold or silver may be extracted out of the same in any quantities ; provided that the King 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 licence to any person to do so ; but when they are once opened, the Crown can restrain the owner from working tlieni, and can either work them itself, or grant a licence for others to work them {t). "A mine royal may Grantaof by the grant of the King be severed fi'om the CroAvn, and ^°^^^ nimes. 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, unless there be precise words to express them. But a grant by the Crown of all mines in certain land "will pass royal mines, if there be no other mines of the Cro"s\Ti in the land to wliich the grant can apply, otherwise the grant would be void of effect («). " Treasure trove is when any gold or silver, in coin. Treasure plate or bidlion, 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." " Wliether it be of ancient time liidden in the groimd, 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 treasiu'e and belongs not to the King (x). A chattel, not being treasui-e, found in the soil, whereof no person can prove any ])i'0])eiiy, prima 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 mth the right of excavating and removing tlie soil for the foimdations of (t) Harchvicko, L. C. Zi/dcial v. L. E. 2 Ap. Ca. 163; 4G L. J. 7Ftf«/o«, 2 Atk. 20. .P. C. 18. («) Case of Miiiex, Tloyvdcn, 33G, (.») 3 Co. Inst. 132; 1 Blackst. 337 ; WooUeij v. j1.-G. of Victoria, Com. 195. / 2 rSES AND PROFITS OF LAND. tlie buildings, was held not to x'>ass the property in such a chattel to the lessee, who found it in the course of excava- tion ; there being no intention in the lease to pass it with the soil (y). Chattels, not being treasure, found on the surface or elsewhere than in the soil, whereof no property can be proved, belong 2)rima facie to the finder in right of his possession (z) ; except that "WTeck or chattels cast upon land by the sea, whereof no owner can be found, belong to the Cro"mi by prerogative, or in some cases to the lord of a manor as grantee, express or prescriptive, of the Crown (a). Prerogative of 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 {b). Public rights In some districts there are public rights of mining custom^" ^ founded upon custom ; as the custom of tin bounding j)revailing 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 regulated by statutes (c). (y) i:iwes V. Jiriffff Gas Co., L. E. («) 2 Co. Inst. 16G ; post, p. 172. 33 C. D. 5G2 ; 55 L. J. C. 734. {/>) Caseof rrerogatkeof tSaltpetrc, (z) Aniwri/ V. Delamirie, Strange, 12 Co. 13. 505; 1 Smith's L. C. ; Merry v. (c) See post, j). 563. Green, 7 M. & W. 623. ( T6 ) CHAPTER VI. GAME AND WILD ANIMALS. Property in game and wild animals — trespass in pursuit of game. Game laws — penalties on trespasser — on occupier — game defined — noxious animals — tame animals. Right to game as separate property — contracts relating to taking game — Ground Game Act — licence to sport. Construction of grants and leases as to the game — inclosure awards. Rating 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 captiu-ino- the game and other wild animals found "^"i^ ^^^ , ° . -^ , . wild ammals. upon it ; but there is no property m such animals until reduced into possession. " ~\Vhen it is said hy Avritors in the common law, that there is a qualified or special right of property in game, that is, in animals, /^>•a; natura; wliich are fit for the food of man, the word ' property ' can mean no more than tlie exclusive right to catch and appropriate such animals, which is called by the law a reduction of them into possession. This right is said in law to exist rntione soli or raf/onc privileyii. Property vat tone soli is the common law right which every owner of land has to take all such animals y^rrc nnturce as may fi*om time to time be f oimd on his land ; and as soon as this right is exercised the animal so caught becomes the absolute propei-ty of the owner of the soil. Property ratione privi/cf/ii is the right which by a peculiar fi-anchise anciently granted by the Crown, by virtue of prerogative, one man may have of taking animals ^f/w naturce on the laud of another; and iu 74 USES AM) rilOFlTS OF LAND. like manner the game when taken by virtue of tlie privi- lege becomes tlie absolute proj)erty of the owner of tbe francliise " {(i). Trespass in If a person find game upon liis own land and pursue and game. 'tfike it upon the land of another, it becomes his property, by reason of his original right of captui^e ; 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 piu'suit of the game (b). 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 him on the land of another person, it becomes the property of the person on whose land it Avas found, ratione soli {d). Simi- larly if a trespasser started game in a franchise of forest or warren and pm-sued 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 (e) . Where a person hunting with hounds in the usual manner over the lands of others found a liare on the land (a) Westbury, L. C. Blades v. Raym. 2o0 ; adopted in 2 Blackst. Hifff/s, 34 L. J. C. P. 288; 11 419. But as to the second of the H. L. C. 621. above propositions "it would ap- [h) Man wood, Forest Law, pp. pear to be more in accordance with 387, 392, citing Year Book, 12 principle to hold, that if the tres- H. 8, 10 ; Kvnyon v. JLart, 6 B. & passer deprived the owner of the S. 249 ; 34 L. J. M. 87. land where the game was started (c) Blades V. Hifjys, supra ; Lons- of his right to claim the property, dale V. E'ujy, 1 H. & N. 923 ; 2G by unlawfully killing it on the L. J. Ex. 196. land of another to which he had {d) "If A. start a hare in the driven it, he converted it into a ground of B., and hunt and kill it subject of property for that owner there, the property continues all and not for liimself ; the first pro- the while in B. ; but if A. start a position with respect to game started hare in the ground of B., and liunt and killed on the land of the same it into the ground of C, and kill it (jwner is free from all difficulty." there, the property is in A. the L. Chelmsford, Blades v. Higgs, hunter: but A. is hablo to an supra. action of tres2)ass for hunting in {e) Holt, C. J. Sutton v. Moody, the grounds as well of B. as of C." 1 L. Raym. 2.50 ; L. Westbury, Holt, C. J. Sutton V. Moodij, 1 L. L. 0. Blades v. Iliggs, sujjra. ( IIAl". \l. CiAMI'; AM) Wll.l) AN1.MAI>. i -J of 0110 person, and killed it upon the land of anotlicr, who claimed the dead hare, it was held to be tlie property of the hunter ; who may be taken to have had the licence of the owner of the land wlierc he found the hare, according to the usual custom of liunting ; ho would therefore have the rights of the owner in claiming the hare {/). For the sport of hunting, as usually piu'sued, can be justified only upon tlie ground of the consent, either expressly given or tacitly assumed, of all the occupiers of the land hunted over (g). By the common la^' there is no property in game imtil Game laws, it is taken and reduced into possession ; and therefore the wrongfid taking of game by a trespasser cannot be dealt with as larceny or stealing of goods (h). The only remedy for the landoAvner at common law is by a civil action for the trespass. But statutes have been passed fi'om time to time for the further protection of land from trespasses in piu'suit of game, and for protection to the right of taking it. These are commonly known as the Game Laws, and the i^rincipal 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 pursiut 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 pounds, as to the justice shall seem meet, together mth the costs of the conviction ; pro- vided always that any person charged ■with any such trespass shall be at liberty to prove, bj^ way of defence, any matter which would have been a defence to an action at law for such trespass ; save and excej^t that the leave (/) Churchward v. Studdy, 14 (//) 3 Co. Inst. 109; 7 Co. IS a, East, 249. Case of Stains ; (Jufcn v. Toioilci/, {g) Paul V. Summerhai/es, L. E. L. R. 1 C. C. E. 315 ; 40 L. J. M. 4 Q. B, D. 9 ; 48 L. J. M. 33. 144 ; Qu,;n v. Head, L. E. 3 Q. B. D. 131 ; 47 L. J. M. 60. 76 USES AND TROFITS OF LAND. and licence of the occupier of the land so trespassed upon shall not he a sufficient defence in any case wliere the land- lord, lessor or other person shall have the right of killing game upon such land hy wtue of any reservation or otlier- %A'ise ; hut such landlord, lessor or other person shall for the purpose of prosecuting such offence he deemed to he 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 G-eo. IV. c. 69, s. I. — These enactments aj:)ply to live game only, and not to a trespass by a person entering land to take game Penalty on killed there (0.— By 1 & 2 Will. IV. c. 32, s. 12, " Where the 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 sum 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. c. 32, s. 30, which makes it a penal offence to trespass in the daytime in search of or pm^suit of game, " woodcocks, snipes, quails, landrails, and coneys " are included in addi- (t) iLcnr/on v. IFart, 6 B. & S. 140; post, p. 78. 19 ; 34 L. J. M. 87. [1]) 9 Geo. IV. c. 69 Ck) Barker v. Davis, 34 L. J. M. "Will. IV. c. 32, s. 2. rHAP. VI. TiAMK AM) ^^1I,1) ANIMALS. 77 tion to the abuvc. Tlie sect. 12 of the same statute whieli imposes a penalty upon the occupier of land killin<,^ game without authority, does not include " rabbits; " he may kill them and employ persons to do so {/n). In the larger definition of the Poaching Prevention Act, 25 & 2G Yict, c. 114, s. 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 "Groimd Game Act, 1880," the words " ground game " are defined to mean " hares and rabbits " {ii). The word " game " is sometimes used in the general meaning of any wild animals which are fit for the food of man (o) . — It has been supposed, as to a class of Noxious wild animals, otlier than game, described as noxious, that ^^^"^'^^^• there is a general right to kill them wherever found for the public good, and to piu'sue 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 riglit, but nuist be carried on subject to the ordinary laws of properly; 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, young 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 de%asee of the land (r). Such is the condition, for the most part, of deer in a park in modern times ; they pass to the executor, and {m) Spicer v. Barnard, 28 L. J. 334. M. 176 ; Fadwkk v. King, 29 L. J. {q) Taul v. Summcrhaye), 4 Q. B. M. 42. D. 11; 48 L. J. M. 33; ante, {») Post, p. 80. p. 75. (o) Ante, p. 73. ('■) Co. Lit. S « ; 2 Blackst. Com. \p) Gundrij V. Feliham, 1 T. R. 428. 78 USES AND PROFITS l'*' LAND. tliey may be distrained for rent as personal cliattels (s) . And under such circumstances it is no waste of the inherit- ance not to maintain a herd of deer {t). Right to The right to take game may be severed from the owner- rate property. sMp of the land and held as separate propeity. The right thus severed is of the nature of a pro/if a prendre in the land of another ; it is an incorporeal hereditament lying in grant, which can be created and conveyed at common law only by deed under seal {t() . 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 (a-) . — 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 ecpiitable title ; and by the operation of the Judicature Acts the equitable title becomes, for most pur- poses, equivalent to the legal title {z). The law requiring a deed under seal is a lex loci rei sitce and not a Jex fori: it therefore does not apply in English Com-ts to the proof of a Scotch agreement for game, for which a deed under seal («) Jjavies V. roivdl, WUles, 4G ; 743 ; TnnnellY. Mill, 3 C. B. 625. Morgan v. J.bcrgavennij, 8 C. B. 768. (y) lliomas v. FredricJcs, 10 Q. B. U) Ford V. Tytite, 31 L. J. C. 775 ; Adams v. Clutterbnck, L. R. 177. 10 Q. B. D. 403; 52 L. J. Q. B. [u) Bird V. Sigginson, 6 A. & E. 607. 824 ; Wickham v. llaivkcr, 7 M. & . (;) Walsh v. Lonsdale, L. R. 21 W. 63 ; Barker v. Davis, 34 L. J. C. D. 9 ; 52 L. J. C. 2 ; Allhusen M. 140. deepest, p. 330. v. Brooking, L. R. 26 C. D. 565; {x) Moore v. Plymouth, 7 Taunt. 53 L. J. C. 522. See Swain v. 626; Wickham t. Hawker, 7 M. & Aijrcs, L. R. 21 Q. B. D. 293 ; 57 W. 63 ; Loe v. Lock, 2 A. & E. L. J. Q. B. 430. Act. CHAP. VI. fiA^IK AND ^VI1,|) ANIMALS. ,\) IS not required Ly flie law of Si-otlaud (''/). Tlie right of taking game as a profit a prendre is an interest iu land within the 4th section of the Statute of Frauds, and there- fore a contract concerning it must be proved by writing signed by the party cliarged therewith ; and this is a rule of procediu'e or lex fori (b). — Wliere the game is reserved or granted as a separate interest from the occupation, the ovmer is prima facie responsible for overstocking with game and for damage done by the excess of game beyond the natiu'al supply (c). He is not justified in impoiiing game bred on other ground, and it seems the occupier might kill tlie excess as a nuisance (d). He may main- tain an action for disturbance of the game (e). " The Groimd Game Act, 1880," 4-'3 & 44 Vict. c. 47, Ground Game has restricted the power of severing the game from the occupation. Sect. 1 enacts, " Every 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, conciUTently ^vith 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 iu "writing ; being resident members of his household, his ordi- nary servants, and one person employed for reward. — The right of the occupier is made inalienable by sect. 3 enacting, that " Every agreement, condition or arrangement which piu'ports to divest or alienate the right of the occupier as declared, given, and reserved to him by this Act, or w[dch gives to such occupier any advantage in consideration of his forbearing to exercise such right, or imposes upon him (rt) Adams v. Cluttcrbuck, supra. ((l)Birkbecl{\. Paget, Zl'^Q^xAdZ. [b) Webber v. Lee, L. R. 9 Q. B. (t>) See Ibbotsou v. Peat, 3 H. & D. 315 ; 51 L. J. Q. B. 174 ; Lenkc C. 644 ; 34 L. J. Ex. 118 ; Pattisnn on Contracts, 2ud cil. 295. v. Gilford, L. II. 18 Eq. 259 ; 43 L. (c) Farrcr v. Nehon, L. R. 15 J. C. 524 ; Gearns v. Baker, L. R. Q. B. D. 258 ; 54 L. J. Q. B. 385. 10 Ch. 355 ; 44 L. J. C. 334. 80 T'SES AND PROFITS OF I-AMX any disadvaiitag'o in consequence of his exercising such 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 bona fide made for valuable consideration in some person other than the occupier " at the date of the passing of tlie Act. A reversionary right under an agreement for a future lease is ■within the exception (c) . Sect. 8 enacts that, "for the purposes of this Act, the words 'ground game' mean hares and rabbits." Licence to A licence to hunt and kill game without taking away sport. ^^ game killed, is a licence of sporting or j^leasiu-e 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 take 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 liave a propert}' in the game which he kills, it is other'wise. And therefore if the licence is to hunt, kill, and carry away, he may hunt with servants or by servants. If there be a licence for him and his servants to hunt, by these words ' for him and his servants ' shall be understood a licence of profit ; for these words imply that the grantee hath a proj)erty in 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 " (//). (e) Allhusen v. Brooking, L. R. (/() Fer cur. Wicl-ham v. Hawker, 26 C. D. 559 ; 53 L. J. C. 520. 7 M. & W. 78 ; citing Manwood's {a) Webber v. Lee, L. R. 9 Q. B. Forest Law, c. 18, s. 3. D. 315; 51 L. J. Q. B. 174. ( Il.Vr. VI. Ci.V.MK AM) WILD AMMAl.S. 81 The general rule (jf eonstruetlon of grants and leases of Construction land, as to the right to take the game, is that the game I'eaf^ alVo" presumptively follows the possession of the land in the ♦•^^e game, absence of expressed intention to the contrary (/). 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 all the game bred on tlio 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, under 1 & 2 Will. IV. e. 32, s. 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 (A-) . A grant of free liberty of " hawking and hunting " was construed not to extend to shooting game with a gim ; the word " hunting," as it was said, in its fair accepta- tion, not extending to shooting feathered game (/) . — Upon Inclosurc of the inclosure of wastes of a manor, over which the lord has the right to the game as incident to liis ownerstiip of the soil, the commissioners under the General Inelosm'o Acts, in allotting the waste in several ownership, have power to sever the right to tlio game and reserve it to tlio 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 (in). AVhere an inclosm-e was made witli (() Moorc V. riipnonth, 7 Taunt. ex leqe, without special reservation. 611 ; see 1 & 2 Will. IV, c. 32, Cophmd v. Maxwell, L. R. 2 Sc. Ap, ss. 7, 8. By the Scotch law the 103. presumption is that a lease confers (./) Ante, p. 76 ; CoUman v. only such rijjlits as aiv necessary TSathiirsl, L. K. 6 Q. B. 306; 40 for the purpose for which the land L. J. M. 131 ; Lush, J. dissciiCnnte. is let. An a tion from forest law (z). — A forest, tliough a royal fran- Chase, chise created by prerogative of the Crown, might ho granted, as regards the beneficial incidents, to a subject. But tlie royal ja-erogative of holding courts and appoint- ing judicial olUccrs could not bo hold by a subject, who could only have recourse to Hk* ordinary process of the common law. The franchise of forest thus stript of its special com'ts and jurisdiction in the hands of a subject was designated by the name of a c/iasc {a). A chase, like a forest, was open and uninclosed ; if inclosed, it became a /*«>•/<•. 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 (b) . Free icarren is a franchise similar to that of forest or Free warren, chase, but extending only to beasts and fowls of wan-en ; which include hares and rabbits as beasts of warren, and pheasant and jiartridge as fowls of warren. " The franchise of free warren gives a property in wild animals, and that property may be claimed in tli»> hind 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 waiTen (r) . 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 w-arren as regards jirofit, a "warren of coneys" was fi-equently granted, as a distinct species of right {d). The term " warren" may serve in a grant by way of special description to jiass the land itself, if so intended and expressed [c). — The grant of a manor Grant of by the Crown was sometimes aceomiianied with a g-rant ™^"«^r ^^'^'^ •^ i D warren. of the franchise of warren within the manor ; but free warren is not an ordinary incident of a manor. For the {:) Manwootl, 3rd cd. p. 13G ; (c) Dcrniix/iiir v. Lodge, 7 B. & Plowd. 332 b. C. 36: Manwood, c. l.'s. 5; c. 4, {a) Mauwood, 3rd cd. pp. o'2, s. 3 ; Co. Lit. 233 a. 77 ; Ciise of Forcnt.i, 12 Co. 22. {) Manwood. 3rd cd. p. 52 : 2 Jl'hiii, L. R. 6 H. L. 238. Blackst. Cora. 38, 416 ; antr, p. 77. (r) Ante, p. 6. 86 USES AND PROFITS OF LAKD. lord of a manor as siicli Las no riglit to tke game within tlie manor beyond Lis demesne land, unless Le can sLow some special francliise (/). A grant by tLe Crown of a manor witL free warren witLin the -manor jjrinid facie gives tLe riglit of warren over tLe lands of tlie grantee only, that is, over Lis demesne lands, strictly so called ; for tLe Crown cannot grant any siicL rigLt over tLe lands of a subject witLont Lis consent. " A grant of free warren is in general confined to tLe lands of tLe grantee ; tlie king cannot grant it over tLe land of a tLird person ; and tLougL Le miglit grant it over Lis, tlie king's, own lands, unless tLe words were sucli as to sLow unequivocally tLat sucL was tLe intention, tLey would not Lave tLat effect "{(/). A grant by tLe Crown of a manor witL free warren is a grant of tLe francLise as a rigLt in gross, and does not annex it as an appurtenance to tlie manor ; consequently wLere tLe grantee afterwards conveyed tLe manor, " witL all rigLts, profits, royalties, francLises, &c. belonging or appertaining to tLe manor" ; it was Leld tLat tlie francLise of warren did not pass by tLe conveyance (/'). But a warren may be appurtenant to a manor by prescription, so as to pass witL tLe manor ; and a man may Lave warren in tLe land of anotlier as ajDpurtenant to Lis manor, and if tLe manor is granted ci(?n pertinentiis, tLe warren will pass {i) . (/) Dacre v. TM, 2 W. Blackst. (A) BowMon v. Ilarchj, Cro. Eliz. 1151; Tichering v. Noyea, 4 B. & 547; 3forris v. Jj'unes, 1 A. & E. C. 639 ; Cockbtim, C. J. Soivcrhi/ 654. V. Umith, L. E. 9 C. P. 532; 43 (i) Taunton, J. J/oms v. Dmes, L. J. C. P. 290. 1 A. & E. G66 ; per cur. ranncll v 0) A.-G. V. Farsom, 2 C. & J. Milk, 3 C. B. 638. 302, ( 87 ) CHAPTER VII. HOUSES AND BUILDINGS. Property in laud— includes houses and building-s— house includes land on -which it is built— iq^purtenants — Lands Clauses Act. Partition of house into separate tenements— relative rig-hts of part owners. Liability of tenant for waste and repair of houses and buildings — per- missive waste — charge of repair — incumbent of benefice — tenant " without impeachment of waste." Waste in houses and biulding's- new buildings — reasonable use — superior force — accidental fii'c — suspension of rent. Covenant of lessee to repair — 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. Eepairs and improvements of settled estates — jurisdiction of Court —Settled Land Act. Land, as a general designation of the subject of pro- Land includes ■peiiv, includes all houses and buildino-s annexed to tlie v'^-V^*^'* '^^^ ■*■.''.. o buildings. soil ; and it is so construed ]jn'i)i(i facie in deeds, wills and other legal documents. " For houses consist of two things, viz., land or ground as the foundation, and structiu'o there- upon ; so as passing the land or ground, the structiu'e or building tliereujion passeth therewith " (c/). But some buildings may be so constructed and placed upon indepen- dent supjiorts as to bo considered as separate moveable chattels (i).—13y the statute 13 & 14 Vict. e. 21, "Au Act for shortening the language used in Acts of Parliament," it is enacted, sect. 4, " that in all Acts the word 'land' sliall imludo messuages, tenements (rt) Co. Lit. -in: see Goodtitlc d. Chet~kr v. Alko; 1 Burr. 144. [h) Fost, p. 112. 88 USES AND PROFITS OF LAND. and liercditaments, houses and buildings, of any teniu-e, unless where there are words to exclude liouses and buildings, or to restrict the meaning to tenements of some particular tenm^e." But in some Acts the words "houses and buildings" are used in distinction to "land"; as in the Act for Lighting and Watching of Parishes, 3 & 4 ■\Yill. ly. e. 90, s. 33, by which "houses and buildings" are rated three times higher than "land" (c). — Trusts to invest in "land" may, in general, be executed by the pur- chase of houses ; or by building houses upon land settled upon the same trusts, for this is substantially the same thing as pm'chasing houses as regards augmentation of the projierty. But repairs and improvements of existing houses upon settled land do not come within the principle, unless expressly authorized, because they would unduly benefit the tenant for life (c/). The same principle is applied in the re-investment 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 (fO- House in- Tlic teiTu " liouse " or " messuage " or any like designa- Avhioh itls °° ^^^^^ ^^ ^ structure or building, in deeds, wills, and other ^"ilt. 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 acre or more may pass by the name of a house." The additional land passes as being in fact part of the entire subject Appurte- designated as house or messuage (./"). — It is usual to add in a conveyance of a house or laud the phrase " with the appmtenants " ; but tliis phrase does not serve to enlarge the subject of conveyance. It will not convey other land, besides that which passes with the house or land designated, ((■) T/ie Queen v. Korth, L. R. G .3 C. D. 743. Q. B. 707; 40 L. J. M. C. 193. {e) lie Leigh's Exiate, L. R. 6 (d) Drake \. Trefusis, L. R. 10 Ch. 887; 40 L. J. C. 442; Re Ch. 304; lie Leslie^ Seltkmoit, iNVw-wu/w'* 7i'.s/f/^r.y, L. R. 9 Ch. 681 ; L. R. 2 C. D. 185 ; 45 L. J. C. 43 L. J. C. 702. 668 ; LonaldHon v. BonaMson, \jl. R. (/) Ante, p. 6. Act, CHAl". VII. IlorsES AM) lini.DlNfiS. 89 merely by reason of sucli otlier laml liaviiif^ been in fact usually annexed to or occupied with the subject of convey- ance. The plu-ase has a strict technical meaning ^\'ith reference to the easements which may be appurtenant to a house or laud, as ways and lights ; and land cannot 1)o claimed as an easement to other land (r/). "Neitlier in a deed nor in a will does tlie word ' ajipurtenants' include land, if the principal subject of gift is land or a messuage. But if from the cu-cumstauces 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 Clauses Vict. c. 18, which gives to public companies compidsory powers of pm-chasing land, provides by s. 92, " that no party shall be rerpiired 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 bo 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 and all the aj^piu'- tcnants above described which would pass under a convey- ance of the house as apj^lied to the case in question ; no part only of which can the owner be required to sell, if mUing to sell the whole (/). 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 jDurpose of manufacturing " ; and the purchasing company may be compelled to take the whole (J). The oAvnerin all (p) ^l)U(',-p. 7; see ;;o.s7, p. 190. L. J. C. 731; Slu/f v. Midland (A) Kay, J. Cuthhot v. Itobiiisw), III/., L. R. 1 Ch. '275; Hantes v. 61 L. J. C. 238 ; Jihckbion v. SoiU/isca Mi/. Co., L. li. 27 CD. Edgley, I P. Wins. G03 ; per cur. 536; Ktrford v. Stacombc Jii/., 67 Thomas v. Ouch, L. R. 20 Q. B. D. L. J. C. 270. 232 ; 67 L. J. Q. B. 202. (J) Mit/iards v. Swatwca Inipror. (() Grosvciior v. Hampstcad June- Co., L. K. 9 C. D. 425. Hon Jii/., 1 Do G. .«c J. I-IG; 26 90 USES AND TROFITS OF LAND. sueli cases cannot be compelled to sell to the company more tlian is necessary for their authorized undertaking (A*) . — 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 (/). Partition 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" (ni). The lease of a house described as in the occupation of A. was held not to include the cellar which at the time of tlie lease was in the separate occupation of B. ; and evidence was held admis- sible to show the state and occupation of the premises (//). 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 toj) (k) Gard v. Commiss. of London, L. K. 28 C. D. 48G ; 54 L. J. C. 698. (1) Wi-ifjhl V. WaUfiacy Board, L. K. 18 Q. B. D. 78:j ; 5G L. J. Q. B. 259. (w.) Co. Lit. 48 b. (w) Doe V. Burt, 1 T. R. 701 ; Press V. Parhcr, 2 Bing. 456 ; Martyn V. Lawrence, 2 D. J. & S. 2G1. fiiAP. vir. iiorsEs and lun, dings. 91 and the floor .it tlie bottom" (o). »So a dofinod portion of a room may Le let separately from the remaining jiortion, with exclusive possession ; as where a portion of a room in a factory was let off, with the use of steam-poiA'er at a fixed rent, it was held to bo a good demise and that the lessor might distrain goods upon the premises for rent (j)). >So the boxes and stalls of a theatre may bo separate sub- jects of sale and lease {q). The partition of a house or building into separate tene- Relative incuts creates relative rights and obligations of the several owners'oF^'^ " OAvners, analogous to such as exist between the several house, owners of sm-face 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 undt'r- junning or support of tlio room granted, any more than upon a similar reservation of mines the grantor can take the whole of the minerals and let down the sm-face. But in tlie 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, iu the absence of express agreement, it seems there is no inij^lied obligation to repau* the roof or upper story (/). Wlu>re a house is partitioned in separate tenements, the owner or occupier of one tenement is boimd to take all reasonable care in using his tenement to prevent any (y) James, L. J. Corbctl v. mi/, {() 1 Wms. Saund. 322, n. (1), L. R. 9 Ell. 671 ; 39 L. J. C. 547. Pomfrd v. Itkrofl. By tlie law of {p) Selbij V. Greaves, L. R. 3 Scotland " where a house is divided C. P. 594 ; 37 L. J. C. P. 2ol. iuto ditt'erent floors or stories, each {(j) Fl'iijlit V. Gtosnop, 2 Biiig'. floor bL'lniij^injr to a ditfiTeut owner, N. C. 125 ; Leader v. Moodij, L. R. which frequently happens in the 20 Eq. 145; 44 L. J. C. 711 ; Seott city of Edinbury-h. the proprietor V. Hotcard, L. R. G Ap. Ca. 295. of the ground story is obliged to .g (»•) Ante, p. 55. uphold it for the sujiport of the '«) Colebcek v. Girdlers' Co., L. R. iq>per, and the owner of the upper B. D. 234; 45 L. J. Q. B. nuist uphold that as a roof or cover 225; Varkc, B. Ifarris V. ]ii/dinff, to the lower." Erskine's lust., M. & AV. 71. cited in Jfump/iries v. Brogden, 12 Q. B. 756. 92 rSES AND rilOl'llS Ol' LAND. damage accruing to the otlior tenements, and lie would be liable for the neglect of such duty ;. but he would not be liable for unavoidable accidents (u). Liability of tenant for repair and •waste of houses. Permissive "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 pennissive waste («'). It is said that *' waste may be done in houses by suffering the same to be un- covered, whereby the rafters or other timbers of the house are rotten "(./•) ; but the bare suffering them to be un- covered, without rotting the timber, is not waste (//). Accordingly it has been held that a tenant from year to year is only bound to keep the house wind and water tight so far as to prevent waste and decay (;:) ; and that " he is not liable for the mere wear and tear of the pre- mises," as being permissive waste (r/) . 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 exemj)tion from repairing the wear and tear was an exemption from liability for per- missive waste, for which the tenant would otherwise be liable {h). — The doctrine of equity seems not doubtful. " Whatever be the legal lialnlity, the Court has always (u) CarsUt'irx v. Taylor, L. E. 6 Ex. 217 ; 40 L. J. Ex. 129 ; Ross v. Fedden, L. R. 7 Q. B. 661 ; 41 L. J. Q. B. 270; see Andersoii v. Oppcn- heimer, L. R. 5 Q. B. T>. 602 ; 40 L. J. Q. B. 456; Stevens v. ll'ood- ward, L. R. Q. B. D. 318; 50 L. J. Q. B. 231. {r) See ante, p. 18 ; Barke, B. JHetrichsen v. Giubelei, 14 M. ic W. 8.50. («') J'er cur. Harnett v. Maitland, 16 M. & "W. 262 ; see Heme v. lien- bow, 4 Taunt. 704 ; Woodhouse v. Walker, L. R. 5 Q. B. D. 407; 49 L. J. Q. B. 611. {x) Co. Lit. 53 a: ante, p. 18. {//) KnolVs Case, Hargrave's note to Co. Lit. 53 a. [z) Tenterclen, C. J. Atnvorth v. Johnson, 5 C. & P. 239, citing Fer- guson V. , 2 Esp. 590 ; Patteson, J. Lcurh V. Thomas, 7 C. & P. 327. (rt) Taunton, J. Torr'ianov . Young, 6 C. & P. 8. [h) Davies v. JDavies, L. R. 38 C. D. 499. See Yellou-li/ v. Gower, 11 Ex. 294 ; 24 L. J. Ex. 289. CHAP. VIT. HOUSES AND HUILDIXGS. 93 declined to interfere against mere permissive waste ; the Coui't never interposes in case of permissive waste, either to proliibit or to give satisfaction, as it does in ease of wilfid waste "(r). And "an eqnitahle tenant for life cannot be called upon to repair and cannot be made liable for neglect- ing to repair "(r/). Repairs may be charged by the limitation of the estate ; Charge of as where a house was devised upon tlie terms of the devisee ^^P^""- for life "keeping the same in good and tenantable repair," and during his tenancy tlie house was destroyed by an accidental fire, it was held " that the will created an obligation upon the tenant for life to rebuild tlir pre- mises" (c). Where a devisee for life, subject to the like charge, died leaving the [tremises out of repaii*, 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 jiremises 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 natm-e of the tenancy (^z). Diu'ing 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 (//) . 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 ((■) Cranworth. L. C. Poivi/s v. 5 Q. B. D. 401 ; 49 L. J. Q. B. BUiyrave, 4 D. JM. & G. 458 ; 24 009 ; see Batthi/ani/ v. ll'ti/furJ, L. J. C. 145, citing Cixthmaln v. L. R. 33 C. D. G30." Craven, '22 Vin. Abr. 523 ; // ow/ v. {g) Wise x. Metcalfe, 10 B. & C. Gaijiioiu Aiubl. 395; see Il'unr)/ v. 299; Huntley v. Russell, 13 Q. B. Rudall, 1 J. & H. 1 ; 29 L. J. C. 572. 543. {h) Holclcn v. Wcckes, 1 J. & H. (rf) Cotton, L. J. Re JJotchkys, 278; 30 L. J. C. 35; Sourrhy v. L. R. 32 C. D. 418 ; 55 L. J, C. Fn/er, L. R. 8 Eq. 423 ; 38 L. J. 549. C.'617. {e) Re S/iiiiylei/, 3 Mac. & G. (i) Jlinilmn/ v. Ifeuson, 3 Ex. 221. ' 558; Stirling, J. Re Monk, L. R. (/) Woodhouse v. TTulker, L. R. 35 C. D. 685. 1)4 USES AND PROFITS OF LAND. of ecclesiastical benefices are now specially provided against and remedied hy " Tlie Ecclesiastical Dilapidations Act, 1871,"a4&35 Yict. c. 43(f7). Tenant Tenant for life "witliout impeaclunent of waste," tliouffh "without ^ . ? impeachment not cliargeable at law with waste, is chargeable with eciuit- of waste." j^IjIq waste, that is, ■s\ilful and unreasonable abuse of the property. "Wliere tenant for life under a settlement " without impeachment of waste " from motives of dis- pleasure at his son who was tenant in remainder, began Tvilfidly to destroy the house, the Court granted an in- junction to restrain the waste and decreed that the house should be restored (//). "Waste in houses and buildinsjs. Property in materials. The pulling down of houses or buildings by the tenant is 2)riind facie waste ; so also any destiiietion done to a bouse or building or to any part of it, or to any fixture annexed to it, is j^vimd facie waste, for which the tenant is resjDonsible to tlie lessor or reversioner. If a house or building be ruinous at the tenant's coming, it is not waste in him to suffer it to fall down, but it is waste if he pull it down, unless for the purpose of rebuilding it («'). 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 cletennined by the severance ; as in tlie case of trees wastefully cut (/). Eut " if the house fall d(jA\n by tempest, or be bm-nt 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 {(j) Jones V. Banfjerfidd, L. R. 1 C. D. 438 ; 45 L. J. C. 161 ; Kim- hcrv. Faravicini, L. E. 15 Q. B. D. 222 ; 54 L. J. Q. B. 471 ; ReMonl;, L. R. 35 C. D. 583. {It) Vune V. Tj'irn'ird^ 2 Vera. 738; 1 Salk. IGl ; ante, p. 24. («) Co. Lit. 53 a; ante, p. 18. (/;) Doe V. Earl of Burlinrjton, 5 B. & Ad. 507. (/) 4 Co. G3 rt, Ilerlalcenclen'' s Case ; ante, p. 37. CHAP. VII. HOUSES AND lilll, DINGS. 95 materials as remains, and Avitli other tiiuLer -svluch lie may take growing on the ground" («/). A tenant may in general take materials for repaii-ing 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 (ii) . 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 tliis is to be rmderstood 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, miless proved to weaken or injm-e the build- ing (p). Pulling down old buildings and replacing them with new may be injurious to the inheritance by increasing the charge upon the estate and thereby diminishing its value, or by confusing the identity and impairing the e^-i- dence of title ; and if it be proved to be iujimous to a material extent it is waste {q) . And the making of new walls, fences, hedges or ditches, to the confusion of boun- daries, may be waste (>•) . A provision in a lease that the tenant should repair and keep in repaii- such buildings, improvements and additions as should be made by him dm-ing the term, was construed to give him an im^^b'ed licence to make such improvements and additions, wliich otherwise might legally be waste (.s), A tenant is not liable for damage or destruction of Proper and buildings resulting from reasonable use of them for the [j"^^^*'°*^^® proper pm-pose for which they were intended ; unless he is imder some special obligation or agreement to repair. " No user of a tenement which is reasonable and ju-oper, (in) Co. Lit. 53 a; l Co. G3 a, Uo ; Doc v. Jones, 4 B. .t Ad. 126. Ilcrlakcmhn'' s Case; 11 Co. 82 ff, {q) Greene \. Cole, 2 Sauiid. 259, JBowlcs' Case. note (11) ; Doe v. Bond, 5 B. & C. (/() Co. Lit. 53 l>; ante, p. 36. 855; Huntley v. Russell, 13 Q. B. (o) Co. Lit. 53 a ; Junes v. Chap- 572. pell, L. R. 20 Eq. 539 ; 44 L. J. C. {r) Co. Lit. 53 b ; Queen's Coll. 658 ; ante, p. 18. v. Jlalhtf, 14 Eas-t, 4S9. {p) Young v. Speneo; 10 B. & C. (a) Doc v. Jones, 4 B. & Ad. 126, 96 ISES AND PROFITS OF LAND. haying regard to tlio class to wliicli it belongs, is waste." Thus in the case of a huilding constructed and let for a warehouse, the lessee was held not to be responsible for the floors breaking down under a not unreasonable weight of goods, which, unknown to him, they were insufficient to bear(;'). " The tenant is not liable for latent faults and defects in the property demised, in tlie absence of some express agreement imposing such liability upon him. He is entitled to assume that it is fit to be used for the pm^- poses for which it is let and for which it is apparently fit." " A tenant, however, is prima facie bound to restore the property demised to him, and if the property is destroyed by the acts of himself or his undertenants the jiresumption 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" [u). Superior A tenant is not responsible for damage or destruction caused by superior force {cis )i)(iJor), 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 sucli Accideutul evcuts (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 w^aste " («•). 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 s})reading. By the statute 14 Greo. III. c. 78, s. 8G, re-enacting G Anne, c. 31, it w^as enacted " that no action shall be had against any r)erson 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 it) Sanrrx. Hilton, L. E. 7 C. D. («) Per cur. MnnclicHter irarehouse 815 ; 47 L. J. C. 267 ; Manchester Co. v. Carr, L. R. 5 C. P. D. 512; Wurehome Co. v. Carr, L. R. -5 49 L. J. C. P. 809. C. P. D. 507 ; 49 L. J. C. P. 809. {y) Ante, p. 22. {lo) Co. Lit. b%b. ciiAr. vir, HOUSES and uuildings. 97 hereby defeated or made void." Tliis statute is construed as refening to accidental fires only, and not to protect fires originating in negligence or intention (j") . — Rent is not Suspension of suspended by the destruction of demised buildings by fii'e 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 circimistances (//). If it is intended to suspend the payment of rent in such events the reservation 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), Tlie 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 fii'e ; the tenant continuing liable ujion his independent contract for rent, imless some agreement can be shown tliat tlio rent should cease 'with the occuj)ation (a) . In leases of houses and buildings repairs are usually Covenants to made the subject of covenants and conditions, by which [^^^^ ^ 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 fii'e or other accident, whether due to negligence or not {b) . 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 tenautable (j) Fillitcr y. Fhippard, 11 Q. B. 815 ; 47 L. J. C. 267; Manchester 347: Canterbiiri/ v. Alt. -Gen., 1 Warehouse Co. \. Carr, L. R. 5 C. Phill. 316 ; Hargrave's note (1) to P. D. 5u7 ; 49 L. J. C. P. 809. Co. Lit. 57 «. ((') I:od v. Gorton, 5 Biujr. N. C. (y) Baker V. Holtzapfel, 4 Taunt. 501 ; Faeker v. Gibbins, 1 Q. B. 45; 18 Ves. Wo; Leeds v. Cheet- 421. ham, 1 Sim. 146; Izod v. Gorton, 5 {b) Bullock v. Dommitt, G T. R. Bing. N. C. 501. G.30 ; ll'altonv. JI'aterhouse,2\Yms. {z) Saner V. Billon, L. R. 7 C. D. Sauud. 420 and notes ib. L. H 98 USES AND PROFITS OF LAND. Exceptions of fire and other accidents. Implied con- tract for tenant-like use. LiaLility of landlord for repair. repaii'" (c). — Hence it is usual for a lessee in covenanting to repair houses and buildings, to make express exception of fire and tempest, and other like accidents to which the demised premises may be subject and which are beyond his control. An exception of " damage by fire, storm, tempest, or other inevitable accident," is construed to include such other accidents only as are ojusdcm generis to those specified ; therefore it does not include an accident happening fi'om an ordinary and j^roper use of the pro- l^erty b}^ reason of an inherent defect or insufficiency for such use (d). A covenant by the lessee to repair is some- times qualified by an exception of " reasonable wear and tear;" these words are construed as including the ordinary destruction by reasonable and joroper use, but not an extra- ordinary destruction though caused by such j^roper use {c) . The damages payable under a covenant to leave in repair are measured according to the condition of rej^air 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 obhgation as to waste ; and under this implied jiromise 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- mises ; nor to compensate any loss sustained by the tenant (c) In re Slew ff lei/, 3 Mac. & G. 221 ; ante, p. 93. {d) Saner v. UiUon, L. E,. 7 C. D. Sir;; 47 L. J. C. 267; jManc/iester Warehouse Co. v. Carr, L. E.. 5 C. P. D. 513 ; 49 L. J. C. P. 809. {e) Manchester Warehouse Co. v. Carr, supra. ( /■) Morqanx. Hardy, L. R. 17 Q. B. D. 770. {[/) Ante, p. 92 ; Martin v. Gil- ham, 7 A. & E. 543 ; Torriano v. Young, 6 C. & P. 8. But see Davies V. Davies, L. R. 38 C. D. 499. CHAP. VII. HOUSES AND 15U1IJ)1NGS. 99 from defects of repair ; although he may liave notice that from want of repair the premises are dangerous (/). — Nor Imijlicd is there, in general, any implied warranty or condition in jeJuiswl' a lease, that the demised premises are in good repair or fit premises, for the pm'pose for which they are intended to be used ; as was held in the case of a building let for a Avarehouse w^hieli was insufficient to support a reasonable weight of goods ; nor is the lessor responsible for loss occasioned by such insidficiency (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 fumislied houses and apartments, as to wliich there is an imphed condition, that they are fit for residen- tial purposes ; and if tliey do not satisfy such condition the lessee may rescind the letting (iii). — As regards third par- ties, the occupying tenant is pn'»/d facie responsible for any injury or nuisance caused by the state of the premises ; but the landlord may be responsible by reason of ha\dng under- taken the duty of repair («) . — A covenant by a lessor to Covenant by keep the demised premises in repaii* during the term im- repair, liliedl}' imports the condition that the lessee must give him notice from time to time of want of repair, the knowledge of W'hich rests with the lessee. A covenant by the lessor to put the premises in repair does not requii'e notice ; nor does a covenant to repair by the lessee (o). A covenant by (i) Gott V. (7a)i(fi/, 2 E. & B. W. 5 ; TFihon v. Finch-Hatton, L. 845 ; -23 L. J. Q. B. 1 ; Colebeck v. R. 2 Ex. D. 336 ; 46 L. J. Ex. Girdkrs' Co., L. R. 1 Q. B. D. 242 ; 489. 45 L. J. Q. B. 225. Sec Ivaij v. (w) Russell v. Slimton, 3 Q. B. JIed(/es, L. R. 9 Q. B. D. 80. 449 ; Chauutkr v. Itobinsoii, 4 Ex. [k) Manchester Warehouse Co. v. 163. Carr, L. R. 5 C. P. D. 507 ; 49 (o) Miikin v. Wnthinson, L. R. 6 L. J. C. P. 809 ; ILut v. Windsor, Ex. 25 ; 40 L. J. Ex. 33 ; Man- 12 M. & W. 68 ; and Sutton v. Chester Wartlwuse Co. v. Carr, supra. Temple, 12 M. & W. 52. See London JJ- .on evidence tliat the value of the property subject to the mortgage and witli 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 {//). — By the Settled Land Act, 1882, 45 & 46 Settled Land Vict. c. 38, ss. 21, 25, capital money arising fi-om the sale '^ ' of settled land under the Act may be applied in payment for any improvements authorized by the Act, including buildings for agricultm-al, manufactming or domestic piu'- poses. Under this Act the Court will not sanction the application of the capital money in payments for voluntary («) rowi/s V. Blagravc, 4 D. M. {tc) Mcllish, L. J. BcrkeJe>i^s k Gr. 448 ; Re Hotchkijs, L. R. 32 Will, L. E. 10 Ch. 59 ; 44 L. 'j. C. D. 408; 55 L. J. C. 546; Re C. 3. Courtier, L. R. 34 C. D. 136; 56 (x) Frith v. Ciuneron, L. R. 12 L. J. C. 350. Eq. 109 ; 40 L. J. C. 778. (t!) Ante, -p. 92 ; Re Leigh's Estate, (v) Re Xeuman's Settled Estates, L. R. 6 Ch. 887 ; 40 L. J. C. 687. L. R. 9 Ch. 681 ; 43 L J. C. 702. 102 USES AKD PROFITS OF LAND. improvements made by the tenant for life without reference to the Com-t ; nor in pajonent for charges pre\'iously inciuTed for buildings and improvements, and secured by terminable instalments (~). The Court will not sanction the application of capital money within the Act to mere repairs which do not amount 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 the Act must prevail («). {z) Ee KnatchhulVs Estate, L. R. 35 C. D. 41 ; 56 L. J. C. 445. 29 C. D. 688; 54 L. J. C. 1168 ; («) Clarke v. Thornton, L. E,. 35 Ee Broadwater Estate, 54 L. J. C. C. D. 307 ; 56 L. J. C. 302. 1104; Ee Hotchkbi' s Estate, L. R. ( 103 ) CHAPTER VIII. FIXTUEES. Fixtures defined— fixtures pass with the land— to purchaser — to lessee for life or years — to mortgagee. Fixtures upon land of another. What things arc fixtures — fixtures for use of land — bmldings and con- structions upon land — fixtures for trade or business— machinery fixtures for domestic use — furniture — accessories to fixtures movable buildings and constructions. Tenant's fixtures— tenant in fee simple— tenant of limited estate trade fixtures — domestic fixtures— ornamental fixtures and furid- ture— agricultural fixtures — Agricultiu-al Holdings Act— right of removal dui-ing tenancy. Covenants 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 "fixtm-es" in the general and primary sense Fixtures de- means wliatever things are so fixed to land, or to buildings ^'^^' upon the land, as to become in fact part thereof ; so that such fixtures become presimiptively 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 phniiatur solo, solo ccd/'f. The word is also used in a secondary sense to mean such things as, being fixtures in the above primary sense, are nevertheless, by reason of their special uatm-c or circumstances, removable from the land by a tenant of a limited estate as against the landlord or reversioner, and are tlierefore specially called '' tenant's fixtures" (a). — Accordingly, fixtm-es presumptively pass (rt) Post, p. 112. 104 USES AND PROFITS OF LAND. to purchaser. Fixtures pass with tliG land by descent to tlie heir of an estate of inherit- wit tie au . ^^^^-,^^ -j.^ £gg 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 fixtm-es {h). And a de'sdse or bequest by will of a house or land priind Fixtures pass fffde passes the fixtures without special mention {c) . — Upon the same principle a conveyance of a house or land, in the absence of any reservation or exception, passes the fixtures to a purchaser without 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 pm'chase of land by a railway company under the Lands Clauses 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 fixtm^es removable as against To tenant for his landlord (,/'). — So a lease for life or for years presum- ycars. ^|^,p|^, passes all the then existing fixtures ; and the sever- ance of such fixtures by the tenant for life or for years prima 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 dming 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 tlie immediate possession of timber or minerals wrongfully severed from the inherit- ance {(/). Fixtures annexed by the tenant dm-ing his tenancy are prima facie in the same legal position as to {b) Fisher v. Dickson, 12 CI. &F. 312 ; Bain v. Brand, L. R. 1 Ap. Ca. 702. (c) Beck V. Mebow, 1 P. Wms. 94 ; Finney v. Grice, L. R. 10 C. D. 13 ; 48 L. J. C. 247, ciicH post, p. 111. id) Colcrjrave v. Liis Santos, 2 B. & C. 76. {e) Wiltshcar v. CottrcU, 1 E. & B. 674. ( /") Gibson -v . Hammersmith Jii/., 32 L. J. C. 337. (f/) Farrant v. Thompson, 5 B. & Aid. 826 ; ante, p. 37. CIlAl', Vlll. FIXTVKES. 105 ownership as tliosc annexed before the lease, and they cannot ho removed hy tlio tenant without committing waste ; hut the exception is here made of " tenant's fix- tures" or fixtiu-es in the secondary sense above men- tioned (//). 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 j'ears, without the cominission of waste. To the fii'st rule there is no exception whatever. But to the second rule, namely, the uTcmovability of things fixed to the inheritance, there is ground for tlie important exception of tenant's fix- tui'es " (/). — Upon the same principle a mortgage of land Mortgagee, or houses presumptively passes all fixtures to the mort- gagee as part of his secm-ity, without sjiecial 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 banla-uptcy (,/). An equitable mortgage has the same effect as a legal mortgage upon the fixtm-es ; the question as to what is included in the subject of mortgage being the same in both (/•). A mort- gagor in possession retains no right of removing " tenant's fixtures" nor does he acquii'e any right of removing "tenant's fixtm-es" annexed by him subsequently to the (/i) Co. Lit. 53 ff; Elwcs v. Maive, & W. 409 ; Mather v. Fraser, 2 K. 3 East, 38 ; 2 Smith's L. C. ; Jiitck- & J. 536 ; 25 L. J. C. 361. See laud V. Buttcrfuld, 2 B. & B. 54 ; llolhtnd v. ]fodj,'L.'R. o (l.B. & B. 876; 26 L. J. Q. B. 100; 137 • 39 L. J. Q. B. 37; Cross y. explained in Walmslcij v. Milne, 7 JJarnes, 46 L. J. Q. B. 479. C. B. N. S. 133. (»») Ex parte Funuell, lie Kitchin, {q) Slcicard v. Lombe, 1 B. & B. L. R. 16 C. D. 226 ; 50 L. J. 0. 506. 212. (>") SouthportBanking Co.Y. Tho7np- («) Soidhport Banking Co. v. son, L. R. 37 C. D. 64 ; 57 L. J. C. Thompson, L. R. 37 C. D. 64 ; 57 114. CHAP. Vlll. FIXTURES. 107 power is expressly given to sever the fixtures and sell them as personal chattels (.s). If a person builds or erects anything upon the land of Fixtures upon another Avith his own materials, the building or erection ^"^^i^^ becomes a fixture according to the above principle, and is presumptively the property of the o^\Tier of the land as if it had been made v>iih. 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 ease of an easement appm-tenant to a mill of keej)ing a hatch, upon the mill stream to regulate the flow of water (ii) ; an easement appm-tenant 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 buildings upon the surface of the land (tc). In all 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 (r). And the possession of fixtures separately fi-om the land or building to which they are fixed may be the subject of rating; as in the case of telegraph posts and wii-es fixed by licence of the owners of land (//). Where a person built a public bridge with his oyra materials upon the land of another person who granted leave for the pm-poso, 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 him absolutely (~) . — On the other hand, if a person (a) Jie Yatrs, L. R. 3S C. D. 1 12 ; («) Jf'aU- v. IlaH, L. R. 8 Ap. Ca. 67 L. J. C. 697. 195 ; 52 L. J. Q. B. 494. See Top- {() Jfarn/id/ls v. Ullcsicatcr Co., ham v. Gnviisnh- Brick Co., L. R. L. R. 7 Q. B. 166 ; 41 L. J. Q. B. 37 C. D. 281 ; 57 L. J. C. 583. 41 ; Chitty, J., Ehcesv. Brlggs Gas {x) Sec post, p. 199. Co., L. R. 33 CD. 567; 65 L. J. C. {i/) Idwiu^hin; Tthphone Co. v. 734. Mutwhestn; L. R. 14 Q. B. D. 267 ; (m) Wood V. Hewett, 8 Q. B. 913. 54 L. J. M. 63. (r) Lancaster v. Eve, 6 C. B. N. (;) Harrison v. Parker, 6 East, S. 717 ; 28 L. J. C. P. 235. 164. 108 rSES AND PROFITS OF LAND. builds upon liis ovni land with the materials 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 wdio has converted them to his own use (2). What things are fixtures. Fixtures for use of land. Tlie annexation to the land or building sufiicient 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 prima facie to be considered 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 wall, though without any moi^tar or cement, become fixtures ; but the same blocks of stone stacked as material in a builder's yard remain chattels. On the other hand, an article annexed to the land, however slightly, is prima 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 tlie 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 presumptively w^aste {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 Zan- caster v. Eve, 5 C. B. N. S. 721 ; tlie civil law cited bv L. Blackburn, Wake V. JIall, L,/ R. 8 Ap. Ca. 203; 52 L. J. Q. B. 491. (a) Holland v. Jlodt/son, L. R. 7 C. P. ;334; 41 L. J. C. P. 149. {//) TFalhercll v. Hoicclls, 1 Camp. 227 ; Empson v. Sodcn, 4 B. & Ad. 655. CHAP. VIU. FIXTUKES. 109 from au adjoiuing cliff (c). Manure spread on llif 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 huilt upon a brick foundation 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 fixtiu-o ; and the rails fixed upon the sleepers are considered as forming part of the whole (//). Things annexed for the pm-pose of carrjang on a trade Fixtures for or business upon the land or buildings are fixtures ; as farm buildings (/), 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 building andpriind facie pass with a conveyance or mortgage (/.). But looms in a cotton mill annexed only by letting the legs into sockets placed in the floor for that pm-pose, 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, (<■) Blcwett V. Trcgonning, 3 A. & & J. 381 ; 31 L. J. C. 481. E. 554 ; Deardcn v. JEiaiis, 5 M. & (t) Elwcs v. Maice, 3 East, 38 ; 2 W. 11. Smith, L. C. (d) Ycanrorfh v. Tierce, Aleyn, (j) Ex parte Gateau, lie Barclay, 32'; Sty. 66 ; Wms. Ex. 615, 4th 5 I). M. & G. 403 ; 25 L. J. B. 1 ; ed. Wahmki/ v. MUiic, 7 C. B. N. S. {e) Bt(ckUiiid\. BiitterfieJd, 2 B. & 1 15 ; 29 L. J. C. P. 97. B. 54. See Moss \. James, 47 L. J. (A) Mather v. Eraser, 2 K. & J. C. P. 160. 536; 25 L. J. C. 3G1 ; Loijd v. (/) Fenry v. Brouii, 2 Stark, Shorrock, L. R. 5 Eq. 72 ; 37 L. J. 403. C. 144 ; Lony bottom v. Berry, L. R. (y) Wilde V. Waters, 16 C. B. 5 Q. B. 123; 39 L. J. Q. B. 37; 637 ; 24 L. J. C. P. 193. S/ir/lirld v. Harrison, L. R. 15 Q. B. (h) Ex parte Moore's Baii/ciiiy Co., D. 358 ; 54 L. J. Q. B. 15 ; Holland Re Armytage, L. R. 14 C. D. 379 ; v. Hodgson, L. R. 7 C. P. 328; 41 49 L. J. B. (fa ; Turner v. Cameron, L. J. C. P. 140. L. R. 5 Q. B. 306 ; 39 L. J. Q. B. (/) Hutchinson v. Kay, 23 Bcav. 125. Sec Beaufort v. Bates, 3 D. F. 413 ; 26 L. J. C. 457. domestic use. 110 USES AND PROFITS OF LAND. Lut tliis decision lias been questioned (/;?). A steam crane bedded in mortar and fixed bj bolts to a bed of stone for the purpose of working- a quarry (n), also a "portable engine," fixed to a foundation of brickwork for tbe temporary purpose of sinking a new colliery sbaft, were held to have become fixtures, so as to pass to a mortgagee of the premises, as part of his security (o) . — Fixtm^es of the above kind, annexed for the pm'poses of trade or manufacture belong for the most part to the class of fixtures which are removable by tenants of particular estates as against the landlord or reversioner {p). Fixtures for Things annexed to a house for permanent domestic use are fixtures : doors, windows, wainscot, shutters and blinds, fixed tables and benches, fixed cupboards, furnaces, grates, chimney pieces, stoves, ovens, coppers, cauldrons, bells and bell hangings, and all like things are 2)rwid facie considered as part of the house and pass with it; though some of them may at the same time be removable as being "tenant's fixtures "((/) . " Griass annexed to windows is parcel of the house, and shall descend to the lieu- ; and although the lessee himself at his own cost put the glass in the mndows yet being once parcel of the house he could not take it away or waste it" (/■). A covenant by a lessee to deliver up the premises at the end of the tenn " with all windows," &c., was held to include a plate glass shop front erected by him («). Wall papers, tapes- tries, pannelling, and other like materials annexed to the walls of a house in a manner to form the sm-face of the walls, are fixtures as forming part of the wall {t). — On the (m) ndlaivellv. Eastwood, 6 Ex. 63 b, Berlakenderi' s case; 11 Co. 310 ; 20 L. J. Ex. 154 ; Longhottom 50 b, Liford's case ; The King v. \. Berry, Ilollandy. Hodgson, supra. St. Bioistan, 4 B. & C. 680 ; Lyde (m) Ex j^arte Moore' s Banking Co., v. Russell, 1 B. & Ad. 394. Be Armytage, L. R. 14 C. D. 379 ; (;•) 4 Co. 63 b, llcrlnkenden'' s case ; 49 L. J. B. 60. Maule, J. Bishop v. Elliott, 11 Ex. (o) CrossY. Barnes, 46 L. J. Q. B. 113 ; 24 L. J. Ex. 230. 479; Walmshy v. 3Iilne, 7 C. B. («) Burtv. Haslctt, 18 C. B. 893 ; N. S. 115; 29 L.J. C. P. 97. 25 L. J. C. P. 295. - [p) Post, p. 114. (0 IfEyncourtv. Gregory, L. R. (>/) Co. Lit. 47 b, 53 a; 4 Co. 3 Eq. 382 ; 36 L. J. C. 107. CHAP. VIII. FIXTUKES. Ill other liand articles of liouseliolil furniture or ornunient Furniture. which are annexed merely for the purpose of their proper and convenient use or display are not considered us fix- tures : — as carpets nailed to floors, curtains, hangings and the like (ti), beds nailed or fastened to the walls or floors (x), chimney and pier glasses, frames and pictures, wjiich are fixed to the wall, but not as part of the wall. Such aiiicles are considered to remain personal chattels and do not pass with the freehold (//). They pass under a bequest of " fm-nitm-e " or " fixed fm-niture ; " but these terms will not apply to pass fixtures, strictly so called, though removable as " tenant's fixtures " (z). Some things, though not annexed to land or building. Accessories to are considered fixtures, as being accessories or appurte- nances to other fixtures, according to the maxim Acccssio cedit principali. Thus the keys of doors form part of the house to which the door belongs (r/). All the essential parts of a fixed machine, though detached, form part of the machine as a fixture, as the mill stones of a mill {h) ; the anvil of a steam hammer [c) ; the driving belts of ma- chinery [d ) ; duplicate parts of a machine, though not actually annexed for use ; but parts ja-epared for a machine, if not yet fitted, remain chattels (r) . — To this principle may be referred the following fixtures : walls built of loose stones annexed only by their owm weight (./") ; pavements made -^ith stones or other materials laid upon the (m) BcUtiwcU V. Fastwoocl, 6 Ex. v. Fapff, 4 M. & R. 277 ; Martyr v. 313 ; 20 L. J. Ex. IGO ; Fittney v. Bradlei/, 9 Biiig. 24. Gricr, L. R. 10 0. D. 13 ; 48 L. J. (<■) Mftrop. Ass. v. Brown, 26 C. 247. Beav. 454 ; 28 L. J. C. 581. {x) Fx parte Qiibicy, I Atk. 478. ((/) Louyboltom v. Berry, L. R. 5 (//) Becky. Reboiv, IV. \^m».M; Q. B. 123; 39 L. J. Q. B. 37 ; T> F)i)icourt V. Gregory, L. R. 3 Eq. Sheffield Buildiny Soc. v. Harrison, 382 ;' 36 L. J. C. 107. 54 L. J. Q. B. 15 ; L. R. 15 Q. B. (z) Birch v. Dairson, 2 A. & E. D. 358. 37 ; Baton v. Sheppard, 10 Simou, {e) Fx parte Zloi/d^s Banking Co., 186 ; Finney v. Oricc, supra. L. R. 4 Ch. 630 ; 38 L. J. B. 9. (a) Lifurd's Case, 11 Co. 50. {/") Holland v. Hodgson, ante, {b) Watmshy v. Milne, 7C. B. N. p. 108. S. 115; 29 L. J. C. P. 97; Blace 112 USES ATs'D PROFITS OF I,A>'I). ground {g) ; sculptm^es 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 buildings, &c. . , *= , ' . . ^ . • i ?; i i • i weight upon the ground, prima facte remain chattels, wnicli do not pass with the land : a barn, granary or other like building 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(?). A covenant by a lessee to dehver 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 uj)on a brick foundation, to be used as a chattel [m) ; and a weighing machine placed for use in a hole lined with brickwork {ii). Tenant's fix- "Tenant's fixtures" are those things which, having been tures. 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 {g) Ex parte Lloyd's Banking Co., [JS) Xaylor v. Collinge, 1 Taunt. L. R. 4 Ch. 638 ; 38 L. J. B. 9. 21. See Metropol. Ass. v. Jiroivn, 26 (/) Huntley v. Hussell, 13 Q. B. Beav. 4o4 ; 28 L. J. C. 581. 572. (/i) JfUi/ncourt v. Gregory, L. R. {>») The King v. Londunthorpe, 6 3 Eq. 382 '; 30 L. J. C. 107. T. R. 377 ; The King v. Ollcy, 1 B. [i) Crolling v. TuJJ'naU, Bull. N. & Ad. 161 ; Steward y. Lombe, 1 B. P. 34 ; Wansbrough v. Maton, 4 A. & B. 506. & E. 884 ; Wiltshear V. Cottrell, 1 {n) Ex parte Lloyd's Banking Co., E. & B. 674 ; 22 L. J. Q. B. 177. L. R. 4 Ch. 630 ; 38 L. J. B. 9. CHAP, Vlll. FIXTURES. 113 more general sense it moans any annexation or addition which lias 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 ; becanse tenant in fee simple in possession ^"^^ '^' has the absolnte ownership and power of disposal of the land and of everytliing annexed to it ; and upon his death they pass to the heir or devisee. A tenant in fee simple is presumed to annex jBxtures for the improvement of the inheritance, and the representative of his personal estate can claim such things only as are, actually or constructively, not fixtm-es at all; such as ornaments, pictm-es, furniture and tlic like, wliicli, though fixed, are so only for tlie pm-pose of being more conveniently used or seen, and not witli any intention of annexing them to the land or house (p). Accordingly it is said that, " between heir and executor, the rule obtains with the most rigour in favour of the inheritance, and against the riglit to disannex therefrom and to consider as a personal chattel anything wliicli has been affixed thereto " {q). But the tenant of a limited estate is presumed to annex Tenant of n , r> ,1 r> • • 1 • 1 limited cstato. faxtures ior the purpose oi improvmg 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 riglit of removing the fixtures which he has thus annexed. This riglit of removal is allowed in the cases of tenant in tail, tenant for life and tenant for years, by reason of tlieu- 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.CHmiev. Jrood,L.'R. Vl CI. & F. 312; Bain v. Brand, 3 E.x. 2G0; 3S L. J. Ex. 223; L. E. 1 Ap. Ca. 762. ante, p. lOo. (v) Elleuborongh, C. J. Elwes t. {p) Ante, p. Ill; "Wuis. Ex. J/(/«r, 3 East, ol. p. 61fi, 3rd ed. ; Laivton v. Sahnun, {>•) Hardwicke, L. C. Dudley v. 1 H. Bl. 250, u. : Fislur v. IHchfui), Wanlc, Ambl. 114 : Lines v. Maue, 114 USES AND PROVITS OF LAXD. Trade fix- tures. Domestic fixtures. Ornamental fixtures. in the position of a tencaiit of a limited estate in relation to tlie mortgagee for the purj^ose of removing tenant's fixtm'es diu-ing his possession ; hut all fixtures pre- sumptively vest in the mortgagee (.s). The fixtm'es which are removahle as being " tenant's fixtm'es " are ascertained specifically from the decisions of theCoiu'ts; which proceed upon the general principle in favom- of the tenant that " such things as are ordinarily affixed to the freehold for the convenience of the occupier, hut which may he removed without material injmy to the freehold, when afiixed by the tenant, may, on certain con- ditions, he removed by him"(/). — Accordingly things annexed for the pm'pose of trade are tenant's fixtures, which may be disannexed and removed during the term ; as the vats, coppers and pipes of a brewer, or of a soap- boiler, or of any other like trade (ii) ; 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 (//). In the case of a market gardener, conserva- tories, greenhouses, and hot-houses built for the purpose of the trade ; also trees, shrubs and flowers planted for the purpose of the trade, are tenant's fixtures, which he has tlie right to remove, though under other cii'cumstances tlian as trade fixtm'es such things are not removable (z). — Tilings annexed for the convenient use of the house are tenant's fixtures : as stoves, grates, coppers and the like ; pumps for drawing water ; bells and bell fittings (a) . Things annexed for ornament of a house or building are 3 East, ol ; Wms. Ex. 4th ed. 628. (.s) Ante, p. 105. (t) Cranworth, L. C. Ux parte Gowan, Me Barclay, o D. M. & G. 403 ; 25 L. J. B. 3. {u) I'ooWs Cane, 1 Salk. 368; Luwton V. Laivton, 3 Atk. 15 ; Fen- ton V. Itohart, 2 East, 88. [x) FAHoti\. liishop, 10 Ex, 49G ; 24 L. J. Ex. 229. (//) Wale V. JfaH, L. R. 8 Ap. Ca. 195 ; 52 L. J. Q. B. 494 ; Zaw- ton V. Latcton, supra ; Dudley v. Warde, Ambl. 113. [z) Per cur. Penlon v. Roharts, 2 East, 90 : see Finpsony. Soden, 4l B. & Ad. 655 ; ante, p. 108. («) Gri/mes v. Boweren, 6 Bing. 439 ; see Lyde v. Emscll, 1 B. & Ad. 394. CHAP. VIII. I'lXn UKS. 115 in general regarded as tenant's fixtm-es {//). An ornamental cliinmey-piece belongs to tliis elass and is removable, tbougli an ordinary plain ebimnoy-pieco is beld not to be removable ; and in tbis regard, a cbimney-piece is not to be considered as ornamental merely because tbe material is marble {(■) . Articles of liousebold f iirnitm-o tliat are annexed Furniture, merely for tbe convenient use of tlie tbings tbemselves and not as accessory to tbe use of tbe house remain chattels notwitbstanding tbe annexation, and are removable as cbattcls; sucb as carpets, cm-tains, mirrors and tbe like. .Tbe term "liousebold f imiitm-e " is not, in general, con- strued to include tenant's fixtures ; and where tbe bouse was left by will to one person and tbe " household fiirni- tiu'c" to another, it was held that the tenant's fixtm-es went with tbe house {d). At common law agriculture was considered not to be Agricultural a trade within tbe privilege, and the tenant in agricultm-e bad no general right to remove buildings and fixtures erected for mercl}^ agricultm-al purposes {e) ; but bis posi- tion is now largely regulated by statute. By " An Act to improve tbe Law relating to Agricidtural Tenants' Fix- tm-es," 14 & 15 Vict. c. 25, s. 3, buildings, engines, or machinery, erected by a tenant, with the consent of the landlord, for agricultm-al 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 cultm-al Holdings Act, 1883," 4C & 47 Yict. c. Gl, s. 1, HoldiugsAct. the tenant of an agricultiural holding is given the right to obtain from his lantUord compensation for buildings, fix- tm-cs and improvements of certain kinds specified in the schedule to tbe Act. And it is f ui-tber provided by s. 34, that *' where a tenant affixes to his holding any engine, machinery, fencing or other fixtm-e, or erects any building, [b) Fer cur. Bitckhmd v. Butter- (d) Finiui/ v. Gria; L. R. 10 C. Jleld, 2 B. &B. 58. D. 13; 48L. J. C. 247 ; ante, -p. III. {cj FJliott V. Bishop, 10 Ex. 522 ; (c) Elurs v. Man-e, 3 East, 38 ; 2 24 L. J. E.x. 229. Smith, L. C. i2 IIG VSES AND niOFlTS OF LAND, Eight of removal during tenancy. for wliieli he is not entitled to compensation, tlien sueli fixture or building shall be the proj^erty of and removable by the tenant before or within a reasonable time after the termination of the tenancy." But the right of removal thus given is subject to the conditions imposed by the section, as to payment of all rent owing, repair of damage by the removal, notice to the landlord, and election by him to piu'chase. The tenant's right to remove fixtm-es, in the absence of special agreement respecting it, must be exercised before giving up possession at the termination of the tenancy. By then quitting possession he abandons his right; he cannot afterwards enter to remove them ; nor can he recover them, if afterwards severed, or theu^ value ; " they become a gift in law to him in reversion " (/)• The right of re- moval is limited to possession under the tenancy, whether the tenancy is determined by lapse of time ; or by re-entry of the landlord under a condition of forfeitm^e {(/) ; 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 imder 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 forfeitm'e, 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 the expiration or determination of the tenancy" (A*). (/) Holt, C. J., Fook's Case, 1 Salk. 3G8 ; Zyde v. Russell, 1 B. & Ad. 394 ; Leader v. lloniewood, 5 C. B. N. S. 546. (y) Mimhall v. Lloyd, 2 M. & W. 450 ; Pugh v. Arto7i, L. R. 8 Eq. 626 ; 38 L. J. C. 619 ; Ex parte Gould, L. R. 13 Q. B. D. 454. (A) Moss V. James, 47 L. J. C. P. 160 ; Ex parte Broo];, L. R. 10 C. D. 100; 48 L. J. B. 22. (i) See ante, p. 105 ; and see Sanders v. Davis, ante, y>- 106. {k) Per cur. Ex parte BrooJc, L. R. CHAP. ^■11I. Fl.\TlIK?:s. 117 If a tenant smTondurs his lease after lia\-ing assigned tlio fixtures to another, the surrender is subject to the prior riglit of the assignee, who is entitled to a reasonable time for removing the fixtmvs after receiving notice of the surrender (/). By express covenant or agreement in leases, fixtm'es not Covenants otherwise romovahle may he treated by the parties as ments'as to romoval)l(\ and tenant's fixtm-es nuu' be treated as ^^moval of fixtures, irremovable, and the time for removal may be enlarged or restricted. "Where the lease stipulated that the lessee should provide and maintain the fixtm'es suitable for a certain business, and that in case of the determination of the lease by lapse of time, but in no other case, he should remove them ; the lessee was held to have renounced liis ordinary right as a tenant to remove the fixtures during the continuance of the term (iii). "Wliere the lease pro- A-ided that certain buildings and other fixtures should be the property of the lessee, it was held that they remained his absolute property notwithstanding a forfeitiu'e of the lease by his bankruptcy, and that the receiver in l)ankrupt(y^ was entitled to claim them from the lessor {u). " Where there is an express contract that the tenant shall have a right to remove fixtures, that does not mean tliat the moment the term ends or is forfeited he loses his right, but tliat he must have a reasonable time after the lease determines" (o). " Such a stipulation Avould operate as an enlargement of the term, not for all purposes but so far as to give to the tenant the riglit to remove his goods, and to do all things necessary for that purpose ; a 10 C. D. 109 ; 48 L. J. B. 25 ; J,i»ics, 47 L. J. Q. B. 160. IJ'tcton V. Woodcock, 7 M. & W. [in) Dumcrgue v. Jiitmsei/, 2 11. &: 19 ; SiDiDicr v. BromUow, 34 L. J. C. 777 ; 33 L. J. E.\. 88. Q. B. 130. («) Ex parte Gould, L. E. 13 Q. (/) London Loan Co. v. Drake, G B. D. 4o4. C. B. N. S. 798 ; '28 L. J. C. P. {o) I'mih v. Arton, L. R. 8 Eq. 297 : Saint v. VUlo/, L. R. 10 Ex. 630 ; 38 L. J. C. 619 ; Stansfehi v. 137 ; 44 L. J. Ex. 33 ; Moss v. Portsmoulli, 4 C. B. N. 8. 120. 118 USES AND rUOFlTS OF LAND. right annexed by law in tlic ease- of a tenant at will, and in tliat of an executor of a tenant for life"(;>). ^Hiere a tenant built a greenhouse under an express undertaking by his landlord to license the removal of it during the term ; it was held that the tenant might remove the greenhouse during the term or within a reasonable time after, but that he would not be allowed a fm-thcr time to find a purchaser of it before removal, and that a purchaser bu_)'ing it after the expiration of the term would acquii-e no Covenants to better right (7). — A covenant by the lessee to deliver up leave fixtures. ^^^ jjui^ings and fixtm'es at the expii-ation of his lease is 2)yimd facie construed strictly to include buildings and fixtures erected for trade purposes, which would otherwise be removable as tenant's fixtures (r) . A covenant to yield up the demised premises " with all windows, &c., which then were or at any time thereafter should be affixed or belong- ing" was construed to include a plate glass shop front erected by the tenant for the pm-pose of his trade (-s). But a covenant to leave certain specified fixtures (being land- lord's fixtures), and "all other fixtures and articles in the nature of fixtures," was construed as limiting the general words to fixtures of the same kind as those speci- fied, and therefore as not including tenant's fixtures (^). A covenant by 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 fixtm-es must be left at the end of the term, although there • Avas no express covenant to that effect, because the lessee Avas precluded by the covenant to repair from removing them duiing the temi {u). An express covenant in a lease under seal to deliver up fdl buildings and fixtures at (») WiUes, J. Cornish v. Stubhs, (.s) Burt v. Rmktt, 18 C. B. 893 ; L R. 5 C. P. 339 ; 39 L. J. C. P. 25 L. J. C. P. 295. 205 ; Lit. s. G9. (0 J^^^''-'^ v. Bishop, 10 Ex. 522 ; {q) Moss V. James, 47 L. J. Q. B. 24 L. J. Ex. 229 ; see Sumner v. 160. Bromiloiv, 34 L. J. Q. B. 135. (r) Naylor v. Collinge, 1 Taunt. (?<) Kv parte Dafflish, 42 L. J. B. 19 ; Mariijr v. Bradley, 9 Bing. 24. 102. CHAl'. \ III. FIXTUHES. 119 the end of tlio term could not Le discharged at common law ])y an agreement not under seal, as in the case of a greenhouse erected hy 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 imder the Judicature Acts would be a-\-ailablc in all Coui'ts (.r). Fixtm-es are regarded in law for most purposes as part Fixtures as of the land or tenement to which they are annexed. At action.* °^ 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 {//) . They are not properly described as " goods and chattels sold and delivered," in an action against an incoming tenant for the price (z) . 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 bo so claimed (r/). — Fixtures cannot be taken Fixtures in execution under a writ of Jieri facias levied against c^tf^J^"^ ^^^" the owner of the inheritance ; because they are part of the freehold, and the writ can be levied only upon his goods and chattels (i). 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) . Fixtm-es 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 wrongfid severance they become absolutely vested in the reversioner ((/). And where by the express terms of a lease the tenant re- nounced his right to remove tenant's fixtures during the (.i) V'tst V. Blakcu-ay, 2 M. & G. 961 ; Pitt v. Shew, 4 B. & Aid. 206 ; 729. Thompson v. Pettitt, 10 Q. B. 101. (v) Mackintosh v. Trotter, 3 M. (A) Wiun v. Ligilbij, 5 B. & Aid. & W. 184 ; Wilde v. Waters, 16 625. C. B. 637; 24 L. J. C. P. 193; (<•) Poole's Case, 1 Salk. 368; Sheen v. Pickie, 5 M. & W. 182. Minshally. Lloyd, 2 M. & W. 459. (s) Lee V. Pisdon, 7 Taimt. 188. {d) Farrant v. Thompson, 5 B. & (ff) Balton V. Whittcm, 3 Q. B. Aid. 826. 120 USES AKl) r 110 V ITS OF LAM). Distress for rent. term, it was held tliat tliey could not be taken in execution against him, because they then became the property of the landlord (('). 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 {g). But if " tenant's fixtures " are taken in execu- tion by the sheriff the landlord is entitled to payment of a year's arrear of rent before removal under the statute 8 Anne, c. 14 (//). Fixtures are not goods and chattels within the reputed o^Tiership 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 fixtm-os by the tenant is not as of goods Disclaimer of but as part of his tenement (/). — The disclaimer of a lease ru^Tc^'^ ^^^^" ^J ^^^ 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 tlie term and the lease from that date, thereby excluding the trustee from all claim to Bankruptcy of tenant. (e) Duinerffue v. liumsci/, 2 II. & C. 777 ; 33 L. J. Ex. 88, a>iie. (/) Fer cur. Toole's Case, 1 Salk. 368. (f/) Uellaicell v. Eastwood, G Ex. 311. {h) See post, p. 455. (0 "Bankruptcy Act, 1883," 46 & 47 Vict. c. 52, s. 44 ; Ilorii v. JJrtker, 9 East, 215 ; 2 Smith, L. C. 4th ed. ; £x parte Gawan, Mo Bar- clay, 5 D. M. & a. 403 ; 25 L. J. B. 1 ; Whitmore v. Einpson, 23 Bcav. 313 ; 26 L, J. C. 364. CHAr, Vni. FIXTURKS. 121 the fixtures removaLlo during the term; and notwitlistand- ing an express proviso in the lease allowing a certain time after the determination thereof for their removal (/••). But by tlie Bankruptcy Act, 1883, 4G & 47 Vict. e. 52, 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 make such orders with respect to fixtures, tenant's improvements, and other matters arising out of the tenancy as the Court tliinks just." Fixtures, or the right to remove fixtm-es, may be assigned Fixtures or reserved separately from the tenement to which they g^'^tei 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 witli 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 vdih the landlord or with an incoming ^^^^'^^• tenant for leaving the tenant's fixtures is not a contract or sale of ani/ interest in land -svitliin 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 fixtui'es sold and delivered " without any such memorandum or note in writing of the contract as is required by the statute {m). Fixtm-es 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 (A) Ex parte Stephens, lie Zavics, (/) Roffeyx. JLiidtrson, 17 Q. B. L. R. 7 C. D. 127 ; 47 L. J. B. 22 ; 574 ; 21 L. J. Q. B. 49. £x parte Brooks, lie Itoberts, L. R. (w) Hallen v. liundcr, 1 C. M. & 10 C. D. 100 ; 48 L. J. B. 22 ; Ex R. 266 ; Lee t. Gaskell, L. R. 1 Q. parte Glcrjff, Re Latham, L. R. 19 B. D. 700; Ao L. J. Q. B. olO ; C. D. 7 ; 51 L. J. C. 307 ; see i".;; Lee v. liisdo/i, 7 Tauut. I8S ; finte'. parte Dyke, lie Morrish, L. R. 22 p. 119. CD. 410; o2L. J. C, 570, machinery, 122 USES AND PKOriTS OF LAND. void unless registered -sWtliin seven clear days after tlie execution tliereof, and unless it truly sets forth the con- sideration for which it is given, and unless made in accord- ance with the form given in the Schedule to tlie Act. By sect. 4 of Act, 1878, " the exj^ression ' personal chattels ' shall mean, goods, fiu'nitiu'e, and other articles ca^^able of complete transfer by delivery, and (when separately as- signed or charged,) fixtui^es ; but shall not include chattel interests in real estate, nor fixtm-es (excej)t trade machinery as hereinafter defined) when assigned together with a free- hold or leasehold interest in any land or building to which Trade they are affixed." By sect. 5, " trade machinery shall for the piu-poses 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, di"ums, 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 sliall 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 macliincry, 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 («) Tophmn v. Greenside Firchrich 310; 57 L. J. Q. B. 2G3. Co., L. K. 37 C. D. 281 ; 57 L. J. {p) Southport Banlung Co. v. C. 583. Thompmi, L. R. 37 C. D. G4 ; 57 (f,) Re JUmlrtt, L. Pt. 20 Q. B. D. L. J. C. 114. CHAl'. Mil. FIXTURES. 123 impliedly conveys the trade machiuery affixed to it, but 2)rimd facie gives no power to sever the fixtures and deal with 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 l^ower to sell the trade machinery sej)aratoly he must regis- ter his sociuity as a Bill of Sale ((/). — By sect. 7, " No fixtures shall be deemed to be sej)arately assigned or charged by reason only that they are assigned by separate words, or that power is given to sever them from the land or building to which they are affixed, without otherwise taking possession of or dealing with such land or building ; if by the same instrument any fi-eehold or leasehold interest in the land or building to which such fixtiu'cs are affixed, is also conveyed or assigned to the same person. The same rule of construction shall be applied to all deeds or instru- ments including fixtm-es executed before the commencement of this Act." — Under the former Bills of Sale Act, 1854, BiUs of Sale repealed by the above Act, 1878, "tenant's fixtures" were ^^*^' ^^^■^• held to be within the Act, whether the fixtui-es were as- signed separately or not ; provided the assignee acquired the power of removing them and dealing with them as personal chattels (r). (7) i?e l«to, L. E,. 3SC. D. 112; 8 Ch. 1072; 42 L. J. B. 102; 67 L. J. C. 6U7. Ex parte Moored JSankvig Co., lie {)■) llawtry v. ButlUi, L. R. 8 Armytagc, L. R. 14 C. D. 379 ; 49 Q. B. 290 ; 42 L. J. Q. B. 1G3 ; L. J. B. 60. Ex parte Daglish, lie Wilde, L. R. 124 USES AM) PROFITS OF LAND. CHAPTEE IX. TITLE DEEDS; HEIELOOMS. Property in title deeds— freehold— leasehold — mortgages — deed box — larceny of deeds. Right of purchaser to deeds — lessee— mortgagee. Custody of deeds— as between tenant for life and reversioner— trustee and cestui que trust — control of custody by Court — concurrent interests in same deeds — sale of land in lots. Production of deeds for inspection— privilege of mortgagee— covenant for production — production under Conveyancing Act, 1881. Separate property in deeds— deposit of deeds as security — lien of solicitor — adverse possession of deeds. Heirlooms — chattels settled as heirlooms — sale of heirlooms — Settled Land Act. Property in title deeds. Freeholds. Leaseholds. Mortgages. Title deeds and all documents of title are regarded in law as accessories of tlie land to wliicli they relate ; and the property in them presumptively follows the title to the land. Accordi]igly, deeds and documents which relate to the inheritance of land pass by descent to the heir as incident to the inheritance, and not as personal chattels to the executor or administrator ; and they pass to the lord by escheat (a). They pass to the heir of a tenant pur autre fie, who takes as special occuj)ant, and not to the administrator (/^). — Deeds and documents that relate to leasehold or chattel interests in land pass with such interests as personal estate of the deceased tenant. — Deeds of mortgage conveying the legal estate in the lands pass with the title to the land ; Ijut title deeds merely deposited (a) Shepp. Touch. 4G0 ; 1 Co. 2", Buckhursfs erne. {b) Atkiimju v. B(tl:cr, 4 T. R. 229. CHAP. IX. TITLK DEEDS; HEIKLOOMS. 12-3 as security for a debt, "by way of equitable mortgage, pass witli tlio debt to the assignee or executor 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 entii-e thing ; and inasmuch as the charters are more precious than the box, therefore the heir who has the property of the charters, shall 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 Larceny 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 common law ; nor is the box that holds them (c). It is now provided by 24 & 25 Viet. c. 96, s. 28 (substituted for 7 & 8 Geo. IV. c. 29, s. 23), as to larceny of written instruments : — " Whosoever shall 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," and 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 deeds. and a conveyance of the land, ^;>'//;?a /«cie, 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 pm-chaser only ; and he retains no lien for chai-ges against the vendor (r/). If the deed of conveyance is {c) Sheppard's Touch. 4 69 ; Wms. beer, 2 Str. 1 1 35. Ex. 610, 4th ed. ; lie liu-hardso>i, (/) Co. Lit. 6a; Lord Biiek- Shillito V. Hobson, L. R. 30 C. D. hurst's case, 1 Co. I. 396; 55 L. J. C. 741 ; post, p. 134. () Davis v. Di/sart, 20 Beav. («) Greene v. Foster, L. R. 22 405 ; 24 L. J. C. 381 ; Fciuiell y. C. D. 566 ; 52 L. J. C. 470. Fi/sart, 27 Beav. 542 ; Xocl y. (o) JJ'ebb V. Lymhigton, 1 Eden, V'ard, 1 Mudd. 322. 8 ; Garner v. lltotnijngton, 22 Beav. {q) Easton v. London, 33 L. J. 627 ; Allwood v. Heyuood, 1 H. & Ex. 34. C. 745 ; 32 L. J. Ex. 153 ; Lcathes {r) Tourlc v. Rand, 2 Bro. C. C. V. Lcathes, L. R. 5 C. D, 221 ; 46 650 ; I'arroic v. Recs, 4 Beav. 18. cestui que trust. 128 USES AND ruoi rrs of land. the rig-lit and the duty of the trustee in whom the legal estate is vested to have the custody of the deeds, tlie pos- session of the deeds forming no part of the beneficial en- jojonent of wliieh the cestui que trust can claim to have the possession. But a bare trustee, who might be called upon to convey the legal estate, would also be bound to deliver the deeds witli it (s). Where the equitable estate in land is settled upon tenants for life and in remainder, and there are no special trusts in the settlement rec^vuring the trustees to retain possession of the deeds, the Coiu-t 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 resj^onsible for the consequences of giving them to him {t). 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 {u) ; 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). Control of ^fj^g Coiu't excrcises equitable control over the custody custody. of title deeds for the benefit of all parties interested, and if circumstances require it, may order them to be brought into Coui't ; 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 {w). The mere fact that there is no relationship between the tenant for («) See Buncombe v. Mayer, 8 Ves. N. C. 386 ; Re Cowin, Cowin v. 320: Barclay v. CoUett, 4 Bing. Gravett, L. R. 33 C. D. 179; 56 N. C. 0.58. L. J. 0, 78. {I) Lanydale v. Briygs, 8 D. M. (v) JFynne v. JIumberston, 27 & G. 391 ; 26 L. J. C. 40 ; Evans Beuv. 4'il ; 28 L. J. C. 281. V. Bicknell, 6 Ves. 174. {ic) Hardwicke, L. C. Irie v. {it) Ex parte Huldsuorth, 4 Bing. Ivie, 1 Atk. 431. CHAP. IX. TITLE DEEDS; IIEIHLOOMS. 129 life and reversioner is no ground for interference (x). The Court while leaving the deeds in the custody of the tenant for life nia}' recjuire him to give secui'ity for their safe custody and for their production when reasonably re- quired (//), AVhere 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 Com't will order them to be brought into Coui't, or otherwise disposed of as most convenient for the purpose {z) . Where two or more persons have several concurrent Concurrent interests in the same deeds, the right of custody is said to game deeds, 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 custody of a thu'd party, thougli the latter has no interest in holding them; but all parties interested must join in suing for the possession. In such case the Com-t would protect the interests of all at the suit of one by ordering the deeds to be deposited in Com-t for their inspection and use {b). — Where land held imder one Sale of land title is sold in lots, the general rule, in the absence of "^^^ts. 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 {x) Lcathcs V. LeaiJws, L. R. 5 310. C. D. •221 ; 4G L. J. C. 5G2, dis- {a) 1 Co. 2a, JBiicJchiost^s Case; sentinf' from Warren v. Itudall, 1 Yea v. Field, 2 T. R. 708 ; Foster J & H. 1 ; 29 L. J. C. ol3. v. Crahb, 12 C. B. 13G ; 21 L. J. (y) Jenx.er v. Morris, L. R. 1 Ch. C. P. 180. g03. (*) Wright v. Jtuhotham, L. R. (z) Lcathes v. leathes, supra; 33 C. D. 106 ; 55 L. J. C. 701. Stanford v. lioberts, L. R. 6 Ch. 130 USES AND niOFITS OF LAXD. sale of a part of certain laud reserving tlie rest without any stipulation as to the custody of the deeds, they pre- sumptively go with the part that is largest in value (c). The custody of title deeds, under such circumstances, may be specially pro\ided for by the conditions of sale. A condition that the pui'chaser of " the largest lot " should have the title deeds was construed to mean the lot largest in area, -sWthout regard to value {(/). And under 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 (c). Production of A persou entitled to any estate or interest in land inspection. i^, in 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 bo disputed, may compel the defendant to produce all deeds and documents, including his 0"^Ti title deeds, v/hich tend to prove the j)laintiff's title {(/). If tlio plaintiff's title is not disputed, there is no ground for tlie 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, Avhieh is not as to the title, but as to notice of the title at the time (c) Sugden, V. & P. 11th ed. 533. 45C ; Dart, V. & P. 3rd ed. 9-1. (y) PicJccring v. Noyes, 1 B. & C, {(l) Griffiths V. llalchard, 1 K. & 262 ; Egreniont Board v. Egremont J. 19; 23 L. J. C. 057. Iron Co., L. R. 14 C. D. 158; 49 {e) Scott V. JacJcman, 21 Beav. L. J. C. 623 ; Lyell v. Kennedy, 110. L. R. 8 Ap. Ca. 217; 52 L. J. C. (/) Ta\n V. Ayers, 2 S. & S. 385. ( IIAP. IX. TITLE deeds; HEIHI.OOMS. 181 of piireliase, and tlio jilaintiff can claim prodnction only upon the sjjccial ground that tliey tend to disprove the plea (//). 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 iiTelevant, unless they also tend to prove his o'wti (/). By a rule of equity a mortgagee was pri\'ileged from Privilege of the production of the title deeds of the mortgaged estate " ° for inspection of the mortgagor, except upon full payment of his charge (/.•). lie was erpially privileged against any person claiming under the mortgagor, or claiming any interest in the erpiity of redemption (l). But not against persons claiming against the mortgagor from whom he received the deeds ; for they retain the same right of jiroduction and inspection of the deeds as when they were in the hands of the mortgagor (>;?). This rule does not extend to the mortgage deed itself, which contains the pro^dso 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 pri^-ilege of the mortgagee is abolished in future by the Conveyancing Act, 1881, 44 & 45 Vict. c. 41, s. 16, enacting that " a mortgagor, as long as his right to . (h) Emmerson v. Iiul, L. R. 33 421 ; Chichester v. Loneqall, L. R. 5 C. D. 323 ; 55 L. J. C. 903 ; see Cli. 497 ; 39 L. J. C. 094. Bennett v. Glossop, 3 Hare, 578. {m) Doc d. Morris v. Eoe, 1 M. ((') Emmerson \. Ind, Kupra ; Ilor- &W. 207. ton V. Bott, 2 H. & N. 249; 26 [n) ^t\\Avt,Y.-C., Patch y. Ward, L. J. Ex. 267; Bannnti/ne v. Leader, L. R. 1 Eq. 440 ; sec Crispy. I'latcl, 10 Sim. 230 ; Smith v. Beaufort, 1 8 Bcav. 62 ; Browne v. Lockhart, 10 Hare, 507. Sim. 421. (A) GUI V. Eytoii, 7 Bcav. 155 ; (o) I'/ii/lips v. Ecans, 2 Y. & C. Greenirood V. liothtccll,! Bear. 291. 647; Kennedi/ v. Green, 6 Sim. 6; (/) Browne v. Lockhart, 10 Sim. Livcseij v. Harding, 1 Beav. 343. iv2 132 USES A^'D PROFITS OF LAND. Covenant to produce title deeds. redeem subsists, sliall be entitled at reasonable times on liis request and at his own cost, and on payment of tlie mortgagee's costs and expenses, to inspect and make copies or extracts from the dociunents 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 tliis Act, and shall have effect notwitlistanding any stipulation to the contrary." A purchaser who cannot liave the title deeds is prima facie entitled 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 title 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, Coiu't rolls, wills and the like (/•). A covenant for fm-ther assm-ance includes the giving a covenant w^hen 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 [f) . Under the Conveyancing Act, 1881, 44 & 45 Vict. Conveyancing c. 41, s. 9, a person wlio retains possession of documents Act 1881 • ' ' may give to another " an acknowledgment in writing of the riglit of that other to production of those documents and to delivery of copies thereof," also " an undertaking Production, &c. under '{q) Dare v. Tuclccr, 6 Ves. 460; lioughton V. Jewell, 15 Ves. 176. (/•) Jjare v. Tucker, supra ; Cooper V. Emery, 1 Phill. 388. («) Fai7i V. Aijers, 2 S. & S. 533. [t) Barclay v. Ralne, 1 S. & S. 449. Sugd. V. & P. 480, 11th ed. CHAP. IX, TITLE DEEDS; HEIRLOOMS. 133 in -^Titing for safe custody tliereof " ; 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 pai-t 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 iiroperty in deeds may be separated from the land Separate pro- to which they relate by the absolute owner assigning them deeZ."^ to another as personal chattels. " A man may give or grant his deeds, /. c. the parchment, paper and wax, to another at liis 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 dm-ing his own ownership" (2^). A grant of "all goods and chattels" will not pass title deeds (r). So "if a man have an obligation he may give or grant it away and so sever the debt and it, /. r., retain the debt, while he has given away the property in the deed" (ir). Thus, a bond, or a debentm-e of a company, or a policy of insm-ance may bo assigned without the debt or contract to which it relates, by reason of certain formalities or conditions rerpiired to pass the latter wliicli are not satisfied by the mere delivery of the deed. " In which cases the plaintiff may not be able to recover the docimient whieli is the e^'idence of the debt, while the person who holds that evidence may not be able to recover the debt itself" (.r). Where title deeds are deposited bv way of equitable («) Shcppard's Touch, by Pres- ton, 242. ton, 242; Kilsack v. Xic/io/ao)!, Cio. (.r) Cainis, L. C, Jiiimniens v. Eliz. 496. JLire, L. R. 1 Ex. D. 169 ; 46 L. J. (i) Perkins, .'i. 11.'). Ex. 30; J}u>-(on v. Gainer, 3 II, & («•) Shcppard's Touch, by Pees- N. 387 ; 27 L. J. Ex. 390. 134 USES AND PROFITS OF LAND. Deposit of deeds as securit>'. mortgage, the mortgagee acquires a special property in the deeds to liold them as secm-ity for the debt, and he can assign this property with the debt, but he cannot give any greater projierty in the deeds than he has himself, and therefore no right to hold the deeds apart from the debt ; consequently where a mortgagee by deposit made a volun- tary gift of the debt and delivered the deeds to the donee, the gift of the debt being void for want of assignment in ■v^Titing, it was held that no property passed by delivery of the deeds, and the donee could not retain them against the administrator of the donor in whom the mortgage debt vested {ij) . A mortgagee by deposit of deeds, having only an equitable charge upon the land, is postponed to prior claimants, according to the general rule of priority in equity, altliough 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 notice of the charge, or unless by fi-aud or negligence he has assisted or acquiesced in the creation of it (a) . Lien of soli- citor on deeds. A solicitor has a general lien for professional charges 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 himself, though he retains the lien, may be (y) He Eichardson, Shillito v. IIoljHon, L. R. 30 C. D. 396 ; 5o L. J. C. 741. (j) Re Morgan, Tilrjrem v. Til- grem, L. R. 18 C. D. 93 ; 50 L. J. C. 654; Heath v. Crcalock, L. R. 10 Ch. 22 ; 44 L. J. C. 157 ; Manners V. 3Iew, L. R. 29 C. D. 725 ; 54 L. J. C. 909. {a) NeivtoH v. Beck, 3 H. & N. 220 ; 27 L. J. Ex. 272 ; Manners v. Mhc, supra. CHAT. IX. I'rij.K deeds; heirlooms. 13j comiielled to produce tlio deeds {b). — A solicitor retained to make a mortgage Ly both parties cannot retain any prior lien against the mortgagor ; his duty to the moi-t- gagee being to retain possession of the deeds clear of all prior incumbrances {c) ; nor can he acquire any subsequent lieu against the mortgagor, his possession of the deeds being exclusively that of the mortgagee (<■/). On the other hand, the mortgagee's solicitor can acquire no lien as against tlie mortgagor, who is entitled to redeem the mortgage and recover the deeds upon pa^-ing off the debt and costs {c) . 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 have no lien beyond the interest which his cHent has in the deeds {g). And he cannot refuse to produce them for inspection by other parties who are interested in the same deeds, upon proper occasions (//). He is obliged to produce the deeds in suits for the adminis- tration of the estate of his client (/) ; and in proceedings in bankruptcy or liquidation (/.■), subject to his lien. The possession of title deeds is always presumed to be in Adverse po3- accordance with the title to the land and on behalf of the ^eSr °* 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 (/>) lleshp V. Metcalfe, 3 M. & C. {f) Sheffield v. Eden, L. R. 10 183 ; Cane v. Martin, 2 Beav. 584 ; C. D. 291. i?e/ai^///«//,L.R.6Eq. 32.'). Scei?e {g) ILullis v. Claridge, 4 Taunt. ■Wadsworth, L. R. 34 C. D. lob; 307. 56 L. J. C 127. (/() Brassinffton v. Brassing ton, 1 (c) Re Nicholson, Ex parte Qtdnn, Sim. & Stu. 455; Hope\. Siddell, 53 L. J. C. 302 ; Re Mason and 20 Beav. 438 ; 24 L. J. C. 691. Taylor, L. R. 10 C. D. 729 ; 48 («) Bclaneii v. Ffrcnch, L. R. 8 L. J. C. 193. Ch. 918; 43 L. J. C. 312; Re (d) Ex parte Faller, L. R. 16 Buw/hton, L. R. 23 C. D. 169. C. D. 617 ; 50 L. J. C. 448. (/') Re Toleman and En,jland, L. R. (e) Jlollis V. Claridge, 4 Taunt. 13C. D/880; Re Capital Eire Ins., 807 ; Wakejicld v. Neicbon, 6 Q. B. L. R. 24 C. D. 408 ; 53 L. J. C. 276. 71. 136 rSES AND PROFITS OF LAND, "barred, as to the deeds, by adverse possession for any period short of that wliicli bars a claim to the land {/n). A separate j)ossession of the deeds is also held presumptively on behalf of the title, and the Statute of Limitations does not begin to run against the claim of the owner of the land to have the deeds, until an adverse possession is set up, by a refusal to deliver them up when demanded or by the exercise of some other act of ownership over them {u). Heirlooms. Chattels settled as heirloomfs. " Heiiiooms " in ancient times were chattels which by special custom of an estate or place descended to the heir with the inheritance ; this kind of heirloom is now obso- lete (o) , A horn which had been originally delivered with and as the symbol of tenure by cornage has been held to pass to the heir, probably as an evidence of title ( }'>) • The monuments of an ancestor in a church or churchyard, whether fixed or movable, are said to be heritable ; and the heir may maintain an action for taking or defacing them (q) . " Heirlooms " in modern times are personal chattels which are annexed to settled land by limiting them for the same uses and estates, so as to pass with the land as far as the rules of law and equity permit. If the land is limited in strict settlement, that is, for successive estates for life with remainders in tail, chattels settled upon the same limitations accompany the land through the successive life estates ; but as soon as the land vests in a tenant in tail in possession, the chattels, as there can be no estate tail in such property, vest in that tenant absolutely as part of his personal estate, and thus become disconnected with the land (/■). In order to prolong as far as possible the annexation of the chattels to the land it is usual to {m) Plant v. CottercU, 5 H. & N. 430; 29 L. J. Ex. 198. (ft) Spademan v. Foster, L. R. 11 Q. B. D. 99 ; 52 L. J. Q. B. 418. (o) Co. Lit. 18 ^ 185 Zi; Wms. Exors. COG, 4tli od. {p) Fusey v. Fuscij, 1 Vern. 273. {q) Co. Lit. 18 i; FrancesY. Ley, Cro. Jac. TiGJ ; Hpooncr v. Brewster, 3 Biug. 13G. (/•) Foley V. Bitrnell, 1 Bro. C. C. 274 ; Vauyhan v. Furslcm, 3 Bro. C. C. 101; Carry. Lord ErroU, 14 Ves. 478. CHAl'. IX. TlTr,K deeds; HEIRLOOMS. Vi7 insert in tlio settlement a proviso or condition that tlie cliattols sliall not vest aLsolutoly in any tenant in tail unless lie shall attain tlie age of twenty-one years ; which is effectual until a tenant in tail on coming of age acquires ahsolute power of dis];)Osing 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 bo fxn-ther restricted without infringing the inile against perpetuities (s) . Chattels may be thus settled to pass as heirlooms by expressed 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 requii'ed, restraining the absolute vesting imtil 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 secm'ity, unless there is some special risk in his possession of them {ii). — Personal chattels may be settled in the same manner independently, and without annexation or reference to real estate (r). But a bequest of a silver cup "to S. and his heii's for an heii'loom " was construed to be simj)ly an absolute bequest to S. ; so that S. dying in the lifetime of the testator, it lapsed («•). — "Where a settlement has Sale of heir- annexed heirlooms to real estate, the tenant for life has ^°°^^- 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 gi^dng certain benefits to the tenant for life of a settled estate ha\ing heirlooms annexed, and by the same will bequeathing the heirlooms of that estate (5) Cfn-Lide V. Go.sHnff, L. R. 1 &H. 40; 29 L. J. C. 2-19; Savile H. L. 279 ; 35 L. J. C. 667 ; JTar- v. Scarborough, 1 Swanst. -537. rbi(jto)i V. JfarriiifftoN, L. R. 5 H. L. («) Temple v. Thritig, 06 L. J. C. 87; iO L.J. C. 716; Exmonth v. 767. JVm/, L. R. 23 C. D. loS ; 52 L. J. (r) ShcUei/ v. ShcUa/, L. R. 6 C. 420 ; I'tirku) v. CnssurU, L. R. Eq. 540 ; 37 L. J. C. 357. 24 C. D. 102 ; 52 L. J. C. 798. («) lie ll'/ioruood, L. R. 34 C. D. (0 lord Scarsdafe v. Curzoii, 1 J. 446 ; 56 L. J. C. 340. 138 USES AND PROFITS OF T-AND. to another i:)erson, it was held tliat tlie tenant for life, in claiming the benefits under the will, was not bound, by the doctrine of election, to make any compensation for the heir- looms, which he could not assign to the legatee ; and that he was entitled both to claim the benefits under the will and to retain the heu-looms in his own right under the settle- ment (x). The Coui't has no original jurisdiction to order a sale of heirlooms wliich are annexed to real estate in strict settlement ; although a sale would be beneficial to all parties interested (?/). But where charges are to be raised out of the settled estate the Court can authorise a sale of heirlooms in preference to selling the land (z). Settled Land The Settled Land Act, 1882, 45 & 4G Vict. c. 38, Act . . s. 37, as to personal chattels settled as heMooms provides that (1) " A tenant for life of the land may sell the chattels or any of them ; " (2) " The money arising by the sale shall be capital money arising under this Act and shall be dealt with as other caj^ital money arising under this Act, or may be invested in the purchase of other chattels which shall be settled and held upon the same trusts and shall devolve in the same manner as the chattels sold ; " (3) " A sale or purchase of chattels under this section shall not be made without an order of the Court." The Court will not authorise the sale of the settled estate by the tenant for life under tlie Act without providing at the same time for the sale of the heirlooms (a). The money arising from the sale of the heirlooms under the above section may be applied in discharge f)f incumbrances upon the settled land, notwitlistandiug that the heii'looms, if remaining unsold, would vest absolutely in the tenant in tail in remainder ujDon attaining twenty-one [b). (x) Re Chesham, L. E. 31 C. D. 711 ; 46 L. J. C. 174. 466; 55 L. J. C. 401. [a) Re Rrown's Will, L. R. 27 Oj) L'Eyncourt v. Gregory, L. R. C. D. 179 ; 53 L. J. C. 921. 3 C. D. 635; 45 L. J. C. 741. [h) Re Marlborough's SHtlcment, (z) Fajic V. Fane, L. R. 2 C. D. L. R. 32 C. D. 1 ; 55 L. J. C. 339. ( 139 ) CHAPTEE X. INLAND WATEE. Section 1. — Standixg "Water. Property in standing water — riparian ownership. Water percolating below the surface — right of draining off water^ draining water from streams— draining mines— subsidence from draining — pollution of percolating water. Water artificially collected— liability for escape of water— escape by accident or superior force— water collected in houses. Extraordinary floods. Inland water is of two kinds, having different conditions in law : namely, — standing u-ater or water not flowing in a defined com-se, including the water of surface lakes and ponds, and the water diffused and percolating in the soil below the surface ; — and riotning water, including rivers and streams flowing in a defined course, whether above or below the sui'face. Water is also treated differently in law according as it is found in or upon the land in a natm-al condition ; or collected there by artificial means. These various conditions of water 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 *^^^"^\i"o in the land jn-ima facie carries with it the property in the water. Accordingly a conveyance of "laud" 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 L'SES AND TROFITS OF LAND. Riparian OAViiership, sliowing an intention to convey tlie land l)y tliat descrip- tion {h). — If tliere is only one riparian owner, whose land siuTOunds a lake of water, tlie 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 resj)ective banks, so far as the medium filum aqucB ; 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 sui'face 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 perco- lating below surface. Right of draining off water. Water percolating below the siu-face of land is not a subject of absolute property imtil 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 som'ce in which nobody has any projierty, but of which everybody has, as far as he can, the right of aj)j)ropriating 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 dizains off 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 «, S ; ante, p. 5. (e) Mackenzie v. Jianlces, L. li. .3 Ap. Ca. 1324; as to owncr.ship of bed of stream, sgq post, p. 153. [d) Brett, M. R. Ballard v. Tom- linsoii, L. R. 29 C. D, 121 ; 54 L, J. C. 456. CHAT. X. IXJ^ANl) WATEK. 141 •Wtas clrainod out of a well in tho adjacent land, it was lielil that the owner of the well had no claim to compensation for the loss of water (e). The cases, it is said, aftirni tliis proposition : " that the disturbance or removal of the soil in a man's o^^■n land, though it is the means, by process of natural percolation, of drying up his neighbour's spring or well, does not constitute the invasion of a legal right, and Avill not sustain an action ; and f lu-ther, that it makes no difference whether the damage arise by the water perco- lating away, so that it ceases to flow along channels through wliieh 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 di-ain off water in his own Draininfr land, whieli Avould otherwise have iiercolated into and ^y''^*^'' ^'"'^"1 supplied a river or stream of water running in a defined course, altliough 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 pumped 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 {g). 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 di'ain his land, either above or below the sm-face with the effect of di'aw- ing water from the stream (//). A spring or definite source of water that supplies a stream is considered as part of the [c] Acton V. Bhauhll, 12 M. & 710; 32 L. J. Q. B. 105. W. 32t. (y) Chasemorc v. Itlclumls, 7 H. L. (/) Per cio: Ballacorkhh Jfiiiin'/ C. '349 ; 29 L. J. Ex. 81 ; over- Co. V. Jfarriso)!, L. R. 5 P. C. 60 : ruling: on this point, Dickinson v. liatrs/ron v. Ttii/lor, 11 Ex. 369; 25 Grand Junction Canal, 7 Ex. 282. L. J. Ex. 33 ; liroadbcnt v. Rams- (A) Dickinson v. Grand Junction bottom, 11 Ex. 602; 25 L. J. Ex. Canal, supra ; Grand Junction Canal 115; New River Co. v. Johnson, 29 v. Shutjar, L. R. 6 Ch. 483; jjobt, L. J. M. C. 93 ; The Queen v. p. 149. Metrop. Board of n'orks, 3 B. & S. Draining mines or 142 USES AND PROFITS OF LAND. stream in this resjiect (/). "A stream of water in law is water which rmis in a defined course, so as to he capahle of diversion, and the term does not include the percolation of water helow ground " (Z). The same jirineiple applies between several owners of the subsoil. surface and substratum ; so that the owner of mines or subsoil is not in general responsible to the owner of the sm-face 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, would have been retained in the wells and springs of the superjacent land. Ui^on 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 tlie 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 soiu'ces of water that supplied the streams referred to in 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 contained in the soil, the grantor cannot afterwards derogate from his own grant by draining oflf the water so as to render the land less flt for the piu-pose in question (»)• 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 (i) Budden v. Cbdlon Union, 1 (/) Ballacorldsh Mining Co. v. H. &N. G30; 2G L.J. Ex. 14G; IDn-risou, L. R. 5 P. C. 49; 43 FrcJich Iloek v. Hugo, L. II. 10 L. J. P. C. 19. Ap. Ca. 330. (w) Whitehead v. Parlies, 2 H. & {k) Jcssol, M. E. Taglor v. St. N. 870; 27 L. J. Ex. 169. Helens, L. R. 6 C. D. 273; 46 («) Topplewell v. Hodkinson, L. L. J. C. 8GI. R. 4 Ex. 248 ; 38 L. J. Ex. 126. CHAP. X. 1M,A\I) WA'IKK. 143 Avas lield tliat tlioro was no implied obligation on llio grantor n(jt t(^ drain tlio adjacent land wliieli ho lunl retained also for building, tlio land not being suitable for building without di-aining ; 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 Subsidence of is not responsible, if, by draining his own land in the ordi- \'"".^ ^*^"^ nary and proper com-se of cultivation or mining, he causes a sidjsidcnice 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 do so"(^;). The owner of land may pollute the water percolating in Pollution of liis own soil, by discharging sewage or other noxious matter P^i'f ol^t'ng- .,.,,,." IT ■water. into it (subject to public sanitary regulations), provided ho keeps such pollution within his own boundaries, and docs not suffer it to percolate into the adjacent land to the nuisance of the owner. Where the owner of land dis- charged sewage into a well upon liis property, and the adjacent owner by di-awing water from a well 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 tlie natural percolation of the water (q). The collection of water upon land in an artifieial manner Water arti- is attended with special obligations towards the owners of f^^^^^/ ^°^' adjacent lands. AVliere a person constructed a reservoir for storing water for the use of a mill, and t]u> water escaped tlirough some unknown eliannels into his neigh- (o) FoppUueUv.Hodkimon, supra. By. Co., 10 H. L. C. 333; ."^2 L. J, {p) Per cm:, Fopplcuetl v. Hod' C. 40-2. Jiinson, L. R. 4 Ex. 248 ; 38 L. J. (7) Ballard v. Tomlinso)!, L. R. Ex. 126; Elliot v. Xorth Eastern 2U C. D. llo ; 54 L. J. C. 454. 144 USES AM) PROFITS OF LAXD. bour's mine, he was held responsible for the damage done Liability for by it ; upon the general principle, "that the person who, water. for his own pm'poses, brings on his land and collects and keej^s there anything likely to do mischief if it escapes, nmst keep it in at his peril ; and if he does not do so, is prima facie answerable for all the damage which is the natui'al consequence of its escape "(r). So it is laid down that, " if any one by artificial erection on his own land causes water, even 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 (s)." 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 fi'om which soaked tlu'ough 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 discharges 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 (r) . 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 (>•) Ryhinds v. Fletcher, L. R. 3 man v. North Eaatcrn Rtj., supra. H. L. 330; 37 L. J. Ex. 161; {u) Bairdx. Williamson, IhC.B. Evans v. Manchester, ^c. By., 57 N. S. 376 ; 33 L. J. C. P. 101 ; L. J. C. 153; Snoiv v. Whitehead, Fletcher y. Smith, L. R. 2 Ap. Ca. L. R. 27 C. D. 588; 53 L. J. C. 781 ; S. C. nom. Smith v. Mnsfjrave, 885. 47 L. J. Ex. 4 ; Crompton v. Lea, («) Per cur. Hurdman v. North L. R. 19 Eq. 115; 44 L. J. C. 69. .Eas/e/v? iZy., L. R. 3 C. P. D. 173; [v) Smith v. Kcnriclc, 7 C. B. 47 L. J. C. P. 368. 564 ; Wilson v. Waddell, L. R. 2 (0 Br Oder v. Saillard, L. R. 2 Ap. Ca. 95. C. D. G92 : 45 L. J. C. 414 ; Hurd- CTIAl'. X. INLAND "WATEU. 140 than before. " The merely obtaining a temporary 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, unless lie makes it flow differently " (ic). If water collected upon land be discharged over the Escape by adjacent land by some accident or superior agency over Kx*ip(^^rioj. ""^ which the o\\-ner has no control, ho 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 God or vis major, meaning thereby some event that it was practically impossible to anticipate or to resist. " The ordinary i-ule 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 not"\\ithstanding any accident by ine\dtable necessity " (r) . AVliere a dock company were empowered to cut through the bank of a tidal river for the purpose of di-awing 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 {//). And where a reservoir was overflowed by the irruption of water from the emptying of an adjoining reservoir, the o-wTier («•) Brett, L. J. West Cumberland L. R. 2 Ex. D. 1 ; 46 L. J. Ex. 187. Iron Co. V. Kfiii/on, L. R. 11 C D. (v) Xi'.ro-P/innphatf Co. v. London 788 ; 48 L. J. C. 793. and St. K. Locks Co., L. E. 9 C. D. {x) Per cur. Xic/ioh v. JLirsland, 503. L. L 146 USES AXl) TROFITS OF LAND. "Water col- lected in houses. was lield not to be liable for the damage ; for that it was caused by tbe act of a stranger, whicb he could not anticipate or control (~) . — 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 pro\'ided for in the Act («). Where several tenants occupy parts of the same house in A\'hich 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 fi*om the construc- tion or faihu'e 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 neghgence (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 escaj^e of water by the bm^sting 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 ground floor; it was held that the owner of the house, wlio had let off the ground floor, retaining the upjDcr 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 InuTicane had caused the rent " {d). Extraordi- nary floods. In the ease of an extraordinary flood of water, every man has the right of defending his own property, although (z) Box V. Jubb, L. R. 4 Ex. I). 76; 48 L. J. Ex. 417. (a) Dixon v. Metrop. Hoard, L. K. 7 Q. B. D. 418; 50 L. J. Q. B. 772 ; Evans v. Manchester, ^c. 'Jly. bl L. J. C. 153. (b) Carstairs v. Taylor, L. R. G Ex. 217 ; 40 L. J. Ex. 129 ; lioss v. Fcdden, L. R. 7 Q. B. CGI ; 41 L. J. Q. B. 270 ; see Stevens v. Woodn-ard, L. R. G Q. B. D. 318; 50 L. J. Q. B. 231. (<•) Anderson v. Oppenheimer, 49 L. J. Q. B. 708 ; L. R. 5 Q. B. D. G02. {d) Carstairs v. Taylor, L. R. 6 Ex. 217; 40 L.J. Ex. 129. r-TlAl'. X. INT.AXI) WATER. 147 in doing so ho turns the water on to the i)ropertj of another. Accordingly, tlie proprietors of a canal were held to be justified in excluding flood water, not jiroduced by any feeder of theii* own canal, which consecjuently flowed over the adjacent laud of others. And it seems that even in the case of a natm-al watercourse the riparian proprietor is entitled to protect himself by keeping off extraordinary floods (^'). Floods of ordinary recurrence cannot bo di- verted from tlieu" usual and ordinary coiu'so to the injiuy 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 theii" 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 thi'eatens a com- mon danger, tJie oi^Tier of that land must bear the loss and has no further right to discharge the water upon the land of others. AVhere a flood brought down water which lodged against the embankment of a railway and thi'eatened 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 hmd (y). (<•) Xicldv. London ^- X. W. 111/., (. 155; 52 L. J. 189. 154 USES AND PROFITS OF LAND. AYliere the land eonvejed is described as bounded by a river, the presumptive construction is that the bed of the river to the middle line passes with the land ; and this presumption pre-\-ails althoug-h the land is described by reference to a map in which it is marked or coloured ex- clusively of the river, and although it is fmiher described by measm-ement excluding the river. The presumption may be rebutted by cii'cumstances sliowing a contrary intention at the time of the conveyance, but not by sub- sequent circumstances {y). 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 pro]3erty in the bed of the stream ; and that " the water may be lawfully aj)propriated by every one having a right of access to it. It is of com*se 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 naturce, as vertical " (;:). But 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 («). Change of 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 cliange with the course of the stream ; but if the change bo made perceptibly then the ownership of the soil remains according to the former bounds {b). Accordingly tlie right of fishing which is pre- sumptively incident to riparian property ad medium filum aqucB shifts with the )nedium filum upon a gradual accretion to one of the banks (c) ; and an exclusive right of fishery over the whole bed of a river shifts in the same way (c/). " The law is based upon the impossibility of identifying (y) Micklethwait v. Newlay Bridge {h) Hale, De J. Maris, Hargr. Co., L. R. 33 C. D. 133. Tmcts, p. 5. (2) L. Selbomo, L%ion v. Fish- [c) Zetland \. Glover Incorp. Perth, imngcrs' (Jo., L. R. 1 Ap. Ca. 683. L. R. 2 Sc. Ap. 70. («) Seefjoii;, p. 22G. {d) Foster v. TVright, L. R. 4 C. P. D. 438; 49 L. J. C. P. 97. bed CHAP. X. INLAND WATER. 155 from (lay to day small additions to or subtractions from laud caused by the constant action of running water." Hence tlio title to land so gradually and imperceptibly ac- quired is not defeated merely by proof of the ancient boundaries (r) , AVlicre a river had receded from the ancient bank and left some pieces of diy land, which the owner of the opposite bank and river bed claimed as against the owner of the adjacent land ; and upon which ho 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 tliat tlie process of change was therefore immaterial (,/'). — If a stream changes its course not by gradual alteration of the bed, but b}' abandoning the old bed and flowing in another direction, tlie private rights of riparian owners and others in the original stream are lost ; and they acquire no similar rights in the new course of the water {(j). The owner of the bed of a strealn is not entitled to use Encroach - it for any pm-pose that wiU interfere with the natm-al °'''°* ""^ ^^'^• com-se of the stream injiu-iously to the riparian owners. Any building or work extending into the stream is prima facie an encroachment upon theii" right, and is a cause of action in respect of the possible consequences upon the course of tlie stream, without the necessity of proving any damage in fact caused by it, or any particular probable damage; the oints being laid upon the person making it of showing that it is not in fact an encroachment and that it cannot have any percejitible effect upon the stream (//). — ^A riparian oxsTier may build a wharf or bul- wark for protection of liis 0"\vti bank provided he does not encroach upon the bed of the stream or alter the dii'ection of the ciuTcnt injiu-iously to others (/). And it is said : (e) Foster v. Wrti/ht, supra. If) Ford V. Za'cci/, 7 II. «fc N. 151 ; 30 L. J. Ex. 351. (ff) Carlisle V. Graham, L. R. 4 Ex. 361 ; 38 L. J. Ex. 22G. (/)) Biclctt V. Morris, L. R. J Sc An. 47 ; L. Blackburn, Orr- Fuimi V. (' jlquhoiin. L. R. 2 Ap. Ca S53; - Ut.-Goi. V. Lou sdale. L. R. 7 Eq. 377 38 L. J. C. 335, pos t, p. 150. ( i) Chclmsfonl L. C. Bid Ci( V. lo6 USES AMD PROFITS OF LAND. " that scouring and cleansing of a river bed, so as to keep tlie stream in its accustomed course and at its accustomed level, is not only permissible in but obligatory upon a rij)arian 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 OAvners, is actionable in itself " (k). Public navi- gable rivers. Riparian rights in navngable rivers. 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 imnciples {ni). Tidal rivers ixvQ prima facie public for the purpose of navigation by common law {n). Where the public have rights of navigation, the rights of owners of the soil and of riparian owners are subordi- 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 na\dgable river lias the right of access to his OAvn land, and of mooring vessels in the river adjoining his land, and keej)ing them there a reasonable time for the purpose of loading and unloading {q) . But ho has not the further right in aid of access to his land and of landing jUorris, L. E,. 1 Sc. Ap. .^O ; Att.- Gcn. V. Lfmsdale, supy-a ; Duke of Sutherland v. Ross, L. E,. 3 Ap. Ca. 736. (/i) rer cur. Rhodes v. Airedale Commisi., L. R. 1 C. P. D. 392; 45 L. J. C. P. 341. {I) Hale, De J. Maris, c. 3 ; Orr-Ewttiff v. Colquhonn, L. R. 2 Ap. Ca. 839 ; Bell v. Quebec, L. R. 5 Ap. Ca. 93; 49 L. J. P. C. 1. {;«) Marshall v. Ullesivaier Nar. Co., L. R. 7 Q. B. 167; 41 L. J. Q. B. 41. (h) Post, p. 1G2. (o) Alt. -Gen. v. Lonsdale, L. R. 7 Eq. 377 ; 38 L. J. C. 33-5 ; Orr- Eivwr/ V. Colquhoun, L. R. 2 Ap. Ca. 839 ; All.-Gcn. v. Terry, L. R. 9 Ch. 423. {))) At I. -Gen. v. Great Eastern Tt])., L. R. 6 Ch. 572. ('/) Marshall v. Ulleswater Kav. Co., L. R. 7 Q. B. 166; 41 L. J. CHAP. X. INLAND AVATER. 15.7 goods, to erect a -wharf upon tlio bod of tlie river, or any- thing obstructive 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 rijiarian land, and of mooring vessels for the use of the land gives a special value to land upon a navigable river, independently of the public right of naA-igation; by loss of which tlic 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 (.s). An obstruction to navigation, like an obstruction on a Obstruction highway, as being a nuisance, may be removed by any ^^ navigation, person actually obstructed in the use of the navigation ; it is 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 p)erson or his property (t) . If a public navigable river changes its course by reced- Change in ing from one channel and flowing through another, the ''"°"'"^®" public riglit of navigation continues over the new coiu'se ; but subject to antecedent private riglits in the new coui'se which maybe obstructive to the na\dgation (//). Thus a fishing weu' 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). Trivate riglits incident to tlie river in Q. B. 41; Original Ilarthpool Coll. 49 L. J. P. C. 1; A.-G. Straits V. Gibb, L. R. o C. D. 713; 46 Settlements \ . ireini/s, L.R. 13 Ap. L. J. C. 311 ; aecpost, p. 497. Ca. 192 ; 57 L. J. P. C. 62. (*•) Att.-Gt'ii. V. 'IWri/, L. R. 9 (C) Hale, I>. J. Maris, c. 3; per Ch. 423 ; Mars/tall v. Ullcsuater cur. Colchester v. Brooke, 7 Q. B. Nav. Co., supra. 377 ; Bell v. Quebec, supra. (s) Li/on V. Fishmonger's Co., L. («) Bcr cur. Carlisle v, Graham R. 1 Ap. Ca. 662 ; 44 L. J. C. 747; L. H. 4 Ex. 361 ; 38 L. J. Ex. Metrop. Board v. McCarthy, L. R. 220. 7 H. L. 243 ; 43 L. J. C. P. 385 ; (c) Williams v. IJ'ilcox, S A & Bell V. Quebec. L. R. 5 Ap. Ca. 81 ; E. 314. 158 USES AND PROFITS OF LAND. Private navi- gable river. Towing paths. the old eliannel, as a right of fislieiy, do not pass to tlie river in the new channel ; but upon a gradual and insen- sible change in the course of a river, all rights public and jirivate pass with it {w). An inland river may be navigable, without being public, *' If any person at his own charge makes his own private stream to be passable for boats or barges, either by making of locks or cuts, or tli'awing together other streams, yet this seems not to make it juris publici, and ho may apply it to his OA\m private use. For it is not hereby made to bo juris publici unless it were done at a common charge, or by a public authority, or that by long continuance of time it hath been freely devoted to a public use. So likewise if he purchaseth the King's charter to take a reasonable toll for the passage of the King's subjects and puts it in use, these seem to be devoting it to the common use " (.r). The public right of navigation does not, necessarily or presumptively, include the right to use the banks of the river for towing. But a towing path may be estab- lished by custom or by grant, or, as frequently happens, by act of parliament j)assed for the regulation of the navigation. A towing path is a public easement or high- way, restricted to the purj)ose of towing and navigating vessels on the river, and independent of the projierty in the soil {>/). An authority which provides and maintains tlie towing path of a navigable river, and takes toll for its use is presumptively bound to repair it, and is resj)on- 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 (;:). (iv) Ante, p. 1.54. [x) Halo, Be J. Maris, Hargr. Tracts, p. 9. ficQ post, p. 1G2. (y) Ball\. Herbert, 3T. R. 253; Bayley, J., The Kinrjy. Severn Ibj., 2 B. & Aid. 648 ; Badger v. S(juih Yorlcshirc By., 1 E. & E. 347 ; 28 L. J. Q. B. 118; Lee Conservancy V. Button, L. R. 6 Ap. Ca. 685 ; 51 L. J. C. 17, post, p. 485. {z) Wineh v. Thames Conservancy , L. R. 9 C. P. 378 ; 43 L. J. C. P. 167. ( 159 ) CHAPTER XI. SEA AND TIDAL WATEES, SEA SHOEE. The sovereignty of tlie sea— Admiralty jurisdiction— The Territorial Waters Act— civil jurisdiction 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 — jurisdiction over sea shore— public rights over sea shore. Prerogative rights and duties— protection of sea shores— commissioDers of sewers — sea walls. Ports— prerogative of Crown — statutory authority— port dues. "Wreck of the sea— prerogative of Crown— franchise of wreck— Receivers of Wreck. A claim of sovereignty was formerly made on beliaU of Sovereigntyof the Crown of England over all the narrow seas, that is, the *^® ^^' channels of sea surrounding tlie British Isles ; but it is now generally admitted that the open sea beyond low water mark is not witliin the realm, except for certain pm-poses of statutory regidation ; therefore it is not within the jurisdiction of the common law, and is not the subject of property in the Crown or in a subject [a). The Admii-alty Comi in early times exercised juris- Jurisdiction diction over subjects of the realm in respect of offences °^ -^^imiralty. committed npon the high seas, beyond the territorial jurisdiction of the common law. The boimdary between the jm-isdiction 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, De J. Maris, c. i, citing coiiia, L. R. 2 C. P. D. 173; 46 Selden's Mare Clausiun ; The Queen L. J. C. P. 363 ; Blackpool Tier Co. V. A'eif)!, L. R. 2 Ex. D. 175 ; 46 v. Ft/lde Union, 46 L. J. M C 181)' L. J. M. C. 17 ; Harris v. Fran- 160 USES AND PROFITS OF LAND. Territorial Waters Juris- diction Act. high and low water marks being alternately within each jiu'isdietion {h). The Admiralty Coiu-t proceeded according to the civil law ; but by various statutes passed from time to time offences committed ujion the high seas within the Admu'alty jurisdiction were tried and determined ac- cording to the com'se of the common law as if they had been committed iipon land. By 4 & 5 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, s. 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 board 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 is now regulated by " The Territorial Abaters Jurisdiction Act, 1878," 41 & 42 Vict. c. 73. After reciting that " wliereas the rightful juiisdiction 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 sliould be dealt with according to law ;" it enacts, 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 tenitorial 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 Case, b Co. \i)lb; Cockburn, C. J., Queen v. Keijn, L. R. 2 Ex. D. 168 ; see Harris v. The Franconia, L. R. 2 C. P. D. 173. [e) The Queen v. Keyn, L. R. 2 Ex. D. 63; 46 L. J. M. 17; The Queen v. Carr, L. R. 10 Q. B. D. 76 ; 52 L. J. M. 12. CHAP. XI. SEA AM) TIDAI, WATERS, SEA SIIOKE. IGl foreign ship." The Act proceeds to reguhate the trial of the offender ; and hy the interpretation chiuse, sect. 7, enacts that "for the purpose of any offence declared. hy this Act to he 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 Com-t of Admu-alty has also ci\'il jurisdiction, wliicli t'ivil jurisdic- is exercised in rem by seizing and detaining a shiji luitil miralty. security is g'lxen to abide the event of j)roceedings, in all causes of maritime injmies caused by such ship upon the sea and out of the jurisdiction of the common law. The original jurisdiction of tlie 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, damage, sal- vage, prize of war, and other like matters. And by the Admii'alty Com-t Act, 1861, s. 35, the jmisdiction may be exercised either by proceedings in rem or by proceedings in jicrsonam (d) . An arm of the sea is treated in law as part of the terri- Ann of sea. tory which encloses it. An arm of the sea, it is said, " lies within the fauces tcrrce, where a man may reasonably dis- cern between shore and shore" (c). 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 implies an original grant and is proved by e\ddence of long possession and acts of ownership (./"). Tidal rivers are treated in law as arms of the sea as Tidal rivers. {(t) 3 & 4 Vict. c. 65 ; Admii-alty The Queen v. Cunningham, 28 L. J. Com-t Act, 1861, 2-1 Vict. c. 10; M. 66; Conception Bay in New- The County Courts Admiralty Ju- foimdland, Direct U. S. Cable Co. v. risdiction Act, 31 i: 32 Vict. c. 71 ; Anylo-Ameriean Tel. Co., L. R. 2 The Merchant Shipping Act, 18.54, Ap. Ca. 394 ; the River and Gulf of 17 & 18 Vict. c. 104, 8.527. St. Lawrence, Birrell v. Dryer, L. ((•) Hale, De J. Maris, c. iv. R. 9 Ap. Ca. 347. See as to the Bristol Channel, (/) Halo, De J. Maris, c. iv, v. I.. M 1G2 USES AND PllOFlTS OF LAND. regards the property in them, ^^hieh is presumptively in the Cro^Mi as far as the tide Hows ; though it may he in a suhject by grant from the Crown {g). There is no analogous presumptive title in the Crown to non-tidal and inland waters, however large {//). A non-tidal river and a river above the flow of the tide is prima facie the private j)roperty 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 the tide ; nor where the water flows on occasion of an unusual high tide or other exceptional cii'cmnstances (j) . "The river Thames above Kingston and the Severn above Tewkesbmy though there tliey are public rivers, (?'. c. 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 continues, if it flow and reflow, as in the Thames above the bridge" (k). Havens, rivers, creeks and other places where the tide flows are included witl^in the body of the adjoining county, and therefore within the jurisdiction of the sheriff and coroner and other officers of the common law (/). Eight of na- Tidal rivers are prima facie public for the pm^poses of navigation {m) . Non-tidal rivers, though prima facie private projicrty, 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 circum- vi^ation. [g) Hale, De J. Maris, c. iv ; i^fir {k) Hale, Be J. Maris, Harg. cur. Williams y. Wilcox, 8 A. & E. Tracts, 1 2 ; Home v. Mackenzie, 6 333; Gannv. Whitstable, 11 H. L. CI. & F. 628. C. 192 ; 35 L. J. C. P. 29 ; Ali.-G. {I) 3 Co. Inst. 113 ; 4 Co. Inst. V. Lonsdale, L. E. 7 Eq. 388 ; 38 135 ; VcUhasen v. Ormshij, 3 T. E. L. J. C. 335. 315 ; The Queen v. Cunningham, (A) Uristou) V. C'ormican, L. E. 3 Bell, C. C. 72 ; 28 L. J. M. 66. Ap. Ca. 641. (»?) Miles v. Hose, 5 Taunt. 705 ; (i) I'earce v. Scotcher, L. E. 9 Q. per cur. Colchester v. Brooke, 7 Q. B. B. D. 162; ante, p. 153. 373. {j) i2t«Y! V. iJ/i;;«-, L. E. 8 Q. B. (h) Pearce v. Scotcher, L. E. 9 D. 626 ; 51 L. J. M. 64. Q. B. D. 162. See ante, p. 158. CHAP. XI. SEA AM) TIDAl, WATERS, SEA SHORE. 1G3 stances of each river, arc necessary for tlie full and con- venient passage of vessels and Loats along- tlie cliannel; " therefore in a river in ■\^■hiell at oLb tide the vessels navigating cannot float, it includes the right of grounding upon the hod of tlie river and there resting until the tide serves for continuing the navigation (o). It also includes the right of anchoring in the bed of tlie river, whenever necessary for navigation (p). "The right of soil in arms of the sea and public navigable rivers, which the Crown prima, 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 punish nuisances in all rivers, Avhether 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 na^dgable river is not a part of the sea within the meaning of the Act, 48 Geo. III. c. 75, providing for the biuial of dead bodies cast on shore from the sea (.s) . The sea shore, as well of the ojDen sea as of arms of the Property of sea and of tidal rivers, between high and low water marks, is g^^ ^ii" j^g prima facie the property of the Crown ; but it may be the private properiy of a subject, by title of grant or of prescription {t) . 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 {n) . — The power of the Cro^vn to Crown grants. (o) Colchester \. BrooliC, 7 Q. B. v. Ward, -t A. & E. 384; Alt.-G. 339. V. Terry, L. R. 9 Ch. 423. {p) Gannx.Whitstable, W'R.'L. (v) IFoolivicfi Churchicardciis v. C. 192 ; 35 L. J. C. P. 29. Jiobcrlsoii, L. R. G Q. B. D. Go4 ; (q) Fer ciir. Colchester v. Broolc, 50 L. J. M. 87. 7 Q. B. 374 ; Gann v. IVhitstablc, 11 {t) Hale, Le J. Maris, c. vi. H. L. C. 192 ; 35 L. J. C. P. 29. («) Manor of Penryn v. Holm, (»•) Hale, Dc J. 3faris, Harg. L. R. 2 Ex. D. 328 ; 46 L. J. Ex. Tracts, 8 ; per cur. WiUiams v. 506; Att.-G. v. Chambers, 4 D. M. Wilcox, 8 A. & E. 333 ; The King & G. 206 ; 23 L. J. C. 662. V. Russell, 6 B. & C. 5G6 ; The King m2 164 USES AXI) TROFITS OF LAND. alienate Crown lands, including tlie sea shore, was restricted by tlie statute 1 Anne, c. 7 (repealed by the Statute Law Revision Act, 18G7) to leases for a term of thirty-one years or three lives. This statute was practically superseded by the statute 10 Geo. IV. c. 50, which empowered the Com- missioners of Woods and Forests to sell Crown lands of all kinds. And by 29 & 30 Vict. c. 62, the powers of the Commissioners of Woods and Forests, as regards the fore- shores of the United Kingdom, were transferred to the Board of Trade, (rrants of sea "The sea shore may not only belong to a subject in 8 loie. gi'oss, but it may be parcel of a manor," and " dc fado it many times is so ; and perchance it is parcel of all such manors as by prescription ]iave royal fish or wrecks of the sea within their manor; for these are perquisites that happen between the high water and low water mark. He therefore that hath wreck of the sea or royal fish by pre- scription infra maneriiini, it is a great presumption that the shore is part of the manor, as otherwise lie could not have them " (r). A grant of a manor " with "wreck of the sea," though not in terms conveying the sea shore, may "be sufficiently explained by evidence of possession and owner- sliij) to show that the sea shore was included as parcel of the manor (w). And in general an ancient grant of a manor described by name without describing the boundaries may be construed by evidence of modern possession and usage as including the sea shore (x) . Limits of sea The sea shore to which the presumptive title of the Crown or of a grantee of the Crown extends is bounded by the line of " ordinary" high tides ; which is defined to be " the line of the medium high tide between the springs and the neaps," ascertained by taking the average of these medium tides dmnng the year; because all land below that line is more often than not covered at high water, (v) Hale, Jh- J. Maris, Ilargr. 413; Jlasiinffs v. IvciU, L. R. 19 Tracts, 27. Eq. SSI ; Lord Advfjcale v. Blantyrc, (to) Att.-G. V. JoMs, 2 11. & C. L. E. 4 Ap. Ca. 770 ; Lord Advo- 347 ; 33 L. J. Ex. 249. caie v. Yowir/, L. E. 12 Ap. Ca. {x) Be(uif';rt v. Hivcamca, 3 Ex. 544. CIIAr. XI. SEA AXD TIDAL WATERS, SEA SHORE. 1 G-; find tlicrcforo not capable of ordinary occupation (ij) The land above the ordinary high water mark as above defined and which 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 "the 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 Cro-s\Ti of " all those sea-grounds, shores, and fisheries," described as extending fi'om 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 {h) . On the other hand, " lands from which the sea is gradually and imperceiDtibly removed by the alluvion of soil, becomes the property of the person to whose land it is attached, although it has been the fundus man's, and as such the j)roperty of the king" (c). The sea shore between high and low water marks is part j,rrisdiction of the adjohnng county, as regards the jimsdiction of the over sea shore, common law (r/). It is pn'nnl facie extra-parochial, but it may be within a parish, and it lies upon a parish claiming 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 {c). Aceord- (v) Att.-G. V. Chambers, 4 D. M. 485. & G. 206 ; 23 L. J. C. 662. (p) Gifonlv. Yarborough, o Bing. {•) Lowe V. Ooirtf, 3 B. & Ad. 165 ; The Ehig v. Yarborough, 3 B. 863 ; Maddock v. IVallasoj Board, 55 & C. 91 ; Hale, JDc J. Maris, Ilargr. L. J. Q. B. 267. Tracts, 14. (a) l\r cur. Scratton v. liroun, 4 (/de Navhjaftoii, L. R. 6 Ap. Ca. C. D. .58 ; 49 L. J. C. 377. 273. (wf) ircst Xorfolk Farmers' Co. v. (/.) Case of the Isle of Ely, 10 Co. Archdale, L. R. 10 Q. B. D. 751 ; 141 ; per cur. Hudson v. Tabor, L. R. 55 L. J. Q. B. 230 ; XUro-F/iosphate 2 Q. B. D. 293 ; 4G L. J. Q. B. Co. v. London Docks, L. R. 9 C. D. 463 ; see the statutes 6 Hou. VI. 503 ; cited ante, p. 145 ; as to 0. 5 ; 23 Hen. VIII. c. 5; 3 & 4 daiuas^es, eoc Fust v. Victoria Dock Will. IV. c. 22 ; and the Laud Co., L. R. 30 C. D. 113. Drainage Act, 18G1, 24 & 25 Vict. ins rsEs AM) I'Korrrs of lam). telinlf. But a frontager may ho subject to sucli an obli- gation bj prescription or custom ; and he may be com- pelled to perform it by tlie 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 j^redecessors in title under similar circumstances. But no obligation can be inferred from the mere fact that he has ■ voluntarily, and without any claim or order made against him, maintained and repaired a wall for the protection of his o^vTi land; though it has also served to protect the land of the other frontagers (o) . Proof of liability for ordinary repau\s is not sufficient 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 di'owned and becomes unprofitable ; but if tlie land is drowned by the extra- ordinary violence of the sea without his fault, it is no waste" ((/). — A frontager has the right of erecting a sea wall or such other work as may be necessary for the pro- tection of his own land, although the effect may be injiu-ious to the land of others. Upon this principle it was held that commissioners of sewers ajopointed 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). («) Keiffhiei/'s Case, 10 Co. 139 ; Ap. Ca. 449 ; 53 L. J. M. 113. The King v. Essex, 1 B. & C. 477. ('7) Co. Lit. 53 h\ Keighlci/s Case, (0) Hudson V. Tahor, L. R. 2 Q. 10 Co. 139 b; ante, pp. 18, 92. B. D. 290; 4G L. J. Q. B. 4G3. (>) The King v. Commiss. of Pag- (p) The lung v. Essex, 1 B. & C. ham, 8 B. & C. 355. 477 ; The Queen v. Fobbing, L. E,. 11 ( IIAl'. XI. Si: A AM) 11 DAI. ^^A•1EKS, SKA SHORE. 1 G9 " Ports are not merely geograpliieal 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 hounds are necessarily defined hy the authority which creates them, and the area embraced within tliose limits constitutes the port" (.s). The term is also used for fiscal jmrposes as the place of taking custom duties imposed hy Act of Parliament, the limits being fixed by the Act ; these limits may be dilferont from tlioso of the legal port within which port dues may be chargeable. The limits of the port or district for j)ilotage pm'poses may also be different, as fixed by other statutes (/). — The term " port " is also used in a popidar or commercial sense in charter- parties, i^olicies of insm'ance, 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 tlio document in question willi reference to the circimistanees {ii). It was formerly a prerogative of the Cro^^^l to appoint Franchise of ports ; also to grant ports to bo 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 o^\^ler of the land. And the owner of land is entitled to make charges for such use of liis land in connection with a port, without any title to the port as a franchise (ir). — "Ports are also acquirable by («) Per cur. Nicholson \. IFiUiams, 15 Q. B. D. 680. L. R. 6 Q. B. 641 ; 40 L. J. M. («•) Halo, Be J. Jfuris, Part II., 166. where a oatalog-iie of theu exi.sting (t) Brett, M. R. Garston Co. v. ports, with their mcmberf!, is given. llicku; L. R. 15 Q. B. D. 587 ; Ilargravi's Tnuts, p. 48. Nicholson v. WiUiams, supra. [w) Hale, Be I'ort, Hargr. Tr. («<) Garston Co. v. Ilickie, L. R. 73, 76 ; Bayley, J. BhmdcU v. Cat- 170 USES AND TKOFITS OF LAIVU. Disturbance of franchise. Statutory authority over ports. 2')rcscri2')tiou, without any otlier formality appearing, tliougli presumed; c.v (fiiitu nutate tenijjoriii omnia pncsuniuntur rite acta " (.r). 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 he matter of record, cannot he directly proved (//). " 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 arrival and unloading of sliips is a distui'bance of the francliise. "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 unlade his own private goods which are not customable upon his own land ; for tliis was no accroachment of a port at common 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 places are as to that piu'pose and end ports" (;:). 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. c. 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 Treasmy. 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 Cliannel Islands, and declare tlie limits thereof, and appoint proper places within the same to be legal cjuays for tlie lading and unlading of goods, and declare the bounds and extent of any such quays, and annul the Exeter v. temll, B. & Aid. 309 Warmi, 5 Q. B. 773. («) Halo, De Tort, Hargr. Tracts, 54. [y) JThUy. Horner, Cowp. 102. {z) Hale, De Port, Hargr. Tracts, 51, 53. CHAT. XI. SEA AM) TilML WATERS, SEA SHORE. 171 limits of any port, already aiipointod or to be hereafter set out and appointed, and declare tlio same to be no longer a port, or alter or vary the names, bounds and limits thereof." It is fui-tlior provided, "that any port so appointed shall be deemed to be a port witliin the meaning and for the pm-poses 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" (n). There is commonly incident to public ports the right to Tort 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 (i) . The right to take dues may be proved by long usage, though the grant was \vithiu 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 all subjects to use the range Avithin the limits as a port, to bring theii' ships there for safety-, and to trade there, and unload customable goods would be consideration sufficient in law to sujiport the grant of the duties" (r/). There may be 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 harbom-ino- o and lading and imlading ships ; and of measimng or pro- viding the means of measming goods imported. The non- perfomiance of these obligations may render the ovmcr liable to proceedings against him; but it is no answer to a demand of port-dues, unless they are claimed as charges for specific ser\dces (e). {(i) Nicholson v. Williams,!,. K. Jlfai/or of JExchr y. Jf'anrii, 50 B 6 Q B. 632 ; 40 L. J. M. 159. 800. {b) Hale, De Fort, Hargr. Tracts, (<■) Fer cio: Mayor of Exeter v. 51. 74. Warren, 5 Q. B. SOO ; Jadins v. ((■) IFiill V. llurner, Cowp. 102. JIancy, 2 C. M. & E. 393 ; Hale, [d) Mansfield, C. J., Yarmouth v. De Fortibus, c. vi, Hargr. Tracts,* Eaton, 3 Burr. 140G ; per cur. 70. 172 USES AM) rilOFlTS OF LAND. Wreck of the sea. Prerog-ative of Crown. Franchise of wreck. Receivers of ■wreck. Wreck of the sea, as to tlio property tlierein, is of two kinds : namely, goods east upon the hind or sea shore ; and goods found in the sea. Goods cast upon the sliore by shij)AM'eck (Avliicli is tlic strict legal meaning of the term wreck), are within the jurisdiction of common law, and by prerogative right belong to the Crown. Groods cast u]}on the shore which are not legally wreck, may bo taken by 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 oi jetsam, JJotmm and htgan, meaning respectively goods cast into the sea, goods float- ing, and goods fastened to a buoy for recovery. This kind of wreck, if foimd in the sea between higli 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 case 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 i(j) . By the Merchant Shipping Act, 1854, 17 & 18 Vict. c. 104, s. 439, " The Board of Trade shall throughout the (c) Stat. West. 3 Ed. I. c. iv, de- claratory of common land, 2 Co. Inst. 106 ; Stat. I'rcrog. Itcgis, c. xiii, Statutes, Revised ed., p. 132 ; Hale, iJe J. Maris, Hargr. Tracts, 37 ; Constable's Case, 5 Co. 106. (/) Hale, Be J. Maris, Hargr. Tracts, 41; 5 Co. 107, 108, Coti- stable's Case. (ff) Hale, De J. Maris, Hargr. Tracts, 41 ; Constable's Case, 5 Co. 106. CHAP. XI. SEA AND TIDAl- WATERS, SEA SHORE. 173 United Kiiig(l(rai liavo the general superintendence of all matters relating to wi-eck," 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 sliall ha\o power, with the consent of the Treasury, for and on bi-lialf of her Majesty, to purchase all such rights to wreck as may be possessed by any person or body cor- porate, other than her lEajesty" ; and for the purpose of facilitating sueli punliases, the provisions of the Lands Clauses 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 jet'sam, flotsam, lagan, and derelict, found in or on the shores of the sea or any tidal water." 174 USES AND rilOFlTS OF LAND. CHAPTER XII. INLAND AND SEA FISHEEIES. Fisheiy in iiJand waters Non-tidal rivers. Fishery in inland waters — non-tidal rivers. Fishery in land of another — several fishery — free fishery and common of fishery — qualified fishery. Fishery in the open sea — Sea Fisheries Acts. Fishery in aims of the sea and tidal waters — Crown gi-ants »f fishery — prescriptive fishery — non-tidal waters. Fishing weirs — in navigable rivers — in private rivers. Royal fish — salmon — oysters and shell fish. The right of fishing in inland water which is private property, as a lake or pond, is an ordinary incident of the ownership of the land and water. It is sometimes called a " several fishery," 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 affords presumptive evidence of a title in fee {h). And the term "fishery" in a deed of conveyance, as descriptive of the property conveyed, may pass the land itself covered with w^ater, if apparently used with that intention (c). 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. («) Per cur. Ilolford v. Baileij, 13 Q. B. 444. {b) JJuhe of Somerset v. Fogwell, 5 B. & C. 87-5; post, p. 176. (c) Marshall v. Ullcswater Nov., 3 B. & S. 732 ; 32 L. J. Q. B. 139. CIIAV. XIT. 1NI.\M) AND SEA FISHERIES. 170 It is prosuiiiptively au iuoiJont of tlio property in tliu Lank and bed of tlio river (d). But the exercise of an exclusive right of fishery iu a river is pn'nid facie evidence of j^iro- perty in the bed of the river, and may be sufficient in connection with the ciix-unistances to rebut the presump- tive right of the riparian owners (J) PROl TiS OF LAND. tliem {g). 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 appiu-te- nant to manors ; and this not only in navigable rivers and arms of the sea, but in creeks, ports and havens, and in certain kno^Ti limits in the open sea contiguous to the shore " {h). So it was held that a fishing weu- 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 {i). Weirs in In private rivers, that is to say, inland non-tidal rivers, pn\atenvers. ^.j^g^j^gj, iia\'igable or not, the right to erect weii\s and dams, whether for fishing or for other pui^poses, Avith the effect of penning back or diverting the water, may be acquii-ed against other riparian proprietors by grant or by prescription or other title applicable to such rights ; but no such right can be acquu'ed against a public right of navi- gation (». By the Salmon Fishery Act, 1861, 21 & 25 Yict. 0. 109, s. 12, for the protection of the Salmon Fishery, the use of fishing weirs for catching salmon was prohibited 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) . Eoyalfish. By the statute Prcrogativa Regis, 17 Ed. II. c. 11, which is declaratory of the common law, " the king shall have whales and sturgeons taken in the sea or elsewhere within the tealm, except in certain places privileged by the king." " Royal fish are so caUed because of common right such {g) Chester Mill Case, 10 Co. 314. 137 i; Williams \. Wilcox, 8 A. & {j) Rollex. Whyic, L. R. 3 Q. B. E. 314. 286 ; 37 L. J. Q. B. 105 ; Leconfield {h) ilale, Be J. Claris, Hargr. v. Lomdale, L. R. 5 C. P. 657 ; 39 Tracts, 18. L. J. C. P. 305 ; ante, p. 151. (i) Williatns v. Wilcox, 8 A. & E. {k) Leconfield v. Lonsdale, supra. CllAl'. Xll. INLAND AND SEA FISHERIES. 183 fish, if taken Avitliiii the seas parcel of the dominion and Crown of England or in any creeks or arms thereof, belong to the Cro'wii; bi\t 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 tliis francliise or royal perquisite, by grant and by prescription, witliin 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 appui'tenaut 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 fi'om 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 livers and in the sea round the coasts belongs to the CroTVTi jure corotKs ; 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 {in) . — The public right of fishing in the sea Oysters and and tidal Avaters includes the taking of oysters and shell ^ ^ fish, subject to the statutes passed for the regvdation 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 ai-e a valuable commodity (o) . (0 The Statutes, Revised Ed. p. {m) GammeWs Case, 3 Macq. 419 ; 132 ; Hale, Dc J. Maris, Hargr. MvDoiiall v. Lord Advocate, L. E. Tracts, 1 3; .l/"i7'1) TROFITS IN LAND OF ANOTHER. relatively to tlie land over wliicli the easement is exer- cised ; tlio 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 tlie tenements become united in one owner, all rights of use and enjoyment for whatever piu'poses become the ordinary incidents of ownership ; and an easement that had previously been appm-tenant to one of them over the other, instead of continuing as a separate right, becomes merged in the fiill ownership. A person cannot have an easement or servitud'e over his own land ; or as expressed in the language of the civil law, nuUi res Easement in sua servit {h). — An easement, properly so called, can be S^*^^^- claimed only as appurtenant to land ; it cannot be claimed in gross, that is, as a separate right independent of a dominant tenement. " There can be no such thing, 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 taking- profits fi'om 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 appurtenancy. ^^^^j if^ ^mi gg far as, it serves for the 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. [h) Digest, L. 26, cle serv. prccd. ; Midland By., L. R. 3 Ch. 311. Bedpost, pp. 207, 310. (d) Font, p. 194. (c) Cairns, L. C, Eangeley v. {e) See post, pp. 327, 348. ( Il.VV. I. EASEMENTS. l!Jl Beyond tlioso limits tlicsc incidents cannot Lo made appm-tenant to land and the occupier cannot prescribe for tliem ; but lie must claim tliem by an ordinary con- Ye3'ance " (./'). For instance an easement of way over land of another for all purposes whatsoever cannot be claimed as ajjpurtenant ; the claim must be restricted to such purposes only as may be for the use and convenience of the dominant tenement. *' It wovdd be a novel incident annexed to land, that the owner and occupier shoidd, for purposes wholly unconnected with that land, and merely because he is cuoier and occupier, have a right of road over other Land; and a grant of such a pri^•ilege or easement can no more be annexed, so as to pass A^-ith the land, than a covenant for any collateral matter" {(j). But a grant of a way expressed to be " for all piu'poses " must be construed presumptively to mean all purposes connected with the land of the grantee, so that it may be taken as legally appm-tcnant. " There is no autho- rity for holding that the generality of this expression ' for all purposes ' makes a right of ^^'ay not appur- tenant, where it is expressed to be to or from a particular piece of land "(//). — 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 mill (,/ ) ; the right of keeping a mooring pile fixed in a river for the use of a wharf (/.). — The aj-ipurtenancy may be to the tenement in its entirety only, or to every part of the tenement, according to the nature of the subservience (/•) Willes, J., Bailey v. Stevena, p. 207. 12 C. B. N. S. 91 ; 31 L. J. C. P. (t) Moodi/ v. Steqghs, L. R. 12 226 ; Jcssel, M. R., BattUs v. Ti/s- C. D. 2G1 ; IS L. J. C. G39 ; Hoarc sen-Amhnnt, L. R. G "C. D. 507; v. Mdrop. Board, L. R. 9 Q. B. q»ie, p. 187. 29G ; 43 L. J. M. 65. iff) Ackroyd v. Smith, 10 C. B. (./) Wood y. llcuctt, 8 Q. B. 913. 164. {^) La>ieastcr v. Etc, o C. B. N. S. (/() Mcllish, L. J., Thorpe v. 717. Brumjitt, L. R. 8 Ch. 658, posi, 192 USES AND PROFITS IX LAND OF ANOTHER. Positive and negative easements. of tlie riglit. Thus a riglit of way to a lioiise and yard was lield to be appurtenant to tlie entii'e 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 appui'tenant to the yard (/). But a right of way to land, merely as land, is generally taken as subservient to every pai-t of the land for legitimate pm-poses; so that upon severance of the land each separate tenement carries with it a right to the way for its own use, as an appiu'tenance [m). A right of way awarded under an Inclosm^e 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 (//). 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) . Easements are distinguished, according to the civil law, as 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 recpiire 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 i)reventiiig the owner of the servient property from using it in any manner inconsistent with the easement. " The affirmative casement differs from the negative easement in this, that the latter can under no circumstances be interruioted except by acts done upon the ser\'ient tenement ; but the former constituting, as it does, a direct interference with the enjoyment by the servient {I) Bower v. Uill, 2 Bing. N. C. 33'J. Un) Jessel, M. R., Newcomen v. (Jouhon, L. R. 5 0. D. 141; 46 L. J. C. 461 ; JJynevor v. Tcnnant, L. R. 33 C. D. 420; 55 L.J. C. 817. {n) Newcomen v. Couhon, supra. (o) Codling v. Johnson, 9 B. & C. 933. (HAT. I. KASK.MEXTS, lO.'j owner oi' liis tencmeut, may l)o tlie suljjoct of legal proceedings as well as of pli3-sical inteiTui)tion. The passage of light and au' to yoiu' neighbour's windows may be physically inton-uptod l)y you, but gives you no legal grounds of complaint against him. The passage of water from his land on to yom-s may be physically interrupted, or may bo treated as a trespass and made tlie ground of action for damages, or for an injimction, 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 (;;). But if it be capable of i)liysical interruption, though not actionable, it is immaterial that the interruption of it may not be conveniently 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 enjojTnent of it before it has matm-ed into a right is not an actionable wrong (q). — Examples of negative easements are : tlio 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 di-ainage, or noxious vapom's 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 fi'om adjacent land or buildings is a positive easement, because it involves a positive and continuous pressure upon the adjacent soil or (o) Sliirf/,'s V. Briihiman, L. R. L. J. Q. B. G89. 11 C. D. 864 ; 48 L. J. C. 790. (r) Sturges v. Bridgman, L. R. [p) SCiirgcs V. Jhidgmati, supra. 11 C. D. 852; 48 L. J. C. 785, (q) Selbonio, L. C, JJallvn v. post, p. 221. Angus, L. R. 6 Ap. Ca. 790 ; 50 L. O 194 rSES AND PROFITS IN LAND OF ANOTHKK. buildiug, and tlie constant use of the soil or Ijuilding to resist the pressui'e (.s). Licence to use ^^^ Owner of land may grant to another the use of his land. land for various pui'poses that are not appiu-tenant 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 wrongful, 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, Avhich without it had been un- lawful ; as a licence to hunt in a man's park, to come into his house, are only actions which, without licence, had been unlawful " (/). 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) . A ticket of admission to a theatre, or a ticket of admission to a stand upon a racecourse operates as a mere licence justifying the act licensed, but giving no further interest (y). 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 maintain an action in his own name against a thu'd party ; he could- only sue in the name of the grantor, and with his per- mission {ic). So, a mill-owner who had a licence from the proprietors of a canal to take water for the use of his mill, was held to have no remedy against a thii-d 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 (s) Dalton v. Angus, L. R. 6 Ap. {v) Tayler v. Waters, 7 Taunt. Ca. 740 ; 50 L. J. Q. B. 689. 374 ; Wood v. Leadbitter, 13 M. & {t) Vaughan, C. J. Thomas v. W. 838. Sorrell, Vaufrhan, 351, adopted in («') IIUl v. Tuppcr, 2 H. & C. Wood V. Leadbiiter, 13 M. & W. 844. 121 ; 32 L. J. Ex. 217. (m) Wood T. Lake, Sayer, 3; 13 (.»;) Whalci/ v. Laing, Laing v. M. & W. 848 (a) ; Webb v. I'aUr- Whaley, 6 H. & N. G75 : 27 L. J. mster, Poph. 151. Ex. 422. ClIAl'. I. T.ASKMKNTS. 195 of permission to construct a jetty upon the foreshore and bed of tlio 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 (//). But actual occu- jxition under sucli licence may be rateable property (;:) , A licence to use land for any piu'pose may be given Revocation of without deed or writing ; but however given, whether by *^®°^^* deed, Avritiug, or by parol, it is essentially revocable. " A licence under seal, provided it be a mere licence, is as re- vocable as a hcence by parol " (r/) . An express contract for the enjoyment of the licence would not preclude the licensor from revoking it in "fact ; subject to liability 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 inclosm^e upon a race course, though sold for money, gave the buyer only a licence, which the proprietor coidd revoke at any time at his mere will and pleasm-e, thereby putting the licensee in the position of a trespasser if he refused to quit, and, so far as concerned the revocation, T\ithout the condition of returning the money ; and that the right of entering and remaining upon the stand and inclosure for a certain tune could not be effectually granted otherwise than by a deed (c). — A licence to build ujrton 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 inciu'red (•). A licence coupled with a valid grant of property can- Licence , p , ,1 , ,c \ ^^ X coupled with not be revoked so as to deteat the grant. A licence to a grant. person to hunt in a man's park and cai'ry away the deer killed to his ow^l use ; to cut dovni a tree in a man's groimd 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 canying away the deer killed and tree cut do-^oi they are grants." If the grant be good, the licence to enter upon the (wj) Per cur. Ackroyd v. Smith, 10 330. C. B. 188. [p) WaUis v. Rarrimi, 4 :^^. & (m) Per cur. Wiclham v. JIawkcr, W. 538. 7 M. & "W. 77, citing Duchess of {q) J'erri/ v. Fitzhowe, 8 Q. B. Korfolh V. iriscmaii, Man-wood's 757. Forest Law, p. 286, 3rd ed. (») Bufeij y . Henderson , 17 Q. B. (o) Ante,Y>. 53. ^qc post, pp. 329, 574 ; 21 L. J. Q. B. 49. 198 USES AXJ) PROFITS IX LAXD OF AXOTHER. Licence with parol grant. Licence coupled with grant is assigTiable. land to take tlio subject of it is irrevocaWe by tbe grantor, who can do nothing in derogation of his own grant (.s). Upon this principle if goods are sold, being upon the land of the seller, npon the express terms that the buyer may enter and take them away, the licence thus given for that purpose is irrevocable (/) . But such a licence is not neces- sarily implied in law upon a sale of goods from the mere fact of the goods then being upon the land of the seller {u) . An auctioneer employed to sell goods upon certain premises •uith Hcence 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 parol, coupled with a grant, is as u-revocable as a licence by deed, 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 " (w). Upon this principle a contract for the sale of an interest in land -o'liich fails to satisfy tlie requirements of the Statute of Frauds, though it may operate as a licence to the buyer to act under it imtil revoked, is revocable by the seller ; as a merely verbal sale of a growing croji of grass together with a licence to enter upon tlio land to take it (x) ; or an agreement for a right of shooting over land and taking away the game killed (?/). A licence coupled with a grant is assignable with the property or interest granted : thus a licence to enter upon (.«) Vaughan, C. J., Thomas v. Sorrcll, Vaiighan, 351, adopted in Wood V. Lcadbitter, 13 M. & W. 844 ; and in Muiikeit v. Hill, 5 Bing. N. C. 707. (<) Wood V. Mmley, 11 A. & E. 34. (m) Williams v. Morris, 8 M. & W. 488. [v) B. & Taplin v. Florence, 10 C 744; 20 L. J. C. P. 137. [lo) Wood V. Leadbitter, 13 M W. 84.5. {x) Crosby v. Wadsworth, 6 East, G02 ; Carrington v. Roots, 2 M. & W. 248. {y) See Webber \. Lee, L. E. 9 Q. B. D. 315; 51 L. J. Q. B. 48.5. tllAl*. I. KASKMENTS. 199 land for tlio purpose of cuttiug and carrying away wood sold, is assignable ^^dtll the vested property in the wood (s). A licence to fish, hunt, or shoot and carry away the animals tilled, being a profit a, prendre, is assignable {a) ; and the person entitled to sucli profit may give licences to others to act under it{b). A licence to search for and raise minerals and convert them to the licensee's o■\^^l use passes an assignable interest (c). Easements are restricted by law to certain kinds of use ; Easements . PI- IP admissible in whicli must satisfy the general conditions ot being cleli- la^y. nitely limited in then- effect upon the servient tenement, and of being beneficial to the dominant tenement. " It is not in the power of a vendor to create an}- 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" (r/). 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 enjojonent, and not for mere pleasm-e" {c). — The easements generally Specific ease- recognised by law may be referred to various specific kinds, ™ whicli are hereafter treated separately in detail ; namely, ways, light, air, water, support, fences. Claims to easements, not distinctly referable to any of Tarticular 111 ii 1 ■ i. easements, the above kinds, also occur, and have become the subjects of judicial decision, as in the following cases ; whicli, 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 naihng trees was held to be a claim to an easement, which required to be specially (;) Falmer''s case, 5 Co. 24 b ; (r) Mimkrtt v. Hill, o Bing. N. C. Jiasset V. Matinard, Cro. Eli»- 819. 694. («) Wickh'am v. Hawker, 7 M. & {d) Per cur. Aekroi/dv. S»iilJi, 10 "W. 63. C. B. 188, ante, pp. 186, 190. (b) Jones v. Jfilliams, 46 L. J, {e) Fer cur. Momney v. Ismaij, 3 M. 270. H. & C. 486 ; 34 L. J. E.\. 56. 200 I'SES AND I'llOl-lTS IJ^ LAM) OF AAOTllEll. pleaded in an action of trespass (,/'). A claim incident to a fishery of drawing- fishing nets to land upon the banks of a private river, was held to be an easement which was established by the usage {g). 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 tlie dominant tenement had done so for the use of their families only (//). 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 accj[uired by grant or prescrip- tion (/). A claim by the owner of a wharf adjoining a public navigable river to fix piles in the bed of the river for the pm-pose of mooring and unlading 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- mained his property (y). So there maybe an easement of placing a fender on the bank of a stream for keeping up the water of a mill (/.). 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 {m). A facia formed of cement attached to a liouse, 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 pai-t of the house, and not as a mere easement or use of the house to which it was attached (w) . — An ease- ment may be aj)purtenant to a messuage for the occupiers to use a particular pew or seat in the parish church for attending divine service ; and the title to such easement may (/) Uawkinn v. Wallis, 2 Wils. river, see Corij v. Bristow, L. R. 173. 1 C. P. D. 54; 45L. J. M. 145. (.'/) Gray v. Bond, 2 B. & B. G67. (/) Woody. Ilcwett, 8 Q. B. 913. (A) Drcwdl V. Towlcr, 3 B. & [I) Hoare v. SLclroj). Board, L. E. Ad. 735. 9 Q. ]i 296 ; 43 L. J. M. G5. (i) Svffidd\. Broun, 33 L. J. C. {m) Moody v. Stcgtjhs, L. E,. 12 249. C. D. 261 ; 48 L. J. C. 639. {j) LancaHter v. Eve, 5 C. B. (w) Francis v. Uayward, L. E. N. S. 717. As to moorings in a 22 C. D. 177 ; 52 L. J. C. 291. CHAP. I. EAbKMEMS. 201 be founded upon a faculty granted l)y tlio Ordinary, or upon prescription wliicli implies sucli a faculty. But " it is only on account of the pew being annexed to a liouse that the temporal Courts can take cognizance of it" (o). Such an easement being the residt 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 churcli () Fhich v. Gnat irestern Ky., '256 ; Mt'llish, L. J., Vitiled Land L. R. 5 Ex. D. 254 ; Xewcomcn v. Co. V. Great Kustern Jii/^h.B,. 10 Couhoii, L. R. 5 C. D. 133; 46 Ch. 590; 44 L. J. C. 688. L. J. C. 459. ( /■) Jfarris v. Jenkins, L. R. 22 (i) Uni/ed Land Co. v. Great C. b. 481 ; 52 L. J. C. 437. Eastern I!if., supra. {ff) McUish, L. J., United Land {J) Serjf' v. Acton Local Board, Co. V. Great Eaatern lit/., supra; L. R. 31 C. D. 079; 65 L. J. C. Jessel, M. R., Cannon v. riUarK,Li. 509. 206 USES AM) PROFITS IX LAND OF AXOTHKR. Mode of use. poses compatible with tlie space remaining oi^en ; so that the space having afterwards been built over and converted into a dwelling-house, it could no longer be considered open for the piu-pose of the grant, and gave no right of way for the dwelling-house (/«•). " In the absence of any clear intention of the parties the maxim that a grant must be construed most strongly against the grantor must be a2:)plied ;" and a general grant of way would be construed as a grant for all piu'poses connected with the dominant tenement (/). — As regards the mode of use, a way "on foot and for horses, 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 over a passage at the side of the dock " for him and his workmen and all persons by his authority or permis- sion " was construed as limited to foot passengers only, excluding carnages and horses (n). A grant of the right of making a railway for the carriage of coals and minerals w^as construed as not admitting the use of the railway for canying passengers (o). A right of way may be granted for the limited purpose of, building upon adjoining pre- mises and diuing the continuance of the building only {])). Limitation of ways by prescription. In a prescrii:)tive right of way, which imjilies an original grant, the limitation of the way is inferred from the evi- dence of the use ; for it is presumed that the use has been according to the grant (q). " If a way has been used for several purposes, it may be ground for inferring that there is a right of way for all pm-poses ; but if the evidence shows a user for one j)urpose or for particular purposes only, an inference of a general right woidd hardly be pre- {k) Allan V. Gomme, 11 A. & E. 759 ; Finch v. Great Western Ibj., L. R. 5 Ex. D. 259. {I) Willes, J., Williams v. James, L. R. 2 C. P. 581 ; 36 L. J. C. P. 256. (w) BrimlM V. Hall, 1 Q. B. 792. («) Cousens v. Eosc, L. E. 12 Eq. 366. (rt) Durham (^ Sunderland Ry. v. Walker, 2 Q. B. 940. [p) Ardley v. St. Pancras, 39 L. J. C. 871. {q) Ballard v. Dyson, 1 Taunt. 279. CHAl*. I. KASEMHNTS. 207 Slimed " (r). Thus proof of the use of a way for carriages does not establish a claim to use the way for di-iving cattle ; " a can'iage -way will comprehend a horse way, but not a di-ift way for cattle " (s). A prescriptive use of a way for agricultm-al purposes does not include the right of canying minerals from the dominant tenement {f). — Also a pre- scriptive way is ;;r//;^«/r/6'/(? limited to the requirements of the land "\\hen the use took place, and cannot be enlarged from time to time to the increase of the bm-then upon the servient tenement. A right of ^vay to a field would • pre- sumptively only be applicable to the land used as a field, and not extend to the use of a manufactory subsequently built upon the field (^^). A right of way immemorially used. for agricidtm-al land and for agricultm-al buildings only, was held not to be applicable to carting materials for the conversion of the land into building land {v).. An owTier of agricultiu\al land with an appiu'tenant way over adjacent land, having sold the land and reserved the minerals, was held to retain no right of way for working the minerals (?r). But a general right of way for all pur- poses may be inferred from c\'idence of using the way for now purposes as often as occasion required (x) . A way, whether by grant or prescription, is impliedly "Ways limited 1 . n ;t 1 • i i J. j-i to service of limited to the service of the domi n ant tenement ; the dominant owner is not justified in using the way for other land after- wards piu-chased by him, or in making a colom-able use of the way for the benefit of other land, so as to increase the easement over the servient tenement. Whether a par- ticular act is a proper and reasonable use of the way within the right, or -vAhether it is a merely coloiu-able use of the (>■) Abingcr, C. B. CowUihi v. («) Willcs, J. inUitims v. James, mggi»so», 4 M. & AV. 2oG ; Mel- L. R. 2 C. P. 582 ; 30 L. J. C. P. lish, L. J., Wimbledon CoiiMrv. v. 256. JHxon, L. R. 1 C. D. 371 ; -15 L. J. (r) W'mhhdon Couscrv. v. Bixon, C. 353. L. R. 1 C. D. 362 ; 45 L. J. C. 353. (s) Ballard v. Dyson, 1 Taunt. {w) Jiradbiirn v. Morris, L. R. 3 279. C. D. 812. {t) Coulinff V. Iligginson, 4 M. & (.i) I>arc v. UcathcoU, 25 L. J. "W. 245 ; Bnulburn v. Morris, L. R. Ex. 245. 3 CD. 812. tenement. 208 USES AND PRorrrs in land of another. way for purposes in excess of the riglit, is a question of fact depending on the circumstances {i/) . Accordingly a way leave for tlie carriage of coals from certain land cannot be used for carr_)'ing coals from other land acquired under a different title, though part of the same coal field (;:). A grant of a way for lessees to carry " the produce of mines demised or any other mines," was held to extend to all other mines worked by the same lessees {a). — Upon this princij)le a right of way by a certain road to premises situated at the end of the road does not justify the use of the road for access to other promises at intermediate points of the road (h) ; and it is said, " A public 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 public road or at the end" (c). The landlord or reversioner of the dominant tenement, as Avell as the occupier, may use an appm^tenant way for the purposes of his interest ; "lie may use the way to view waste, or demand rent, or to remove an obstruction " {d). Direction and The claimant of a right of way is required to allege and "^^^'^^^^^ of ^\ay. pj,^^.g ^y[j^]^ reasonable certainty the termini of the way and the intermediate course which it takes, so far as neces- sary to maintain tlie right {e) . The way may be expressly defined in dhection 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, lie must set out a reasonable {;/) Jloivellv. King, 1 Mod. 190 ; Ihj., L. R. 4 Q. B. D. 412. Lawlon v. Ward, 1 Ld. Raym. 75 ; [h) Senlwusc v. C'hrisddii, 1 T. R. Skull y. GlenisUr, 16 C. B. N. S. 500 ; /ZewwJwy v. i?e«-«'><, 8 Ex. 187 ; 81 ; 33 L. J. C. P. 185 ; Williams 22 L.J. Ex. 79 ; see South Mctrop. V. Jamea, L. R. 2 C. P. 577 ; 36 Cemelcnj Co. v. Eden, 16 C. B. 42. L.' J. C. P. 256; Finch v. Great (c) Chambre, J. IVoodyerx. Ilad- Wesicrn Rij., L. R. 5 Ex. D. 264. den, 5 Taunt. 132. (z) Dand v. Kincfscote, 6 M. & W. {d) Froud v. Hollis, 1 B. & C. 8. 174 ; iJurham (^ Sunderland Ibj. v. {c) Harris n. Jenkins, L. R. 22 C. Walker, 2 Q. B. 940. D. 481 ; 52 L. J. C. 437 ; Bouse v. [a) Bidder v. North Staffordshire Bardin, 1 II. Bl. 352. (;IIAP. I. EASEMENTS. 209 ■way and then the porson is not entitled to go out of the ■svay " {/). A grant of way without precisely defining the space entitles the grantee to such a roadway as is convenient for the natiu'o and circumstances of the traffic ; and he cannot complain of any obstruction that leaves liim such a convenient way (r/). Where the grant was of " a road of a width of not less than forty feet tlu-oughout 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 use 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 tlu'ough an estate " in the same manner and as fully as if the same were public 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 (/). 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 cf a way is not justified in deviating fi'om Deviation the defined way and taking another way over the ser\ient ^°"^ ^'^^ " tenement, merely by reason of the way being impassable for want of repair (/.) ; nor, if it becomes impassable by accident, as by the overflowing of a river ; in such cases 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 {/) Mellish, L. J., irimblcdon (i) Xicol v. Beaumont, oZ L. J. C. Conscrv. v. Dixon, L. R. 1 C. D. 853. 370 ; 45 L. J. C. 357. (J) Duncan v.Louch, 6 Q. B. 904. {g) Uinding v, Wihon, 2 B. & C. (/) BuUmd V. Harrison, 4 M. & 96. S. 387. (A) Clifford V. Uoare, L.E. 9 C. P. (/) Taylor v. Whitehea.l, 2 Dougl. 362 ; 43 L. J. C. P. 225. 745. \.. P 210 USES AND TROFITS IX LAND OF ANOTHER. ■witliout trespass " (w). And lie retains tliis riglit of devia- tion so long as the obstruction remains, and without abandoning the original right of way (??). So if the way be partially obstructed by the grantor, the grantee may de\date on to other part of the premises in the rea- sonable exercise of his right ; and what is reasonably necessary for the pui^pose depends in fact upon the circumstances (o). Construction of wavs. Repair of ways. A right of wa}^ imports in general the accessory riglit of making and maintaining a road sufficient to render the right effective. Thus, a carriage way imports the right to make a road sufficient to bear the ordinary traffic of a carriage {p). The grant of a right of way for the occu- piers of a house was held to give the right of laying down flag stones upon the foot way in front of the door {q). — A grant of way for the express purpose of carrying coals was held to give the right of laying down a framed waggon way, which was necessary for carrying coals according to the usual practice of the neighbom^iood (r) ; and under such grant a railroad of an improved description coming into use since the date of the grant may be laid down (s). But a grant of " a right of way as and for a waggon or cart road," for ordinary surface purposes, and not for the working of minerals, does not give the right of laying down a railway or tramway (f) . A right of way also imports the right of entering upon the servient tenement for the purpose of rej)airing the road («i) Selbi/ V. NcltlefoU, L. R. 9 Ch. 1 11 ; 43 L. J. C. 359 ; Roberlson V. GanllM, 16 M. & W. 289. («) ReignoUh v. Edwards, Willes, 282 ; Lovelly. Smith, 3 C. B. N. S. 120; Baives v. Ilaivkins, 8 C. B. N. S. 848. (o) Hawkins v. Carbines, 27 L. J. Ex. 44. {p) Newcomen v. C'oulsou, L. R. 5 C. D. 143 ; 46 L. J. C. 459. (q) Gcrrard v.- Cooke, 2 B. & P. N. R. 109. (r) Scnhouse v. Christian, 1 T. R. 560. See Abson v. Fenton, 1 B. & C. 195. (*•) Band v. Kingscote, 6 M. & W. 174. ij) Bidder v. North Staffordshire 7?//., L. R. 4 Q. B. D. 412; see Ardleij v. St. Bancras, 39 L. J. C. 871. rilAP. I. KAsKMEXTS. 211 when necessary ; but it implies no condition or oljligation to repair, fiu"ther than that if tlie owner of the dominant tenement A\ants to ]ia\e the way repaired, he miLst repair it himself (ii). Nor is there any implied obligation upon the grantor of a way to repau' it. " As a general rule 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 prescrij)tive duty incident to the possession of his tenement (v). A way may be expressly granted with the condition of keep- ing it in repair, or of contributing to the expenses of re- paii'ing it, whenever necessary ; which w^ould constitute a condition subsequent creating an independent claim, but not affecting the right to use the w-ay. A grant of a way on payment of a fixed sum woidd constitute the pajrment a condition jDrecedent to the right {ic). § 2. — Lights. Easement of liglit arising by prescription — by grant — is acquired only for bouses and buildings. Limits of easement — obstruction — building to angle of forty-five de- grees — town and country biiildings. Use of light in dominant tenement — unoccupied tenement — conversion of tenement to nevr use. Alteration of ancient lights — enlarging ancient lights — additional light from difi'crcnt direction. The owner of a house or building may make windows Easement of or defined openings for the access of light from the adja- pfescription cent land of another, as an ordinary incident of his OTNTier- ship ; and if the light be not obstructed he will acquire by lajise of time the prescriptive easement of lia\'ing the light {ii) l"Wms. Sa\ind. 322 r, Po;«//ri! Grant, 51 L. J. Q. B. 359; Hider V. lii/crofl ; Coleridge, J., Duncan v. Smil/i, ST. R. 766 ; post, p. 280, V. Zouc/i, 6 Q.B. 90d; post, -p. 2S0. («•) Btmcan v. Louch, 6 Q. B. (r) f) Birmingham Banlin(i Co. v. 0) Frv. L. J., Scott V. Tapi; TJo.sw, L. R. 38 C. D. 296 ; 57 L. J. L. R. 3l'C. D. 6.54; oo L. J. C. C. GOl. 214 USES AND PROFITS IN LAND OF ANOTHER. Building to angle of forty-five degrees. To-wn and country buildings. case." And the Prescriptioii Act lias made no alteration in this respect (k). " Tlie Coiui will not interpose upon every degree of darkening ancient lights and windows. There are many oh^'ions cases of new buildings darkening those oj)230site to them, but not in such a degree that an in- jmiction coidd be maintained ; or an action upon the case ; which however might be maintained in many cases which 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 incidence of light. This rule is sometimes referred to by the Courts as a convenient test of an obstruction under similar cu'cum- stances {in) . But there is no general rule or presumjDtion 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 countrj^ ; 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., Eccles. Com. v. Kino, L. R. 1-1 C. D. 224 ; 49 L. J. C. 529. Per car. Kelk v. Pcar.soii, L. E.. G Ch. 811 ; London Brcwenj Co. V. Tennant, L. R. 9 Ch. 21G ; 43 L. J. C. 457. (/) Eldon, L. C, Att.-Gcn. v. I^ichoJ, 16 Vcs. 338, adopted by Wood, V.-C, I)cnt\. Auction Mart Co., L. R. 2 Eq. 215 ; 35 L. J. C. 555; and Malins, V.-C, Lanfran- chi V. Mackenzie, L. R. 4 Eq. 426 ; 36 L. J. C. 518. (w) 25 & 26 Vict. c. 102, s. 85 ; Bcadel v. Ferri/, L. R. 3 Eq. 465 ; Haskett v. Bcms, L. R. 20 Eq. 494 ; 45 L. J. C. 13; Selbome, L. C, London Brewcri/ v. 'Tennant, L. R. 9 Ch. 220 ; 43 L. J. C. 457. (h) Parker v. First Avenue Hotel Co., L. R. 24 C. D. 282; Brett, L. J., Eccles. Commiss. v. JSino, L. R. 14 C. D. 223; 49 L. J. C. 529. (o) Thced v. Behcnham, L. R. 2 C. D. 165. {p) Wood, V.-C, Bent v. Auction 3Iart, L. R. 2 Eq. 248 ; 35 L. J. C 562 ; explaining Clarke v. Clark, L. R. 1 Ch. 16; 35 L. J. C. 151. ciiAi". 1. i:.vsi;mi:nts. 215 The easement is not limited by the quantity of light Use of light actually used, or Ly the pm-poses for Avhieli it is used, tenement. 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 Cjuantity 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 (r/). An action maybe 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 pm-pose for which the dominant tenement may reasonably be con- 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 (s). — Upon this principle an easement of light may be Unoccupied accpiired for a building without any actual use or occu- ^'^^^^^ • pation for any purpose ; as was held in the case of a house structm-ally complete, but internally incomplete and unfit for habitation, and which remained in that state and unoccupied diuing the whole period of time required to establish the easement (/). 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 iujmy to his property, though he does not occupy it or suffer personal discomfort or inconvenience (/<). — Upon Conversion , , ••1,1 •pi J. £ of tenement the same prniciple the conversion oi a tenement irom one j.^, ^g^ ug^ (q) Zanfraiichi Y. Macle)izie,L.'R. 275; 33 L. J. C. 698, and Zan- 4 Eq. 421 ; 30 L. J. C. 518 ; Yntts franchi v. Mackenzie, L. R. 4 Eq. V. Tusk, L. R. 1 Ch. 298 ; 35 L. J. 421 ; 3G L. J. C. 518 ; which re- C. 539 ; Tlurd v. Jkbatham, L. R. stricted the right of action to tlie 2 C. D. 165. light in fact used. (>•) Ai/nsli'i/ V. Glorer, L. R. 18 (.s) See T/ic Queen v. PoulU); 56 Eq. 544"; 44 L. J. C. 523 ; Moore v. L. J. Q. B. 581 ; S. C. 20 L. R. Q. Hull, L. R. 3 Q. B. D. 178; 47 B. D. 132; 57 L. J. Q. B. 138. L. J. Q. B. 334. These cases sub- {t) Courtauld v. Leyh, L. R. 4 stantially override the cases of Ex. 126; 38 L. J. Ex. 45. Martin v. Goble, 1 Camp. 322 ; {u) H'iLson v. Tounend, 1 Dr. & Jackson V. Xeiccustle, 3 D. J. i: S. Sm. 324 ; 30 L. J. C. 25. 216 USES AND PROFITS IN LAND OF ANOTHER. purpose to another, as a dAvelling-liouse into a worksliop or conversely, does not affect or qualify the easements of light which were appurtenant to the tenement before the conversion ; right of access for light being independent of the jim-pose to which the light is applied (r). So where a church was pulled down and the site sold for building a warehouse, the lights appurtenant to the church were held to pass for the use of the warehouse {>(■). Alterations of lig-lits. Enlarging' ancient lic'Lts. The owner of the dominant tenement may improve the light through an ancient opening, by clearing away mullioiis and transomes, removing casements, and any other like means, without affecting the existing ease- ment (.r). He may alter the form of the opening or he may make a new opening in a plane parallel to the ancient opening, or at an inclination to it ; and he will retain the original easement of light so far as it will serve the new opening (//). The identity of the building that receives the light is immaterial, provided the light used in the new building is to a substantial extent the same as that used in the old (;:). But if he enlarge the ancient openings or make a new opening, by which he might in time acquire an enlarged 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, provided that he does not at the same time obstruct the ancient light or any part of it. It is no justification of an obstrviction of the ancient liglit that he cannot, without doing so, obstruct the enlarged or new opening (a) . Nor {v) Fry, J., Xational Inn. Co. v. rrttdential Ass. Co., L. R. 6 C. D. 764 ; 46 L. J. C. 871 ; Cotton, L. J., Scott V. Pni)e, L. 11. 31 C. D. 'jG'J ; 55 L. J. C. 426. {w) Eccles. Commis. v. Kino, L. R. 14 C. D. 213 ; 49 L. J. C. 529. {x) Turner v. Spooner, 1 Dr. & Sm, 467; SOL, J. C. 801. {tj) National Ass. Co. v. Piu- dcntial Ass. Co.,!,. R. 6 C. D. 757; 46 L. J. C. 871 ; Jiullers v. Dick- inson, L. R. 29 C. D. 155 ; 54 L. J. C 776 p Jinrnis v. Loach, L. R. 4 Q. B. D. 494 ; 48 L. J. Q. B. 756. {z) Scott V. J'apc, L. R. 31 C. D. 554 ; 55 L. J. C. 426 ; 2^ost, p. 308. (ff) TapVuirj V. Jones, 11 H. L. C. Cli.vr. I. EASEMENTS. 217 is the owner who has tlius enlarged liis lights bound to restore them to the ancient form and position as a con- dition of obtaining relief against an obstruction ; whether he seeks the legal remedy of damages, or tlie eqiiitable remedy of an injunction (b). " 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 injmy or ■wrong to your neighbom*. It is one of the rights of pro- perty wliich any man is entitled to exercise, and he cannot, by exercising that right, lose any other right which he may have acquired. Therefore, having got a right to the entry of liglit 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 windoAvs, provided the ancient apertm-es 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 {(/). The acquisition of additional light from a different Additional direction does not affect or duninish the easement over the diffient"^ serA-ient tenement ; the owner of which is not justified in direction, obstructing the easement over his oaati land, because the dominant owner by pm'chase or otherwise has obtained light from other land equivalent to the light obstructed (f). 290 ; 31 L. J. C. P. 342, overruling 38 L. J. C. 372. Jiimhaw V. JSaiii, IS Q. B. 112; (c) MeUibli, L. J., Ayiixhy v. 21 L. J. Q. B. 211), and other cases Glover, L. K. 10 Ch. 283; 44 ■which decided tluit upon the en- L. J. C. 523. largcnient of an ancient light, the ((/) Jliilc/ihhson v. Copcstake, 9 servient owner might obstruct it C. B. N. S. 803 ; Cttnitrx' Co. v. wholly, and that the dominant Corbett, 2 Dr. & 8. 355 ; JNVmsw) v. owner liad no remedy until he had Fctulir, L. R. 27 C. D. 43 ; BulUrs restored it to tlie original dinien- v. Dickiusoii, L. E. 29 C. D. 155; sions. See Xuvsoh v. J'ttidir, L. 54 L. J. C. 770; Scott v. J'afe; R. 27 C. D. 43. L. R. 31 C. D. 554 ; 55 L. J. C. (A) Staiflfil V. Bum, L. R. 5 Ch. 426. 163 ; 39 L. J. C. 2!>9 ; explaining (<■) Di/ets^ Co. v. Kiiiff, L. R. 9 Heath V. Buckmdl, L. R. « Eq. 1 ; Eq. 438 ; 39 L. J. C. 339. 218 USES AND PROFITS IN LAND OF ANOTHER. Nor can the servient owner justify an obstruction by himself providing an equivalent quantity of light by reflection or other means, without the consent of the dominant owner (//). The dominant owner does not lose his remedies by himself diminishing the light, so far as an obstruction affects the residue {z). § 3.— AiK. 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 diffusing noxious vapours and noises. Distinction of j^ -^yjig formerly the practice in actions for obstruction of air and light ' . ,.,,,. as subject light, to couplo the Avord " an- with "Lght m pleadings of easement. ^^^ ^^ proceedings of the Coiu-t, 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 " ail-" to be coupled with " light," as a matter of course ; nor allow it to be inserted in proceedings of the Coui-t respecting light without a special direction (a). The Coiu-t 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 Court, 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 Comi has interfered to jorevent the total obstruction of all circulation of air " (h). But " it is only in very rare and special cases, involving danger to (y) Staifjhl v. Burn, L. R. 5 Ch. {(() City Brewery Co. v. Tcnnant, 163 ; 39 L. J. C. 289. L. R. 9 Ch. 221 ; 43 L. J. C. 459 ; (z) Staiyht v. Biirn, L. R. 5 Ch. Baxter v. Boiver, 44 L. J. C. 625. 163 : 39 L. J. C. 289 ; Scott v. T'opc, {/>) Wood, V.-C, JJe>ii v. Auction L. R. 31 C. D. .554 ; 55 L. J. C. Mart, L. R. 2 Eq. 252 ; 35 L. J. C. 426. 555 ; Jlall v. Lichjield Breuery, 49 L. J. C. 655. CHAP. I. EASEMENTS. 219 health, that tlio Coiu't woukl be justified in interforiug on the groimd of dimiuutiou of air " (c). No such easemeut can be claimed in law as to entitle Easement eannot bo the owner of land or buildings merely to have tlio an- pass claimed for to or from the adjacent land without obstruction. »Such a P|^«sageo£ 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 (o^) . 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 ser^'itude binding a purchaser without notice (). — 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 occui)ier of a chvelling house is also entitled, as an Nuisance of ordinary incident of property, to be free from the dis- turbance of noises emanating from the adjacent premises ; and in case of sucli noises amounting to a material nuisance incompatible "vvith tlie 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 neighbom'ing tenement, or so as to injure his property" (.s). Accordingly an injunction was granted to restrain a nuisance of noise from an u"on factory, as well as the nuisance of smoke and noxious efflu^■ia from the factory chimney (f) . An action was hold maintainable for a nuisance of noise wliich friglitened cattle and distm'bed the game upon the plaintiff's land («). An injunction was granted to restrain public entertainments accompanied with (o) Vernon v. St. James, L. E,. (r) St. JTihn's Co. v. Tipping, il 16 C. D. 449 ; 50 L. J. C. 81 ; Sei- H. L. C. 642 ; 35 L. J. Q. B. 66 ; lors V. Jftitloc/i.- Local Hoard, L. R. S/iollx Iron Co. v. Inglis, L. R. 7 14 Q. B.D. 928. Ap. Ca. 518. {p) Malton Board of HeaJth v. (.s) Romillv, M. R., Crump v. Malton Manure Co.. L. R. 4 Ex. D. Lambert, L. R. 3 Eq. 413; Selbome, 302; 49 L. J. M. 90; 7?i.s/(o;>,/wA-- L. C, Gaunt v. I'l/nnri/, L. R. 8 land San. Aiith. v. lii-hup Auckland Ch. 11 ; 42 L. J. C" 122. Iron Co., L. R. 10 Q. B. D. 138 ; (/) Crump v. Lambert, supra. 62 L. J. M. 38. (m) Ibbetson v. I'eat, 3 H. & C. {q) Cooke v. Forbes, L. R. 5 Eq. 644 ; 34 L. J. Ex. 118. 166; 37 L. J. C. 178. 222 USES AND PROFITS IN LAND OF ANOTHER. the nuisance of nmsie, and fireworks, and disorderly crowds (ii). An injunction was granted against ringing a peal of bells in a religious institution, to the annoyance of the neighhoiu's. But in the case of the established clim'ch of a jiarish or parochial district the bells are an appendage recognised by law (r). Noxious 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 (?r) ; or that similar nuisances ah'eady exist at the place (.r). 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 oj)ened 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 sho2')"(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 witliout legal remedy (z). But where the ground floor 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 (m) JFal/ccr v. Brewster, L. R. 5 N. S. 334 ; JTcst v. Whife, L. R. Eq. 25 ; 37 L. J. C. 33 ; I»chbald v. 4 C. D. 635 ; 46 L. J. C. 333. Robinson, L. R. 4 Ch. 388. See (.r) Crump v. Lambert, L. R. 3 Jenkins v. Jackson, W. N. 1888, Eq. 413. p. 194. (.'/) Chelmsford, L.C., St. UcUn''s {v) Soltaii V. I)e Keld, 2 Sim. N. Hmelting Co. v. Tipping, supra; Erie, S. 133. C. J., Cavey v. Lidbetter, 13 C. B. {v;) Bamford v. Turnley, 3 B. & N. S. 470 ; 32 L. J. C. P. 106. S. 62; 31 L. J. Q. B. 286; St. (c) Selbome, L. C, Gaunt v. Helen'' s Smelting Co. v. Tipping, 11 Fynnet/, L. R. 8 Ch. 12 ; 42 L. J. H. L. e. 642; 35 L. J. Q. B. 66, C. 122; Wood, V.-C, Walker v. ovc-rniling Hole v. Bnrlow, 4 C. B. Brewster, supra. CH \i'. I. i:asi;mkxts. 223 liouso to an injunction (a). Upon this principle it is held that the keeping of a school is not necessarily a nuisance to be restrained by the Court, though it may depreciate the adjacent property by 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 cause annoyance (i). — Statutory powers are Nuisance of 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 neighbom*- hood; unless they can be charged witli negligence in regard to the construction or working of the engines (c). And an injunction was refused against a railway company, to restrain the keeping of cattle and carrying on cattle traffic uj)on 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 {(/). The Acts for regulating the use of locomo- tives upon highways expressly save the right of any person to recover damages for any injmy sustained in the use of a locomotive (e). A reversioner has no cause of action for nuisances to the Reversioner, occupation of demised premises caused by the pollution of air or by noises ; because such nuisances are in general merely temporary and may cease before the reversion comes into possession ; nor can the intention to continue them be {a) Bally. Jiai/, L. R. 8 Ch. 467. Jones v. Festiniog lii/., L. R. 3 Q. B. (A) Doc V. Knluig, 1 M. k S. 95 ; 733 ; 37 L. J. Q. B. 214. Kemp V. Sulier, 1 Sim. N. S. 517; (d) London S,- Brighton Rij. v. Harrison v. Good, L. R. 11 Eq. Tnniian, L. R. 11 Ap. Ca. 45; 65 338 ; 40 L. J. C. 294. L. J. C. 354. (e) Hammersmith Ry. v. Brand, {e) 23 & 29 Vict. c. 83, 8. 12 ; L. R. 4 H. L. 171 ; 38 L. J. Q. B. rowell v. Fall, L. R. 5 Q. B. D. 265; Vaughan v. Taff Vale Ri/., 6 597 ; 49 L. J. Q. B. 428. H. & N. 679 : 29 L. J. Ex. 297 : 224 USES AND PROFITS IN LAND OF ANOTHER. presumed {c). The same principle applies to the reversion of weeldy tenancies ; for a tenancy from week to week may continue as long as any other tenancy, and a weekly or a yearly tenant lias full remedies for a nuisance to his occupation (_/'). Easement of diffusing noxious va- pours and noises. Easements, in the proper sense of the word, may be ac- quired of discharging- noxious smells and vapours into the air, and of producing noises, that would otherwise he 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 o^vner 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 appm-tenant 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 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 case 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 occuj)ier may complain of the nuisance of (c) Simpson v. Savage, 1 C. B. N. S. 347 ; Mott v. Shoolbrcd, L. R. 20 Eq. 22 ; 44 L. J. C. 380 ; Cooper V. Crubtree, L. R. 20 C. D. 589 ; ol L. J. C. 189. See House I'ruperty Co. V. Uorse Nail Co., L. R. 29 C. D. 193; 54 L. J. C. 715. (/) Jones V. Chappell, L. R. 20 Eq. 539 ; 44 L. J. C. 658 ; Inchbald V. Robinson, L. R. 4 Ch. 395. {g) Roniilly, M. R., Crump v. Lambert, L. R. 3 Eq. 413. (h) Henry v. Smith, 22 Beav. 299. CHAP. 1. EASEMENTS. 225 iioiso, liowevcr long- it liad previously conliuucd (/). 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 Leon increased to a degree constitut- ing an actionable nuisance ; from which time only would it avail for foimding a prescriptive right (J). So, as to noxious smells, in order to establish a prescriptive right it is not sulficient to prove the continued production of the smell upon the dominant tenement duiing the period of time required to found a prescriptive title, but it must also be proved that dm-ing the same time the smell in fact pervaded the alleged servient tenement in such a manner that the o-\vner might have taken legal proceedings in pre- vention (/.). — Xo 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. — TVatek. Rights of riparian owner in natural stream. Easement of diverting' stream through artificial -watercourse — limits of easement— use of the water — maintenance and repair of water- course — liability for non-repair. Easement of discharging water or other matters — liability for nuisance — exception of natiiral use of land. Limits of easement — discharge in excess — maintenance and rcpaii* of watercourse — alteration of discharge. Artificial stream — riparian owners upon artificial streams — permanent artificial streams. Easement of discharging rain-water from eaves of house. Water standing upon the sm-face of land and water rropcrtyln diffused tlu'ough the soil, are presimiptively considered in '^''''^^'^^• (i) Stin-fffs V. Jlridgnian, L. E. 11 {k) Flight v. TJiumaa, 10 A. & E. C. D. 852 ; 48 L. J. C. 785. 590. {J) Ball V. Itay, L. R. S Ch. (/) EUiotson v. Fcetham, -1 Bin<'-. 467. N. C. 134; Bliss \. Hall, 4 Ring. N. C. 183. L. Q 226 rSES AND PKOFITS IN LAND OF ANOTHER. Natural streams. law, ill regard to property, as part of the land itself. Water flowing in defined natural streams is not the sub- ject of property, further than that every riparian owner prima facie has the right to have it flow on in its natural state, and to have the use of it in passing for limited pur- poses. This right of the riparian owner resembles an easement in some respects ; namely, as against the upper riparian owner in requiring him to suffer the water to flow tlii'ough his land, and in limiting the use of it upon his land ; as against tlie lower riparian owner, in requiring 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 long acquiescence on the part of the riparian proprietors above and below, but is ex jure natnrce ; and an incident of property " («). — ^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- shij) ; and so far as it may be an appropriation of the water, it takes that 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 [h) . Easement of The diversion of a stream through an artificial water- stream?^ ° 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) Per cur. Dickinson v. Grand Junction Canal, 7 Ex. 299, ante, p. 148. {h) Cockbum, C. J., Mason v. Shrewshirij lit/., L. R. 6 Q. B. 587; 40 L. J. Q. B. 297; ante, p. 151. (HAP. I. KASEMKNTS. 227 by i)reseri})ti(jn as apjiurtunant to land, for tlio occupier 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 he acquired as appurtenant to a mill, to have an artificial cut or water- course througli tlie land of another to divert the water of a stream to the mill {d). — Water mills frequently depend "Water mills. upon easements of this kind. The mill is sometimes situated upon the hank of the natm-al stream, hut more usually at some distance from it ; tlie water is conveyed to it hy an artificial cut from a weir or dam across the stream, and after working the mill is restored to the natm-al course. The artificial cut may pass througli the land of diifereut landowners 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 appui-tenant to the mill. "Water is frequently conveyed from the natural stream in the same manner for purposes of irrigation (e). Wliere a riparian o\\'ner diverts a natural stream through an artifi- cial watercoiu'se for the use of a mill, and afterwards grants and conveys the mill with the water rights, the mill passes to the grantee with the appurtenant easement of the watercom-se 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 natm-al stream through an Limits of artificial watercourse is presumptively defined and limited ^' ''^^^'^^ • hy the form and capacity of the watercoiu'se in its exist- ing state. The grant of a watercom-se may convey merely the easement or right to the flow of watei-, or it ma}', if so expressed, convey also the fhannel or }iipo through -which the water flows ; hut presumptively it imjxirts no right to {c) Bceston v. TTeatc, 5 E. «fc B. Beestcn v. TJ'eatf, supra. 986 ; 25 L. J. Q. B. 115. (/) Hoa-cr v. Poiritt, L. R. 10 (d) Niittallv. BraccweU, L. R. 2 Ex. 59; 44 L. J. Ex. 52; ante, Ex. 1 ; 36 L. J. Ex. 1. p. 152. [e) Xuttall V. Braceurll, supra ; u2 228 LSES AND PROFITS IN LAND OF ANOTHER. Use of the water. Maiutenance and repair. enlarge the watercoui'se or channel so as to carry a greater quantity of water than granted and thereby enlarge the easement {g) . Nor, after the grant of a watercourse in a specified channel, can the servient owner make any alteration in the channel in derogation of the easement granted {h). This easement is, in general, independent of the use to which the water is applied. A watercourse appurtenant to a mill 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 (?) . 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 water- course used hitherto for the supply of cattle-sheds, may apply the water to cottages built 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 {k) . 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 structm-e or channel of the water- com"se (/). The servient owner will be restrained from doing anything to obstruct the maintenance and repair ; such as building a house over the pipes tlirough which the water flows {m). — The owner of the watercourse, so far as he is entitled to maintain and repair it, is prima facie tq- sponsible for the safety of the water ; and in case of an escape of water through his neghgence, he would be held liable for the damages {n). (//) Toyhr V. St. Ihlcm, L. R. 6 C. D. 264 ; 46 L. J. C. 857. ■ {h) Xortham v. Uurlet/, 1 E. & B. 665 ; 22 L. J. Q. B. 183. (i) LuttreWs Case, 4 Co. 86 a, 87 a ; Saunders v. Newman, 1 B. & AH. 258. U) Hale V. Oldroyd, 14 M. &W. 789. (/-■) Watts V. Kelson, L. R. 6 Ch. 166 ; 40 L. J. C. 126. (/) Pom fret v. Iticroft, 1 Wms. Saund. 323. (w) Goodhart v. llijctt, L. R. 25 C. D. 182 ; 53 L. J. 0. 219. (») I'letcher v. Smith, L. E,. 2 CHAP. I. EASKMENTS. 229 Easements may be acquired of discharging water, not Easement of being a natiu-al stream, and otlicr materials, into or througli Tv^^ter '^dram- the land of auotlier ; such as the easement commonly ap- ^S^> &c. purtenant to a dwelling-house of draining off refuse water and sewage ; the easement of draining land ; tlio easement of discharging water from mines ; and of discharging water impregnated with noxious matters from mines and factories. The easement may bo 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 dming 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 '^^^^''^'^'^^• di-ainage, 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 (j)) ; 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 (•) Rameshur 8inqh v. Koon Fattuk, L. R. 4 Ap. Ca. 121. CTIAT. I. I'.ASKMENTS. 23 J projecting over the land of anotlior for tlio discharge of rain water is prima facie an actionable nuisance ; and ac- cording to the presumption embodied in the maxim cujas est solum ejus est usque ad coelum, it is an act of trespass to the possession of the occupier (s). It may also be injurious to the reversion of premises under demise, and entitle the landlord or reversioner to maintain an action ; avIio in sucli case may bring repeated actions for continuing the nuis- ance, and may claim an injunction to restrain it {t). — The owner of a house or building may receive the rain water upon the roof and discharge it tlu-ough gutters and pipes in a collected stream upon his own land, whence it may percolate natm-ally into the adjacent land; provided he does not thereby cause it to pass in a materially different way or in a greater quantity than is natural, so as to be a nuisance to the owner («). — 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 bm'den was thereby thrown upon the 6er\'ient tenement {c). (s) Baten's Case, 9 Co. 53 h ; Fen- ruddock'' s Case, 5 Co. 100 A; Fay -v. Frcutice, 1 C. B. 828; Cotton, L. J., Harris v. Be Fiiuia, L. R. 33 C. D. 260; 56 L. J. C. 318. {t) Tucker v. Newman, 11 A. & E. 40; Jiathishillv. Feed, 18 C. B. 696; 25 L. J. C. P. 290. {it) James, L. J., West Cumber- land Fron Co. v. Kenyan, L. H. 11 C. D. 786 ; 48 L. J. C. 793 ; per cur. Hurdman v. North Eastern My. Co., L. R. 3 C. P. D. 173 ; 47 L. J. C. P. 368 ; Froder v. SaiUard, L. R. 2C. D. 692; 45 L. J. C. 414. (v) Thomas v. Thomas, 2 C. M & R. 35 ; Harvey v. Jf'a/tcrs, L. R. 8 C. P. 162; 42 L. J, C. P. 105. 236 USES AND TROFITS IN LAND OF ANOTHER. § 5. — Support. Easement of support of surface by subjacent land— presumption of easement upon severance of surface. Grant of easement of support — construction of grants and reservations of minerals— mining leases — minerals under railways. Extent of easement — substitution of artificial support. Support by a-^ljacent tenement — impliel upon severance 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. Easement of support by subjacent land. Presumption of easement upon sever- ance of sur- face. Tlio right of support for tlie surface of land from the suhjacent land, where they are held as separate tenements, is an easement ; which may he 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 woidd confer upon the owner of the surface a right of support. " If 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 («) Selbome, L. C, JJuKon v. Anyun, L. li. G Ap. Ca. 792 ; 50 L. J. Q. B. 730. CHAP. I. KASEMENTS. k6i presumed to liiive parted with tlie ri<^-lit to tliat sujiport for the sui'facc by the minerals which it liad ever before enjoyed" (h). lleneo the easement of support appears as "of common right," tliat is, "where it is estahhshed that the upper and lower strata are in different hands it is not necessary in pleading- to allege, or in evidence to prove, any special origin for it, the biu-den 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 ufcrc fiio ut alienum non la'das{cl). Support of the surface may be the subject of express grant Grant of or stipulation in the deed of severance ; as is generally the support. 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 lea\dng any support to the sm-face ; 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 boimd 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 " {c). The general rule or presimiption that the surface owner is entitled to support " is not confined to the case where the Comi has not before it the instiniment under which the owner of the minerals derives his rights ; {b) Fer cur. JIumphus v. Brog- maxim can never be ajjplicd till den, 12 Q. B. 74(3. the law is ascertained, and when (f) L. Blu(.kbnm, Bixou v. WhitCy it is the maxim is superHuous." L. R. 8 Ap. Ca. 842. Erie, J., Bonomi v. Backhuim-, 27 (rf) L. Chclm.sford, Bitke of Buc- L. J. Q. B. 388. Brett, L. J., clench V. M'akejhid, L. R. 4 11. L. West Cumberland Iron Co. v. Xen- 406; Selboi-uc, L. C, Dalton v. f/o/i, L. R. 11 C. D. 78" ; 48 L. J. C. Anfftis, L. R. 6 Ap. Ca. 791. But 796 ; ante, p. 230. it is justly observed that this (<) Lord Blaekbnm, Dixon v. maxim, like all maxims, "is mere llAi/i; L. R. 8 Ap.Ca.843; Jiow- verbiage. A party may damas^o bot/iam v. It'iUon, 8 H. L. C. 348 ; the property of another whore the 30 L. J. Q. B. 49 ; Buccleitch v. law pei-mits, and he maj- not where IVakrfeld, L. R. 4 II. L. 377; 39 the .law prohibits, so that the L. J. U. 441. 238 rSES AND niOFlTS IN ].ANI) OF ANOTHER. Construction of grants and reservations of mineral^. but it also applies to cases where the Coiu-t has the instru- ment before it, for the purpose of construing the instru- ment, to this extent, that j)n'>iid fdcie 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 sm-face apart fi'om the minerals " (/). Accordingly, under a grant of land, reserving all minerals with liberty to search for and get them, " making a fair compensation for the damage done to the surface," 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 exercising it {(j). Under a similar grant of the siu'face reserving 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 Inclosure Act providing that the person w^orking the mines should make satisfaction for the damage of the ground to the person in possession, not to exceed a certain sum yearly during the working for every acre, was con- sti-ued to apply only to temporary damage to the occupier, and not to affect the presumptive right of support for the surface, which was implied in the o"\vnership (?). — On the other hand where by an Inclosure Act surface land was (/) Mfllish, L. J., Jlextv. Gill, L. R. 7Ch. 714; 41 L. J. C. 761; Dttgdale v. Robertson, 3 K. & J. 695 ; Lord Blackburn, Dixon v. tVlnte, L. R. 8 Ap. Ca. 843 ; Sel- bome, L. C, Love v. Bell, L. R. 9 Ap. Ca. 288 ; 53 L. J. Q. B. 257. {g) Harris v. Ryding, 5 M. & W. 60 ; Smart v. Morton, 5 E. & B. 30 ; 24 L. J. Q. B. 261 ; Dixon v. White, L. R. 8 Ap. Ca. 833. (A) Bext V. Gill, L. R. 7 Ch. 699; 41 L. J. C. 761. (i) Love V. Bell, L. R. 9 Ap. Ca. 286 ; 53 L. J. Q. B. 257. dlAI'. 1. EASF.MKXTS. 230 allotted to one person and tlio iiiinos to anollicr, and tlio award contained a covenant that the mines slumld he 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 injiu-ed ; it was held that the o^^aier of the sm-face had no claim for sui'face damage caused by mining, unless caused by wilfulness or negligence (,/). "Wliere the waste of a manor was inclosed and allotted, with, reservation to the lord of the manor of all mines lying under 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 w^as pro"\'ided that compensation for damage to any person's allotment by such working of the mines should be jiaid 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 (/»). But where an Inclosm-e Act, reserving similar absolute rights of mining to the lord, set out certain highways over the laoid 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 sm'face by mining (l) . Where a plot of land was granted for build- ing, reserving all minerals under the land, with power to 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 Avithout leaving any support, subject only to compensation for damage {ni). {J) JRoicbothain v. Wilson, 8 H. {1) Bcnjieldside v. Consett Iron L. C. 359 ; 30 L. J. Q. B. 49. Co., L. R. 3 Ex. D. 54 ; 47 L. J. {k) GUI V. Dickinson, L. R. 5 Ex. 491. Q. B. D. 169 ; 49 L. J. Q. B. 262 ; (w) Aspden v. Scddon, L. R. 10 Buchanan v. Amlrcw, L. R. 2 Sc. Cli. 394 ; 44 L. J. C. 359. Ap. 286. 240 USES AND PROFITS IN LAND OF ANOTHER. Miiiiug- lease lu iiiiuing leases, the object of wbieli is the sale and removal of the minerals wliicli form the natural support of the sm-face, 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 riglit of support is jDresumed as a basis of tbe lease and of the construction of its terms; the riglit of supiDort 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 be would not be responsible if the surface subsided in consequence ; and the same would be tbe conclusion if the covenant was that he sbould work according to the usual mode of working coal mines in the district "(^j). Where a lease of minerals expressly stipu- lated for compensation to the lessor for the damage he might sustain by injmy 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 (q) . But where a lease gave certain j)owers 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 enlarge 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 (w) Per cur. Eadon v. Jeffcoclc, Taylor v. Sluifto, 8 B. & S. 228. L R 7 Ex. 388 ; 42 L. J. Ex. 36. {(j) Smith v. Darhij, L. R. 7 Q. (c/) Lord Blackburn, Davis v. B. 716; 42 L. J. Q. B. 140. See Ti-chanie. L. II. 6 Ap. Ca. 467 ; 50 Aspdcn v. Seddon, L. R. 1 Ex. D. L J Q. B. 66.) ; M/indi/ v. Hut- 490 ; 46 L. J. Ex. 353 ; cited ante, land, L. R. 23 C. D. 81. p. 239. («) Per cur. Eadon v. Jfffcock, {r) Davis v. Treharnc, L. R. 6 L. R. 7 Ex. 389 ; 42 L. J. Ex. 36 ; Ap. Ca. 460 ; 50 L. J. Q. B. C65. under rail- ways. CHAP. 1. KASHMEXTS. 241 tlio support of tlio d(nnisod mliiorals, there is presumed the rig'lit t(j liave sueli support us is necessary to render the lease effective (.s) . Wliere land is conipulsorily taken by a railway com- Minerals pany under the powers of the liailway Clauses Act, 1845, 8 & 9 Vict. c. 20, the minerals are excepted from the con- veyance unless expressly named and conveyed therein. By ss. 78, 79, the owner is requii-ed 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 au}^ 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 owa. expense." The company has no protection for the rail- way and works excei)t that given by the Act; and the owner of the minerals working them in the usual and proper manner as requii-ed by the Act is not liable for surface damage caused by such working {f). A purchaser from the railway company of land so acquii'ed and re-sold as superfluous land, has no greater rights than the com- pany and can make no claim for siu'face damage caused by A\orking in a proper and usual manner, either against the original owner of the minerals or his lessee, and tliough the latter might be bound by his lease to leave a proper support (//). — Conveyances of land to railway companies authorised under special Acts wliich requii'e the minerals to be reserved to the landowner, but do not incorporate the llailway Clauses Act, 1845, are subject to the same construction as voluntary conveyances ; and the company (.«) Mioidi/ V. Duke of liutlaml, 2 H. L. 27 ; 3G L. J. Q. B. 133 ; L. R. 23 C. D. 81. Midland Ri/. v. Ilobinson, 57 L. J. [t) Fletcher v. Great IVe&teni Ri/., C. 441 ; anfe, p. Go. 5 H. it N. G89 ; 29 L. J. Ex. 263 ; {a) ruiiiitnei/ v. Clai/toii, 52 L. J. Great IJ'cshrn lly. v. Bouictt, L. R. Q. B. 566 ; L. R. 11 Q. B. D. 820. L. R 242 rsES AM) PROFITS IN LANJ) OV AXOIJIKU. as surface owners are presumptively entitled to the ordi- nary right of support from the minerals reserved (f ) . Extent of easement. Substitution of artificial support. As to tlie degree of sui)p6rt it is said, " the only reason- able support is that which will protect the surface from subsidence, and keep it seeiu-ely at its ancient and natural level." It is independent of the natm-e of the soil and of the comparative values of the surface and the minerals ; and it may be claimed thougli the minerals cannot be worked at all without injming the sm^face, to the exclusion of all beneficial property in them, unless the parties come to some agreement for working {>v). — But it does not in- clude the additional support of water diffused in the soil, so as to prevent the servient owner from ch-aining his land for mining or other pm^poses ; unless the sul)jacent water is made the subject of express grant or agreement (;r). And compensation for surface damage does not extend to loss of siu'face water and springs withdrawn by ordinary mining operations (>/). The right of suj)port does not consist in having the substratmn and minerals, or a portion of them, left in their natm^al state. The right is only to have and enjoy the surface supported in its natiu'al state ; and the servient owner may take away all the subsoil and minerals, pro- vided he substitute some otlier sufficient support. Accord- ingly there is no injury or cause of action in the mere removal of the substratmn, unless and until it produces a subsidence of the surface ; and consecjuently the Statute of Limitations begins to run from the latter event and not from the former. If after removal of the substratmn an (v) Cnledo)nan Ry. v. Sprot, 2 Macq. 449 ; Elliol v. North Ecmiern Ry., 10 H. L. C. 333 ; 32 L. J. C. 402 ; and see as to Canal Acts, Lancash. % Yorksh. Ry. v. Knowlcs, L. R. 20 Q. B. D. 391. {w) Per cur. Humphries v. Brog- den, 12 Q. B. 745 ; Hext v. Gill, L. R. 7 Ch. G99 ; 41 L. J. C. 7G1. (.r) Elliot V. North Eastern Ry., 10 H. L. C. 333 ; 32 L.J. C. 402 ; Topplcicell V. Ilodkinson, L. R. 4 Ex. 248 ; 38 L. J. Ex. 126 ; ante, p. 143. (y) BallacorJcish Mining Co. v. ITarrison, L. R. 5 P. C. 64 ; 43 L. J. P. C. 19. ciiAi'. 1. i:a.skmi;nt.^. 243 artificial substitute is la-ovided in time to prevent any subsi- dence, there is no injury or cause of action (:;). 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 {(i). The owners of adjacent tenements are presumptively en- Support by titled, each to such support from the other, as will preserve meat, the tenements in theii- natm-al 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 in 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 ser\'ient tenement, is properly called an easement (b). Upon the severance of two tenements by conveyance Implictl upon this easement of support is implied as appmienant to each tenements!' tenement, in 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 (r). — The same {z) Bonomi v. Backhomc, E. B. & 451 ; and Xicldin v. iriUiams, 10 E. G22 ; 28 L. J. Q. B. 378 ; Back- Ex. 'JoO ; 23 L. J. Ex. 335. house V. Bonomi, H. L. C. 503 ; (A) Sclbonie, L. C, DaKoit v. 34 L. J. Q. B. 181. JiiffKs, L. R. 6 Ap. Ca. 792 ; Lord {ii) DarU'i) Main foil. v. Mitchell, Blackbm-u, ib. SO'J ; James, L. J., L. li. 1 1 Aji. Cas. 127 ; 55 L. J. Q. Birmingham v. Allen, L. R. 6 C. D. B. 529: ovoiTuliufj- Lamhy. JFalkef, 292. L. R. 3Q. B. D. 389; 47L.J. Q.B. (r) Murchie v. Black, 19 C. B, U'2 244 USES AND PROFITS IN LAND OF ANOTHER. Extent of easement. Substitution of artificial support. principle applies to the compulsory piu-cliase of laud uuder the statutory powers of railway and other companies, unless 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 every grant must carry vnth. it all that is necessary to the enjojTnent of the subject-matter of it, and therefore if a certain amount of lateral support is essential to the safety of the railway, the riglit to it must pass as a necessary incident to the grant" {d). The easement presmuptively extends over so much of the adjacent land as is necessary in its natural state to support the dominant tenement in its natm-al 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 intermediate tenement removing a part of the support, so as to tlirow a greater bm-den 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 tlie water from the adjacent soil and cause a subsidence of the sui'face {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 ; Rifjhtj V. Bennett, L. II. 21 C. D. 559. [d) Lord Chelmsford, Elliot v. North Eastern liy., 32 L. J. C. 408 ; 10 H. L. C. 333 ; North Eastern Ry. V. CrosKland, 2 J. & H. 5G5 ; 32 L. J. C. 3.53 ; ante, p. 242. (e) Birmingham v. Allen, L. R. 6 C. D. 284 ; 4G L. J. C. 673 ; Elliot V. North Eastern Ei/., 10 H. L. C. 333 ; 32 L. J. C. 402. (/) Eartridye v. Hcott, 3 M. & W. 220. {g) Topplewell v. Elodldnson, L. R. 4 Ex. 248 ; 38 L. J. Ex. 126 ; ante, p. 242. niAP. I. easkmi:nts. !i4o till, (lamnge is sustained in consequence of the witlidi'awal of that sujiport" (//). "The taking away the soil is not in so AVTongful. It only becomes so when followed by injmious consequences to the neighbour; and if, therefore, such injimous consequences can bo averted by efficient means, as by the substitution of artificial for tlio natural supi^ort previously afforded by the soil, the removal of tlio soil is in no respect \VTongful " (/). The easement of support presumptively incident to land Support of from the subjacent and adjacent tenements is limited to subjacent and the land in its natm-al state, and does not extend to the adjacent land, 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 buildings, 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 heing prima facie a right of property, analogous to a right to the flow of a natm-al river or of air, thougli 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 tlie character of the rights when acquii'ed is in each case the same " (/.•). As against a stranger, showing no right in the adjacent land, and therefore, prima facie a "svTongdoer, 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 ncighboiu', or one (/() Lord Blackburn, Dulton v. Ad. »U ; Pay/riiii/cv. Scotf, S'H. & Angus, L. R. Ap. Ca. SOS, citing W. 220 ; Oai/fordy. yicfioUs, 9 Ex. Jiiu-UioKse V. liommi, 9 H. L. C. 702 ; 23 L. J. Ex. 205. 503 ; ante, p. 242. {k) JW cur. Bonoini v. Backhouse, (j) rcrcur. Bower v.reatc, L. R. E. B. & E. G55 ; 28 L. J. Q. B. 1 Q. B. D. 325; 45 L. J. Q. B. 380; Selborne, L. C, Angus v. 449. T)alton, L. R. G Ap. Ca. 792'; Lord U) TTijatl V. Uarrison, 3 B. & Blackburn, ib. 809. 246 USES AND rilOFlTS IN LAND OF ANOTHER. claiming under liim. Against a person having the right to the adjoining soil, it would be necessary to show a title to the support of the soil " (/). Support of " "Where the case is not that of two independent land- grant. ° owners, but of the owner of two closes conveying one of those closes to another person, there he can do nothing derogating fi'om his own grant ; and if he has conveyed it for the express purpose of having buildings erected upon it, he then enters into an implied contract that he will do nothing to his soil which will prevent the soil he granted being able to serve the purpose for which, to liis own knowledge, he has conveyed it ; and the person who has acquu'ed the soil under these circumstances has the addi- tional right of having support for the buildings, or for whatever else may be the object for which he has pur- chased the soil"{m). This imphed grant of support for buildings may be modified by exj)ress provisions regarding it ; and it may be modified or restricted by circumstances known both to the grantor and the grantee at the time of the grant ; as where it is known to the grantee that the grantor reserves the servient tenement for pm-poses which may affect the support of the adjacent buildings. Where land was sold in lots for building according to a general plan, it was held that each lot carried with it the right of excavating according to the plan, subjecting the right of support to such excavation ; so that the purchaser of each lot could only complain of excess or deviation from the general plan (n). 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 {I) Jeffries v. Williams, 5 Ex. 32 L. J. C. 353 ; Sidclons v. Short, 800 ; Jslbby v. Carter, 4 H. & N. L. R. 2 C. P. D. 572 ; 46 L. J. 153; 28 L. J. Ex. 182. C. P. 795. [m) Wood, V.-C, North Western (n) Ifurchie v. Black, 19 C. B. iJy. V. Elliott, 1 J. & H. 145 ; 29 N. S. 190 ; 34 L. J. C. P. 337 ; L. J. C. 812 ; Caledonian- lly. v. Itiyhij v. Bennett, L. R. 21 C. D. Sprot, 2 Macq. 449 ; North Eastern 559. Ry. V. Crossland, 2 J. & H. 565 ; CHAP. I. EASEMENTS. 247 owner of the land upon wliich the biu'den is imposed ; as in Acts for tlio maintenance of sewers, or gas works, or waterworks, A\'liich require and authorise the laying of in-pes throng] 1 tin- laud of others (o). The right of support for railways and raih\'ay works is now regulated by the exjiress terms of the liailways Clauses Act, 1845, which reserves the minerals to the vendor of land taken, subject to a right in tlio railway company to acquire them if neces- sary for the support of then" works (p). The easement of support for a building may also be Support by acquii-ed by prescription ; that is, from the long con- P'"e«'^"P*^ioii- tinuance of the building without interruption of the support. It is an easement Avithin the meaning of the Prescription Act (q). The owner of the ser^'ient tenement has no practicable means of interrupting the support with- out excavating his own tenement ; for no action will lie merely for imi)osing a pressure upon his tenement by building upon tlio adjacent land ; but a proscrijitive 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 prima 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, pro^'ided 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 OA\Tier (.s). Nor can an extra- ordinary extent of support be claimed by reason of the house ha^dng boiMi Iniilt upon excavated ground, of which (o) He Corporation of Diidlci/, («?) Selbome, L. C, Aiiyus v. L. R. 8 Q. B. D. 86 ; 51 L. J. Dalton, L. R. 6 Ap. Ca. 740 ; Q. B. 121 ; Normanton Gas Co. v. Lemaitrex. Davis, L. R. 19 C. D. Popr, o2 L. J. Q. B. 029. See 281 ; 51 L. J. C. 173; post, p. 286. Wntenvorks Clauses Act, 1847 (10 (;) Daltou v. Ainjus, L. R. 6 & 11 Vict. c. 17) ; Public Health Ap. Ca. 740; 50 L. J. Q. B. 6S9. Act, 1875 (Support of Sewers), {s) Angus v. Dalton, Ij. 'R. d A^. Ameudiuent Act, 1883 (46 & 47 Ca. 740.; 50 L. J. Q. B. 689; Vict. c. 37). Lemaitre v. Davis, L. R. 19 C. D. {])) An!", p. 241. 2S1 : 51 L. J. C. 173: p<,st, p. 291. 248 USES AND rUOFlTS lis LAKl) OF ANOTHER. the owner of tlie servient tenement had no means of knowledge ; but in such case the support might be ac- quu'ed by a continuance of the house without interruption after the owner of the servient tenement had become fully 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 {u). But the right to additional support for the building in its altered state may be acquired by enjoyment of it without intemiption for a time sufficient to acquire an original prescriptive title {f). Damage to TJ^e right of support for the siu^face of land in its natui-al disturbance 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 injury, the existence of the building upon the land is immaterial to the cause of action (ic). And in such case damages may be assessed for the injury to the building consecjuent upon the wrongful distm-bance of the sm-face, 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 canying on works upon the land in a negligent and imj)roper manner having regard to the neighbouring property (y) . The negligence de- pends in some measure upon the knowledge of the adjacent (i) Fartridge v. Scott, 3 M. & W. 785. 220 ; Browne v. Eobins, 4 II. & N. (r) Hamer v. Kiioivles, Slroyan v. 186 ; 28 L. J. Ex. 2-50. Knoioles, 6 H. & N. 454 ; 30 L. J. {u) Mnrchie v. Black, 19 C. B. Ex. 102. N. S. 190; 34 L. J. C. 337. (y) Jones v. Bird, 5 B. & Aid. [v) Angus v. Dalton, L. R. 6 Ap. 837 ; Dodd v. Holme, 1 A. & E. Ca. 740 ; 50 L. J. Q. B. 689. 493; HGeVhadwickv. Trower,&'Bmg. (w) Brotvne v. Robins, 4 H. & N. N..C. 1 ; Guyfordy. NichoUs, 9 Ex. 186 ; 28 L. J. Ex. 250 ; Hunt v. 702 ; 23 L. J. Ex. 205. Feake, Johns. 705 ; 29 L. J. C. CHAP. I. KASEMKMS. 249 owner of the existence and condition of tlie Luildiiig, wliich may impose upon him the duty of exeix-ising his riglits in such a manner as will cause as little damage to it as pos- sible (~). Wliere a person distui-bs the support of his neighboiu''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 injming 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 [h). An easement of support for a house or building by the Support for adjoining buiLling may be acquired, by grant or pre- adjlhibfg^^ scription, similar to the casement of support for a building ^i^/., Q. B. 1. 8 C. B. N." S. 525. {r) Cum/ v. Great Weston Jii/., ((?) Jiiekrtts V. East ,^- W. India L. R. 7 Q. B. D. 322 ; 50 L. J. Doeks Ri,., 12 C. B. 160 ; 21 L. J. Q. B. 386. C. P. 201 ; Dan-son v. Midland R>/., (.v) Riuton v. X Eastern Ri/., L. L. R. 8 Ex. 8 ; 42 L. J. Ex. 49 ; R. 3 Q. B. 549 ; 37 L. J. Q. B. 258. 262 VSES AND TROFITS IN LAND OF AXOTUKR. Level cross- ings. fence which the company are bound hy the statute to maiutain (i). The statutory obligation iipon a railway company of keeping the gates closed at level crossings over highways extends to all persons and cattle whether lawfully using the highway or not ; and the owner of cattle killed on the line may recover for the loss, though they had strayed ofE his land on to the highway and through the open gates of the level crossing (f). The statutory obligation does not apply to a private railway constructed for private purposes across a highway by leave of the highway authority ; the owner of such railway is not bound to fence it, nor is he liable for the loss of cattle trespassing upon it (ii). Easements created by Section III. Creation of Easements. § 1. Grant. — § 2. Prescription. § 1. GrllANT. Easements created by grant or prescription — grant by deed — parol grant— Statute of Frauds — exception or reservation of easements — 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 revived after unity of possession — Conveyancing Act, 1881. Implied grant of rights accessory to casements — right of maintenance and repair — obligation of servient owner. Easements are classed as incorporeal hereditaments ; being incaj)able of possession and consisting in use only. (*) Child V. Hcam, L. R. 9 Ex. S. W. Mi/., 2 H. & N. 424 ; 26 176 ; 43 L. .1. Ex. 100. L. J.Ex. 349; Charmanv.S. Eastern (t) 5 & G Vict. c. 55, s. 9 ; 8 Vict. Ji>/., W. N. 1888, p. 182. c. 20, 8. 47 ; Fawceii v. York, and {u) Ifat.ion v. Balrd, L. R. 3 Ap. Midland Rij., 16 Q. B. 610 ; 20 Ca. 1082. L. J. Q. B. 222 ; Ellis v. London ^- CHAl'. 1. EASEMENTS. 263 They aro thus di.stingui.shed, as subjects of property, from grant or pre- the land itself to whielithey are appm-tenant, %vhieh is held ''''"P*'°°- in possession, and whicli at common law was transferred by delivery of possession, and therefore was said to lie in livery ; while easements and other incoi-poreal heredita- ments were said to lie in grant {a) . 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 l)y law to raise the presumption of a grant. " Except A\'herc 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 o"\vner 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 corporeate " {c). Easements may also be created by testa- mentary de\dse, 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 i)i//erifance>s, yet the prin- ciple does not depend on the quality of interest granted or transferred, but on the natm'e of the subject-matter; a right of common, for instance, which is a profit a prendre, or a right of way, which is an easement, can no more bo granted or conveyed for life or for years without a deed, than in fee simple" (e). By the Conveyancing Act, 1881, Conveyancing 44 & 45 Vict. c. 41, s. 62, easements may be granted by '' ' (a) Co. Litt. 9 a, b ; ante, p. 185. 571 ; Beeroldenv.Baslnrdy'L.'R. 1 Q. lb) Cockbiiru, C. J., A>if/iis v. B. 156 ; 35 L. J. Q. B. 92 : Jlurms Daftori, L. li. 3 Q. B. D. 102 ; 47 v. loach, L. K. 1 Q. B. D. 494; L. J. Q. B. 175. 48 L. J. Q. B. 750. {c) Co. Lit. 9 a, b ; per ear. (<) J'er ear. Wood v. Zcadbitler, JFood V. Leadbitter, 13 M. & W. 13 M. & W. 842 ; Hewlnts v. Ship- 842. paw, 5 B. & C. 221 ; Bake of Somer- [d] Fearson v. Speneer, 1 B. & S. set v. FogucU, 5 B. k C. 875. 264 USES AND rildl'ITS IN I.ANJ) OF ANOTIIKK. Easements pass as ap- purtenant. Parol grant. Statute of Frauds. way of use. " A conveyance of freehold land to the use that any person may have, for an estate or interest not exceeding in duration the estate conveyed in the land, any easement, right, liberty 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, liberty or pri\dlege, 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 " if 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, tliough 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 (Jt) . 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 {i). — 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 h ; Sacheverill y . Forter, Cro. Car. 482. {g) Per cur. Bird v. Higginson, A. & E. 826. [h) Ante, p. 195. (;) iJavis v. Morgan, 4 B. & C. 8. CIlAl'. I. KASEMKMS. 26o writing (J). A more licence to use land, not Loing an easement appurtenant to land, is not an interest in land within that statute ; it may be given without deed and without writing (/.). 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 such contracts in respect of specific performance and damages {ni). An easement cannot be created by way of exception Exception or from a grant of land, because an easement not being any of^easc-^*^^ 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 teniu'e of land. Therefore, in making a grant of land wdth 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 effectuate 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 {n). Upon the above principle that an easement is an incor- Easements poreal right and no part of the land itself, it is held that JJu^ ckuses 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 (/) McMaiius V. Cooke, L. E.. 35 v. London School Board, L. E. 36 C. b. 681 ; 50 L. J. C. 662. C. D. 619 ; 57 L. J. C. 179. Ik) Tai/ler v. iratrrs, 7 Tauut. (;/) Durham S; Sundfrhtnd Mi/. 374. Co. V. Walker, 2 Q. B. 940. See (/) Ante, p. 197. Wickham v. Hawker, 7 M. & W. {in) McManus v. Cooke, L. R. 35 63 ; Doe v. Lock, 2 A. & E. 743. C. D. 681 ; 56 L. J. C. 662 ; Rowc 266 USES AND PROFITS IN LAND OF ANOTHER. are appiu'ten.ant to the land purcliased 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 piu"chase 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 injmiously affected by tlie taking of the land (o) . The person thus deprived of an easement has no ground of action or injunction, but can only proceed for compensation under the statute [p). Upon the same construction 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 ; unless authority to do so is given by the special Act of the undertaldng {q). So the power of a railway company to divert ways does not authorise them to enter upon land to make a new Avay, witliout having first acquired the land under tlieii' powers to purchase (r). But the special Act may give the power to take an easement, as the easement of tunnelling, or bridging, or crossing on a level ; and the ordinary proceedings of the Lands Clauses Act will then apply to the piu-chase, subject to the provisions of the special Act («). Implied grant A grant of land, being a part of land previously held of necessary y^j ^j^g grantor in entirety, to which there could appertain no easements over the rest of the land during the united (o) Eagle V. Charing Cross lii/., (p) TFigram v. Fn/cr, oG L. J. C. L. li. 2 C. P. 638 ; 36 L. J. C.'P. 10'J8 ; L. R. 36 C. B. 87. 297; Clark V. Zondon School Hoard, [q) Jessel, M. R., Metrop. llij. L. R. 9 Ch. 120 ; 43 L. J. C. 421 ; Co. and Cosh, L. R. 13 C. D. 616 ; HcdJ'ord v. Daivson, L. R. 20 Eq. Tinchin v. London and Blackwall 3o3 ; 44 L. J. C. 549 ; Macey v. By., 5 D. M. & Q. 851 ; 24 L. J. Metrop. Board, 33 L. J. C. 377. Sec C. 417. ISucclcuch V. Metrop. Board, L. R. (r) Rangeley v. Midland lii/., L. 5 H. L. 418 ; 41 L. J. Ex. 137 ; R. 3 Ch. 306 ; 37 L. J. C. 313. Artisans' and Labourers' Dwellings (.v) Hill v. Midland lii/., L. R. 21 Act, 1875 (38 & 39 Vict. c. 36), CD. 143; 51 L. J. C."774 ; Great s. 20, extinguishing easements over JFcstern My. v. Swindon By., L. R. land purchased ; Swainaton v. Finn, 22 C. D. 677 ; 53 L. J. C. 1075. 52 L. J. C. 235. ciiAi'. I. EAsi;Mr,.Nis. 267 possession, ImpHodly creates such easements for tlie benefit of the land granted over the land reserved by tlie 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" (f). Accordingly, "wliere a man having a close surrounded Way of neces- with his own land grants the close to anotlier in foe, for life, or for years, the grantee shall have a way to the close over tlie grantor's land as incident to the grant ; for without it lie cannot derive any benefit from the grant" (ii). So where land is devised by mil, to wliich there is no access except over other land of the testator, a way of necessity is impliedly given to the de\dsee(r). The doctrine applies to land taken under compulsory powers for public pur- poses («') ; and it applies where the grantor is a trustee of the close granted, without any beneficial interest {x) . But the doctrine apjilies only to a grant or what is ecjuivalent to a grant, from the o■\^^ler of both tenements; it does not apply to tenements the titles to wliieh are severed by escheat (y), nor does it apply in cases of necessity arising from other causes than severance of title, as where a A\'ay has been destroyed or has become impassable (;:). — The Implied grant same doctrine is applied to the case where a person grants hmd gnmteJ. tlie 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 close reserved. It is implied b}' \Na}^ of (0 Mcllish, L. J., ZSo also a way through an archway under a house {>/). 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 (~). The implied easement is limited in duration to the estate ^'hich 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 acc[uire ; and he may piu-chase the reversion free of all easements implied in his former grant unless he has bound himself by representations respecting them (rt). An implied grant of easements can only be (u) Birmingham Banking Co. v. Moss, L. li. 38 C. D. 296; 57 L. J. C. 601. (f) Fhcijseg v. Ticarij, 16 M. & W. 484 ; jror(ki)i//ion v. O'imson, 2 E. & E. G18 ; 29 L. J. Q. B. 116; Bodd v. BnrchaU, 1 H. & C. 113 ; 31 L. J. Ex. 364 ; Pearson v. Spencer, 1 B. & S. 671 ; 3 ib. 761 ; Brett V. Clowscr, L. R. 5 C. P. D. 376. [w) Bramwell, B., Langhy v. Hammond, L. E. 3 Ex. 171 ; 37 L. J. Ex. 118; per cur. If'att.s v. Kelson, L. R. 6 Ch. 174 ; 40 L. J. C. 128 ; and Brett v. Cloirser, L. R. 5 C. P. D. 382 ; Chitty, J., Bagley V. Great Western R>f., L. R. 26 C. D. 441 ; Thomas v. 'Owen, L. R. 20 Q. B. D. 22.5 ; 57 L. J. Q. B. 198. [x) Brown v. Alabaster, L. Ri 37 C. D. 490 ; 67 L. J. C. 255. [y] Bavies v. Sear, L. R. 7 Eq. 427 ; 38 L. J. C. 545 ; ante, p. 268. [£) I'olden v. Bastard, L. R. 1 Q. B. 156; 35 L. J. Q. B. 92. {a) Booth V. Alcork, L. R. 8 Ch. 663 ; 42 L. J. C. 557. CHAl'. I. r.ASF.>[ENTS. 273 made over land of A\lii(li the grantor is beneficial owner; there can ho no such implication over trust propert\' 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, cannot 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 derogation of tenement granted for the benefit of the tenement reserved ff^ant. by the grantor. " The grantor cannot derogate from his 0A\Ti 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, unless ho shows the contrary by expressly reserving it. The law will not reserve anj^thing out of a grant in favom* 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 stipidating for the access of light, there is no impHed grant by the piu'chaser of the land of the light pre^'iously used for the house ; for such implication would operate in derogation of the express grant of the land. The pm'chaser may build upon the land as he pleases and thereby obstruct the light (.). (J) Beddington v. Atke, L. R. 35 (- 298; 41 L. J. Ex. 241. V. Lawrenci; 2 D. J. & S. 2G1. " (.r) llarding v. IJ'Usoii, 2 B. & C. (iv) Roberts V. Karr, 1 Taunt. 96. 278 USES AND PROFITS IN' I,AjS1> OF ANOTHER. riglit or easement " tlieremtli used and enjoyed" {//). But it is not necessary that an easement should have formerly existed as appm-tenant to a tenement before unity of possession, in order to satisfy the description of heing " 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 would be created as a right de novo and in the other merely re\aved. But it makes a great difference, as matter of evidence on the question Avhether the way was used and enjoyed as appurtenant." The way which had existed i^reviously to the unity of j)ossession 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 who 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 (z) . Convey ancino- " ^^ modern cleeds the words ' therewith used and en- Act, 1881. joyed' are generally inserted, because the words 'appertain- ing and belonging' are not sufficient," for the above reasons (rt). The Conveyancing Act, 1881, 44 & 45 Vict, c. 41, s. 6, enacts for the futiu-e 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 alia), all ways, watercourses, easements, rights and advantages whatsoever, appertaining or rej)uted to appertain to the (y) Whalletj v. Tompson, 1 B. & Eq. 36 ; 37 L. J. C. 495 ; Langley P. 371 ; Bayley, B., Barloio v. v. Hammond, L. E,. 3 Ex. 161 ; 37 Rhodes, 1 C. «& M. 448; per cur. L.J. Ex. 118; Barkshire-v. Gruhb, James v. Plant, 4 A. & E. 761. L. R. 18 C. D. 616 ; 50 L. J. C. {z) Blackbum, J., Kai/ v. O.rhi/, 733. L. K. 10 Q. B. 367 ; 44 L. J. Q. 13. («) Lyndliursfc, C.B., Barlotv v. 210; Thomson v. Watcrlow, L. R. 6 Rhodes, 1 C. & M. 444. CHAP. I. EASEMENTS. 279 land, or at tlio 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 " (i). And (6.) It "applies only to conveyances made after the commencement of the Act." The grant of an casement impliedly includes all rights Implied over the servient tenement that are necessary for the fidl "vht* a^ce - use and enjoj-ment of the easement ; as expressed in the sory to ease- maxim, " quando aliquid conceditur, conceditur ct id, sine ^ ^ ^' quo res esse non potest" (c). Thus the grant of a right of Eight to way impliedly gives the right of making and repairing a ^^i^'"'"- road for the convenient exercise of the right ; and the right to a di-ain 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 maintain 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 -VNOi-k to keep it in repair (//). The right appiu-tenant to a tene- ment for tlic occupants to supply themselves with water fi-om a well or from a piunp upon the tenement of another (J) Wlicthcr a deed of convey- (c) See Co. Lit. 5G a. ance puriiortiufi- in tcmis to pass (d) Ante, p. 210. "appurtenant" casements is a (<■) -i/i^, p. '2ol. sufficient expression of a contrary (/) Ite LuiUcy Corp., L. R. S intention to exclude the operation Q. B. D. SG ; 5i L. J. Q. B. 121. of this enactment, see Btddiixjlon v. (istmction of , ^ ^ . easements by limited exclusively by the e\ddence of use and enjoyment ; prescription for though a grant is implied in law, the usage alone ^^ °^'^° ' indicates the nature and extent of the right impliedly granted (/>) . On the other hand an casement 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. E\'idence may be given of the state and cii-cumstances of the tenements at [a) Co. Lit. 113 4; anle, p. 185. {!>) Ballard v. Bijson, 1 Taunt. 279 ; ante, p. 206. grants. 282 USES AND PROFITS IN LAND OF ANOTHER. Construction of ffrant. 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 (c/). 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 pm-poses for which the way has been in fact used (e) . Upon the same j)riiiciple an express grant of a di'ain 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 roquii-ed 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 ha\ing continued from time immemorial ; but proof of a commencement or of any interruption of the use at any time however remote defeated the immemorial pre- sumption. Tlie time rerpiii'ed to establish a title to land was equally indefinite until limited fi'om time to time by (c) Chad V. Tilsed, 2 B. & B. 403; Wood V. Saunders, L. R. 10 Ch. 582 ; 44 L. J. C. 514 ; Be la Warr v. Mills, L. R. 17 C. D. 535 ; 49 L. J. C. 487. {d) Willes, J., Williams \. James, L. R. 2 C. P. 581 ; 36 L. J. 0. P. 259; Wood v. Saunders, L. R. 10 Ch. 584; 44 L. J. C. 519; New Windsor V. Storell, L. R. 27 C. D. 672; 54 L. J. C. 116. (e) Ante, p. 206. (/) Xeiv Windsor V. Stovell, L. R. 27 C. D. 665; 54 L. J. C. 116. CIIAl'. I. EASEMENTS. 283 statutes ; of wliicli the Statute of "Westminster, 3 EJw. I. 0. 39 (a.d. 1275) fixed tlie date for alleging seisin in a writ of right at the beginning of the reign of Richard I,, A.D. 1189. 13y 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 {(/) . Accordingly, the production of a grant or other title destroyed the prescriptive title by sho-\ving the ti-ue origin ; unless it could be shown that the grant was in confirmation of an earlier right, or that it W'as eai'lier 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. c. 2, limited the vrrit of right to sixty years, and possessory actions to fifty years, after the right first accrued. The statute 21 James I. c. IG, a.u. 1623, limited the possessory action of ejectment for the recovery of laud to twenty years after the right accnicd. But these statutes were not extended by the Com-ts to ineorjDoreal hereditaments and easements in the same manner as the earlier statute of 3 Edw. I. ; and immemorial prescription at common law was still requii-ed to date, presumptively at least, 'from the reign of Richard I. (/). In order to meet the cases where a prescrii:)tive claim Non-existing was defeated by proof of commencement or interruj^tion ^^'^*- within legal memory, the Courts in-troduced 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 dm-ation to (p) 2 Co. Inst. 238; Co. Lit. 114 Ir, becaiiso 'the said limitation of a Jenkins V. llitrvcij, 1 C M. & R. writ of right is of so long time 877. "This, whou first introduced, past.'" L. Blackburn, Dalton v. gave a prescription of about oighty- Angus, L. ll. G Ap. Ca. 811. six years, but being a ii.\ed date it (h) Addington v. Clodc, "W. became longer and longer, and Blackst. 989; Churchy. Tame, L. already when Littleton wrote, in R. 2 C. P. 480, n. the reign of Edward IV., he ob- (i) Thesiger, L. J., Angus v. serves on the inconvenience felt, Dalton, L. R. 4 Q. B. D. 170. 284 USES AM) PllOFlTS IX LAND OF ANOTHER. maintain an inimomorial prescriptive title tlien iDecame available as secondarj- evidence of the lost or non-existing grant. Twenty years of uninterrupted 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 oidy legal origin of the right. But the pre- sumption may be rebutted, or rather it does not arise, if it appears 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 A\Tongful. 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 cu'cumstances of the claim (/). — Accordin_g 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 Inclosure Act extinguishing all former rights of way over the spot in question (/.•). 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 union of the possession of the dominant and servient tene- ments during which all easements and appiutenant rights {J) Lord Blackbura, Dalton v. For my part I have always been of Anyus, L. R. G Ap. Ca. 812. But opinion, that if a judge is asked to see Brett, L. J., Be la Warr v. find the fact of a grant and to say Miles, L. R. 17 C. D. 591, who that it has been lost, he must have there says : ' ' The doctrine with ground for believing that it was regard to the presumption of lost so." grants is at the present moment {k) Camphell v. JVilson, 3 East, the subject of much controversy. 294. CHAP. 1. EASEMENTS. 285 were necessarily oxtinguislied (/) . Easements appurtenant to houses, as tlie easements of light ami support, could seldom be claimed by proscription at common law because few houses could be traced back even 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 title {ni). So the claim to suppoii for a house may be supported by twenty years' imintcrrupted enjoyment (>/). The Prescription Act, 2 & 3 Will. IV. c. 71, by way of Prescription 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 lliehard the Eii"st, 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 sj)ecies 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 dm-ing 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 (/) Cotrlam v. Slack, 15 East, 108. J. C. 487 ; Lord Blackburn, Ballon («() Darwin v. Upton, 2 Wms. v. Angus, L. R. 6 Ap. Ca. 811 ; Saund. 175 r; Crots \. Lewis, 2 B. post, p. 287. & C. 686 ; Mellish, L. J., Leech v. («) Angits v. Dalton, L. R. 6 Ap. Schu-eder, L. R. 9 Ch. 472 ; 43 L. Ca. 740 ; 50 L. J. Q. B. 689. 286 rSES AND PROFITS IN LAND OF ANOTHER, Prescription of twenty years for ways, watercourses, and otlier easements. Forty years. Easements within the section. able to support his claim in these forms, though his evi- dences of enjoyment be such 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- com'se, or the use of any water, to be enjoyed or derived upon, over, or from any land or water, bemg the property of any ecclesiastical or lay person, or body corporate, when such w^ay or other matter shall have been actually enjoyed by any person claiming right thereto without inteiTuption for the full period of twenty years, shall be defeated or destroyed by showing only that such way or other matter was 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 agi^eement expressly given or made for that pur- pose by deed or writing." — This section does not sanction any new easements 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 over or from any land or water " {p). — The following easements have been held to be witliin the enactment : As to buildings, the right to lateral support from the adjoining land (y), also (o) Aynsley v. Glover, L. R. 10 Ch. 283; 44 L. J. C. 523; Sel- bome, L. C, Balton v. Angus, L. R. 6 Ap. Ca. 800 ; Lord Black- hum, ib. 814. {p) Lord Selhome, L. C, Balton V. Angus, L. R. 6 Ap. Ca. 798, dif- fering from Erie, C. J., in Webb v. Bird, 10 C. B. N. S. 282, who ex- pressed the opinion that it was meant only to apply to the two descriptions of rights specified, namely, rights of way and rights of water. [q) llalton -V. Angus, L. R. 6 Ap. Ca. 740 ; 60 L. J. Q. B. 689. CHAT. I. EASEMENTS. 287 the rig-lit to support for a building from the ii1) rUOFlTS IN LAND OF ANOTHER. Vol antars- dis- continuance. Discontluu- ance for a con- sideration. Impossibility of enjoyment. Discontinu- ance by unity of possession. respect of an opening sometimes in one place and some- times in another (e). A volnntary abstinence from tlie exercise of an easement is not such discontinuance of enjoyment as will jirevent the accrual of a prescriptive title, unless attributable to an abandonment or defect of rig-lit. " 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 right continued during the wliole time " (/). — If the owner 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 enjojTiient (//). 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 of the fact of enjoyment (A). — Also "an allegation that a person has a right to do anything at all times at his free will and pleasure, necessarily embodies in itself a tacit exception of those times at wdiicli 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 tide, or at certain seasons of the year («"). — Unity of pos- session of the dominant and servient tenements effects a discontinuance of tlie enjoyment as of right and stops the accrual of a prescriptive title ; because there is then no (c) Harris v. Dc Pinna, L. R. 33 C. D. 238; 56 L. J. C. 344. (/) Carr v. Foster, 3 Q. B. 586 ; Tickle V. Brown, 4 A.-& E. 369. ig) Patteson, J., Carr \. Foster, 3 Q. B. 585 ; Davis v. Morgan, 4 B. & C. 8 ; Ward v. Ward, 7 Ex. 838 ; 21 L. J. Ex. 334. (A) Tickle V. Brown, 4 A. & E. 369 ; Plasterers' Co. v. Parish Clerks^ Co., 6 Ex. 630 ; 20 L. J. Ex. 362. (j) See The ICimj v. TippcU, 3 B. & Aid 202. (HAP. I. EASEMENTS. 297 Oil jo vment of tlio easement as such(y). But it does not merge or extinguisli a i)reviously accrued title, unless there is also a unity of title (/r). " The accruing right is only suspended during tlie union of the possession. So that if it had been shown tliat tlie enjoyment had lasted for fifteen years and iqiwards, and tlien thero liad Locn an interruption hy unity of possession, and tlien the enjoy- ment liad histed for five years more without tlie unity of possession, in such a case an enjo;yTnent for twenty years could have been pleaded" (/). But such enjoyment would not satisfy the Prescription Act, which requu'es an enjoy- ment for the period next before the commencement of the action (m). Section 4 enacts, " tliat each of the respective periods Enjoj-meut of years shall be deemed and taken to be the period next next before before some suit or action wherein the claim or matter to ^"^tion. which such period may relate shall have been or shall be brought into question." Hence the proof of enjoyment must be brought down to the commencement of the action {)i). Proof of the use of a way till within four or five years of the commencement of the action, there being- no evidence or ex})lanatioii given as to those years, was held insutlicient to satisfy the statute ; and upon the same principle evidence wliich failiMl to bring tlie enjoyment witliiii fourteen months of tlie action Avas 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 sulRcient to raise the inference of a continued enjoyment diu'iiig the whole statutory period (p). " A cessation of user which excludes an inference of actual enjoyment as of right will bo fatal {/)Atitt;i^.\dO; Oiilci/\. Gardiner, (m) Sect. 4; Onlri/ v. O'ardiiur, 4 M. & W. 496. 4 M. & W. 496. (X) Aifnski/ V. Glover, L. E. 10 («) Jones v. Trice, 3 Biog. N. C. Ch. 283 ; 41"L. J. C. 523, post, j). 52. 310. («) Parker v. Mitehell, 11 A. ^t E. {I) Hatheilov, L. C, Ladynutit v. 788 ; Louc v. Carpenter, 6 Ex. 825. Grtur, L. R. 6'Ch. 768. (/>) Ante, p. 295. 298 USES AND nioriTs l^• land of anotjier. at whatsoever portion of the period the cessation occurs ; and, on the other hand, a cessation of user 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 occiu's 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 fi'om their fii'st commencement, and to legalise every act done in the exercise of the right dming their continu- ance" (r). On the other hand, an enjoyment for the prescribed period uj) to the time of the injiuy complained of does not satisfy the statute, unless it be fm-ther con- tinued up to the commencement of the action. " An enjojTuent 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 enjoyment is or is not con- tinued to the commencement of the suit" (.s). — An enjoy- ment for the prescribed period next before any action wherein the claim or matter is brought in Cjuestion 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 suits or actions" {t). — Evidence of enjoyment that falls short of [q) Per cur. llollhis v. fcrnci/, (.s) liichards v. I'nj, 7 A. & E. L. R. 13 Q. B. D. 311 ; 53 L. J. 698 ; per cur. Ward v. liubbis, 15 Q. B. 436. M. & W. 242. (>•) Wriyht V. WilliamK, 1 M. k {() Cooper v. HahbiwJc, 12 C. B. W. 77. N. S. 456 ; 31 L. J. C. P. 323 ; Williams, J., di(e. CllAr. 1. EASEMENTS. 2'Ji) the coimnencenicnt of tlio caetiun, aud tLcrofure fails to prove a prGseriptive title under the Act, may still Le em- ployed to prove a prescrii)tive title at common law or a presumed grant; for the Prescription Act has left these modes of claim as before (k). Section 4 further enacts, " that no act or other matter lutemjption shall he deemed to he an interruption Avithin the meaning ^^ servient ■■■ o owner. of this statute, unless the same shall have been, or shall bo submitted to or acquiesced in for one year after the party interrupted shall ha^-o had, or shall have notice thereof, and of the person making or authorising the same to be made." " Intcrru})tion " in this section and in sections 1 and 2 means an adverse obstruction by the servient OAvner, not a mere vokmtary 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 continmty of enjoyment, and enjoj'ment prior to the interruption cannot be called in aid to com- plete the required time («). Payment of rent for the use of an casement is not an interruption of enjoyment within the statute, though it may operate as an admission of adverse right (.r). Interruption may be made by an actual obstruction of the enjoyment upon the servient tenement ; or by taking Irgal proceedings against the claimant for damages or for an injunction. But mere non-accpiiesceuce 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 qiti non pro/iibcf quod proJtibere potest asacntire videiiir {//). Nor, on the other hand, is the acquiescence of the ser\aent owner for less than the prescribed period of enjoyment material ; nor («) Ante, p. 28o. (j) Plasterers'' Co. v. ParUh Clerks'' (r) Ciirr v. Fushr, 3 Q. B. oSl ; Co., G Ex. C30 ; 20 L. J. Ex. 3G2 ; Parke, B., Utiley v. Gardiner, 4 M. ante, j). 29(3. & W. 497. {>,) Tluvsi-er. L. J., A>„,us v. {w) Baikij V. Jpplei/ard, 8 A. v^- LiiUoti, L. 1{. 4 (j. B. D. 17'> E. IGl. 300 ISES AND rilOFlTS IX LAND OF ANOTHER. Interruption short of a year. Partial inter- ruption. Submission of dominant owner. is any right in law or in equity gained thereby (2): In the case of Hghts 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 neighboiu" (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 }'ear. " 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"(i^). It is said that as the statute recpiires 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 (c/). — A partial or local interrup- tion may operate to defeat the prescription so far as it extends, without affecting tlie 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 cu-cumstances. Complaints and protests under (z) Blanchard v. Bridgcn, 4 A. & E. 194. {a) Bayley, J., Cross v. Leicis, 2 B. & C. G89. {b) ITiqht V. Thomas, 11 A. & E. 688; 8 CI. & F. 231. (c) Parke, B., Lowe v. Carpenter, 6 Ex. 831 ; per car. IIo/Hiis v. Ver- )iei/, L. R. 13 Q. B. D. 309; .53 L. J. Q, B. 430. {(l) IloUins V. Verney, supra; ante, p. 295. [e) Welcome v. Upton, 6 M. & W. 636; Daviesv. WilUams, IG Q. B. 546 ; 20 L. J. Q. B. 330. CHAP, I. EASEMENTS. .'}01 certain circumstances may be euoug-li to show tliai lie does not submit or ucciuiesce, although lie do not tako' any active steps to abate the interruption, or bring- any ac- tion (/). Notice of the intcrru])ti(jn and of the person making or authorising it, other llian tliat arising from the mere existence of the obstruction, is a necessary condition precedent of submission under the statute {(j). And the submission must continue for a year in order that the in- teiTuption may avail to defeat the prescription {//). Section 6 enacts, " that in the several cases mentioned Presumption in and provided for by this Act no presumption shall be ^"[J. ^Eof allowed or made in favour 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 tliis Act as may be applicable to the case and to tlie nature of the claim." " This section is addressed to presumptions as distinguished from legitimate inferences from facts. It assimies proof of actual enjoyment for a less i^eriod than twenty years, and forbids any presumption being made simply from such short enjoyment in favour of an actual enjoyment for a longer period tlian that proved ; but it does not forbid inferences from an enjoyment for a less period than twenty years and other cu'cumstances, if there are any"(/). The statute does not affect the ordinary inference of continuous enjoj-ment derived from proof of enjoyment from time to time, ha\ing regard to the natm-e of the easement. Accordingly continuance of enjoyment at the commencement of the period of prescription may be proved by evidence of enjojTiient at an earlier time. And continuance of enjoyment up to the commencement of the (/) Bauiison v. Cariwright, 5 B. (/i) Flight v. Thomas, 8 CI. & F. & S. 1 ; 33 L. J. Q. B. 137 ; Olovvr 231. V. Coleman, L. R. 10 C. B. 108 ; 44 (i) Per cur. IToUiiis v. Vimeijy L. J. C. P. 66. L. R. 13 Q. B. D. 308 ; 53 L. J. {(i) Scddon V. Bank of Bolton, Q. B. 433 ; AVestbury, L. C, L. R. 19 C. D. 462; .51 L. J. C. Jlanmrrv. Chance, 1 1). J. & S. 626; 542. 3t L. J. C. 416. 302 r>ES AM) PROFITS IN LAND OF ANOTHER. action may be inferred from evidence of preceding enjoy- ment continued to a sufficiently recent period [j). This enactment applies only to claims made under the statute. It does not affect the presumption of common law in aid of immemorial enjoyment from evidence of enjoyment within living memorj^ ; nor the presumption which may be made in certain circumstances of a non-existing grant (/.•). Disabilities Section 7 enacts " that the time dm-ing which any o^vner. 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 corcrf, or tenant for life, or during which any action or suit shall have been pending and which shall have been diligently prosecuted until 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 fi'om 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 riglit 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 full period of forty years under sect. 2 (which are subject to the excej)ted 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 ij) lawson V. Lanrjley, 4 A. & Ch. 283; 44 L. J. C. 523; ante, E. 890 ; Carr v. Foster, 3Q. B. 581 ; p. 299. ante, p. 297. (0 -^«^^'^ v. Skinner, 18 Q. B. 568; {k) Atjnskij V. Glover, L. R. 10 22 L. J. Q. B. 27. CHAP. 1. ii;AsF,:xrENTs. 'J03 the servient tenement, or for any of the excepted conditions of the servient owner mentioned in the above section (;>?). The computation of tlie prescribed period is only sils- Suspension of -7 ,T, ,.,. PTT-Ti 1 computation, ponded during- the excluded conditions ot disability, and upon the removal of tho disability the computation is resumed from tlic point where it left off ; the effect being to extend the period of continuous enjoyment which is necessary to give a riglit by so long- a time as the excluded condition lasts. Tho claimant may prove an enjojnnent for the prescribed period cither 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 ah'cady noticed, ai-rests the computation altogether and defeats the claim (o). Tho enjoyment during the conditions of disability, Interruption though exoluded from computation, is not exempted from abilities. interruption. The tenant in j)Ossession may actively obstruct tlio easement and interrupt tho enjoyment ; and " although the tenant for life cannot by acquiescence bm-then the estate, 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 injm-ious 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 light, the landlord lias no power of interruption, nor any remedy, imless he can procm-e his tenant to obstruct the easement or to bring an action (r). {>») Simpn- V. Tohi/, 2 J. & IT. 500 ; anle, pp. 294, 299. 655; I'rewrn v. I'hillips, 11 0. (/') I'cr cur. Clnijton v. Corln/, 2 B. N. &. 455; 30 L. J. C. P. Q. B. 825. 366. (/man v. («) Wrlfjht v. IFilliums, 1 M. & Grave, L. R. G Ch. 7G9. W. 100 ; I'a/k v. Shlnncr, supra. (it) The word "convenient" is {v) Wright v. iril/ican.s, supra; probably a mistake for the word Laird v. Brifjgs, L. E,. 19 C. D. 22 ; "easement " (see sect. 2) ; but it is Hymons v. Leaker, L. R. 15 Q. B. D. doubtful if it can be so read. Jessel, 629; 54 L. J. Q. B. 480. M. R., Lnird v. Brifjrjs, L. R. 19 {w) Per cur. Onleij v. Gardiner, 4 C. D. 33. M. & W. 500. CHAP. I. EASEMENTS. 305 Section IV. Extinction of Easements. Release — presumption from disuse. Abandonment — ways — liglits — water easements. 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- Release, 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 presimied from long enjoj-ment, 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 close, 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 simihu- non-user, to raise a presumption of a release" (j., Willcs, 282. L. R. 2GC. D. 434. ( /) Cook v. Mayor of Bath, L. R. (//) TJ'ard v. Ward, 7 E.k. 838 ; 6 Eq. 177. 21 L. J. Ex. 334. {k) Bower v. HiU, 1 Bm^. N. C. (j) LovcU V. Smith, 3 C. B. N. S. 549. 120. See Meignolds v. Edwards, x2 308 USES AND PROFITS IN LAND OF ANOTHER. inferred. "VVliere an ancient window had been closed up witli brick and mortar and suffered to remain so closed for more than twenty years, it was held that the right was abandoned and lost, as if it had never existed (/). And where the owner of a house pulled it down and erected a blank wall in its place, it was held that he thereby pre- sumptively abandoned the light appm^tenant to the house ; and, the adjoining owner having built close to the wall, he could not afterwards, upon opening a window in the wall in the position of the original light, complain of an obstruction (di) . But where the owner of a house stopped up his windows, for the more convenient use of his house for a special purpose, it was held to raise no such pre- sumption of the abandonment of his right to the light as would preclude him from re -opening the windows for the pm-pose of preventing the servient owner from building in Rebuilding a manner to obstruct the light {n). — An easement of light H'^hts!^'^ is ^Iso abandoned by pulling down the house and building a new house upon 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 enjoying a part or the wliole of the light which went through the old aperture." The light that is not sub- stantially retained in tlio new house is considered as abandoned ( 7-*). 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, (?) EUenborough, C. J., Law- (p) Scoit v. Fnpe,!..^. 31 CD. rence v. Obee, 3 Camp. 514. 570 ; 55 L. J. C 429 ; Barnes v. {m) Moore v. liawson, 3 B. & C. Loach, L. E. 4 Q. B. D. 494 ; 48 332. L. J. Q. B. 756 ; Newson v. Pender, (w) Stokoe V. Singers, 8 E. & B. L. R. 27 C. D. 43 ; Greemvnod v. 31 ; 26 L. J. Q. B. 257. Jlormey, L. R. 33 C. D. 471 ; 55 (o) Fowlers v. Walker, 51 L. J. C. L. J. C. 917 ; ante, p. 216. 443. CHAP. I. EASEMENTS. 309 the remedy would Lc lost, upon tlio principle lliat de minimis non curat lex, and the ancient light would he con- sidered as wlioUy ahandoned (7). And if in pulling do^^^^ an ancient huilding and erecting a new one evidence of the position of the ancient lights he not preserved, they ^vill he practically ahandoned; hecauso the owner will lose his remedy for an ohstruction for want of evidence of his right. " He is hound to prove to the satisfaction of the Court that some particular part of the new window repre- sents some suhstantial part of the old window " (r) . Where a statutory power was given to pull do^^^l a church and sell the site for huilding, it was held that the rights of light that were appurtenant to the church were retained and might he sold with the site ; and that they woidd he protected hy the Court until new huildings were erected (s). — An easement of light may also he ahandoned and lost hy Licence to , . . ... obstruct per- the dominant owner hcensmg or acquiescing m some per- n^ancutly. manent ohstruction of the light upon the servient tene- ment. Wliere the owner of a house lighted fi'om an adjoining area gave leave to huild a skylight over the area to the ohstruction of the light, it was held that after the A\ork had heen executed he was precluded from revoking the leave, according to the general principle of law " that a licence executed is not countermandable, hut only when it is executory" (/). The same i)rinciples apply to easements of water. If Abandonment i ^ ii^ Pi 111 °' water the owner of a mill upon a stream of water pulls down casements. the mill and removes the works it is presumptively an abandonment of the water easements appmteuant to the mill (w). But the discontinuance of the use of a mill dm-ing a lease of the water rights to another mill owner for the term of ninety-nine years was held not to he an Iq) JTcalh v. IhwhiaU, L. It. 8 (a) FacUs. Commh. v. Kitio. L. R. Eq. 1 ; 38 L. J. C. 372, explaiucd 14 C. D. 213 ; 49 L. J. C. 52!<. in Stalaht v. Ihoii, L. R. 5 Ch. (0 Wivttr v. Ihockur//, 8 East, 163 • 39 L. J. C. 289. 308 ; ./(./umuii v. Ifyalt, 2 D. J. &; (/•) Fotikrs V. Jfaan; 51 L. J. S. 18 ; 33 L. J. C. 397. C. 443. See Scotl v. Fapc, supra. («) Tcr cur. Liggius v. luge, 7 Bing. 693. 310 USES AND PROFITS IN LAND OF ANOTHER. abandonment of the right to the water, which reverted at the end of tlie lease, though the mill had been pulled down during the lease (v). Where works which had been used for dyeing, witli tlie appurtenant easement of discharging the water fouled by tlie dye-works into a stream, had been disused for more than twenty years and had been suffered to go to ruin, during which time other riparian owners had erected works upon the stream ; it was held that the ease- ment was abandoned and could not be resumed to the injury of the other works (ir). Where the owner of a mill with water easements gave licence to a riparian owner to cut through the bank of the mill stream and erect a weir for the purj)ose of diverting the water to a mill of the latter, it was held that after allowing such works to be executed he could not countermand them and require them to be pulled down so as to restore the flow of water to his own mill (x). But such licence would be revocable, except so far as it had been acted upon and expense in- curred ; for it is on that ground only that it can be irre- vocable (//) . Where a canal company constituted by statute, with power to divert natm\al streams to feed the canal, by a subsocpient Act was empowered to convert the canal into a railway ; it was held tliat 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 have the streams flow in their original course (c) . And under like circumstances it was held that the lower riparian owners were obliged to suffer the flow of the stream in its original coiu^se as before tlie diversion, although it was injmious to them (a). Extinction by Easements are extinguished by the titles of both the urn y It e. dominant and servient tenements becoming united in one (v) Davis V. Morffan, 4 B. & C. 8. (z) Nalional Manure Co. \. Donald, [w) Croisley v. Lir/hioivlcr, L. R. 4 H. & N. 8 ; 28 L. J. Ex. 185. 2 Ch. Ap. 478 ; 36 L. J. C. 581. [a) 3Iason v. Shreivsburij lit/., (x) Lir/ginfi v. Inge, 7 Bing. G82. L. R. G Q. B. 578 ; 40 L. J. (y) Mason v. ILil'l, 5 B. & Ad. 1. Q. B. 293. CHAP. I. EASEMENTS. 01 J person ; because all uses and enjoyments of the servient tenement then become referable to tlie simple right of ownorsliip. An easement cannot bo maintained as a dis- tinct riglit by an owner over any part of liis own land ; it essentially requii-es a doininant and a servient tenement in separate ownersliip (b). If the unity of title continues for a particular estate Suspension only, as for a tenancy for life or years in one of the tene- ticukr^tate. ments, the easement is suspended dimng 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 persou, the right of way is either extinguished or susjiended, according to the dm-ation of the respective estates in the land and the way ; and after such extin- guishment or dui'ing such suspension of the right the way cannot pass as an appurfencDit 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 witli the land' which fonns 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 mei-ger 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 (c). — Upon the same principle {h) Ante, p. 190. {d) Per cur. in James v. Plant, (c) Thomas v. Thomas, 2 C. M. & 4 A. & E. 761 ; Pheysey v. Vicary, R. 34 ; Simper v. Foley, 2 J. & II. IG M. & W. 484 ; ante, p. 276. 555; Aynsletf v. Glover, L. E. 10 (c) Pearson, J., Dynevor y. Ten- Ch. 283; 44 L. J. C. 525. naiit, L. R. 32 C. D, 381 ; aS". C, 312 USES AND PROFITS IN LAND OF ANOTHER, " where adjoining lands, wMcli have once belonged to different 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 destroyed by the unity of ownership; and where the person who has so become the owTier of the entirety afterwards parts with one of the two closes, the obligation to repair the fences will not revive, unless express words be introduced into the deed of conveyance for that pui'pose" (/). Unity of legal But if one of the tenements is held in trust, tlie unity title only. q£ legal title does not operate as an extinction of the appur- tenant easements, because there is no union of the bene- ficial ownership. Thus wliere a chm^ch with ancient lights vested in the incumbent in right of his office, and the adjacent servient tenement, being glebe land, vested in him beneficially, it was held that there was no such unity of o^Tiership as to extinguish the easements of light appur- tenant to the chm^ch, and to justify him as owner of the glebe land in obstructing them {g). Upon the same prin- ciple no easement can be created by implied grant over land of which the grantor is only trustee {//). L. E.. 33 C. D. 420 ; 55 L. J. C. [g) Ecclcs. Commiss. v. Kino, L. 817. R. 14 C. D. 213; 49L. J. C. 529. (/) Per cur. Boyle v. Tatnhjn, G (A) Bcddingtonx. Atlec, L. R. 35 B. &C. 337. C. D. 328; 56L. J. C. 655. CHAP. I. EASEMENTS. 313 Sfxtiox v. IIemedies fok Easements. Action for d;nnaj,'-os — nomiiiiil damage — diwturbauce of easement — com- pensation under Lauds Clauses Act. Action by reversioner — rcijcated actions for continuance of disturl)ancc. Injunction — statutory and equitable jurisdiction — principles of granting injunction — mandatory injunction to remove nuisance — delay or acquiescence — interlocutory injunction. Injunction against obstructing lights. Abatement of nuisance to tasement — abatement of miisance to servient tenement— exercise of easement in excess — notice to abate nuisance — unnecessary damage. The remetlies 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 distm-bance or Action for obstruction of an easement without proof of loss or damage '^^^^S^^- actually sustained, and judgment may be recovered for a nominal sum, if the act of disturbance is such as may injiuiously affect the title to the easement. Accordingly Nominal it was held that a person might maintain an action for a •^^"i^S'es. permanent obstruction of a way upon the servient tene- ment, though the way w\as at the time so obstructed ujion his OAvn tenement as to be incapable of use ; the Court saj'ing there w\as an injmy to the right, though no damage accrued therefrom, for if acquiesced in for twenty years it woidd become evidence of an abandonment of the right ; and therefore the plaintiff was entitled to a verdict with nominal damages (a) . So, the o\\Tier of a house may maintain an action for an obstruction of the light appm'tenant to the house, though he be not in occupation, and though the house bo wholly unoccui)ied, or even not fit for occupation, so that no actual damage {a) Botccr v. Ilil/, 1 Bing. N. C. 549 ; aii/e, p. 307. 314 rSES AND PROFITS IN LAND OF ANOTHER. accrues from the obstruction (b). — So a riparian owner may maintain an action for wrong-fully diverting a natural watereoiirse, or for an unreasonable use of the water, or for jiolluting the water, although he may not himself rec^uire the use of the water or be able to prove any actual damage ; because such acts affect the right by affording e\'idence of adverse rights (c). An additional pollution of a stream abeady polluted is a cause of action though it produce no perceptible damage 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). Disturbance 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 wdth 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 under the circum- stances the portico was not an actionable obstruction ; the Court said that if the roadw^ay 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) CourlauU v. Lcrjh, L. R. 4 /fft^/CW? 6'o., L. R. 5 C. D. 769 ; 46 Ex. 126 ; 38 L. J. Ex. 45. L. J. C. 773. (c) Masoyi v. Bill, 3 B. & Ad. (r) Clifford v. lloare, L. R. 9 C. 304 ; h B. & Ad. 1 ; Wood\. Waud, P. 362 ; 43 L. J. C. P. 225. 3 Ex. 748; limbreyY. Otcri/, 6 Ex. {/) Eldoii, L. C, Jit. -Gen. v. 353 ; CroHslo) v. LUjldoxdcr , L. R. NwhrA, IG Ves. 313 ; Wood, V.-C, 2 Ch. 478 ; iiG L. J. C. 584. Dent v. Auction Mart, L. R. 2 Eq. {d) lb.; Fennington v. Brinnop 245; 35 L. J. C. 560. CHAP. I. EASEMENTS. ;]l0 causing a natuival stream to flow Avitli greater violence than it ought to do in its usual course, to the injmy 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 natm\al flow of the stream was caused by abstraction of the water (h). The distm-bance of an easement, if it be actionable, is an Compensation injurious affecting of the dominant tenement ■s\dthin the ^^es^A^t' pro\'isions 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 under 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 injmiously affecting the land (/). Thus an obstruction of light is an injmious affecting of a tenement ■\\itliin 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 (/.•) . The reversioner of a tenement which is in the occupa- Reversioner, tion of a tenant may maintain an action for the distiu'banee of an appurtenant easement, if the disturbance be in its nature permanent, and injmious to the reversion eitlier as depreciating its value or as affecting the title to the ease- ment. The tenant may bring his action in respect of his possession, and tlie reversioner in respect of the injury (ff) Williams v. Morlaud, 2 B. & {j) Eagle v. Charing Cross Sg., C. 910. L. R. 2 C. P. 638 ; 36 L. J. C. P. (A) Embrrg v. Ourn, 6 Ex. 353. 297. ((•) Wigram v. Fn/cr, 36 L. J. C. (Z) See The Queen v. Poulter, 87 ; 56 L. J. C. 109S ; ante, p. 266. L. R. 20 Q. B. D. 132 ; 56 L. J. Q. B. 581. 316 rSKS AND PROFITS IN LAND OF ANOTHER. Repeated actions for continuance of disturb- ance. done to the value of the mheritance (/). "The ground upon which a reversioner is allowed to bring his action for an obstruction, apparently permanent, to lights and other easements which belong to the premises, is, that if acqui- esced in for t"u^enty years, it would become evidence of a renunciation and abandonment of the right" (w). Thus in a case of disturbance of ancient lights by a hoarding erected npon the ser\ient tenement, it was held that the reversioner of the dominant tenement might maintain an action in respect of the hoarding being of a permanent character and operating in denial of tlie right («). In the case of an action by the reversioner for obstructing a way by locking a gate, the Court said that the only question was whether the reversion could by any means be injm-ed; that the permanent erection of a wall across the way woidd occasion such an injury, although the wall might be pulled down before the plaintiff was entitled to the possession ; that there might be such a fastening of the gate as would amount to as permanent an obstruction as a wall, and that whether it was so under the circumstances was a question of fact and not an inference of law (o). In the case of an action by the reversioner of riparian land upon a natural stream, it was held that a detention of the water for the pm'pose 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 (j)). — 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- [l) Jesser v. Giford, 4 Burr. 2141. [m) I'cr cur. Bower v. Hill, 1 Biiig. N. C. 555 ; Shadwcll v. Utit- cldnson, 2 B. & Ad. 97. (w) Metropolitan Ass. v. Fetch, 5 C. B. N. S. 504. See Cooper v. Crabtrcc, L. R. 20 C. D. 589; 51 L. J. C. 544. (o) Kidijill V. Moore, 9 C. B. 364 ; 19 L. J. C. P. 177. [p) Sampson v. Hoddinott, 1 C. B. N. S. 590 ; 26 L. J. C. P. 148. CHAP. I. EASEMENTS. 317 sumod to Lo permanent. In a suhsequont action substantial damages may be g-iven, because tlie eonlinuance oi tlie obstruction would be more injurious to the title ; also it seems witli the view of compelling the removal of it{q). And in sucli cases an iujuuction may be claimed (r). A reversioner can oidy claim damages for an injury that is permanent and that will endure when tlie property comes into possession (.s) . The distui-bance of an easement continued or tlu-eatened Injunction. may be restrained by injunction. By the Judicature Act, Statutory and 1873, s. 24 (7), " The High Com-t 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 Com-t of Chancery, and the remedy by injunction given by the Common Law Procedure Act, 1854. {f}. — By the Common Law Procedm-e Act, 1854, s. 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 injiuy 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) ShadiceU v. l[utchinso)t, 2 B. give damages in addition to or ia & Ad. 97; JiathixhUl v. Itivd, 18 substitution for injunction, was re- C. B. 696 ; 2o L. J. C. P. 290. pealed bj- the Statute Law Ilevi- (/•) Clowes V. Stafford FotUries Co., sion Act, 1883; ha\-ing been super- L. R. 8 Ch. 142 ; 42 L. J. C. 112. scded in eflect by the Judicature (»•) Rust V. Victoria Dock Co., Act, which gives eacli Division of L. R. 36 C. D. 113. the Court full power to give either [t) The Chancery Amendment an injunction or danuiges. Sai/crs Act, 1858 (Lord Cairns' Act), en- v. Co/ti/cr, L. R. 28 C. D. 103 ; o4 abling the Co^u-t of Chancery to L. J. C. 3. 318 rSES AND PROFITS IN LAND OF ANOTHER. s. 25 (8), "All ill junction may be granted by an inter- locutory order of the Com-t in all cases in wliicli it shall appear to the Coiu't to ho just or convenient that such 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 " (/). " The plu-ase '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 " (h). Principle of The general principle of granting injunction is that ui7iuicti?ii. 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 be recoverable, the amount would be inconsiderable "(«') . But a right to nominal damages may be sufficient ground for an injunction in order to prevent future injury (x). — In tlie 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- {t) Jessel, M. R., Bcddow v. Bed- C. .555. doiv L. E. 9 C. D. 93 ; 47 L. J. C. {iv) Tumor, L. J., Johnson v. 588. IFyall, 2 D. J. & S. 18 ; 33 L. J. (m) Per cur. iJaij v. Brownrigg, C. 397. L E, 10 C. D. 307; Gashin v. {x) Cloiccs v. Stafford Potteries Co., Balls, L. R. 13 C. D. 324. L. R. 8 Ch. 142 ; 42 L. J. C. 112 ; Iv) Wood, V.-C, Bent v. Aneiion Pennington v.Brinsop Coal Co., L. R. Mart. L. R. 2 Eq. 24G : 3u L. J. 5 C. D. 773; 4G L. .T. C. 774. CIJAl'. I. EASKMHNTS. 319 diction to enforce specific performance of the contract (x). But in a conveyance of land witli appmlenant easements, the usual covenant for quiet enjoyment does not enlarge the rights conveyed or the claim for an injunction ; it only gives the additional security of the covenant (i/) . A. mandatory injunction is an injunction requiiing the Mandatory removal of buildings or other obstructions and easements "'i';"'?^^*'" **' ■ after they have been completed ; " the Coiu't ^\•ill not obstructions, interfere by way of mandatory injunction, except in cases in which extreme, or very serious damage will ensue from its interference being withheld " (;:) ; and except in " cases where the injmy done cannot be estimated and sufficiently compensated by a pecimiary sum " {a). " The comparative values of the defendant's building and the plaintiff's may be sufficient to induce the Comi to refi-ain from granting an injunction in a case where, if the buildings had not been completed, an injunction would be granted" (i). The Coiurt will also have regard to the nature of the obstructive biulding 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 cu'cumstances is reasonable ; and generally the comparative consequences to the parties of the Court granting a mandatory injunction (c). — Delay or acquies- Delay or cence in suffering a building that obstructs lights or other ^'^1^'^^'^^°°®- easements to be substantially completed before making complaint is groimd for the Coiu't refusing a mandatory injunction (f/). On the other hand, if notice has been (x) Zfirh V. Schwcdcr, L. R. 9 C. 777 ; Kindersley, V.-C, Cur- Ch. 463 ; 43 L. J. C. 487 ; Cooke v. ricrs' Co. v. Corbeit, 2 Dr. & Sm. ChUcott, L. R. 3 C. D. 694. 360. (y) Leech v. Sc/nreder, supra; (r) Baxter y. Bowo; 44 L. J. C. Jenkins v. Jackson, W. N. 1888, p. 625; lioues v. law, L. R. 9 Eq. 194. 636; 39 L. J. C. 483; A'elk v. (z) Diirell V. Fritchard, L. R. 1 Pearson, L. R. 6 Ch. 812; Goodson Cb. 250 ; 35 L. J. C. 223. v. Richardson, L. R. 9 Ch. 223 ; 43 («) Wcstbury, L. C, Isenhcrg v. L. J. C. 790. East India llo. Co., 3 D. J. k S. ((/) Stanloj v. Shrewsbury, L. R. 263 ; 33 L. J. C. 392. 19 Eq. 616 ; 44 L. J. C. 389 ; Gas- [b] Jcsscl, M. R., Aynshii v. kin v. Balls, L. R. 13 C. D. 324. Glover, L. R. 18 Eq. 554 ; 43 L. J. 320 rSES AND PROFITS IN ],AND OF ANOTHER. given or an action commenced before tlie completion of the building, and there has been no previous delay or acquiescence, tlie Court will not refuse a mandatory injimction merely upon the ground that the building has been completed (e) . "Acquiescence is distinguished from delay, for a shorter period is sufficient to bar the enforce- ment of rights in the case of acquiescence than in a case of mere delay " ; also " an amount of acquiescence less than what would l)e a bar to all remedy may operate on the discretion of the Court and induce it to give damages instead of an injunction " {/). A stronger case of acquiescence is required to justify the Com't in refusing to interfere at the hearing of a cause, which concludes the right, than is requii^ed upon an interlocutory appli- cation (g). Interlocutory 'j'j^g Court may ffrant an interlocutory injunction against injunction. .. . . ... . continuing an obstruction pending the litigation respecting it, upon the applicant giving an indemnity against any loss occasioned by it ; and if it turns out that the injunc- tion was erroneously granted, the indemnity may be en- forced, whether the error was in matter of fact, or that of the Court in matter of law (//). A mandatory injunction may bo granted pending the litigation ; and such an in- junction was granted where the building was continued after an injunction to restrain building pending litiga- tion (?). — The Court will not in general sanction a defen- dant continuing to build pending litigation upon the terms of pulling down if it be eventually decided against him, on account of the hardship that might bo caused in enforcing such terms (y); but if such an undertaking has been (e) Smith V. Smith, L. R. 20 Eq. (A) Runt v. Runt, 54 L. J. C. 500 ; 44 L. J. C. 630 ; JCrchl v. 289 ; see Smith v. Dat/, L. R. 21 C. Burrell, L. R. 7 C. D. 551; 11 D. 421 ; Neicbi/ \. Harrison, 3 Do C. D. 146 ; 47 L. J. C. 353 ; Smith G. F. & J. 287 ; 30 L. J. C. 863. V. Lay, L. R. 13 C. D. 651. (i) Bcadel v. Ferrij, L. R. 3 Eq. ( f) Per cur. Sai/er.i v. CoUi/er, 465. L. R. 28 C. D. 103'; 54 L. J. C. 3. {j) Jes.sel, M. R., Aynsley v. (y) Per cur. Johnson v. Wyatt, 1 Glover, L. R. 18 Eq. 553 ;' 43 L. J. D. J. & S. 18 ; 33 L. J. C. 397. C. 777. CHAP. 1. KASKMHM'S. 321 givcu, it "will bo riguruusly cnlorcfil and a manJatoiy injunction granted to pull down the building (/.•). The above priuoiples may be illustrated in application to Injunction to lights. There are many cases of disturbance of ligiits in ^^^ *^ '^ * wliich an action may be maintained, but which will not support an injunction. The Com-t 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 ^^•as 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, will suffer substantial or material damage by the lessoning of its value" (/;/). If the obstruction of light would render the proi:)erty 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 (ii). — 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 tlic 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., £cch's. Commits. L. J. C. 807. V. A'iiio, L. R. 14 C. D. 229; 49 (w) Jofni.son v. JJ'i/atf, 2 D. J. & L. J. C. 629 ; ^"imith v. Uai/, L. R. S. 18 ; 33 L. J. C. 394 : Fry, J., 13 C. D. G5I ; Green wood v. Jfonisei/, Kino v. liudki», L. R. 6 C. D. 160; L. R. 33 C. D. 471 ; 55 L. J. C. 4G L. J. C. 807 ; Kelk v. rcarson, 917. L. R. G Ch. 809. (/) Eldon, L. C, Alt. -Gin. v. («) JLolland v. Worley, L. R. 26 Nichol, 16 Vcs. 338 ; "Wood, V.-C, C. D. 578 ; 54 L. J. C. 268 ; Great- Dent V. Auction Mart, L. R. 2 Eq. iiood v. Jlornsei/, L. R. 33 C. D. 245; 35 L. J. C. 555; Kino v. 471; 55 L. J. 0. 917. Jiud/cin, L. E. G C. D. 160 ; 4G 322 USES AND rROriTS IN LAND OF ANOTIIKK, it uecessaiy for the Comi to interfere by way of iu junc- tion " {()). — In a case where it was doubtful whether a pro- jDOsed wall would he a material obstruction to lights, the Court directed a temporary screen to be erected, and appointed a surveyor to report upon the effect (;j). — Au injunction may be granted though the house be unoccu- pied, in respect of the possible occupation {q) . So, where a building has been pulled down, with intention of re- building and preserving the ancient lights (r) ; and where a building was pulled down with the intention of selling the site with all the rights appurtenant thereto, an in- junction was granted against building upon the adjacent land so as to obstruct the light as originally enjoyed (.s). If a house is about to be pulled down without re-building, as in the case of a house under notice to be taken for some public pm^pose, the Court would not grant an injunction, but would leave the owner to his remedy in damages {f). Abatement of nuisance to easement. The owner of the dominant tenement may himself abate a nuisance or obstruction to an easement. At common 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 ease requires ; or the party grieved may enter and abate the nuisance himself" {u). And he may abate the nius- 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 merges his right of action and claim for lo) City of London lirciccn/ v. Tcnnant, L. R. 9 Ch. 212 ; 43 L. J. C. 457 ; ante, p. 214. {p) Letch V. Schweder, L. R. 9 Ch. 46:3 ; 43 L. J. C. 487. {(j) Wilson V. Tounend, 1 Dr. & Sm. 324 ; 30 L. J. C. 25 ; ante, p. 215. (r) Staiyht v. Burn, L. R. o Ch. 163; SQL. J. C. 289. (s) Il:clvis. Comiiii.1. V. Iiino, L. R. 14 C. J). 213; 49 L. J. C. 529. {() Wood, V.-C, JJent v. Auction Mart, L. R. 2 Eq. 247. {li) 9 Co. bib, Baton'' s Case; per cur. Perry v. Fit zh owe, 8 Q. B. 775. {v) Pcnruddock^ s Case, 5 Co. 101 b. ( IIAl'. 1. EASKMKNTS. 323 damages (»•). — Accordingly, " if u 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 commoner may pull down a Luilding wrongfully erected upon the common, and which prevents his exercising his right so fully as he might otherwise, provided he does no imnecessary damage" {//). The owner of the servient tenement also may protect Abatement of ,, „ ,,., 1 -I ^ ' ic nuisance to his property from subjection to an easement by liimsell servient 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 necessai-y for that purpose (s). 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 {b) . Upon the same principle if an easement is used in excess Exercise of of the right, so as to impose an undue bmihen upon the excess!" ^ servient tenement, the owner of the latter may obstruct the easement altogether, if he cannot otherwise prevent the excess ; and the casement will then be suspended until reduced to the proper limits of use (f). Thus if a water- course for the dischai-ge of pure ^^•ater is used to discharge foul water, the servient owner may stop it entii-ely ; for " if a man has a right to send clean water through a drain and sends dii-ty water, every pai-ticle of the water ought to (ic) 9 Co. 55 a, Batcu's Case. 106, cited in Junes v. JFilliams, 11 (j-) Jiex V. Jioseicll, 2 Salk. 4o9. M. & W. 178. ((/) J'er cur. Lai us v. Jf'il/iams, {/>) Jo/us y. TFUliams, Wil. &W. 16 Q. B. 546 ; 2.) L. J. Q. B. 330. 176. (z) Batcus Case, 9 Co. 53 l> ; liex (r) Fer cur. CawkweU v. Bimell, V. Jiustuell, siij)ra. 26 L. J. Ex. 36. {a) M or rice v. Baker, 3 Bulstr. ^ '2 324 LSES -VXD PROFITS IN LAND OF ANOTHER, Negative easement li-ht. of Notice to abate nuisance. be stopped, because it is all dii-ty " (d). But if several persons have prescriptive riglits of draining tbrougli a sewer of the servient tenement, and one or more of them exercise their rights in excess, there would be no justifi- cation on that account of stopping the sewer against all and thereby dei^riving those who are acting within their right (p). Whether a particular act be a proper and reasonable use of an easement, or such an excessive use as will render the act wholly wTongful, is a question of fact depending upon the circumstances (/). — This prin- ciple has no application to negative 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 excessive 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 {y) . 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 under some sj)ecial obliga- tion to remove the nuisance, the neglect of which would put him in the position of a wrongdoer and dispense with notice or recpiest ; and except in cases of danger to life or health from tlie nuisance Avhich would justify immediate (d) Caickwell v. Rmsell, supra. [e) Jessel, M. R., Att.-Gen. v. Dorkin//, L. E. 20 C. D. 595; 51 L. J. C. 590. See Alt.-Gcn. v. Acton, L. R. 22 C. D. 221 ; 52 L. J. C. 108. (/) Hawkins v. Carbines, 27 L. J. Ex. 44. See Williams v. James, L. R. 2 C. P. 577 ; 36 L. J. C. P. 25G. (y) Ante, p. 216. ( HAT. I. EASiEMENTS, '420 abatement witliout notice. Also if ilio occupier increases an existing nuisance, it is equivalent to a new nuisance, and it maybe abated without notice (/'). — The right of abatement extends to pidling down a dwelling house, as well as any otlior 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 (i). Abatement of a nuisance must be executed without Unnecessary doing unnecessary damage. Therefore if part only of a ° ' house or building be a nuisance that part only may be pulled do"\\Ti ; 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 A\Tongfully built upon his land, thereby causing the whole dam to fall down and the water to rim 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" 0"). (A) FenruddocJc's Case, 5 Co. 101 i ; 546 ; 20 L. J. Q. B. 330. Jones V. WUliams, 11 M. & W. 176. {j) Wigford v. Gill, Cro. Eliz. (t) rcrrij V. Filzhouc, 8 Q. B. 269 ; per cur. Tern/ v. Fitzhoive, 8 757 ; Davics v. Williams, 16 Q. B. Q. B. 775. ^ee post, p. 369. 326 USES AND r]U)FlTS IN I,AND OF AXOTIIKR. CHAPTER II. PEOFITS A PEENDEE. Section I. Pz'ofits ;l prendre in general. II. Creation of profits. III. Extinction of profits. IV. Remedies for profits. Profits a. I^rendre. In gross and ajjpurtenant. Section I. Profits a prendre in general. Profits a prendre — in gross and appurtenant — conditions and Hmits of appurtenancy — land cannot be appurtenant to land. Licence to get 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 levant and couchunt — stinted commons — unstinted commons — sheep walk — pannage. Common appendant — commonable cattle. Common of vicinage — inclosure. Common fields — lammas lands. Common of estovers — common of turbary. Common of copyholders — profits of copyhold tenement. Rights of common of lord — statutory compensation. Profits a prendre are rights in the land of another 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. An easement, strictly so called, cannot be claimed in gross, or otherwise than as appm-tenant 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 lield in gross cii.vp. II. ruoirrs a rKi:M)UE. 327 independently of other land ; and the licence or easement, which is an implied accessory o'f 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 (r/). — Tlie effect of appurtenancy is that the profit to be takon in the servient tenement passes insepar- ably with tlio dominant tenement for any estate, and by any mode of conveyance sufficient to pass the tenement (b). 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 lieu- of the grantee as a separate inheritance {c). Profits can only be made appurtenant to a tenement as Conrlitions being beneficial to the occupation in some manner that appmte^-"" ser%'es to define and limit the right. " In all cases of a nancy. claim of right in aJieno solo as appurtenant, such claim must be made with some limitation and restriction. In tlie ordinary case of common appurtenant the right cannot bo claimed for commonable cattle without stint and to any number ; but such right is measm-ed by the capacity of the dominant tenement to maintain the cattle dm-ing 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 " ((/). 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 (r) ; or a claim to cut tm-f as much every year {a) Soe antr, p. 197; pout, p. 348. (rf) Fer cur. Clai/toii v. Corbi/, 5 (/') Sm-fivrcrillv. Porter, Cro Car. Q. B. 419; Willcs, J., nailei/ v. 482 ; Jhun/ v. Knit, Cro. Jiic. 14 ; i>t
is, 12 C. B. N. S. 91 ; 31 L. J. Danid v. Uausltp, 2 Lev. 67 ; see C. P. 229 ; Morlcij v. Clifford, 51 Boilcii V. Stevens, 12 C. B. N. S. L. J. C. 087 ; L. R. 20 C. D. 753. 91 ; 31 L. J. C. P. 226. {f) Valentine v. Feiimj, Nov. 145. (f) 8 Co. 54 n, Sijm's Cane. 3-2S rsKS AM) rUOFITS IX ]-AND OF ANOTHEK. Land cannot be appurte- nant to land. as t^Yo men can cnt in a certain time, "^'itliont alleging it to be spent in tlic lionse (,/') ; or a claim to cnt turf for the improvement of tlie tenement as often and in such quantity as occasion required [(j) ; or a claim as appurtenant to a close to cut down all trees growing on another close and to dispose of them without any restriction (A). And upon this principle it was held that a claim to dig clay for making bricks at a brick kiln, as occasion required and without limit or restriction, could not be supported as ap2im"tenant to the kiln (/). Rights claimed as appurtenant nmst not extend to all 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 {k). Nor can a profit a prendre be claimed as appurtenant to another right of the like kind ; a right of common cannot be appiu'tenant 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 (m) . — 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 aye capable of being the subject of a grant {n). The following are the principal species of profits a ( f) Uaijward v. Canningion, 2 Keiale, 290; 1 Levinz, 231. [g) Wilson v. Willes, 7 East, 121. \h) Balhy v. Stercn.1, 12 C. B. N. S. 91 ; 31 L. J. C. P. 22G. (t) Clayton v. Corby, 5 Q. B. 415. See Att.-Gi'H. v. 3Iathias, 27 L. J. C. 766; 4K. & J. 579. [j) Co. Lit. 121 5; 4 Co. 36 h, Tyrrivyhnni's Case; Jones \ . Richard, 5 A. & E. 413 ; Buszard v. Capel, 8 B. &C. 141; 6 Bm<,^. 160. (/i) WiUiams V. I'hiUlps, L. R. 8 Q. B. D. 437 ; 51 L. J. Q. B. 102. [pj Mill V. Commiss. of New Fo- rest, 18 C. B. 60 ; 25 L. J. C. P. 215. {m) Ante, p. 327, n. {a). («) Ante, p. 32G. (11 Ai'. 11. ruoi US A rui;M)Ki;. 329 prendre — " The grant of a licence to seareli and gvt (irre- vocable on acconnt of its carrying an interest), with a grant Licence to get of such of tlie 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 tlie 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 tho liberties granted to him should be dug and got. That is no more tlian 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 laud " (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 a 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 (q) . Such a licence may be granted to one Exclusive and person exclusively of others, or to several persons concm-- ii^cnce^?''* rently. As it gives no specific property in the profits until taken, it is presumptive^ not exclusive of tlie owner, or of other licensees ; if intended so to be, it must be so expressed. The OA\Ticr of the land may grant similar licences to others, so far as he cau Avithout derogation from his former grant, or he may himself take similar profits A\liile tho land is in his possession, or he may grant or demise tho land to another subject to the licence (r), A licence differs fi'om a lease in this respect that the licence gives no specific right to the profits before actually taken into possession by vii'tue of (o) Ptr cur. Doe v. TJ'ood, 2 B. & 31 L. J. C. P. 228 ; 12 C. B N S Aid. I'iS; Mifskctt v. Hill, oB'mg. 91. N. C. 706 ; ante, p. 53. ^ (/■) Jfoiin/Ju;/'s Case, Co. Litt. (jy) Swi(/r< V. /o«rt-, 15 C. B. N. S. lG4i; Duuifluss v. Kcndai Cro' 717; 33 L. J. C. r. 154. Jac. 256; Chetham v. Williamson {q) Mtiskctt V. mU, 5 Bing. N. C. 4 East, 469 ; ante, p. 54. ' 694 ; ^Villes, J., Bailey v. Stevens, 330 USES AND PROFITS IN LAND OF ANOTHER. Licence to take trees and turf. Game and iish. "Water. the licence ; while a lease gives immediate possession of the whole subject of demise, leaving nothing of which a con- current lease or licence can be granted. As to a licence it is said " that a man taking a licence where he is under no obHgation 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 " (.s). A grant of the trees and underwood of all kinds grow- ing and to grow in futui^e in a certain wood, (except 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 solo^^ (t). — So, a sole and exclusive right to dig turf and peat from a moss in the waste of a manor {u). — 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 (i-). It seems that such rights cannot be claimed as appui'tenant, because they cannot be subservient to or limited by the use of a dominant tene- ment ; they are riglits 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 a prendre {x). So also is a right to use the («) Wood, L. J., Carr v. Demon, L. R. 3 Ch. 532. {() Borrinyton'' s fane, 8 Co. 13G A; Baiiei) v. SUvcns, 12 C. B. N. S. 91; 31 L. J. C. P. 229; ante, p. 30. (;<) JFikon V. Mackrelh, 3 Burr. 1824. [v) Ante, pp. 78, 175; 3Ioorc v. Lord Plymouth, 7Taunt. G14; liexv. Fiddlelrcnhide, 3 T. R. 772 ; Shiit- tleivorih v. Le Tlemiiuj, 19 C B. N. S. 687 ; 34 L. J. C. P. 309. [u-) Morris v. Limes, 1 A. & E. 654 ; Beauehamp v. Winn, L. R. 6 H. L. 223 ; ante, p. 85. (.c) Rnce v. Ward, 4 E. & B. 702 ; 24 L. .J. Q. B. 153. CIIA1>. II. rUOFITS A PRKNUUE. 'VM water of a pond for watering cattle and for domestic purposes (//) ; and the right to take water from a pump (z) . For water, it is said, " is no part of the soil like sand or clay or stones, nor tlio produce of the soil, like grass or turves or trees ; it is supplied and renewed hy nature" (a). Hence a claim to take water from a natural stream or spring in the land of another may he supported by local custom (b). A right to the sole and exclusive pastm'o 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 {(•). A right of sole pasture is a tenement within the statute De Bonis and may be entailed {d ) . It may be granted and held as a tenement by copyhold [c). 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 tlic herbage or vestiu'e of land, rcsfmri terrce, in- cluding the crops of grass, underwood, brushwood and litter growing upon the land to be cut and taken away, and not, like pastm-e, 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 (.(/). A grant of such profits 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 (y) Manning v. Wasdalr, 5 A. & thouprlit the owners of them arc E. 7o8. teiiauts in common of the soil." (;) Pom/ret v. Ekroft, 1 "Wm.s. Abinger, C. B., ib. Bennington v. Saund 321. Gooddth; 2 Straugre, 1084 ; The (a) Per cur. Jiacr v. ir. 507 ; 46 L. J. C. 718. commons. 834 ISES AM) I'KOl'lTS IN LAND OF AXOTTIKU. common " (r) . So long as the tenement retains tlie capacity for maintaining tlie cattle the appiu'tenant com- mon may 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 huilt 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 (s). But the claim cannot be supported as appurtenant to a house onh', without any land or curtilage on which the cattle coidd 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) {i(). Stinted Common appm-tenant may be " stinted " or limited to a fixed number of cattle, as common for a certain number of cows, or oxen, or sheep, or horses {v) ; " there is no diiference 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 appm-tenant 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" (lo). Common may also be stinted to a number proportioned to tlie 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 common for a share (>•) Ter cur. Cheesman v. Hard- 1 Ld. Raym. 726. . man, 1 B. & Aid. 711 ; Parke, B., {w) Morse v. Webb, 13 Co. 66; Wldtelock V. Hutchinson, 2 M. & Chee>:man v. Hardham, 1 B. & Aid. Rob. 205. 706. (a) Can- -v. Lambert, L. R. 1 Ex. {x) Foxv. Amhurst, L. R. 20 Eq. 176; 34 L. J. Ex. 08. 403 ; 44 L. J. C. 660; Baylis v. [t) Scholes V. Hargreavcs, .') T. R. Tyssen- Amhursf, L. R. 6 C. I). 509. 46 ; Benson v. Chester, 8 T. R. 396 ; (y) Hall v. Harding, 4 Burr. Ricketts V. Salivey, 2 B. & Aid. 360. 242H ; Hall v. Byron, L. R. 4 (m) Emertonv. 8elby, 6 Mod. 115. C. D. 667 ; Cheesman v. Hardham, {v) Holt, C. J., Richards v. tSqnibb, 1 B. & Aid. 706. cHAi'. II. I'uoriTs A I'liKXDui:. y.'35 or fractional part of an animal, to bo enjoyed Ly join- ing with other coimnouer.s having similar rights, or by pastiu'ing a Avliole animal for a fractional jjart of the year (z). Stints or moasiu-cs of this kind may ho imposed hy 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 commoners for the time being Avho consent (^). — Common appurtenant not ollier- wise stinted is presumptively stinted to cattle levant and couehant upon the tenement {c). A grant of a tenement " together with reasonable common of pasture " was construed to mean pasture for cattle levant and couehant, that being the usual and therefoi'e the reasonable measure of common appm'tenant {d). Pastiu'e ^^dt]lout stint or limit, of number or otherA\dse, Unstinted cannot be claimed as appm'tenant to a tenement, but only ^^^ ^^' as a right in gross, which may be created and assigned by deed {c). 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 couehant upon their respective tenements (/). — An unstinted pastiu'e or an exclusive right of pastui-e may be exorcised by afji-sfiiig 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 pastiu-e. And a common of jDastm-e stinted to a certain number may be exercised by feeding the (z) SecNicholsv.f'/idpman, 5 JI.&: (-) Co. Lit. 121 l> ; ante, p. 327. 717 ; 33 L. J. C. P. 154. (0 Bird v. Eiggmson, 6 A. & E. If) BavisY. 3Iorgan, ■^B. kC.%; 824; The Queen v. Hockworthy, 7 Jones X. Reynolds, 4 A. & E. 805. A. & E. oOh {g) Jones V. Williams, 46 L. J. (>) Ante, p. 198; Jones v. If'il- M. 272 ; ante, p. 75. Hams, 46 L. J. M. 270. 348 isKs AND riu)Firs i\ land of axotilkr. reserve profits to Lo taken Ly the grantor can operate only by being- eonstrnod teehnically as a re-grant from the grantee, conciu-rent with the grant by which ho is made owner of the land (/.•). — A grant of land purporting to except and reserve to the grantor the liberty of entering the land to hunt and take game w^as held to operate effec- tually as a re-grant to him of the profits to be taken (/). " The privilege of hawking, hunting, fishing, and fouling, is not either a reservation or an exception in point of law ; and it is only a privilege 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, wdth reservation to the grantor of catching any kind of fish for his own table, it was held that the " reser- vation was equal to a grant," being the same as if the grantee, being 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 moaning of those terms can operate only in favour of the grantor himself (o). Accessory The grant of a profit a prendre imports all rights acces- rights. gQiy 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 carry them away in 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. 265. {n) Seymour \. Courtenay, 5 Burr. {I) Wickhamv. Hawker, 7 M. & 2817. ■\;V'. 63. (o) Wickham v. Hawker, supra; [m) Per cur. Doe v. Lock, 2 A. & Chctham v. IFilliamson, 4 East, E. 743. 469. CIlAr. II. PROFITS A I'RKNDIIE. 349 t]ioin(y>). A gTiiiit of tlio rigbt to fish in certain water Avas lu'kl to givo tlio riglit to uso tlic Ijaiik for fisliing, tliero being- no other means of g-etting at tlie fish ; but not the right to dig a trend i and di-aw off tlie water for tlie purpose of taking tlie fisli, because they might be taken with nets and other means {q). A grant of a fishery in a river may carry A\itli it, according to tlie usage under it, the right of drawing nets uj^on the Lmd (/•) . The riglit to take minerals cames with it, as an implied Rights ac- iucidcnt of the right, the power to enter the land and dig ^f^°^^ ° tlirough the surface to the minerals, and raise and carry away the minerals, doing no more than what is necessary for the purpose (.s) . 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 haA'ing a convenient and sufE- cieut road for removing the coals profitabh', including a. properly constructed railway (/"). In such cases the implied powers for taking the profits are not restricted by sjiecial powers expressly given for the same purpose, unless the restrictive intention is clearly expressed (?/). — A power to take gravel from a jiit was held to import the riglit 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 (/•). 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 entu-e sui-face of the laud, although it could not be effectually taken other"\\ise (ic). (jo) Plowdcu, 10; 11 Co. 62 a, {/) Bandv. Kitiffscod; 6 :M. Sc \V. T.iford'n Cane; Stuk-elii/ v. JSutla; 174. Sec poxl, -p. 210. Hob. IfiS. [it) Cadoffan v. Armitage, 2 B. & iq) Plowden, IG. C. 209. \r) Gray v. liund, 2 B. & B. 6G7. (t) Ellis v. Bromley Local Board, (.s) Cadogaii v. Armitaye, 2 B. & 45 L. J. C. 763. C. 197; itoqersw. Taylor. 1 It. .»c [ir) Jlext v. Gill, L. R. 7 Ch. N. 700 ; 26 L. J. Ex. 203. 699 ; 41 L. J. C. 293. 350 USES AND PUOFITS IX LAND OF ANOTllKK. Prescription at common law. Tlie claim to profits a. preudi-e hy prescriptiou may be 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, hoih of immemorial prescription and of prescriptive evidence of modern grant, have been already treated of in connection with easements. The same rules and principles ap]^)ly with the necessary modi- j&cations to profits a prendre. Profits appm-tenant to a tenement may be claimed by immemorial prescription at common law ; and if the prescription is defeated by jDroof of commencement of the enjoyment within the time of ]egal memory, the enjoyment in fact may be used as evidence of a modern 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 faMy to be presumed from usage, at the joresent day " (x). The Prescrip- tion Act. The Prescription Act treats profits a prendre differently 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 fidl 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 (j-) Cowlam V. Skck, 15 East, 108. See ante, p. 282. ( IIAr. 11. I'HOl'lTS A I'lir.NDKK. 351 claim may bo defoatcil in any oIIut way Ly ■\v]ii(;]i iha same is now liable to be defeated ; and when sack right, profit or benefit sliall have been so taken and enjoyed as aforesaid for the full period of sixty years, the riglit 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 waiting." — Tlie oj^erative 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 (//). This enactment is construed to apply only to sucli riglits Trofits ap- 01 common autl other profits as are appendant or aj)pm'- 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, wdiich requires the claimant of the riglit 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 dui'ing such 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 simple 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, so there is none that hath any interest, albeit but at ydU, 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 i)rofit or benefit to be taken or enjoyed ^uJmeiita fi'om or upon land of another ; therefore it does not aj^ply to the claim of a copyholder by special custom of a manor ((/) Ante, pp. 286—303. {a) 6 Co. 60 a, Gateu-ariVs Case; (s) Shiittliwoftliw Le Flcmbiq, 19 scoLiirdBlackburu,6'ow/«((i//V. ) . Profits a prendre in gross, not heing within the Pre- scription Act, must he claimed hy prescription at common law. Tlie 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 prescrihe in his own person, hut must show an immemorial title in those from whom he claims (c/). — Profits in gross may also he claimed hy prescriptive title in a corporate hody, to he enjoyed hy individual memhers of the corporation in right of the hody ; as an exclusive right of pasturage vested in a horough, to he taken hy the hurgesses {e) • a several fishery in a tidal river vested in a horough for the henefit of the free inhahitants (./) ; a right of cutting tm-f and taking gravel and other materials for the henefit of the freemen of the horough {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 wdiose estate he hath, or in hodies politic or corporate and their predecessors ; for as a natural hody is said to have ancestors, so a hody corporate is said to have predecessors." An individual memher of the corporate hody, or the person who in fact takes the profit, prescrihes in right of the corporate hody {//). {b) Hanmer v. Chance, 4 D. J. & S. 626 ; 34 L. J. C. 413 ; fialuhury V. Gladstone, 9 H. L. 692 ; 34 L. J. C. P. 222 ; post, p. 568. (c) Welcome v. Upton, 5 M. & W. 398 ; 6 ih. 536. {d) Curnwellv. Sanders, 3 B. & S. 20G : 32 L. J. M. 6. {e) Johnson v. Barnes, L. R. 8 C. P. 527; 41.L. J. C. P. 250. (/) Goodman v. Saltash, L. R. 7 Ap. Ca. 633 ; 52 L. J. Q. B. 193. {(/) The King v. Warhworth, 1 M. & S. 473; The Queen \. Aln- ivielc, 9 A. & E. 444. (/() Co. Lit. 113/;; Fry, J., Aiislbi CHAP. II. PROFITS A I'KKNDHE. 353 The statute creates no new rights to profit.s, l)ut only Prescriptive sliortens the period of prescription for " claims wliich may iJe^jf^XT' 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 wlien the common was first taken the Crown was disabled b}' statute from granting any such right, so that the claim was legally impossible ; and it was said that the statute does not apjily to any claim that could not be legally granted, although the commencement of the enjoyment does not appear (/). A prescriptive claim evidenced by use and enjo^yauent, Certainty 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 (J) . A prescription to have" common of pastui'e appm-tenant for cattle levant and couchant on the tene- ment, or common appendant for such cattle as are requii'ed to cultivate the land, was always held to be sufficiently certain, upon the principle that id vcrfunt vd quod vertum redd'i potest (/.•). So a prescription to cut litter for cattle levant and couchant, or for the use of a farm (/) ; and a prescription for common of estovers, or the right to take wood and materials for the fuel and repairs of a house, are sufficiently certain (y;^). 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 uiu'casonable 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 pastm'e during the season between the V. Amiturst, L. R. 7 C. D. Gl)2 ; 47 C92 ; 34 L. J. C. P. 222. L. J. C. 469. (k) 2 Co. Inst. 86. (() Aim V. Xew I'orcst Coimniss., (/) Jhaii v. Bloom, 3 Wils. 450 ; ]8 C. B. (iO ; 25 L. J. C. P. 212. 2 W. Bl. 926 ; Dcla Wanx. Mih-s, (J) Dcla jrarrwMilcs.L.B.. 17 L. K. 17 C. D. 535; 50 L. J. C. C. D. 535; 50 L. J. C. 754; see 764. JSnlisliiiri/ V. Ghuhloiic, 9 II. L. C. (wi) Aiitv, p. 342. L. A A 35-i rSES AND PROFITS IN LAND OF ANOTHER. Conditional prescriptions. Continuity of enjoyment. removal of the crops in each year and the preparing of the land for sowing is sufficiently certain and precise («). A claim by the o^Tier of a brick-kiln to dig and take clay fi-om a certain close " as much as was at any time required by him," for making bricks at the kiln, was held to be too vague and imcertain to be made by prescription ; there was no measure of the capacity of the kiln, of the quantity of the clay, or of the number of the biicks ; it was there- fore an indefinite claim to take all the clay, or in other words to take from the owner the whole close (o). And a claim by a copyhold tenant upon an alleged custom of the manor for the tenants to take tm^f from the waste for the improvement of their gardens " in such quantity as occasion required," was held to be too " indefinite and uncertain" (^j). — 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 (•) Ti/n-infffiain's Case, i Co. 3S a; {ii) A>tte, p. 344; Blackburn, J., see ante, p. 356. Musqrave v. Iiiclos. Comm., L. R. 9 (.s) 8 Co. 79ff, Wild's Case; Kimp- Q. B. 174 ; 43 L. J. Q. B. 80. 3G0 USES AND FKOFITS IN l.ANl) OF AXO'illKU. Copyhold tenements. tenement by tlie lord the rights formerly appurtenant do not pass with it, unless expressly or impliedly re- granted (y). If the tenement be re-granted "with all commons and profits used therewith," the former appur- tenant rights will pass as being sufficiently described in the grant by reference to the former usage [w). And a re-grant of common rights may also be presumed from a subsequent continued use and enjoyment of them (.r). — But b}' general custom the re-grant of a copyhold tenement carries with it all appurtenant rights of common and other profits without express mention and notwithstanding a preceding surrender ; and they presumptively continue appurtenant so long as the tenement remains demisable by copy (y). Enfranchisement of copyhold by convey- ance of the fee merges the customary rights of common and other appurtenant rights ; and the conveyance of the fee expressly " with the appurtenants" does not preserve them, for they are not appurtenant to the freehold. If intended to be preserved they must be expressly re- granted, and the Court would compel a re-grant upon evidence of the intention (z). Approvement and inclojurc of waste. In early times the lord of a manor exercised freely the right of " approvement," or improvement of the waste land of the manor, by inclosing portions of the waste for the purpose of cultivation, and granting the inclosures to tenants to hold in severalty ; who therewith acquired of common right " common appendant" in the residue of the waste. And it is said that " by the common law the lord might improve against any that had common appendant, though not against a commoner by grant" ; for in the latter case he could not derogate from the express terms of (v) Hall V. Bi/ron, L. E,. 4 C. D. 667 ; 46 L. J. C. 297. (w) Bradshaw v. Eyre, Cro. Eliz. 570 ; Workclge v. Kingsivcll, Cro. Eliz. 794. {x) Cowlam v. Slack, 15 East, 115. (y) Badger v. Ford, 3 B. & Aid. 153. {z) Mar sham v. Hunter, Cro. Jac. 253 ; 8tyant v. Staker, 2 Vem. 250 ; Lascelles v. Onsloiv, L. R. 2 Q. B. D. 433 ; 46 L. J. Q. B. 333. ( IIAP. II. rUolTIS A rillADllE. 361 his grant (a). Tliis process of iiielosuro in course of time operated to tlic prejudice of tlio commoners by increasing their number and restricting tlieir common ; wherefore the right of approvement was declared and regulated in the following statutes. The Statute of Morton, 20 Hen. III. c. 4, after reciting Statute of that " many groat men of England which have infeoffed '^^ "^" knights and freeholders of small tenements in tlieir great manors have complained that they cannot make their profit of the residue of theii" 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 theu" wastes, but upon the condition, that their tenants " have as much pasture as sufficeth to their tenements and free egress and regress from their tenements unto the jjastiu'e." The Statute West. 2, 13Edw.I.st. 1, c. 46, recites that "in Statute a statute made at Morton it Avas granted that the lords of ^^ " "' wastes, woods, and pastures might approve notwithstanding the contradiction of their tenants, so that tlie 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 neighbom', many lords of wastes, woods, and pastures have been hindered heretofore by contradiction of ueighbom's having sufficient pasture; and because foreign tenants have no more right to common in the wastes, woods, or pastures of any lord tlian the lord's ovra. 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 neighbom-s, saA-ing sufficient pastm-e to tlieir tenants and neighbours, so that the lords of such wastes, woods, and pastures, may make (rt) 2 Inst. 8-5, 474 ; see Buller, J., cio: Grant v. Gunner, 1 Tauut. 417 ; Glover v. Lane, 3 T. R. 448 ; per ante, p. 336. 362 USES AND PROFITS IN LAND OF ANOTHER. Exception of special grant. Inclosure for buildings. Construction of statutes. Inclosure. Grantee of waste. approvement of tlie residue; and this shall be observed for such as claim pasture as appurtenant to their tene- ments " (i). 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 inclosures " by occasion of a windmill, sheepcote, cowhouse, inlarging of a court neces- sary, or court elage " ; " and these five are put but for examples, for the lord may erect a house for the dwelling of a beast-keeper for tlie 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 common in gross, the words restricting them to commons appendant or appm-tenant 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 severall; for it is lawful for the tenant to put on his cattle into the residue of the common, and if they stray into tliat 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 riglit ; hence a grantee of the waste or of part thereof may approve, or a lessee for life or (/y) 2 Co. Inst. 472. [c) Robinson v. Duleep Singh, L. K. lie. D. 798 ; 48 L. J. C. 7.58. [d) 2 Co. Inst. 476 ; rutrick v. Stubbs, 9 M. & W. 830. [e) Nevill v. Uamerton, 1 Lev. 62; Sid. 79; Fry, J., Robinsonw. Duleep Singh, L. R. 11 C. D. 832. (/) 2 Co. Inst. 86, 475; post, p. 365. {g) 2 Co. Inst. 87; Barber y. Whitdcg, 34 L. J. Q. B. 212. CIIAl'. 11. I'KOl'lTS A I'UKNDKK. 303 for a term of years ; but subject to the conditions imposed upon the lord by the statutes (//). The onus of pro\dng the sufficiency of pasture left lies Lea\'ing upon the OAviier of the waste who makes tlie approve- of pasture, ment (/). Sufficiency of pasture, as the condition of in- closing, is to be estimated with regard to the rights and requirements of the commoners at the time of the inclosure, and witliout 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 poiiion of tlie waste is sufficient (/.•). Accordingly it has been held, tliat the average demand for tlie last ten years might be taken as a measure of the requirements of tlie commoners for the future, there appearing no expecta- tion of an increase (/). And a subsequent deficiency of common will not invalidate previous approvements (;»). 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 thfe Crown' to tiirti out deer, was not to be taken into consideration in determining the sufficiency of pastiu'e {)i). — Where the lord exercises rights of ownership in the soil of the existing waste without inclosure, by taking gravel, clay, tm-f or other material, the 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 if the lord plant trees on the waste, which he is presumptively entitled to do, the commoner cannot {?,) 2 Co. Inst. 87; Glover v. lane, R. 2 Q. B. D. 4-19 ; 46 L. J. Q. B. 3 T. R. 447 ; Baylcy, J., ArUtt v. 333, ant,; p. 357. mUs, 7 B. & C. 369 ; Patrick v. (m) 2 Co. Inst. 87. SinMs, 9 M. & W. 830. (w) Zakt- v. Plaxtoii, 10 Ex. 196; (i) Beds V. Thompson, L. R, 6 24 L. J. Ex. .52 ; see Bottkott v. Ch. 732. irinmUl, 2 Camp. 261. {k) Baylcv, J., Arlett v. Ellis, 7 {o) Batcsony. Green, 5 T. R. 411 ; B. & C. 369" Hall v. Bi/ron, L. R. 4 C. D. 680 ; (/) Lascelles v. Lord Onslow, L. 46 L. J. C. 297. 364 USES AND rROFITS IN LAND OF ANOTHER. cut tlieni down as being an obstruction ; but be must bring bis action and prove tbat tbey unduly diminish the pas- ture (o) . Approvement against copy- holders. Special cuKtoin to inclose. 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 tlieir tenure, at tbe same time restricting the lord to approving only so mucli of the waste as was not required for the customary rights of common. Therefore a custom for the lord to inclose ao-ainst commoners without limit or restriction cannot be o maintained ; the lord can inclose only upon the condition of leaving sufficiency 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 (q) . And it seems that a custom may be valid to grant waste with the consent of the homage at comets 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 freeholders were duly summoned to attend (r). Tliere 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 (.s). A custom for the lord to 483; B. k 153; (7) B. & Ca. t. inett, Sndgrove v. Kirbi/, G T. R. Bayley, J., Arlctt v. Ellis, 7 C. 362 ; post, p. 370. Baihjer v. Ford, 3 B. & Aid. Arlcll V. Ellis, 7 B. & C. 31G. Bayley, J., Arlctt v. Ellis, 7 C. 3G8 ; Wentworth v. Clmj, Finch, 263 ; Folkard v. Ilcm- 5 T. R. 417 («) ; Boulcott v. WinmiU, 2 Camp. 261. (r) Lrtscellcs v. Onslow, L. R. 2 Q. B. D. 454 ; 4G L. J. Q. B. 333. See the custom stated in Phillips v. Knlmo,), L. R. 3 C. P. D. 97 ; 47 L. J. C. P. .53. (.v) Buberlcy v. .Tayc, 2 T. R. 392 a. CHAP. II. rUOFlTS A PRFADKE. 365 approve i^rovails ouly within tlie manor and against the tenants of the manor, and therefore cannot exchide com- moners who are not tenants {f). — If the custom be to grant inclosures of the waste as copyhold, it seems they are to be considered as much copyhold tenements as if immcmorially lield by copy, and tlierefore entitled to all customary rights of common over the residue of tlie waste (ii). AVliero the lord enfraneliiscd copyhold land and granted it as froeliold, with all such rights of conmion " as the freeholders and tenants of the manor have used and enjoyed," it ^^•as lield that the commons granted were subject to the customs of the manor, and tliat a custom of inclosure might be exercised against them, tliougli tlie land after enfranchisement ceased to be held of the manor (r). " Throughout all the Statute of Merton pasfiira of com- Common of //til )i ia pa.sf tine is named, so as this statute of approvements other «)m^ doth not extend to common of pischary, of turbary, of ^^ns. estovers, or the like" ; and the lord cannot in general a]3j)rove against such rights (ir). The lord cannot inclose against common of tm-bary, because the tm-f is not renew- able like pasture, and therefore the commoners in course of time must require it all (.r). But the lord may inclose such parts of the waste as are not capable of tiu'bary, or have been exhausted of tiu'bary (y). And by special custom of a manor tlie lord may approve the waste against common of tm-bary and other commons, leaving suilicient for the commoners (~) . A custom of a manor for the owner of the waste to assign from time to time parts of it {t) Sewers'' Commiss. v. Glasse, {x) Grant v. Gunner, 1 Taunt. L. R. 19 Eq. 134 ; 44 L. J. C. 435. 129. (y) Clarkson v. Woodhouse, 5 T. R. («) Xorifiwick V. Slonwai/, ^ B. & 412, n. (a); Peardou v. Under- P. 346. hill, 16 Q. B. 120 ; 20 L. J. Q. B. ((') Lascelles v. OnsUnc, L. R. 2 133. Q. B. D. 433 : 46 L. J. Q. B. 333. {.-) Arktt v. EUU, 7 B. & C. 371 ; (iv) 2 Co. lust. 87 ; l/ubcrly v. Lasctlles v. OhsIou; L. R. 2 Q. B. D. Taffc, 2 T. R. 31)1. 433; 46 L. J. Q. B. 333. 366 USES AND PROFITS IN LAND OF ANOTHER. called moss daks to the commoners, in wliicli to take their tiu'baiy exclusively of the rest of the waste, and for the o^\Tier to inclose tliose parts after the turbary is ex- 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 could not inclose; because they are distinct rights, and the inclosure against pasture is not necessarily a disturbance of the other commons (b). — Common of ^dcinage, 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). Inclosure under Acts of Parliament. In modern times the inclosm'e of common lands and the absolute extinguishment of common rights are generally effected by local Acts of Parliament, subject to the pro- visions of the General Inclosm^e Acts {e) . Under this process common appendant and the customary manorial rights of common, common fields and lammas lands, commons of turbary and of estovers, have greatly dimi- nished and are rapidly disaj)pearing ; a separate and exclusive tenure being found to be more suitable to modern cultivation and requirements. An allotment 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 aiipurtenance of the tenement to which the common rights were before appurtenant ; so that a grant of the latter, whether with [a) Olarkson v. JVoodhoune, supra. [b) Fawce-tl v. Strickland, Willes, 67 ; 6 T. R. 747 n ; Shakespear v. Feppin, GT. R. 741. [c) ^H^ p. 338; Wells y.rcarey, I Bing. N. C. 566. [d) Ante, p. 340 ; Corbet'' s Case, 7 Co. 5 ; Hickman v. Thorn, 2 Mod. 104. (e) See the Inclosure Clauses Con- solidation Act, 41 Geo. 3, c. 109 ; the General Inclosure Act, 8 & 9 Vict. c. 118, s. 11 ; the Commons Act, 1876, 39 & 40 Vict. c. 66. CIIA]'. II. l'U(Ji'lT.S A PRENDIIK. 367 or "witlioiit geiuTal words including appurtenant liglits, will not carry with it the new alh^tnient, as it formerly did the appurtenant rights of common (/). Section IV. Remedies for Profits a Prendre. Remedies for exclusive profits — minerals — pasture. Remedies of commoner — action for siircharg-ing common — distress of cattle damage feasant — remedies against lord. Abatement of nuisance to common — nuisance created by lord. Bill of peace concerning common rights. The grantee of an exclusive right to take minerals, Remedy for being in possession by exercise of liis right, may maintain profi^s^^*' an action of trespass or of ejectment against anyone who nunerals. distiu'bs his possession by wrongfidl}' 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 pastui-e or herbage of land may maintain an action of trespass against any person who "WTongfully distiu'bs his possession by putting on cattle to feed, or by otherwise taking the pastm-o or herbage {b). And he has all other remedies appropriate to the possession of land, as the remedy by distraining cattle daDiage feasant [c). The mere pastming 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 (/) iniliams V. PhUUps, 51 L. J. 601 ; Coverdale v. Charlton, L. R. 4 Q. B. 102 ; L. R. 8 Q. B. D. 437. Q. B. D. 104 ; 47 L. J. Q. B. 446. (rt) llarker v. Birkbick, 3 BuiT. (<■) Burt v. Moore, o T. R. 329 ; 16.56; 1 W. Bl. 482; per cur. see Jotiesv. Jiicliards, o A. &F..-iri. Rogers v. Brettion, 10 Q. B. 52; (d) Coverdtde \. Charlton, L. R. ante, p. 54. 4 Q. B. D. 104 ; 47 L. J. Q. B. (A) Crosby v. Wadsworth, 6 East, 446. 368 USES AND TROFITS IN LA>-I) OF ANOTHER, the laud in any other respect, as for digging holes into the sub-soil ; though he cannot maintain an action for a trespass to the sui'face of which he has not the pos- session {e) . Eemed}- of commoner. Action for surcharging common. Distress of cattle damage feasant. The remedy of a commoner against another commoner for surcharging the common, that is, turning out cattle in excess of his right, is an action uj)on the case for damages ; in which action a commoner is entitled to recover nominal damages upon proof of the ■s\Tong, without showing any specific or substantial damage, for otherwise the wrong- doer might gain a prescriptive title by continued enjoy- ment {/). lie may maintain an action for sui'charging, although he have not any cattle of his own on the common at the time of the surcharge (r/). And he may maintain the action, although he is himself surcharging, and con- sequently taking more profit than he is entitled to (A). — So, a commoner may maintain an action for iujmy to the common by removing the manure of the cattle, though his proportion of the damage be inappreciable {i) . A commoner may distrain the cattle of a stranger damage feasant upon the common or may drive them out ; but he cannot in general distrain the cattle of a commoner claiming under a colour of right, because he cannot make himself judge in his own cause. This rule applies where the claim is for cattle levant and couchant, or for cattle pro- portionate to a tenement, or for cattle limited by any other measirre that is a matter of j udgment. But if the claim is for a number absolutely certain without reference to any other measure, cattle commoned in excess of the number may be distrained, because it requires no judgment to determine the number, and there can be no colour and right for such excess. So, if there be a close season during which all {e) Cox V. Glue, 5 C. B. 533. {//) JFells v. Watling, 2 W. Bl. (/) Atkinson v. Tcasdale, 2 W. Bl. 1233. 810 ; 3 Wils. 278 ; llobson v. Todd, [h) Ilobson v. Todd, 4 T. R. 71. 4 T. R. 71 ; Bowen v. Jcnkin, 6 A. (J) I'indar v. Wadsworth, 2 East, &E. 911. 154. CHAP. II. I'lioi rrs a i'hendue. 369 cattlo are excluded, cattle coramoned during that season may be distraiuod (,/). In distraining cattlo put on a common in excess of a stinted nuniLer, the last put on must be taken as being those A\Tongfvdly upon the common ; unless they were all put on together, in which case so many may bo taken as are in excess of the number (/.•), These rules apply to common 7;?o- cause de vicinacjc 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 ^o^inst or . otherwise uses 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 fedsant {»>). A commoner is entitled to remove any obstructions, such. Abaicmcut of as hedges or fences of unlawful inclosm-es, whether erected ^^^^'^n'*/^ 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 inclosui-e, because it standeth upon the ground which is his common" (>0. " AVhere 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 pidling down so much of that fence as it may be necessary for them to remo\o fur the purjtose of enabling their cattle (;■) Mani's Case, 9 Co. 112 ; llaU Farffi/rr, Yelv. 129 ; Cro. Jac. 208 ; V Harding, 4 Burr. 242G. per cur. Hall v. Hurding, 4 Burr. (k) 7v//(s V. it'o(r/e'.v, "Willcs, 638. 2430; Atkinson v. Ttasdale, 2 "W. /) Capev. ScoU, L. R. 9 Q. B. Bl. 817; 3 Wils. 278. 269 ; 43 L. J. Q. B. 65. («) 2 Co. Inst. 88 ; Mason v. (m) Hoddendon v. GrcsU, Yelv. ('(csar, 2 Mod. 65. 104; Cro. Jac. 195; Keiirick v. , IJ IJ 370 USES AND PROFITS IN LAND 01' AXOTUKR. to enter and feed upon tlie residue of the common, but 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 dwelHng-house that is wrongfully built upon the common ; but not while persons are dwelling in it, on account of the risk of causing a breach of the peace {p) ; at least, not without first giving them notice of his intention and requesting them to leave {q). Nuisance Jf the lorcl 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 commoners 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 injimous 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 j)eace," to be brought by a lord against his tenants, or by tenants against the lord, or by tenants between themselves, concerning rights of (o) Bayley, J., Arlctt v. Ellis, 7 483 ; 1 B. & P. 13; Bayley, J., B. & C. 362. Arlett v. Ellis, 7 B. & C. 362. [p) I'errii v. Fitzhou-e, 8 Q. B. (s) Anon., 2 Leon. 201 ; Bellcio 'ibl. V. Langdon, Cro. Eliz. 876 ; Hades- [q) Davics v. Willimm, IG Q. B. don\. Grissell, Cro. Jac. 195; Yelv. 546 ; 20 L. J. Q. B. 330. 104 ; Cooper v. Marshall, 1 Burr. (r) Hadgrove v. K'ubg, 6 T. E. 259; Cope y . Marshall, 2 Wils. 61. CIIAl'. 11. PROFITS A PHENDIIE. 371 common ; and it is no objection to sucli bill tliat the defendants may oacli 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- closure against the rights of common of all(«). 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(r). — The practice is now sanctioned generally in all Divisions of the High Com-t by Order XVI. r. 9 : "AVliere 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 Com't to defend in such action, on behalf or for the benefit of all parties so interested." (t) Per ciir. PoueU v. Powis, 1 Y. & J. 165 ; Hardwicke, L. C, York V. Pilkingio)), 1 Atk. 282 ; Tcnham V. Herbert, 2 Atk. 483. (m) Eldon, L. C, ITanxony. Gar- diner, 7 Ves. 309 ; tScwcrs Cowmisn. V. Glasse, L. R. 7 Ch. 456 ; 41 L. J. C. 409. (r) Powell V. Poivis, supra ; Smith V. Broivnlow, L. R. 9 Eq. 241 ; 39 L. J. C. 63G(1); Warrick \. Queen's Coll., L. R. 6 Ch. 716 ; 40 L. J. C. 780 ; Betts v. Thompson, L. R. 6 Ch. 732. ^eepost, p. 570. H B Z 372 USES AND PROFITS IN LAND OF ANOTHER. CHAPTER III. EENTS. Section I. Creation of rents. II. Extinction and apportionment of rents. III. Remedies for rent. Section I. Ckeation of Rents. § 1. Rent service. — § 2. Rent cliarge and annuity. — § 3. Tithe rent charge. § 1. — Rent Service. Rent — rent service— distress — rent charge — rent seek — dLstress by- statute. Reservation of rent service — by deed or will — reservation to stranger. Reservation of rent upon grant in fee simple — upon grant of particular estate — upon lease for years — tenancy at will — tenancy under agreement for lease. Attornment of mortgagor as tenant to mortgagee— lease by mortgagor in possession. Limitations of rent service— construction of limitations'. Rent of incorporeal hereditaments — rent of personal chattels. Fee farm rents— rents of assize — quit rents— apportionment— redemp- tion. Rent is u profit issuing out of land, wliicli is rendered or paid periodically ])y the tenant. It is said tlierefore to lie in render, in distinction to a profit a prendre wliicli is taken from tlie land without tlie intervention of the tenant (c/). 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) Jute, p. ISO; Co. Lit. Win; 10 Co. \'1'6((, Chin's case. CIIAr. 111. RENTS. '')7''i uient of rent" witliiii tlio Conveyancing Act, 1881, s. 8, (4) (/;). A rent of a silver penny was held to be a rent " liaving no money value " in tlie meaning of the same Act, s. 65 (c) . At common law rents are distinguished as of tliree kinds : Rent scnice. rent service; rent eliarge ; and rent seek (r/). — Rent 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 lahoiu" or other duties which were equivalent to profits ; hut in process of time nearly all ser- vices became commuted, by agreement or usage, into fixed money pa^nnents, or rents in the ordinary meaning of the term [c). — Kent service was attended at common law with Distress. the remedy of distress ; by which if the rent were in arrear and unpaid, or the services unperformed, the lord might enter upon the land diu'ing the tenancy, and seize any per- sonal chattels there found, and detain them as a pledge for the pa>nnent of the arrears of rent or for the performance of the services (./'). Hent may be payable out of land independently of Rent 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 liimseK 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 may be given or reserved by an express clause in the deed of grant or conveyance, with the effect of charging the land with the rent, which is then called a rent-charge ((/) . A rent service may become disconnected with tenure by Rent seek. {!>) lie .Voodi/ and Ya/cs, Jj.n. so {f) Sco ante, Vol. I. Chap. I. C. D. 346 ; 54 L. J. C. 887. " Tomu-e." (c) Re Chapman and Hobh, L. R. {/) Lit. s. 213 ; Co. Lit. U2a ; 29 C. D. 1007 ; 54 L. J. C. 810. Bullen on Distress, 21 ; jwst, p. 422. (rf) Lit. s. 213. iff) Sec post, p. 385. 374 USES AND PROFITS IN I.AND OF ANOTHER. act of tlio reversioner, as if lie conveys away the reversion to whicli the tenure is incident, hut expressly reserves to himself the rent ; or if he conveys away the rent separately, reser\ing the reversion and tenm^e. The rent is prima facie an incident of the reversion, and passes to a grantee of the reversion imless expressly reserved ; hut 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 availahle at common law {(j) . Rents deprived of the remedy of distress, whether originally so created, or becoming so by a subsequent act, were called rents seek (A). Distress by But by the Statute 4 Greo. II. c. 28, s. 5, it was enacted that " all and every person or persons, bodies politic and corj)orate, shall and may have the like remedy by distress, and by im.pounding 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 tlu-ee 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 " (/). Rents seek issuing out of or charged upon freehold interests in land Avithout express 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 l^e within the statute (A-) . — Now by the Conveyancing Act, 1881, 44 & 45 Yict. 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. 89. 22.5, 229 ; Sheppard's p. 383. Touchst. 89, 114. U) Boddsv. Thompson, L. R. 1 (A) Lit. ss. 218, 226 ; Co. Lit. C. P. 133 ; 35 L. J. C. P. 97. 150 h. {k) Ter cur. v. Cooper, 2 (i) See Husf/ravew. Emmerson, 10 Wils. 375 ; see Bullen on Distress, Q. B. 32G. As to rents of assize p. 54, App. (A). and other kinds of rent, sec post. ( IIA1>. Ill, RENTS. 375 wise, not being rent incident to a reversion." Tlie remedy of distress, therefore, is now attendant upon every species of rent, either by common hiw, or under an express clause of tlistress, or by statute. Rent service is said to be reserved, as distinguished from Reservation of rent service. a specific part of the land which may be excepted. In ° ^^^ technical language an exception refers to a part of the tenement granted and of a thing in esse, 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 use of the grantor (/). — Rent B^- deed, service may be reserved by any conveyance that is effective to pass an estate, leaving a reversion in the grantor to which tenm-e may be incident. It may be reserved upon a deed of grant 02)eratiug 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 poll, 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 (>?). — It maybe reserved uj^on a By will, devise by will of a particular estate ; a rent service is thereby created whicli is incident to the reversion, and passes with it to the heir or de^■isee of the testator (o). But in the case of two independent de%dses of the land and of the rent, it is not rent service but a rent seek ; unless charged upon the land by a special clause of distress, which would make it a rent charge (p). Rent service, properly so called, can be reserved only Reserv-ation to the grantor or lessor of the particidar estate out of ^° stranger, which it issues, who retains the reversion to which the (/) Co. Lit. 47 (>; Rrkins, ss. G-J.), («) Co. Lit. 1 13 f>. 626 ; Doc v. Lov/i, 2 A. & E. 7t3. (o) Maclul\. Danton, 2 Leon. 33. {m) Co. Lit. 144 a ; post, p. 376. \p) Wchh v. Jir/fi^; 4 M. .V 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, witli a rigbt 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). Reservation upon grant in fee simple. Grant of particular estate. Keservation of rent upon At common hiw, before the Statute of Q/iia JSu/pfores, 18 Edw. I. e. 1, " if a man had made a feoffment in fee simple, by deed or without deed, yielding to him and to his heii's 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" (.s). 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 rod charge {f). — 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 {u) . 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 exj)ress clause (r) . If a lease be made for a term of years, reserving rent, {q) Lit. s. 346; Co. Lit. •17 a, 143 b. (r) Lit. 8. 345 ; Jenison v. Lex- ington, 1 P. Wms. 557. (.*) Lit. s. 216. ficc 2}ost, p. 383. (0 A>itc, Vol. I. p. 18 ; Lit. 8. 215 ; BradburjY. If 'right, Dougl. 627. {>() Lit. R. 214 ; Co. Lit. 112^. [r) Lit. s. 21o. CTIAl'. HI. RENTS. 377 it is a rent scrviL-e, and tlio lessor may distrain at common lease for law (ic). By the Statnte of Frauds, 29 Car. II. c. 3, s. 1, ^^'•''^^ it is required that all leases should be made in writing and signed; and Ly 8 & 9 Vict. c. lOG, s. 3, it is requu-ed that leases required to he 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 diuing sueli torin sliall amount unto two-tliird ]i;irts at the least of tlic full improved value of tlio thing demised." . Therefore in leases by parol ^dthin 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 A\'itli a right of distress (.r). And a tenant from year to year, underletting for a term of years, has a reversion with right of distress (//) . 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 (-). Kent may be reserved on a tenancy at will and the Tenancy at lessor may distrain for arrears ; but it is not rent ser^dce ^^ ' strietl}^ so called, because there is no tenm-e (a). — Wliere, Tenancy as frequently happens, a tenant enters and takes possession meuTfof'^'^^' under a mere agreement for a lease, not operating as a lease, legal demise, lie 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 («•) Lit. s. 2 14. 21 ; rolloc/c v. Stan/, 9 Q. B. 1033 ; (.)•) n'adcv. Marsh, Latch, 211. see WoUasto)t \. 'lliihcuUl, 3 M. (y) Teuterden, C. J., Curtis v. & G. 297 ; Beardman v. Wilson, 7^7;. Sc 142/),- Anderson \. Midlaiul lii/. Co., Ad. 586 ; rrccce v. Corric, a Bing. 3 E. & E. 614 ; 30 L. J. Q. B. 94. 378 ISES AND PROFITS IN LAND OV ANOTHER. Attornment of mortgagor as tenant to mortsrasree. distress. But upon payment of rent a tenancy from year to year was implied in law {b) . The Court of Chancery 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 under an agreement for a lease of which specific per- fornianeo 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 under the agreement. 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 punctual payment of the interest ujpon 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 amount 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 (e) . In the case of a second mort- gage, operating only upon the eipiity of redemption. («) ybde, Yol. I. pp. 201, 20G ; Anderson y. Midland It ij Co., 3. E. & E.614 ; 30 L. J. Q. B. 94: sec Vin- cent V. Godson, 4 D. M. & G. 54G. (c) Je.Hsel, M. R., Widsh v. Lons- .^//. 335; 48 L. J. C. 420. L. J. C. 417 ; I'X parte Jackson. L. 380 USES AM) I'KOFITS l.\ LAKU OF ANOTHER. brnncers. The leases authorised are : (1) an agricultural or occupation lease for any term not exceeding twenty-one years ; and (2) a Luilding lease for any term not exceeding ninety-nine years. The section further pro\ides numerous requii-ements for such leases, as to possession, rent, and other matters for the security of the mortgagee. Limitations of rent- service. The reservation of rent service must be made with 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 tlie 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 executors (/). A reservation " to the heirs " of the lessor, omitting the lessor himself, would be a bad reservation of rent service, because the heir would take by purchase and would be in the position of a stranger {ni). A reservation of rent " 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"(;/). If tenant in tail make a lease for years, reserving rent to him and his heirs, the rent will go with the reversion to the heir-in- tail (o) .—By the Conveyancing Act, 1881, 44 & 45 Vict. c. 41, s. 51 (1), "In a deed it shall be sufficient, in the limitation of an estate in fee simple, to use the words in fee simple, witliout tlie word heirs ; and in the limitation of an estate in tail, to use the w^ords in tail without the words heirs of the body. (2) This section applies (l) Co. Lit. 47 a, 21.5 b. (m) Co. Lit. 213 b ; Oats v. Frith, Hob. 130. {/i) Co. Lit. 214 a ; ante, Vol. I, pp. 15G, IGO. {o) 2 Wms. Saund. 371 (7). CTIAl'. III. REKTS. 381 only to deeds executed after the commencement oi' this Act." Reservations of rent service are construed, if possible, so Construction as to support the reservation and attach the rent to the tions. reversion. Aecordin<>-l3', if the rent he reserved generally *' during the term" without shmving to whom it is intended to go, it ^^'ill go with the reversion to the lessor and his heirs, or tf) whomsoever may ho entitled to the rever- sion (j)). In the ease of a joint lease hy tenants in com- mon, reserving rent without saying to whom jiayahle, it was held that upon the deatli of one of the lessors, the reversion being severed, the rent followed the reversion (q). — Wliere 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 dui'ing the term, and leave the law to make the distribution, without an express reservation to any person" (/•). " A rent must be reserved out of the lands or tenements Rent of whereunto the lessor may have resort or recoui'se to |i°redit"a-'^ distrain, and therei(n'o a rent cannot be reserved out of meuts. 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 f-hall it 2)ass with the grant of the reversion, for that it is no rent incident to the rever- sion "(.v). If land be leased together with incorporeal hereditaments, with a reservation of rent, there is a (/?) Co. Lit. 47 a ; Sachevcnll v. waijx. ITarl, 14 C. B. 340 ; 23 L. J. Froggatt, 2 Wms. Sauud. 3G7. C. V. 115 ; YtUouli/ v. Goiier, 11 {q) Beer v. Beer, 12 C. B. GO ; 21 Ex. 274 ; 24 L. J. Ex. 289. L. J. C. P. 124. (a) Co. Lit. 47(7, W2a. Jewel's {r) Whithck's Case, 8 Co. ~l(i; fuse, 5 Co. 3a: ButCs Case, 7 Co. Combe's Case, 9 Co. 75: Isherwood 23A ; Bean of If'imhur v. Gorer, 2 r. Ohlknow, 3 M. & S. 382; Greeua- "\Vni.«. Saund. 301. 382 i;sEs AND I'Hoi rrs in land of another. reniedj by distress against the Land tliougli not iigainst tlie incorporeal property ; the rent issues wholly out of the land in point oC remedy, hut in point of render out of both together (/). Where a wharf was let together vdth the easement of mooring barges in the adjacent 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 {u). — 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" (i'). "But if a man demiseth the vestm^e or herbage 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" (w). 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 may have a sale of an adequate portion of the reversion to pay the rent {x). Rent of Upon the same principle a rent cannot be reserved out of SltS! 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 (y). 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 (t) Bouhitoftc V. Ciirtcenc, Cro. {x) Daivson v. Robins, L. R. 2 C. Jac. 45:5 ; Hco 2 Wms. Saund. 304. P. D. 38 ; 4G L. J. C. P. 62. {u) Buszard v. Capcl, 8 P. & C. (y) Newman v. Anderton, 2 B. & 141; Cnpel \. Btiszard, Q, Jiln^^. \-i(i. P. N. R. 224; citing Spencer's {v) Hardwicke, L. C., Stafford v. Case, 5 Co. 17 ; Farewell v. Bicken- BucJde)/, 2 Ves. sen. 178. son, 6 B. & C. 251. See Salmon v. {iv) Co. Lit. 47rt, 142ff. Matthews, 8 M. & W. 827. ( IIAP. in. RENTS. 'iX'-i rent reserved for the wluile is considered as issuin;^ out of the fixed property, and attended with the right of distress (;:). Some rents service liave received special designations. Fee farm Fee farm is rent in perpetuity reserved upon a grant in fee ^^°*" simple. " After the statute of quia empfore.s 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 " (c/) . llent granted or reserved in perpetuity since the statute would be rent seek at com- mon law, unless charged upon tlie land by an express clause of distress. As rent seek it would be distrainable only by virtue of the Statute 4 Geo. II. e. 28 (b) . The customary rents service of tlie freehold and copy- Rents 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 Quit rents, were also called quit rents, 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 cliief rents of the manor (c). The rents of the copyhold tenants are distrainable at common law {d) . ^'Hacli 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 (?). — Where quit rents have been paid, Init, 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- {z) Sclbi/ V. Greaves, L. R. G C. {h) Aule, p. 374 ; Uradbury v. P. 594; 37 L. J. C. P. 2.51. See IVrlriht, supra ; liiris v. Watson, 5 Willcs, J., lb., and see Marshall v. M. & W. 255. Schoftchl, 5-2 L. J. Q. B. 58. (<■) 2 Co. Inst. 19 ; 2 Blackst. [a) Hargrave's Note (5) to Co. Com. 42. Lit. 143 i; a)itt', p. 376; Bradbunj (d) Lauf/hter v. Humphrey, Cro. V. Wright, Dougl. 027. n. ; Alt.- Eliz. 524; sec ante, p. 377. Gen. V. Coventry, 1 P. Wms. 306. (<) 2 Blackst. Com. 43. 384 USES AM) TKOFITS IN LAND OF ANOTHER. ments ; and if necessary, the Coiu-t will provide a remedy by ascertaining the boundaries (./'). Apportion- By the " Act for the Inclosm-e of Land," 17 & 18 Vict. statute. c- 97j ss. 10 — 14, it is provided tliat " 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 l^ayment issuing therefrom may make application in writing to the commissioners," 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 w^ith the payment thereof, and also, where necessary, to determine the extent, identity, and boundaries of the land and hereditaments charged with such rent or ])ayment." Redemption 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 Coi^yhold 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 aj)ply 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 ]»ur])0scs ; or to any sum or payment issuing out of land not being perpetual." (/) Jiridgcicaler v. Edu-unU, G Bro. P. C. 3G8 ; Duhe of Leeds v. Towcll, 1 Ves. sen, 171 ; ante, p. 10. of rents. cH.vr. 111. iiicNTs. 385 § 2. Rent charge and Annuity. Rent charge — grant of rent charge — grant of distress — Bills of Sale Act, 187S. Reservation of rent ui^uu grant in fee — upon assignment of term — severance of rent service and reversion. Limitations of rent charge — estate tail — disentailment. Seisin, entry and occupancy of rent. Rent as real or personal estate — arrears of rent. Annuity. Annuitj' charged upon land — upon rents and profits of land. Limitation 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 Registration of annuity and rent charge. A rent charge may Le created by the 0"\vner of land Rent charge, granting' a rent out of it mtli an express power to distrain upon tlio hind ; or In' tlie owner granting or assigning all his estate in tlic 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 teniu'e of the land (a). " 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 ^^^ '^ ^^°°' 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" (b). As a rent seek it is distrainable by the statute 4 Greo. II. c. 28 (c). In the same manner a rent charge may be de^•ised by "wall {(/). — 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 diuing the term, if the grantee so long live ; and in such case the grantee hath but {a) Ante, p. 373; post, p. 387. son, L. R. 1 C. P. 133 ; 35 L. J. (A) Lit. s. 218. C. P. 97. ((■) Ante, -p. 374 ; Boddsy. T/iomp- (d) See ante, p. 37-5. J.. (J C 386 TSES A^D PROFITS IN T-AXI) OF ANOTHER. a chattel (f). " Wlion a rent is gTantod out of land in fee and out of a term of years, to liave and perceive to tlie grantee for tlie term of liis life, this, as an estate of freehold according to the pui'port 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 o^Tier of land grant to another, that if he be not distress. 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 (r/). If land be demised with a reservation of rent, and it is fm-ther 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 charged, the one with the rent service, and the other with a distress for the rent by way of penalty (//). And the latter would, be chargeable with the distress as against an assignee who took it with notice (/). " 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" (j). 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 (/o). BiUs of Sale By the Bills of Sale Act, 1878, 41 & 42 Vict. c. 31, s. 6, Act. a Every attornment, instrument, or agreement, not being a mining lease, whereby a power of distress is given by way of secmity for any debt or advance, and whereby any rent is reserved or made payable as a mode of providing le) Butt's Case, 7 Co. 23 a ; Safcnj (i) Daniel v. Stejmei/, L. R. 9 Ex. v.hffood, 1 A. & E. 191; post, 185 39f. (j) Co. Lit. 147 a. ( f) Bulfs Case, supra. [k) Freeman v. Edwards, 2 Ex. «) Litt. s. 221; Co. Lit. 4G J; 732; 17 L. J. Ex. 258. See Re 7 CV) 24 « Butfs Case. Sankcy Brook Coal Co., L. R. 12 Eq. [h) Co. Lit. 147 a ; 7 Co. 23 h, 472 ; 41 L. J. C. 119. liutVs Case. CHAP. III. lUCXTS. 387 for tlie payment of interest on such debt or advance, or . otlierAvise for tlie pm-poso of such secm-ity oid}', shall be deemed to bo a bill of sale of any personal chattels which may be seized or taken under such power of distress." This enactment applies to the attonmient clause in a mort- gage wliereby the mortgagor in possession attorns tenant to the mortgagee ; though it docs 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 public- house, stipidating 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 %\ithin the Bills of Sale Acts, and must conform to those Acts in fonn, registration and other requirements {fu). After the passing of the Statute of Quia Umptores a con- Eeservation veyance in fee simple created no new tenure between the J^ant i^fee! 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 sliall 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 witli 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 miderlease for the wliole uuderlcaso tei-m, reser%'ing rent, but leaving no reversion, the rent is of term, not rent service and is not distrainable at common law, (0 Jte Willis, L. R. 21 Q. B. D. (m) Piilbrook v. As/ibi/, 66 L. J. 384 ; Hail v. Comfort, L. R. IS Q. Q. B. 376. B. D. 11; 56 L. J. Q. B. 185; («) Lit. ss. 215—217: ante, p. ante, p. 379. 370. cc2 388 rSES AND rUOFlTS IN LAND OF ANOTHER. Severance of rent service and reversion, unless tliere be an express clause of distress (o) . But such rent would be recoverable by action of debt during the 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). A rent originally reserved as rent service incident to the reversion of the land demised, may become dissevered from the reversion, by the landlord granting away the rent and reser\ang 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 law ; the rent becomes a rent seek charged upon the land, and distrainable only by the statute 4 Geo. II. c. 28 (g). 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 (s) . Limitations of rent charge. Tlie grant of a rent charge, wdiicli 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 {f) . — 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 his heirs, to the use that B. shall have an annual rent out of the same ; 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 ; I'armcntcr v. Webber, 8 Taunt. 59a ; Freece v. Corrie, 5 Bing. 24 ; Fascoe v. Tascoe, 3 Bing. N. C. 898. (;;) Fmdlncy v. Holmes, Strange, 405 ; Faker v. Goatling, 1 Bing. N. C. 19 ; Williama v. Ilayward, 28 L. J. Q. B. 374 ; post, p. 472. [q) Lit. ss. 225— 229,a«. 408 rSES AND TKOFITS IN LAM) OF ANOTHER. Possession of part of the land. Possession for limited estate. Possession by act of laTv. session of the land out of which the rent issues for an estate equal to or greater than his estate or interest in the rent {g). But if the owner of the rent acquii^e possession of i^art only of the land, there is a difference in the effects upon a rent charge and upon a rent ser^dce. " If a man hath a rent charge to him and to his heirs issuing out of certain land, if he purcliase 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 manner be apportioned" {h). "If the grantee of a rent charge pm^chase parcel of the land, and the grantor by his deed, reciting the said purchase of part, granteth that lie may distrain for the same rent in the residue of the land, this amountoth to a new grant, and the same rent shall bo taken for the like rent or the same in quantity" (/). — 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 {j). — If the owner of the rent acquire possession of the iand for an estate less than his estate in the rent, the rent is suspended only, and not extinguished, and it mil 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 (/.•). And possession of part of the land under such circumstances suspends the rent for the whole (/). If part of the land charged comes to the owner of the rent by descent, tlic 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 (g) Freeman v. Edwards, 2 Ex. 388. 732 {k) Tcto V. Tcmlcrton, Cro. Car. (h) Lit. s. 222 ; Co. Lit. 147 *. 101. (i) Co. Lit. 147 h. {I) Co. Lit. US b ; Jlodffkbis v. U) Denneitv. Pass, I Bing. N. C. liobson, 2 Lev. 143 ; 1 Vent. 277. CI I VI'. III. RENTS. 409 comes by descent to the o"s\iicr of part of the laud, the rent is apportioned (m). "But if a man wliicli hatli a rent service purchase Merger of parcel. of the land out of which the rent is issuing, tliis ^®°* ^<^"'i*^'^- shall not extinguish all, but for the parcel only. For a rent ser^dco in such case may be appoiiioned according to the value of the land" (»). " 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 bo aj^portioned. So if the lessor recovcreth part of the land in an action of waste, or entereth for a forfeitm-o in part, the rent shall be appor- tioned" (o). If the rent service be such that it cannot be api">ortioned, as the delivery of a horse, hawk, or other indinsible chattel, if the lessor pm'chaseth parcel of the land, the entire service is extinguished because it cannot be claimed for part only of the land (p). Kent service being incident to the reversion of the Merger of demised estate was extinguished at common law by v^hfcTrcnt' 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. c, 106, s. 9, it is enacted "that when the reversion expectant upon a lease of any tenements or heredita- ments shall be sun-endered 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 piu'pose of preserving such incidents to and obligations on {)») Lit. s. -l-li ; Co. Lit. 149 b. 8 Co. lOi b, Talbot's Cue. (w) Lit. 8. 222. («7) Webb v. Russell, 3 T. R. 393 ; (o) Co. Lit. 148 a. Thorn v. If'ooleombe, 3 B. & Ad. Ip) Lit. s. 222 ; and sec Lit. 586. 8. 314 ; 6 Co. 1 b, Bruertoi's Case ; 410 USES AND PROFITS IN LAND OF ANOTHER. the same reversioa as, but for the suiTender or merger thereof, would have subsisted, be deemed the reversion expectant on the same lease." Eviction of tenant by lessor. Eviction by title para- mount. If the lessor ■\\T.'ong-fully enter upon the land demised and e\4ct 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 bo 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 ^vrongful 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 ^^remises 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 (»). 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 avoicleth the gift or lease; the rent shall be apportioned" (i-). So, if a man lease land of which ho 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 being (-/) Co. Lit. 148 b. (r) Co. Lit. 148 b. Sec Baynton V. Moryun, L. R. 21 Q. B. ]). 101. («) Ilnnt V. Cope, 1 Cowp. 242 ; 1 Wms. Saund. 204 (2), Halmon v. Smith. {t) Williams v. Hayivard, 28 L. J. Q. B. 374. («) 3 Co. 22 ^', JFcilkcr's Case; Smith V. 3IaU//{/s, Cro. Jac. 160 ; Stevenson v. Lambard, 2 East, .575 ; Mayor of Swansea v. Tliomas, L. R. 10 Q. B. D. 48; 52 L. J. Q. B. 340. iv) Co. Lit. 148 b. CHAr. III. RENTS. 411 ejected from tlie latter, the rent is apportiootaLlo («•). 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(.r). But if there be a charg-o or incumbrance upon the land, as a ground rent, rent charge or mortgage, which the lessee is compelled to pay to the benefit of tlio lessor, he may treat the payment as pay- ment of so nnich rent to the lessor (//) . 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 tliat part, the lease, as to that part, is wholly void, and the reserva- tion of rent is not apportionable (s). 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 ^cnt charge. his own grant he shall not take advantage of the weakness of his own estate in part." 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" (b). And " if the land out of which the rent charge is granted be recovered by an older title and thereby tlie 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 entii-e amoiuit ; or by partition of the time ™^^*^ ^^ ^^^^' dm"ing 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 wliich the rent («•) Doe V. Mei/hr, 2 M. & S. (r) ITeale v. Maclenzie, 1 M. & 276. "W. 747; Gardiner v. WilUamson, ■{x) Boodle V. Campbell, 7 JI. & G. 2 B. & Ad. 33(3. 386. [a) Tomlbison v. Bay, 2 B. & B. (v) Ih. ; Johnson v. Jones, 9 A. 6S0 ; 5 Mooi'e, C. P. 558. & E. 809. (A) Co. Lit. 148 b. {e) Co. Lit, 148 a ; ante, p. 392. 412 rSES AND niOFITS IN LAND OF ANOTHER. issues; tlic other hy grautiug part of tlie rent to one person and part to another " (c). By partition of the rent. Ey partition of the rever- sion. Rent, whether rent service or rent charge, may be divided in amount, and assigned in several parts, by deed or will, whilst the reversion and the tenement charged remain entire ; and the assignee of a part of the rent may sue or distrain for the amount of his part sej)arately. The attornment or consent of the tenant of the land to such partition of the rent is not necessary ; for though he may thereby be subjected to several actions or distresses, it would be only by reason of his own defaidt in not paying the rent (d). Rent service is apportioned by law upon a jiartition of the reversion to which the rent is incident. If the par- tition is made in undivided shares, the rent is apportioned in amount according to the number of shares ; and each partitioner may distrain in his own right upon all 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 value of the several parts ; and each reversioner may distrain upon his own part only for the rent apj)ortioned to that part. In such case the tenant is not bound by an apportionment without his consent, and if he disj)utes 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 years reserving a rent, if he grant away part of the reversion, the rent shall be apportioned by tlie common law, and albeit the grantee of part demand or claim more in his (c) Abbott, C. J., Miss v. CoUins, 5 B. & Aid. 882. {d) Ards V. Watkin, Cro. Eliz. 637, 651 ; Colbornc v. Wright, 2 Lev. 239 ; Jiivis v. Watson, 5 M. & W. 255. {(■) ThiJpott V. Bohinson, 6 Bing. 101. (/) Bliss V. Collins, 5 B. & Aid. 876 ; Roberts v. Snell, 1 M. & G. 577. CHAP. III. KENTS. 413 autiou of (IcLt uv HVDwry than is duo, yet .shall he recover so much as the jury shall find upon a just apportionment to be duo" {(/). So, " If a man makes a lease of three acres each of equal yearly value, rendering '3.s'. rent, and the lessor grants the reversion of one acre, and the tenant attorns, the grantee shall have 12(1. rent, for altliough it was one lease, one reversion, and one rent, yet that wns incident to tlio reversion which was severable, and tlie rent shall wait upon the reversion and upon ever}- part of it "(/(), 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 (/). And the grantee of the reversion in part may also recover upon the cove- nant the amount of rent ai^portioned to his part (J). A lease may in tenns reserve several rents for several parts of the demised jiremises, which are then distinct rents, charged only upon the several parts respectively, and incident respectively to the reversions of the several parts ; Ijut A\'herc a lease expressly reserved an entire rout, and afterwards apportioned that rent to several parts, it was construed as charging the rent upon the wliole, with a mere declaration of the values of the several parts wliich made up the whole rent (/.•). A partition of the reversion in parts of tlic land may be rartition by caused by act of law. Where lands of different tenm-es, '^^^ ° ^^ " 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 dilferent persons, the rent is apportioned to each according to the value of the lands ; and the covenants and contlitions are also ap- (ff) 2 Co. Inst. 504. Sec Jvuer Suansea v. Thomas, L. R. 10 Q. B. V. Muyle, Cro. Eliz. 771 ; West v. D. 48 ; 52 L. J. Q. B. 340. Lassvlls, Cro. Eliz. 851 ; Co/lhis v. (/) Tuyiiam v. Tickard, 2 B. & Harding, 13 Co. 57. Aid. 105. (h) 8 Co. 79 b, WihVs Case. (/.) KuiffhCs Case, 6 Co. 54 b ; (i) Co, Lit. 148 a; Maijor of J}'iiiUr''i Case, Dyer, S08 b. 414 USES AND PROFITS IN LAND OF ANOTHER. Partition by tenant. Statute of Quia Emptores. portioned to tlio respective lands (/). So, upon a joint lease hy tenants in common and death of one, tlie re- version is divided, and the rent is apportioned Avith the divided reversion (^;/). Similarly, where a house and furniture "were let at an entire rent, the interest in the house and the fiu'niture becoming severed, it was held that the rent was apportionable between the several interests (;?). Rent is not apportionable by any act or disi^osition of the tenant alone, Avithout the conciu-rence or consent of the owner of the rent ; and though the tenant aliens part of the land, the remedies for the entire rent remain unaffected (o). An exception was made by the Statute Quia Emptores, 18 Edw. I. c. 1. Before the statute, upon an alienation of part of a tenement held in fee, the lord might distrain upon the land aliened or upon the land reserved for the whole of his services, as if the whole tenement remained in the possession of his tenant. But the statute, after declaring that " it shall be lawful to every freeman to sell at his own pleasure his lands and tenements or part of them," provided that " if he sell any part of such lands or tenements to any, the feoffee shall immediately hold it of the chief lord, and shall be forthwith charged with the service, for so much as ought to pertain to the same chief lord for that parcel according to the quantity of the land or tenement sold ; and the same part of the service shall cease to be taken by the chief lord by the hands of the feoff or "(<7) . Services which are entire and indivisible, as the delivery of a horse, or a hawk, or the like, are not apportionable under the statute, but each feoffee holds by the entire of such services to be rendered in full as at common laAV (>•) . [I) Co. Lit. 215 a ; Huntley v. Roper, 1 And. 21 ; per cur. Etcer v. Moylc, Cro. Eliz. 772. (w) Beer v. Beer, 12 C. B. GO ; 21 L. J. C. P. 124. («) Salmon v. MaUlicwn, 8 M. & W. 827. (o) Broom v. Tlore, Cro. Eliz. 633; 3 Co. 24 a, Walker's Case; Christie v. Barker, 53 L. J. Q. B. 537. [q) 2 Inst. 503 ; per cur. Hollo- u-ay V. Berkeley, 6 B. & C. 10. (r) BruertoiC s Case, (3 Co. 1 ; Tal- hoVs Case, 8 Co. 101 h ; ante, p. 409. CHAT. HI. RENTS. 415 Conditions of re-entry for non-payment of rent and Apportion- other conditions annexed to estates, were considered at J^u^iUons common law as entire and indi\'isible, and not apportion- ablo by any act of tlio lessor to several parts of tlio rent or to several parts of the demised premises ; so tliat 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 j)arties, but the condition is destroyed ; for that it is entii*e 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 (s). 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^^Y^/^'^''' 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, sui'render, 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-entr}^, 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 pai-t, 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." (s) Co. Lit. 21.5 (J ; 5 Co. 55 I), Knight^s Case. Sec (t)iti\ p. 413. 416 rSES AXD I'ROFITS IX I, VXD OF AXOTPIER. Apportion- ment of rout to time, at common law. Apportion- ment in equity. Apportion- iMOut by terms of limitation. At common law rent payable at fixed periods was not aiiportionaLle iu resj)eet of time. If the rent ceased or the title failed from any cause in the interval during which a pajTnent was accruing due, no part of the rent could be claimed for the time elapsed since the last period of pay- ment. It was held that " if tenant for life makes a lease for years rendering rent at the feast of Easter, and the lessee occuj)ies for three-quarters of the year, and in the last quarter before the feast of Easter the tenant for life dies, here shall be no apportionment of the rent for three- quai-ters of the year, because no rent was due till the feast of Easter, and no apportionment shall be in resj)eet of time"(0. Equity followed the rule of law, and under the same circumstances allowed no claim against the tenant for an aj^portionment of rent (u). But if the tenant in fact con- tinued in occuj)ation after the legal determination of the tenancy and paid a sum of money as and for rent, though not strictly due as such, the money so paid was considered in equity as apportionable between the several persons under whom the occupation was held; and the reversioner having received the whole amount was held bound to account for a proportionate part to the former owner or his representa- tive {x). A similar equity was held to arise between the representative of a tenant in tail deceased without issue and the remainderman, upon a lease made by the former which determined with his death (//). A rent or other jieriodical payment may be reserved or charged to accrue due from day to day, and is then ap- portioned in respect of time by the express terms of the reservation or charge ; and in some cases it is construed to be api^ortionable in order to carry out the intention and purpose of the charge. Such is the general rule of con- {t) 10 Co. 128 a, Choi's case; Ex parte Smyth, 1 Swanst. 337. (?<) Jenner v. Morgan, 1 P. Wms. 392 ; Jlay v. rainier, 2 lb. 502. {x) JIawkins v. Kelly, 8 Ves. 308 ; Knight V. Houghton, 12 Beav. 312. (//) Faget v. Gee, Ambl. 198 ; 3 Swanst. G9-1 ; Vernon v. Vernon, 2 Bro. C. C. 6-39 ; Kemll v. Davics, 15 Sim. 466. CHAP. III. RESTS. 417 strueticm with clitirgos for the inaiutenance of childi-en; though made payable at fixed times, they are considered as accruing- due from day to day, because intended for the daily maintenance of tlie chilcb'en {z). 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 duo fi-om day to day; as a mortgage debt, though it be charged upon land and made distrainable as rent by an attonmient clause {b). So, the interest upon a bond, conditioned for liaH-yearly payments, is apportionable in relieving against the penalty (c). — At common law annuities in general were Annuities. not apportionable, including government annuities, and dividends of the public funds {d). Statutes have been passed to amend the strict rule of the Apportion- conmion law and to make rents and other periodical pay- gtatutef ments generally apportionable. The first of these statutes, 11 Geo. II. c. 19, s. 15, 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 fi-om the lessee "a proportion of such rent, according to the time such tenant for life lived of the last year, or other time, in wliich the said rent was growing due." By an Amendment Act, Between 4 & 5 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 enlarged the liabiHty of the tenant Between sue CGSS1V6 r**-'***'^** appoiiionately to the dm'ation of his lease, but they did not of rent. cessive owners (z) Hay V. Fainter, 2 P. Wms. {c) Per cur. HoweU v. Hatiforth, b02; Jiri/nish v. Martin, 3 Atk. supra ; Banner \. Lowe, \ZYes.Vib. 330 ; Shejjpard v. Wilsun, 4 Hare, ((/) Slierrard v. Sherrard, 3 Atk. 395. 502 ; ll'ihon v. Ilarman, 2 Yes. la) HowellY. Ha nf or I Ii, 2 W.Bl. sen. 672; JlaMagh v. Master, 3 1016. Bro. C. C. 101 ; I'early v. Smith, 3 {b) rcarhi v. Smith, 3 Atk. 260; Atk. 260. ^cq post, p. 419. Edwards v Warwick, 2 P. Wms. 176. L. E F. 418 T'SES AM) PROFITS IN LAND OF ANOTHER. touch tlio ease of a cliangc of o"\Aaiorsliip of tlie rent diu-ing the currency of a lease and pending the accrual of rent ; as in tlie case of the death of a tenant in fee simple, when the whole rent accruing due to his estate jiassed to his heir or devisee without any apportionment up to the time of his doatli ; or upon the death of a tenant for life of settled land, when the whole accruing rents went to the remainder- man (f). — In order to amend the law in this respect it was furtlier enacted by 4 & 5 Will. lY. c. 22, s. 2, " That all rents ser\dce reserved on any lease by a tenant in fee or for any life interest, or by any lease granted under any power, and all rents charge and other rents, annuities, and all other payments of every description made payable or coming due at fixed periods under any instrument that shall be executed after the passing of this Act, shall be apportioned so that on the death of any person interested in any such rents or other payments, or on the determina- tion by any other means of the interest of such person, he or his executors, administrators, or assigns shall be entitled to a proportion of such rents and other payments according to the time which shall have elapsed from the last period of payment, and shall have the same remedies as for recovering such entire rents and payments ; but so that persons liable to pay rents reserved by any lease shall not be resorted to for such apportioned parts, but the entire rents shall be received and recovered by the persons who if this Act had not passed would have been entitled to such entii-e rents, and such portions shall be recoverable from such persons by the parties entitled to the same in any action or suit, in law or in equity." Apportion- " The Apportionment Act, 1870," 33 & 34 Yict. c. 35, ^^■^Q ^ ' has now provided for the appoi-tionment of rents and other periodical payments in more general and comprehensive terms, superseding for the most part the former Acts. {c) Norris v. Harrison, 2 Madd. 268. CIIAl'. Ill, RENTS, 419 After reciting that " rents and some otlior periodical pa^^- ments are not at common law apportionable (like interest on money lent) in respect o£ 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, "From and after the passing of this Rents to Act all rents, annuities, dividends, and other periodical ^^wq ^^ 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 apj)ortionable in respect of time accordingly." Sect. 3, " The apportioned part of any such rent, Time of pay- annuity, dividend, or other payment shall be payable or ™ "^ ' recoverable, in the case of a continuing rent, annuity or other such payment, when tlie entire portion of which such apportioned part sliall form part shall become due and j)ayable, and not before ; and in the ease of a rent, annuity, or other sueli 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 theu* respective heu-s, cxecu- Eemediea. tors, administrators and assigns, and also the executors, administrators and assigns respectively of persons whose interests determine witli 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 respectively 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 entu-e or continuing rent as aforesaid specifically, but the entire or continuing rent, including such a|i}iortioned part, shall be recovered and received by the heir or other person who, if " E e2 420 USES AND PROFITS IN LAND OF ANOTHER. Interpretation of terms. Exceptions. Apportion- ment between tlie rent liad not been apportionablo under tliis Act or otherwise, would have been entitled to such entire or con- tinuing rent, and such apportioned part shall be recoverable from such heir or other person by the executors or other parties entitled under this Act to the same by action at law or suit in equity." Sect. 5. "In the construction of this Act, the word "rents" includes rent service, rent charge, and rent seek, and also tithes and all periodical payments or renderings in lieu of or in the nature of rent or tithe. The word "annuities" includes salaries and pensions. The word " dividends" includes all payments made by the name of dividend, bonus or otherwise out of the- revenue of trading or other public companies, divisible between all or any of the members of such companies, whether such payments shall be usually made or declared at any fixed times or otherwise; and all such divisible revenue shall, for the purposes of this Act, be deemed to have accrued by equal daily increment during and within the period for or in respect of which the payment of the same revenue shall be declared or expressed to be made" (./'). Sect. 6, excepts from the Act " any annual sums made payable in policies of assurance." — Sect. 7, excejots " any case in which it is or shall be expressly stipulated that no apportionment shall take place" (g). The intention of this Act is said to be to assimihate rent to a debt for money lent of which the interest accrues 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 vesting it in the owner for the time being, although, by sect. 4, it is not in arrear for the purpose of claiming it from the tenant of the land before the time fixed for payment by his lease. Accordingly rents are now apportioned between (/) Bee Jones v. Offk, L. K,. 8 Ch. I'J'Z ; 41 L. J. C. 633; Cox^s Trmis, L. R. 9 C. D. 159 ; 47 L. J. C. 735; Jie GnJfUh, L. R. 12 C. D. 655. {fj) Tyrrell Y. Clark, 2 Drew. 86; 23 L. J. C. 283. ciiAi'. III. ju;nts. 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 '^°°^^ estate, devise) takes the accruing rent only from the day of the death, the personal rejiresentative taking the apportioned part up to that date ; unless a contrary intention he ex- pressed by will (//). So upon a specific legacy of stock in a public comjiany the dividends were held to be appor- tioned between the estate of the testator and the specific legatee (/). 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 miJ^derma'n. 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 presmnptively 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 (/.•) . — The Act also applies upon the assignment of a lease, so Between that the assignor remains liable to the lessor for an aiinor- ''^^^^^o^ ^^^ p 1 . assignee of tioned part of the accruing rent up to the day of assign- lease. 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 amoimt due at the commencement of the liquidation, and can distrain in full (/() Capron v. Capron, L. E. 17 Eq. 329 ; 44 L. J. C. 168. Eq. 288 ; 43 L. J. C. 677 ; Jlasluc/c {J) Coustablc v. Constable, supra; V. Pcdleii, L. R. 19 Eq. 271 ; 44 Lawrence v. Laurence, L. R. 26 C. L. J. C." 143 ; Constable v. Constahh; D. 79.5 ; 53 L. J. C. 982. L. R. 11 C. D. 681 ; 48 L. J. C. {k) Brigstockcx. Brigstocke, L. R. 621 ; Brounriqg v. Tike, L. R. 7 8 C. D. 357; 47 L. J. C. 817. P. D. 61 ; 51 L. J. P. 29. (/) Suansea Hank \. Thomas, L. R. (J) Follock V. Pollock, L. R. IS 4 Ex. 94 ; 48 L. J. Ex. 344. 422 USES AND PROFITS IX LAND OF ANOTHER. only for subsequcut rent {m). But where a testator directed Lis executor to release his tenant from all rent due and owing to liim at the time of his decease, the bequest was construed to apply only to the rent accrued due at the preceding quarter-day, and not also to an apportioned part of the rent accruing due at his death («) . Section III. Remedies for Rent, — (1) Distress. § 1. Distress. — § 2. Things distrainable. — § 3. "Wrongful distress. § 1. Distress. Remedies for rcut iu aiToar — distress. Conditions of right of distress — rent certain in amount — rent payable at certain time — distress for services. Kent in an-ear — limitation of arrears — under express trusts — of rent in bankruptcy — of rent of agricultural holdings. Distress during tenancy — possession after detei-mination of lease — by custom of the country — holding over after demand of possession — after giving notice to quit. Distress upon demised tenement — upon servient tenement — upon common. Distress off the demised tenement — distress of goods fraudulently re- moved. Distress by bailifP — bailiffs 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 — public and private pounds— feeding impounded cattle— liability of distrainer for state of pound. Statutory power of selling distress — sale upon the premises — construc- 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) Me South Kenswgton Co- C. 7G8. operative Stores, Ij.'R.n CD. l&\; («) He Lucas, -55 L. J. 0. 101, 50 L. J. C. 447 ; lie Oak Fils Col- Fry, J., dissentienie. Ucnj, L. R. 21 C. D. 322 ; 51 L. J. CHAr. III. RENTS. 423 "be a covenant to pay ; and ejectment, if there be a condi- tion of re-entry for uon-j^ayment. Distress is the remedy by act of tlio party liimself, Distress, witliout the intervention of k^gal process ; he may enter ujion the land out of wliieh tlie rent issues and seize any moveable goods found thereon, and detain tlieni as a pledge for payment of rent in arrear(<'^). — 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 common 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 (/.') . The principal conditions of exercising the right of dis- Conditions tress are that there is a rent certain in - amount, and pay- distress, 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 ^ '^"loimt. was made of tithes together vdih 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 pai-t was reserved for the bai-n apart from the tithes (r/). 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 coidd be made upon the tithe {e). — A rent is not con- (a) Ante, p. 373. (<•) Co. Lit. dOa, U'la. [b) Co. Lit. 205 (7 ; Gilts \. Spcu- {(f) Gardiner v. Williamson, 2 B. ccr, 3 C. B. N. S. 244 ; Re Swale & Ail. 336. Brick Co., 52 L. J. C. 638. (t) lb. ; JDoubitofte v. Curteene, 424 USES AND PROFITS IN LAND OF ANOTHER. sidered to he imcertaiii for the pm-pose of a distress wliich can be made certain by computation or by measurement, or whieli is subject to occasional reductions or additions, or which may dejiend 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 corn or other i)roduee grown upon tlie land ; or an additional rent to be paid if the land be plouglied 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 (g). 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 societ}^, under 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 (/). Rent payable The rent must also be certain as to the time of pay- time^ ^™ ment. It may be reserved yearly, or every two or more years ; or half-yearly, quarterly, monthly, or daily, or at any certain periods of time(,/), A reservation upon a lease at will, " paying after the rate of eighteen pounds a year," was held void, for the uncertainty of the time of Cro. Jac. 452 ; 2 Wms. Saund. C. P. 594 ; 37 L. J. C. P. 2-51. 304; Dean of Winchor v. Govcr ; [h) Walsh -v. Lonsdale, L. R. 21 fialmon v. 2Iat(heivs, 8 M. & W. C. D. 9. 827; ante, p. 382. (?) Ex parte Voiscy, Re Kniglit, if) Daniel V. Grade, G Q. B. L. R. 21 C. D. 442; 52 L. J. C. 145. 121. (ff) iSdhy V. Greaves, L. R. 3 (,/) Co. Lit. 47 «. CHAT. 111. liENTS. 425 jmyment (/.■). A reservution of rent "at ALieliaeluias or •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 distrainahle until tlie end of the month (/). Rent may ho reserved, payable in advance, and is then distrainahle on the first day of the term {m). Rent may he reserved payable on certain days, and dis- trainahle if demanded ; a demand at any time after it is due being a condition of the distress [ii) . 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 tlio terin{p). A distress may be taken for services, if they are suffi- Distress for eiently certain or can be reduced to a certainty. " As a s^'^c^s* 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 " ((^) . A tenm-e of land by the service of cleaning the parish church, or of ringing the chui^ch bell at stated times, was held to constitute a service for which a distress might be made (;•). " There appears to be a diliiculty 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 ke^it as a pledge ; it may be taken that if the service was performed on the next occasion, the distress would be at an end " (s). A distress can only be made for rent in arrear ; and, tliere- jj^^^ ^^ fore, not until after the day upon whicli it becomes due, the aiTctir. (k) Farker v. JIanis, 4 Mod. 79, C. D. 9, cited above. Dolbeu, J., dissentimte. (w) Co. Lit. 202 a. {/) I'ilk'nigtvn v. Dalton, Cro. (w) WiUiams v. Holmes, 8 Ex. Eliz. 575 ; Blunden's Case, Cro. Eliz. 861 ; 22 L. J. Ex. 283. 565; Vliai''s Case, 10 Co. 127/'. (p) Hopkins v. lie/mure, supra. {)») Jiiiekle;/ v. Tai/lor, 2 T. R. (Vy) Co. Lit. 96 •). (f) See ITitffJies v. Coles, L. R. 27 (.») Jle Jiew, Fx parte Bk II, L. R. C. D. '231 ; 53 L. J. C. 1047. 18 Q. B. D. 642 ; oG L. J. Q. B. {w) Sec post, p. 458. 270. 428 rSES AND PROFITS IN LAND OF ANOTHER. Distress du- ring tenancy. Possession after deter- mination of lease. At common law distress could onl}- be made dming tlie continuance of the tenanoy upon which the rent was re- served; and a distress made after the tenanc}^ liad ceased was wrongful, whether the tenancy exjjii'ed by lapse of time or was determined by forfeiture or by eviction (x) . Hence if a lessor, ha\ang an o^Dtion of forfeitm-e, distrains for rent, he thereby presmnptively recognizes and affirms the continuation of the tenancy, without which the distress would be WTongful, and cannot afterwards claim the for- f eitm-e ; but if he has first claimed the forfeiture by bringing ejectment or otherwise, he cannot afterwards distrain for rent {//). 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 {z). In the case of a tenant keeping possession after the determination of his lease, it is enacted by 8 Ann. c. 14, s. 6, that " it shall 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 resj)ective leases, in the same manner 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 cliuing the jiosses- 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 acbninistrators of a lessor for the arrearages of rent due to such lessor in his lifetime. — The Statute of Anne applies to continued pos- (x) Bridges v. Smyth, 5 Bing-. 410 ; Hopcraft v. Keys, 9 Bing. 613 ; Burne v. Hichardmn, 4 Taunt. 720 ; Grimwood v. Moss, L. R. 7 C. P. 360 ; 41 L. J. C. P. 239. (?/) Co. Lit. 211 i; 3 Co. 64 b. Pennant's Case ; Doe v. Darby, 8 Taunt. 538 ; Gritmvood v. Moss, supra. iz) Co. Lit. 47 b. CHAP. III. RENTS. 429 sessiuii of the Ifiuuil, Avlietlier ptTmissivo or wrougi'ul, and whether of the wliole or of a part only of the demised premises {a). It applies to tlie possession of the executors or administrators of the tenant after his death {Ij) . It seems that it does not ai')ply to possession after determination of the tenancy by a forfeiture (c). Distress under this statute justifies taking- goods fraudulently removed, under the power given Ly the statute II Geo. II. (r/). Where by the custom of the country an outgoing tenant By custom of has the possession for a certain time after the expiration of *^"^ ^^' his lease for the purpose of working tlie away-going crops, tlu! landlord retains the right to distrain during the con- tinued possession of the tenant, indejjendently of the Statute of Anne and of the six months limit of that statute (('). But the landlord cannot distrain crojis of the outgoing tenant for rent due from the incoming tenant, for he can oidy 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 until the end of the then cun-ent year of his tenancy, instead of his claims to emblements, under the statute 14 & 15 Vict, c. 25, s. 1, the succeeding landlord becomes entitled to his fair proportion of the rent, and may recover it by dis- tress {(j). 13y the statute 4 Geo. II. c. 28, s. 1, " In case any tenant Holdino: over for any term of life, lives or years, shall wilfully hold over '""J^f '!^'^f'f ^ ' J ' J or possessioii. any lands, tenements or hereditaments after the determina- tion of such term, and after demand nuide and notice in writing given for delivering the possession tliereof by his landlord or lessor, such person so holding over shall, for [a) Kutlal V. Staunton, 4 B. & C. {(I) Post, p. 433 ; see Gray y. 61. Stait, 52 L. J. Q. B. 412. {/>) Taykrson v. Peters, 7 A. & E. (<) lUuvan v. Ih lahay, 1 II. Bl. 8 ; 110; JUaithwaite v. Cooksey, 1 H. see lioraston v. Gncn, IG Ka^t, 81. Bl. 4Go. (/) ^CQ Eaton v. iSouthby, Willos, ((■) "Willes, J., (7/-(»)Koorf V. J/ow, 136. L. R. 7 C. P. 365 ; 41 L. J. C. P. C) Haines v. Weh-h, L. R. 4 C. 239, P. 91 ; 38 L. J. C. P. 118; ante, p. 47. 430 USES AXl) PROFITS IN LAND OF ANOTHER. Holding- over after givang notice to qiiit. and dui'liig tlie time he shall so liold over, pay to the person so kei)t out of possession at the rate of double the yearly 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 recovering 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) . WiKul holding over is construed as excluding holding over by mistake or under a bond Jide claim (//). There is no jiower of distress under this Act, because there is no certainty of the double value [i) . By the statute 11 Geo. II. c. 19, s. 18, "In case any tenant shall give notice of his intention to quit the premises by him holden at a time mentioned in 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 sum 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 [k) . Distress must be made upon the demised tenement. A distress by common law can be made only upon the land or tenement out of which the rent issues. By the Statute of Marlebridge, 52 Hen. III. c. 15, it was de- clared, in confinnation of the common law, that " it shall {(/) Lloyd V. Roshee, 1 Camp. 453 ; WUkimon v. Hall, 3 Bing. N. C. 608. ill) Swinfen v. Bacon, 6 H. & N. 84G ; 30 L. J. Ex. 3G8. (i) Wilmot, J., Timmins v. Row- lison, 1 W. Bl. 535. (A-) Timmins v. Rowlison, 1 W. Bl. 533 ; Johnstone v. Hudlestone, 4 B. & C. 922. CFIVP. Ill, RENTS. 431 be lawful for no man from liencefortli, for an}' manner of cause, to take distresses out of liis fee, nor in tlio king-'s liigliway, nor in the connnon street, but only to the king or his oflieers." It is a prerogative right of tlie Crown to distrain upon any hinds or tenements of the debtor, of whomsoever they may be holden ; provided they are in his personal possession (/). — The highway is privileged from distress, though .within the fee or tenements de- mised (ill). A distress for toll can be made only upon the highway and is an implied exception fi'om the statute (»). 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 tlifferent 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 Servient upon land which is merely servient to the demised tenement in respect of aj)purtenant rights of easement or profit ; as where a wharf was let with the easement of mooring barges over the adjacent river fi-ontage, it was held that the barges could not be distrained in the river, though they were fastened to the wharf (>•). So, where mines are leased apart from the siu-face of the land, and the plant and machinery used for the pm-pose of working (l) Co. Lit. IGlff; 2 Co. Inst. (p) See Saferi/ v. Efffoocl, lA. & 131 ; see Dii/.c of Leafs v. roiccli, 1 E. 194 ; and see 4 Geo. II. c. 28, Ves. sen. 172; Alt. -Gen. v. Co- 8.6, ventn/, 1 P. Wms. 306. {q) Jioffrrsx. JUr/tmirc, 2 StTtiuge, {m) Co. Lit. 160 «. 1040; Iht/fonl v. Sutton Coldjkld, (w) Smith V, Shc2>hird, Cro. Eliz, 3 C. B. N. S. 449 ; 27 L. J. C. P. 710. 105 ; FhiUips v. Whiiscd, 2 E. & E. (o) O'Xtil V. Citii Finance Co., 804 ; 29 L. J. Q. B. 164. L. R. 17 Q. B. D, 234, (r) Buszard v. Cupel, 8 B. & C. 141 ; 6 Bing. 150. 432 USES AND PROFITS IN LAND OF ANOTHER. tlio mines arc placed upon the surface, tliey cannot he Distress upon distrained for the rent of the mines (s) . — But by the statute 11 Geo. II. c. 19, s. 8, 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 u]ion any common appendant, or appurtenant, or any ysays belonging to all or any part of the premises demised or holden." Distress oflp the demised tenement. Goods fraudulently removed. At common law goods could not be 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 distrain the cattle off the land, and even upon the high- way (1). But cattle cannot be distrained damage feasant, if driven off the premises before 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 Hves, 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 clandestinel}^ 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 tliirty days next ensuing such con- veying away or carrying off sticli 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 (.9) Sec lie Oak Pits Collien/ Co., L. R. 21 C. D. G28 ; ol L. J. C. 770. (l) Co. Lit. IGlff; 2 Co. 132. Inst. CHAP. III. RENTS. 433 premises for such aiToars of rent." — Sect. 2, excepts "such goods and cliattels which shall be sold hoiid fide ani, 7 Bing. 243. (//) Grai/ v. Stait, supra ; and see (w) John V. Jenkins, 1 C. & M. ante, p. 428. 227. (•:) Ash more r. Ilardij, 7 C. & P. \.r) XorthfteUl v. Nightingale, 1 501. C. & M. 230 «. ; Handy. I'aitghan, {a) Thornton v. Adams, 5 M. & 1 Bhig. N. C. 707 ; Gray v. 'stait, S. 38. L. R. 11 Q. B. D. 668 ; 52 L. J. (6) Baeh v. Meats, 5 M. & S. 200, L. F F 434 rsES AND nioFiTS in land of ANOTHEK. As to tlie manner of making a distress for rent, it may be made by tlie party liimself, or by bis bailiff ■ under a sufficient warrant or autbority to distrain ; it must be taken in tbe daytime ; and it must be taken witbout breaking into tbe demised premises. Distress by J^ distress may be made in person, or by a bailiff or agent duly autborized in tbat bebalf. Tbe autbority is not required by law to be in writing ; but it is usual to sign a formal autbority in ^ATiting, commonly called a " war- rant of distress." A distress made by a baibff witbout autbority previously given, may be sujiported by sub- sequent ratification of tbe person on wbose bebalf it was made (;:). Tbe employer is responsible for acts of bis bailiff wbicli are witbin tbe scope of tbe employment ; but be does not impliedly indemnify tbe bailiff beyond BailifPs to be warranting" to bim tbe rio^bt to distrain (a). — By tbe Law certificated ^ \ / ^ of Distress Amendment Act, 1888, 51 & 52 Yict. c. 21, s. 7, "From and after tbe commencement of tbis Act (31 Oct. 1888) no person sball act as bailiff to levy any distress for rent, unless be sball be autborized to act as a baibff by a certificate in writing under tbe band of a county com-t judge ; and sucb certificate may be general or apply to a particular distress or distresses, and may be granted at any time after tbe passing of tbis Act, in sucb manner as may be prescribed by rules under tbis Act." And " if any person not bolding a certificate under tbis section sball levy a distress contrary to tbe jDrovisions of tbis Act, tbe person so levying, and any person wbo has autborized bim so to levy, sball be deemed to have com- mitted a trespass " (b) . (z) 1 Saund. 347, n. (4), Potter -which enacted to nearly the same V. North ; Maclean v. Dunn, 4 Bing. effect as to agi'icultural holdings. 722. As to the latter Act see Re Sanckm, («) Bullen on Distress, 130. JEx jjarte Sergeant, 54 L. J. Q. B. (i) The above Act, s. 9, repeals 331 ; Coode v. Jones, L. R. 17 the Agricultural Holdings Act, Q. B. D. 714 ; 55 L. J. Q. B. 475. 1853, 46 & 47 Vict. c. 52, s. 52, CHAr. III. IIF.XTS. 435 A distress must be iiiado in the daytime, that is, between Distress 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 tlio tenant of the land may recover damages and the value of goods taken (c). Where a landlord after sunset took measm^es 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 wrongfid conversion and deprivation of the goods, because they remained in his possession and control until the distress was legally made {d). It is not lawfid at common law to break into a house, BreakiDg into either through the outer door or otherwise, for the pui-pose of entering to distrain {(■) . It is la^^^ul to open an outer door for that pm*pose 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 pm-- pose of entering {g) ; but it is not lawful for that purpose to open a closed window, though not fastened (/i). The same rule applies to buildings of all kinds, as stables, barns and outhouses ; also to enclosui-cs of laud. It is not lawful to break open outer doors, windows, gates or fences to take a distress {i). Where a landlord and tenant occu- pied adjacent tenements, being tenants in common of the partition between them, it was held no trespass for the (c) Tittton V. Darke, 5 H. & N, (c) Semayucs case, 5 Co. 92 a; 'l 647 ; 29 L. J. Ex. 271 ; Blackburn, Smith's L. C. J., Jttack V. Bramu-cU, 3 B. k S. {/) Ryan v. Shilcock, 7 Ex. 72; 530; 32 L. J. Q. B. 150. "But 21 L. J. Ex. 55. for damaye feasant one may distrain {g) Crahtree v. Eobimo>i, L. R. lo in tlie night, otherwise i"t may be Q. B. D. 312 ; 54 L. J. Q. B. 544. the beasts will be gone before he (/() Xa.-'h v. Ikms, L. R. 2 Q. B. can take them." Co. Lit. 142 a. 590 ; 8 B. & S. 531. id) Etigland \. Cuwk>i, L. R. 8 {») Co. Lit. 161 «; Brown v. Ex. 126 ; 42 L. J. Ex. 80 ; Martin, Gk,i, 16 Q. B. 254 ; 20 L. J. Q. B. B., dissenliente. 205. F F 2 436 USES AND PROFITS IX LAND OF ANOTHER. Breaking inner doors. Taking possession of goods dis- trained. landlord to remove the partition, and that tlms entering ■without trespass he might lawfully distrain (/) . — In all cases of unlawful entry tlie distrainor is a trespasser ah 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 (./) . By the statute 11 Geo. II. 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 (/.•). 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 clistrainable (in) . 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 bailiff 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 sj^ecific 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 {ji)- Where a bailiff entered upon the premises and gave a wiitten notice that he had distrained the goods specified in the notice, it was held to be a sufficient taking (i) Gould V. Brachtock, 4 Taunt. 562. [j) Attack v. Bramwcll, 3 B. & S. 520 ; 32 L. J. Q. B. 146 {k) Ante, p. 432. {J,) See Lumley t. Simmons, 55 L. J. C. 759. {m) Brown v. Laun, Bull. N. P. 81. (w) Ecujleton v. Gutteridge, 11 M. & W. 465 ; Bannister v. Hijde, 29 L. J. Q. B. 141. (o) Holt. C. J., in Bod v. Monger, 6 Mod. 215. {p) Wood V. Nttnn, 5 Bing. 10 ; Cramer v. 3Tott, L. E. 5 Q. B. 357 ; 39 L. J. Q. B. 172. ClIAl'. 111. RENTS, 4;j7 possession upon wliicli to charge tlio landlord M'ith an ex- cessive distress ((?) . '^Vllere a landlord sent a bailiif 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 (/•). At common law the landlord ha\-ing taken a distress for Removal and rent was required to remove the goods off the demised ^5^"."^"° 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 hy distraining his cattle and impounding them in several and distant places ; for remedy of wliich hardship the Statute of Marlebridge, 52 Hen. III. c. 4, pro\ided, that " none from henceforth shall cause any dis- tress that he hath taken to be driven out of the coimty where it was taken." The statute 1 & 2 P. & M. c. 12, s. 1, further provided, "that no distress of cattle shall be driven out of the hunch-ed where such distress is taken, except it be to a jiound overt "within the same shire not above three miles 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 (f). Now by the statute 11 Geo. II. c. 19, s. 10, it is made iinpoimdhg {q) Swann v. Falmouth, 8 B. & C. (s) Grijfin v. Scolt, 2 LJ. Eaym. 466. U26. (V) Hutchuis V. Scoit, 2 ]\r. & W. (0 Gimhart v. rehth, Stra. 1272 ; 809. Il'uodcroff v. Thompson, 3 Lev. 48. 438 USES AND TROriTS IN LAND OF ANOTHER. on tlie pre- lawf ul " for any person laAvfuUy taking any distress for any "^^*' kind of rent to impound or otkerwise secure the distress so made, of what natiu'e or kind soever it maj^ 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 enactment it has become the general practice to impound goods distrained by seeming them upon the premises ; or, with the assent of the tenant, by lea\dng them as they stand upon the premises without any removal (v) . The distrainor may lock up the goods in part of the premises, if necessary for their seciu-ity ; 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 {ir). No separate charge for impounding can be made, where the distress is impounded on the pre- mises (.r). Public and _^i commou law pounds were distinguished as public and pound. private. It was customary in manors to provide a pubHc pound for common use, and to a]3point a pound keeper. The duty of the pound keeper was to receive into the pound all 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 {ij) . This public or manor j)ound was called a pound oivrt, 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 (v) TFashborn v. JBlack, 1 1 East, (z) Child v. Chambci-lain , 5 B. & 405 ; Thomas v. Harries, 1 M. &G. Ad. 1049. 695. (y) Badlin v. PoiccU, 2 Cowp. {xv) Etherion\. Popplewell, 1 East, 476; Hawkins, J., Green y.Duckett, 139; Woods v. Lurrant, 16 M. & L. R. 11 Q. B. D. 280 ; 52 L. J. W. 149 ; Smith v. Ashforth, 20 Q. B. 435. L. J. Ex. 259. CHAP. TIT. RENTS. 439 tlic distress luul no access; in wliicli, tliereforo, the distrainor kept cattle impounded at his own risk and cost (2). In order to secure the feeding of cattle impounded it is Feeding now provided by the statute 5 & 6 Will. IV. c. 59, that cattk!"'^''^ " every person who shall impound any cattle or animal in any common j^ound, ojien pound, or close pound, or in any inclosed place is required to find, provide, and supply such cattle. and animal dnily witli good and sufficient 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 Liability of the pound used by liim, whether pubKc or private, is a fit gtatrof^'^ and proper place for keeping the distress ; and he is liable poimd. for loss of or damage to the distress caused by insufficiency 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 woid.d 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 common law a distress was kept impounded as a Sale of pledge until restored by replevin, or redeemed by pa^mient ; " '^^^* 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 (r) Co. Lit. 47 J; Plolt, C. J., GG2 ; IJlMrr v. Spm; 8 A. & E. Vaspor V. Edwards, 12 Mod. CG4. 547 ; HhjucU v. Clark, 5 H. & N. {a) Vaspor v. Edwards, 12 Mod. 485 ; 29 L. J. Ex. 257. 440 I SKS AM) rUOFITS IN LAND OF ANOTHER. rent is by distress, yet sucli distresses not being to be sold, but only detained as pledges for enforcing the payment of sucb rent, tlie persons distraining have little benefit there- by," for remedy tliereof it proceeds to enact " that where any goods shall bo 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 jjremises 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 aj)praised 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." Tlie 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 " (/*). ?^^^ ^?°° *^° "^^^^ statute 11 Geo. II. c. 19, s. 10, aj^plies 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 abeady noticed, gives the power " to appraise, sell and dis- pose of the same upon the premises, in like manner and imder tlio like directions and restraints, as any person taking a distress for rent may now do off the premises," by virtue of the above statutes (r). Construction It is a statutory condition of a sale of the distress, that as to notice notice of the distress, with the cause, be given to the tenant of distress. {j^ the manner provided in the Act ; and it is usual to deliver witli it an inventory of the goods taken. Tlie (*) Ante, p. 374. (c) A»tc, p. 437. Xjremises. ( IIAl'. HI. RENTS, 441 notice is not conclusive as to the things taken, in sui>port of an action for a wrongful distress ; and if some of them be not distrainablo, tlie actual taking may be limited to such as are (•) rut V. Shew, 4 B. & Aid. 208 ; 5 Taunt. 451 . 444 USES AND PKOl'lTS IN LAND OF ANOTHER. § 2. Things Distrainable. Things distraiualjle — fixtures. Animuls. Perishable goods— com and hay — growing crops. Things in personal use. Implements of trade — beasts of plough — condition of privilege. Goods of stranger distrainable — exceptions in favour of trade^goods delivered for working — tools and implements of trade — agricultural implements. Goods delivered to agent for selling — for safe keeping — for carrying — conveyances 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 — lialnlity of sheriff after notice of rent due. Goods in possession of receiver — goods in banki-uptcy — goods of com- pany under winding up. Things subject to distress. Fixtures. By the conimou law all moveable goods and chattels which are the subjects of property, may be taken as a distress for rent; except when, under 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 tlio term, that is things annexed, actually or constructively, to the land or to build- ings upon tlie land, ])oing considered in law as part of the land itself, are not distrainable (e) ; as the rails and sleepers of a railway {d) . Reasons given for this rule are ; that (ffi) Co. Lit. 47 a. {b) He Su-ttle Brick Co., .02 L. J. C. 638 ; JTorsford v. Wchsier, 1 C. M. & R. C'JG. {c) Ante, p. 120; Co. Lit. 47*; Niblct v. Smith, 4 T. R. 504 ; iJal- ton V. Whittem, 3 Q. B. 9G1. {d) Turner v. Cameron^ L. R. 5 Q. B. 306; SOL. J. Q. B. 125. CHAP. HI. RENTS. 445 fixtures cannot be severed witliout damage to tlie land or building- ; tliat they cannot be restored in ufafu quo ; that no part of the land itself can be taken in distress, but only the induda or ilhifd upon it (^'). Xor can "tenants' fix- tures " be distrained and removed hy the landlord, though ronioveable by tlio tenant during his tenancy (/). — Keys, windows, and tlio like moveable appurtenances of a house are parcel of the freoliold by construction of law, and therefore not distrainable. Also title deeds and other documents and evidences of title follow tlie land to which they relate, and are not distrainable ; so with the deed chests or boxes exclusively appropriated to keeping them {g). Animals /(vw nnturce, not being the subject of property, Animals, cannot be taken as a distress ; but animals reduced into possession, as deer in a park, bii'ds in a cage, dogs and other tame animals may be taken (//). 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 (/). Things of a perishable nature, which cannot be detained rerishable in pledge for the necessary time without loss or damage, * "°o^- 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 AV. & M. c. 5 [j). — It seems that money is exempt from distress unless enclosed in a bag or box, because of the risk of (e) See Simpson v. Uartopp, Wil- in dogs, see Bhistcad v. Buck, 2 "W. les, 512; 1 Smith's L. C. 180; Bl. 1117. Sect. 40 of 2 & 3 Vict. Gilbert on Distress, 31, cited per c. 71, which gives power to metro- ci(r. Htllauell v. Eastwood, 6 Ex. politau police magistrates to order 311 ; Barhij v. Jfanis, 1 Q. B. 895. delivery of " goods" unlawfully (/) Darby v. Harris, 1 Q. B. detained, is held to include dogs as 895 ; UcllaueU v. Eastwood, supra. goods. The Quien v. Sladc, 61 L. J. (y) Aiiti; pp. Ill, 125; per cur. M. 120. Jlel/awellv. Eastwood, 6 Ex. 311. (/) Post, p. 449. (/() Co. Lit. 47 a ; Darics v. (j) Mvrltnj v. rincombe, 2 Ex. roucll, Willes, 46; as to property 101. 446 USES AXD rJlOFITS IN LAND OF ANOTHER. loss, and the difficulty of identifying and restoring it in replevin. Grold and silver may be distrained, and are to be taken at least at theii- intrinsic value (/.•). Com and Lay. Com, straw, hay and the like were not distrainable at common law, because of the risk of damage in removal ; but carts loaded with corn might be distrained, for they might be removed and restored with safety (l). 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 ha\ing rent arrear and due upon any demise, lease, or contract, to seize and secure any sheaves or shocks of corn, or corn loose or in the straw, or ha}" lying or being in any barn 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, until 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"(^«). This statutory j^ower apjilies 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 02:)tional (o). Growing Grrowing crops of corn, grass or other product were not crops. distrainable at common law, because annexed to the soil and not available for any piu-pose imtil 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 corn and grass, hops, roots, fruits, pidse or other product whatever, Avhich shall be gromng (/,;) 2 Bac. Abr. 109 ; Molr v. by 9 & 10 Vict. c. 95, s. 9G. 3[u7ida>j, cited 1 Burr. 590. Money, {!) Co. Lit. 47 «. bank notes and HGCuritics for money [m) See sect. 2, ante, p. 439. were made seizable under a writ of [n] Johnson v. Faulkner, 2 Q. B. Jleri facian, by the statute, 1 & 2 925 ; ante, p. 440. Vict. c. 110, 8. 12, and under an (o) Per cur. Piggott v. Birtles, 1 execution out of the County Court 3VI. & W. 448 ; ante, p. 443. ClIAV. III. RUNTS. 447 on any jjart of the estates demised or holden, as a distress for arrears of rent; and tlio same to cut, gather, make, cure, carry, and lay uj), when ripe, in tlie barns or other proper jJace on tlio premises ; and in convenient time to appraise, sell, or otherwise dispose of the same towards satisfaction of tlie 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, cui-ed, 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, unless the power be exjiressly given him by the terms of his grant. Where a rent charge was granted, with power to distrain for arrears and to disjiose 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 ajiplied 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 ujion the property ; but it does not affect the legality of the distress, and the tenant has no cause of action except for tlie damage, if any, caused by the irregularity' of the sale (q). A sheriff seizing growing crop)s in execution must sell them standing, he cannot recover expense in- eiu-red 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 shi'ubs in a nursery garden, which remain exempt fi-oin distress (s) . The croj^s 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 croi)s {p) MUln- r. Green, 2 C. & J. M. 326; Roqersx. Parker, 18 C. B. 142 ; 8 Biufj. 92 ; sco Johnson v. 112; 25 L. J. C. P. 220. Faulkner, 2 Q. B. 925. [r) Be Woodham, L. K. 20 Q. B. {q) Owen V. Legh, 3 B. & Aid. D. 40 ; 57 L. J. Q. B. 46. 470 ; Troiidlove v. Ttceinhtr, 1 C. & (s) Clark y. Gaskar(h,STauniA2l. 448 USES AND PROFITS IN LAND OF ANOTHER. Goods in personal use. is paramoiuit to that of the landlord (/). — The growing crops thus made distrainahle by the statute become subject to re2:)le^'in as goods and chattels («). 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 {/r). So, wearing aj)parel in actual use on the person is not clistrainable {x). By the Law of Distress Amendment Act, 1888, 51 & 52 Yict. 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 dcnncKje fcdsant whilst being led or (hiven by a j)erson (y) ; but a dog accompanying a person, and not otherwise in personal possession and use, may be distrained damage feasant [z). Implements of trade. 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 utensils or instruments of his trade or profession, as the axe of a carpenter, or the books of a scholar, while other goods may be dis- trained" {a). If such things are also in actual use at the (C) Eaton \. SoiUhbij,'W\\\^^ii, 131. (m) Glover v. Coles, 1 Bing. 6. [v) Per cur. Figgolt v. Birtles, 1 M. & W. 448 ; ante, p. 44G. {w) Co. Lit. 47 a ; Simpson v. Hartopp, Willes, 512 ; 1 Smith's L. C. {x) Bisset V. Caldwell, Peake, 36 ; Baynes v. Smith, 1 Esp. 20G ; see Sunholfv. Alford, 3 M. & W. 248. (y) Storey v. Robinson. 6 T. R. 138 ; Field \. Adames, 12 A. & E. 649. {z) Bunch V. Kenninyton, 1 Q. B. 679. (rt) Co. Lit. 47 ^f ; Simpson v. Hartopp, Willes, 512; 1 Smith's L. C. ; Gorton v. Falkntr, 4 T. R. (II \1'. 111. KKNTS. 449 time, thoy l)0(,'omo aljsolutcly privileged, as above stated (J). — Also hy the statute 28 Ed. I. e. 12, wliidi is dcclani- Beasts of tho toiy of the common law, " no man .>^liall Le distrained hy ^' °"° his Leasts that work his land, nor hy his slieep, so long as there can be found other chattels sufficient for the demand" (r). Such things 'dve priniu/acie distrainable, and it lies upon Condition of tlie tenant to prove the condition of privilege by evidence ^° ' that sufficient other chattels could be found (c/). Growing crops, distrainable by statute, are not available as other chattels for this pui'pose ; 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 {(/). Such things, when rightfully' taken, have no fm'ther privilege of being postponed in the sale (//). As a genend rule, tho ownersliip of distrainable goods Goods of found upon the demised premises is immaterial ; they are aistramable. 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 good^ 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 appKes 565 ; ITanri/ v. Pocock, 11 M. &W. {d) Anon., Dj'er, 312. 740. (<■) Piggott V. Births, 1 JI. & W. (h) Ante, p. 418. 141. See ante, p. 447. (V) Co. Lit. 47 a ; 2 Co. Inst. (/) Jenncr v. Tolland, 2 Cliitty, , 132 ; Jenncr v. YoUaud, 6 Price, 5 ; 1(37 ; 6 Price, 5. Keen v. Priest, 4 H. & N. 236 ; 28 [g) Nargatt v. Nias, 1 E. & E. L. J. Ex. 157. The privilege does 439 ; 28 L. J. Q. B. 143. not apply to a distress fur rates, (A) Jenncr v. Yolland, supra. which is in the nature of an exe- (i) Cnniier v. Jfolt, L. R. 5 Q. B. cutiou for a statutory debt, and 360; 39 L. J. Q. B. 172; per Black- not a mere pledjre to be detained bnni, J., Li/ons v. Elliott, L. R. 1 till paj-nient. Huteliins v. Cham- Q. B. D. 213. bers, 1 Burr. 588. T.. O O 450 USES AM) IMIOFITS IN LAMD OF ANOTIIRR. only to goods of tlie teuant or lessee (J). — The above rule applies iu distraining for all rents properly so called, •whether rent service or rent charge (/.•) ; and in distraining for anniiities charged upon the land (/) ; hut it cannot be applied to a j)Ower given by covenant or agreement to seize goods as a distress or security for any debt or pay- ment, not being a rent issuing out of land (w). The distress under an attornment clause in a mortgage deed is a distress for rent, attended Avith 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 possession is not liable to account to his mortgagor for loss of rent caused by his neglecting to distrain goods wliich do not belong to the tenant of the jiremises (p). Groods of the tenant sei2;ed by the grantee of a bill of sale are clistrain- able so long as they remain upon the premises ; and the grantee is required by the Bills of Sale Act, 1882, ss. 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 Exceptions to the above rule are made by law under a trade "^ ^ 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 V. Adams, 5 M. & («) Kearsley y. Philips, L. R. 11 ♦ S. 38 ; ante, p. 434. Q. B. D. 621 ; 52 L. J. Q. E. 581 ; (Jc) Sajfery v. Elgood, 1 A. & E. see ante, p. 378. 191 ; Johnson v. Faulkner, 2 Q. B. (o) Fowhes v. Joyce, 2 Vem. 129 ; 925. ITorsford v. Webster, 1 C. M. & R. [T) See Muspratt v. Gregory, 1 11. G96 ; sec Giles v. Spencer, 3 C. B. & W. 633. N. S. 2.53. {in) Freeman v. Edwards, 2 Ex. (;;) Cods v. Gray, 1 GifE. 77; 732 ; see Tie Sanlcey Brook Coal Co., 26 L. J. C. 607. L. R. 12 Eq. 472 ; 41 L. J. C. 119. {q) Lane v. Tyler, 56 L. J. Q. B. 461. CILVr. 111. UENTS. 451 ^vrollgllt or manufacturod in the way of liis trade "(/•). The privilege is rcstrict(,Hl to tlio promises of the trader or workman. If lie is employed in his business upon the premises of the OAViier 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 (s). But goods delivered for carriage are exceptional in being lirivileged during the carnage 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 ^.oi.^n"-°'^ delivered to a tailor to be worked up or repaired ; corn delivered to a miller to be ground {u) ; materials delivered to a weaver to be woven (r) ; beasts sent to a butcher to be slaughtered (ir) ; a ship delivered to a shipbuilder for repair in his dockyard (.r). — There is no privilege for goods Goods made made by a worlanan 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 do- J"ade™*^'^ 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 pri\ilege, {>■) "Willcs, C. J., Simpson v. L. C. llartopp, Willes, 515 ; 1 Smith (f) Eedc v. BurJeij, Cro. Eliz, L. C. 8th cd. 450 ; Clarke v. Mill- 549 ; IFood v. Clarke, 1 C. & J. nail Bock Co., L. R. 17 Q. B. D. 484 ; Gibson v. Iccson, 3 Q. B. 39. 494 ; 55 L. J. Q. B. 378. {iv) Broun v. Sheeill, 2 A. & E. (s) Lyons v. Elliott, L. R. 1 138. Q. B. D. 214 ; 45 L. J. Q. B. 159 ; {x) Clarke v. Milluall Bock Co., Crosier v. Tomkinson, Banics, 472; 55 L. J. Q. B. 378; L. R. 17 2 Kenyon, 439. Q. B. D. 494. {t) Post, p. 453. (//) Clarke v. Milluall Boek Co., («) Co. Lit. 47 a ; Simpson v. supra, llartopp. Willes, 512: 1 Smith, G (i 2 452 USES AND PROFITS IN LAND OF ANOTHER. Agricultural implements. Live stock for breeding Gas fittings. the weaving looms were not {z) . So the casks of a brewer delivered to a publican to be used by him for keeping the beer until it is consumed, according to the practice of the trade, are not privileged («). 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 {h). A special privilege was given to agricultural implements and machinery by the Agricultural Holdings Act, 1883, 46 & 47 Vict. c. 61, s. 45, providing that, " Agricultm-al or other machinery which is the bond fide property of a person other than tlie 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 ; wliich are exemj)ted from distress for rent by the Glasworks Clauses Act, 1847, 10 & 11 Yict. c. 15, s. 14(c). Goods delivered to agent for bellin"-. Goods delivered to an agent for the pm'pose of selling in the way of his business are privileged ; as goods con- signed for sale to a factor or to a commission agent {(I) ; and goods delivered to an auctioneer to sell on his own premises, or on premises occuj)ied by him for that pur- pose {e). But if an auctioneer is employed to sell goods upon the premises of another person, there is no privilege (2) Gorton v. Falkner, 4 T. E. 565 ; Wood v. Clarice, 1 0. & J. 484. (a) Toule v. Jackson, 7 M, & W. 450. [b) lb., ante, p. 448. \c) Gas LUjlit and Coke Co. v. Hardy, L. R. 17 Q. B. D. 619; 56 L. J. Q. B. ICS. (r/) Gihnan v. Elton, 3 B. & B. 75 ; Findon v. McLaren, G Q. B. 891. (e) Adams v. Grane, 1 C. & M. 380 ; Brown v. Arundell, 10 C. B. 54 ; Williams v. Holmes, 8 Ex. 861 ; 22 L. J. Ex. 283. rilAl". III. HKNTS. 453 against a distross of the goods for the rout of tlioso promises, whotlier they arc tlio goods of the tenant himself, or of another person wlio has sent them there for sale (/). — Goods exposed for sale in a ]-)iiblic market or fair are privileged from distress {g). Goods delivered to a person for safe keeping in tlie Goods way of liis trade are privileged ; as goods deposited with Jfe keeping, a warehouseman or wharfinger (//) ; goods deposited at a fm-niture warehouse (») ; goods pledged to a pa\\Tibroker {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 (/.). Horses and carriages delivered to a livery stable keeper to stand at livery have been held not to be pri%dleged ; because, it was said, the pui-pose of delivering the goods upon the premises was to remain there at the Avill of the owner, and the work done upon them was merely incidental to that jjiu-pose (/). Groods delivered to a carrier are privileged ; also goods Goods These cases delivered for carried on their way to a fair or market. ^..^..^ ^....^.^ carrying-, are exceptional in this respect, that the goods are privileged during the carriage, on whatever premises they may be lodged (;>/).— Tlio privilege of the goods in the above cases J;''^.''''^^,^"*;,^^^ 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 whidi tliey (/■) Li/o>is V. mioit, L. R. 1 Q. B. D." 210 ; 45 L. J. Q. B. 159, (.7) Co. Lit. 47 a. (/() Thompson v. Mashiter, 1 Bing. 283 (/) Miles V. Furher, L. R. 8 Q. B. 77; 42 L.J. Q. B. 41. U) Swire V. Lcaeh, 18 C. B. N. S. 47!); 34 L. J. C. P. 150. The shcrift' may take in execution goods pledged to a piu\nibroker, wlietlier redeoniablo or not, and may sell them -when the period for redemp- tion has expired : Re IloUa^uu, 56 L. J. C. 768 ; L. R. 34 C. D. 495. (Z-) liobiiison V. V'ulter, 3 Bnlstr. 269 ; Croaier v. Tomhiiisuti, 2 Ken- yon, 439 ; Barnes, 472. (/) Francis v. Wijatt, 1 AV. Bl. 483; 3 Burr. 1498; Parsons v. Gimjell, 4 C. B. 545 ; but see Cock- burn, C. J., Miles V. Farlier, L. R. 8 Q. B. 82; 42 L. J. Q. B. 41 ; Cods V. Oral/, 1 Gitf . 77 ; 26 L. J. C. 607. (;«) Co. Lit. 47 a; Gishourn v. llurst, 1 Salk. 249; Alderson, B., Miispratt V. Gret/ori/, 1 M. «lt W. 647 ; Blackburn, J., J.i/ons v. Elliolf, L. R. 1 Q. B. T>. 214; 45 L. J. Q. B. 159, 454 L'SES AND PROFITS IN LAND OF ANOTIIKH. are enyeloped" («). But there is no privilege 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 in such cases so long as retained in the possession of the o^^^ler, while waiting for and discharging or loading goods, would be privileged by reason of the personal use and possession {p). Cattle taken Cattle taken in to agist or feed had no privilege at common law {q) ; but they are now conditionally privileged by the Agricultm-al Holdings Act, 1883, 46 & 47 Vict. 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 stoclv to the tenant, such stock shall not be distrained by the landlord for rent, where there is other sufficient 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 tlie 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 (s). 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. rrotection^of By the statute 34 & 35 Vict. c. 79, " An Act to protect lodgers. ' the goods of lodgers against distresses for rent due to the («) Alderson, B., Micspratt v. FowJcesx. Jotjee, 2 Yevn.\2Q ; Ilors- Greyory, 1 M. & W. 647. fordy. Webster, 1 C. M. & R. 696. (o) Muspratt v. Greyor;/, 1 M. & (r) Masters v. Green, L. R. 20 W. 633; 'dib. 677. Q. B. D. 807. (l>) lb., ante, p. 448 ; liede v. ■ (,s) London i^- Yorkshire Bank v. Hurley, Cro. Eliz. 519. Helton, L. R. ],5 Q. B. D 457 • 54 [q) Rolle, Abr. "Distress." See L. J. Q. B. 508. CHAF. III. KKNTS. 455 siiporior 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 funiiture, goods, or chattels are the property or in the lawful possession of such lodger; and also setting forth Avhetlier any and what rent is due from such lodger to his immediate landlord ; and such lodger may i)ay to the superior landlord the rent, if any, so due, or so much thereof as shall he sufficient 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 fm-niture, goods, or chattels of the lodger, such suj)erior 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 iiTcgularity ; for he is prevented b}' the sale of the goods from serving a declaration entitling him to the benefit of the Act {>() . Groods in the custody of the law are privileged from dis- Goods in tress ; such is the position of things already distrained ; i "^^^^^^ and of things taken in execution, so long as the sherilf retains possession (r). — But in the case of things taken in Goods taken execution it has been provided by the statute 8 Anne, c. 14, s. 1 {ir), " that no goods or chattels whatsoever, being {t) As to the foi-m and service of 9 Q. B. J). 215; llvairovd v. Boiic, thedeclaration,soe2y/»(/(7(sv. Wild- L. II. 13 Q. B. D. 179. imj, L. K. 12 Q. B. D. 4 ; 52 L. J. (w) Shiny v. Fowle, L. R. 12 Q. Q. B. 734 ; Ex parte Harris, 55 B. D. 385 ; 53 L. J. Q. B. 309. L. J. M. 24. As to what cousti- (t) Co. Lit. 47 « ; If'harton v. tutes a lodger within the meaning Xmjlur, 12 Q. B. G73. See Blades of the Act, SCO I'/iillips v. Jleiisoii, v. Ariiiidalc, 1 M. & S. 711. L. R. 3 C. P. D. 2G; 47 L. J. 0. (tc) As to things taken in c.xe- P. 273; Morion V. J'liliiur, bl Li. J. cutiou by the Coimty C'uurt, sec Q. B. 7 ; Xfss V. Stephenson, L. R. the County Courts Act, IbSS, s. ICO. 45G rSKS AN]J rilOl'lTS I>^ LAND OF ANOTHER. Liability of shei'iff after notice of rent due. in or upon an}" messuages, lands or tenements wlileli are or sliall 1)0 leased for life or lives, term of years, at will or otherwise, shall he liahle to he taken hy virtue of any exe- cution, "imless 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 tlie said premises all such sum or sums of money as are or shall he due for rent due for the said premises at the time of taking such goods or chattels by virtue of such execution ; provided the said arrears of rent do not amount 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." — The sheriff may rightfully carry out the execution until 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 lie does, he is liable to an action at the suit of the landlord {x). The damage in such action is priiiid 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 the {x) Falgrave v. Windham, 1 Strange, 212 ; Armitt v. Garnctt, 3 B. & Aid. 440 ; Cocker v. Mm- grove, 9 Q. B. 223 ; Whartoti v. Nayhr, 12 Q. B. 673. (y) Thomaa v. Mlrehonsf, L. R. 1!) Q. B. D. 5G3; 56 L. J. Q. B. 653. [z) Andrews v. Dixon, 3 B. & ■AW. 645 ; sec Smith v. Russdl, 3 Taunt. 400. CUAl*. III. KKNTS. 457 execution creditor refused to pay it ; for " iintil the rent 1)0 paid, there are no goods out of whicli the slierilf is bound to levy, that is, wliich ho is bound to sell (a)," Goods sold in execution upon the premises retain the Goods sold privilege from distress during a reasonable time for removal ; but if afterwards left by tlie buyer for an unreasonable time, the execution is at ;iu end and llio privilege ceases ; the landlord then has no claim under the statute, but is free to distrain (/>). Thus growing crops taken and sold in execu- tion are privileged from distress for the rent due at the time of taking them, mitil they are cut and earned ; but if left upon the ground for an unreasonable time (which is a question of fact with reference to the circumstances of tlie case), they become liable to be distrained for tliat and for subsequent rent (('). — The landlord can only claim mider Rent pending the statute of Anne the rent accrued due at the time of ^^'^^^'^ ''^"• taking tlie goods in execution, and not rent accruing due pending tlie execution (r/). But by 14 & 15 Yict. c. 25, s. 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 clue after any such seiziu'e and sale, and to the remedies by distress for recovery of such rent." — By Goods to be 14 ipn • ^1*"^^ upon the 56 Geo. III. c. 50, "An Act to regulate the sale ot tarming premises, stock taken in execution," the sheriff is prohibited from selling or ctirrying off crops or produce contrary to the covenants and agreements of the tenant ; but he may sell them subject to agreement to use them niton the premises; and in all such cases it shall not bo lawful for the landlord to distrain such cirqis or produce, or any beasts or imple- ments employed in ^\■<)l•king or consuming them [e). (a) Cocker V. Mitsgrovc, 9 Q. B. Ifluirfoii v. Xaijlor, 12 Q. B. GTS. 235. ('/) lloskins v. Kiiiijht, 1 M. & (A) Smith \. Russell, 3 Taunt. 400; S. 240 ; Jtri/nulds v. liarford, 7 M. He Davis, Ex parte PoUen, 55 L. J. & G. 449 ; 'lie Davis, oo L. J. Q. B. Q. B. 217. 217. ((•) Eaton V. Soutkbt/, WiWes, i;il; (<■) TTrigfit v. Dcues, 1 A. & E. TvacocI: v. Purvis, 2'B. & B. 302; G4I. Wright V. Dcurs, 1 A. & E. C41 ; 458 ISES AND PROFITS IN LAND OF ANOTHER. Goods in possession of receiver. Goods in bankruptcy Goods of com- pany under "winding-up. Groods in tlie possession of a receiver of the Court of Chancery are considered as in the possession of the Court by its officer, and no distress or proceeding can be taken to interfere with the possession without leave of the Coiu-t ; which woidd in general be granted to a landlord to secure the priority of his claim for rent (/). The goods of a bankrupt vested in the receiver or trustee under the Bankruptcy Acts are in a similar posi- tion ; but the right to distrain for rent is reserved to the landlord, subject to limitation (g). By the Banla'uptcy Act, 1883, 46 & 47 Yict. c. 52, s. 42 (1) (re-enacting Banki'uptcy Act, 1869, s. 3i), "the landlord or other j)erson to whom any rent is due from the bankrupt may at any time, either before or after the commencement of the bankruptcy, 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 banlo-ujotcy 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 administration of tlie 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 under sect. 55, the landlord may distrain in full for rent accrued due subserpient to the bankruptcy. By the Companies Act, 1862, 25 & 26 Vict. c. 89, s. 163, "where any company is being wound up by the Court or subject to the supervision of the Comi, any dis- (/) Ee StUton, 32 L. J. C. 437 ; Mussell V. East AnffUan Eij., 3 Mac. & a. 118; Re Suffield, L. R. 20 Q. J3. D. 093. {y) Ex parte Till, L. R. 10 Eq. 97; 4 2 L. .J. B. 84; Ex parte Cochrane, L. E. 20 Eq. 282; 44 L. J. B. 87. (/*) See sects. 122, 125; Re Fry- mail's Estate, L. R. 38 C. D. 468 ; 57 L. J. C. 802. ( IIAl'. 111. HENTS. 4o9 tress or execution put in force against the estate or effef'ts of the company after the commencement of the winding-up shall be void." But this section is to ho read together with sect. 87, as excepting " proceedings witli leave of the Court and subject to such terms as the Court may im- pose "(/). — The Court will not in general give leave to distrain for arrears of rent due at the commencement of the winding-up ; for wliich the landlord must prove as a debt like any other creditor (/). But the Coui-t gave leave to distrain for such arrears against goods and effects of the company A\hich were charged beyond their value to debenture holders, because the company retained no pro- pei-ty 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 inecpiitable that the company sliould 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 "\\-inding-up, so that the rent may be charged as costs properly incun-ed ; 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 tlie pre- mises (o). So a landlord may distrain iipon the i)remises («) lie Exhall Coal Co., 4 D. J. & (/) Itc Lancashire Cotton Co., L. S. 377 ; 33 L. J. C. 595 ; lie Lmiai- R. 35 C. D. G5G ; 56 L. J. C. 761 ; shire Cotton Co., L. R. 35 C. D. lie Oalc Pit's Colliery, L. R. 21 C. 656 ; 56 L. J. C. 761. D. 322 ; 51 L. J. C. 768. {j) lie Traders' Co., L. R. 19 (/«) Be Lancashire Cotton Co., Eq. 60; 44 L. J. C. 172; lie Coal supra. Consumers' Ass., L.B,. i C.D. 6'2o ; («) Graham v. £di Club, L. R. 34 C. D. G46 ; 56 L. J. C. 332. ( IlAl'. III. RKNTS. 461 allowed tu say tliat lie has applied the goods in satisfaction of rent against the will of the owner (-). The following Distress taken are instances of illegal distress, according to the rules manne^^ 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 fi-audu- lently removed to avoid the distress, which may be taken wherever they may be found (/y). — Distress made in the night time, between sunset and sunrise (c). — Distress made by unlawfully breaking into tlie premises ((/). — Distress taken of things not distrainable ; or of things privileged from distress, where other distrainable goods might be taken (r). Distress when no rent is due, or without any right to Wliere no distrain, is a trespass at common law(/). And by the ^^^^♦i'^e. Statute 2 W. & M. sess. 1, c. 5, gi\ing 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 sucli 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 sufljoient tender of the rent due makes the subsecpient After tender taking of a distress wrongful ; a tender after taking a dis- tress and before impounding makes the subsequent detainer of the goods wrongfid ; tender after the impounding is too (s) Tir cur., Attack v. Bra»iwcU, 14(5. 3 B. & S. 520 ; 82 L. J. Q. B. 146. (e) Ante, p. 444 ; Kargatt v. Nias, (a) Ante, p. 428. 1 E. & E. 439 ; 28 L. J. Q. B. \h) Ante, p. 430. 143 ; Keen v. I'riest, 4 H. & N. [c] Ante, p. 435. 236; 28 L. J. Ex. 157. \d) Ante,^.i'ib-, Attarkx.Bram- (/) Co. Lit. IGOi, veil, 3 B. & S. 520 ; 32 L. J. Q. B. 462 rSES ANll PROFITS IN LAND OF ANOTHER. late and has no effect in avoiding the distress, the goods then being in cnstody of tlie law and recoverable only by legal process. The owner of the goods must then replevy the goods and bring an action of replevin, the judgment in which assesses the amount due, if any, with retm-n of the goods replevied as security for payment ; he may after- wards tender the amount assessed to redeem the goods and render fmiher detainer wTongful {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 sale prevents a sale, but does not otherwise invalidate the distress, which may be kept impounded as a pledge at common law. A sale after tender within tlie five days is wrongful, and the owner of the goods may recover the value («'). Second dis- A second distress for the same rent is illegal, unless the rent. first distress failed to satisfy tlie rent without any fault of the distrainor. A second distress may be taken, where there were not sufficient distrainable goods upon the premises to satisfy the first ; or where insufficient goods were taken by mistake of their value {j) ; or where the first was withdrawn at the request of the tenant, or upon an agreement by him for payment of the rent which he has failed to porfomi [k). But no other distress can be made, if a former distress has been voluntarily withdrawn {g) 2 Co. Inst. 107 ; TUldmitori's Green v. DncJcctt, L. R. 11 Q. B. D. Case, Co. 70 « ; 8 Co. 147 «, tSix 275; 52 L. J. Q. B. 435; Broicne Carpenters'' Case ; Evans v. Elliott, 5 v. Eoiccll, 4 Bing. 230. A. k E. 142. (j) Johnson v. Upham, 2 E. & E. {h) Eirlh V. Purvis, 5 T. R. 433 ; 250 ; 28 L. J. Q. B. 252 ; ante, Thomas v. Harries, 1 M. & G. 695, p. 443. 'M.diVi\e,3., dissentientc. In the case (./) Ifutchinsy. Chambers, I Burr. of cattle distrained damage feasant 58'j ; Wallis v. Savill, 2 Lutw. and impounded in a private pound, 1532. the tender of a sufficient sum for (/) Thu-aiics v. Wilding, L. R. 1 1 damages may be made at anytime. Q. B. D. 421 ; 52 L. J. Q. B. 737. See Holland v. Bird, 10 Bing. 15. CIlAl". HI. IIKXTS. 4G3 Ly the distrainor Avitliout sullicient reason (/) ; or if the distrainor -wilfully takes an insufficient distress, where a sufficient distress mip^ht have been taken (in). — An entire Separate rent cannot be divided for making separate distresses ; but rent falling duo at different times may be distrained for separately ; or one distress may be made for all arrears then duo under the same demise {>i). 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 abiLse it, he shall be a trespasser ab initio" {o). Consequently at common law Trespass 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 Greo. 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 irregidarity," proceeds to enact " that where any distress shall be made for any kind of rent justly due, and any in-egularity 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 unlawfid, nor the party or parties making it to be deemed a trespasser or trespassers ab initio ; but the party or parties aggrieved by such imla-svful act or ii-regularity (/) Smith V. Goodwin, 4 B. k («) Hutchins v. Chambers, 1 Burr. Ad. 413 ; Lear v. Cahlccott, 4 Q. B. 589 ; GamhreU v. Falmouth, 4 A. & 123; Bauson v. Cropp, 1 C. B. E. 73. 961 ; Bagge v. Maichij, 8 Ex. 641 ; (o) Per cur.. Six Carpenters'' Case, 22 L. J. Ex. 236. 8 Co. 146 a. The doctrine does not (m) Anon., Cro. Eliz. 13; ll'alUs apply to an authority or licence V. Savill, 2 Lutw. l.')3G; JIuichins •riven by a jiarty. Ellenborough, V. Chambers, 1 Burr. 589. C. J., Diteham v. Bowl, 3 Camp. 526. {p) Ante, p. 460. 464 rSES AND I'UOFITS IX LAND OF ANOTHER. Actions for irregular distresses. shall or may recover full satisfaction for the special damage he or they shall have sustained thereby and no more." Sect. 20 provides "that no tenant or lessee shall recover 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 iive days {s) ; selling with- out a proper appraisement (/) ; not selling for the best price that could be got {u) ; selling growing crops stand- ing (r) ; 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 {w). — 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 (;:). {q) ir.'llace v. lung, 1 H. Bl. 13 ; {h) Lyon V. Weldoii, 2 Bing. 331. 512 ; (r) lioc/ers v. Parker, 18 C. B. 493. 112 ; 25 'L. J. C. P. 220 ; Lucas v. (;•) Tar'.clon, 3 H. & N. IIG ; 27 L. J. 25 L. Ex. 248 ; Biggins v. Ooodc, 2 C. & {ir) J. 364. C03. («) Wallace v. King, 1 H. Bl. 13 ; {x) Sharp V. Fowle, L. E. 12 Q. B. D. 139 ; 385 ; 53 L. J. Q. B. 309. Ex. 2 {t) Biggins v. Goode, 2 C. & J. {y) 364. East, royntrr v. Bacldey, 5 C. & P. Thompson v. Wood, 4 Q. B. Rogers v. Parker, 18 C. B. 1 12 ; J. C. P. 220. Lyon V. Tomkies, 1 M. & W. Etherton v. Popplewell, 1 East, Smith V. Ashfor'th, 29 L. J. 59. Winterhottrne v. Morgan, II 395 ; a7iie, p. 443. Ante, p. 461. CIIAl'. Ill, RENTS, 465 An excessive distress consists in taking goods unreason- Excessive ably in excess of wliat is necessary to secure tlie rent due, ''^ ^^^' By the Statute of Marlebridge, 52 Hen. Ill, 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 jirocui-e 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 (i). He may recover for an excessive distress of growing crops, though they are not removeable imtil ripe, by reason of the inconvenience of being deprived of the possession and management (r). He may recover in respect of goods of which he has the mere possession and enjoyment, Avithout 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 trained. exercise a reasonable and an honest discretion ; he is autho- rized to protect himself b}^ seizing what any reasonable man would think adequate to the satisfaction of his clauu "(<•). " 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) IIiitchi)is V. Chamhtrs, 1 Bun-, 441, 690; Zv;we V. JToorfy, 2 Str. 851. [d) FcU v. irhittaker, L. E,. 7 {b) Chamlhrv. Do'ii/toi, 3H. & C. Q. B. 120 ; 41 L. J. Q. B. 78. 553 ; 34 L. J. Ex. 89. See JBai/Uss (<) Wikle. C. J., Jioden v. Ei/ton, V. Fisher, 7 Bing-. 153. 6 C. B. 430 ; Bayley, J., Wil- (c) Fiffffott V. Blrlhs, 1 M. i- W. hiiff/ilii/ v. Backhouse, 2 B. & C. 823. L. H H * 466 L'SES AND PKOFITS IN LAND OF ANOTHER. Distress for excessive claim. "because lie miglit have taken a beast of less value" (./). The excess is tested by tlie real value of the goods, and not conclusively by tlie proceeds of a sale of tliem, tliougli tliat is 2^rimu facie evidence of tlieir value ; and the distress may be proved excessive, though the sale did not in fact realise the rent due (g). If gold and silver be 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 {//). — 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 {i). 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 seizrure and sale to the sum really due, so as to avoid an excessive distress (/). 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 may allege one cause for the distress and justify for another (/i). 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 (/). Eescuc. 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. iDst. 107. Iff) Smith V. Ashforih, 29 L. J. Ex. 259 ; ante, p. 442. (A) Moir V. Munday, cited in Huicltins v. Chambers, 1 Burr. 590, and in Crowther v. liamsholtom, 7 T. R. G58. (i) Carter v. Carter, 5 Bing. 406 ; see Sapsford v. Fletcher, 4 T. R. 511 ; Taylor v. Zamira, 6 Taunt. 524 ; Cknncll v. Bead, 7 Taunt. 50. [j) Tancrcdy. Lci/land, 16 Q. B. 669 ; 20 L. J. Q. B. 316 ; Ghjn v. Thomas, 11 Ex. 870; 25 L. J. Ex. 125 ; French v. I'hillips, 1 H. & N". 564; 26 L. J. Ex. 82. (k) Ante, p. 440. Fer cur. Croiv- iher v. liamshotlom, 7 T. R. 654. (/) FhilUpsy. Whitscd, 2 E. & E. 804 ; 29 L. J. Q. B. 164, CHAP. Ill, RENTS. 467 distrained in the higlnvay, or wlioro goods are taken wliich aro in-ivilegcd from distress. After an illegal distress has been taken, the tenant may rescue or retake it at any time before it has been impounded ; when impounded it is in the custody of the law, and ho must proceed to recover possession by replevin (w). — Pound-breach, or breaking Pound 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 ^Y. & M. e. 5, s. 4, it is enacted " that upon any pound-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 o"svTier of the goods distrained, in case the same be afterwards found to have come to his use or possession." The statute appHes to pound-breach where the impounding is upon the premises under the statute 11 Geo. II. c. 19 {)i). 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 pound for the pui'pose of using them, it is an abuse of the distress which renders the detaining "sn-ongfid, and the o-^iier of the goods may retake possession (;j). Iveple^'in is a summary proceeding by the o■v^^ler of Replevin, goods taken in distress for obtaining an immediate retm'n of possession, upon giving secm-ity 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 retmii the goods distramed (q). Replevin may bo obtained at any time before the property in the (»») Co. Lit. 160 b, IGl a; 4 Co. (o) Kiioiclesv.Ulalr, oBing.idd; 11*, Bciil's Case; Cotsworth v. i)of/ v. J/ow//^-, 6 Mod. 216. Betison, 1 L. Raym. 104; 1 Salk. {p) Smith v. Wright, 6 H. & N. 247 ; Firth v. Purvis, 5 T. R,. 432. 821 ; 30 L. J. Ex. 313. See Ffirrctt A^av. Co. v. Stourr, 6 {(/) Co. luit. lio />; per cur. Mm- M. & W. 664. wiV V. liki/:<; 6 E. & B. 842 ; 25 («) Firt/i V. Purvis, 5 T. R. 432. L. J. Q. B. 401. H n2 468 USES AND PROFITS IN LAND OF ANOTHER. Jurisdiction of sheriff. Jurisdiction of County Court. goods has been clianged by sale imder the distress (r) ; and being an ex parte proceeding, it does not affect tlie dis- trainor, or render a sale ■\\Tongful until he has notice thereof (s)- 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 {f). 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 requii^ed " that sheriffs shall not only receive of the plaintiffs pledges for the pm^suing of the suit, before they make deliverance of the distress, but also for the retm-n of the beasts, if retm^n be awarded" (;0- By the statute 11 Geo. II. c. 19, s. 23, "to prevent vexatious replevins of distresses taken for rent," it ^^^as 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 retm-n of the goods shall be awarded." And it was further recj[uired 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, 51 & 52 Yict. c. 43 (repeal- ing and re-enacting in similar terms provisions of the County Courts Act, 1856), 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 v. Kin^, 5 Taunt. 450 ; ante, p. 443. (*) Mounsey v. Dawson, G A. & E. 766. {t) Co. Lit. Ubb;2 Co. Inst. 140. {u) 2 Inst. 139. There may be a special franchise to grant replevin. Mounsey v. JJauson, G A. & E. 752. CllAI'. 111. KKNTS. 4(J9 the registrar of the Court of the district shall Lo em- powered, siil)ject to the regulations hereinafter contained, to approve of replevin hond.s, and to grant replevins, and to issue all necessary process iii relation thereto ; and such process shall be executed by the baililf. 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. 1'35. " Where a replevisor shall wish to commence Security to proceedings in the High Court he shall, at the time of '^ replevying, give securit}% 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 fi-om the date thereof, and to prosecute such action with effect and "sWthout delay, and, unless judgment thereon be ob- tained by default, to prove before such sui^erior 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 value 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 secimty to the like amount, condi- tioned for bringing an action of replevin in the County Court, but without the condition as to titli' and amoimt of claim. In the action of rci)levin the pleading of the defendant Avowry and is technically called an avoicry or cognizance, the former ^off^^^^^®- 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 2)ka, instead of a rcjj/ication. The judgment for 470 USES AXD PROFITS IN LAND OF ANOTHER. the plaintiff iu replevin is to recover the damages of the "WTongful taking and the costs of suit ; the judgment for the defendant is that he have a return of the goods to hold Writ of capias to him iiTeple\asable, and for damages and costs. — If the goods are eloigned, that is, removed, so that they cannot be delivered in reple\in, or under a judgment for return of the distress in an action of replevin, a writ of capias in ivithcrnam 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 («') . The owner of the goods must attend at the place of impounding to receive tlie goods replevied (;r) . (f) _ 2 Co. Inst. 140 ; Chitty's Case; ante, p. 435. Practice and Forms. (:;;) Fer cw. Ilellawall v. East- {iv) Stat. West. I. c. 17; 2 Co. ivood, 6 Ex. 312. Inst. 193 ; 5 Co. 93 a, Semayne'ti CHAP. III. REJJTS. 471 Section IV. Remedies for Rent, — (2) Action and Re-entry. Action for rent — suspended In- distress — injvinction against distress pending action. Action of debt for rent — debt from privity of estate — action by exe- cutor for arreai's of rent — rent a specialty debt. Covenant to pay rent —privity of contract. Action for use and occupation. Condition of re-entry on non-payment of rent — demand of payment — ejectment — relief against condition — condition of entry to take profits. Summaiy proceedings for recovery of possession. Jurisdiction to gi-ant a receiver or sale — remedies under Conveyancing Act, 1881. The landlord or lessor, instead of distraining, may pro- Action for ceed by action to recover rent ; bnt 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 indej)endent of the suiheiency 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 (i). — An injunction was granted against a landlord Injunction, distraining, pending an action respecting the liability to {a) Lehain v. PhiUpott, L. R. 10 157 ; Litiqhitm v. Ifancii, 2 B. & Ex. 242 ; 44 L. J. Ex. 22.5. B. 30 ; Httdd v. liamior, 2 B. & B. {/>) Lear v, Edmotuh, 1 B. & MH. 062 ; ante, p. 402. 472 rsEs Axn PRoi -iTf; IN land of axotuku. the rent, but ouly 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 fi^eeliokl 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(c/). 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. lY. 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, thougli 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 tlie suit of an assignee of the rent, upon the privity of estate {//). This doctrine does not apply to (c) Shatv V. Jcrsexj, L. R. 4 C. P. D. 359 ; 48 L. J. C. P. 308. Id) Lit. ss. 233—236 ; Fitzberbert, N. B. 178. («) Lit. ss. 58, 72 ; Co. Lit. 47 i; 4 Co. 49 i, OgncWs Case. if) Webb V. JiggK, 4 M. & S. 113 ; Randall v. Rif/bij, 4 M. & W. 133. {(/) 'Thomas v. Sylvester, L. R. 8 Q. B. 368; 42 L. J. Q. B. 237; Clirislie v. Barker, 53 L. J. Q. B. 537. {h) Walker's Case, 3 Co. 22 a ; Allen V. Bryan, 5 B. & C. 512. (ll.VI'. III. UKNTS. 47:3 land out of the jui'isdictioa of English Courts; an action Avill not lie for rent of such land upon ground of privity of estate only, ^vitll(Jut a personal contract (/). It is also expressly excepted from application to the tithe rent charge by the terms of tlie Tithe Commutation Act, s, G7, which provides that nothing in the Act " shall he taken to render any person -whomsoever personally liable to the pajTuent of such rent charge "(y). It does not apply to the liquidator of a company holding tlie laud in tliat capa- city only (/.•) . An executor or administrator at common law had an Action by action of debt for an-ears of rent reserved on leases for a^rcars^o/'"'' 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 dt'alh ; and a right of distress was given in such cases by statute 8 & 4 AVill. IV. c. 42, ss. 37, 88. 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 tail, 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 (ni). The debt for rent is considered as a specialty debt, Rent a spc- thougli the rent be reserved upon a parol demise, and not '^^'' J" *- seciu-ed by bond or covenant ; and it had the priority of such debts at common law (//). But the statute 32 «fc 33 (() Ci-anworth, L. C, Vincent v. Tirseott v. BoiicJiei; 3 B. & Ad. 849 ; Gordon, 4 D. M. & G. 551 ; IHiit- Blackbura, J., Thomas v. Siibeatei; akcr V. Forbes, L. R. 10 C. V. 583 ; L. R. 8 Q. B. 371 ; 42 L. J. Q. B. 44 L. J. C. P. 332. 237 ; ante, p. 302. {j) Ante, p. 400. ('") Ante, p. 410. (A) Graham v. Edge, L. R. 20 [n) Thompson v. Thompson, 9 Q. B. D. 683. Price, 471 ; Clough v. French, 2 (/) Co. Lit. 1G2 (/ ; 1 Wms. Coll. 277. Sec Talbot v. Shrewshiir;/, Saund. 282, Dnppa v. Mai/o ; sec L. R. 16 Eq. 28 ; 42 L. J. C. 877. 474 rSES AND PROFITS IN LAND OF ANOTHER. Yict. c. 4G, whicli deprived specialty debts of priority in tlie administration of tlio estates of deceased persons, extends to debts for rent (o) . Tlio doctrine of specialty debts is peculiar to Englisli law, and does not apply to rent of land out of the juiisdiction (^j). Covenant to pay rent. Privity of contract. It is usual in leases for tbe lessee to enter into an express covenant, binding liimself, and bis beirs, 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 tbe like, if executed by tbe 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 ^\ith 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"(.s). But until the lessor accept the assignee as his tenant, the lessee remains liable to him in debt as well as in covenant (f). Action for use and occupa- tion. An action lies at common law to recover a reasonable rent or remuneration for the use and occupation of land (o) lieJLastinrjs, Shirclfy. Hastinrja, L. R. 6 C. D. 610 ; 47 L. J. C. 137. {p) Vincent v. Gordon, 4 D. M. &G. 551. {q) 1 Bac. Abr. Covenant B, p. 630 ; Finch, L. C, Hollis v. Cart; 2 Mod. 91. (;•) Sjjencer^s Cose, 5 Co. \1 b ; Leake on Contracts, 2nd ed. 1215, 122-5, 1231 ; Conveyancing Act, 1881, 44 & 45 Vict. c. 41, ss. 10, 11. (s) Wilson, J., Mills V. Auriol, 1 H. Bl. 445 ; Auriol v. Mills, 4 T. R. 98 ; Randall v. liighy, 4 M. & W. 134. (0 Walker's Case, 3 Co. 22 a ; see Mayor of Swansea v. Thomas, L. R. 10 Q. B. D. 48. CHAP. III. iiENTs. 475 imder circumstances wliich raise a presumptive contract to pay for it ; and the mere fact of use and occupation of land by permission 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 measui-ed 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 " (ii). — In aid of tins form of action it was enacted by the statute, 11 Geo. II. c. 19, s. 14, "That it shall be lawfid 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 e\'idence on the trial of such action any parol demise or any agreement (not 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 be 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 under an express contract to a different effect (r), or ^vith a different person (?r). A claimant cannot waive a trespass and wi-ongful occupation of laud, and charge a rent as for a permissive use and occupation (.r) . The possession of a vendor holding over after tlie time for completion of the sale is adverse, and he cannot be charged by the pm-chaser ■\\\i\\ a rent for the use and occupation. If the possession is -s^Tongful he may be turned out by ejectment and is liable in trespass for mesne profits (//). A tenant holding over after the expii'ation of his lease may be charged for («) Per cin: Gibson v. Kirk, 1 Q. 4G2 ; Sloper v. Saunders, 29 L. J. B. 856 ; Mdlier v. Silcox, 19 Ex. 275. L. J. Q. B. 295; Churchward v. {ic) Cox\. Kniyht, \S CB. Ub \ Ford, 2 H. & N. 446 ; 26 L. J. Ex. 25 L. J. C. P. 314. 354, {.(■) Turner v. Cameron Coal Co., 5 (r) Eall V. Burgess, 5 B. & C. Ex. 932. 332 ; Walls v. Atchcson, 3 Bing. (y) Tew v. Jonesy 13 M. & "W. 12. 476 t'SES AND riU)l'lTS IN LAM) OF AXOTIIER. use and oeeupation, and presiiniptively upon the terms of his lease (;;?) . — The rent payable for the mere use and occupation of land is j^resumptively measured in amount by the value of the tenement and the duration of the occupation ; and it accrues due from day to day until the occuj)ation 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 (;?). Condition of re-entry on non-payment leases by au express condition for re-entry upon non-pay • A further security for rent is commonly provided in of rent. Demand of rent. ment. At common law an estate of freehold could not be defeated 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 reqiiiring an actual entry by the lessor to enforce the condition, as w ith estates of freehold upon con- dition at common law (o). Entry under 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 (p). The right of re-entry for non-payment of rent w^as 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 estabHshed rule of the Court of Chancery and of tlie Com-ts of common law tliat no forfeiture of property could bo made, unless every (m) Baylcy v. Bradloj, 5 C. B. 396 ; Levi v. Lnvi.% 6 C3. B. N. S. 7CG; SOL. J. C. P. 141. («) Tomlinson v. Bay, 2 B. & B. 680 ; per cur. Gibson v. Kirk, 1 Q. B. 856. ('.) Lit. ss. 328—331 ; Rede v. Farr, 6 M. & S. 121; Arnshijy. JFoodicard, G B. & C. 019 ; Liddi/ V. Kennedy, L. E,. 5 H. L. 134. See ante, Vol. I. p. 226. {p) 3 Co. 23 b, Walker's Case. 1 CHAP. Iir. RENTS, 477 condition precedent hud Leen strictly and literally' eoniplio). A towing path may become also a public footway by general use for that pm-pose (q). The con- . servators of a river navigation, with statutory powers to maintain the navigation and towing paths and to take (/) Great Xorthcrn Ry. v. Eastern (o) Per cur. Winch v. Thames Counties Rij., 9 Hare, 306 ; 21 L. Consere., L. R. 7 C. P. 4G9 ; 41 L. J. C. 837. J. C. P. 218. {m) Ante, p. 156. Original Hart- (p) Ante, p. 158 ; Ball v. Herbert, lepool Coll. V. Gibl), L. R. 5 C. D. 3 T. R. 253 ; see Simpson v. Scales, 713; 46 L. J. C. 311. 2 B. & P. 496. (w) Colchester v. Brooke, 7 Q. B. (q) Grand Junction Canal Co. v. 339; ante, p. 162. Vettii, L. R. 21 Q. B. D. 273; 57 L. J. Q. B. 572 ; see post,, \). 508. 486 rSES AND PROFITS IN LAND OF ANOTHER. Public way without thoroui'hfare. Public com- mon.s and open spaces. tolls for the use of the same, are lield responsible to those using the towing paths for their being in proper repair and condition {q) . Such conservators are presumptively 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 (s). A oil de sac, or way Avithout a tlioroughfare, may be public ; though there may be difficulty in proving it so by reason of the limited use {t). A public way or street mthout a thoroughfare cannot be converted into a public thoroughfare by the owner of the adjoining land opening a way tlu'ough the end {ii) . If a public highway be legally stopped at one end, it presumptively remains a highway, though no longer a thoroughfare {v). Thus where inclosure commissioners of a j)arish stopped a foot- path through the parish which passed into the adjoining parish, it was held tliat tlie part of the footway in the latter parish remained public, though without the former thoroughfare {w). But where the stopjiing of two roads had the effect of rendering access of the public to an inter- mediate cross-road impossible, it was held that the latter was no longer a highway {x). 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 I {q) Winch V. TJiames Conscrv., L. I1.9.C.P.378; 43L.J. C.P. 167. (r) Lee Conserv. v. Button, L. R. 6 Ap. Ca. 085; 51 L. J. C. 17. (a) The King v. Tippett, 3 B. .& Aid. 193. {t) The Kinrj v. Lloyd, 1 Camp. 2G0 ; Rugby Charity \. Meryiveather, 11 East, 375, n. ; IVood v. Veal, 5 B. & Aid. 454 ; Bateman v. Bluch, 18 Q. B. 870 ; 21 L. J. Q. B. 40G; Soiich V. East London Ry., L. R. IG Eq. 108 ; 42 L. J. C. 477 ; Vernon V. St. James, JFrst)ninster, L. R. 16 C. D. 449; 49 L. J. C. 130. (e<) IFuodyer v. Madden, 5 Taunt. 125. {v) The King v. Lownnhire, 4 A. &E. 713. {w) Givyn v. Ilardwicke, 1 H. & N. 49 ; 25 L. J. M. 97. {x) Bailey v. Jamieson, L. R. 1 C. P. D. 329. CHAP. IV. HIGHWAYS. 487 the public over sueli places are analogous to rights of way over highways ; but they are generally restricted and regulated by bye-laws made under tlio statutory powers by wliitli tliey arc created {y). Eiglits of tliis 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 hio-liway belongs to the ?? "i*^*^ °^ , . o »/ D hK'hway. owner of the inclosed lands between which it passes ; and if the land on each side of the road is held by different OAvners, tlie presumption is that each side of the highway to the medium filum rice belongs to the o^Tier of the adjoining land {b). The presiunptiou is rebutted by sufficient contrary cAidenee resj^ecting the 0"miership ; as tliat the highway was set out under an inclosure Act, which also allotted the o-^AOiership 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 toA\ai, for holding markets and other purposes, it was held sufii- 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 sides way between it and the adjoining inclosure. " It is a prima °^ high-way. facie presimiption that waste land on the sides, and the soil to the middle of a highway belongs to the OA\-ner of (y) See the Metropolitan Com- (;j See post, p. 559. mons Act, 1866 (29 & 30 Vict. c. (a) Duncan v. Zouc/i, 6 Q. B. 122) ; the Commons Act, 1876 (39 904. & 40 Vict. c. 56) ; the Meti-opolitan (4) Grose v. West, 7 Taunt. 41. Open Spaces Act, 1877^0^:41 Vict. See Holmes \. BeUingham, 7 C. B c. 35) ; the Open Spaces Act, 1887 N. S. 329; 29 L. J. C. P. 134; (50 ^; 51 Vict. c. 32) ; the Settled ante, p. 204. Estates Act, 1877 (40 & 41 Vict. (c) The King \. Hatfield, 4 A. & c. 18), s. 20; the Settled Land Act, E. 156; Hooper v. Bourne, L. R 1882 (45 & 46 Vict. c. 38), s. 16 ; the 3 Q. B. D. 259. Commonable Rights Compensation (rf) Beckett v. Leeds, L. R. 7 Ch Act, 1882 (45 .D TROFITS IN l.ANl) OV ANOTHER. tlie adjoining' land. The rule is founded on a supposition, that the proprietor of tlie adjoining land at some former period gave up to the public for passage all the land hetween his inelosm'o and the middle of the road" {e). Ancient highways, being for the most part uninclosed, gave the liberty of de\dating from the beaten track when- ever it became impassable, therefore the owner of the land could 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 by the public and reverted absolutely to the owner (/). The rule is not confined to freeholders. " It applies equally whether the party occupjdng the adjoining land be a freeholder, leaseholder, or copyholder. As to the property, a copyholder stands in the place of the lord ; the leaseholder in tlie place of the lessor" {g). — But where the land between the highway and the adjoining inelosure communicates with open waste or other land, the presumption in favour' of the adjoining owner maybe met by a stronger presumption that all such land lying together is in the same ownership {//). It may also be met by evidence of ownership of other -parts of the land similarly situated ; and "it is for the judge to decide whether there is such a unity of character in the different parts as to render evidence, affecting a part not in dispute, admissible with reference to the part in dispute " (i). The presumj)- tion may also be rebutted by direct evidence of title to the contrary ; as by showing that the land had been allotted under an inelosure Act as being waste of the manor (J). — Inclosing up The owncr of land open to the highway may inclose it up to the limit of the highway. The Iligliway Act, 1864, ((') Bayley, J., iJoc v. Ihtrsei/, (g) Holroyd, J., Boe \. Fearsey, 7 B. k. C. 30G ; Grose v. West, 7 B. & C. 307. 7 Taunt. 39. {h) Grose v. West, 7 Taunt. 39. if) A.hhQt,C.3 ., Sleelv. lYickelt, (i) Doe v. Kemp, 7 Bing. 332; 2 Starkie, 468 ; Cockburn, C. J., Simpson v. Dendy, 8 C. B. N. S. Arnold v. Holbrouk, L. R. 8 Q. B. 433. 99 ; 42 L. J. Q. B. 80. [j) Gery v. Redman, L. R. 1 Q. B. D. 161 ; 4.5 L. J. Q. B. 267. (HAT. I\. llHillW AYS. 489 27 & 28 Vict. e. 101, s. 01, AvIiiclL iin[»oses a peuulty upou an incroachment Ity Luilding or fencing " on the side of or sides of any carriago-way Avitliin fifteen feet of tlie centre thereof," applies only Id tlie land within the limits of the liiglnvay, and not to land (tt 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 whidi is in fact beyond fifteen feet from the centre (/.•). A like presumption applies in the construction of con- Ojuveyance veyances. Where land adjoining a highway is conveyed tin.' on "^ ^ ' by a description in general terms, or as abutting on a liio'^^ay. highway, " the presumedly right construction is that it passes the soil ad inedium. fihiiii cite^^ ; and the presumption prevails, though reference is made to a plan or measm'e- ment which does not include any part of the highway {I). So, " where the owner of two pieces of land conveys them to a pm-chaser, 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 measui-ement of each piece is given, and would exclude the road" {m). — 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 tlie 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 {k) Easton v. liichmond Jlighwaij {m) I'rr cur. Sa/Lsbiin/ v. Great Board, L. R. 7 Q. B. 69; 41 L. J. Xort/wni li,/., 5 C. B. N. S. 209. M. 25 ; post, p. 547. Ste the like rule stated rc>pectiug (/) aioipson V. Jhndi/, 8 C. B. the bed of a river, in MichUthuaU N. S. 433; Berridye v. M'aid, 10 v. \tu/ai/ Bridtjr Co., L. R. 33 C. B. N. S. 4 IG ; per cur. The Quten C. D. 133 ; ante, p. 154. V. Strand Union, 4 B. & S. 526 ; 33 (n) Salisfnin/ v. Great Xorthern L. J. Q. B. 300. Ry., 5 C. B. N. S. 174. 490 USES AND PROFITS IN LAND OF ANOTHER. not liaviug beeu carried out, it remained the property of the vendor (o) . Rights of ownership of highway. Trespass on highway. " The owner, who dedicates to puLlic use as a highway a portion of liis land, parts with no other right than a riglit of passage to the public over the land so dedicated, and may exercise all other rights of o"\\Tiership, not inconsistent therewith" {p). Thus, trees growing upon the highway, thougli 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 tlie "adjoining owner" imder the Lands Clauses Act, J 845, s. 127 ; and to preclude the o^\aier of land adjoining the highway on the other side from so claiming (r). — The owner is rateable in resjoect of the highway, if he derives 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 tlie 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 Public Health Act, 1875, 38 & 39 Vict. c. 55, s. 150, the ownership not being profitable or beneficial {i). The owner of the soil may bring an action of trespass for an invasion of his possession (u) ; and lie may maintain an action of ejectment to recover possession of an encroach- (o) Zeiffh V. Jack, L. E.. 5 Ex. D. 264 ; 49 L. J. Ex. 220. {p) Fer cnr. St. Mary Newlnyton V. Jacobs, L. R. 7 Q. B. 47; 41 L. J. M. 72. [q) Turner v. lihujwood Hiyhwaij Hoard, L. R. 9 Eq. 418. (r) Hooper v. Bourne, L. R. 3 Q. E. D. 2.59. («) See The King v. Mersey Nav. Co., 9 B. & C. 95 ; The King v. Thmnas, 9 B. & C. 114; Lewis v. Swansea, -5 E. & B. 508 ; 25 L. J. M. 33. [t) riunntead Board v. British Land Co., L. R. 10 Q. B. 203 ; 44 L. J. Q. B. 38 ; Great Eastern Ity. V. Hackney Board, L. R. 8 Ap. Ca. G87 ; 52 L. J. M. 105 ; Hampstcad Vestry V. Cotton, L. R. 16 Q. B. D. 480. See JAyhlhound v. Behinyton Board, L. R. 14 Q. B. D. 853 ; 55 L. J. M. 94. {ii) Lade V. Shepherd, 2 Strange, 1004; Stevens \. Whistler, 11 East, 51. CHAP. IV. HKiinV.WS. 491 ment wrongfully made (r). The Com-t will also grant an injunction to restrain a continuing trespass to the soil of a higliway ; as where a person opened tlie surface and laid watei-pipes in tlio soil without the consent of the owner, and without any statutory authority for tliat pui-jtose (»•). — A person using a higliway for any pm-pose otlier than passing and repassing according to the lawfid use, is a trespasser against the owner of the soil (oc) ; 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 (;:). A person who uses a highway in search of game commits a " trespass by entering or being upon land in search of game " "wdtliin the statute 1 & 2 Will. IV. c. 32, s. 30, and may be con- ^'icted of an offence under that statute, which imposes a penalty upon such a trespass {a). The ownership of the soil of highways vested in public Ownersliip bodies by Act of Parliament, depends upon the construe- ^nj^f ^^'^^^ tion of the Act. The Timipike Acts did not, in general, statutes. divest the property in the soil. The duty of maintaining the road was vested in trustees; but the proi)ei"ty in the soil, and whatever rights were consistent w4th those of the public, remained as before (i). The Turnpike Acts, Turnpike for the most part, have recently been repealed, and the roads converted into " main roads " under the control of the local authority as surveyor of highways (r) . — By the (v) Goodtitle v, Alker, 1 Burr. {z) Dovaston v. Payne, 2 H. Bl. 133. 527 ; 2 Smith, L. C. Sec Fau-att (i<) Goodsony. Richardson, Ij.'R. v. Yor/c and Midland Ri/., 16 Q. B. 9Ch. 221; 43 L. J. C. 790. Sec 610; 20L. J.Q.B.222 ; ;;&5/, p.501. IVic Queen v. Longton Gas Co., 29 («) The Queen \. Pratt, 4 E. & B. L. J. M. 118. 860 ; 24 L. J. M. 113 ; ante, p. 7o. (j) Lade v. Shepherd, 2 Strange, {(>) Salixbur;/ v. Great Xorthern 1004 ; sec post, p. 495. Pi/., 5 C. B. N. S. 208; Kenyon, (m) atevens v. Whistler, 11 East, C. J., Pavi.^on v. Gill, 1 East, 69. 61. (e) See Highway Act, 1878, 41 & 42 Vict. c. 77, .«. 13, post, p. 524. 492 USES AND rUOFlTS IX LAN J) 0I-' ANOTllKR. Tublic Health I'ublic Health Act, 1875, 38 & 39 Yict. c. 66, s. 149, "All streets, being highways repairable by the inhabitants at large, A\ithin any lu-ban district shall vest in and be under the control of the m-ban 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 purpos(^s of the Act(c/). The i^ropertj^ thus vested includes the herbage gro"s\dng upon the sides of the highway, so as to entitle the Metropolis local authority to let it for pastm-e {(>). — The Metropolis ^anagement -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 sm-face as is necessary for the highway, does not entitle the local authority to remove telegraph A\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 reveiis to the former owner {[/). Compensation Acts of Parliament which give statutory powers to take for highway i.i o it tt -,•-,-, . taken. highways lor pubhc pui-poses 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 Avith them as for the purchase of land (//). But for tunnelling under a highway they must proceed to pur- chase the land, or to give compensation in the usual way (/). >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 {fl) Burr/CSS v. Northwick Board, {g) lioUsx. St. George, Southicark, L. R. 6 Q. B. D. 2(34 ; 50 L. J. L. K. 14 C. D. 785 ; 49 L J. C C. P. 219. 091. (e) Coverdale v. Charlton, L. R. 4 {//) Touch v. East London By., L. Q. B. D. 104 ; 47 L. J. Q. B. 446. E. 16 Eq. 108 ; 42 L. J. C. 477. (/) Wondsuorth v. United Tel. {i) Banudcn v. Manchester By., I Co., L. R. 13 Q. B. D. 904 ; 53 L. Ex. 723. J. Q. B. 449. CHAP. IV, HIGHWAYS. 493 owner of tlio Koil, except lor damage thereLy done to his proi^erty below the surface (J). In pleading a public highway it is not necessary to state Limits of any tcDiiini, because, as it is said, "a highway leads over tenakd?' the wlu)l»3 kingdom from sea to sea"; differing in tliis respect from a privaio way, in pleading which it is neces- sary to state botli tlio f('i->/iiii/(s a quo and the termimiH ad queni with certainty (/•). " 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 w^ay, prima facie and unless there be emlence 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 presumably dedicated as highway, unless the nature of the ground or other circumstances rebut that presumption." But where a road runs over open ground and tliore are no fences, there is nothing to raise the presumption that any part of the open ground beyond the road actually used has been dedicated as highway (w). — AVliere a highway had been set out under an Inclosure Act of tlie 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. Sitiiderlanil Gas {I) Per cur. Queen v. United Kin ff- Co., L. R. 2 Ex. D. 429 ; 46 L. J. doin Telegraph Co., 2 B. k S. 647 ; Ex. 610 ; Normanton Gas Co. v. 31 L. J. M. 166. And see Harris Tope, b-2 L. J. Q. B. 629. v. Mobbs, L. R. 3 Ex. D. 268 ; (k) HaLsci/'s Cat.e, Latch. 183 ; IHlkins v. Dai/, L. R. 12 Q. B. D. 3 Salk. 183; Jiotise v. Bardin, I 110. H. Bl. 352 ; Taunton, J., Simpson («i) Bhickburn, J., Easton v. V. Leuthivaite, 3 B. & Ad. 233 ; Richmond Ilighuai/ Board, L. R. 7 ante, p. 208. Q. B. 75 ; 41 L. J. M. 25. Dcviatiou from hi^h- 494 USES AND PROFITS IN LAND OF ANOTHER. rights could not he lost or abandoned over any part of the highway (^0 . So, where ditches were cut through the strips of grass land at the sides of the made road, being parts of the highway, to the obstruction of persons walk- ing and riding, they were held to be a public nuisance ; which coidd not be justified unless necessarily made for the draining of the road (o) . — Encroachments by making any building or fence upon the sides of a highway within fifteen feet of the centre are subject to a special penalty rmder the Highway Act {p). At common law if a highway through uninclosed land ■way. ° was impassable for want of repau', the limits of the way being indefinite, the public might pass on the adjacent groimd (q) . But if a highway was originally dedicated within defined limits, there was no right of deviation extra riam (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 sufiicient 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 inclosm-e continues (s). But where an ancient highway over open common fields was set out of a certain width by the commissioners imder 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 inclosures (t). — 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 («) T'urner V. Itiufjwood JTifjhraij {>■) T/ie Ki}/(/y. Fkchioiv, iTiuvY. T.oard, L. R. 9 Eq. 418 ; The King 4G1; Arnold v. JToIhrook, L. R. 8 V. Wrif/ht, 3 B. & Ad. G81. Q. B. 06 ; 42 L. J. Q. B. 80. (o) Nicol V. Bcamnont, 53 L. J. C. (■•>) Ihincomhc's Case, Cro. Car, 853. 3G6; The King y. Stoughton,2Wms. {p) See Eastonv. Sichmond High- Saund. 160; Abbott, C. J., Steel wag Board, supra; post, p. 547. v. J'ric/cett, 2 Stark. 468. iq) Absor V. French, 2 Show. 28; (i) The King y.Flecknow, 1 Burr. Mansfield, C. J., Taylor v. White- 461. hcud, 2 Dougl. 748. ! CHAP. IV. HUJIIWAYS. 495 deviation establish an}' permanent dedication of the now way, because it is referred to the obstruction for its origin and continuance (n). The public are entitled to use a highway for passing Public use of and repassing, on foot, or with liorses, carts, and cattle, "o'^"^' 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 cases by summary proceedings for penalties. It may also be a trespass against the owner of the soil (c). There is no right at common law in the public to occupy Public any part of a highway for the purpose of holding public ^^^ '°°'''* meetings (ir). Collecting a crowd and addressing tliem, whereby part of a highway was obstnictcd, though the passage by another part was left open, was held to be an offence ^^dthin the Highway Act, 1835, 5 & 6 Will. IV. c. 50, s. 72, which imposes a penalty upon any person " who shall in any way wilfully obstruct the free passage of any higliway " (.r). 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, 1 866, 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 {//). 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 Regulation Act, 1872, In) Absorv. French, 2 Show. 28 ; Graham, 4 Times, L. R. 212; Ex The Xing v. Warde, Cro. Car. 266 ; parte Leich, L. R. 21 Q. B. D. 191 ; Dawes v. Haickiiix, 8 C. B. N. S. 57 L. J. M. 108. 848; 29 L. J. C. P. 343. As to (x) Homer v. Cadman, 55 L. J. deviation from a private way, see M. 110; Back v. Holmes, bl L. J. ante, p. 209. M. 37. iv) See ante, p. 491 ; post, p. 542. (y) Be Morgan v. Metrop. Board, [w) See Charles, J., The Queen v. L. R.5Q. B.D. 155 ; 49 L. J.M.51. 496 USES AND PROFITS IN LAND OF ANOTHER. Excessive and extraordinary traffic. Locomotives. Tramways. Telegraph posts. 35 & 36 Yict. c. 15, wliicli applies to royal parks imcler 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 carrying 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 (/>). By the High- way Act of 1878, 41 & 42 Yict. c. 77, s. 23, special pro\a- 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 weight or traffic has been conducted (c) . — The use of the highway for the modern traffic of locomotive engines is 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 ((/).— 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 (y) Bailey v. JFilHamson, L. R. 8 Q.B. D. 118; 42 L. J. M. 49. [z) See Truman v. London and Brifihlonltij., L. R. 11 Ap. Ca. 45 ; 65 L. J. C. 354. [a) Wallington v. Hoskim, L. R. 6 Q. B. D. 206; 50 L. J. M. 19. {b) 3 Salk. 183, Egcrh/s Case. \c) Wallinyton v. Iloskins, supra ; Aveland v. Lucas, L. R. 5 C. P. D. 211 ; 49 L. J. C. P. 643; Pool Board v. Gunning, 51 L. J. M. 49. [d) See The Queen v. Kitchener, L. R. 2 C. C. R. 88 ; 43 L. J. M. '.) ; J'arkijnsv. Brcist, L. R. 7 Q. B. D. 313; 50 L. J. M. C. 148. (c) The Queen v. Train, 2 B. & S. 640; 31 L. J. M. 169; see Brad- burn V. Morris, L. R. 3 C. D. 819. CHAl'. IV. HIGIIWAVS. 497 to iiLico mul iiiaiiitaiii telegraph posts upon any public road with tlio consent of the road autliority (/). — Tele- graph posts placed upon a highway without statutory authority, though not placed upon the made road or foot- l^atli and though lea^'ing sufficient space for public traffic, were held to be an indictable nuisance ; for the public are entitled to tlie whole space of the highway and to every part of it (fj). 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 siu'face and space above as is necessary for tlio public traffic (//). " Where there is a public highway, tlio owners of land Special use that comes up to it have a right to go on it, for tlie pur- ow-ner. pose of using it, at any spot from their own land ; he who has dedicatetl the land to all the public has no right to complain that those particular persons have come on it at that sj^ot more than any other" (/). The owner of land Access. 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 public company acting with statutory powers he may claim com- pensation for his land being injuriously affected by the obstruction of access (,/). A public way differs in this respect fi'oni a private way, w^hich can be used only for the service of the dominant tenement, and between the pre- scribed tei-mini (Ic). — The owner of land adjoining a high- way, being therefore presumptively o-^-ner also of the soil of the highway subject to the rights of the public, was hold entitled to cross the footpath of the highway from (/) Telegraph Acts, 1863 (26 & (i) Blackbuni, J., Marshall v. 27 Vict. 0. 112); 1868 (31 & 32 Vlleswater Xav., L. II. 7 Q. B. Vict. 0. 110). 166; 41 L. J. Q. B. 45; Cairns, {g) Qiii'cn v.. Vniled Kitigdom Te- L. C, Lyon v. Fishmongers' Co., hgraph Co., 2 B. & S. 647; 31 L. L. K. 1 Ap. Ca. 676; 46 L. J. C. J. M. 166. 68. (/() Wandsuorth v. United Tele- {j) Caledonian Jli/. v. Walker's graph Co., L. R. 13 Q. B. D. 904 ; Trn^^tees, L. R. 7 Ap. Ca. 259. 63 L. J. Q. B. 449. (/.) .Inle, p. 208. L. K K 498 rSES A^D PKOFITS IN LAND OF ANOTHER. tlie carriage way into liis premises witli caiTiages for tlie conveyance of persons and goods, altliougli lie unavoidably damaged the pavement in so doing ; for that " the appro- j)riation, 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 sui"face, 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 thorouglifare to such highway (w). 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). Use of high- The owner of a tenement adjoining a highway is also service of entitled to make a reasonable use of the highway for the adjoining special scrvice of his tenement ; as for receiving coals into premises. ■■■ , „ . a cellar tln-ough a coal-hole in the pavement ; for loading and unloading goods from carriages, and for other like {l) St. Blartj, Neivingt(jn v. Jacobs, («) Woodijer v. Iludden, 5 Taunt. L. R. 7 Q. B. 47 ; 41 L. J. M. 72. 125. See Scllors v. 3fatlock Board, L. R. (o) Breicer v. Broum, L. R. 28 14 Q. B. D. 935. C. D. 309 ; 54 L. J. C. 605 ; Light- {m) BurgcHS v. Northwich Local hound v. Bch'inglon, L. R. 14 Q. B, Board, L. R. 6 Q. B. D. 264 ; 50 D. 849 ; 54 L. J. M. C. 130. L. J. C. P. 219. CUM'. 1\. II Kill WAYS. 499 tenqioraiy uL.structions ; but .suLjuct to Ir-gal rcsponsiljility for an excess or abuse in the exercise of such riglit (/:»). Accordinglj, for the tenant of premises on tlie highway to keep horses and carts standing an unreasonable time upon tlie higliway for the convenience of his private business is an indictable nuisance ; and if it causes damage to a neighbom", it is matter for an action or for injunction (q) ; but it is not such a permanent nuisance as entitles a rever- sioner of the adjacent land to sue (;■). — " 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 imreasonable time, the jiarty may be indicted for a nuisance " («). 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 {f). A custom of the City of London for any person, having occasion to erect or pull do\^^l any building, to erect a hoarding to enclose part of the highway, Avith the licence of the Lord Maj'or, was held a reasonable and valid custom (ii). — The occupier of premises adjoining a highway is not entitled to use the sides of the highway for cutting wood (r), 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 {ir). 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 pubhc vehicles standing upon the highway waiting for (■p) Fer cur. The Qntcn v. Loiigton 404 ; Frilz v. JMsoii, L. R. 14 C. Gas Co., 29 L. J. M. 118. D. 542 ; 49 L. J. C. 321. {q) The King V. ItunscU, 6 East, {k) Bradbce v. Chtisfs Jlospilal, 427 ; Boiiamiii v. Storr, L. R. 9 C. 4 M. & G. 714. P. 400 ; 43 L. J. C. P. 162. (r) The King v. Jones, 3 Camp. {)■) Moll V. Shoo/hred, L. R. 20 230. Eq. 22 ; 44 L. J. C. 380. (ir) FouUr v. Sanders, Cro. Jiic. (i) Ellenborough,.C.J., TheKbig 446. V. /o/^'S 3 Camp. 231. (.r) Wilkins v. Bag, L. R. 12 [t) Hush V. SUhiman, 1 B. Sc P. Q. B. D. 110. Iv K ') 500 ISES AND PROFITS IN LAND OF ANOTHER. passengers an unreasonable time (/y) ; and the keeping "by an innkeeper of the carriages of liis guests upon the highway (z). — The occupier of a house cannot enter upon and open the soil of the adjoining highway for the pui^pose 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 (h). Use of pnUic Upon the same principle a riparian owner upon a public riln'ower" 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 unloading of goods, subject to the public rights of navigation and the like rights of his neighbours ; and for this pui'pose 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 (c) . So, a dock o-uTier is entitled to access for vessels from a public river through his dock gates at all reasonable times ; but he has no right to jjlace a permanent obstruction opposite his dock gates for the piu'pose of preventing other vessels mooring there (/). (y) The Kiiiff V. Cross, 3 Camp. L. R. 7Q. B. IGG; 41 L. J. Q. B. 41 ; 224. Jlell V. Quebec, L. R. 5 Ap. Ca. 84 ; (z) Gerring v. Barfeld, 16 C. B. see Alt. -Gen. Straits Settlement v. K S. 597. Wenujss, L. E,. 13 Ap. Ca. 192 ; 57 («) The Queen V. LongtonGas Co., L. J. P. C. 62; and see ante, p. 29 L. J. M. 118 ; Goodson v. Rich- lo6. ardson, L. R. 9 Ch. 221 ; 43 L. J. id) Lyon v. Fishmongers' Co., L. C. 790 ; ante, p. 491. R. 1 Ap. Ca. 662 ; 46 L. J. C. 68. (b) Per cur. The Queen v. Longton {c) Original Hartlepool Coll. v. Gas Co., supra. Gibb, L. R. 5 G. D. 713 ; 46 L. J. (e) liose\. Groves, 5 M. & G. 613 ; C. 311. Alt. -Gen. v. Thames Conserv., 1 H. (/) Original Hartlepool Coll. v. &M. 1; Marshall \. Ullesivatcr Nav., Gibb, supra. cuvr. n. HK.iiwAvs. 501 There is no oLlif^atioii iqion tlio oavikt of adjoiiiiiij? land Fencing? land, to fence against the highway ; he presumptively does so ^i/,hwa}\ only for his own protection and convenience. If cattle being driven along the highway lawful!}' 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 OAvner of the cattle is excused the trespass ; but he is bound to remove the cattle as soon as it is reasonably possible to do so under the cir- cumstances {{/). If cattle being on the highway without lawful excuse, that is, for any other purpose than a lawful use of the higlnvay for jiassage to and fro, stray on to the adjoining land, thougli tlu-ough a defect of the fence, the trespass is not excused. " The question whether the owTier of the cattle is a trespasser or not, by his cattle, depends ujton the fact whether he w^as passing and repassing and using the road as a highway, or whether his cattle were in the road as trespassers" (//). The same rule applies whether the highway is through open unfenced 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 (/). — A person suffering his cattle to stray off his own land on to the highway tlu-ough defect of his fence or otherwdse, is liable to compensate for all damage caused by his cattle being unlawfully upon the highway ; nor can he recover for any injury they may meet with as trespassers. But railway companies are bound by statute to fence theii' lines against cattle of the adjoining owTiers, and therefore cattle straying upon the (a) Dovaston v. Pai/iie, 2 II. Bl. (A) Bovaston v. Paiiuf, supra. S^T ■ 2 Smith, L. C. : Gooihcm v. (.) TiUctt v. Ward, L. R. 10 Q. Chcveh't/, 4 H. & N. 631 ; 28 L. J. B. D. 17 ; 62 L. J. Q. B. 61. Ex. 298. 502 USES AND rUOFlTS IN LAND OF ANOTHER. Fencing nuisance adjoining highwaj. line tlirougli defect of fences are not considered to be wrongfully upon tlie line as against tlie company and tlieir servants (,/). And in tlie case of level crossings of rail- ways, the statutory obligation to keep the gates closed is absolute against all 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 (/i). The owTier 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 under no obligation to fence excavations or dangers upon his own land as against strangers ; though ho may become liable for negligence in respect of the state of his premises towards persons coming- there by leave, or on business (/). (j) Child V. Seam, L. R. 9 Ex. 176 ; 43 L. J. Ex. 100 ; Sharrodv. Zondo7i ^- JV. W. liy., 4 Ex. 580; 20 L. J. Ex. 185 ; ante, p. 260. {k) Fawcett v. York ^- Midland Hi/., 16 Q. B. 610 ; 20 L. J. Q. B. 222 ; see Charman v. SotUh I'Mstcrn Jii/., W. N., 1888, p. 182; ante, p. 202. (/) Cotipland V. Hardinr/Jiam, 3 Camp. 398 ; Jiarnes v. Ward, 9 C. B. 392 ; Iladley v. Tuijlor, L. R. 1 C. P. 53 ; Honnsell v. Smyth, 7 C. B. N. S. 731 ; see Corloy v. Rill, 4 C. B. N. S. 556 ; Indermaur v. Dames, L. R. 2 C. P. 311 ; 36 L. J. C. P. 181; White v. France, L. R. 2 C. P. D. 308 ; 46 L. J. C. P. 823. CHAP. IV. IIIGHWAYS. 603 § 2. Origin and Extinction of Highways. Origin of high ways — liighways by statute. Dedication of highway — dedication by act of owner — dedication pre- sumed from public use — presumption rebutted. Dsdication by owner in fee— by reversioner — presumption of title to dedicate — dedication by corporate body. Acceptance of dedication by public— adoption b}' pari.sh. Dedication for limited time— to lunited public— for limited use. Dedication subject to obstructions — gates — ploughing — markets and fairs — pubUc 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— destruction of way. Highwaj's may be referred to two origins : tlie legisla- origin of tive authority of an Act of rarliamont ; and dedication by highways, the owner of the kind. A highway may be established by immemorial prescription at common laAV ; but by reason of the doctrine, noticed hereafter, tliat public use is evidence of dedication, " it is never practically necessary to rely on prescription" (r/). — 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 ^\dtliout stating any termini or limits (b). Tm-npike Acts and railway Acts are familiar instances Highways by of statutes creating public ways. Powers of setting out statute. liighways are also given in inclosure Acts, in order to adapt the public ways to the altered conditions of the inclo- sm-es (c). — It is not necessarj^ that a statute in creating a (rt) L. Blnckbuni, Mv/(/«w^ V. I-'Uzpalrick, Vict, c. 118), s. 34. L. R. 38 C. D. 410, post, p. 505. 504 VSES AM) I'KOFITS l>f LAMJ OF AXUTUKR. liiglnvay slioiild in express terms declare the way to "be a iniblie liigli-wa}- ; it is sufficient if it gives a puljlic riglit to nse the way for tlie purpose of passage ; the right of public nse makes it a highway, and all the legal incidents of a highway follow [d). And the intrinsic force of the statute is sufficient alone to make a public highway according to its terms, without any condition of acceptance by the public ; which is necessary to estabhsh a highway by dedication (r') . — 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 p)assed 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 Avith 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 Inclosm-e Clauses Consohdation Act, 41 Geo. III. c. 109, ss. 8, 9, wdiich provide for the setting out of roads and the j)utting 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 (jj) . 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 j)roved by some act of the owner of the land, or by public use from which such act can be presumed. No formahty or conveyance is required by law for the dedication by the owner of the land ; it is sufficient that it is evidenced by some unequivocal act, or (d) Campbell, C. J., T/ie Queen v. Lorchmcre, 15 Q. B. G96. (e) The King v. Lyon, 5 D. & R. 497 ; see Cuhilt v. Maxne, L. R. 8 C. P. 704 ; 42 L. J. C. P. 278, pout, p. 508. (/) The King v. Cumherworth, 3 B. & Ad. 108; The King v. Kdye Lnnc, 4 A. & E. 723 ; Tlie Queen v. French, L. R. 4 Q. B. D. 607 ; 48 L. J. M. 175. (ry) Cuhitt V. Maxse, L. R. 8 C. P. 704 ; 42 L. J. C. P. 278. fllAl'. IV. HIGHWAYS. OOO agreement, or declaration of intention. ]5ut if a party to an action in which a highway is in Cj[uestion reKes on any specific acts of dedication or specific dechirations of inten- tion to dedicate, wlietlier alone or jointly with evidence of public use, he may ho required to give particidars of the natm-e and dates of the said acts or declarations, and the names of the persons hy whom the same were done or made (/i). — "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 fi'om passing thi"ough it by positive prohibition, he shall be pre- sumed to have dedicated it to the public " («). So if the o^vner of tlie soil closes an ancient way and opens a new one, it is presumptively a dedication of the new wa}' ; though the public b}' using it are not precluded from claiming the original way, unless it has been legally stopped (,/ ) . An agreement by the OAATier 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 accej)ted 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 " (/)• Tlie fact of the public use of a way is presumjttive Dedication e\idenee of a dedication to the pubKc by the owner of the }i!o^ni"!'ui|ii,. soil ; and it lies on the party disputing the dedication to ^i'^'^- sliow a superior title, or to explain the public use in a manner to rebut the presumptive effect (/;i). The public (h) Spald'uig v. Fitzpatiick, L. R. 302 ; Barraclough v. Johnson, 8 A. & 38 C. D. 410. E. 99 ; llealai v. Jiatic,/, L. R. 19 (i) L. Elleuborough, C. J., The Eq. 375; 44 L. J. C. G42; see ^«.- Kinff V. Lloyd, 1 Camp. 262. Gai. v. lliphosphate Co., L. R. 11 {j) See Ihiuesv. Hawkins, 8 C. B. C. D. 341 ; 49 L. J. C. 68. N. S. 848; 29 L. J. C. P. 343; (/) Chambre, J., Ifoodyer v. Allnidt V. I'ott, 1 B. & Ad. 302. Huddai, b Taunt. 137. (/•) Allnutt V. Pott, 1 v.. & Ad. (w) Janis v. Dc). A prescriptive right to toll may be attended with a pre- Distress for scriptive right to seize goods subject to toll upon the high- way, as a distress to recover the toll (q) . The General Turnpike Act, 3 Geo. IV. c. 126, s. 3'J, gives power to seize and distrain any horse, cattle, caniage, or other thing upon whieh toll is imposed, or any of the goods or chattels (/) Ttlham v. PickcrsgUl, 1 T. R. 2S9. See Lockwood v. Wvod, 6 Q. 660 ; Mickards v. Beiiucit, 1 B. & C. B. 61. 223. (o) 3 Geo. 4, c. 126, ss. 26—32. («») Cocksidgcx. Farnhau; Dougl. \p) 3 Geo. 4, c. 126, s. 32; 4 & 119 ; Lord Blackburn, Goodman v. 5 Vict. c. 33 ; Lusscij v. Storey, 4 B. Saltds/i, L. R. 7 Ap. Ca. 657 ; see & Ad. 109. Mlddlcton v.Lambcit, 1 A. & E. 401. {q) Smith v. Shepherd, Cro. Eliz. [n) JPaijiie y. Partridf/e, 1 Shower, 710. 231 ; S. C. rain v. I'atrick. 3 Mod. I. 1.2 516 L'SES AND niOFITS IX LAND OF ANOTHER. of tbe person refusing' to pay the toll ; with power to sell the things so seized and distrained. Tolls may also be recoYored as a debt, by action (>'). Eatiug of Tolls in general are not rateable, nnless taken as profits of the occupation of land. " Under tlio Statute of Elizabeth (43 Eliz. e. 2, for the relief of the poor) the owner of tolls 2)er se is not rateable. Tolls to be rateable must be con- nected with the occupation of land, so as to be considered as increasing the value of the land"(.S'). — 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 occuj)a- tion of the bridge, and rejDairs done by the owner of the toll w^ere held to be referable to his ownership of the bridge, and not merely to an obligation in consideration of the toll (/). Toll thorough, which is taken in respect merely of repair of the road or otlier beneficial service, imports no occupation of the land, and is not rateable [u). So, the toll of a ferry is not, in general, rateable (f). The tolls of turnpike roads were expressly exempted from rating to any pidjlic^ uv parochial rate by the General Tm^npike Act, a Geo. IV. c. 120, s. 51. Extinction of "It is an estabhslicd maxim, once a highway always a highway ; for the j^ublic 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 (/r). Stopping and The mode of legally stojjping or diverting a highway at (r) Sca-ard \. Baker, IT.'R. G\&. (r) The King v. Nicholson, 12 («) Coleridge, J., Leivin v. Swan- East, 330 ; The Queen v. North &; S. sea, 5 E. & B. 508 ; 25 L. J. M. 37; jShiehl.s IVrrt/, 1 E. & B. 140 ; 22 •see ante, p. 487. L. J. M. 9. {t) The Queen v. Salisbmy, 8 A. & {w) Byles, J., Daivea v. llmvldnx, E. 716. 8 C. B. N. S. 858 ; 29 L. J. C. P. (m) The King v. Eyre, 12 East, 343; Vooght\. Winch, 2B. & Aid. 416 ; 'The King v. Jlarnes, 1 B. & 662 ; Turner v. Itingtiood Board, Ad. 113. L. E. 9 Eq. 418, untc, p. 494. CIIAI*. I\'. IIK.IIWAV: 517 common law -was hy llio -writ of ad quod (hnniiuw, which diverting was an originul wiit issuing out of and returnable into commoYlaw. Chancery, directing the sheriff to inquire hy a jury whether the proposed stoi^page or diversion would be detrimental to the jjublic. 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 (.r). A new Avay opened in place of a way stopped under a writ of nd quod damnum became forthwith a public highway (y). Proceedings imder this writ have long since fallen into disuse, being superseded by the more efficient procediu'C by statute. A highway may now be diverted and turned, or it may By statutes, be entu-ely 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 imder the General Highway Act (::). — Also by the Highways Act, 1878, 41 & 42 Vict. c. 77, s. 24, a highway authority may apply to the Comi of summary jiu-isdietion 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 Com't make such order, " the expenses of repairing siich highway shall cease to be defrayed out of any public rate"(r/). — By the General Inclosure Act, 1845, 8 & 9 Yict. 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 tlirough any old inclosiu'cs in the parish in [x) The Kh)g v. Warde, Cro. Car. Tracts, p. 10. Stc ante, p. 50o. 266; Ex parte Veniior, 3 Atk. 706; {:) 5 & G Will. 4, c. 50, ss. 84 Tenterden, C. J., T/ie Kbig v. —91. Eiissell, 6 B. & C. 599. {n) See the Highway Act, 1864, (y) Hale de J. Maris, Ilargr. 27 & 28 Vict. c. 101, s. 21. 518 VSES AND PROFITS IN LAND OF ANOTHER. wliicli tlie land to be inclosed shall be situate "(A). An In closure. 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 joractically 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 {d). Destruction 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 liabihty to repau- 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 (/). {h) See JTornbi/ V. Silvester, Jj.H. Doivnshire, 4 A. & E. 698; Givijn 20 Q. B. D. 797. v. Ilardwlclce, mpra. (c) Gicyn v. Hardw'uke, 1 11. k {e) The Queen v. Bamber, 5 Q. B. N. 49 ; 25 L. J. M. 97, ante, 279 ; T/ic Queen v. Hornsea, 23 p. 486. L. J. M. .59. {(l) Baileij Y. Jamieson, L. R. 1 (/) The Queens. Greenhow,\j.'R. C. P. D. 329 ; see The Kimj v. 1 Q. B. D. 703 ; 45 L. J. M. 141. f;HAP. IV. TIIfJIIWAYS, 510 § 3. Maintenance and kepair of Highways. Liability of parish to repair at common law— liability of township or district by custom. Repair of new highways— turnpike roads^privato 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. Repair 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 inclosure — discharge of liability by tenure or otherwise. Repair 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 liighways is stated Liability of as follows : — "■ Tlic parish is at common law hound to re- ?"". *° pail' all puhlic liig'h"\\"ajs within it ; this heing 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 realm " [a). — "A township or other known portion Liability of of a parish may by usage and custom be chargeable to the distriST/"^ repaii' of the highways -witliin it"; "to the exemption of t^^stom. the rest of the parish {b). And the district of a j^ai'ish (a) Parke, .T., ThcKinff v. Leake, {/>) The King v. EechsfiM, 1 B. & 5 15. &Ad. ISJ ; per eur. Jiu^sei/ v. Aid. ^o'J ; 'J'/ie Kiiuj v. liatjldd 4 Storeij, 4 B. & Ad. 109. B. & Aid. 75 : The Queen v. Heane, 2 Q. B. 1-28; 520 LSES AKD PROFITS IN LAM) 01>" ANOTHKll. thus exclusively bound by custom to rei)air its own liigli- Avays, in consideration of sucli liability, is presumptively exemi")t from the general liability of the parish to repair all other highways (c). A claim to such exemption woidd be imreasonable and ^oid, unless suj)ported by the con- sideration of repairing the roads witliin the district ; so tliat if in fact tlioro are no roads witliin the district, the claim cannot be maintained (r/). Accordingly, a parish may be divided into several districts, the inliabitants of each of which may be bound by custom to repair its own higliways as if it were a separate parish, witli exemption from the repair of the highAvays 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 liabi- lity or exemption of a part of a parish is by special custom, which must be alleged and jiroved by the party asserting it (,/). Extra parochial districts maybe chargeable with repair by custom ; but it seems tliat they cannot be charged at common law (g). — There cannot bo a custom for the inhabitants of a parish or district to repair tlie highwaj's in another parish or district, for customs are essentially 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 from the («) Freeman v. Itead, 4 B. k S. 2.5;3 ; 47 L. J. M. fj.j. 174; '■',■1 L. J. M. 226; The Queen { /') I'er eur. The Kinrj \. Shepleid, V. lluUett, L. R. 10 Q. B. 469 ; 44 2 T. R. Ill ; The Kinq v. Tnuhr- L. J. M. 190. ryn, 2 T. li. h\Z ; The King \. Ilal- {d) The Queen v. Itolhtt, supra; field, 4 B. & Aid. 75. Lush, J., dissentiente, holding that (ff) The King v. Kingsmoor, 2 B. the contingent liability to repair & C. 193. new roads would be a sufficient (A) The King v. St. Giles, C'am- conBideration . Iridge, 5 M. & S. 2G0 ; The King v. [e] The King v. Bridekirlc, 11 JIae/ignlfeth, 2 B. &C. 1G6; JDeiicson E!i.st, .304; The King v. Kings' v. li'illonghbg, b B. & S. 920 ; 34 JS'ewlon, 1 B. & Ad. 820; The Queen L. J. M. 37 ; The Queen v. Ardslei/, V. liarnoldswick, 4 Q. B. 499 ; The L. R. 3 Q. B. D. 255 ; 47 L. J. M. Queen v. Ardshg, L. R. 3 Q. B. D. G5. ( IlAI'. 1\'. IIK.IIW \VS. 521 common law liability to do so ; nor can it eliarge the other parties witli the puhlic lialiility (/). At common hiw the; lialjility of the parish to repair ex- Repair of i tended to all new highways within it, whether created by l^'ol^ways- 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 " (J). Thus, where a way origin- ally set out as a private way under an Inclosure Act, to be used and repaired by particular persons onl}', afterwards became a public way by user, it was held that the jjarish thereupon became liable for the repair (/.) . AMiere a public foot-way had been constructed outside the parapet of an ancient bridge, which was repairable by the tenants of certain land, ratione touinc, it was held that the public were liable to repair the foot-way (/). And where a public foot- way is acquu-ed over a private carnage way, or where a piiblic foot-way is enlarged into a private carriage way, the liability of the jiavish to repair is limited to the foot-way, and they are chargeable only pro ir/fd (/;/). — Upon this principle the turnpike roads created hy statute Tumpikc become repairable by the inhabitants of the parish or dis- ^'^^ '"*■ trict ; and tlio imposition of tolls in aid of rejiair imports no exemption from hability, in the event of the tolls ju-ov- ing inadequate, or the tmnipike trustees neglecting their duty to repair {ii). Turnpike tnists and tolls have for the (0 The Qiifdi V. AsJibtj Fvh-il/e, The Kitif/ v. St. liemdkt, 4 B. & L. R. 1 Q. B. 213 ; 3.5 L. J. M. Aid. 447; see ante, p. 506. 154; 77ie A'i/)(7 V. Ziirr/joo/, 3 East, (/) See The lutig v. Middhscx, 86 ; see The King v. iSV. George, 3 3 B. & Ad. 201. Camp. 222. (w) King v. West It id in g, 2 East, (./) The King v. Netherthong, 2 B. 353 (a). & Aid. 179; The King v. Sheffield, (w) The King v. Nttherthong, 2 2 T. R. 106; TheQuunv. BarnoUh- B. i: Aid. 179 ; lUissey v. Storey, 4 uiek, 4 Q. B. 499. B. & Ad. 98 ; The Queen v. Lords- (k) The Queen v. Bradfield, L. R. mere, 15 Q. B. C89 ; The Queen v. 9 Q. B. 552 ; 43 L. J. M. 155 ; sec Freueh, L. R. 3 Q. B. D. 187. 522 USES AND PROFITS IN LAND OF ANOTHER. Private ways made public by order of justices. most part been abolislied, leaving the liability for the repair of the roads wpon the parishes and districts in which they are situated {ii). By the Highway Act, 1862, 25 & 2G Vict. c. 61, s. 36, " Where the inhabitants of any parish are desirous of undertaking the repair and maintenance of an}" diift-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 vestry assembled, and with consent of the owner, a])ply to Justices in Petty Sessions ; and upon sucli application it shall be lawfid for the Justices to declare the same to be a public carriage road to be repaired at the expense of the public." Conditions of The liability to repair a newly dedicated highway at- pai'ish under taclicd to the parish at common law without any formality HijjhwayAct. or condition, beyond the acceptance of the dedication by the public at large (o). But by the Highway Act, 183-5, 5 & 6 Will. IV. 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 politic or corporate, shall be deemed or taken to be a high- way Avhich the inhabitants of any parish shall be compel- lable or liable to repair, imloss the person proposing to dedicate such liighway to the use of the public shall give three calendar months' notice in writing to the surveyor of the parish of his intention to dedicate such highway to the use of the public, and shall have made the same in a sub- stantial manner, and to the satisfaction of the said smweyor and of two justices of the peace of the division in which such highway is situate, wlio are hereby required to view the same, and to certify that such liighway has been made in a substantial manner, which certificate shall be em-oUed at the Quarter Sessions ; then and in sucli case after the Certificate of jiLstices. (n) See the Turnpike Acts, 1870, 1874 ; 33 & 34 Vict. c. 73, s. 10 ; 37 & 38 Vict. c. 0.5, s. 10; High- way Act, 1878, 41 & 42 Vict. c. 77, 8. 13, jM.sl, p. 524. (o) Ante, p. 508. CIIA1>. IV. IIKillWAYS. 523 said highway shall have been used hy tlu- jmLllc, and duly • kept in repair by the said person for the space of twelve calendar months, snch highway shall for ever thereafter bo kept in ropair ])y tlio parisli in wliicli it is situate : provided nevertheless that on receipt of such notice the sui-veyor of the said parish shall call a vestry meeting, and if such vestry shall deem such highway not to be of sufficient utility to tlic inhabitants of the said jmrish to justify its being kept in repair at tlie expense of the j^arish, a justice of the [tcacc 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 Hij^hwaysnofc acceptance, although, by reason of non-compliance with ^^f parish! the abo^e formalities, it may not be a highway wliicli the inhabitants of the parish are compellable to repair {q) . The person \\'ho dedicated the way would not become bound to repair it by reason of the dedication ; nor would he become so by reason of his hanng done merely voluntary repairs. A higln\'a}- may thus be newly created by dedi- cation, without obligation upon any person to repair it (r). So highways whicli have been declared by order of justices, Hieuses incurred by tlio highway authority in the maintenance of such road sliall bo paid to the highway authority by the county authority out of the county rate, on tlie certificate of the surveyor of the county authority to the effect that sucli main road lias boon main- tained to his satisfaction" (r). By tlio Local Government Act, 1888, 01 c^ 52 Vict. Transfer of ,, 11 /i\ ,iT-i 1 • , 1 • 1 • i> 1.1 main roads to c. 41, s. 11 (1), " 111 very road in a county Avhicli is tor the county time being a main road witliin the meaning of tlio High- council, way Act, 1878, iu(lusi\o of every bridge carrying such road if repairable by the highway autliority, shall, after the appointed day, (1st April, 1889, sec s. 109,) be wholly maintained and repaired by the comicil of the county in which the road is situate, and such coimcil 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 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 pmpose, 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 sliall be entitled to retain the same, and the council shall make to such authoiily an annual payment towards the cost of the maintenance and repair-." — (^3) The amount to be agreed on, or determined by arbitration. — (4) "The coimty council and any district council may from time to time contract (r) Highway Act, 1878, ss. 13 — 494 ; 53 L. J. M. 5 ; Lancaster v. 15. What are turnpike roads Xeuto)!, 56 L. J. M. 17. "What is within this euactiueut, see Wvst " inaiuteuauce " of the road within JtiditKj V. 'I'he Queen, L. R. 8 Ap. the Act, see Leek Coiintiiss. v. Utaf- Ca. 781 ; 53 L. J. M. 41 ; Lam-a- ford, L. \\. 20 Q. B. D. 794 ; '57 shxre V. llM-hdaU; L. R. 8 Ap. Ca. L. J. M. C. 102 ; poxt, p. 527. 526 rsEs Axi) profits in land of another. for the undertaking by the district council of the mainten- ance, rej^au", improvement and enlargement of any main road ; and, if the county council so require, the district council shall undertake the same, and such undertaking shall be in consideration of such annual payment by the county council as may from time to time be agreed upon, 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 rejDort of their surveyor that the road has been properly maintained and repaired." — (6) "A main road and the materials thereof and all divains belonging thereto " shall, except as aforesaid, vest in the county council. Delcption to By s. 28 (2), power is given to the county council 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 resjiects a highway district, the highway board, or authority having the powers of a highway board." Improvement The parish at common law is not bound to put a high- ig ways. ^^^ .^^^ better condition than it has been time out of mind, but as it has been usually at the best (?r). Nor has it any liability or power to widen and enlarge a liighway that is insufficient, for it has no power to take the addi- tional land rec^uired (./•). Nor can an owner of land ad- {w) The Queen t. Cluicorth, 1 (.r) The Queen v. Stretforcl, 2 L. Salk. 359. Eaym. 11C9; 11 Mod. .56; The Kinq V. Dirun, 4 B. k C. G70. dlAl'. \y. IIK.HWAVS, 'J"J( joining a higliwaj, by extending the widtli of the r(jad, throw tlie burden of repairing the newly dedicated part Tijion tlie i)arish(//). — The obligation to repair does not extend to tlie restoration of a road, -which has been totally destroyed by being swept away by the sea(~). But the raising of a road, which hail sunk through subterraneous mining, to the former level, was held to be an ordinary repair within the duty of a sm'\'eyor of highways, reqmr- 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 (r/). 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, 1S78, s. 13, entitling the highway authority to payment of half the expense by the county authority {h). By the Highway Act, 1835, 5 & G AVill. IV. c. 50, Statutory s. 82, power is given to justices to order highways to be inipiovemcnt. 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. G7, the sm'veyor has power " to make, cleanse, and keep open all ditches, drains, and w^atercom'ses as ho shall deem necessary, in and through any lands or grounds adjoining or lying near to any highway," subject to compensation to the owner ((^. —By the Highway Act, 18G4, 27 & 28 Vict. c. 101, ss. 47, 48, power is given to highway boards to make improvements in the highways and to boiTOW money for the jmrpose. The imjirovements authorised are: "the con- version of any road that has not been stoned into a stoned road ; the -vN-idening of any road, the levelling roads, the making any new road, and the building or enlarging (y) Richards v. Kcsskk, bl L. J. [n) llurqess v. Xurlhwick, L. R. G M.C. 48. Q. B. D. "201 ; 50 L. J. Q. B. 219. (c) Tin- Queen v. Banibcr, 5 Q. B. {/>) Leek Coiiimiss. v. Slajf'onl , L. 279 ; The Qiuen v. Jlonisca, 23 L. R. 20 Q. B. D. 794 ; 57 L. J. M. C. J. M. 50 ; SCO T/tr Qiireii v. Green- 102; sec ante, p. 525. hou\ L. R. 1 Q. B. D. 703 ; 45 L. (<) See Cruft v. JUckmansicortfi, J. M. 141 ; see ante, p. 518. 67 L. J. C. 589. 528 USES AND PROI'^ITS IN LAND OF ANOTHER. bvidg-es ; the doing of any other work in respect of liigh- wajs beyond ordinary repairs essential to placing any existing liighway in a proper state of repair." Liability to repair by prescription. Liability by tenure of land. " A particnlar jxTson cannot he bound to repair by pre- serij)tion, sr/7., tliat ]w and all liis ancestors liavo repaired, if it be not in respect of the tenure of his land, taking of toll, or other profit ; for the act of the ancestor cannot charge the heir without jirofit." But a corporation, sole or aggregate, may be bound to repair by prescription only, sciL, that they and their predecessors time out of mind have repaired ; for a corporation may bind their successors, continuing the same corporation (c-) . A corporation may be bound to repair by the terms of their charter, by accept- ance of which they bound themselves, according to the terms, to do the repairs ; and the public may enforce the obligation {d). And the grant of a charter, with charge of repair, may be implied as the legal origin of a prescriptive liability. The tenure of land, to wliicli the biu-den or service of repairing a road is prescriptively annexed, is a sufficient consideration for charging the tenant with the repair; and he is technically described as liable to the repair ratione feniine{f). In such case tlie parish, which is charged witli repair at common law, or a part of the parish, charged by custom, may discharge itself by pleading and fjroving with certainty tliat another person is bound to repair ; and only in the event of his default tlie liability reverts to the parish (_/). The inliabitants of a parish or district cannot be charged with liability by reason of the tenure of land, because as inhabitants, unincorporated, tlioy cannot liold land ; tlieu- (c) 13 Co. 33, Case of Bridges ; 2 Co. Inst. 700 ; The King v. St. Giles, h M. & S. 2G0. (d) Lyme Rrrjis v. Ilmlcy, 3 B. & Ad. 77. {() The King v. Kcrrison, 1 M. & S. 43.5. (/) The King v. Ilatfield, 4 B. & Aid. 7o ; The Queen v. Kb/, 15 Q. B. 827 ; 19 L. J. M. 223 ; llolt, C. J., Anon., 1 L. Eaym. 725. CIlAl'. W. lIKillWAV: 529 liability is at conmion law or by custom {;/). — The obliga- tion to repair by reason of teniu'e runs witli the land, and ■witli every part of the laud, so that a tenant of any part is primarily liable to the ■wh(jlo eharge of the repair ; upon diseliargiug wliieh lie beeomes entitled to elaini contribu- tion from the (jther tenants. If the owner of the whole sell several parts, and agree witli the several purchasers to discharge them of the liability to repair, such agi'eement 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 (//). Liability to repaii- a highway may arise at common law Repair by from the inclosure of the adjacent land. Where the public l^closiire. from time immemorial have used to deviate from an open highway whenever it was out of repair and impassable, if the owner of tlie land incloses the adjoining land, he incurs tlie 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 repau- only so long as the inclosure is continued, and upon opening it to the higliway again, the liability ceases ; in this respect differing from a liability to repair mtione tcniirw which is permanently incident to the tenm-e of the land(0. The Highway Act, 1862, 25 & 20 Yict. c. 61, s. 46, now pro^'ides that " no person shall become liable for the repair of a highway liy erecting fences between such higliway and the adjoining land, if such fences are erected with the consent in writing of the Highway Board of the district, or of the smweyor or other authority having jiu'is- diction over the highway." The Highway Act, 1802, 25 .^ 20 Yict. c. 01, s. 34, Discharge (<7) T/ie King v. MachijuUeth, 2 Diwluss of Ihtcldii.jh, 1 Salk. 358. B. & C. 166. (•) The King \. Stuiightony'l'^ma. \h) 2 Co. inst. 700 ; The Qiurii v. Saimd. 100 ; antf, p. 528. I,. ^' ^' 530 rSES AM) PROFITS IX LAM) OF AXOTIIKR. liability by providos tliat " wlicro any highway, which any body otherwise. Corporate or jierson is liable to repair by reason of tenirre of any land or otherwise howsoever, shall be ad- judged in' the manner provided by the Act to be out of repau', the Highway Board of the district may direct their surveyor to repair the same ; and the expenses shall be paid by the party liable to repair" (//). — And by sect. 35, any person or corporation, liable to repair any highway by reason of tenure of land, or other- wise, may aj^ply to justices in petty sessions, who, after examining the matter, " shall, if they think fit, make an order that such highway shall thereafter be a highway to be repaired and maintained by the parish, and shall in such order fix a certain sum to be paid by such person or coi-poration to the highway board in full discharge of all claims thereafter in respect of the repair and maintenance of such highway." By the Highway Act, 1864, 27 & 28 Yict. 0. 101, s. 24, the Highway Board may apply under the above section for the same purpose. — The Local Government Act, 1888, s. 97, expressly provides that " nothing in this Act with respect to main roads shall alter the liability of any person or body of persons, corporate or unincorporate, not being a highway authority, to main- tain and repair any road or part of a road " (/). Repair of Biidges in highways are, as regards the public use, part " ^^^' of the highway ; but as regards rejoair, they are at common law charged presumptively upon the inhabitants of the county, and not, with the rest of the highway, upon the parish. By immemorial custom the inhabitants of a par- ticular district within the county, as a hundred, riding, city, borough, township or parish, may be bound to repair the bridges within such district (./) . A particular person or a body corporate may be bound to repair a bridge by reason of the tenure of lands or tenements to which the repair is (A) Sec Highway Act, 1864, s. 23. (J) As to what are coimty bridges, (?) See ante, p. 525. fiGQjMst, p. .536. CllAl'. IV. IIIf;ll\\.\YS. 531 incident ; aution onl}'. But the liability 7;r///jd /r/t-/^ lies upou the county, wlio can discliargo themselves only b}' jiroving that some other district or person is liable for the re- pair (Z-). The Statute of Bridges, 2-2 Hen. YIII. c. 5, entitled "An Statute of Act concerning the amendment of Bridges in Highways," -'^"'^o^^- after reciting that " in many parts of this realm it cannot be knoA\Ti and proved what hundred, riding, city, borough, to^\^l, or parish, nor what person certain or body politic, ought of right to make such bridges decayed ; by reason Avheroof such decayed bridges for the most part lie long witliout any amendment, to the great annoyance of tlie king's subjects ;" for the remedy thereof enacts, *' that in every such case the said bridges, if they be ^nthout city or town corporate, shall be made by the inhabitants of the shii'e or riding within which the said bridge decayed shall happen to be ; and if it be A\'ithiu any city or town corpo- rate, then by the inhabitants of every such city, or iovm. corporate, wherein such bridges shall happen to be." And _ if ixart of any such bridges happen to be within the limits of one shire, riding, city, or to^vn corporate, and pai-t with- out, the inhabitants shall be charged to repair such part as is within. This statute is declaratory of the common law, and Construction creates no new liabilities ; it ajiplies only to counties and ° * ^^ statute, to cities and boroughs, which are liable to the repaii- of bridges by common law or by custom, with the consequence of imposing upon them any public bridge Avithiu their limits of which it cannot be kno\vn or proved what person certain is to make the repair. Therefore, where by tlio extension of a borough a bridge was brought within the bomidaries, the borough being under no general customaiy liability to repaii* bridges, it was held that the statute had {k) 2 Co. Inst. 700 ; T/u- King v. King v. Ucndoii, 4 B. & Ad. 628. West Riding, 5 Burr. 2594; The A^ to ve\}i\.\v rationc tcnunc, sqc ante, King V. Salop, 13 East, 07 ; The p. 528. M M -2 532 USES AXl) PllOFTTS IN LAND OF ANOTHER. no operation, and tlic liability remained fixed npon the county, altliongli the extended borough was withdrawal from the coimty 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 {///). 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 {)i). New bridges. " Nono can be compelled to make new bridges, where never 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 Repair of new before (^j). " If a man make a bridge for the common ° ' good of all the subjects, he is not bound to repair it ; for no particular man is bound to reparation of bridges by the common law, but ratione tennne or prcescripfionis ;" but if it is afterwards used by the public, it becomes a public bridge, and repairable at common law by the county [q] . Thus, where the inhabitants of a township built a eariiage , 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 bound to repair it as a carriage bridge, the township remaining liable ^jro rata for the repair of it as a foot bridge (>•). >So where a public footbridge was added to an ancient caniage bridge which was repairable ratione tcnurce, the county was held liable for the repair of the foot (l) Case of Bridges, 13 Co. 33 ; of the common law, 2 Co. Inst. 29 ; The Queen v. New Sariim, 7 Q. B. and see NkhoU v. Allen, 1 B. & S. 941. 91G; 31 L. J. Q. B. 48. {ni) The Queen v. Eli/, 15 Q. B. {jj) Littlcdale, J., The King v. 827 ; 19 L. J. M. 223. Jhron, 4 B. & C. 680. («) The Queen v. Southampton, (y) 2 Inst. 701. L. R. 17 Q. B. D. 424 ; 55 L. J. M. (V) The King v. West Biding, 2 164. East, 353, n. (a) ; and see The King (o) 2 Co. Inst. 701; see Magna v. West Riding, 5 Burr. 2594; 2 Carta, 22 Ed. I. c. 15, declaratory W. Black. 685. CIlAl'. 1\'. IIK.HWAYS. i33 bridg-o (s). '\\niere a person for his o^^■n benefit Luilt a mill and a bridge, ^vliere 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 millowncr was bound to repair (f). Where the owner of a public ferry built a bridge in place of the feiTy, which became by use a public bridge, upon the bridge being afterwards re- moved by the 0A\aier of the ferry, the county was held bound to rebuild it (»). If a now bridge is not of public utility, it may be re- Conditions moved as a nuisance ; but if acquiesced in and used by the ^^JJf^^ ^ pul)lie, though not of absolute necessity, it is presumed to be of public utility and becomes a public bridge ; and as such, it is thereupon chargeable upon the county at com- mon law, without an}- formal act of acceptance (r). — But Satisfaction now by 43 Geo. III. (1803), c. 59, s. 5, "for the more s^'^eyo? 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, w^hich the inhabitants of any county shall bo liable to repair, unless such bridge shall be erected in a substantial and commodious manner, under the dii-ection or to the satisfaction of the county surveyor" (»•).— This enactment only applies to bridges newly erected or built after the passing of the Act ; and the widening, or irapro^ing, or even rebuilding since the Act of a bridge existhig before does not bring it within the Act (.*■). The satisfaction of the above condition is (s) The King v. Mi(!(lhsr.r, 3 B. See n,- Qiteenv. SoiH/iaMpton.'L.'R. & Ad. 201. See«///<-, p. .521. 17 Q. B. D. 424 ; 56 L. J. M. 112 ; U) The Kim V. Kent, 2 M. & S. 19 Q. B. D. 590. 513 (i<) See the Highway Act, 1878, (m) The King v. Bucks, 12 East, 41 & 42 Viet. c. 77, ss. 21. 22. jt).2 (j) The King v. Lancashire, 2 B. (r) The King v. West Biding, 2 & Ad. 813: The King x. Deronshire, East, 342 ; Abbott, C. J., The King 5 B. & Ad. 383. V. Xetherlhong, 1 B. & Aid. 183. 534 USES AND PROFITS IN LAND OF ANOTHEll. not conclusive upon tlie county, unless tlie bridge is also of public utility and adopted by the inhabitants (?/). Improvement The county at common law are bound to repair and o n ges. jjiaintain a public bridge in the state in Avhich it was built and became public ; but it is said that " as a county is not bound to make a bridge, it is not bound to widen one, because the addition beyond the existing Avidth would be 2iro tanto a new bridge" (s). Now by the statute 43 Geo. III. c. 59, after reciting that '' doubts have arisen how far tlie said inhabitants are liable to improve such bridges when they are not sufficiently commodious for the j)^^li^j" it is enacted (s. 2) that justices in quarter sessions may " order such bridges to be widened, improved, and made commodious for the public," and if necessary " order the same to be rebuilt, either on the old site, or on any new one more convenient to the pubhc"; and power is given for the pm"chase of land for the purpose. Bridges built Wliere statutory power is given to a person or corporate B^tutes body to make a bridge to carry a pubhc highway, for their own private pm-poses, it may be an exj)ress 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 («). — In the case of Railway railways crossing highways, it is enacted by the Railway " ^^^' Clauses Consolidation Act, 8 Yict. c. 20, s. 46, that cither 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 v. The Iihiff, 5 B. kF. Z5i. L. R. 17 Q. B. D. 424 ; 50 L. J. M. («) The King v. Lindsey, 14 East, 112. 317 ; The King v. Kerrison, 3 M. & (2) The King v. Devon, 4 B. & C. S. o26 ; The Queen v. Ebj, 15 Q. B. 679 ; ante, p. 526 ; but see Cumber- 827 ; 19 L. J. M. 223. CHAP. IV. HICillWAVS. 535 with the iiniiiudiato approtiflie.s, uikI all otlier necessary works connected tlierewith, shall bo executed and at all times thereafter maintained at the expense of the com- pany." The roadway is part of the bridge which the com])any by this section are bound to make and main- tain (A). — Bridges built by trustees of a tm-npiko road Tumpiko under an Act of rarliamont are public bridges which the ^^ad bridges, county is bound to repair ; and the county may be cliarged primaril}-^ although the trustees may receive tolls which are applicable to the repau* of. the road(c). But these bridges are witliin the above Act of 43 Geo. III., and if built since the Act, they are not chargeable upon the county, unless erected in a substantial manner and to the satisfaction of the county sm-veyor (rf). By 33 & 34 Vict. c. 73, s. 1'2, "Wliere a turnpike road shall have become an ordinary highway, all bridges which w^ere pre- viously repaii'cd by the trustees of such tiu-npiko road shall become county bridges and shall be kept in repaii* accord- ingly." By the Local Government Act, 51 & 52 Yict. c. 41, s. 3, Transfer of " There shall be transferred to the council of each county county^ ^^ on and after the appointed day (1 April, 1889, see councils, sect. 109) all business done by the c[uartcr 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 piux-hase or take over on tenns to be agreed on, existing bridges not being at present coimty bridges, and to erect new bridges, and to maintain, repair, and improve any bridges so pm-chased, taken over, or erected." — And by sect. 11, " every road in a county which is for the time (b) Jiun/ V. Lancashire I'j- Y. Rij., shire, 4 B. & C. 196. See The L. 11. 20" Q. B. D. 485; 57 L.J. King v. Lancashire, 2 B. & Ad. Q. B. 280. 813. {e) The King v. West Siding, 2 {37 a biidg-e prima facie iueliulos repair ui tliu approaelics within the same limits (/.). By the Iligliway Act, & G Will. IV. c. 50, s. 21, "If Roadway of any briclg-o shall liorcaftcr he huilt, which shall bo liable by " °^^' laAv to be repaired by and at the expense of any county or part of any county, thou all liighways 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 corjiorate, or trustees of a turnpike road, who were by laAV before the erection of the said bridge bound to repair the said highways : 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 laud 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, lea\ing the repair of the structm-e upon the county (/). 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 under this enactment the company are bound to repair the roadway, as well as the structure of the bridge {ik). A bridge, which is part of a highway, is presumptively Property in the property of the owner of the soil on which it stands, ""^'o^^- subject to the public right of free passage {n). But the materials of a public bridge may, by license of the o's^^ler 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) , AVhere there is no bridge in a liighway through a river, Firry. {k) The Queen v. Lincoln, 8 A. & 280. Sco ante, p. 534. E. 65. (") 2 Co. lust. 705. (/) The Queen v. Southauiptun, L. (o) llatrixon v. rather, 6 East, R. 17 Q. B. D. 424. 154. See The King v. BuekK, 12 (>«) Jiuni V. Lnneashirc S; Y. Iti/., Eiist, 192. Aud see ante, p. 107. L. R. 20 Q. B. 485 ; 57 L^ J. Q. B. 538 USES AND PROFITS IN LAND 01" ANOTHER. it is a prerogative right of the Crowii to grant a public 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" (^;). — The building of a bridge in place of a feny \ih prima facie wrongful and actionable, as being a distm'bance of the ferry ; and the owner of a ferry cannot convert it into a bridge -without license of Cro"\vn ; but the Crown may do so by its prerogative right, and the bridge so erected may become a public bridge, and, as such, repau-able by the county {(i). § 4. Eemedies relating to Highways. Indictment for non-repair — against surveyor of highways— against highway authority. Action for non-repair against county or parish — against surveyor — 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. Eemedy for Xlie ordinary remedy of the common law for the repair indictment ; of a high^^'ay is by indictment at the suit of the Cro^vn, on behalf of the public collectively, against the inhabi- tants of the parish, or the person or persons who are liable for the repair. Tlie 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 (^) Hale(/e /. Jl/V»7s, Hargrave's 192; Taync v. Fartridge, 1 Show. Tracts, 6. See ante, p. 514. 2;5o ; S. C. Fain v. I'airick, 3 Mod. {rj) The Xing v. Fuclcs, 12 East, 294. Cll.Vr. IV. IIKiHWAYS. 639 is to he applied towards the reimir and amendment of tlio higliway (n). Tlie proceeding being a criminal one in form, the Com-t cannot grant a new trial ; Lut the Coui-t may suspend all proceedings upon tlie jmlgraent, so as to give an opportunity for a fresh indictment to he brought {/>). An indictment for not repairing a highway will not lie against, sur- against the parish surveyor of highways, he being a sta- V^JJh-I ■ tutory officer against whom special remedies are provided by the Highway Acts, to the implied exclusion of any other proeedm-e (c) . Hence also an indictment f f tr not against repairing a highway will not lie against a high^vay board, authority, or other statutory autliority, who merely stand in tlie place of survej'or of higliways, his duties and liabilities being transferred to them by statutes. The indictment must bo brought, as at common law, against the parish, or other person or corporate bod}', who are primarily liable to repair (d). But it is held that an indictment will lie against a local higliway autliority who dispute tlieii- lia- bility under an order for repau's made by the county authoiity imder the Higlway Act, 1878, 41 & 42 Yict. 0. 77, s. 10 {('). No proceedings by action can be taken against the Action for inhabitants of a comity, or parish, or district, or other against'*^"^ indetermiuato body of persons ; because of the uncertain county or and fluctuating character of such persons ; and because *" ' there is no corporate fund out of which satisfaction could be made; and because of the juiblic nature of their duty (/). — Nor can any action for damages for mere non-reimii' against sur- vi'vur (a)2Co. Inst. 701; o&GWill.IV. of Poole,!,. R. 19 Q. B. D. 608; 0. 50, 8. 96. oG L. J. M. 131. Svc poit, p. 541. {b) The King v. irutuhworth, I {(l) The Queen v. Mayor of Poole, B. ifc Aid. 63 ; The King v. Siitioii, supra; pel- cur. Loughborough lligh- 5 B. & Ad. h'l ; The Queen v. Dun- nag Board v. Curzon, L. R. 16 Q. can, L. II. 7 Q. B. D. 198; 50 B. D. 570 ; 55 L. J. M. Vl'l. L. J. M. 95 ; per cur. The Queen v. (<) The Quior T. R. 667. O40 USES AND TKOFITS IN LAM) OF AXOTIIER. of tlic liiglnvay be Lrouglit against a surveyor of liigliways appoiuted by the parish under the Highway Acts ; the surveyor being substituted for the parisli by the statute merely for the more convenient performance of the duty of tlie inhabitants, witli no new liability, and the prin- cipal not being liable to such an action, the surveyor, as agent, cannot be made liable {(j) . 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- against bility {/i). — Accordingly it is held that no such action aufliOTi^ will lie against a vestrj'- incorporated under the Metropolis Local Management Act, 18 & 19 Yict. c. 120, in whom are vested all the powers and duties of the surveyor of highways (i). And no such action will lie against a local board of health, constituted under 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" (,/). But the smweyor of highways or highway authority appointed by statute may bo liable to an action for damages caused by an actual obstruction or nuisance created or placed upon the highway by them, or by their servants, or by their order (/i) . Action But against a determinate person or body corporate person or body under liability to repair a highway, as in the case of a corporate. person bound to repair ratione tenurce, or a corporate body under liability for repair by charter or by statute, an action will lie for non-repaii-, so far as to recover special damage sustained by an individual, over and above the [ff) Young v. Davis, 2 H. & C. {j) 11 & 12 Vict. c. 63, ss. 68, 197 ; 31 L. J. Ex. 250. 117 ; 15 & 16 Vict. c. 42, s. 13 ; (/() JIcKinnon v. Penson, 9 Ex. Glbaon v. Mayor of Prcsion, L. R. 5 609 ; 23 L. J. M. 97. Q. B. 218 ; 39 L. J. Q. B. 131. (i) Parsons v. St. Mntheiv, licih- [k] Foreman v. Cnnterhun/, L. R. nal Grrcn, L. R. 3 C. P. 56; 37 G Q. B. 214; 40 L. J. Q." B. 138. L. J. C. P. 62. ^oc2)ost,^.oib. CHAl'. 1\. IIUIIW AYS, 541 geiienil iiijuiy sullered by the puLLic in common ; the l)ublic injmy being matter for an indictment only and not a cause of private action (/). Summary remedies for non-repaii- of a highway are pro- Sumnmry vided by statute : — By the Highway Act, l8-i5, & G uon-ropair WiU. IV. c. 50, s. 94, " If any highway is out of repair the 1^^^%^ . surveyor of the parish or other person chargeable is liable to a penalty upon conviction by justices of tlio district ; who may f mother order that the rcpaii's of the liighway be done witliin a certain time, and in default the said surveyor or other person shall forfeit a sufficient sum of money to bo applied to the repaii-." By sect. 95, if the obligation of such repaii's is denied by the surveyor on behalf of tlie parish, or by any other party charged therewith, the jus- tices are required to direct an indictment to be prefeiTcd ; and the judge before whom the indictment is tried may order the costs to be levied out of the highway rate (w). — By the Highway Act, 1862, 25 & 26 Vict. c. 61, ss. 18, 19, against a similar remedy is provided against highway boards, in board.' 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 smweyor ; consequently the board are concluded by an admission of the way- warden (//). The summary remedy under these statutes ajiplies A\liere a highway is admitted, and the state of rejxiir 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 jm-isdic- tion in justices to deternune it for the pm-pose of ordering an indictment for not repairing (o) . A summary remedy is also given by the Highway Act, (/) Li/ine litijis V. Benin/, 3 B. & Queen v. Zee, L. R. 1 Q. B. D. 198; Ad. 77 ; llartuaU v. Jii/ile Commis., 45 L. J. M. 54. 4 B. & S. 361 ; 33 L. J. Q. B. 39 ; (//) Lmnjhborough v. Curzon. L R. Ohrhij V. Jtijile Commis., 5 B. & S. 10 Q. B. D. 505; 55 L. J. M. 122. 743; 33 L! J. Q. B. 29G ; per cur. {u) The Queen v. Furrer, L. R. 1 Jialhurst v. Macpherson, L. R. 4 Q. B. 558; 35 L. J. M. 210; The Ap. Ca. 269. Qmen v. lleauor, 6 Q. B. 745. Si-e (»() The Queen v. Ipsiones, L. R. lllitnjuorth v. Jlulmer Hiyhuay 3 Q. B. 216 ; 37 L. J. M. 37 ; The Jlourtl, 52 L. J. Q. B. 630. 542 rSES AND PROFITS IN LAND OF ANOTHER. Orclor of 1878, s. 10, pro^iding that wliere complaint is made to the rity\o repair* coiint}^ authority that a highway authority has made default in maintaining or repaiiing any of the highways within their jui-isdiction, the county authority, after due inquiry and rej)ort by their sui'veyor, may make an order limiting a time for the performance of the duty of the highway autliority ; and if such duty is not performed by the time limited, the county authority may appoint some person to perform such duty, and order tliat 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 jmy, the coimty authority may direct an indictment to be preferred against the highway authority to try the liability ( j)) . It seems that this remedy does not supersede the former statutory remedies ; and, from the construction put upon the former enactments, that it only apj)lies to admitted highways, and that there is no jmisdiction 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 nmsance upon a highway, other for nuisance, j i • • i, • t j x j-i i • than mere non-repau-, is by indictment ; the placing or causing a nuisance uj)on a highway being a misdemeanour at common law punishable by fine and imprisonment. Repeated 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 v. WaJcefield, L. R. (r) See ante, p. 535. 20 Q. B. D. 810 ; 57 L. J. M. 52; («) The King v. Pappineau, Stra. ante, p. 539. 686 ; The King v. Stead, 8 T. E.. {q) Per cur. Loughborour/h H. B. 142 ; see The King v. Incledon, 13 V. Curzon, L. R. 16 Q. B. D. 568, East, 164. 573 ; 55 L. .J. M. 122 ; ante, p. 541. CHAP. IV. 11 k; 1 1 WAYS. 543 to prefer a I're.sli iudietnient (/). — Application may also bo made to the Court by information in the name of the Attorn ej-Greneral, as plaintiff on behalf of the public, for an injimction to restrain a nuisance or a threatened nuisance {i(). Any encroachment upon, or obstruction of a highway Nuisances constitutes a nuisance that may be subject oi 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 criminally liable (r). A nuisance on a highway cannot be justified upon the ground that the detriment to some of the public is counter-balanced by ad- vantages to others ; or that on the whole it is beneficial to the public in general {ic). — The following nuisances upon highways have been held to be indictable : placing a gate upon a highway, although not locked (.r). — 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 (//). — Using a highway in an unreason- able manner, as for dej)Ositing goods ; or for standing car- riages for an unreasonable time or for other purposes than reasonable traffic (::). " The building of a house in a larger manner than it was before ■\\-licreby the street became darker is not any public nuisance by reason of the darken- ing," for which an indictment could be maintained (a) . Collecting crowds on a highway to the obstruction of the passage of the public is a nuisance ; and a person is (0 The Queen v. JtmscU, 3 E. & & B. 942 ; 23 L. J. M. 173. B. 943; 23 L. J. M. 173; The («•) The King \.Wiird,\ K. kY.. Queen v. Johnson, 2 E. & E. 613; 384; Att.-Gen. v. Terri/, L. R. 9 29 L. J. M. 133; The Queen v. Ch. 423 ; disapproviug J/k- /liwiy v. Chorleij, 12 Q. B. olo ; The Queen Russell, 6 B. & C. oGG. V. Duncan, L. R. 7 Q. B. D. 198; {i) James v. Hay ward, Ci'o. Car. 50 L. J. M. 95. • See a)ite, p. 539. 184. iu) Att.-Gen. y. Shreusbun/, L. (y) See ). A person who being upon private ground adjoining a high- (/t) Per cur. Mayor of Colchester v. Jiroolcc, 7 Q. B. 377; Jessel, M. R., BagsJtaw v. Buxton Local Board, L. R. 1 C. D. 224 ; 45 L. J. 0. 260 ; James v. Haijivard, Cro. Car. 184. {I) Bateman v. Bluck, 18 Q. B. 870 ; 21 L. J. Q. B. 40G ; Dimes v. I'et.ley, 15 Q. B. 276 ; 19 L. J. Q. B. 449 ; Arnold v. Jlolhrook, L. R. 8 Q. B. 96 ; 42 L. J. Q. B. 80. (;h) Gully v. Smith, L. R. 12 Q. B. D. 121; 53 L. J. M. 35. («) Fearnlcij v. Onmby, L. R. 4 C. P. D. 136. (o) Walker v. Horner, L. R. 1 Q. B.,D. 4 ; 45 L. J. M. 34, Cock- burn, C. J., dissentiente. (p) Jlorner v. Cadman, 55 L. J. M. 110; Back v. Holmes, 57 L. J. M. 37. See ante, p. 495. CHAP. 1\'. HIGH WAYS. 547 May collects a crowd u])oii the liig-liway is guilty of the ohsffuctiou caused by it (7). The police or any person may prosecute the offender, not-withstanding there is a vestry or local board having control over the highway (r). The To^\^ls Police Clauses Act, 1847, 10 & 11 Viet. c. 89, which is incorporated in the Public Health Act, 1875, " with respect (infer alia) to obstructions and nuisances in the streets, for the piu'pose of regulating such matters in m-ban districts," pro^ddes 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 not exceeding forty shillings or may be connuitted to prison for not ex- ceeding fom-teen days." The Act i^'oceeds to enumerate the various offences, and amongst them "by means of any cart, can-iage, 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 STi*Xw?^^ making any building, or pit, or hedge, ditch or other fence, or by placing any dung, compost, or other material for di-essing 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 caniage way or cart M^ay has not been maintained with stones or other materials used in forminc highways" (v). — 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 {q) Back v. Holmes, bl L. J. M. (*) See the former enactment 37. against encroachment of the High- (>•) Back V. Holmes, supra. way Act, 1835, s. 69. N x2 ray. nuisance. 548 rSES AXD PROFITS IX LAND OF AXOTHER. the higliway extends beyond, the statute gives the special protection of a penalty against encroachment only t'o 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 (/). Removal of By the Highway Act, 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 repass 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(^0- The sections 94, 95, enabling justices, when the liability to repair is denied, to order an indictment, apply only to admitted highway's, 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 higliway, the surveyor or liighway authority may lawfully remove the nuisance, although no special statutory authority be given for that purpose ; and tlie Comi will not restrain them in so doing merely upon that ground (?r). A conviction by justices of an encroachment on a highway justifies the sm^veyor [t) Easton v. Richmond Hlghwat/ Queen v. Yoiiiiff, .52 L. J. M. 55. Doard, L. E,. 7 Q. B. 69 ; 41 L. J. (r; T/w Queen v. Farrar, L. R. 1 M. 25. !>ee Zourn v. A'aye, 4 B. & Q. B. 558 ; 35 L. J. M. 210. See C. 3; and see Tutdl v. West JLam, ante, p. 541. L. R. 8 C. P. 447. As to limits of (iv) Jessel, M. R., Barjshaw v. highway, see unie, p. 493. Buxton Local Board, L. R. 1 C. D. («) Williams V. Adams, 2 B. & S. 220 ; 45 L. J. C. 260. 312; 31 L. .J. M. 109. See The ClIAl". 1\ . !.(»( AI, ( I MOMS. oV.) in removino- it, altlioiig-li tlio conviction may Le wrong (r). But if a lii^liway authority order tlio removal of a nui- sance uiHiii 1 heir 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 liigliway ; nor is the sur- veyor justified merely by the order of the authority {//). Section II. Local Customs. Local customs — custom and common law — custom and statute law — custom and prescription — local usages of trade. Usage as evidence of custom — immemorial usage — Prescidption 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 gtant to corporation— customs supjiorted as charitable uses. Customs of manors — customary rights of copyhold tenants — freehold tenants — occupiers. Custom is un^^'l•itten local law prevailing by usage in a Local ... ., "-r, , customs, certain district, as a town, or parisli, or manor. By custom a local public or class of persons, as ilio iiihal)itants 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 to take water from a spring ; or to have a water- ing place for cattle ; or to have an exercise and recreation ground (c/). (x) Eeane v. Reynolds, 2 E. & B. (y) MiU v. Hanker, L. K. 10 Ex. 748. 92; 44 L. J. Ex. 49. (a) See post, p. 559. 550 USES AND PROFITS IN LAND OF ANOTHER. Custom and Ciistom or local law, so far as it prevails, displaces tlie common law. commoii law, wliicli is tlie general custom prevailing thi'ougliout the realm : consnetudoprivat eonimunem legem {b). " A custom wliicli has existed from time immemorial ^^'itll- out interruption within a certain place, and which is certain and reasonable in itself, obtains the force of a law, and is, in effect, the common law witliin that place to which it ex- tends, tliough contrary to the general law of the realm" (c). The general custom of the realm or common law is judi- cially noticed and administered by the Courts ; but local custom is not judiciall}^ 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, presmnptively 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 (c/).— 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 paiiicular 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 obstmotion 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 liim individually. Thus, in a case where it appeared that the inhabitants of a (i) Lit. s. 169. ('0 9 Co. "ibh, ComWscasc; Tort- (c) Fer cur. Lockivood v. Wood, 6 land v. Hill, L. E,. 2 Eq. 765 ; 35 Q. B. 64. • L. J. C. 439. (c) See ante, p. 544. CHAP. IV, LOCAL Cl'STOMS. 001 certain district liad 1j\' custom a watering place for tlicir cattle, it was adjudged that any inhabitant might have an action for an obstruction ; for otlier^\dso they would be Avithoiit roniody, because such an obstruction is not indict- able as a j)ublic nuisance (/). No custom, whether local or general, can be alleged Custom and against an Act of Parliament, because that is matter of record. But an Act which is merely declarator^' of the common la\N' is generally construed as ha"sang no greater force or effect than the common law which it confirms ; therefore a custom may bo 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 {(/). Custom and proscription are both founded on usage ; but Custom and custotn differs from prescription in connecting the right ^ with the land instead of with the person. " In the common law a prescrijition, which is personal, is always made in the name of a certain person and of his ancestors, or those Avhose 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 coidd have been made to sup- port it." But ciistom 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 place, as the inhabitants of a town or parish ; and to persons so described, being incapable to purchase land, no grant could be made (/). — It should be observed that the (/) Westbtinj v. roueU, cited in (A) Co. Lit. 113 i; 4 Co. 32 a; Fiiiexx \. lIor(»deu,Cvo.'EMz. Q>Q>\; 6 Co. 60/;, Gadiranrs case. See and in Co. Lit. 56 a; Uanop v. aiitc, p. 288. AVcstbiuy, L. C, Jiirxt, L. R. 4 Ex. 43 ; 38 L. J. Ilanmer v. Chance, 34 L. J. C. 416. £x. 1. (') Co. Lit. 3^; per cur. Lock- ((/) Co. Lit. 113 ^', 115 rt; 2 Co. trood v. Wood, 6 Q. B. 64. Inst. 200. 552 USKS AND PKOFlTs; IN LAND OF ANOTHER. Ivocal usages of trade. term "prescription " is sometimes used in a general meaning of any title aequii-ed by long- usage, whether an individual title founded on grant, or the title of a class of persons by- custom ; and it is necessary to examine the context and circumstances in order to ascertain the title designated as prescriptive {j ) . The various local usages of particular trades and busi- nesses, which control or modify contracts and dealings in the place where they prevail, are not customs, properly so called, as having the force of local law. They derive their binding effect only from the parties contracting w^ith reference to the local usage of trade, and thereby incorporating the usage into their agreement, imless they express an intention to the contrary. Such usages need not, like customs, be fixed and immemorial ; it is sufficient if they are certain and presumptively known to the parties at the time of contracting. Thus, " an agricultm^al custom need not have subsisted from time immemorial ; but it must have subsisted for a reasonable length of time, and it must be adequately proved " (A-). Usage, as basis of cus- tom. Immemorial usage. The usage necessary to support a custom nmst have con- tinued from time immemorial, without interruj)tion, and as of right ; it must be certain as to the place, and as to the persons ; and it must be certain and reasonable as to the subject-matter, or rights created (/). Usage from time immemorial, as in the case of prescrip- tion, dates from the beginning of the reign of King Richard I., a.d. 1189 (/;/). But proof of modern usage is presumptive evidence oi indefinite earlier existeiice ; and a regular usage for twenty years, unexplained and uncon- tradicted, is held to be sufficient evidence for a jury to (j) See per cur. Zockuood v. Wood, 6 Q. B. 66. (/c) Jessel, M. R. , Tucker v. Linger, L. R. 21 C. D. 34; yi L. J. C. 941. See Legh v. Encitt, 4 East, 159 ; Bradburn v. Foley, L. R. :> C. P. D. 129; 47 L. J. C. P. 331. See Leake on Contracts, 2n(l ed., p. 19G. (/) Co. Lit. 110 i ; per cur. Tyson V. Smith, 9 A. & E. 421. {m) See ante. p. 283. (HAT. 1\ . I.OCAI, ( ISIO.MS. -053 fmd tlie existence of an immemorial custom {)i). The presumption from modern usage may Le rebutted by proof of the origin or non-existence of the custom witliin 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 "svcre first established in the reign of Edward III., within legal memory (o). And it was held that a custom to take toll 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 (j)). Upon this principle the pro- duction of a customary of a manor, 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 well as retrospectively ; so that a usage proved up to a certain date is presumed t(j ccmtinue until some evidence appears to the contrary ; for mere non-user, without inter- rujition of the right, does not affect the validity of a custom. Thus a custom found by a jury to have existed till the year 1G89, there being no evidence of its abolition, was held to continue an existing custom at the date of the inquiry {>•). Customs are not within the Prescription Act, "for Prescription 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 3'ears ; for the section is construed to apply only to easements strictly so called, which are claimed in right of a dominant («) T/ie A'iiiff V. Jolij'e, 2 B. & C. (7) Anglesey v. Hatherton, 10 M. 54 ; see Shepherd v. Payne, 16 C. B. & W. 218 ; Portland v. Hill, L. R. N. S. 132 ; 33 L. J. C. P. 158. 2 Eq. 765 ; 35 L. J.^C. 439. (o) Simpson v. ff'ells, L. E. 7 (») Scales v. AVyJ 11 A. & E. Q. B. 214 ; 41 L. J. M. 105. 819. (p) mil V. Smith, 4 Taunt. 520. 554 USES AND PROFITS IN LAND OF ANOTHER. over a servient tenement {>■). Nor are customs witMn sect. 6 of the same Act, which provides that "no presump- tion sliall be allowed in support of any claim, upon proof of the enjoyment of the right claimed for any less period of time than for sucli period mentioned in the Act as may be applicable to the case" (*•). Usage as of " Equally in tlie case of custom as in that of prescrip- ^'°^^' tion, long enjoyment, in order to establish a right, must have been ' as of riglit ' ; 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 upon 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 {u). — 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 ser\T.ent 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 Tlie usage must be defined with certainty as to the pkS! ^'"^ *'^ 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 (»•) Moumey v. Ismar/, 3 H. & C. C. P. 480; 36 L. J. C. P. 217. 486 ; 34 L. J. Ex. 52. See anie, And 8oe ante, p. 292. p_ 286. ('') -^<^'" ^"'■- f^ultash v. Goodman, '(«) Hanmer v. Chance, 4 D. J. L. K. 5 C. P. D. 451 ; Goodman v. & S. 626 ; 34 L. J. C. 413. See HaltasJi, L. R. 7 Ap. Ca. 633 ; 52 ante p 301 L- J- Q- B. 193; Rivers v. Adatm, {t) See ante, p. 287. L. R. 3 Ex. D. 372 ; 48 L. J. Ex. (m) Mills V, Cokhcsler, L. R. 2 47. CIIAl'. IV. LOCAL CUSTOMS. 555 law"(/r). A custom extending over the whole kingdom, thougli limited to particular persons, is a general custom or common law; as the custom of merchants, ami of inii- kcejicrs, and of carriers, and other general customs prevail- ing tlu'oughout the realm. " It has not heen usual for a long time to allude to such customs in pleadings, because no proof is refpiired of their existence ; they are considered as a/) G Co. 61 a, GateicanVs case ; Qticm v. Anlxlii/, L. R. 3 Q. B. D. per cur. The King v. £cclesjield, 1 255; 47 L. J. M. 65. B. & Aid. 360. • (4) Sou-crbi/ v. Coleman, L. E. 2 (r) Foiston v. Crachroocl, 4 Co. Ex. 96 ; 36 L. J. Ex. 57. 556 LSES AM) riiOFlTS IN ],AM) OF ANOTUKR. Certainty of usage as to persous. meiit ; or it miglit be claimed by the occupier as being one of inhabitants all of whom are entitled by custom to use the way {c). The usage must also define and limit with certainty the persons privileged or affected by it. "A custom which would comprehend within it all the subjects of the Crown woidd be bad, on the ground of its amounting to the common law"(6?). Thus, a custom alleged "for all per- sons, for the time being, being in a parish," to have the liberty of playing at lawful games upon a certain close, was held bad ; because " customs must in their natui'e 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 (c). 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 generality of the persons was sufficiently limited by the conditions of being victuallers, and of attending the fair (//). But a claim of a custom, for " poor householders " residing within a township to cut and carry away dead wood, was held void for uncertainty ; 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 {(■) Baker v. Brereman, Cro. Car. 418. See ante, p. 288. {d) I'cr cur. Tyson v. Smith, 9 A. & E. 423. {e) Fitch V. Rawling, 2 H. Bl. 393. (/) Per cur. The King \ . 3[ashiter, 6 A. & E. 153 ; TAc King x. Davie, 6 A. & E. 374. {ij) Jessel. M. E.., Chilton v. Corp. London, L. ' R. 7 C. D. 744; 47 L. J. C. 439. (A) Tyson v. Smith, 9 A. & E. 423. See Elwood v. Bullock, G Q. B. 383. (i) Selby v. Robinson, 2 T. R. 758. Sec jwst, p. 567. CHAP. I\'. LOCAL CIS TOMS, 557 parishioners " to gleuu in the harvest field could not bo iiKiiiiliiined (J). The usage must also define with certainty the rights or Certainty of privileges created by the custom ; but it is sufficient if tlie the'ri<,'ht.s eifect of the usage can be ascertained with reasonable cer- created, tainty, applying the maxim, certum est quod certuni 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 fi'om time to time accord- ing to the value of money and the circumstances 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 " (/i). Customary rights to be exercised upon land between tlie removal and re-soAving of the crops are sufficiently certain as to times of beginning and ending, wliicli 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, botli as to the land to be covered and the time it should remain so {m). The usage must be reasonable ; or rather, it must not Reasonable- he unreasonable ; " for whatsoever is not against reason "'^"^ ° usage, may well be admitted and allowed" («). And "if no reason can be given for tlie beginning of a custom, yet nun scqiiitar this custom to be for this cause unreasonable, {J) Sfecl V. Uoiiffhtoii, 1 H. Bl. {I) Jease\,'M..'R.,Iia!/lisv. Ti/sseu- 51. Amh'in-st, L. R. 6 C. D. 509; 46 (/.) Gard V. Callard, G M. & S. L. J. C. 718. See ante, p. MO. 72, citing 2 Co. Inst. 222 ; per cur. {m) Bfoudbent v. Ifilks, "Willes, Mills V. Colchcsiti; L. R. 2 C. P. 3G0 ; 1 Wils. 63. See Hoffers v. 485; 37 L. J. C. P. 278; .V. C, Taylor, 1 H. & N. 706; 26 L. J. L. R. 3 C. P. 575. See ll'dson Ex. 205. V. Uoarc, 10 A. & E. 236; Lay- {>,) Lit. 8. 80 ; Co. Lit. 62 a ; per loiirn V. Crisp, 4 M. & W. 330. cur. The King v. Eccle-'Ji-imsiead v. Marlowe, 4 T. E. 3 Eq. 105 ; 36 L. J. C. 64 ; ChUlon 717. V. Corp. London, L. E. 7 C. D. 735 ; {j) Hirers v. Adams, L. E. 3 47 L. J. C. 433. Fost, p. 565. Ex. D. 361; 48 L. J. Ex. 47; (<^) Att.-Gcn. v. iVathias, 27 L.J. Chilton V. Corp. London, L. E. 7 C. 761. C. D. 735; 47 L. J. C. 433. (/;) Blcuett v. Treffv>oiin/) See 3fills v. Colchester, L. K. V. Wasdalc, 5 A. & E. 7oS ; Knight 2 C. P. 484 ; 36 L. J. C. P. 216. V. Woorc, 3 BiiifT. N. C. 3 ; Smith {z) liogcrs v. Brcnton, 10 Q. B. V. Archibald, L. R. 5 Ap. Ca. 489 ; 26 ; Att.-Goi. v. Mathias, 4 K. & Earrop v. Hirst, L. R. 4 Ex. 43 ; J. 579 ; 27 L. J. C. 766. 38 L. J. Ex. 1 ; ante, p. 331. {a) Per cur. liogcrs v. Brenton, 10 (.>•) I'er cur. Tyson v. Smith, 9 A. Q. B. 49 ; Case of Stunnaries, 12 & E. 425 ; Bcnningtim v. Tmjlor, 2 Co. 9. GO 2 564 USES AM) PROFITS IN LAND OF ANOTHER. c. 19 ; 1887, 50 & 51 Yict. c. 43. The custom of tin boimding- fm-tlier imports the easement of using aiiy streams of water found within the bounds for washing- the minerals, and for this pm^pose 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 {b) . 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 (c). The rights to water acquii-ed by tin bounders enure for the benefit of the land- owner, upon the mine being abandoned by the bounders and reverting to the landowner (c/) . — 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 forfeitm-e for breach of the conditions (e). Rights 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 Derby shii-e Mining Customs and Mineral Courts Act," 15 & 16 Vict. c. clxih {g). {b) Carlyon v. Lovering, 1 H. & 16 Eq. 294 ; 43 L. J. C. 75 ; James N. 784 ; 26 L. J. Ex. 251. v. Young, L. E. 27 C. D. 652; 53 (c) Gaved v. Martyn, 19 C. B. L. J. C. 793. N. S. 732 ; 34 L. J. C. P. 353. (/) The Deaa Forest Mines {d) Ivimey v. Stacker, L. R. 1 Act, 1838, 1 & 2 Vict. c. 43; Ch. 396; 35 L. J. C. 467. Amendment Act, 1861, 24 & 25 ((') lie Bndn, L. R. 18 Eq. 389 ; Vict. c. 40; Amendment Act, 1871, 44 L. J. C. 103 ; Morgan v. Craw- 34 & 35 Vict. c. 85. Seeife Tliomas, shay, L. R. 5 H. L. 304 ; James v. L. R. 21 Q. B. D. 380. The Queen, L. R. 5 C. D. 153; 43 {g) See Wrlriht v. Fitt, L. R. 12 L. J. C. 754; Ito2}CY. liuqqc-Vrwe, Eq. 408; 40 L. J. C. 558; Arh- L. R. 1 Ex. D. 209 ; 45 L. J. Ex. v-rlght v. Evans, 49 L. J. M. 82 ; 777 ; Brain v. Thomas, 50 L. J. Wake v. Hall, L. R. S Ap. Ca. Q. B. 602 ; EUicay v. Davis, L. R. 195 ; 52 L. J. Q. B. 494. CHAP. I\'. ].(KAI. ( LSTOMS. oGO Immemorial usage for tlic inliabitants of a toA\ii or Customs to parisli to take profits in tlio land of another, which is void tjI'pSmcd as a log-al custom hy tlio nile ahovo stated, may in some crow-n grant, cases bo legalised upon tho presmned origin of a crown grant ; A^•llich, by reason of tlie prerogative power of the crown to create corjiorations, would have the implied effect of incorjiorating sucli persons for tlie piu-pose of receiving the grant and retaining tlie riglits granted, otherwise tlie gi-ant would fail for want of a certain grantee (//). 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 diu-ing certain parts of the year, Avas held valid as incorporating the inliabitants for the pm-pose of taking the grant (/). 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 sue in his ovm. name and in his own right (,/) . — The presumption of a crown grant is made in favom- of usage if it bo possible under the cir- cumstances, in order to suj)ply a legal origin of the usage ; for " the rule of law is that, wherever there is an imme- morial usage, the Coiu't must presimie everj'thing possible, which could give it a legal origin " (/»•). 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 Xopresump persons, which they cannot take othcrAnse than as a cor- porate body, they are impliedly incorporated by legislative (A) I'cr citr. Hirers v. Adams, ante, p. 550. L. K. 3 Ex. D. 365 ; 48 L. J. Ex. (/.) Mansfield, C. J., Coclscdge v. 47; Jessel, M.R., C/ii7/o« V. Zo«r/o«, Faxshaw, 1 Dougl. 132; Selbornc, L. R. 7 C. D. 741 ; 47 L. -T. C. L. C, Goodman v. Saltash, L. R. 7 433. Ap. Ca. G40. (/) inUingalc \. Maitla)id,'L.'R. (/) Jiiirrs v. Adams, L. R. 3 3 Eq. 103 ; 30 L. J. C. 64 ; ex- Ex. D. 361 ; 48 L. J. Ex. 47 ; plained in Chilton v. London, supra. Goodman v. Saltash, L. R. 7 Ap. {j) Chilton V. London, L. R. 7 Ca. G33. C. D. 735 ; 47 L. J. C. 433. See tion of sta- tute. 566 rsES AM) riiOFiTs in land of axoiuer. autliority for the purposes of tlie Act (;»). But no pre- sumption can be made of the existence of an Act of Parlia- ment as the origin of a usage, similar to the above presumption of a Crown grant ; " for such presumption would make all unreasonable 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). Customs A corporation may take by grant or by prescription any corporation, 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 toT\Ti or borough, according to the rules of the corporation ; although such persons collec- tively, without incorporation, could 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 exercised by a borough corporation and their lessees ; and that duiing part of the year the free inhabitants of the borough had exercised a right of fishing in tlio same place, it was held that the presumptive origin, in order to legalise the 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 {p). — Profits a prendre are fi'e- 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 (wi) Tone C'onso'v.x. Ash, 10 Ji. Sc v. S^yatcman ; Goodman v. SallasJi, C. 349 ; Ex parte Neivport Marsh L. K. 7 Ap. Ca. 633 ; Jlc Faversham Trustees, 16 Sim. 346. Free Fishermen, L. R. 36 C. D. 329. («) Per ctir. Weekb/ v. Wildman, (p) Goodman v. Saltash, supra. 1 Ld. Raym. 407; Jessel, M. R., (7) Mellor v. Spateman, 1 Wms. Chilton V. London, L. R. 7 C. D. Sauud. 343 ; Tarry v. Thomas, 5 740; 47 L. J. C 437. Ex. 37; Beadsv:orth v. Torkington, {•) Johnson v. Barnes, L. R. 8 Ca. 642; per cur. Be C'liristchurch C. P. o27 ; n L. J. C. P. 250. Inclosure Act, L. R. 38 C. D. 531. (s) Whiiey. Coleman, Frccm. 135; (c) Wriffht v. Hobert, 9 Mod. 64. The Kinarish to have common appurtenant upon waste land of the parisli, 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 (v) G)-(ii/'s case, 5 Co. 78 b ; Cro. (a) Ih. ; ante, p. 63. Eliz. 40;3 ; Lovelace v. Ueijiiohls, (i) Warrick v. Qiteoi's College, Cro. Eliz. 546, .563. See Paddock L. R. 6 Cli. 716; 40 L. J. C. 7S0. V. Forrester, 3 M. & G. 927. {e) Ante, p. 336. (;) Portland v. Hill, L. R. 2 Eq. (rf) Bean v. Bloom, 2 W. Bl. 926 ; 765 ; 35 L. J. C. 439. 3 "Wils. 456. 570 USES A>]) PKOFITS IN LAND OF ANOTHER. principle the free and cnstomary tenants within the bounds of an ancient forest may claim by custom to have common of pastm-e and other common rights over all the wastes of the forest, as appm^tenant to their tenements; and such customary rights, as originating in Crown grants, are held to be paramount to the local rights of lords of manors within the forest to inclose waste ; the Crown in granting the manors having presumedly reserved the forestal rights {e). — If the copyhold and freehold tenants of a manor ha^-e similar customary rights they may join in claiming them. "The coi^yholders 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 should attempt to exclude them " (/). Occupiers. 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 a 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 riglit of the owners (h). 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 appiu'tenant to their tenements, and in right of the free- holders {i). 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). (e) Sewers Comnms. v. Glafi(itiir/F, property in, 73. noxious, 77. tame, 77. trespass by, 253. tnspa-^s by, ou highway, 501. See Catile ; Deer ; Dog. 572 INDEX. Anxtity. charge of, upon land, 392. charge of, upon corjius or annual profits, 333. limitation of, in fee or for life, 394. assignable, 394. for maintenance, 395. trust to purchase, 39o. charge of, in administration, 396. priority of, 396. registration of, 397. apportionment of, 417. Appoetioxment. of rent, by partition of the amount, 411, 412. by partition of the reversion, 412. by act of law, 413. of rent to time, at common law, 416. in eqiiity, 416. by terms of limitation, 416. by statute, 417. between lessor and lessee, 417. successive 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 conditions, 415. of interest, 417. of tithe, 399. Appeaisement. of distress, 441. Appeovemext. 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. against common of tiu'bary, &c., 365. under Inclosure Acts, 366. AtPUETENAXcY, 7, 88, 328, 333. of easements, 189, 264, 275. of profits a prendre, 327. Aetificial Steeam, 232. See Watee ; "Wateecouese , Assize. rents of, 383. Attoenment. of mortgagor, 106, 378, 450, 459. with distress, is biU of sale, 379, 386. Auction. sale of distress by, 442. AVOWET. in reple\'in, 469. Bailiff. to distrain, certificated, 434. I INDEX. 07;i Bankruitcy. (liMcluiiucr of lease by trustee, 120. fixtures of bankrupt, 120. distress fur r^ut in, 127. Benefice. ecclesiastical, dilapiclatious of, 93. Bill of Peace, 370. Bill of S.vle. of growing crops, 50. of machinery, 122. of tenants' fixtures, 123. of power to distrain for interest, 379, 386. goods seized ou highway under, 431. Bobougu-Exolisu. rent-charge on land of tenure of, 391. custom of, iJoS. Botes. tenant's right to, 3G, 312. See Estovees. BOUXDAKIKS. protection of, 10. confusion of, 10, 11. commission to ascertain, 10. duty of tenant as to, 10. duty of c( ipyliolder, 1 1 . encroachments ujjon, 12. projections over, 13, 235. See Fence. Box. for deeds, 125. jdauts, border of, 108. Beidges. county, 530, 536. rejjair of, 530. repair ratio)ie temircc, 628, 530, 532. statute of bridges, 531. new, repair of, 532. conditions of repair by county, 533. improvement of, 534. canal and railway, 534. ou turnpike roads, 535. on highways and main roads, 525, 530, 536. transfer of, to county councils, 535. approaches to, 536. roadway of, 537. property in, and in materials of, 537. Buildings. property in, 87. waste in, 92, 94. asfixtiu-es, 109, 112. built on land of another, 107. ■with materials of another, 108. Canal Betdges, 534. Capias in witueenan. wTit of, 470. Cattle. agisted, distress of, 454. distress of damage feasant, 368, 432, 448. 574 INDEX. Cattle — coidinued. distress of, on common, 432. escape of, through defective fence, 256. commonable, 337. levant and couchant, 333. highway for, 484. straying on highway, 491, 501. trespass b}', 253, 257. Charge. of repairs on settled land, 93, 100. of annuity on land, 393. on profits of land, 393. See Eent-chaege. Chaeitable Use. custom supported as, 567. Chase, 85. Chattels. animals as, 77. rent of, 382. settled as heirlooms, 136. within Bills of Sale Act, 50, 122, found in land, 71. Chuech. right to enter, 201. Close. of land, 6. Coal, 68. See Minerals. Cognizance. in replevin, 469. Common. meaning of term, 360. appurtenant, 333. ajiiJcndant, 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, 359. of copyholder, 343, 300, 568. extinction of, by merger, 359. approvement against, 300, 365. surcharging, 368. nuisance on, 369. distress of cattle on, 432. Common Fields, 340. Commonable Cattle, 337. Commoner. remedies of, against lord, 369, Common Law and Custom, 550. Commutation of Tithe, 402. Company. rent in winding-up of, 459. Compensation. for compulsory sale of house, 89. iNi)i;x. CosrPENSATiox— coHlinucd. for fixtures, 10 L for easements tiikcn, 20j, 31'). for obstruction of liglit, 315. for clivertiuj,' stream, 149. for i^rivation of access to navigable river, 157. for loss ot {)r(ispect, "iU'i. for niiiierals taken or severed, 57, Co. for soil of higlnvay, 492. COMPULSOKY SaLK, by. See COilPENSATION. Condition. of re-eutrj% for non-payment of rent, 47G. ejectment upon, 477. relief against, 478. to take profits, 478. rent-charge upon, avoided without entry, 391. ai:)portioimient of, 415. CoNStEVATOEY. as fixture, 109, 118, 119. CONTIUBUTION. to titlie by co-owners, 405. Copyhold. boundaries of, 11. timber on, 37. minerals in, 62, 63. re-grant of, with customary rights, 360. enfranchisement of, 360. tithes on, 403. COPY'HOLDER. estate of, o43. encroachment by, 12. customary rights of, 343, 568. right of, to estovcr.s, 37. to minerals, 63. waste by, 26. approvement against, 364. See Appeovement ; Cojqion ; CusTOii. COEN. distress of, 446. average for assessment of tithe, 399. COENAOE. tenure by, 136. C0ENW.U.L. mining customs of, 563. COEPOliATION. prescriptive title of, to profits, 352. grant of i>rotits to, 505, 566. incoi-poration of, by crown grant, 565. dedication of highway by, 508. County Council. transfer of main roads to, 525. of bridges to, 535. COXTNTY DiSTEICT, 526. district fund for repair of highways, 524. Covenant. to repair demised premises, 97, 99. to pay rent, 4 74. to pioduce .Vcds, 126, 132. See Deeds. ruuumg with laud, 187, 203, 474. 576 INDEX. Covenant — continual. coucerniny: use of laud, 203. apportioned with rcvcr.-ion, 413. CEors, 41. See Growing Ceops ; Emblements. Ckown. prerogative rights and duties of, 167. protection of sea- shore, 167. appointment of ports, 169. right of, to wreck, 172. royal fish, 182. mines of gold and silver, 70. treasure-trdve, 71. property of, in sea-shore, 101, 163. Cbown Geant. incorporation of grantees by, 565. Cul-i)e-Sac. in highway, 436. Custody. of deeds, 127, 128. See Title Deeds. Custom. and common law, 550. statute law, 551, 558. prescription, 551, 553. usages of trade, 552. agrictdtural usages, 08, 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 proiits, void, 500, 561. to take minerals, 561, 563. to take minerals in copyholds, 63. to take fish, 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, 506. sujiported as charitable use, 567. of manors, genei'al and special, 550, 568. rights of copyholders by, 508. rights of freeholders by, 569. rights of occupiers or inhabitants by, 570. remedies by indictment or action, 550. Customary Tenure. rent charge on land of, 391. tithe on land of, 403. Damage feasant. distress of things, 308, 432, 448. tender of damages for, 462. privilege from distress of things in possession, 44 J Damages. for disturbance of easement, 313, 310, 318. for obstruction of light, 215. INDEX. 577 Damages — continued. for distui-banco of support to building, 248, for miisanco on liighwiiy, 644. for trespass by animals, 2o4, 258. for waste, 20. for wrongful severance of minerals, 56. in action for use and occupation, 475. for illegal distress, 436, 460. for irregular distress, 463. for excessive distress, 465. for levying execution after notice of rent due, 456. special, to support action for public nuisance, 544. Dead wood. right of tenant to, 35. custom to gather, 561. Debt. action of, for rent, 472. Dedication. of highway, by act of owner, 504. presumed from public use, 505. by owner in fee, 507. by reversioner, 507. by corporate body, 508. acceptance of, by public, 508. adoption of, by parish, 508. for Umitcd tune, 509. to limited public, 510. for limited use, 510. subject to obstructions, 510, 511. subject to private way, 512. subject to toll, 512. See HiGmvAY. Deed. required for incorporeal hereditament, 185, 263. for tithe rent-charge, 403. licence granted by, 195, 198^ See Title Deeds. Deee. in a park, 77. may be distrained for rent, 78. DEilAND. of rent at common law, 476. Deviation. from private way, 209. from highway, 494, 511. Dilapidations. ecclesiastical, 93. DlSCLAniEK. of lease in bankruptcy, 120. DiSENTAILMENT. on sale of timber, 16. of rent, 389. Distress. at common law, 423. conditions of right of, 423. certainty of rent or services, 424, 425. rent in arrear, 425. limitation of arrears, 420, 427. L. |. ,. 578 iNiiEX. Distress — contbiued. during tcuancy, 428. during possession after end of lease, 428, 429. for double rent for holding over, 430. on demised tenement, 430, 431. of goods fraudulently removed, 432. by certificated bailitl', 434. in daytime, 435. breaking into house, 435. constructive taking of, 436. removing and impounding, 437. impounding on the premises, 438. Sec Pound. sale of, 439. notice of, as condition of sale, 440. time of selling, 441. appraisement, 441. gale at best price, 442. charges of, and of sale, 442. sale optional, 443, 446. tender before sale, 443. things distrainable, 444 — 447. things privileged from distress, 448, 449. goods of stranger distrainable, 449. exceptions in favour of trade, 450. goods delivered to agent for sale, 452. goods delivered for safe keeping or carrying, 453. cattle taken in to feed, 454. goods of lodger, 454. goods in custody of law, 455. goods taken in execution, 455. goods of banki-upt, 427, 458. goods of company winding up, 458. illegal, where no rent due, 461. after tender of rent, 461. second distress for same rent, 461. irregular, 463, 464. excessive, 465. for excessive claim, 466. rescue of, 466. replevin, 467. See Replevin. of things damage feasant, 368, 432, 448. DiSTUEBANCE. of easement, action for, 242, 313. compensation for, 315. injiinction against, 317. of franchise, 170, 538. Dog. property in, 445. distress of, 445. damage feasant, 448. Domestic FixTUEES, 110. See Fixtitees. Dominant Tenement, 189. See Easement, Deainage. right of, 140. of mines, 142. easement of discharging, 229. apparent easement of, 270. DlTES. of port, 171. INDEX. 579 EaSESTENT. appurtenant to land, 189, 204, '27*3. dominant and servient tenements, 189. in frross, 190. conditions of appurtonancy, 192. positive and negative, 192, 324. legal conditions of, l'J9. specific kinds of, 199, 203. claims not admitted as, 201. grant of, 2(33, 264. effect of ijarol i^rant of, 264. conti'act concerning', within Statute of Frauds, 264. exception or reservation of, in grant, 265. implied grant of, 266, 267, 273. necessary, apparent and continuous, 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. obhgation of servient owner, 211, 280. release of, 305. abandonment of, 305. merger of, in ownership, 289, 310. suspension of, during limited ownershii), 311. action for disturbance of, 313, 316. action by reversioner, 315. compensation for, under Lands Clauses Act, 265, 315. injunction against disturbance of, 317. abatement of obstruction to, 322. See AiE ; Light ; Phesceiptiox ; Suppoet ; Watee ; "Ways. Eaves. of house, projecting over adjoining land, 234. discharge of rain-water from, 234. Ejectment. action of, for possession of mine, 55. on condition of re-entry, 477. Emblements, 44. pass to executor as personalty, 45. may be taken in execution, 45, 447. may be distrained 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. Enceoachment . 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 building over boundaiy, 13, 235. Enteanchisement. of copyhold, merger of customary rights by, 360. p p2 580 INDEX. Entry. for breach of condition, 391, 476. ejectment upon right of, 477. . to distrain for rent, 435. Equitable Tenant. possessor^" rights of, 2G. title of, under Judicature Acts, 26, 378. EaiHTABLE Waste, 16, 17, 24. See Waste. ESCEOW. property in, 126. ESTOVEES. right of tenant to take, 36. common of, 341, 568. Exception. of easement in grant, 265. oi profits a prendre, 347. Execittign. against fixtures, 119. against growing crops, 45, 447. after notice of rent due, 456. Eviction. suspension of rent by, 410. by title paramount, 410. of gi'antor of rent charge, 411. of lessee by mortgagee, 379. Factoe. distress of goods consigned to, 452. Faie. customary, on highway, 511. Faem, 6. Fee. tenant in, 15, 16. See Tenant. Fee Faem Kent, 383. distress for, 383. apportionment of, among lands charged, 384 . Fence. obligation 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 lessee, 255. prescriptive right to, 256. liability 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. Feeey. franchise of, 514, 537. duty of grantee of, 537. building bridge in place of, 538. toll of, 514, 537. INDKX. 581 FlEE. liability of tenant for damage by, 06. liability fur rent of premises destroyed by, 97. exception of, in covenant to repair, 98. insurance against, 100. rebuilding,' by insurance office after, 100. Fishery. in inland water, 1 71 . in rivers non-tidal and tidal, 174, 17o, ISO. in land of another, 175. several fishery, 175. free fisheiy, 17G. common of fishery, 17(3. qualified fisherj', 177. in open sea, 177. Sea Fishery Acts, 177. in arms of the sea, 178. Crow-n grants of, 178. prescriptive riglit of, 179. fishing weirs, 181. royal fish, 182. salmon, 183. oysters and shell fish, 183. FrSTUEES. upon land, 103. pass to purchaser or lessee, 104. pass to mortgagee, 105. upon land of another, 107. annexation of, 108. buildings as, 109, 11-2. for trade use, 109, 114. for domestic use, 110, 114. for furnitm-e and ornament. 111, 114. accessories to, 111. tenant's right of removing, 112, 113. agricultural tenant's right to, 115. removal during tenancy, 116. agreements as to removal of, 117. covenant by lessee to leave, 118. action for, 119. execution against, 119. distress of, 120. in bankruptcy of tenant, 120. separate assignment of, 121. under Statute of Frauds, 121. under Bills of Sale Acts, 121. Flood. extraordinary, liability for, 145. right to protect against, 146. FOLDAOE, 336. FOEEST. law of, 83. purlieus of, 84. charter of the, 84. franchise of, 85. waste in, 83. rights of common in, 84, 570. Fox Hunting. right of, 77. 582 iM)KX. Feanchise. of forest, 85. of "warren, 73, 85, 330. of port, 169. of wreck, 172. of royal fish, 182. of feiTy, 514, 537. of toll, 512. disturbance of , 170, 538. Fbeeholdees. custotaary rights of, 569. rights of, to minerals, Gl. Feee Wakeen, 73, 85. grant of manor with, 85. Feoxtager. liability of, to maintain sea wall, 108. FuENisHED House. implied warranty of, in lettmg, 99. FCENITIJEE. as fixtures, 111,114. Game. property in, 73. trespass in pursuit of, 74. penalty on tresspasser, 75. penalty on occupier, 76. defined by statute, 76. right to, severed from land, 78, 199, 330. overstocking land with, 79. Groimd Game Act, 79. license of sporting, 80, 199. construction of grants and leases of, 81. under Inclosure Acts, 81. reservation to lord of manor, 82. rating of, 82. rights of chase and warren, 85, 330. Gates. highway subject to, 511. Gavelkind. rent-charge on land of, 391. custom of, 558. . Gold and Silvee. mines of, 51, 70. distress of, 446. Geant. of incorporeal hereditament by deed, 185, 263. implied, of easements, 266, 269. no easement implied in derogation of, 273. of power of distress, 379, 386. of crown, incorporating grantees, 565. Geowing Ceops. as interest in land, 49. bill of sale of, 50. in bankruptcy, 49. distress of, 46, 446. execution on, 45, 447. See Emblements. I INDEX. 583 Hedges. waste in destroying, 35, 108. property in cuttiuya of, 35. Heielooms. customary, 136. personal chattels settled as, 136, 137. sale of, 137. under Settled Laud Act, 138. Herbage, of land, grant of, 331. trespass to possession of, 332. HEEEDITAilKXT. corporeal and incorporeal, 8, 185, 263. Highway. distinguished from easement, 483. different kinds of, 483. cattle way, 484. railway, 484. na\'igable river, 485. without thoroughfare, 486. ownership of soil of, 487, 491. inclosing sides of, 488. conveyance of land adjoining, 459. trespass on, 490, 501. ownership of, tmder 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, 490. access to, by adjoining owner, 497. special use of, by adjoining owner, 498. fencing by adjoining owner, 501. dedication of, 504. 510. See Dedication. franchise of toll on, 512.^ exemption from toll on, 515. no prescriptive claim against, 516. stopping and diverting, 516. destruction of, 518. repair of, bv parish or district, 519, 521. conditions of liability to repair imdcr Highway Act, 522. declared uimecessaiy 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 repaii- by tenure of land, 528, 530, 532. inclosiu-e of laud, 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 niiisaucc on, 544. 584 INDEX. Highway — coiithi tied. abatement of nuisance on, .545. summarj- remedies for nuisance and obstruction, 546, encroachments on side of, 494, 547. House. includes garden and curtilage, 0, 88. extent of, imder compulsory sale, 89. partition of, in sei^arate tenements, 90. relative rights and habilities of part owners, 91, 252. liability for repairs of, 92. permissive waste in, 92. waste by pulling down, 94. reasonable use by tenant, 95. covenant by lessee to repair, 97. liability of landlord for condition of, 98. warranty of condition on letting furnished, 99. covenant by lessor to repair, 99. insui'ance of, against fire, 100. right of support for, 245. support of, by adjoining house, 249. See SurroET. naming and numbering, 9. Htjutino. right of, 75, 77, 81. IMlPEACHMENT. of waste, exemption from, 22, 24. See Waste. Implements. of trade, privileged from distress, 448. Impeovements. under Settled Land Act, 101. Inclostjee. of waste, 300. See Appeovement. by custom of manor, 364. of sides of liighway, 529. Inclosuee Acts. reservation of minerals under, 64. reservation of game under, 81. inclosurc of commons under, 366. Income. of land, gift of, 7, 395. annuity charged on, 393. Incoepoeeal Heeeditaments. grant of, 185, 263. rent of, 381. Incumbent. of benefice, liability for repair, 93. right of, to minerals of glebe land, 58. Indictment. for non-repair of highway, 538. against surveyor or highway authority, 541. for nixisance on highway, 542. Infant. tenant in tail, right to timber and minerals, 17. Injunction. to restrain waste, 19. for disturbance of easements, 214, 317. principle of granting, 318. mandatf)ry, 319. interlocutory, 320. INDEX. 000 InJITNCTION — CO)l I Ul itcd. to protect light, 214, 321. against nuisances, 220, 221. Inspection. of title clocds, 130. Soo Title Deeds. Insurance. against fire, 100. See Fike. Interest. of mortgage and bond, apportioned, 117. Ireioation. easement of diverting stream for, 227. LAiQiAS Land, 341. Land. terms of description of, o, 9. identification of, 9. boundaries of, 10. See Botjndaeies. property in, above and below surface, 12. separate proi;)erty in surface and minerals, 13. includes houses and buildings, 87. natural use of, as regards neighbour, 230. superfluous land, imder Lands Clauses Act, 14, G6, 490. public uses of, 482. action for use and occupation of, 474. proceedings to recover possession of, 478. Landlord. warranty by, of condition of demised premises, 99. liability for repair, 98. liability for nuisance on demised premises, 146, 545. Lease. of minerals, 55. by mortgagor in possession, 379. in exercise of power, 92, 100. tenancy imder agreement for, 377. covenants to repaii- in, 97, 99. condition of re-entry in, 476. property in deed of, and counterpart, 126. Levant and couchant. cattle, 333, 338. See Coiesion. Level crossing. on railway, 262, 502. License. to use land, 194. to build on land, 195. to get 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. Light. easement of, 211. appurtenant to buildings only, 212. limits over ser\-icnt tenement, 213. obstruction of, within forty-five degrees, 214. for towTi and countiy buildings, 214. application of, on dominant tenement, 215. for imoccupied tenement, 215. 586 INDEX. Light — continued. conversion of, to new piu'posos, 215. altering and enlarging openings for, 216, 324. additional light from other source, 217. implied grant of, 270. prescription for, 287. abandonment of, 307. rebuilding "with new openings for, 308. peniianent obstruction of, 309. action for obstruction of, 215, 313, 314. action by reversioner for obstruction of, 315, 316. injmiction against obstruction, 214, 321. abatement of obstruction, 323, 324. LoCOilOTIVES. on highway, 496. LODGEE. "- protection of, from distress, 454. LOED OF MA^"OE. property of, in timber, 87. in minerals, 62. in game, 82. rights of common of, 344. compensation to, for common rights, 345. approvement of waste by, 360. See Appeovejient ; Copyhold ; Custom ; Enfeaxchisement. Maohineet. asfixtm-es, 109, 111, 115. agricultural, 115. bills of sale of, 122. Main Eoad, 525. See Highway. Maintenance. annuity for, 395. charge for, apportioned, 417. Manoe. land described as, 6. approvement of waste of, 360. customs of, to take estovers, 37, 550, 568. to take minerals, 63. See Custom ; Loed. Map. annexed to conveyance, 10. Maeket. privilege from distress in, 453. sale by sample in, 553. custom to hold, on highway, 511. Meeting. public, on highway, 495. Meegee. of easement in owncrsliip, 310. of profits ill ownership, 359. of rents in land charged, 407, 409. of tithe rent-charge, 403. of copyhold, by enfranchisement, 360. Messuage, 6. See House. Mill. easement of diverting water to, 227. use of, immaterial to easement, 228. abandonment of, 307. 1M)KX. Mine. moaning of tenn, 08, 70. open, 57, 5D. drainage of, 142, 144, 230. exhaustion of, under lease, 56. fencing of, 2G0. See MixEKALH. MlNEEALS. property in, 51. sale of surface and minerals separately, 52. construction of grants and reservations of, 238. license to get, fhi, 199. distinction of grant and license, 53, 54. exclusive license, 54. remedies of licensee in possession, 54. lease of, 55, 240. right of tenant for life or years to, 57. rents and royalties of, 59. right of working open mines, 57, 59. winning, as condition of open mine, GO. working, in settled land by order of the Coiu-t, 61. by trustees under powers, 61. powers of leasing, under Settled Land Act, 62. in copj'holds, 62. special customs for lord or tenant to take, 63. in freeholds of manor, 64. in waste of manor, 64. reservations of, under Inclosure Act, 64, 238. under land taken for railway, 65, 241. severance of, by railway, 66. construction of terms, "mines," "minerals," &c., 67, 70. gold and silver mines, 70. customs of mining, 72, 563. Sec SuppoET. Monument. in church, heritable, 136. MOETGAOE. 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 fixtui-es under, 105, 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. Name. of house, property in, 9. Navigation. right of, in rivers, 156, 158, 162, 485. obstructions to, 157. towing-path, 158, 485. See River. Necessity. easements implied from, 266. Negative. .easement, 192, 324. 587 588 INDEX. Noise. nuisance of, 221, 222, 223. easement of diffusing, 193, 224. Notice. to quit tenancy, 47. of revocation of license, 196. of distress, 440. to abate nuisance, 324. Noxious Teade. nuisance of, 222. Nuisance. 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, 370. by traffic on railway, 223. on highway, 494, 495, 490, 499, 543. adjoining highway, 502. on navigable river, 157. indictment for, 542. action for special damage from, 544. action by reversioner, 223. abatement of, 322, 323, 545. notice to abate, 324. liability of landlord for, 545. Occupancy. of vent jmr autre vie, 391. Occupation. identification of land by, 9. OCCUPIEE. customary rights of, 570. Open Spaces. public, 486. public meetings on, 495. Oysters. right of taking, 183. Pannage, 336. Paeish. adoption of highway by, 508. repaii- of highway by, 519, 522, 523. agreement by, for repair of highway, 520. See Highway. Park, 77, 85, 495. Partition. of surface from minerals, 13. of house in separate tenements, 90. of rent, 412, 414. See Apportionment. Paety-waxl. presumptive ownership of, 259. rights and liabilities of co-owner, 259. under Metropolitan Building Act, 200. Pasture. exclusive right to, 331. trespass to possession of , 332. land described as, 332. INDEX. 589 Pastxtee — continued. common of, 333. stinted and nnstinted, 334, 33.3. loaviuf:;- .sufficiency on inclosurc, 303. Peppeecoux Rent, 372. Peejiissive Waste, 18, 92. Peeson.1l Chattels. within Bills of Sale Act, 50, 122. rent of, 382. Pew. in Church, right to, 200. Plants. us fixtui'es, 108. Plououino. meadow, waste by, 18. botes for, 36, 342. footpath, 511. distraining beasts of plough, 449. PONTAOE, 514. Poet. legal and commercial, 169. franchise of, 1G9, 170. statutdiy authority over, 170. dues of, 171. Pound. 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. Peeeogative. rights and duties, 1C7. See Ceown. Peesceiption. at common law, 282, 350. title by non-existing grant, 283. under Prescription Act, 285, 350. time of, for easements, 28G. for lights, 287. for claims to profits, 350. enjoyment as of right, 287, 290. secret enjoyment, 291. enjoyment by license or agreement, 292, 294. continuity of cnjojTnent, 294, 296, 354. period next before action, 297. interruptions submitted to, 299, 300. presumption from enjojTncut short of, 301. disabilities of ser\-ient owner, 302, 304. legality and certainty of usage, 353, 354, 55 4. conditional rights, 354. PEEStJiU>TION. of ownership, of encroacliments, 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. Peivacy. claim of right to, 202. 590 INDEX. Production. of deeds, 130, 132. See Title Deeds. Pkofits a Prendre. in gross ami appurtenant, 326, 352. conditions of appurtenancy, 327. grant of, 346. exceptions and reservations of, 347. rights accessory to, 348. prescription for, at common law and by statute, 3o0. corporate rights to, 352, 56G. release of, 355. extinction of, by change in dominant tenement, 356, 358. exhaustion of servient tenement, 358. merger of, in ownership, 359. extinction of, by iuclosure, 360, 366. remedies for, 367. See Minerals ; Game ; Common ; Prescription, &c. Peospect. claim of right to, 202. ^^TTRT TO uses of land, general and local, 188, 482, 549. rights over sea shore, 166. commons and open spaces, 486. cannot claim to take profits, 483, 560. no prescription against rights of, 516. Ptjblic Meeting. right of, in highway, 495. in royal parks, 495. Quarry, 68, 70. obligation to fence, 260. Quit Rent, 383. Rack Rent, 383. Railway. obligation to fence, 260, 261, 502. level crossings on, 262, 502. minerals under, 65, 66, 241. nuisance from, 223. superfluous land of, 14, 66, 490. tunnels and bridges of, 13, 14, 534. Rating. of game, 82. of fixtures on land of another, 107. of tithe rent-charge, 405. of tolls on highway, 490. Recreation. custom to use land for, 549, 559. Redemption. of rent-charges, 384, 403. of extraordinary tithe, 402. T?,E ■ ENT EY . condition for, 476, 478. See Condition. Registration, _ __ ' of rent-charge and annuity, 397. Rent, service, 373. charge, 373. seek, 373, 374. reservation of, 375, 381. INDEX. Rent — continued. upon grant in foe or for life, 37G. upon leaso or underlease, 377. upon tenancy at will, 377. upon attornment of mortgagor, 378. upon lea.sc by mortgagor, 379. limitations of estates in, 380, 388. of iueori)oreal hereditaments, 381. of personal chattels, 382. special kinds of, 383. grant of rent-charge, 38.5. grant of power of distres.«i, 3SG. 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 specialty debt, 473. release of, 406. discharge of land from, 407, 408. merger of, in ownership, 409. su.spension of, by exaction, 410. eviction of grantor of, 411. apportionment of, 411, 418. remedies for, 42?, 471. covenant to pay, 474. action by executor for arrears of, 473. of company winding up, 459. See iVppoETiONMEXT ; Co^'DITION ; Distbess ; Entry, etc. Repair. liability of tenant for, 92. of ecclesiastical benefice, 93. right to materials for, 36, 95. covenants for, 97, 98. charged on settled land, 93, 100. by owner of easements, 210, 228, 279. Replevin. proceedings in, 441, 462, 467. jurisdiction of county court, 468. security to prosecute, 469. avowry and cognizance, 469. writ of capias in icithcrnam, 469. Rescite. of distress, 466. Reservation. of minerals, construction of, 69, 238. of rent, construction of, 375, 381. of easement, 265. of profits, 347. Reversion, grant of, 9. rent incident to, 409. incidents preserved on merger of, 409. apportionment of rents and covenants on partition of, 412, 413. Reversioner. property of, in timber, 37. timber cut in collusion with, 38. action by, for nuisance, 225. action by, for disturbance of easement, 315. 501 592 INDEX. Eevocation. of license, 195. EiPAKiAx Owner. property in lake, 140. property in bed of stream, 153. riglits of, in stream, 149, 151, 226. on artificial watercovirse, 233. on public navigable river, 15G, 500. right of access to riparian land, 157. See Watee. ElVEE. tidal, 156, IGl. non-tidal, 162, 174, 180. public navigable, 156, 162, 181, 485. rights of riparian owner on, 157. access from, to docks, 500. mooring vessels in, 500. private navigable, 158. change in course of, 154, 157. Royal Fish, 182. Sale. of distress, 439, 442. See Distress. compulsory, of land, 89. See Compensatiox. Salmon Fisheey, 183. Saltpetre. prerogative of, 72. Sea. sovereignty of, 159. jurisdiction of Admiralty over, 159, 161. territorial waters, 160. arm of, 161. tidal waters and rivers, 156, 161. See Fisheries. Sea Shore. property of Crown in, 163. Crown grant of, 163. limits of, 164. jurisdiction over, 165. public rights over, 166. prerogative duty of protecting, 167. liability of frontager for sea walls, 167. Servient Tenement, l89. See Easement. no obligation on owner of, to repaii", 211, 280. Settled Land. repairs and improvements on, 93, 100, 101. 8ale of minerals in, 52. mining leases of, 62. sale of timber on, 43. Bale of heirlooms, 138. Several Fishery, 175, 179. Sewees, Commissionees of, 167. Sheep Walk, 336. Shell Fish. right of taking, 183. Smoke. nuisance of, 221, 223. easement of discharging, 224. INDKX. 093 Solicitor. lion of, on deeds, r2o, 134. Spaces. open to public, -180. SrOHTINO. rights, 78. license of, 80. Stallage, 5(33. Statutes cited. Charter of John, o. 47 (fishery), 178. 1 Hou. III. (charter of the forest), 84. 9 Hen. III. c. IG (rivers), 178. 20 lieu. III. c. 4 (approv(ment of waste), 361. 52 Hen. III. Stiit. JMarlbridge, c. 4, s. 15 (distress), 430, 437, 4G5. c. 21 (roplevin), 468. c. 23 (waste), 19. 3 Ed. I. c. 39 (liniitatioa of ^vl•it of right), 283. 6 Ed. I. c. 5 (waste), 19. 13 Ed. I. c. 1 [dc doiiLs), 8, 389. c. 46 (approvement), 361. 18 Ed. I. c. 1 {fjnia emptorcH), 376, 414. 25 Ed. I. c. 16 ^rivers), 178. c. 23 (weirs in rivers), 181. 28 Ed. I. c. 12 (distress of heasts of plough), 449. 17 Ed. ir. c. 11 (royal fish), 182. 25 Ed. III. Stat. IV. c. 4 (weirs in rivers), 181. 5 Richard II. c. 8 (forcible entry), 477. 1 Hen. IV. c. 12 (weirs iu rivers), 181. 4 Htn. IV. c. 11 (weirs iu rivers), 181. 12 Ed. IV. c. 7 (weirs in rivers), 181. 22 Hen. VIII. c. 2 (limitation of writ of right), 283. c. 5, p. 9 (repair of bridges), 531. 32 Hen. VIII. n. 37, s. 1 (distress by executor), 473. 2 Phil, and Mary, c. 12, s. 1 (impounding distress), 437. 31 Elizabeth c. 7 (cottages), 334. 43 Elizabeth c. 2 (poor law), 82, 516. 21 Jac. I. c. 16 (limitation of action), 283. 29 Charles II., Statute of Frauds, c. 3. ss. 1, 2 (leases in writing), 377. s. 4 (interests in laud), 49, 198, 264. 8. 5 (wills), 8. s. 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. 5 (distress), 439, 443, 446, 461, 467. 5 Will. & M. c. 6 (Royal mines), 70. I Anne c. 7 (crown lands), 164. 4 Anne c. 16, s. 9 (attonmicnt), 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 temi), 428. 4 Geo. II. c. 28, s. 1 (holding over after end of term), 429. . s. 5 (distress for rents seek), 374, 383. 385, 388,393,440. II Geo. II. c. 19, ss. 1, 7 (distress of goods fraudulently removed), 432, 436. 8. 8 (distress of cattle on common), 432. 8. 8 (distress of growing crops), 46, 443, 446. . s. 10 (impoiuuling and sale of ilistress on premises), 437, 440, 443, 462. L. '-i <■» 594 INDEX. Statutes cited — continued. 11 Geo. II. c. 19, K. 14 (action for use and occupation), 475. s. 15 (apportiomnout of rent), 417. s. 16 (reooveiy of possession) , 478. s. 18 (holding' over after notice to quit), 430. s. 19 (irreg-ular distress not trespass), 463. s. 23 (replevin bond), 468. 24 Geo. II. c. 23 (con-ectiou of calendar), 341. 13 Geo. III. c. 81 (common fields), 341. 14 Geo. III. c. 78, s. 83 (rebuilding insured house), 100. s. 86 (accidental fires), 96. 17 Geo. III. c. 26 (registration of annuity), 397. 41 Geo. III. c. 109, ss. 8, 9 (roads set out on inclosure), 504. 43 Geo. III. c. 59, s. 5 (repair of county bridges), 533, 535. 48 Geo. III. c. 75 (bodies cast on shore), 163. 53 Geo. III. c. 141 (registration of annuity), 397. 55 Geo. III. c. 134 (royal mines), 70. 56 Geo. III. c. 50 (execution against crops to be used on farm), 45, 457. 57 Geo. III. c. 93 (charges of distress), 442. 3 Geo. IV. c. 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), 164. 1 & 2 Will. IV. c. 32, s. 12 (occupier killing game), 76, 77, 81. s. 30 (trespass in pursuit of game), 75, 254, 347, 491. 2 Will. IV. c. 45, 8. 26 (possession of rent), 390. 2 & 3 Will. IV. c. 71, Prescription Act, s. 1 (profits a prendre), 350. s. 2 (easements), 286, 293. , s. 3 (lights), 287, 290, 293._ . s. 4 (period next before action), 297, 299. 8. 5 (pleading prescription), 288, 291. , s. 6 (period short of prescription), 301. ss. 7, 8 (exception of disabilities), 302, 304. 3 & 4 Will. rV. c. 27, s. 35 (express trusts of rent), 427. . s. 36 (abolition of real actions), 19, 472. s. 42 (lunitation of distress for rent), 426. . c. 42, s. 2 (actionbyoragainstexecutor 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, 8. 33 (lighting and watching), 88. 4 & Will. IV. c. 22, ss. 1, 2 (apportionment of rent), 417, 418. . c. 36, s. 22 (offences at sea), 160. 5 & 6 Will. IV. c. 50, 8. 21 (roadway of bridges), 537. 8. 23 (i-epair of new highway), 522. 8. 72 (obstruction of highway), 495, 546. . 8. 82 (improvement of highway), 527. 8. 94 (liability of surveyor), 541. ■ c. 59 (feeding impounded cattle), 439. 6 & 7 Wm. IV. c. 71 (tithe commutation), 390—405. c. 115 (common fields), 341. 1 Vict. c. 26, s. 6 (special occupant of rent), 391. 1 & 2 Vict. c. 64 (merger of tithes), 403. c. 74 (recovery of possession), 479. 5 & 6 Vict. c. 54, s. 12 (power of titheoyner to let), 401. s. 10 (contribution to tithe by co-owners), 405. 7 & 8 Vict. c. 2, 8. 1 (offences at sea), 160. INDEX. 595 Stattjtes cited — continued. 8 Vict. c. 18, Lands Clauses Act, s. 18 (compensation fur land), 104, 265, 315, 400. 8. 08 (injuriously afFectin^' land), 149, 202, 2CG. 8. 92 (compulsory sale of house), 89. 8. 99 (compensation for common rights), 345. 8. 127 (superfluous land), 14, GO, 490. c. 20, Railway Clauses Act, s. 40 (railway bridges), 534. s. 08 (fencing of railway), 200. ss. 77, 78, 79, 80 (minerals under railways), 65, 241. - 8. 92 (railways as highways), 484. 8 & 9 Vict. c. 106, 8. 2 (corjjoreal tenements), 180 8. 3 (leases by deed), 377. 8. 9 (merger of reversion), 409. c. 118 (Inclosure Act), 341. 8. 27 (compensation for lord's rights), 345. 8. 02 (setting out highways), 517. 9 & 10 Vict. c. 73, 88. 1, 2 (redemption of tithe), 403. ss. 18, 19 (merger of tithe), 403. 0. 102 (ports), 170. 10 ifc 11 Vict. c. 15, s. 14 (distress of gas fittings), 452. c. 89 (nuisances in streets), 547. 13 & 14 Vict. c. 21 (shortening Acts of Parliament), 87. 14 & 15 Vict. c. 25, 8. 1 (emblements), 429. 8. 2 (distress of crops taken in execution), 457. ■ 8. 3 (agricultiu-al fixtures), 115. s. 4 (tenant leaving tithe unpaid), 405. 15 & 16 Vict. c. 76, 8. 210 (ejectment for non-payment of rent), 477. 10 & 17 Vict. c. 107 (ports), 170. 17 lie 18 Vict. c. 97, ss. 10-14 (apportionment of rents), 384. c. 104, Merchant Shipping Act, ss. 439, 474 (wreck), 172, 173. c. 125, ss. 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 (surveyor of highwaj's), 540. 8. 90 (highways vested in board), 492. 8. 141 (naming of streets), 9. c. 122, 8. 83 (party walls), 200. 22 & 23 Vict. c. 35, s. 3 (conditions of re-entry apportionable), 415. 8. 10 (release from rent-chara-e), 407. 23 & 24 Vict. 0. 93, s. 31 (redemption of tithe), 403. 24 Vict. c. 10, s. 35 (admiralty court), 101. 24 & 25 Vict. c. 70 (locomotives on highways), 496. c. 90, 8. 28 (larceny of deeds), 125. 0. 109, s. 12 (fishing weirs), 182. 25 & 26 Vict. c. 61, Highway Act, 1802 (highway board), 624. 8. 34 (repair by tenure), 529. 8. 36 (order declaring highway), 522. 8. 40 (inclosing highway), 529. c. 89, 8. 103 (distress against company), 458. c. 102, 88. 52, 77 (paving new streets), 490. c. 108, 8. 2 (separate sale of minerals), 62. 0. 114, 8. 1 (game), 77. 27 & 28 Vict. 0. 101, s. 24 (liability to repair by tenure), 530. ss. 47, 48 (improvement of highways), 527. 8. 51 (incroachment on highway), 489, 547. 28 «fc 29 Vict. c. 83 (locomotives on higliways), 490. 29 & 30 Vict. c. 122 (metropolitan commons), 495. qq2 596 INDFA'. Statutes cited — continued. 29 & 30 Vict. c. 62 (crown rights to foreshore), 161. 31 & 32 Vict. c. 45 (Sea Fisheries Act, 1868), 177. . c. 122, s. 27 (sea shore annexed to parish), 1G6. 32 & 33 Vict. c. 19 (stannaries), 563. c. 46 (priority of speciality debts), 474. 33 & 34 Vict. c. 3o (Apportionment Act, 1870), 418. . c. 73, s. 12 (turnpike road bridges), 535. ■ c. 78 (tramways on highways), 496. 34 & 35 Vict. c. 43 (ecclesiastical dilapidations), 94. c. 79 (lodgers goods protection), 454. • 35 & 36 Vict. c. 15 (royal parks), 496. c. 77 (fencing of mines), 260. 36 & 37 Vict c. 66, Judicature Act, ss. 24, 25 (inj miction) , 317, 318. 8. 25 (equitable waste) 24. 37 & 38 Vict. 0. 54, s. 3 (rating of game), 82. c. 57, a. 10 (expre-is trusts of rent), 426. 38 & 39 Vict. c. 55, Public Health Act, s. 114 (removal of nuisance), 221. s. 149 (vesting of highways), 492. H. 150 (paving new street), 490. c. 92, 8. 51 (notice to quit agricultural holding), 47. 39 & 40 Vict. c. 36 (ports), 170. 40 & 41 Vict. c. 18, ss. 16, 34 (timber on settled estates), 43. 41 & 42 Vict. c. 31, 8. 4 (bill of sale of crops), 50. 8. 6 (bill of sale of power of distress), 386. ss. 8, 9 (bill of sale of fixtures), 121. c. 42 (redemption of tithe), 403. c. 73 (territorial waters), 160. c. 77 (locomotives on highways), 496. . • 8. 10 (indictment of highway authority), 539. • s. 23 (extraordinary traffic), 496. s. 24 (unnecessary highway), 517. 43 & 44 Vict. c. 47 (Ground Game Act), 79, 80. 44 & 45 Vict. c. 41, Conveyancing Act, 1881, s. 3 (payment of rent), 373. . • 8. 6 (easements implied in conveyance), 278. 8. 9 (production of deeds), 132. 8. 12 (apportionment of conditions), 415. s. 14 (relief against forfeiture), 478. s. 16 (inspection of deeds by mortgagor), 131. 8. 18 (leases by mortgagor), 379. 8. 44 (remedies for rent -charges), 374, 480. • 8. 45 (redemption of rent-charges), 384. 8. 51 (limitations of fee), 380. s. 59 (contracts binding real estate), 392. 8. 62 (grant to use of easements), 263. 45 & 46 Vict. c. 37, s. 9 (return of com averages), 399. . c. 38, Settled Land Act, 1882, s. 2 (mines and minerals), 70. ■ ss. 2, 6, 7, 9, 11 (mining lease), 62. 8. 17 (sale w'ith exception of minerals), 52. 88. 21, 25 (money from sale of settled land), 101. 8. 35 (sale of timber on settled estates), 43. s. 37 (sale of heirlooms), 138. 8. 58 (sale by tenant in tail), 17. c. 43, 88. 8, 9 (bill of sale of fixtures), 121. 46 & 47 Vict. 0. 22 (Sea Fisheries Act, 1883), 177. . c. 52, 8. 42 (distress in bankruptcy), 427, 458. ixDKX. 597 Statutes cited — continued. 4G k. 47 Vict. c. 52, s. 55 (dischiimer of lease), 121. c. 01, A^"icultiiral IIoldiiii t i n ucd. on highway, 512, 514. on tiunpike roads, 521. exemptions from, on highway, 515. pontage, on bridges, 514. of ferry, 514, 537. port-dues, 171. distress for, 515. rating of, 516. Towing Path, 158, 485, 508. Teade. privilege from distress in favour of, 448, 450. usages of, 554. Trade FixTTTEES, 109, 114. Teaffic. extraordinary, on highway, 496. Teamway. on highway, 496. Teeasuee Teove, 71. Teees. timber, 32, 33. not timber, 34, 39. growing into timber, 34. ornamental and shelter, 35, 42. property in, 29. severed by wind or accident, 39. grant or exception of, separately, 30. licence to cut, 30, 330. contract for sale of, 30. lease with exception of, 31. construction of grants and exceptions of, 32. See Timbee. Trespass. ab initio, 463. in pursuit of game, 74, 75. of cattle, 253, 254, 257. on highway, 490. on possession of surface of land, 332, 367. of minerals, 54, 367. Teustee. grant of easement by, 272, 312. prescription by, 290. TUEBAEY. common of, 342, 365. TuENPiKE Road. ownership of soU of, 491. liability for repair of, 521. converted into main road, 524. bridges on, 535. toll on, 521. Undeelease. rent service on, 377. for whole term, 387. TJndeewood. right of tenant to, 35. Unity of Title. extinction of easement by, 255, 310. legal and equitable, 290, 312. INDKX. GUI USAQE. as basis of custom, 552. immemorial, 552. certaiuty of, 554. reasonabltuess of, 557. repugniiut to ownership, 500. Sec Custom. UsK AND Occupation. action for, 474. Vicinagk. common of, 338. Village Geeen. custom to use, 559. Vis Major. waste by, 22. escape of water by, 145. Wall, 259. See Party Wall as fixture, 108. sea wall, 107. Waekanty. by landlord, 99. Warren. as description of land, 6. franchise of, 85, 330. grant by crown of, 85. Waste. voluntary and permissive, 18, 92. equitable, 16, 24, 25. by tenant in fee simple, 15. by tenant in tail, 16, 17. by tenant for life or for ycai's, 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 iuv, 2 1 . waste in trees and timber, 34, 35, 37, 39. waste in minerals, 57. waste in houses and buildings, 92, 94. Wastes. of manor, common rights on, 336, 344. See CoiiJiox. inclosure of, 360. See Approvement. Water. standing on siu-face, 139, 225. property of riparian owner in, 140. percolating below sui-face, 140. right of di-aining off, 140, 142. subsidence caused by drainmg, 143. pollution of, below surface, 143. artificial collection of, 143. liability for escape of, 144, 145. collection of, in houses, 146. L. 1! K 602 INDEX. Water— contin ued. extraordinary fluod of, 14 G. nmuiiiKiii natural istreams, 148, 226. ruuiiiufi' below surface, 149. ordinary rights of riparian o-mier, 149, 226. diversion of, by riparian owner, loO. acquired rightis of riparian owner, 151. rights acquii-ed by non-riparian owner, 152. right to take, from land of another, 330, 562. propert}^ in bed of stream, 153. encroachment on bed of stream, 155. rights of navigation, 156, 158. easement of diverting stream, 226. easement of discharging drainage, &c., 229, 234. maintenance and repair of watercourse, 228, 232. continuance of artificial stream, 232. riparian owners on artificial stream, 233. abandonment of easements of, 309. Wateecouese. artificial, easement of using, 226, 231. for use of mill, 227, 228. for discharging drainage, 229. maintenance and repair of, 228, 232. claim to, under Prescription Act, 286. See Steeam ; Watee. Way. general and limited, 203. ownei-ship 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 dev-iation from, 209. of neces.sity, imiDlied grant 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 Prescription Act, 286, abandonment of, 306. obstruction of, 314, 316. See Easement ; Highway. Weies. fishing, in public rivers, 181. in private rivers, 182. Well. draining water from, 141. IKjllution of, 143. easement of taking water from, 331, 562. Will. rent service reserved by, 375. repairs chairged on devise by, 93. Willows. right of tenant to, 35, See Teees. Windfalls, 39. See Timber ; Teees. Windmill. as fixture, 112. obstructing access of wind to, 201, 219. INDKX. Window. as fixture, 110. Seo LioHT. Winning. niineriil.s, (JO. Wood. 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