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. Pa<?e, 3'J4, 3Go.
Duddou ('. Glutton Uuioii, 142.
Dudley Corp., re, 217, 279.
Dudley c. Warde, 113, 114.
Dugdule r. Robertson, 238.
Dunieryuc v. Ramsey, 117, 120.
Dunciiu I'. Louch, 204, 209, 211,
487, 512.
Dunconibe's Case, 494.
Duncombe r. Mayer, 128.
Dunruvon r. Llewellyn, 337.
Duppa I' Mavo, 392, 426, 473.
Durell V. PrUchard, 319.
Durliam and Sunderland Ry. v.
Walker, 30, 206, 208, 26.5.
Dyers' Co. v. King, 217.
Dyke, ex p., 121.
Dynevor f . Tenuant, 192, 311.
Eadon v. Jeffcoek, 50, 240.
Eagle V. Charing Cross Ry., 266, 315.
Eagletou v. Gutteiidge, 436.
Eardley v. Granville, 26, 53, 63, 64.
East r. Harding, 37.
East India Co. v. Vincent, 196.
Easton r. Loudon, 127.
r. Richmond Highway Board,
489, 493, 548.
Eaton V. Southby, 48, 429, 448, 457.
Eccles. Com. v. Kino, 214, 216, 290,
309, 312, 321, 322.
Edrich's Case, 392.
Edridgo v. Hawker, 478.
Edwards v. Halinder. 252.
V. Warwick, 417.
Edwick V. Hawkes, 478.
Egerly's Case, 496.
Egremont Board v. Egremont Iron
Co., 130.
Elias V. Snowdon Slate Co., 59, 60.
Ellard v. Hill, 335.
Elliot V. North Eastern Ry., 143,
242, 244.
EUiotson V. Feetham, 225.
Elliott t'. Bishop, 114, 115, 118.
Ellis V. Brjiuk y Board, 60, 349.
■ V. Loftus Iton Ct)., 253, 254.
V. London & S. W. Ry.. 262.
V. Manchester Carriage Co., 274.
V. Rowles, 369.
V. Taylor, 443.
V. Woodbridge, 484.
EUway v. Davis, 564.
Ehves r. Brigg Gas Co., 72, 107.
('. Uawc. 105, 109, 113, 115.
Elwood V. Bullock, 511, 536.
El worthy v. Sandford, 126.
Ely, Case of Isle of, 167.
(Deau of) v. Warren, 570.
Embleton v. Brown, 165, 179.
Embrey v. Owen, 148, 150, 314, 315.
Einerton v. Selby, 334.
Emmei'son «;. Ind, 131.
Empson v. Soden, 108, 114.
England v. Cowley, 435.
Eppiug Forest Case, 84.
Erriugton v. Metrop. Ry., 05.
Erskine v. Adeane, 255, 257.
Espley V. Wilkes, 277.
Etherton r. Popplewell, 438, 464.
Evans r. Bickuell, 128.
•('. Elliott, 462.
■ — — v. Manchester, &c. Ry., 144,
146, 229.
V. Roberts, 44, 45, 50.
■ V. Walker, 395.
V. Williamson, 49.
Ewart V. Cochrane, 270.
Ewer v. Moyle, 413, 414.
Exeter v. Warren, 170, 171, 514.
Exhall Coal Co., re, 459.
Exmouth V. Praed, 137.
Eyton V. Mold, 82.
Fain v. Ayers, 130, 132.
Fairfax v. Derby, 390.
Faithful!, re, 135.
Fane v. Fane, 138.
Farewell v. Dickenson, 382.
Farrant e. Thompson, 104, 119.
Farrer v. Nelson, 79.
Farrow v. Rees, 127.
Faversham Free Fishers, re, 179,
562, 566.
Fawcett v. Strickland, 366.
V. York and Midland Ry., 262,
491, 502.
Fay V. Prentice, 13, 235.
Fearnlev r. Ormsby, 546.
Fell r. Whittaker, 465.
Feutiman v. Smith, 196.
Ferguson r. Smith, 92.
Ferrand c. Wilson, 17, 34, 42.
Field I'. Adamcs, 448.
r. Brown, 42.
FiUiter v. Phippard, 97.
Finch r. Great Western Ry., 205,
206, 208.
Findou r. McLaren, 452.
Fineux r. Hovenden. 551.
Finlinson r. Porter, 232.
Finney c. Giice, 104, 111, 115.
Firth v. Bowling Iron Co., 258.
TA1!1,E OF CASKS.
Firth r. riirvis, 462, 4G7.
Fisher r. Algar, 441.
r. Dickson, 104, 113.
i\ Prowse, oil.
V. Wren, 344, 570.
Fitch V. Eawliug, o5G, bod.
Fitzwalter's Case, 178.
Fleet f. Metrop. Asyhim, 220.
Fletcher v. Great "Western Ry., 24 1 .
V. Smith, 144, 228, 230.
Flight t'. Glossop, 91.
v. Thomas, 225, 291, 300, 301.
Foiston V. Crachroode, 343, boo, 5G8.
Foley r. Bumcll, 136.
Folkarcl v. Hemmett, 3G4.
Forbes v. Eccles. Commiss., 559.
Ford V. Laeev, 155.
v. Tynte, 35, 78.
Foreman v. Canterbury, 540, 545.
Forests, Case of, 84, 85.
Foster t;. Crabb, 129.
V. Smith, 393.
V. Wi-ight, 154, 155, 175.
Fowkes V. Joyce, 450, 454.
Fowler r. Sanders, 499, 512, 558.
Fowlers v. AValker, 308, 309.
Fox r. Amhurst, 334, 335, 341.
r. Clarke, 250.
Frances v. Ley, 136.
Francis r. Hayward, 200.
V. "Wyatt, 453.
Frechette r. St. Hyacinthe Co., 151,
232.
Free Fishers of Faversham, re, 179,
562, 566.
Freeman r. Edwards, 386, 408, 450.
V. Read, 520.
French v. Phillips, 466.
French Hoek v. Hugo, 142, 293.
Frewcn v. Phillips, 291, 303, 304.
Friend r. Shaw, 479.
Frith V. Cameron, 101.
Fritz V. Hobaon, 499, 545.
Fryar v. Johnson, 201.
Fryman's Estate, 458.
Fuller, ex ]}., 135.
Gambrell v. Falmouth, 463.
Gammell's Case, 183.
Gann v. Whitstable, 162, 163.
Gard v. Callard, 557.
■ V. London Sewers Com., 90.
Gardiner v. Williamson, 404,- 411,
423.
Garfit v. Allen, 37P.
Garner v. Hannyngton, 127.
Garston Co. r. Hickie, 169.
Garth v. Cotton, 23, 24, 38, 39.
Gaskin r. BaUs, 318, 319.
Gas Light Co. v. Hardy, 452.
Gateward's Case, 288, 343, 351,
551, 555, 560, 501, 568.
Gaunt r. Fyuney, 221, 222.
Gavedv. Martyn, 233, 234, 564.
Gawan, ex p., 109, 120.
Gavford r. Moffatt, 267, 268, 290.
— - V. Nicholls, 245, 248.
Gearus r. Baker, 79.
General Share Co. v. Wetley Brick
Co., 477.
Gent r. Harrison, 23, 38, 41.
Gerard v. Boden, 394.
Gerrard v. Cooke, 210.
Gerring v. Barfield, 500.
Gery v. Rodman, 488.
Gibson v. Hammersmith Ry., 104.
r. Iveson, 451.
V. Kirk, 475, 470.
v. Preston, Mayor of, 540.
T. Wells, 26.
Gifford V. Yarborough, 165, 555.
Giles V. Spencer, 423, 426, 450.
Gill V. Dickmson, 239.
V. Eyton, 131.
Gilman v. Elton, 452.
Gimbart v. Pelah, 437.
Gisboum v. Hui'st, 453.
Glasgow V. Farie, 66.
Glegg, ex p., 121.
Glover v. Coleman, 301.
V. Coles, 448.
V. Lane, 361, 363.
Glyn V. Thomas, 466.
Godfrey z;. Little, 11.
Goodday v. Michell, 560.
Goodhart v. Hyett, 228, 279, 280.
Goodman v. Saltash, 179, 189, 351,
352, 515, 554, 562, 565, 566, 567.
Goodright v. Vivian, 18, 31.
Goodscm?;. Richardson, 319, 491,500.
Goodtitle?;. Alker, 491.
V. Chester, 87.
■ V. Jones, 27.
Goodwin v. Cheveley, 601.
Gordon v. Woodford, 30, 33.
Gorely, ex p., 100.
Gorton v. Falkner, 448, 452.
Gott V. Gandy, 99.
Gould, ex p., 116, 117.
V. Bradstock, 436.
Go wan, ex p., 114.
V. Christie, 56.
Graham v. Edge, 459, 473.
'('. Ewart, 82.
Grand Junction Canal r. Petty, 485,
508.
TA151.K OF CASES,
XXIX
GrandJimctiuu Cuual ( . Sliugar, 111.
Grand Surrey Canal v. Hall, 508,
512.
Grant, re, 393.
V. Gunner, 361, 365.
Grantham r. Hawley, 19.
Graves r. I[i(;ks, 479.
r. Weld, 44, 46.
Gray's Case, 3-')4, o09.
Gray v. Bond, 200, 349.
r. Stait, 429, 433.
Greasly t'. Codling-, 544.
Great Eastern Ivv. v. Hackney Board,
490.
Great Northern Ry. r. Eastern
Counties Ry., 485.
Great Western Ry. v. Bennett, G5,
241.
r. Swindon Ry., 14, 260.
Grcathead r. Mn-k^y, 82.
Grcatrex r. Ilayward, 233.
Greaves v. Toiield, 397.
Green v. Duckett, 438, 462.
Greenawav r. Hart, 381.
Greener. Cole, 18, 19, 95.
1'. Foster, 127.
Greenwood r. Horusey, 308, 321.
r. Roth well, 131.
Griffin V. Scott, 437.
Griffinhoofe r. DauLuz, 405.
Griffith, re, 420.
Griffiths V. Hatchard, 130.
Grimstead v. Marlowe, 561.
Grimwood r. Moss, 428, 429, 4 77.
Grose t'. West, 487, 488.
Grosvenor v. Hampstead Junction
Ry., 89.
Groucott V. Williams, 2G0.
Grove's Trusts, 395.
Grymes t'. Bowci'cn, 114.
Gullett r. Lopes, 340.
(Jully r. Sniitli. 54G.
Gundry v. Eelthani, 77.
Gwyn V. Hardwickc, 480, 518.
Habergham r. Vincent, 8.
Hadesdou r. Grisscll, 370.
Hadfield's Case, 390.
Hadlcy r. Taylor, 502.
Haines v. Welch, 47, 429.
Halo V. Oldroyd, 228.
Halidav r. riiillips, 201.
Hall r.' Ball, 126.
r. Bui'gess, 475.
r. Byron, 64, 334, 360, 3G3.
• V. Comfort, 379, 387.
r. Harding, 334, 369.
Hall r. Lichfield Brewery, 218, 219.
V. Lund, 270.
v. Nottingham, 559.
V. Swift, 295.
Halleu r. Rundor, 121.
Ilulsey's Case, 493.
Hamer t'. Knowles, 248.
Hamilton r. Graham, 53, 54.
Hammersmith Ry. v. Brand, 223.
Hammertou v. Honey, 559.
Hamp,stead Vestry v. Cotton, 490.
Hanmor r. Chance, 63, 301, 342, 344,
352, 554.
Harbidgc v. Warwick, 289, 291.
Harding v. Wilson, 209, 276, 277.
Hargreaves v. Diddams, 180, 181,
5G2.
Harkcr r. Birkbeck, 55, 3G7.
Haniett v. Maitland, 19, 26, 92.
Harper r. Taswell, 441.
Harrington v. Harrington, 137.
Hai'ris, ex p., 455.
V. De Pinna, 13, 213, 219, 220,
235, 296.
r. Franconia, 159, IGO.
r. Jenkins, 205, 208.
V. Mobbs, 493, 543.
V. Ryding, 91, 238, 252.
Han-ison's Trusts, 34.
Harrison r. Good, 223.
i\ Harrison, 33, 40.
V. Parker, 107, 19G, 537.
Harrop v. Hirst, 551, 563.
Harrow School v. Alderton, 20.
Hart V. Leach, 443.
r. Windsor, 99.
Ilartuall v. Ryde Commiss., 541.
Harvey r. Pocock, 449.
V. Walters, 235.
Haskett v. Baiss, 214.
Hasluck r. Pcdiey, 421.
Hasscll V. Gowthwaite, 389, 391, 478.
Hastings, re, 474.
r. Ivall, 164.
Hatfield Forest Case, 84.
Havei'gill v. Hare, 389, 478.
Hawken r. Shearer, 260.
Hawkins v. Carbines, 210, 324.
V. KcUv, 416.
V. Waliis, 200.
V. Walrond, 442.
Hawtry r. Butlin, 123.
Hay V. Palmer, 416, 417.
Hayward v. Canuington, 328.
Healev v. Batley, 505, 507, 523.
Heatli v. Bucknall. 217, 309.
r. Crcalock, 134.
r. Elliott, 253, 339.
Heawood r. Bouc, 455.
XXX
TAliLK OF CASES.
Heelis v. Blain, 390.
Hellard v. Moody, Gl.
Hcllawellr. Eastwood, 110, 111, 120,
4-10, 470.
Hcllier V. Silcox, 475.
Helming' v. Burnet, 208.
Hensou r. Gardiner, 371.
Herlakcuden's Case, 18, 19, 32, 94,
95, 110.
Heme v. Bembow, 92.
Hcrvey v. Smith, 224.
Heslop r. Metcalfe, 135.
Hewiins v. Sliippam, 196, 263.
Hext V. Gill, 65, 67, 68, 69, 238, 242,
349.
Heydon v. Smith, 26, 36, 37.
Hickman v. Thorn, 341, 366.
Hig'srinbotham v. Hawkins, 20, 21.
Higiiam r. Rabett, 204.
Hill V. Grange, 7.
r. Mctrop. Asylnm, 220.
i\ Midland Ry., 14, 266.
. V. Smith, 513, 553.
. r. Tupper, 187, 194.
Hilton V. Granville, 560.
Hitchin, re, 106.
Hitchman r. Walton, 105.
Hix r. Gardener, 558.
Hoare v. Metrop. Board, 191, 200.
Hobson V. Todd, 368.
Hoddesdon v. Gresil, 369, 370.
Hodgkins r. Eobson, 408.
Hodgkinson v. Enuor, 229.
Hodgson V. Field, 232.
V. Gascoign, 49.
Hoe V. Taylor, 331.
Holden v. Weekcs, 58, 93.
Holder v. Coates, 29.
Holdsworth, e.r^;., 128.
Hole V. Barlow, 222.
Holford V. Bailey, 6, 174, 175, 176,
346.
V. Hankinson, 288.
Holker v. Pon-itt, 152, 227.
Holland v. Bird, 402.
V. Hodgson, 105, 108, 109, 110,
111.
■ V. Falser, 425.
■ V. Worley, 321.
Holliday v. Wakefield, 05.
Hollins V. Vemey, 295, 298, 300, 301.
Hollis V. Carr, 474.
V. Claridge, 135.
HoUoway v. Berkeley, 414.
Holmes v. Bellingham, 204, 487.
V. Goring, 269.
V. Milward, G.
Honywood v. Honywood, 33, 34, 38,
39, 40, 41.
Hooper v. Bourne, 67, 487, 490.
V. Ramsbottom, 126.
Hopcraft v. Keys, 428.
Hope v. Siddell, 135.
Hopkins v. Helmore, 425.
V. Robinson, 346.
Horn r. Baker, 120.
Hornby v. Silvester, 518.
Home 'V. Mackenzie, 162.
Horner v. Cadinan, 495, 544, 546.
■ r. Whitechiipel, 511.
Horsfordt'. Webster, 444, 450, 454.
Horton r. Bott, 131.
V. Hall, 480.
Hoskins v. Knight, 457.
V. Rabins, 336, 344.
Hotchkin's Estate, 102.
Hotchkys, rr, 28, 92. 93, 101.
Hounsell r. Smyth, 502.
House Property Co. v. Horse Nail
Co., 224.
Howr. Strode, 341.
Howarth v. Rothwell, 393.
Howelz'. Hanforth, 417.
Howell V. King, 208.
Howitt V. Nottingham Tramway Co.,
545.
Howton V. Erearson, 267.
Hudd V. Ravenor, 443, 471.
Hudson V. Macrae, 180, 562.
V. Tabor, 167, 168, 256.
Hughes r. Coles, 427.
V. Pereival, 260.
Hull and Selby Ry., re, 105.
HuUr. Horner, 170, 171.
Humfrey v. Gery, 426.
Humphries v. Brogden, 91, 237, 242,
252.
V. Cousins, 229, 232.
Hunt V. Cope, 410.
V. Hunt, 320.
V. Peake, 248.
Hunter v. Nockolds, 426.
Huntley v. Roper, 414.
V. Russell, 18, 93, 95, 112.
Plurdman v. North Eastern Ry. , 144,
230, 235.
Hussey v. Hussey, 42.
Hutchins v. Chambers, 449, 462, 463,
465, 466.
V. Scott, 437.
Hutchinson v. Copestake, 217.
V. Kay, 109.
Ibboison r. Peat, 79, 221.
IllingAvorth r. Bulmer Board, 541.
Inchbald v. Robinson, 222, 224.
TAIU.K OK f'ASFS.
XXXl
Indennaur v. Dumos, 502.
Iscmbci-f,'- r. Eiist India IIo. Co., 310.
Isherwood v. Oldkiiow, 3S1.
Ivatt V. Mann, 'S'.io.
Ivay r. Hed<;os, 99.
Ive's Case, 'S'2.
Iveson V. Moore, 544.
Ivie V. Ivic, 128.
Ivimey v. ytockor, 234, 564.
Izod V. Gorton, 97.
Jackson, ex p., 379.
Jackson v. Newcastle, 215.
Jacob V. King, 443, 4G8.
James r. Hayward, 511, 543, 546.
V. Johnson, 513, 514.
V. Plant, 276, 278, 311.
• V. The Queen, 564.
v. Young, 564.
Jarvis v. Dean, 505, 507.
Jeffrey v. Neale, 404.
Jeftries r. Williams, 246.
Jegou V. Vivian, 56.
Jemott V. Cowky, 478.
Jenison r. Lexington, 376, 391.
Jenkins r. Harvey, 171. 283.
■ V. Jackson, 222, 271, 319.
V. Milford, 27, 28.
Jeiiner v. Morgan, 416.
v. Morris, 129.
■ V. Yolland, 449.
Jesser v. Gili'ord, 316.
Jewel's Case, 381.
John V. Jenkins, 433.
Johnson r. Barnes, 332, 335, 352,
356, 567. -
V. Faulkner, 446, 447, 450.
V. Johnson, 7.
r. Jones, 379, 411.
V. Lyttle's Iron Agency, 477.
r. Upham, 443, 462.
V. Wyatt, 309, 318, 320, 321.
Johnstone v. Hudlcstone, 430.
JoUy V. Arbuthnot, 378.
Jones V. Bird, 248.
V. Carter, 477.
V. Chappell, 18, 95, 224.
V, Cwniorthen Slate Co., 68.
V. Dangcrficld, 94.
V. Festiniog lij., 223.
V. Flint, 50, 346.
■ V. Hill, 25, 92.
V. Ogle, 420.
V. Price, 297.
r. Eeynolds, 347.
r. Richard, 8, 328, 332, 335,
336, 344, 367.
149,
545.
Jones r. Robins, 257, 339, 340.
V. Williams, 153, 199, 323, 325,
347.
Kay V. Oxley, 278.
Kaye r. Powell, 27.
Keane v. Reynolds, 549.
Kearsley r. Philips, 378, 450.
Keech v. Hall, 48.
Keen V. Priest, 4 49, 461.
Keigliley's Case, 168.
Keightley r. Birch, 442.
Kelk V. Pearson, 214, 287, 319, 321.
Kelsack r. Nicholson, 133.
Kelsey r. Kelsey, 480.
Kemp V. Sober, 223.
Kennedy r. Green, 131,
Kenrick v. Guilsiield, 83.
V. Pargiter, 344, 369.
Kensit v. Great Eastern Ry.,
150, 153.
Kent V. Worthing Loc. Board,
Kenyon ;•. Hart, 74, 76.
Keppell V. Bailey, 187.
Kertord v. Seacombe Ry., 89.
Kerr r. Middlesex Hospital, 395
Kerry v. Derrick, 7. 388.
Kevill r. Davies, 416.
Keysc v. Powell, 63.
Kidgill r. Moore, 316.
Kimber v. Paravicini, 94.
Kimpton v. Bellamy, 359.
King, The r. Barnes, 516.
V. Barr, 507.
V. Bridekiik, 520.
■ V. Buckingham, 510.
v. Bucks, 533, 537, 538.
V. Churchill, 335.
('. Cross, 500.
V. Cumbcrworth, 504.
r. Davie, 556.
r. Derbyshire, 535.
v. Devon, 526, 532, 533, i
536.
V. Do-wnshire, 486, 518.
V. Ecclesficld, 519, 555, 557.
«'. Edge Lane, 504.
V. Ellis, 177.
V. England, 442.
V. Essex, 168.
r. Eyre, 516.
r. Fleck-now, 494.
V. Hatlield, 487, 519, 520, 528.
f. Heudou, 531.
V. Horndon on Hill, 195.
r. Hudson, 506.
r. lucledon, 542.
34,
XXXLl
TABLE OF CASES.
Kins:, The v. Joliffe, 553, 558.
• -"(•. Joues, 499.
V. Kent, 533.
V. Kei'rison, 528, 534.
V. Kiugsmoor, 520.
V. Kings' Xewton, 520.
V. Lancashire, 533, 535.
V. Leake, 508, 509, 519.
v. Lindsey, 53 1.
V. Liverpool, 521.
r. Lloyd, 48G, 505.
r. Loudon, Mayor of, 558.
v. Londonthorpe, 112.
• V. Lyon, 504.
■ V. Machynlleth, 520, 529.
• • V. Mashiter, 55G.
V. Mellor, 509.
V. Mersey Nav. Co., 490.
r. Middlesex, 521, 533.
V. NetherthoDg-, 521, 533.
r. Nicholson, 516.
V. Northampton, 510.
V. Old Alresford, 175.
r. Otley, 112.
V. Oxfordshire, 535, 53G.
V. Payham Commiss., 168.
V. Pappineaii, 542.
V. Ponderryn, 520.
V. Piddletrenthide, 8, 330.
V. RoseweU, 323.
V. RasscU, 163, 499, 517, 543.
V. St. Benedict, 521.
r. St. Dunstan, 110.
• V. St. George, 521.
r. St. Giles, 520, 528.
V. Salop, 484, 531, 536.
V. Severn Ry., 158, 484.
V. Sheffield, 520, 521.
V. Stead, 512.
V. Stougliton, 494, 529.
V. Sutton, 539.
V. Thomas, 490.
V. Tmdall, 543.
V. Tippett, 296, 486.
■;;. Tolpuddle, 8.
V. Wandsworth, 539.
V. Ward, 163, 495, 517, 543.
V. Warkworth, 352, 567.
V. Webb, 543.
V. Westbcer, 125.
V. West Riding, 521, 531, 532,
533, 535, 536.
V. Whitney, 536.
V. Whixley, 331.
V. Winter, 509.
V. Wright, 494.
■ V. Tarborough, 165.
Kingsbury v. Collins, 47.
Kinlock v. Nevile, 293.
Kinlyside v. Thornton, 25.
Kino r. Rudkin, 321.
Kitchin, re, 379.
KnatchbuU's Estate, 102.
Knight's Case, 413, 415.
Knight, re, 379, 424.
• V. Boughton, 416.
V. Piu-sell, 260.
V. Woore, 563.
Knoll's Case, 92.
KnoUes' Case, 391, 392.
Knowles v. Blake, 467.
Kooystra v. Lucas, 276.
Krehl v. Biu-rell, 320.
Lade v. Shepherd, 490, 491.
Ladyman r. Grave, 289, 290, 297, 304.
Laing v. Whaley, 194.
Laird v. Briggs, 303.
Lake v. Plaxton, 363.
Lambert v. Austin, 390.
Lancasliire.v. Rochdale, 525.
Lancashii'e Cotton Co., re, 459.
Lancashire & Y. Ry. v. Knowles, 242.
Lancashire Telex>houe 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 (<?) .
— Tenants of estates entailed in perpetuity without power Perpetual
of barring the entail, which is the case of estates tail with
reversion in the Crown, and of certain estates tail that
have been settled inalienably b}^ Act of Pailiament, have
the same absolute rights and are not restrainable even from
ecpiitable waste (./'). — An infant tenant in tail, though
incapacitated generally from alienation, has similar rights,
and cannot be restrained from taking timber, minerals, or
other profits {;/).
Tenant in special tail is in the same position as regards Tenant in
possessory rights as a tenant in tail general. — Tenant in . .
special tail " after possibility of issue extinct " is in the lity of issue
position of a tenant for life only, in that the estate tail
must terminate at his death, nor can he enlarge it into a
fee simple ; but he retains the privilege incident to the
estate tail of not being impeachable for waste at law.
Coui'ts of ecpiity regarding him merely as a tenant for life
without impeachment of waste restrain him from commit-
ting equitable waste. A tenant in this position may cut
timber and take the timber when cut for his own use, pro-
vided tlie cutting is not equitable waste {//). — By the Settled Settled Land
Land Act, 188J, 4 J & 40 Vict. c. 38, ss. 3, 58, a tenant in ^''*"
tail, and a tenant in tail after possibility of issue extinct,
in possession, have the powers of a tenant for life under
the Act, enabhng them to sell the settled land or any part
(f) Cholmclei/ V. Paxion, 3 Bing. Wihon, 4 Hare, 374.
211 ; S. C, CockercUy. Cholmck)/, (A) Lit. ss. 32, 33; Co.lAt.'Hb;
10 B. & C. oGl. " Bowkx'' Case, 11 Co. 79; A.-G. v.
if) A.-G. V. Did-c of Marl- J)ii/ce of Jfari'/wrouff/i,3M:iM. o3S ;
lorough, 3 Madd. 498. IVtlliamsv. WMama, 12 East, 209;
{g) Wigrum, V.-C. Fcirand v. 15 Ves. 428.
],. C
18 USES AND TROFITS OF LAND.
thereof, or any rig-lit or privilege over tlie same ; subject
to the provisions of the Act as to the proceeds.
Tenant for Tenant for life or for years, in possession, has all the
j-cai-s. ordinary uses and profits that accrue continuously, or
periodicall}^, or Occasionally from time to time, during the
term ; hut he has no right of taking or destroying any-
thing that is permanent and part of the inheritance, as
trees, soil, minerals, or houses and buildings, and he is,
Waste. jjj general, impeachable for "waste'-' or destruction (e) . — ■
Waste is described as of two kinds, namely, " voluntary or
actual, and permissive." The former consists in acts of
wilful destruction, as cutting down trees, pulling down
houses and the like. Permissive waste is caused by negli-
gence only, as by suffering houses to be uncovered whereby
the rafters or other timbers of the house are rotten ; or by
suffering walls of the sea or rivers to be in decay,
whereby the land is overflowed and unprofitable {j).
" No act can be waste which is not injurious to the
inheritance"; and an act may be injurious and actionable
" either, first, by diminishing the value of the estate, or,
secondly, by increasing the burthen upon it, or, thirdly,
by impauing the evidence of title" (/.■). Accordingly
such acts as ploughing up ancient meadow and removing
fences oxe j^riinu facie acts of waste, and are actionable (/).
— Waste can only be committed of the land demised ;
therefore where trees were excei:)ted from a lease, it was
held that cutting the trees was not technically waste,
upon which a forfeiture could be claimed, though it might
be a trespass uj^on the possession of the trees (w).
(i) Jlerlakenden'' s Case, 4 Co. 625; L. J. C. 658.
LiforcVs Cane, 11 Co. 48 « ; Bowies' {l) Co. Lit. 53 i ; Greene y. Cole,
Case, 11 Co. 81 h. 2 Wms. Saund. 259, n. (11) ; Sim-
(y ) Co. Lit. o3«. See^JO*:^, p. 92. mons v. Xorlon, 7 Bing-. 640; St.
[k) Per cur. Doe v. Burlington, 5 Albans v. Skijxwith, 8 Beav. 354.
B. & Ad. 617 ; Young v. Spencer, (m) Goodrupd v. Vivian, 8 East,
10 B. & C. 145 ; Huntley v. liussell, 190 ; see Bullcn v. Denning, 5 B. &
13 Q. B. 572. Jcssel, M. R. Jones C. 842.
V. Chai:>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 (</) . — An injunction may be
(«) 2 Co. Inst. 299; 4 Co. 62 1>, 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<nuuits for life and for years from making waste, "without
si)eeial licence had by A\Titing of covenant making mention
that they may do it." The "special licence" of the
statute may be given by the usual plirase " without im-
peachment of waste," or an equivalent phrase, appended to
the limitation of the estate (A). " The ' addition, without
imj)eachment of waste, is an addition of interest ; and it
may be general or imder such restrictions as the settlor
thinks fit." Thus a tenancy for life may be subject to
impeachment of waste, except in cutting down timber for
repairs, or timber going to decay or injui'ious to other
{(1) Bp. Winchester v. Kmr/ht, 1
P. Wms. 406 ; FhiUips y. Momfray,
L. R. 24 C. D. 43y ; 52 L. J. C.
836.
{e) Woodhoiise v. Woll;cr, L. Jl. .5
Q. B. D. 404 ; 49 L. J. Q. B. 009.
V. Stevnis, 1 Taunt. 183 ; 2 Wms.
Saund. 2oQ d [t).
iff) 2 Inst. 302; Co. Lit. 53 b,
283 «; BQQ post, p. 96.
[h) 2 Inst. 14G ; per cur. Wood-
house V. IValker, L. R. 5 Q. B. D.
(/) 2 Inst, 146, 303 ; Attersoll 407; 49 L. -J. Q. B. 609
CHAP. II. POSSESSORY RIGHTS OF TENANTS. 23
trees ; and a lease may be made of a house and land "with-
out impeachment of waste in the house "(/). In leases
granted under powers the licence to commit waste is
restricted by tlie limits of the power ; and the lease must
conform to tlie power in this respect. Under a power to
grant leases such that the lessee shall not be made dis-
punishable for waste, a lease in which the lessor covenanted
to repair was construed as exempting the lessee from AS'aste
to the extent of tlie repairs by the lessor, which being in
excess of the power rendered the lease void (/i). A lease
made "without impeachment of waste, excepting volim-
tary waste," was held to leave the tenant liable for wilful
waste, and to give him no fiu'ther right or interest in
the timber than an ordinary tenant for life (/). The
-phrase " without impeachment of waste by any action," or
" without being imjileaded for waste," is construed as
excepting only the liability to an action for the waste, but
without affecting the property in the waste committed, as
in trees cut down, which remain the property of the
lessor. Such words bar the lessor of his action for damages,
but not of his property (di).
Tenant for life or for years, without impeachment of Rijriits of
waste has all the rio-hts of use and profit of tenant in fee ^^'J**?* "^^^\''
" _ -■■ out impeach -
simple. He may cut down timber or dig minerals dm'ing ment of waste.
his term and sell them, and appropriate the proceeds to his
own use. But he has a power only, which mil produce an
interest in him, if he executes it or gives authority to
another to do so, during the continuance of his estate ; but
sucli power and authority ceases with his estate {n). Where
(t) Ft)- cur. riffot V. liiiUock, 1 ed. ; but see Vincent v. Spiccr, 22
Ves. jirn. 483 ; Aston v. Aston, 1 Beav. 380 ; 25 L. J. C. 589.
Ves. sen. 265; Co. Lit. 51 J; (/«) II Co. 82 i, Bowks' Case.
Todkcr V. Anneslci/, 5 Sim. 235. See ante, p. 19.
(k) Yellowhi V. Gowcr, 1 1 Ex. («) Per eiir. Boichs' Case, 1 1 Co.
274; 24 L. J. Ex. 289; Doe v. S2 b; Heath, J. Attersoll v. Stevens,
Bettison, 12 East, 305 ; see Davies 1 Taunt. 198 ; Gent v. Harrison,
V. Balks, L. R. 38 C. D. 499 ; post, Johns. 577 ; 29 L. J. C. 70 ;
p. 92. Cholmeh'ij v. Paxton, 3 Bing. 207 ;
(0 Garth v. Cotton, 1 Ves. son. S. C. Cockercll v. Cholnuiei/, 10 B.
524; 1 W. & T. L. C. 641, 3rd & C. 564, cited ««<?, p. 17.
24
I'SES AND rnOFITS OF LA>!]).
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 (</) Lcuch, V.-C, Tidd\. Lister,
L. J. C. 2G5. 5 Madd. 432 ; Baylies v. Baylies, 1
(h) Goodlitlc V. Joues, 7 T. R. 50 ; Coll. 537 ; Denton v. Boiton, 7
Kuye V. rouell, 1 Ves. jiin. 408; Bcav. 388; see I'ligh v. Vnity/ian,
Jeil/dns v. MilJ'ord, 1 J. & W. 035. 12 Beav. 517.
28 USES AND PROFITS OF LAND.
^50 where settled land is cliarged merely witli the payment
of smns of money and is adequate to satisfy the amount,
the Court will in general let the equitable tenant into
possession upon his giving secm'ity for the charges, and
an undertaking against A\'aste {e). Where the trustees
of settled estates were directed to keep the buildings in
repair and to pay the siu"plus rents to a tenant for life, the
latter was allowed the possession and management of
the estate upon giving an undertaking to repair the
buildings (/).
(c) Blake Y. Bimburi/, I Yes. jun. (/) Jie Bcntlexj, Wade y. Wilson,
194 ; Jenkins v. Milford, 1 J. & W. 54 L. J. C. 782 ; Poiv>/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<ri?o/, 32 Beav. 509 ; (/) Duwmhirc v. Sandys, 6 Yes.
33 L. J. C. 116. 107.
(/() Bcrrimaiix. 7Vff<-oc^-, 9Bing. 384.
1)2
36 USES AND PROFITS OF LAM).
to be protected upon the iiulliug down of tlie liouse and
abandonment of the site as a residence {»i).
Right to cut A tenant for life or years is entitled, as an incident of
trcGs I or
repair, Sec. liis tenancy at common law, to cut timber and other trees to
jtrovide reasonable supplies of wood for the use and main-
tenance of the demised premises. These were anciently
termed botes or estovers, signifying supplies or materials,
and are of the following kind : House bote, a sufficient
suppl}' of wood to repair houses and buildings, and to pro-
vide domestic fuel ; Plough bote, sufficient wood for repaii'-
ing ploughs, and implements of husbandry ; Hay or hedge
bote, for repairing fences, gates, styles, and the like.
"And these the lessee may take upon the land demised
without any assignment, unless he be restrained by special
covenant ; and the same estovers that tenant for life may
have, tenant for years shall have " (n). The right to take
estovers from land other than that demised is a profit a
prendre (o). A tenant may take timber to make repairs,
although he be not compellable to repair, nor impeachable for
waste in the non-repair. " So if the lessor by his covenant
undertaketh to repair the house, yet the lessee (if the lessor
doth it not) may with the timber growing upon the land
repair it, though he be not comjDellable thereunto " (p). —
Extent of These rights must be exercised in a reasonable manner ;
^^^ ' the tenant may not out growing trees for fuel, where there
is sufficient dead wood ; to do so is waste (q) . He may
not cut timber for making fences for new enclosm-es (r) .
He may not cut timber and sell it for the purpose of pro-
viding other materials required for repairs with the pro-
ceeds of the sale ; and if he cuts unsuitable material, it is
no justification or mitigation of the wrong, that he after-
wards sold it and applied the proceeds in repairs (s) . But
(m) Micklethwaitv. Micklethivait, (p) Co. Lit. 54 i.
1 De G. & J. 504 ; 2G L. J. C. 721. {rj) Co. Lit. 53 l>.
(«) 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.,
(<?) Fer cur. Doc v. Wood, 2 B. & Smi/A v. Jhirb;/, L. R. 7 Q. B. 722 ;
Aid. 737 ; Doe v. AMerson, 1 M. & 42 L. J. Q. B. 140.
AY. 210. («) ^eepod, p. 236.
56 rSES A^l) PROFITS OF LAND.
theii' value. " A mineral lease or a lease of mines is not
in reality a lease at all in tlio sense of an agricultural
lease. There are no periodical harvests. A mineral lease
is really a sale out and out of a portion of land" (t).
The exhaustion of the minerals within the term demised,
leaving no further enjojnnent or profit in the lessee, is
equivalent to a determination of the lease ; and the un-
expii'ed residue of the term may he disregarded. Upon
a subsequent conveyance of the land "with the usual
covenants for title, an exhausted but unexpired mining
lease vs*as held to he no incumhrance upon the title nor
any breach of the covenants {it). So, where the lessee of
minerals, part of which lay imder a railway, had been
comj)ensated for such part to the full A'alue by the railway
company under their statutory powers, and he afterwards
surrendered his lease to the reversioner ; it was held that
the reversioner retained no further right to work the
minerals for which the compensation had been paid (x). —
Right of Upon this principle of a lease of minerals operating as an
lessee to the absolute sale of the minerals demised, the lessee becomes
minerals. '
entitled to recover the full value of minerals wrongfully
severed and taken by a stranger dming the term ; at the
same time remauiing liable to his lessor for the rent
covenanted in tlie lease (>/). 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<m extends to everything below tlic sm-face.
Therefore dm-ing his tenancy minerals can only be worked
with his consent ((^). — Tenant for life "without impeach- Tenant with-
ment of waste " may take minerals or any materials from ""'^ impeach-
1 1 1 p 1 • meut for
the land for his own use to the exhaustion of the inherit- waste,
ance ; provided he does not exercise his right in such an
imreasonable manner as would be considered ccpii table
waste (c) . Consequently minerals wrongf idly taken from
the land dm-ing his tenancy become vested in him, and he
is entitled to recover such minerals or their value. Where
coal had been taken by trespassing from an adjacent mine,
dm-ing two successive tenancies for life A\ithout impeach-
ment of Avaste, it was held that compensation paid for the
coal taken belonged to the estates of the tenants for life in
projtortion to the quantities taken during their respective
tenancies {d). So with minerals taken by a railway com-
pany under the Lands Clauses Act, the compensation
payable belongs to the tlien tenant for life without im-
peachment of waste, if he could possibly have taken the
minerals during his tenancy (e).
If land containing open mines, stone quarries, gravel Open mines,
pits, brickfields, or other workings of the lilce kind, be
(rt) Co. Lit. 53i; ff«/<>, 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) £/i<ts V. Snoirdoii Shite Qnar- S17.
ries Co., L. E. -i Ap. Ca. 454 ; 48 (o) Chirerini/ v. Clavobxj, 2 P.
L. J. C. 811. Wins. 389.
(w) Milhr V. Milk); L. R. 13 (/») L. Solborno, £/iff« v. 5;ioirrfo»»
Eq. 26;3 ; 41 L. J. C. 201. Jessel, Slate Qiutnitx Co. L. R. 4 Ap. Ca.
M. R. JiriyMocJa- v. Brigstocke, 4G5 ; 48 L. J. C. 811.
L. E. 8 C. D. 363 ; 47 L. J. C.
60 irSES AND PROFITS OF LAND.
succeeding tenant for life to complete the opening and
work the mine {q). And opening mines in part of the
land is not equivalent to opening similar mines through-
out (r). But the sinking of a new mine in the same vein
of minerals, or breaking ground in a new place in the same
quany, is not necessarily a new opening ; it may he merely
a continuation of the former working (-s). So the right of
taking gravel from a pit implies the right of taking it
from the sides of tlio pit, so as to extend the pit late-
rally {t). Upon this principle " the whole of the gravel or
sand upon the waste land of a manor may be treated as
one mine, and each gravel \)\i as if it were a fresh pit in
the mine," and the profits will belong as income to the
tenant in possession {u) . A mine that has been abandoned
merely because it could not at the time be worked at a
profit may still be considered an open mine. But a mine
that has been abandoned by the owner of the inheritance,
with the view to some permanent advantage to the jiro-
perty, would, in general, be no longer considered an open
mine {x). And a tenant for life would not be entitled to
re-open a mine that had been abandoned before his coming
Winning {n^Q possession (//). — The expression " winning " minerals,
which is frequently used in mining leases and licences to
denote the condition upon which the mine is to be treated
as open for profit and for payment of royalty, is construed
to mean that tlie mine is put in a state capable of con-
tinuous working in the ordinary way, after completing
the preliminary works necessary for reaching the mineral,
draining the mine and making it practically workable {z).
(q) Vincr v. Yiniylian, 2 Bcav. (//) Coiclci/ v. irdlmhy, L. E,. 1
466. Eq. 659 ; \'>n 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<i</ot, L. J. C. 265 ; Campbell v. IfarJ-
32 Bcav. 509 ; 33 L. J. C. 116. law, L. R. 8 Ap. Ca. 641.
(A) iV>- 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 (</). And whore an Inclosiu'e Act reserved
all mines and minerals to the lord as fully as before the
Act, with a special provision for restoring the surface after
getting the minerals, it was hold to reserve building stone
got by quarrying from the surface {>').
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<i-ricultural lease in- (/.) J\iiiiull v. Mill, 3 C. B. 63S.
eludes only agricultural rijihts, and (/) Moore y. Plymouth, 7 Tauut.
the rights of hunting, shooting, Oil.
fishing and the like, suhjoct to (<») Miisffran: v. Forsfrr, L. R. 6
liahility for damatje, are reserved Q. B. oDO; -10 L. J. Q. B. 207;
I-, o
82
USES AND PROFITS OF LANJ),
reservation to tlio lord of all manorial rights, including
the right of " hawking, hunting, fishing and fowling, in-
cident or belonging or appertaining to the manor"; it was
held that his right to the game as an incident of the soil
rationc soli, was not included in the reservation of mano-
rial rights or of rights incident to the manor; and the
lord having in fact no franchise or manorial right of the
kind beyond that incident to his ownership of the soil,
retained no right of shooting over the allotted lands {ii).
Eating of
game as sepa-
rate tenement.
E,atin<
1874.
Act,
The statute 43 Eliz. c. 2, which established the rating of
land for the relief of the poor, did not apply to the right
of taking the game, when held as a separate tenement.
Land occupied together with the right to the game is
rateable at the enhanced value due to the game (o). And
if the occupier himself lets the game to another, the land
continues rateable at a value enhanced by the rent derived
by the occupier from the game {p). But land occupied
separately from the game is rateable only upon the value
of the oecuj^tation, exclusiA'e of the value of the game (q).
—By "The Eating Act, 1874," 37 & 38 Yict. c. 54, s. 3,
the above Act 43 Eliz. c. 2, and other Rating Acts are
extended "to rights of fowling, of shooting, of taking or
killing game or rabbits, and of fishing, when severed from
the occupation of the land." Sect. 6 (1) provides that
" where any right of taking game is severed from the
occupation of the land and is not let, and the owner
receives rent for the land, the rateable value of the land
shall be estimated as if the right were not severed " ; and
the occuj)ier may deduct from his rent the increase of the
rate, if any, due to the estimate of the game. (2) "Where
Graham v. Excart, 7 II. L. C. 331 ;
29 L. J. Ex. 88; Lcconfiehl v.
Dixon, L. E. 3 Ex. 30; 37 L. J.
Ex. 33.
(n) Soicerby v. Smi(h, L. E. 9
C. P. 524; 43 L. J. C. P. 290;
Grcathcad v. Morloj, 3 M. & G.
139 ; Bruce v. llclliwcll, 5 H. & N.
609; 29 L. J. Ex. 297; jJOit,
p. 86.
(o) Eyton v. Mold, L. E. 6 Q. B.
D. 13; .50 L. J. M. 39.
0^) Queen v. Bntlle, L. E. 2
Q. B. 8; 86 L. J. M. 1.
(y) Q}teen v. ThurhtMie, 1 E. &
E. 502 ; 28 L. J. M. 106.
CHAT. VI. f;.\MK AXI) AVII.I) ANIMALS. 83
any riglit of sporting-, when severed from the occnpation of
the land, is let, either the owner or the lessee thereof,
may be rated as the occupier thereof." Under this enact-
ment, where the o^vner and occupier of the land lets the
g'ame, either he may he rated upon his occupation enlumeed
hy tlio rent paid for the game, or the lessee of the game
may be rated upon its value {r).
The property in game above indicated as existing Jure
privilegii consisted of the ancient franchises or rights of
forest, chase and warren, now practically obsolete ; but
which have left traces in the language and doctrines of the
law that requii'e some explanation. The early English Forests,
kings claimed a prerogative right of property in game and
wild animals, as being nuIUiis in bonis ; and for the use
and enjoyment of their right they exercised the fm'ther
prerogative of proclaiming any district at their will and
pleasure to be a forest, with the consequence of subjecting
it to a special body of law called the Forest Law, adminis-
tered by special justices and other officers commissioned
by the Crown, and to that extent withdi'awing the district
from the jmisdietion of the common law, or at least sup-
plementing the common law in that district (.s). The Forest laws,
forest laws " are not rules of the common law nor Acts of
Parliament ; but they are regulations made by the Crown
for the government of the forest." They are not matter
of judicial notice ; but they are matter of evidence, and
may be proved by usage where they cannot be produced (/).
The forest laws were directed to the preservation of the
beasts of chase, wliich invohed also the protection of the
woods and pastm-es. Wn'^tc committed on the woods or
pastm-e, by clearing or cutting or ploughing up, was
visited with penalties ; no buildings or inclosm-es were
(/•) Kctnick V. Guihfu'hl, L. E. 5 41.'), 110.
C. P. D. 41 ; 49 L. J. M. 27. (0 Mcllish, L. J. Sneers Com-
(.s) Manwood's Forest Law, c. 2, missiomns v. Glassr, L. R. 7 GIi.
following Bractou; 2 Blackst. Com. 4GS ; 41 L. J. C. 419.
G 2
84 USES AND PROFITS OF LAND.
allowed, unless with licence of the proper authorities of the
forest (u). But by custom and by prescription tenauts of
land within the forest acquired rights of common of
various kinds in the woods and wastes, as appin-tenant to
theii' tenements ; which remain valid and valuable at the
Tovllr °^ ^^^ present day (.r).— By the Charter of the Forest, 1 Hen. III.,
A.D. 1216, confirmed in successive parliaments of that and
succeeding reigns, it was conceded by the Crown that all
lands that had been afforested under the preceding kings
should be disafforested, so far as they extended beyond
the demesne lands of the Crown ; within which territorial
limits the forest laws continued in force. — Before this
statute the Crown had claimed and exercised an unlimited
right of afforesting all lands, whether demesne lands or
lands in tenure ; except that by the Magna Carta of John,
A.D. 1215, it had been conceded that all lands afforested in
his time should be disafforested. The lands disafforested
by the Carta dc Foresta were thereby exemjjted from the
jurisdiction of forest law as regards the tenants of lands
therein, who then became entitled freely in right of
their tenements to take the game, to cut woods, and to
inclose and plough pastures ; but as regards other
persons, they still remained forest. The lands thus cir-
cumstanced were distinguished as purlieus of the forest,
within which the forest law was in force except against
tenants of the land (//) . Grants of demesne lands within
a forest made subsequently to the above Charter of
the Forest were subject to forest law, unless expressly
exempted by the terms of the grant ; because by common
law royal prerogatives and franchises do not pass in a
grant of land, without exjiress words. Hence all tenants
within a forest became bound to show their title to exemp-
(?<) Manwood'H Forest Law, cc. 8, v. dfili's, L. E. 17 C. D. 535; 50
8, 10. L. J. C. 754 ; of ITaificld Forest,
{x) Seethe case of Epplnr/ Forest, Bar ring ion's Case, 8 Co. 13G i ; and
Sewers Commissioners v. Glasse, L. the Case of Forests, 12 Co. 22.
E. 19 Eq. 131; 44 L. J. C. 129; (y) Manwood's Forest Law, c. 20.
of Ashdoivn Forest, Earl dc la Warr
CIIAr. M. (JAMI-: AM) WILD ANI.MAJ.S. 8;">
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. {<l) L. Chehusford, Jirfntchamp v.
{/>) 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- .<?. W. Itu. v. Floiar,
{I) Arden v. raikn, 10 M. & W. L. R. 1 C. P. D. 77 ; 45 L. J. C. P.
321. 54. But see Conveyancing Act,
(»i) Smithy. Marrable, 11 M. & 1881, s. 14.
h2
100
USES AND PROFITS OF LAND.
Insurance
aminst fire.
the lessor to repair dm-ing the term operates as an exemp-
tion of the lessee from all liability for repairs ; consequently
a lease containing such a covenant, heing made under a
jiower which imposed the condition that lessees should not
be made dispunishable for waste, was held to be beyond
the power and invalid ( })) . — An insurance by the lessor
against fire does not impliedly bind him to apply the pro-
ceeds to the rebuilding or repairing of the premises ; nor
has the lessee, though under covenant to rej)air and to pay
rent, any claim in equity to have the proceeds so applied,
in the absence of any stipulation to that purpose {q) . Upon
the same principle it is held that a purchaser of a house is
not entitled, at law or in equity, to the benefit of an insm*-
ance made by his vendor, without any stipulation for it in
the contract of sale(''). And, in general, an insurance is
presumed to be made for the exclusive benefit of the person
insured aud not for that of all persons interested in the
property (■s). But by the Statute 14 Geo. III. c. 78, s. 83,
" The du'ectors of insurance offices are authorized and re-
quired, upon request of any person interested in any house
or other building which may be burned do^^^l or damaged
by fii^e, to cause the insurance money to be laid out towards
rebuilding or repairing such house or building" {f).
Repairs and
improvements
on settled
estates.
The repairs of houses and buildings upon settled estates
are generally provided for in the settlement by vesting
powers in trustees for that purpose. In the absence of
express provision for raising the costs of repairs, the charge
is presumptively to be borne by the entire property, so as
to fall proportionally ujoon the tenant for life and the
future successive interests, and not primarily upon the
{p) Yellou-hj V. Goiver, 11 Ex.
274 ; 24 L. J. Ex. 289.
{q) Leech \. Cheetham, 1 Sim.
146.
(r) Poole V. Adams, 33 L. J. C.
639 ; liaijner v. I'nston, L. R. 18
C. D. 1 ; 50 L. J. C. 472.
(v) Warwicker v. lirctnaU, L. R.
23 C. D. 188.
{t) As to the construction and
effect of this statute, see Exp.
Gorehj, Re Barker, 4 D. J. & S.
477 ; 34 L. J. B. 1 ; Rayner v.
Preston, supra.
CHAP. VII. IIOrsES AND IHILDIXGS. 101
cun-ent rents and profits (/f). If the tenant fur life
of settled land, altliougli not cliarged ■with repair, does
repair's voluntarily, he cannot charge the costs upon the
entire property, unless by some special power, or hy the
authority of the Court obtained for that purpose (r). " A
tenant for life is not in general a trustee for the persons
entitled in remainder as to any improvements he may make
upon the estate, and he cannot unless a special power is
given him charge against the estate any sums expended by
him in making them "(«•). — The Coui't has a general Jurisdiction
jurisdiction over settled estates by which it can order the
repair or renewal of buildings at the cost of the estate. In
a case where the mansion-house of a settled estate was
falling do^\^l and there were no funds available to rebuild
it, the Coiu't authorized the trustees to raise the sum
required for rebuilding by mortgage of the whole property,
U2>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. ]fod</.soii, L. R. 7 C. P.
J)' Eijncottrt v". Gregorii, L. R. 3 Eq. 340 ; 41 L. J. C. P. 146 ; Meiix v.
382 ; 36 L. J. C. "lOT. Jacobs, L. R. 7 II. L. 481.
(i) Cainis. L. C. Ba'ui v. Ihaiid, (/.•) Mciix v. Jiu-ohs, mpra : Lvng-
L. R. 1 Ap. Ca. 767. bottom v. liarii, L. R. 5 Q. B. 123 ;
{j) Lomiftojfw. Jlcaf/oi; 2 Ad. & 39 L. J. Q. B. 37.
El. 167 ; kitchman v. Walton, 4 M.
lOG USES AND PROFITS OF LAND.
moi-tgage ; he is not in the relation of tenant to the mort-
gagee for this purpose (/). And the ordinary attornment
clause in a mortgage is construed as a further security
only, without taking away from the character of the mort-
gage or altering its incidents (ni). But in a mortgage
hy underlease of premises containing tenant's fixtures the
right of removal and disposal of such fixtures does not pass
to the mortgagee unless expressly conveyed ; the under-
lease presumptively carries only the use of all existing
fixtures, as it does the use of the land during the term,
leaA-ing the right of removal to the mortgagor at the end
of the tei-m {n) . In the case of a lease made by a mort-
gagor in possession, the lessee has the same right to
remove fixtures against the mortgagee as against his lessor,
such lease being presumptively made with the acquiescence
of the mortgagee (o) . If it be intended that fixtures shall
not be included in a mortgage, the terms of the mortgage
deed must express that intention ; so if it be intended that
some fixtures should pass and others not (p) ; or if it be
intended that some things should be mortgaged with the
land which are not strictly fixtures {q). But in the
absence of an intention to the contrary expressed in the
mortgage deed, it will pass all fixtures ; and the express
mention of some of the fixtures is not sufficient alone to
exclude the others not mentioned (r). A mortgage gives
no implied power to sever fixtures ; nor does a power in a
mortgage deed to sell the land or any part thereof, unless
{l) Walmsleij v. Milne, 7 C. B. L. J. C. 114.
N S 115 ; 29 L. J. C. P. 97 ; Cull- [o) Sanders v. Davis, L. R. 15 Q.
tvick V. Stvindell, L. R. 3 Eq. 249 ; B. D. 218 ; 54 L. J. Q. B. 576.
36 L. J. C. 173; Climie v. Wood, {p) Trappes v. Uarter, 2 G. ScM.
L R 4 Ex. 328 ; 38 L. J. Ex. 223 ; 153 : Waterfall v. I'enistone, 6 E.
Lowjhottomx. Berr>j,'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. (<?) Fhilips v. Robinson, 4 Biiig.
{d) riowdeii, 323 ; Sheppard's 106; Lord v. Wardh; 3 Biug. N. C.
Touch. 470; Wms. Ex. 610, 4th ed. 680; Fratt v. Vizard, 5 B. & Ad.
(<•) 3 Co. Inst. 109 ; Itex v. West- 808.
12G USES AXD PROFITS OF LAND.
delivered as an escrow to take effect upon payment of the
pnrcliase-raoney, the property in the deeds passes con-
ditionally upon the pajmient, hut upon payment hecomes
ahsolute from the delivery of the deed, to the exclusion of
any intermediate dealings with them {//). The purchaser
is presimipti^-ely entitled to delivery of all deeds and
documents relating to the property that are in possession
of the vendor, though of earlier date than the title shewn
and accepted ; but a covenant to produce title deeds
extends only to the deeds and documents which are
necessary to make a good title (/). He is also entitled to
have all the deeds that are material to the title correctly
stamped. A deed of mortgage which was paid off upon
the occasion of the sale must be delivered to the purchaser
stamped for the full amount of the mortgage at the
vendor's expense, because it would not otherwise be avail-
able as evidence of the title (/.•) .
Lessee. A lease under seal is usually made by indentures of
lease and counterpart, the former executed by the lessor
and delivered to the lessee, who at the same time executes
and delivers the counterpart to the lessor. The prima facie
inference is that the property in the indenture of lease
belongs to the lessee, and in the counterpart to the lessor.
Upon determination of the lease by lapse of time or by
forfeiture, the lessor acquires no riglit to a return of
the indenture of lease ; it ff)rms no part of his title, and
remains the property of the lessee. An assignment or
surrender of a lease would jvimd facie carry the property
in the indenture of lease with it ; the title deed going with
the estate in the land (/).
Mortgagee. A mortgagee of the legal estate is in the position of a
purchaser, as regards delivery of title deeds ; and upon the
like principle a mortgagee on being paid off is bound to
(h) JTooper v. Eamslottom, 6 {k) lie TFhithi// and Loomcs, L. R.
Taunt. 12. 17 C. D. 10; 50 L. J. C. 4G3.
(i) Parr v. Lovegrove, 4 Drew. {I) Hall v. JJall, 3 M. & G. 242 ;
182 ; Cooper v. FAnery, 1 Phill. 388. Elworthy v. Sandford, 3 H. & C.
330; 34 L. J. Ex. 42.
CHAP. IX. 1 ITLE deeds; ]1EIRJ,()0MS. 127
re-deliver tlio deeds. After discharge of the moi-tgago debt
he has no further interest in the land and no right to keep
anything relating to it ; he cannot claim to have a copy of
the deed of mortgage, or of the reconveyance to the mort-
gagor, at his o^\'n cost or the cost of the mortgagor {ni) .
Upon foreclosure the mortgagee, becoming absolute owner,
is entitled to possession of all deeds relating to the title prior
to the date of the mortgage ; but he is not entitled to
delivery of subsequent deeds relating to the equity of
redemption (»).
In the case of land settled upon tenants for life with Custody of
remainders over, the general rule is that the legal tenant between
for life in possession is entitled to the custody of the title tenant for
deeds (o). Tlie tenant for life holds the deeds for the versioner.
benefit of all persons interested in the title ; all of whom
are pn'nid facie entitled to production and inspection of the
deeds when necessary for dealing -ftith their several estates
and interests ; but the Court will not incidentally deter-
mine the title of a remainderman in a suit merely for the
production of deeds, and will refuse production until the
title is clear {p). A tenant for life can create no permanent
charge or lien upon the deeds that will be available against
his successor ; in wliom the custody of the deeds vests im-
mediately upon the death of the tenant for life {q). A
mortgagee of the remainderman is in the same position as
his mortgagor as regards custody of title deeds ; therefore
he cannot lose priority merely by reason of not holding
them during a prior tenancy for life (;•) .
As between trustee and cesfid que trust it is, in general, Between
trustee and
(;«) Re Wade ami Thomas, L. R. L. J. C. 562.
17 C. D. 348; oO L. J. C. 601. (/>) 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/., (</) WhaUci/ v. Lancashire Ri/.
L. R. 10 Ex. 4; 14 L. J. Ex. 15. To., L. R. 13Q. B.D. 131 ; 53 L. J.
(/) Per cur. Trafford v. The Q. B. 285.
I^ing, 8Bing-. 211.
1,2
148
USES AND PROFITS OF LAM).
CHAPTER ^.—continued
Section 2. — Running Watek.
Property in natural streams — remedies of riparian owner — streams
below the surface.
Rights of ordinary use by riparian owners— diverting water for extra-
ordinary use.
Eights acquired in excess of riparian rights— rights acquired by non-
riparian owners.
Property in bed of stream — change of bed — encroachment on bed.
PubUc navigable river — riparian rights upon navigable river — obstruc-
tions to na^-igation — change of course — private navigable river —
towing path.
Property in
natural
streams.
"Water running in a natiu\al stream is not a subject of
absolute property. A riparian land owner is entitled on
the one hand to have the water flow, but he is obliged on
the other hand to recei\e it and to let it flow, in its natural
state ; as expressed in the maxim " aqua ciirrii et debet
currere ut currere solehaV^ ; and he has only a limited
right to use the water as it flows [a). The rights of the
riparian o'WTier in the stream are a natural incident of his
property in the land ; and they pass by a conveyance of
the land mthout express mention. "Where the owner of
land containing a spring and stream of water sold and
conveyed the lower part of the land through which the
stream flowed, it was held that the purchaser acquired the
right to the flow of the stream and the vendor retained no
right to divert it at the source, although there was no
mention of the water in the deed of conveyance [b).
(«) Per cur. Wood v. Waud, 3 Ex.
775 ; Emlrey v. Owen, 6 Ex. 353 ;
Dickinson v. Grand Junction Canal,
7 Ex. 299 ; Medivay Nav. Co. v.
lionmei/, 9 C. B. N. S. 575.
{b) Canham v. Fisk, 2 C. & J.
126.
CHAP. X. INI.AXn WATEU. 149
— Accordingly it is held tliat where a natural stream is
diverted or taken for some piiLlie undertaking under the
compidsory powers of the Lands Clauses Act, 1845, the
claim for compensation to he made under the Act is not
for land or property taken, but for " injm-iously affecting"
laud by depriving it of tlie use of the stream (c).
A riparian owner can maintain an action for any Remedies of
sensible interference with the stream in its natural course, "P^"*^"^
owner.
which prevents the flow to his land, or diminishes the
quantit}', or obstructs the discharge ; unless it can be
justified as a legitimate use of the water by another riparian
owner. In such action he is entitled to, at least, nominal
damages, and he can recover full damages for loss actually
sustained by being deprived of the use tliat he in fact
makes of the water for any lawful purj)ose {(/). He may
further claim an injimction to restrain such interference
in the future, although the damage hitherto has been only
nominal {<•).
"Water running in a natui"al stream below the surface of Streams
the land is subject to the same rules of law as water surface.
running on the surface, so far as the different circumstances
permit. " The owner of the soil under which the stream
flowed coidd maintain an action for the diversion of it, if
it took place under such circumstances as would have
enabled him to recover if the stream had been wliolly
above ground" (/).
A riparian owner has the right of taking and consuming -Rijxhts of
water from a natm-al stream for the ordinary use of his 'Ordinary use.
{c) S kdYict. c. IS, B. 6S; BKsh {,) Mellish, L. J., C/otces v.
V. Trou-bridgc JJ'aiencorks Co., Jj.Ii. Stajfordshire Potteries Co., L. R. 8
lO Ch. 459 ; 44 L. J. C. 235 ; Stone Ch. 142 ; 42 L. J. C. 107 ; Fenmng.
V Yeovil, L. R. 1 C. r. D. 691 ; 45 (on v. Prutsop Hall Coal Co., L. R. 5
L. J. C. P. Go7. C. D. 769 ; 46 L. J. C. 773.
((/) Pereiir. Onnerotl v. Todmordrn (/) Per cm: Dickinson v. Grand
Mill Co., L. R. 11 Q. B. D. 159; Junction Canal, 7 Ex. 301; Parke,
5' L J (^."Q. AAb; Ken.sit \. Great B., Ilroadbent v. Painsbotham, 11
Eastern P,/., L. R. 27 C. D. 130; Ex. 602 ; 25 L. J. Ex. 121.
54 L. J. C. 22.
150 rSES AND PROFITS OF l.AND.
tenement ; lie may take tlio water for domestic use, as for
drinking, washing, and the like pm-poses; also lie may
take water for watering cattle. The extent of liis right is
limited in general hy what is reasonable under the circum-
stances, regard being had to the similar rights of all other
riparian owners. A riparian owner is entitled to take and
consume sufficient water for ordinary domestic pm-poses,
of washing and diinkiug, -whatever quantity of water may
be thereby exhausted (^). A railway company, as ripa-
rian owners, may take the water in reasonable quantities
for supi)lying locomotive engines and other requirements
of a railway station ; leaving sufficient for all other uses
of the stream (//). But a railway company was restrained
from taking the water of a river for the use of a large
station in quantities Avhich in the judgment of the con-
servators of the river impeded the navigation (/). — A ripa-
rian owner is not entitled to take water for purposes not
connected with his o^wai land ; as in the case of a water-
works company taking the water of a stream for the supply
of a neighbouring town (/i), or riparian owners taking
water for the supply of a county lunatic asylum (/).
Diverting A riparian owner may divert the water of a stream for
tniordinaiT^' extraordinary uses, pro\ided he retm-ns it to the natural
use. stream before it leaves his land, not materially diminished
in quantity, or affected in quality, or delayed in delivery,
to the sensible injmy of the other riparian owners. He
may thus divert and use the water for in-igating the land,
or for woi'king a mill or factory (ni). Nor does the diver-
(r/) Cairns, L. C, Swindon Water- (l) Mcdu-aij Co. v. Roiuncij, 9 C. B.
ivorks V. Wilts Canal, L. R. 7 H. L. N. S. 575.
704. See Roberts v. Richards, 50 (?«) Eiiibrcy v. Owen, 6 Ex. 353 ;
L. J. C. 297 ; Norbury v. Kitchin, Sampson v. Hoddinott, 1 C. B. N. S.
9 .Jur. N. S. 132 ; 3 Post. & F. 292. 500 ; 26 L. J. C. P. 148 ; Kensit v.
(//) Sandwich v. Great J^"". Ri/. Co., Great Eastern Ry., L. R. -27 C. D.
L. E. 10 C. D. 707; 49 L. J. C. 225. 122 ; 54 L. J. C. 19 ; L. Blackburn,
(i) Att.-Gen. v. Great Eastern Orr-Ewing v. Colquhoan, L. R. 2
Ry., L. E. 6 Ch. 572. Ap. Ca. 856 ; Cairns, L. C, Swindon
{k) Suindon Waterworks Co. v. Watencorks Co. v. Wilts ^- Berks
Wilts i- Berks Canal, L. R. 7 H. L. Canal, L. R. 7 H. L. 704.
697; 45 L. J. C. 638.
CHAP, X. INLAND WATKK. 101
sioii and use of tlio water on liis own land disentitle liini
from di^<c•llarg•^ng• it as before, provided lie does not alter
the mode of discharge, or increase the obligation of the
other riparian o-SMiers in receiving it (n), — The rights of
a riparian owner are summarily stated as follows : " By
the general law applicable to running streams, every ripa-
rian projorietor has a right to what may be called the
ordinary use of water flowing past his land ; for instance,
to the reasonable use of water for domestic jim-poses and
for his cattle, and this without regard to the effect Mliich
such use may have in case of a deficiency upon proprietors
lower down the stream. But, fm-ther, he has a right to
tlie use of it for any pm-pose, or what may bo deemed the
extraordinary use of it, provided he does not thereby in-
terfere with the rights of other proprietors, either above
or below him. Subject to this condition he may dam up
a stream for the piu-pose of a mill, or divert the water for
the purpose of irrigation. But he has no right to inter-
cept the regidar flow of the stream, if he thereby interferes
■\\dth the lawfid use of the water by other proprietors and
inflicts upon them a sensible injmy" (o).
A riparian OA\Tier may acquire rights in excess of his Rights ac
natirral riparian rights, by grant or prescription. He may ^^^^ ^^
thus acquire the right to divert the stream -ulioUy or in natural
part fi'om some or all of the lower riparian owners, and "^ *^'
approimate the water to his o^\ti use. " The general nils
of law is that every man has a right to have the flow of
water in his own land without diminution or alteration.
But an adverse right may exist founded on the occupation
of another. And though the stream be either diminished
in quantity or even corrupted in quality, yet if the occu-
(«) JText Ciiiuhcrland Steel Co. v. by the Court in Xiittall v. Brace-
A'eiii/on, L. R. 11 C. D. 782 ; 48 urlf, L. R. 2 Ex. 1 : 36 L. J. Ex. 4 ;
L. J. C. 793 ; Frechette v. St. and in Sandwich \. Great Northern
Jfi/acii/the Co., L. R. 9 Ap. Ca. 170 Jii/., L. R. 10 C. D. 712 ; 49 L. J. C.
(o) L. Kingsdown, Miner v. Gil- 227.
worn; 12 Moore P. C. 156, adoxited
152 USKS AND PROFITS OF LAND.
pation of the party so taking or using it liave existed for
so long time as ma}' raise the presumption of a grant,
the other party whose land is below must take tlie stream
subject to such adverse right "(;j). But such occupation
and use of the water in excess of rijiarian rights has no
operation against other riparian owners, unless it obstructs
or. interferes Avdth the actual exercise of their rights in a
manner to raise a presumption of a grant ; for the other
riparian OAvoiers, though they may grant away or release
their rights, do not lose them by mere non-exercise, and
they may abstain or begin to exercise them whenever they
please {q). A riparian o^vTier who thus acquired the right
of diverting the stream adversely to other riparian owners
becomes absolute owner of the water pro fanto and may
appropriate it to any new use ; and in an action for
obstructing the natui'al stream he may claim damages in
respect of the extended use of the water, " for it is the
necessary effect of every appropriation of running water to
a new and more beneficial use that a wrongful diversion or
abstraction entails a larger measm'e of liability" (r).
Rights ac- The rights of a riparian owner as such, are so insepa-
non-riparian ratcly incident to the possession of the land that they
cannot be granted to a non-riparian owner separately from
the land, so as to give the grantee any rights of taking
water as against other riparian owners ; such a grant
would be valid only against the grantor himself (.s). But
where a riparian owner has diverted the stream through an
artificial watercourse for working a mill or other extra-
ordinary use (which he is entitled to do subject to the rights
of other riparian owners as to the return of the water,) he
may grant and convey the mill and watercourse to another,'
who will thereby acquii^e a j)Osition similar to that of a
{p) Ellenborough, C. J. Bcalnj (r) Holker v. rorritt, L. R. 10
V. Shaw, 6 East, 214 ; Leach, V.-C, Ex. 59 ; 44 L. J. Ex. 52.
Wright v. Howard, 1 S. & S. 190. (.«) Stockport WaterworJcsv. Potter,
{rj) Sampson v. Hoddinott, 1 C. B. 3 H. & C. 300 ; Ormcrod v. Tod-
N. S. 611 ; Roberts v. likhards, 50 mordcn 3Itll Co., L. R. 11 Q. B. D.
L. J. C. 297. 155 ; 52 L. J. Q. B. 445.
owner.
CHAP. X. IM.AM) ^VATER. 153
riparian owner Avitli the same rights (2^). And a non-
riparian owner who can obtain access to tlio streani T)y
means of a iii^te or watercourse through riparian hind may
draw water tVoiu the stream and use it, provided that he
returns it to tlie stream in the same phice, rpumtitj and
condition so as not sensibly to interfere with the rights of
any of the riparian owners ; though he may have none of
the rights of a riparian owner entithng liini as against them
to complain of an interference with the stream {11).
The property in the bed of an inland river or natm'al Property in
stream presumptively belongs to the owner of the banks
through which it Hows. "Where the property in the
opposite banks is in different persons, each of them is
presumptively the separate owner of the bed of the stream
on his side, usque ad modinin flnin aquce^v). This pre-
sumption of ownership may be disj^laced by evidence of
exclusive ownership of the whole bed of the river in the
owner of one of the banks ; and acts of o^nlership in other
parts of the bed of the river similarly situated, of such a
kind as to raise a reasonable inference of one ownership
of the whole, are admissible evidence {w). In a case where
the land in question was originally manorial land, and the
fishery of the river had from time immemorial been let to
tenants as a separate tenement distinct from the riparian
land, the tenants of which had never exercised any right
of fishing or other proprietary rights in the river, it was
held that the presumption of ownership of the bed of the
river in the riparian grantees was rebutted (r). A like
presumption applies in the construction of conveyances.
(<) XuttitU V. Braceurll, L. R. 2 Q. B. 445.
Ex. 1 ; 36 L. J. Ex. 1 ; Swindon (c) Hale, Dc Jur. Maris, Harjrr.
Waterworks Co. v. Wilts and Berks Tracts, pp. 5, 12; Bickett y. Morris,
Canal, L. R. 7 H. L. G97 ; 4o L. J. L. R. I So. Ap. 47.
C. 638. [w) Junes V. Williams, 'I'M. ScW.
{i() Kensit V. Great F.astcru lli/., 326.
L. R. 27 C. D. 122 ; 54 L. J. C. [x) Devonshire v. Pattinson, L. R.
19 ; Ormerod v. Todmorden Mill Co., 20 Q. B. D. 263 ; 57 L. J. Q. B.
L. R. 11 Q. B. T>. 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 (</) Embkton v. Brown, 30 L. J.
B. & C. 408 ; lie null and Selbi/ Jii/., M. 1 ; 3 E. & E. 234.
5 M. & W. 327. (') Hale, Dc J. Maris, Har^.
(*) Seratton v. Brown, 4 B. & C. Tracts, 27.
166 rSES AND PROFITS 01' LAND.
ingly, the part of a pier extending into tlie sea between
high and low water marks was held to be extra-parochial,
in the absence of evidence to the contrary {d). It is now
provided by 31 & 32 Yict. c. 122, "The Poor Law
Amendment Act, 1868," s. 27, that "for all civil parochial
pm-poses, every accretion from the sea, whether natoi-al or
artificial, and the part of the sea shore to the low water
mark, and the bank of every river to the middle of the
stream, not included within the boundaries of any parish,
shall be annexed to and incorporated with the parish to
which such accretion, part, or bank adjoins in proportion
to the extent of the common boundary." This enactment
was held not to extend to part of a pier built upon piles in
the sea below low water mark ; because that part of the
pier is not within the realm, and therefore not rateable (<?) .
rublic rights The public have. uo general rights over the sea shore of
over sea shore. , no p t i • tit*
passage to and iro, or oi embarkmg or disembarkmg
persons or goods, or of passing over the sea shore for the
purpose of bathing in the sea (/). They may acquire
special rights of way and other similar rights, by custom
or dedication, in the same manner and to the same extent
as over private property in general ; and there may be a
public right of way from one place to another over the sea
shore, varying in direction according to the state of the
tide (ff). An owner of land adjoining the sea shore may
acquire a special right of using the shore as access to the
sea (h). " For the purpose of the king's subjects getting
upon the sea to exercise their unquestionable rights of
coimnerce intercourse and fishing tliere are the ports of the
kingdom established from time to time by the king's pre-
rogative" (i).
(d) The Queen v. Mimon, 8 E. & 55 L. J. Q. B. 267.
B. 900 ; 27 L. J. M. 100. (/<) Att.-G. Straits Settlement v.
{e) Blackpool Fier Co. v. Ftjlde Wemijss, L. R. 13 Ap. Ca. 192; 57
Union, 46 L. J. M. 189. L. J. P. C. 62 ; ante, p. 157.
(/) Jiliindcll V. Calterall, 5 B. & (i) Holroyd, J. Blundell v. Cat-
Ald. 268. terall, 5 B. & Aid. 294 ; post, p.
{g) Maddock v. Wallasey Board, 169.
CILAP. XI. SEA AND TIDAl. WATERS, SEA SIIOUE. 167
Grants of sea shore by tlio Crown are taken to bo subject Prerogative
to tlio prerogative rights and duties vested in the CroNvn JjJjJ.!^ ""^
for tlio benefit of the pubhc ; and they are subject to all
rights which may be created by Act of Parliament in the
interests of the public, with or -VNithout compensation for
private damage caused by theii- exercise (J). — It is a pre- Protection of
rogative riglit and duty of the Crown to protect the realm ^*^* ^^°'^®"
from waste of the sea by maintaining unimpaired the sea
sliore as the natural defence, and by provitling sea walls
and other artificial defences where necessary. This prero- Commis-
gative office of the Crown lias been regulated from time to ge'^wers."*
time by the Statutes of Sewers,. imder which commissioners
of sewers are appointed for the purpose of executing it (/•;).
Hence a grantee of sea shore, though priind facie entitled
to exercise all rights of ownership, may be restrained from
any act tliat would impau* the elHciency of the shore as the
natural defence against the sea, such as excessive digging
and removing of sliingle ; and a landowner whose property
is threatened or injured by such act, may claun an injunc-
tion and damages (/) . So if a riparian owner cuts thi'ough
the natural protecting bank of a tidal river, or an artificial
wall erected by the Crown or the commissioners of sewers,
he is liable for damage done by an overflow of water into
adjacent land (in).
There is no obligation at common law upon an o^\'ner of Sea walls,
land fronting the sea to maintain a sea wall for the benefit
of the other frontagers ; beyond the above-mentioned obli-
gation to abstain fi'oni any act injmious to the rights and
duties of the Crown and of commissioners of sewers in that
(J) An.-G. V. TomUuc,!.. R. 11 c. 133.
C. D. .58 ; 49 L. J. C. 377 ; Blanhirc (l) Att.-G. v. TomUne, L. R. 11
V. Cl>/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 (<?). If a river changes
its coui'se gradually and insensibly, the boimdaries of the
riparian property, together with the incidental rights of
fishing, change with it ; but if it changes its course sud-
denly, or if it abandons the old course and takes a new
one, the property in the soil is not changed, and the right
of fishing does not pass to the new course (/). — Tidal Tidal rivers,
rivers are treated as arms of the sea, the property in which
is presumptively in the Crown ; and although the water be
fresh at high w\ater, if it flow and reflow "s\ith the tide, it
follows the rule of tidal waters (g) .
The right of fishing in water which for all other uses is Fishery in
the propeiiy of another, is a right of the nature of a profit an" ther.
d prendre. Such right is an incorporeal tenement and
hereditament ; it passes by deed of grant ; an action of
trespass lies for an injmy to it ; and an action of eject-
ment lies for its recovery. It may be claimed by grant or
prescription, but not by custom (h). — A " several fishery " Several
is a right of fishing in the land of another, exclusively of
the owner himself and of all other j)ersons. The term is
used to describe the fishing as a separate subject of pro-
perty, in distinction to fishery as the ordinary incident of
property in tlie land and water. " A several fishery is a
right to take fish in alieno nolo, and to exclude the OANTier of
the soil from the right to take fish himself " (/). A " sole
{(T) Hale, Be Jure Maris, ch. i, (//) Aslihurst, J., Tlie King v.
Hargr. Tracts, 5 ; ante, p. 153. Old Ahrxford, 1 T. R. 361 ; Somerset
(e) Devonshire v. Piit/'uison, L. R. v. Foijivell, 5 B. & C. 875 ; llolford
20 Q. B. D. 263; 57 L. J. Q. B. v. BaUcy, 13 Q. B. 426; XcUl v.
189. Devonshire, L. R. 8 Ap. Ca. 135,
(/) Ante, p. \U. post, pp. 330, 562.
{g) Hale, Dc Jure Jfaris, Hargr. (/) Colcridg-c, C. J., Foster v.
Tracts, 12, post, p. 178. If'right, L. R. 4 C. P. D. 449 ; 49
L. J. C. P. 100.
176
USES AND PROFITS OF LAND.
Free fishery.
Common of
fishery.
and exclusive fishery " is an equivalent description of a
" several fishery." " These words contain a description of
precisely the same right as is ordinarily expressed by the
term ' several fishery/ that is, the right of fishing exclusive
of all others in a particular place " (J). The exercise of a
several and. exclusive fishery, as an act of ownersliip, is
presumptive e%idence of a title to the soil ; but this is true
only " where the terms of the grant are unknown ; and
where they appear and are such as convey an incorporeal
hereditament only, the presumption is destroyed "(/.•) .
" If a man be seized of a river and by deed do grant
sepnral )]i piHcat'iam in the same, the soil doth not pass, nor
the water, for the grantor may take water there ; and if
the river become dry he may take the benefit of the soil ;
for there passed to the grantee but a paiiicular right. For
the same reason, if a man grant aqiiam siiam the soil shall
not pass, but the pischary within the water passeth there-
mth " (/). — A right of fishing in the land of another in
common with the owner, or in common with others to
whom similar rights are granted, is called a " free fishery,"
or liberty of fishing ; and relatively to others having the
like right, it is called a ^' common of Jis/ienj.^' "A man
may prescribe to have srparah-m piacan'am in such a water
and tlie owner of the soil shall not fish there ; but if he
claim to have communiam p'tHcarice or lihcram. pkcariam^ the
owner of the soil shall fisli there " (;;?). " In order to con-
stitute a ' se^'eral fishery ' it is requisite that the party
claiming it should so far have the right of fishing inde-
pendent of all others, as that no person should have a co-
extensive right with him ; for where any person has such
co-extensive right, there is only a 'free fishery '"(;?) . —
0') llolfwd V. Bailey, 13 Q. B.
445.
{li) Buke of Somerset v. For/weU,
5 B. & C. 886 ; Devonshire v. I'at-
iinson, L. R. 20 Q. B. D. 263 ; 57
L. J. Q. B. 189.
(0 Co. Lit. 4 h; Grove, .J., Salt-
ash V. Goodman, L. R. 5 C. P. D.
440; 49 L. J. C. P. 570.
(»«) Co. Lit. 122 «; Hargrave's
note, ih. ; Smith v. Kemp, 2 Salk.
637 ; 4 Mod. 186.
[n) Mansfield, C. J., Sojmour v.
Courtcnat/, 5 Burr. 2817.
CHAP. XII. INLAND AND SEA 1-ISIIEUlES. 177
The grant of a fishery may also be qualified or restricted Qualified
to a particidar kind of fish, as a fishery for oysters ; or a '' ^"^'
grant may be made of the floating fish, reserving the
oysters (o). A fishery may also be restricted as to the
particular mode of fishing (;;).
Fishino: in the open sea is common to all persons of all Fisheries m
nations, subject to mtemational treaties, and subject to the
regulations of each state over its own territorial waters.
By "The Sea Fisheries Act, 1868," 31 & 32 Yict. c. 45, Sea Fisheries
statutory effect is given to a convention between the sove-
reigns of the United Kingdom and France relative to
•fisheries in the seas between those countries, which is set
out in a schedule to the Act. By this convention it is
agreed. Article I., that " British fishermen shall enj'oy the
exclusive right of fishery within the distance of three
miles fi'om low water mark along the whole extent of the
coasts of the British Islands ;" and Frencli fishermen shall
enjoy the like exclusive right of fishery within the same
distance along the coast of France. " The distance of
three miles fixed as tlie general limit for the exclusive right
of fishery shall, with respect to bays, the mouths of which
do not exceed ten miles in width, be measured from a
straight line drawn from headland to headland." By
" The Sea Fisheries Act, 1883," 46 & 47 Vict. c. 22, statu-
tory effect is given to an international convention regulat-
ing the fisheries in the North Sea, in similar terms. The
convention is made between the sovereigns of the United
Kingdom, Genuany, Belgium, Denmark, France, and the
Netherlands, and by Article I. applies to the subjects of
the contracting parties. By Ai-ticle II., '' The fishermen
of each coimtry shall enjoy the exclusive right of fishery
within the distance of tliree miles fi-om low water mai'k
along the whole extent of the coasts of their respective
(o) Rogers v. Allen, 1 Camp. 312 ; (p) The Ki»g v. Ellis, 1 M. i- S.
Seymour \. Courtenaij, 5 Burr. 2817. G52.
178 USES AND PROFITS OF l.AXD.
couutries, as well as of tlie dcpciidcut islands and banks.
As regards bays, the distance of three miles shall be mea-
sured fi'om a straight line drawn across the bay, in the
part nearest the entrance, at the first point whore the width
does not exceed ten miles." Article IV. fixes the limits
of the North Sea for the purpose of the convention.
Fisheries in The right of fishing in arms of the sea and in tidal rivers
sea and tidal is pHma facic common to all subjects of the realm (o). The
■waters. public right extends with the tide to high water ; and it
seems that it includes a general right of taking fish found
upon the sea shore when the tide is out, and of going upon
the shore for that purpose (/;).
Crown grants In early times the Crown, in whom the territorial pro-
^^' perty in arms of the sea and tidal rivers was vested at
common law, claimed and exercised the right of granting
the franchise or liberty of fishing therein to private grantees,
to the exclusion of the general public, until restrained by
the Great Charter and the subsequent renewals thereof.
By the Charter of John, c. 47, it was declared that all
waters should be open that had been closed by that King
himself. And by the- subsequent Charters 9 Henry III.
c. 16, and 25 Edw. I. c. 16, it was provided that " No
rivers shall be defended from henceforth, but such as were in
defence in the time of King Henry II., by the same places
and the same bounds as they were .wont to be in his time."
Consequently it is now held that any private fishery claimed
in arms of the sea or in tidal waters must be founded upon
a Crown grant that can bo proved, or at least presumed, to
have been made not later than the reign of Hemy II. {q).
If the grant of a fishery made before that date has since
reverted to the Crown, by forfeiture or otherwise, it is not
(&) Hale, Be Jure Maris, c. iv ; {q) Blackst. Tracts, Mag. Cart. ;
Fitzwalter''s Casc,\'h'Lo(i..\Qb; Ward 2 Blackst. Com. 39; see Somerset
V. Creswell, Willes, 265. v. Fogicell, 5 B. & C. 875 ; Malcolm-
{p) Bagott V. Orr, 2 B. & P. 472 ; son v. O'Dea, 10 H. L. C. 593 ;
but see Bavley, J., Bhmdell v. Cat- Carlisley. Graham, L. R. 4 Ex. 361 ;
terall, 5 B."^ & AlcT. 307. 38 L. J. Ex. 226.
<TI\r. \n. TNI. AND AND SF.A TISIIEIUKS. 179
thereby merged or extinguished ; it continues to exist as
a distinct franchise tliat may validly be re-gi'anted (;-) .
And a nominal siurender to the CroAvn for the purpose of
a modern re-grant does not destroy the right (.s). Hence
it appears that " the Crown can grant a several fishery in
such waters since Magna Charta, if that fishery existed
before Magna Charia." And "if the Crown's patent piu'-
ports to grant a several fishery, and the grant is followed
by sufficient user of it as such, that is always held sufii-
cient evidence tliat the fishery existed before Magna
C/iarta" (f). — A Crown grant thus legalised may be a
"several fishery" strictly so called, that is, exclusive of
all other persons ; or it may be a " free fishery," that is,
a mere liberty of fishing, exclusive of the public in general
but not exclusive of any other grantees to whom the like
liberty may be given ; in relation to whom it becomes a
" common of fishery" (u). And it is said that " the King
may grant fishing in some known precinct that hath known
bounds, though within the main sea," as an exclusive right
of fisliing between high and low water marks of the open
sea (r) . A crown gi-ant may be made to a body corpo-
rate ; or to a section of the public, as the inhabitants of a
borough, provided the terms of the grant expressly or
impliedly incorporate them, so as to enable them to hold
the fi'anchise in a corporate capacity {ic) .
A claim to a several fishery or to a free fishery in arms of Prescriptive
the sea and tidal rivers may also be supported by prescrip- ^^'
tion ; and immemorial enjoj'ment of a several or free
fishery is presmncd to have had the legal origin of a valid
{)■) Colchester v. BrooJce, 7 Q. B. O'Dca, lOH. L.C.o93; aiife, ^.175.
339 ; Northumberland v. lloughtou, (r) Hulc, Ik J. Maris, supra ; see
L. R. 5 Ex. 127 ; 39 L. J. Ex. G6. Emblcton v. Broun, 3 E. & B. 234 ;
(.s) Mayor of Saltash v. Goodman, 30 L. J. M. 1.
supra. («') Saltash v. Goodman, L. R. 7
(0 1,. Blackhum, Xeill V. Devon- C. D. 106; 50 L. J. C. P. 508 ;
shire, L. R. 8 Ap. Ca. 180. Goodman v. Saltash, L. R. 7 Ap.
{!<) ILi\c,DcJ.Maris,c.y,B.iirgr. Ca. 633; 52 L. J. Q. B. 193; lie
Ti-acts, 17; Case of Banne Fishcnj, Free Fishers of Favcrsham, 57 L.J.
Sir J. Davies, 55; Malcolmson \. C. 187. See post, p. 565.
n2
180 USES AXD PROFITS OF LAND.
grant from the Crown, npon the principle of presuming
everything to be rightfully done in favour of an established
usage (x). Accordingly the grant may be presumed to
have been made subject to exceptive rights or conditions
in favour of the i:»ublic or of certain classes of the public,
in accordance with the e^ddence of prescriptive enjoy-
ment {//) ; but such presumption cannot be made to displace
a title to an absolute several fishery founded ujion
documents and possession, and in such case excej^tive enjoy-
ments wall be presumed to have been either with licence
or by sufferance (~) . A several fishery may also be claimed
as prescriptively appurtenant to a manor {a) . But the
general presumption is against a several fishery and in
favour of the public ; therefore if the claimant prosecutes
for unlawful fishing and his claim is disputed a question
of title arises sufficient to oust the summary jurisdiction
of justices {h).
Non-tidal The public in general have no riffht of fishinc- in non-
■waters. x o o o
tidal w^aters and rivers ; for such waters, with the fisheries
therein, are presumptively private joroj^erty; nor can any
public right of fishing in non-tidal waters be acquired by
custom, such right being a pro/it a prendre in alieno solo
which cannot be founded on custom (c). Nor has the
Crown any prerogative right of fishing in a non-tidal
river, the property of a subject j nor of granting a franchise
of fishery in such river to a subject {d). — A public right of
na\dgation in a navigable non-tidal river is limited to the
purposes of navigation and does not carry with it any
right of fishing (e).
{x) Hale, JDe J. Ifaris, Hargr. (c) Lloxjd v. Jones, 6 C. B. 81 ;
Tracts, 18, 19; Carter v. Mtircot, 4 Bland y. Lipscontbe, 24 L. J. Q. B.
Burr. 2162; Mannall v. Fisher, 5 156, n. ; Uudsonv. Macrae, 4 B. &
C. B. N. S. 856 ; Malcolmson v. S. 585 ; 33 L. J. M. 65 ; Hargrcaves
WLea, 10 H. L. C. 573. v. Diddams, L. R. 10 Q. B. 582 ;
(y) Goodman v. Saltash, L. R. 7 44 L. J. M. 178; ante, p. 162; see
Ap. Ca. 640 ; 52 L. J. Q. B. 193. post, p. 562.
(2) Neill V. Duke of Uevonshire, (d ) DevonsJm-e v. Pattinson, L. R.
L. R. 8 Ap. Ca. 135. 20 Q. B. D. 263 ; 57 L. J, Q. B.
(a) Jioffcrs V. Allen, 1 Camp. 309. 189.
(i) The Queen v. Stimpson, 4 B. {e) Recce v. Miller, L. R. 8 Q. B.
& S. 301 ; 32 L. J. M. 208. D. 026 ; 51 L. J. M. 64 ; Fearce v.
CIIAl'. XU. INhANJJ AND SEA FISHERIES. 181
Tliu Crown also in oarly times exercised a prerogative Fisliing
right of erecting weirs or dams for fishing in arms of the ^^'^'^"'
sea and tidal rivers, which are Crown property, to the ex-
clnsion of puLlic riglits of fisliing and of navigation ; and
of granting sneh weu-s, wliieh are part of the soil itself,
in private ownership to individnals or corporate bodies.
But bj the Charter of 25 Ed. I. c. 23, confirming the Public navi-
Magna C/tarfa of John, it was enacted that "iUl weirs fe'^^^le "vers,
fi'om henecfortli sIkiII he utterly put down by Thames and
Medway, and tlu'ough all England, except by the sea
coast." This statute being general in its terms would
prima facie apply to all rivers public or private, but the
generality of the statute was held to be restrained by later
statutes to public navigable rivers only (/). And by the
statute 25 Ed. III. st. 4, c. 4, reciting that the common pas-
sage of ships and boats in the great rivers of England is
often distm'bod by the levying of weirs to the damage of
the people, provided that " all sucli weirs which were levied
and set up in the time of Edward I. and after, till now,
in such rivers, whereby the said sliips and boats shall be
disturbed, shall be put out and utterly pulled do-^m without
being renewed." This and subsequent statutes in similar
terms, 1 Hen. IV. c. 12, 4 Hen. IV. c. 11, 12 Ed. IV. c. 7,
have been recently repealed by the Statute Law Revision
Act, 1863, but with express saving of past operations and
existing riglits. This statute, in expressly restricting the
operation to weirs set up in the time of Edward I. and after,
was construed as impliedly legalising all weirs set up before
that time, not%vithstanding that they obstructed the chan-
nels of public navigable rivers, whatever doubt there might
be as to the original authority of the Crown to grant
Scotcher, L. E. 9 Q. B. D. 1G2 ; Biur. 21G4, that in navijrable
Han/reaves v. Blddnms, L. E. 10 rivers the fishery is pnhlie, applies
Q. B. 582 ; 14 L. J. IM. 178 ; Lecon- to tidal rivers only.
Jicld V. Lonsdah', L. E. o C. P. 665. (./") Callis on Sewers, p. 2.59, cited
The dictum in the oases of Jfanrn in Jioi/f v. Wliijtc, L. E. 3 Q. B. 300 ;
V. Matthewsy 6 Mod. 73 ; 1 Salk. Lcconjichl v. Lonsdale, L. E. 5 C. P.
357, and in Carter v. Murcot, 4 657 ; 39 L. J. C. P. 305.
182 I'SES A>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<//«rtyv.i'rtyc,Tiraea, 2 8c. Ap. 432; Lord Advocate v.
10 Nov. 1883, in which case a whale Lovat, L. R. 5 Ap. Ca. 273.
caught in the river Crouch, Avithin {ii) Mayor of Maldoii v. JFoolvet,
the manor of Bnrnham, was sue- 12 A. & E. 13.
cessfully claimed by the lord of {o) BagottY. Orr, 2 B. i: T. 472.
the manor.
( 18^ )
PART 11.
USES AND PEOFITS IN LAND OF ANOTHEE.
Chaptek I. Easements.
II. Profits a prendre.
III. Eents.
IV. Public uses of land
( 185 )
INTRODUCTION.
It lias been ali'eady noticed in the Introduction to the Rights in land
former Part of tliis Avork that some uses and profits of of another.
land may be appropriated separately from the general
ownership. They may be held by one person, while the
land whieli supplies them, for all other uses and profits,
belongs concm-rently to another person ; ^liose general
riglits of ownership are necessarily to a corresponding
extent diminished or restricted. Eights of this kind
are here designated as riglits of use and profit in the land
of another, adopting the phrase jura in re aliena of the
lioman law ; which also designated them by the term
servituies, in reference to the land subjected to them.
These are incorporeal riglits, because the owner has not Incoi-poreal
possession of the land which is the corporeal subject of "^^*^-
property, but only the use of it for cei-tain purposes, or
some profit derived fi-om it, whilst it remains in the posses-
sion of another. Being incorporeal they arc incapable,
technically speaking, of entry, seisin, disseisin or livery ;
they do not lie in teniu'e, and therefore do not admit of
reservation of rent or service, or of distress {a). Also,
being incai»able of livery, they are said at common law to
lie in grant, that is to say, they pass by deed only, whether
for an estate in fee or for life or for j-ears ; except that
when appendant or appurtenant to land they pass by any
conveyance that is sufficient to pass the land to which they
are appended {h). The chief importance of this distinction
has been taken away by the statute 8 & 9 A^ict. c. 106,
reqiming a feoffment with livery to be evidenced by deed;
{a) Co. Lit. 9 (7, /' ; 142 a ■ 181 a. (b) Co. Lit. 49 a ; 121 *^ ; 172 a.
186
USES AIS'D PROFITS IX LAND OF AISOTHER.
Easements.
Profits a
prendi'e.
Eents.
Conditions of
legality.
aud enacting- tliat " all corporeal tenements and heredita-
ments shall be deemed to lie in grant as well as in
livery."
Ivig'htsof this kind are distinguished as being Easements or
rights of mere use, and Profits to be taken or rendered out
of the land. The former consist in the o^vner of certain
land being entitled to have some specific use of the land of
another for the more convenient use of his own land, but
without taking any material profit out of it ; as a right of
way, or a right of access of light, or a right to use a water-
course. Accordingly an easement is defined to be "a
privilege that one neighbour hath of another without
jw'ofit; as a way or a drain through his land, or such
like"(6'). — The latter or profitable kind of rights include
rights of taking some material profit from land of
another, as the right of pasturing cattle, of taking wood or
turf or fuel, or of taking minerals or part of the soil ;
and rights of receiving a profit out of land to be rendered
by the tenant in money or kind, as rent. The profits to
be taken by the person himself are said, in the language
of the common law, to lie in inender, and are called profits
a prendre ; and profits to be received at the hand of the
tenant are said to lie in render (d).
It is a necessary condition of a claim or right over land
of another that it be strictly defined and limited. Uncer-
tainty of description or extent renders the claim void. On
the other hand, general ownership of land, as regards the
uses and profits, is indefinite and unlimited, including
every mode in which the land can be lawfully used or
employed. Accordingly it is said, " Servitim or easement
gi^'es a power of applying the subject to exactly deter-
mined purposes. Property or dominion gives the power of
appl}dng it to all purposes " (e). — It is a further condition
that the claim be of a kind recognised by law. " There
are certain known incidents to property and its enjoy-
(c) TermesdelaU)/. (d) Co. Lit. Ml b. (') Austin, Jiu-., v. III. p. 3.
INTKoni CTION. 187
rneut ; certain Luillicns Avliercwilli it may Lo afi'oeied, or
riglits wliich may be created and enjoyed over it by parties
other than the owner ; all which incidents are recognised
by tlie hiw. In respect of enjoyment, one may have the
possession and the fee simple, and anotlier may have a
rent issuing out of it, or the tithes of its produce, or an
easement, as a riglit of way upon it, or of common over it.
And such hist incorporeal hereditaments may be annexed
to an estate Avhicli is wliolly unconnected witli the estate
affected by the casement. All these kinds of property,
however, are well known to the law and familiarly dealt
with by its principles. Eut incidents of a novel kind
cannot be devised and attached to property at the caprice
of the owner. There can be no harm in allowing the
fullest latitude to men in binding themselves and theii'
representatives, that is, their assets real and personal, to
answer in damages for breach of their obligations. But
great detriment would arise and much confusion of rights,
if parties were allowed to invent new modes of holding and
enjoying real property, and to impress upon theii- lands
and tenements a peculiar character, which should follow
them into all hands, liowever remote" (,/').
Covenants or personal obligations affecting the use and Covenauts
enjo}Tnent of land, referred to above, may become to a j'^niiing with
certain extent annexed to the land, or, as it is called, run
■with the land by reason of the natm-e of the covenant.
They may also become obligatory upon purchasers or
assignees of the land by reason of theii* taking it with
notice of the covenants. These covenants have then some
analogy in effect mth casements or rights over the land of
another by subjecting the use of the land to the terms of
the covenant ; which, however, being mere matter of agree-
ment arc capable of wider and more varied scojie than the
(/) Brougham, L. C, KcppcUx. Vl\ : 32 L. J. Ex. 217; McUish,
Bailcij, 2 M. & K. 535; adopted in L. J., Jspdcn v. Seddon, L. R. 1
Ackroyd v. Smith, 10 C. B. 188 ; Ex. I). 509 ; -IG L. J. Ex. 353.
and iu IIUl v. 'Tuppei; 2 H. & C.
ments.
188 rsES AM) rKoirrs ix land of axother.
easements rocoguised by law. On the otlier Land they are
only binding iipon the actual parties to the covenant and
those who become implicated as parties, and they are
attended with different forms of remedy ; being regulated
by the law of contract to which branch of law they properly
belong.
Public ease- There remains to be noticed a class of rights which
resemble easements in being used or exercised over land
held in private property, but which differ from easements
in not being vested exclusively in any individual person.
These are vested in the public generally, that is, in every
individual member of the public, as such, or at least in some
locally defined portion of the public and its individual
members. Of this kind are highways and public rights of
way of all kinds ; also various uses of land founded upon
local customs. Such rights are held by the public, not as
appm-tenant or annexed to land, but independently of any
land or, as it is termed, in gross. They may be described
as Public and Local Uses of the natm^e of Easements. —
The public cannot, nor can any portion of the public,
merely as such, claim to take Profits from land in private
ownership, by any form of grant, prescription, or custom.
In accordance with the above explanation this Part of
the work is arranged in the following Chapters.
( 189 )
CHAPTER I.
EASEMENTS.
Section I. Easements in general.
II. Specific easements.
III. Creation of easements.,
IV. Extinction of easements.
V. Remedies for easements.
Section I. Easements ix general.
Easements appurtenant to land — dominant and servient tenement —
casement in gross.
Conditions of appurtcnancy.
Positive and negative easements.
Licence to use land — revocation of licence— notice of revocation — licence
not assignable.
Licence coiii)led ■with grant — parol grant — grants irrevocable — and
assignable.
Easements admissible in law — specific easements — particular easements
— claims not admitted as easements — covenants concerning use of
land.
Easements arc rights appurtenant or annexed to tlie Easements
ownership of certain land, of using tlio hand of auotlier to'luud!'^'''^
person as auxiliary to it, that is, for the more convenient
use and occupation of it, in addition to the ordinary
incidents of ownership ; so that a conveyance of the land
carries with it tlio appurtenant casements, together with
the ordinary possessory uses, without any sepai'ate con-
veyance or mention of the easements (a).
The land to which an easement is appm-tenant is called, Dominant
in the language of the civil law, the dominant tenement, ten^eme^ur°*
(rt) Co. Litt. 1214.
190 i:SES A>'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 (</) ; and the materials may remain the property of
{)/) Thames Conservancy v. Inland 20 L. J. C. P. 137 ; Smart v. Jones,
Hevcntic, L. R. IS Q. B. D. 279 ; 15 C. B. N. S. 717 ; 33 L. J. C. P.
56 L. J. Q. B. 181. 154.
(.-) Conjx. Ihixtow, L. R. 2 App. (c) V'ood v. Lcadbitter, 13 31. &
Ca. 262; 46 L. J. M. 273; Taylor W. 838, overruling- 7'(/y/<T v. 77'(//'(7-s,
V. Pendleton, L. R. 19 Q. B. D. 7 Taunt. 374 ; see iSatlcr v. Man-
288; 56 L. J. M. 146. c/iester and Lincolnshire liy., L. R.
((/) Wood T. Zeadbitter, 13 M. & 21 Q. B. D. 207.
W. 845. id) The Eimj v. Horndon on mil,
[b) IFood V. Lcadbitter, supra ; 4 M. & S. 562 ; Terry v. Fitzhowe,
Taplin V. Florence, 10 C. B. 744 ; 8 Q. B. 757.
o2
19&
USES AND PROFITS IX LAND OF ANOTIIKll.
Notice of
revocation.
Licence not
assi-mable.
the builder, not^Nithstauding the revocation (r/). If build-
ings be erected or expense incurred by a person upon the
land of another under an expectation raised by the owner
of the land of obtaining a certain estate or interest, a Court
of equity will compel the owner to give effect to such ex-
pectation (e). — Upon the same principle a licence to have
or use a drain or watercourse through the land of another,
unless made appiuienant to land under a grant by deed, is
revocable (/) ; but if the licensee have incurred expense in
constructing the watercourse under an expectation of the
licensor granting a permanent title, the latter will be re-
strained in equity from interfering with it {g) .
The revocation of a licence does not operate to put the
licensee in the position of a trespasser, imtil he has received
notice of the revocation {/i). And " the licensee has a right
to a reasonable time to go off the land after the licence has
been mthdrawn before he can be forcibly thrust off it ; and
he could bring an action if he were thrust off before such
a reasonable time had elapsed " (/). So in the case of a
licence to deposit goods upon land of the licensor, the
licensee is entitled to a reasonable time after notice of
revocation of the licence to remove the goods (k) . The
licensee is, in this respect, in a j)osition analogous to that
of a tenant at will, who, upon a determination of the will
by the landlord, becomes entitled to have a reasonable time
for the removal of himself and his goods (/).
A licence not conveying any estate or interest is personal
to the licensee, and is not assignable to another ; thus the
{d) Harrison v. I'arJcer, 6 East,
1G2.
(e) East India Co. v. Vincent, 2
Atk. 83 ; Jiamsden v. Dyson, L. R.
1 H. L. 129 ; Flimmer v. Mayor of
IFcllinyton, 53 L. J. P. C. 105;
L. R. 9 Ap. Ca. 699; Price v.
Neault, L. R. 12 Ap. Ca. 110;
IIcManm v. Coolce, L. R. 35 C. J).
681 ; 56 L. J. C. 602.
(/) Fcntiman v. Smith, 4 East,
107 ; IJewlins v. Shippam, 5 B. &
0. 221 ; Cocker v. Cowper, 1 C. M.
&R. 418.
{fj) Devonshire v. Elyliin, 14 Beav.
531); 20 L. J. C. 495.
{h) Doe V. Wilson, 1 1 East, 56.
(i) Willes, J., Cornish v. Stubhs,
L. R. 5 C. P. 339, citing' Rolfe, B.,
Woodv.Leadhitter, 13 M. & W. 838.
[k) Cornish v. Stuhhs, L. R. 5 C.
P. 334 ; 39 L. J. C. P. 202 ; Mellor
V. Watkins, L. R. 9 Q. B. 400.
{I) Co. Lit. s. 69 ; Cornish v.
Stubhs, supra; Doc v. M'Kaeg, 10
B. &C. 721.
CHAP. I. EASEMENTS. Vj7
grant of a way in gross, not appmionant to any land, is
a j)ersonal licence to the grantee only, and cannot be
assigned (;y/). A mere licence of pleasure, as to walk in
a park or garden, or to fish, hunt, or shoot, without taking
any profit or property in the fish or animals killed, extends
only to the person of the licensee ; it cannot he exercised
with servants or others by the authority or assignment of
the licensee (n). But a licence to enter and take a profit,
as a licence to take minerals, or a licence to kill and take
game, is in general assignable, as granting a profit d
pron/re (o). — A licence is also personal as regards tlie
licensor ; so that if the land bo assigned to another, whe-
ther by his act or by act of law, the licence is determined
at once and without notice to the licensee (7;). Thus a
parol licence to build on land, though executed, was held
to be inoperative against a subsequent owner of the land
in whom the estate of the licensor became vested ; who
therefore became entitled to pull dowTi the house (q) . So,
a parol licence to an outgoing tenant to keep his fixtm'es
on the land after the expiration of his lease, was held to
be revoked by a new lease given to the incoming tenant ;
such an interest in the land as would avail against the
latter could only be granted by deed {>•).
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 (</). Every inhabitant of a
parish has the right of entering the parish church for the
purpose of attending di\'ine service ; and though it may
be the office of tlie clmrehwarden to distribute seats, he
lias no right to prevent an inhabitant from entering upon
the ground tliat he cannot be conveniently accommo-
dated (/•).
The following claims ha^'e been disallowed as easements Claims not
upon general principles: A claim to free and uninter- e^m*i^^^
rupted access of air and "wdnd from the adjacent land for
the use of a windmill ; because too vague, undefined, and
extensive to be recognised in law (.s) . A claim to unin-
terrupted access of aii" to and from the adjacent land for
the service of the chimneys of a house ; " the right is not
one the law allows, being too vague and uncertain ; one
the acquisition of which the adjoining owner could not
defend himself against" {t). Upon the same principle a
claim to uninterrupted access of light cannot be supported
as an easement to open ground ; the right can only be
claimed as appiu'tenant to houses and buildings [u). The
(o) Maiiiiraririf/ v. Gilis, 5 B. &: and eliurcliyanl for buryino' the
Aid. 3o6 ; Jli/rrlti/ v. WimUts, 5 B. dead, see Frijar v. Jo/iiisoii, 2 Wils.
& C. 1 ; Bridiijitt V. Robtrts, L. R. 28 ; Bri/an v. Whistki; 8 B. & C
5 C. P. 232 ; 39 L. J. C. P. 95 ; 288.
Crisp V. Murtin, L. R. 2 P. D. 15. (.s) Webb v. Bird, 10 C. B. N. S.
(p) irdlidai/v. r/iiinps, "Times," 268; 13 ib. 841; 31 L. J. C. P.
25 Juue, 1888, Day, J. 335; L. Blackburn, Dalton v. Au-
[q) Re Batnttaii, L. R. 9 Eq. GGO ; giis, L. R. 6 Ap. Ca. 824.
39 L. J. C. 383 ; Bi/crUi/v. Wtndus, [t) Bnjanl v. Lcfcver, L. R. 4 C.
supra. P. D. 172 ; 48 L. J. C. P. 3S0.
(/•) Tid/lur V. Tiiiisoii, L. R. 20 (m) Rubtrts v. Macord, 1 31 &
Q. B. D'. 071 ; 57 L. J. Q. B. 210. Rob. 230 ; Potts v. Smith, L. R. 6
As to the use of the parish chuich Etj^. 311 ; 38 L. J. C. 58.
202 USES AND PROFITS IX LAND OF ANOTHER.
claim to an uuiiiteiTuptcd prospect over land cannot be
maintained as an easement. " For prospect, wliich is a
matter only of delight, and not of necessity, no action lies
for stopping thereof ; " and " it has been held expedient
that the right of prospect, which would impose a burden
on a very large and indefinite area, should not be allowed,
except by actual agreement "(*;) . Also a claim cannot
be supported, as an easement for a house or shop, to
be uninterruptedly open to view from a distance, though
such yiew may be valuable ; as in the case of trade pre-
mises, that they should be conspicuous to the public {y) .
Nor can a person claim an easement to prevent the ad-
jacent owner opening windows to overlook his land. " The
Coiu-t will not interfere on the mere ground of invasion of
privacy ; a party has a right to open new windows, al-
though he is thereby enabled to overlook his neighbour's
premises, and so interfere with his comfort." A person
can protect the privacy of his land only by building upon
Compensation it to the exclusion of his neighbom-'s view {z). — Upon the
privacy^&c.' pi'iiK^ipl^e that prospect, privac}^, peace and C|uietness, free-
dom from the noise and dust of public traffic, and other
like amenities and advantages of situation are not proper
subjects of legal riglits, they are also not subjects of com-
pensation, under the Lands Clauses and Railway Clauses
Acts, to oT^Tiers of lands that are "injuriously affected"
by the execution of public works ; the phrase " injuriously
affected" being construed to refer only to injuries in the
strict legal sense, for which damages may be claimed [a).
But in the case of any land or any easement ajipurtenant
to land being taken, for which a claim for comjoensation
arises, the amount may be assessed at the full depreciation
{x) AldrecVs Case, 9 Co. 58 « ; E. 2 Ch. 158.
L. Blackburn, Anrjus v. Balton, L. (;) Kindersley, V.-C, Turner v.
E. G Ap. Ca. 824; see Bvlcs, .J., Spomcr, 1 Dr. & Sm. 467 ; 30 L. J.
Webb V. Bird, 10 C. B. N. "S. 27G ; C. 801 ; Re Tenny and S. E. My.,
Mellish, L. J., Leech v. Schiveder, 7 E. & B. 660 ; 26 L. J. Q. B. 225.
L. R. 9 Ch. 475; 43 L. J. C. 492. [a] Riclcet v. Metrop. liy., L.
(«/) Smith V. Owen, 35 L. J. C. R. 2 11. L. 175; 36 L. J. Q. B.
317 ; litttt V. Imperial Gas Co., L. 205.
(HAT. I. k\si;mkms.
203
of the rest of the land, iiK India g loss of prospect, or of
privacy, or of otlicr like advantages caused by the applica-
tion of the property taken to the pui-poses intended {b).
All such matters as above mentioned, though not proper Covenants
subjects of easements, may be made the subjects of cove- usroUand.
nant, so as to give a right similar to an easement against
the covenantor, so long as he continues the o^\nier of the
land affected ; for he is at liberty to bind himself by con-
tract, as he thinks proper, in respect to the use or applica-
tion of the land in his possession. Such covenants do not,
in general, affect or charge the land permanently ; though,
under certain circumstances, they might become binding
in equity upon persons taking the land ^vith notice of the
obligations created by them {c) .
Section II. Specific Easements.
§ 1. Ways.— § 2. Light.— ^ 3. Air. — § 4. "Water.- § o. Support. —
§ 6. Fences.
§ 1. Ways.
Ways general and limited.
Ownership of land subject to way.
Limitation of ways by gi-ant — construction of grant as to purposes of
way — as to mode of use.
Limitation bj' prescription.
Ways impliedly limited to service of dominant tenement.
Direction and width of way — deviation.
Construction of ways — repair of ways.
A right of way over land of another may be a general Ways
right of passage for all pm-poses connected with the donii- ^^^^^^ *°
nant tenement ; or it may be a limited right of passage for
certain puqioses only, as for agrieidtm'e, mining, the
• ih) Buccleuch v. Metrop. Board, (c) Mcllish, L.J. , Zffc/t v. iScAk-*;-
L. E. 5 H. L. 418; 41 L. J. Ex. (Jer, L. R. 9 Ch. 475 ; 43 L. J. C.
137. 492; Leake on Contracts, Part VI.
0. 2. Sec antf, p. 187.
204
USES MUD rilOFlTS IN LAND OF ANOTHER.
Ownership of
the hiud.
carnage of minerals, tlie carting of timber, tlie fetcliing of
water, attending market or cliiu'cli. The right may also
be general or limited in respect to the manner of use ; as a
carriage way, a bridle way, a foot way, or a way for cattle.
A claim of way must be alleged in pleadings and legal
proceedings according to its limitation, and it must be
proved according to the allegation. A claim alleged too
largely may fail from defect or variance in the proof (a) ;
but it is immaterial that the proof exceeds the allega-
tion, if it sufficiently includes it {h).
The owner of the servient tenement retains the property
in the land subject to the right of way, and may exercise
all rights of property which do not interfere with the
reasonable use of the way (c) . The use of an unlimited
way is in itself an act of ownership, and is pn'»H'i facie evi-
dence of entire ownership of the land in the absence of
evidence or presumption to the contrary ; so where a road
divided two properties which was used equally by the
owners of both, it was held that, in the absence of other
evidence of ownership, half the road along its length
belonged to each owner, with an appurtenant right of way
over the other half. It seems that such a way would
presumptively be available for all pm-poses and modes of
use, because each owner is entitled so to use it upon his
own half ((^/).
Limitations
of way.
A way is limited and defined, according to the nature of
the title by grant or prescription, either by the express
terms of the grant, or by the actual use upon which the
prescriptive title is founded. " In proving a right by pre-
(a) Ballard v. Dyson, 1 Taunt.
279 ; Ilujham v. Rabett, 5 Bing.
N. C. 622 ; Breivcll v. Toivler, 3
B. & Ad. 735 ; Brimton y. Hall, 1
Q. B. 792.
{b) Duncan v. Loueh, 6 Q. B. 914 ;
Davies v. Williains, 16 Q. B. 516;
20 L. J. Q. B. 330.
{(■) Clifford V. Ifoare, L. R. 9 C.
P. 362 ; 43 L. J. C. P. 225.
{d) Holmes V. BcUiiigham, 7 C.
B. N. S. 336; 29 L. J. C. P. 134;
Mellish, L. J., Bradburii v. Morris,
L. E. 3 C. D. 823.
CHAP. 1. l.ASKMKNIS. 205
script Ion llio user of tlio right is tlio only evidence. In
a grant the Language of the instriunent can be referred to,
and it is for tlic Court to construe tliat Lniguage " {c). A
claimant is required to allege in pleadings whether he
claims by grant or by prescription (/').
A ""rant of a "wav in general terms is construed with Limitation
reference to the circumstances of the dominant tenement, ^^ ^'"^ '
as being open land, or land covered with houses and build-
ings ; also ^^itl^ reference to the natm-e of the serAient way,
as being constructed or adapted for foot passengers only,
or for horses and carriages and other kinds of traffic. The
way may be defined and limited by such cii-cumstances,
subject to the express terms of the grant admitting of the
construction (i/). Away set out for allotments under an
Inclosiu'e Act as " a private carriage road and driftway
for the use of the owiiers and occupiers," was construed to
be a general way for all purposes, in respect of the un-
limited ownership of the allottees {//). The level crossings
on a railway, requux'd by statute, arc not restricted to the
purposes of the adjoining land in its then state and condi-
tion ; but may be used for every purpose to which at any
future time the owner of the. land may think fit to appro-
priate it, subject only to the regulations of the railway
traffic (/). Land compulsorily taken by a local board was
held to carry A\ith it a way of necessity over land of the
grantor, for all purposes for which the board was consti-
tuted (,/). The grant of a way expressed to be " to a loft,
and the space or opening under the loft then used as a
wood-house," was construed as giving a way only for ^hu'-
{e) Willos, J., iniliam.s v. James, K. 8 C. D. 420 ; 47 L. J. C. 599.
L. R. 2 C. P. o77 ; 36 L. J. C. P. {/>) 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<tockport llightraij Jioanl v. 912.
p2
212
USES AND PROFITS IN LAND OF ANOTHER.
continue to pass from tlie adjacent land witliout obstruc-
tion. Tlic only power tlie owner of the adjacent land has
of preventing the acquisition of such easement is by build-
ing upon his own land in a manner to obstruct the light ;
and this he is entitled to do in his ordinary right as owner
to build where and when he pleases, until the adverse right
is acquired (r/) . It is immaterial that he builds, " not to
do himself good, but in spite, for the very purpose of
darkening his neighbom^'s windows ; as the civilians say,
in em nlationcm vicini" (b) . A railway company, holding land
exclusively for the purposes of their railway, has the same
right to build an obstruction merely for the purpose of
preventing an easement over their land {<■).
Bj grant. rpj^^^ easement of light may also be created and limited
by express grant (rf). And under certain circumstances
the easement may arise as an implied incident in a grant
of the dominant tenement. Where the owner of two tene-
ments disposes of one of them, which is so situated as to
require for its continued enjoyment as it stands an un-
interrupted access of light from the other, such easement is
implied to the extent to which it exists in fact at the time
of the disposition, though no express grant be made of it
in the conveyance of the tenement (e).
of The easement of light can be acquired only as ajopur-
tenant to a house or building ; it cannot be claimed in
respect of open land, so as to prevent the owner of the
adjacent land from building upon it (/). The easement is
described in the Prescription Act as, " the access and use
of light to and for any dwelling house, workshop, or other
Easement
light is ac
quired for
buildings
only.
(a) Taplinq v. Jones, 11 H. L.
C. 290 ; 34 L. J. C. P. 342 ; post,
p. 216.
{b) Lord Blackburn, liwmell v.
WatU, L. R. 10 Ap. Ca. 610.
(f) Bonner v. Great Western Iti/.,
L. R. 24 C. D. 1.
{(l) Selborno, L. C, DaUon v.
Angus, L. R. G Ap. Ca. 794 ; Lord
Blackburn, ib. 823, dissenting from
the opinion of Littledale, J., Moore
V. Ilawson, 3 B. & C. 340, that the
right to light was the subject, not
of grant, but of covenant.
(t) Leech v. Sehiveder, L. R. 9
Ch. 463 ; 43 L. J. 0. 4 87 ; Russell
V. Waits, L. R. 10 Ap. Ca. 590;
bo L. J. C. 1.58 ; post, p. 270.
(/) I'otts V. Smith, L. R. 6 Eq.
318 ; 38 L. J. C. 58 ; llobcrts v.
Macord, 1 M. & Rob. 230.
CHAP. I. EASEMENTS. 213
building, actually enjoyed therewith " (^). A building
roofed in but with open sides is not within this description.
The easement must be claimed for some certain defined
opening ; and not for the building generally, to be used
sometimes tlii'ough one opening and sometimes through
another at the pleasure of the OTVTier. Accordingly an
erection of stages for storing and selling timber, roofed in
but with open sides, except when more or less filled up
with the timber, was held not to be a building for which
the easement could be claimed under tlic Aet(//). The
position of the building relatively to the servient tenement,
whether at the boundary or at some distance from it, is
immaterial, except as affecting the degree of light and the
limit of the easement (/) .
The limits of the easement in extension over the servient Limits of
tenement is regidated by the magnitude and position of the servient
window or opening to Avhich it is appurtenant. " The tenement,
aperture wliich lets the light into the dominant tenement
defines the area which must be kept free over the ser\'ient
tenement" (./). The easement may extend over a servient
tenement that is separated from the dominant tenement by
a road or other space of land not belonging to the servient
owner (/.•) . — As to the degree of obstruction that becomes
■\\Tongful it is laid down, " that in order to give a right of
action there must be a substantial deprivation of light suffi-
cient to render the occupation of the house uncomfortable,
or to prevent the occupier from carrying on his accustomed
business on the premises as beneficially as he had fonnerly
done. It is a question of fact and degree in each particular
(fl) rust, -p. 2S7. 43-J; Xationnl Froiinc. Ass.x. Frit-
(//) JIanU V. Be Pinna, L. R. 33 (Initial ./.s?., L. E. G C. D. 757;
C. D. '238 ; 50 L. J. C. 341. 46 L. J. C. 871.
(i) Cross V. Zeiiis, 2 B. & C G8G. (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 (<?). "There is this difference
between the present claim and the claim to light. The
right in that case is always hmited to the particular
^^indow or aperture througli Avhieli the light has had
access ; it is one, therefore, against which an adjoining
owner can defend himself by blocking it up within the
period necessary for the gaining of a riglit. But here the
claim is of such a character that its enjoj'mont could only
be prevented by surromiding the land with erections as
high as it might at any time be wanted to build on the
land" (/). — Accordingly an easement cannot be claimed to
have the free passage of air for the working of a Avdndmill ;
for the reason that the adjacent laud owner has no practical
means of preventing it, and that the claim is too vague,
undefined and extensive to be recognised by law {y). So,
a claim cannot be supported for the fi'ee access of air to a
timber staging or structure used for storing and diying
(f) Selbome, L. C, City Brewery feld Brewery, 49 L. J. C. 655.
Co. V. Tennant, aupra. (/) Bramwell, L. J., Bryant v.
(rf) Bryant v. Lr/crer, L. R. 4 C. Ltjeirr, L. K. 4 C. P. D. 178 ; 48
P. D. 172 ; 48 L. J. C. P. 380 ; L. J. C. P. 383.
Marrisy. I)v l'i)oia, L. R. 33 C. D. (</) II'M v. Bird, 13 C. B. N. S.
238; 56L. J. C. 344. 841; 31 L. J. C. P. 335; ante,
(c) Ante, p. 203; JIall v. Lic/t- p. 201.
220 VSES A^'D PROFITS IN LAND OF AKOTHER.
timber, wliicli -would in effect prevent building on the
adjacent land (//). Upon the same principle no claim can
be made by the owner of a house for an obstruction to the
di'aught of the chimney and the escape of smoke, caused by
buildings upon the adjacent land. " The right claimed is
not one the hiAV allows, being too vague and uncertain ;
one the acquisition of A\-liich the adjoining owner could not
defend himself against " (/).
Nuisance by The owner of land is prima facie entitled to have the
aii-. air in its natural state, unjDolluted by any nuisance ema-
nating from the adjacent land ; but in order to give cause
of complaint there must be a substantial interference with
the reasonable use and enjoyment of the property, having
regard to its position and circumstances {j). — The owner
of a dwelling-house is entitled to have the air sufficiently
pure and uni3olluted for the purpose of habitation, and
may complain of noxious smells or vapours or infection
of disease discharged from the adjacent land. An action
lies for keeping pigs so close to a dwelling-house as to
pollute the air and render it unwholesome [k) ; or for
carrying on a noxious trade or business, as that of a tallow
chandler (/) ; or that of abrickmaker {m). And an injunc-
tion was granted against carrying on a small pox hospital
so as to be a nuisance by infection to the adjacent
houses (/?). — Pollution of air maybe actionable for inter-
fering with personal comfort, althf)ugli not otherwise
injurious to health. An injunction was granted against
[h) Harris v. Ue Funia, L. R. 33 (/) JiUss v. //«//, 4 Bing. N. C.
C. D. 238; 56 L. J. C. 344. 183.
(i) Dn/ant v. Zefcvfir, L. R. 4 C. {»,) Waltrr v. Sclfe, 4 De G. &
P. D. 178 ; 48 L. J. C. P. 380. Sm. 310 ; 20 L. J. C. 434 ; Cavcy
{J) St. Jfrlen's Hmellxng Co. v. v. TAdhetier, 13 C. B. N". S. 470;
Tipping, 11 H. L. C. 642 ; 35 L. J. 32 L. J. C. P. 104.
Q. B. 66 ; Halvin v. North Brance- («) Hill v. Metrop. A-sylum, L. R.
peth Coal Co., L. R. 9 Ch. 70o ; 44 4 Q. B. D. 433 ; 6 Ap. Ca. 193.
L. J. C. 149. See Fleet v. Melrop. Afujlnm, Times,
[k) AldrecVs Case, 9 Co. 57 b. 3 Mar. 1886.
CHAT. 1. KASEMKNTS. 221
the erection of a puLlie uiiiial so near a dwolliiig-liouse as
to be a nuisauco to the occupiers {o). Ami nuisances may
be dealt with under the Public Health Act, 1875 ('38 & ^39
Vict. c. 55), s. 114, althouglmot injurious to health (/>). —
A nuisance may be actionable by reason of being specially
detrimental to a particular manufacture carried on upon
the adjacent land((/) ; or by reason of being specially detri-
mental to trees and vegetation (r).
The 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 (</). An occupier of land is not justified in
discharging a nuisance upon the adjoining land merely
because it was wrongfully upon his otvti ; nor is he excused
because he was not aware of the nuisance, and was not
guilty of any negligence in permitting it (/■) . Nor is it
any justification of a nuisance such as the pollution of a
stream, that it has ah-eady been polluted by others to so
great an extent as to be unfit for use (.s), " The pollution
Ap. Ca. 781 ; 17 L. J. Ex. 4, aiiie, (q) Uodykiuson v. Ennor, 4 B. &
p. 144. S. 229 ; 32 L. J. Q. B. 231 ; Snow
[p) Car/i/oii V. J.orn-hif/, 1 H. & v. WhitehtaiK L. K. 27 C D. 588 ;
N. 784 ; 2G L. J. Ex. 251 ; Wriyht 53 L. J. C. 885 ; ItaUardw. TomUn-
V. WilUmm, 1 M. & "W. 77. .wh, L. R. 29 C. D. llo ; 54 L. J.
[p) Ttinnit V. Guhhcin, 2 Ld. C. 454. See ante, p. 143.
Raym. 1089 ; Wood v. IFaud, 3 (r) lEuniphries v. Cousins, L. R.
Ex. 748 ; Jiiisscllv. S/ienton, 3 Q. B. 2 C. P. D. 239 ; 46 L. J. C. V. 438.
449 ; lii/fiDids V. Fh-tcher, L. R. 3 (*) If'ood v. U'aud, 3 Ex. 772 ;
H. L. '338; 37 L. J. Ex. 161; Crosshii \. Lufhtoichr, "L. li. -1 Q\i.
Evans v. Manchester S; Sht-Jfidd By. 478 ; 36 L. J. C. 584.
Co., L. R. 36 C. D. 631.
230
rSES AND PROFITS IN LAND OF ANOTHER.
Natural use
of land.
Mining.
of a stream abeady made foul and useless hy otlier pollu-
tions is an injmy without damage ; whicli would, however,
at once become both injury and damage on the cessation
of other pollutions." It is therefore restrained by injunc-
tion (/).
" But the OT\Tier of land holds his right to the enjoy-
ment thereof, subject to such annoyance as is the conse-
quence of what is called the natural use by his neighbour
of his land" (?^). " Wliere the maxim .s/c ufere tuo ut
aUenurn non hedas is applied to landed property it is neces-
sary for the plaintiff to show not only that he has sustained
damage, but that the defendant has caused it by going
beyond what is necessary in order to enable him to have
the natm'al use of his own land" {p). — The natural use of
mineral land is the excavating and raising of minerals ;
hence the owner is entitled to work the minerals without
incuiTing any liability for the flow or percolation of water
into other land caused by natural gravitation in the course
of working ; provided he works in a usual, proper and
careful manner. • But he is liable if he has raised the
water by pumping to a higher level in order to discharge
it ; or if he has otherwise artificially moved or collected
the water and thereby caused the flow ; the lower mine
being presumptively free from any servitude of receiving
water conducted artificially from tlie higher mine (iv) . The
exercise of a trade is an adventitious and not a natural
use of land; and therefore it is no justification of the
pollution of a stream that it was done in the exercise
of a lawful trade carried on in a reasonable and proper
manner and in a projoer place {x) .
{t) Fry, J., Penninr/ton v. Brinsop
Sail Coal Co., L. R. 5 C. D. 772 ; 4G
L. J. C. 773.
[u) Per cur. Uurdman v. North
Eastern Eij., L. R. 3 C. P. D. 174 ;
47 L. J. C. P. 368 ; Bi/lands v.
Fletcher, L. R. 3 H. L. " 338 ; 37
L. J. Ex. 161.
{v) Brett, L. J., West Cumber-
land Iron Co. y.Kenyon, L. R. 11
CD. 787; 48 L. J. C. 796. See
post, p. 237.
{w) Smith V. Ecnrick, 7 C. B.
515 ; Pairdv. Williamson, 15 C. B.
N. S. 376 ; 33 L. J. C. P. 101 ;
Wilson V. Waddell, L. R. 2 Ap. Ca.
95 ; Fletcher v. Smith, L. R. 2 Ap.
Ca. 781 ; S. C. Smith v. Muse/rave,
47 L. J. Ex. 4.
{x) Stockport WatcrworJcsv. Potter,
CHAP. I. EASEMENTS. 231
An easement of discliarge is limited and defined by tlio Limits of
terms of tlie grunt, or by tlio prescriptive use on which it is ^'^'*'-''"^'" •
founded. A grant of a watercourse or di"ain through the
land of the grantor is presumptively limited to the reason-
able service of the dominant tenement in its then state and
condition ; a drain for the use of a certain dwelling-houso
cannot be used for another dwelling-house ; or for largo
additional buildings, as whore an ordinary dwelling-house
was enlarged into a lunatic asylum for a great number of
patients {//). The reservation in a building lease of " the
free running of water and soil coming from any other
buildings and lands through the sewers and watercoiu'ses
under the said premises," was construed to include only
water and the products of the ordinary use of land for
habitation ; so that the lessor could not use the contiguous
land for a manufacture and discharge the refuse through
the sewers (;:). Upon the same principle a prescriptive
right of tlischarging the ordinary refuse water fi-om a
house does not justify the discharge of sewage {a). An
easement of discharging noxious products of a manu-
facture into a stream does not justify a change in the
process of manufactm-e which has the effect of casting
a different or greater bm'den upon the servient tenement
than that established by use {b) ; but it extends to all new
j)roducts that may fi-om time to time bo reasonable and
proper for the manufactiu'o tliat do not increase to any
substantial or tangible degree the amoimt of pollution (c).
— If the diseliaro-o is in excess of the easement in quantity. Discharge in
quality, or dii-ection, and the owner of the servient easement,
tenement cannot by other means prevent the excess, he
may stop the discharge altogether, and the o^v^ler of the
7 H. & N. 160 ; 31 L. J. Ex. 9 ; (a) CawkwcU v. RhsscU, 26 L. J.
ante, p. 222. Ex. 34.
((/) Trood V. Saunders, L. R. 10 (li) Stockport Waiencorksy. Poller,
Ch. 582; 44 L. J. C. 514; James, 7 H. & N. 160; 31 L. J. Ex. 9.
L. J. Metropnl. Board v. London % See Clurke v. Somerset Cominiss., 57
JV. TF. Hi/., L. R. 17 C. D. 249 ; L. J. M. 96.
60 L. J. C. 410. ((') Baxcndaley. M^ Murray, L. R.
[z) Chadwickv. Marsden, L. R. 2 2 Ch. 790.
Ex. 285 ; 36 L. J. Ex. 177.
232
USES AND PKOFITS IX LAM) OF ANOIIIKR.
Maintenance
and repair of
"watercourse.
Alteration of
discharge.
dominant tenement can have no remedy for the ohstruction
of the easement imtil he reduces its exercise within, the
rightful limits. "If a man has a right to send clean
water through a cbain, and chooses to send dirty water,
every particle of the water ought to be stopped, because it
is all dirty " (rf). But if other parties have rights through
the same di\ain who are not acting in excess of their rights,
it cannot be stopped as against them ; the only remetly
then is by an action against the party who exceeds his
right (e).
The owner of the dominant tenement is entitled to enter
upon the servient tenement for the purpose of cleaning and
repairing the channel or watercourse, and of doing all
things necessary for that purpose ; he may do whatever
may be reasonably required for the effectual enjoyment of
the casement (/). — He is not entitled to alter the course
of the discharge ; and he is liable for an escape or dis-
charge of the water or other material in any other direc-
tion or in any other channel {(/). Nor is he entitled to
alter the level or enlarge the channel so as to increase the
flow of the water ; or in any way to aggravate the servi-
tude of the lower tenement (//). But he may alter the
level of a drain or watercourse if necessary to maintain it
in an efficient state ; and where a local authority had
altered the level of the outlet sewer, he was held entitled
to lower the servient cbains to the new level (?).
Artificial
streams.
The discharge of an artificial stream of water may be
beneficial to the lower rij)arian owners ; but though it be
so, and though they have used and enjoyed it for a length
of time sufficient to found a prescriptive title, they do not
(d) Aldcrson, B., Caiv Jewell v.
Emsell, 26 L. J. Ex. 34 ; Charles v.
Finchlo) Board, L. E.. 23 C. D.
767 ; 5'2 L. J. C. 554.
[e) Jessel, M. K,., Att.-Gcn. v.
Borkinr/, L. 11. 20 C. D. 595; 51
L. J. C. 585.
(/) 11 Co. 52 a, Liford''s Case ;
Eodc/son V. Field, 7 East, 613.
{g) Ilumphries v. Cousins, L. R.
2 C. P. D. 239 ; 46 L. J. C. P. 438.
(A) Frechette v. St. Uijncinthe Co.,
L. R. 9 Ap. Ca. 170 ; Taylor v. St.
Helens, L. R. 6 C. D. 264 ; 46 L. J.
C. 857.
(«) Finlinson v. Porter, L. R. 10
Q. B. 188; 44 L.J. Q B. 56.
CHAP. I. KA.SF.MKNTS. 233
thereby acquire any right to its continuance. For it is a
general principle of tlie law of easements " that an ease-
ment exists for the benefit of the dominant owner alone,
and that the ser^ient owner acquires no right to insist on
its continuance, or to ask for damages on its abandon-
ment" (J). " The enjoyment of the casement is of itself
no evidence that the party enjo}dng it lias become subject
to the ser^^tudo of being bound to exercise it for the benefit
of the neiglibom*" (/•). Thus an easement of discharg-
ing an artificial stream of water produced in di-alning a
mine, depending entirely upon the mining operations,
may be abandoned by the dominant owner at any time ;
and the servient owner, though in course of time he may
have become subject to the burden of the flow of the water,
can make no claim to the benefit of its continuance (/).
So the di-ainage of agricultural land may be diverted and
disposed of from time to time in whatever way may be
accessible to the dominant owner, without inciuTing any
liability for discontinuing it tln'ough tlie servient tene-
ment {»i). So where a canal company who had for many
years discharged waste water into another canal, to the
benefit of the latter by increasing the supply of water, by
making certain improvements stopped the discharge of
waste water into the servient canal ; it was held that the
latter could not claim a prescriptive right to the continu-
ance of the supply, because it had been enjoyed by
sufferance only and not of right («) .
Upon the same principle where an ai-tificial stream dis- Eiparian
, , , , . , . . . owners,
charges through several properties, eacJi riparian 0"\\iier m
tui-n, though he may have incurred the charge of receiving
(_;■) Cockburn, C. J., Mtuon v. (;m) Per cur. Woody. jr(iiid,3'Ex.
S/ircivsliufi/ J\i^. Co., L. R. G Q. B. 778; Grcatrcx v. ILai/icard, 8 Ex.
587 ; 40 L. j'. Q. B. '298. 291 ; 22 L. J. Ex. 137 ; Sampson v.
Ik) Per cur. (iavcd v. Jfarti/ti, 19 Hoddinntt, 1 C. B. N. S. 590 ; 26
C. B. N. S. 732 ; 34 li. J. C. P. 3G3. L. J. C. P. 148.
(;) Wood V. IVaitd, 3 Ex. 748; («) Staffordshire and Worcester
Arkwright v. (JcU, 5 M. & W. 231 ; Canal \. liiKminqham Canal, L. R.
Gaved v. Martyn, 19 C. B. N. S. 1 H. L. 254 ; 35 L. J. C. 757.
732 ; 34 L. J. C. P. 3G3.
234
rSES AND PROFITS IN LAND OF ANOTHER.
Permanent
artificial
streams.
the water, and may have acquired the right of discharging
it, is not therefore ohliged to continue the discliarge. He
is priijid facie entitled to stop the water, wholly or in part,
for use upon his own land. " Each may take and use
what passes thi"ough his land, and the proprietor of the
land below has no right to any part of the water until it
has reached his own land. He has no right to compel the
owners above to permit the water to flow tlu'ough their
land for his benefit ; and consequently he has no right of
action if they refuse to do so (o)." But so long as the
owners of the land above suffer the water to pass, they are
bound to discharge it in the accustomed course and condi-
tion, without alteration or pollution, as if it were a natural
stream (p). — But where a permanent natm^al stream or
soiu'ce of water is diverted tlu'ough an artificial channel,
the owners of the tenements thi^ough wliich it flows may
acquire prescriptive rights to the permanent continuance
of the artificial stream ; and in such case the rights of
riparian owners become presumptively the same as in the
case of a natural stream {q) . So, if a permanent system of
collecting and distributing water for the service of a dis-
trict be found existing from beyond the memory of man,
it may be presumed in favour of existing rights to have
had a legal origin, u2:)ou which the respective rights and
liabilities of the riparian owners are based (r).
Discharging
rain-water
from eaves of
house.
Amongst the easements of discharging water into land of
another may be included that of discharging rain water
from the projecting eaves of a house or building, called in
the civil law, jus stillicidia immittendi. In the absence of
an easement to that effect, the building of eaves or gutters
(o) Per cur. Wood v. Wand, 3
Ex. 779 ; Blackburn, J., Mason v.
Shrewsbury Rij. Co., L. R. G Q. B.
584 ; 40 L. J. Q. B. 29C.
{p) Mayor v. Chadwick, 11 A. &
E. 571 ; HulcVijfe v. Booth, 32 L. J.
Q. B. 136.
{q) Suidife v. Booth, supra;
Gaved v. Martyn, 19 C. B. N. S.
732 ; 34 L. J. C. P. 353 ; Ivimcy v.
8tocher, L. R. 1 Ch. 396 ; 35 L. J.
C. 467 ; Roberts v. Richards, 50
L. J. C. 297.
(>•) 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^<ii°gr-
by the adjacent land ; so that the owTier of the ser\ient
building would be precluded from remo^dng it -without
substituting some other sufficient support (c). There is no
presumptive right of mutual support between adjoinino-
houses, in the absence of a special title ; the o-vMier of each
house may pid.1 it down, provided he do so in a careful and
proper manner, without incm-ring liability to the o^s^Tier of
the other {</).
Where houses have been built together by the same Implied
OA\'ner in a manner ob^'iously requiring mutual support, "'"""*•
and are afterwards conveyed in separate tenements, there
is implied in the conveyance, if no intention appears to
the contrary, a grant and reservation of mutual rights
and obligations of sujiport between the several tene-
ments (c) . "Where the porch and pediment of a house was
built parti}' over the front of the adjoining house, upon a
(;) Dodd V. Hohiic, 1 A. & E. (i) Jiuilcr v. Hunhr, 7 II ,t X
493 ; Chadivick v. Troiccr, 6 Bing-. 826; 31 L. J. Ex. 214.
N. C. 1. (<•) Lnnaltre v. Daris, L. R 19
{a) Bower v. Pcatr, L. R. 1 Q. B. C. D. 281 ; 51 L. J. C. 173.
D. 321 ; 4.5 L. J. Q. B. 446 ; Dal/on (d) Peyton v. Mayor of London
V. AnriKs, L. R. 6 Ap. Ca. 740 ; 50 9 B. & C. 725. . '
L. J. Q. B. G81) ; Lcmnilre v. Davis, {e) Jilchanh v. Eose 9 Ex "'IS •
L. R. 19 C. D. 281 ; 51 L. J. C. 23 L. J. Ex. 3. • - -
173.
250 USES AND PROFITS IN LAND OF ANOTHER.
severance of the liouses by conveyance of the former, it
was held that the whole j)oreh and pediment presumptively
went with it, with an appurtenant right of support from
the other house (/).
Prescription. An easement of support from an adjoining building may
also be acquired by an uninterrupted enjoj^nent for the
period required to found a prescriptive title, with the know-
ledge of the o^vner of the servient tenement. An enjoyment
that is secret or sui-reptitious would not found any right ;
but it is sufficient if it be without concealment, and so open
that it might be known to the owner of the servient tene-
ment that some degree of support was enjoyed by the
building. It is an easement within the Prescription
Act{r/). It is said, " properly constructed houses do not,
as a rule, depend for their stability upon the existence of
adjoining houses. No man can, therefore, from the mere
existence in fact of this dependence, be presumed to have
notice of it, and as a consequence be presumed in the event
of his not interrupting it, to acquiesce in his neighbour's
enjoyment of it. Such enjoyment oifends against one of
the cardinal rules governing the acquisition of an easement,
namely, that the user must not be secret " (h). — Where a
house was supported through the support of an intermediate
house by the house next adjoining, it was held, upon the
facts proved, that no easement of support had been acquired
against the latter house merely by reason of the three
houses having rested for a long time in that position,
because the support through the intermediate house was
not open to the knowledge of the owner of the tenement
charged with the support (/).
Eepair of An easement of supj)ort from an adjoining building does
(/) Fox V. C'lnrke, L. R. 9 Q. 13. (i) Solomon v. Vintners' Co., 4 H.
665 ; 43 L. J. Q. B. 178. & N. 58.5 ; 28 L. J. Ex. 370. The
[g) Ballon v. Awjus, L. R. G Ap. judgment in this case suggests that
Ca. 740 ; 50 L. J. Q. B. 689 ; no such presoriptive right can be
Lemaitre v. I)(n:is, L. R. 19 C D. acquired where the houses do not
281 ; 51 L. J. C 173. immediately adjoin. As to the
(h) Thesiger, L. .T., Angus v. support of land through an intcr-
Dalton, L. R. 4 Q. B. D. 167. mediate tenement, sec ante, p. 244.
Cn\V. I. KASKMKNTS. 201
not cast upon the owner any implied obligation to repair Bcrnont
the building- in the absence of express obligation to that "^ '"^"
effect. According to tlio general principle of the law of
easements the owner of the dominant tenement may enter
upon the servient tenement for tlie purpose of doing wliat-
ever may be necessary to maintain the support to wliich he
is entitled {J). Where a house was let for a term of years
with the appiu'tenant easement of support by the wall of
the adjoining house of the lessor, and the lessee covenanted
to repair the demised premises during the term ; the house
having fallen out of repair by reason of the failure of the
supporting wall ; it was held that there was no implied
obligation upon the lessor to repair the wall (/.•).
" There is no obligation towards a neighbom* cast by Injury from
, ,, -PI 11 adjoining
law upon tlie owner or occupier oi a house, merely as such, buildino-T
to keep it repaired ; the only duty is to keep it in such a
state that his neighbour may not be injured by its fall ;
the house may tlierefore be in a ruinous state provided it
be shored sulficiently ; or the house may be demolished
altogether" (/). The occupier is, prima facie responsible
that the j^ropertyis not a nuisance and injm-ious to others;
but the owner may also be chargeable, if he is ultimately
responsible for its condition {m). — If the owner pulls his
house down, he is bound to use proj)er care towards his
neighbour and others according to the circumstances, and
is responsible for injm'ies caused by doing it negli-
gently {n). He is not bound to shore up the house of liis
neighboiu-, unless the latter have acquu-ed an easement of
support ; nor is he bound to give him notice of his inten-
tion to pull down his own house or of the time of doing
so ; at least where his operations are open and obvious (o).
{j) 1 Wms. Saimd. 322(1), Pum- (/«) Itussell v. Shenton, 3 Q. B.
fret V. Ricrofl ; CuMnrky. GirdhW 449 ; Todd v. Flight, 9 C. B. N. S.
Co., L. R. IQ. B. D. 234 ; 45 L. J. 377 ; 30 L. J. C. P. 21 ; Nchon v,
Q. B. 225 ; Stockport IliqUwai/ Board Liverpool Brewert/ Co., L. R. 2 C. P.
V. Gra»t, 51 L. J. Q. B. 357. D. 311 ; 46 L. J. C. P. 675.
{k) Colebeckw.Girdlers' Co., supra. [n) Bradheev. Christ'' s Hospital, A
(l) Chauutler v. Robinson, 4 Ex. M. & G. 714.
163. (o) Peyton v. Maijor of London, 9
252 TisES AM) TRoi rrs in land of another.
Support of The like principles apply where the stories of a house
of house. are apjiropriated in separate tenements. Upon the grant
or lease of an upper story with the reservation by the
grantor of the lower story, the grantor impliedly under-
takes not to do anything which will derogate from his
grant ; and the grantee or lessee of the upper story
becomes impliedly entitled to the support of the lower
story {ji). The o^vner of the lower or servient story
cannot, in absence of covenant or agreement, be charged
with tlie further obligation to repair' ; the owner of the
upper story being entitled, as an incident of his easement,
to enter upon the servient tenement and j)i"0vide the
necessary support, though he cannot compel the owner of
Eepair of fhe servient tenement to do so {q). — So, if a lease be made
of the lower story of a house reserving to the lessor the
ujjper story, it seems that the lessor is not bound to repair
the roof, nor subject to an action for not doing so, without
a covenant or agreement on his part for that purpose ; but
the lessee may repair the roof himself as incident to the
demise (r). — The occupier of a separate story is respon-
sible if he makes an improper or negligent use of his
tenement to the injury of the other occupiers. Thus,
where the occupier of a warehouse put so groat a weight
on the floor that it fell through into the collar occupied by
another person, he was hold liable for the damage caused
to the goods in the cellar (x).
B. & C. 72.5 ; Chadwick v. Trowcr, D. 23-i ; 45 L. J. Q. B. 225.
6 Bing-. N. C. 1. (/•) 1 Wms. Saund. 322 (1), Potn-
(p) Parke, B., Ilarrcs v. Ityding, fret v. Iticroft.
5 M. & W. 71 ; per cur. Humphries (.s) Edwards v. Ilallnder, 2 Leon.
V. Brogden, 12 Q. B. 756. 93 ; Pop. 46 ; Stevens v. Woodward,
[q) See post, pp. 279, 280 ; Cole- L. R. 6 Q. B. D. 318 ; 50 L. J.
beck V. Girdlers' Co., L. E. 1 Q. B. Q. B. 231.
CHAP. I. EASEMENTS. 253
§ G.— Fences.
Obligation of fencing land — trespass of cattle.
Right to have fence maintained upon adjoining land— gi-ant — pre-
scription.
E.xtent of right and liability — damages recoverable.
Ownership of fence — i)arty walls.
Fencing of mines — fencing of railways — level crossings.
There is no presumptive obligation upon the owner of a Obligation of
close of land towards tlie owner of the adjoining close to ^^^^^o ^^ •
fence the boimdary of his cLjse. " Tlie law," it is said,
" bounds every man's property and is his fence." ]5ut
every man is bound to keep his cattle from straying on the
land of others, and is liable for trespasses committed by
liis cattle and for all damages that are the direct natural
consequence of such trespasses (a). The same rule pre-
vails between persons having rights of common of pasture
over land and the owner of the adjoining land. There is
no obligation to fence against the commoners, who must
keep their cattle from straying off the common, although
there is no fence or marked boundary to the adjoining
land {b). But the lord of a manor or his grantee wlio
incloses waste under the Statute of Merton is bound to
fence against commoners {c) . And there is in some places
between adjoining commons a custom of intercommoning
known in law as coDiiiwn pur cause dc vicinage, which has
the force of excusing the straying of cattle from one to
the other, so long as the commons remain oj^en and
unfenced ((/).
"• In the case of animals trespassing on land the mere Trespass of
act of the animals, which the o^^^ler cotdd not foresee, or ^^ ^'
which he took all reasonable means of preventing, ma}- bo
(a) Per cur. Star v. llooki'shij, 1 388.
Salk. 335; Churchill v. Kvuus, 1 (<■) 2 Co. Inst. 87; Barber v.
Taunt. 029; Ellis \. Lof/us Iron n'hitclci/, Hi L. J. Q. B. 212. See
Co., L. R. 10 C. P. 10; 44 L. J. yosl, p. 3(33.
C. P. 24. ('0 Jf<"f^i V. Elliott, supra. See
(6) Mcath V. Elliott, i Bing. N. C. post, p. 338.
254 USES AM) rUOl'lTS IX LAXU OF ANOTHER.
a trespass, inasnmcli as tlie same act, if done by himself,
would liave been a trespass " (e). Upon this princij)le the
owner of a horse was held liable for the horse kicking and
biting another in the adjoining field thi'ough the fence ;
because the head and feet of the horse must have been
extended into the adjoining field in order to do the injury,
and so committed a trespass {/). So the sending a dog
into the land of another is a trespass ; but it is noi " a
trespass by entering or being upon land " -within the
statute 1 & 2 Will. IV. c. 32, s. 30, which renders such
trespass, if committed in pursuit of game, penal {{/) . The
claim of damages for trespasses of animals extends to
damages that may be directly attributable to some special
vice of the trespassing animal of which the owner was
ignorant ; although the owner is not generally liable for
injuries committed by a mischievous animal unless he is
aware of its mischievous nature (//) . Where a straying horse
kicked a child, it was held that the child, who had no claim
for a trespass and its consequences, could not recover for
the injmy unless he could prove that the owner of the horse
had knowledge of the propensity of the horse to kick (i).
Right of But the owner of a close of land may acquire the right
upoiTadjcdn- ^f ha\ang a fence maintained upon the adjoining close for
ing close. i^[^ benefit ; and such right may be appurtenant to the one
close as an easement, and the corresponding obligation may
be imposed upon the other close as a servitude. This
right is more than a mere easement of using the servient
tenement for the support of a fence, inasmuch as it
imposes upon the servient owner the positive obligation of
maintaining and repairing the fence for the service of the
dominant tenement. The obligation attaches to the tene-
(e) Brett, J., i:in.s V. Zofln.s- Iron 860 ; 24 L. J. M. 113.
Co., L. K. 10 C. P. 13; 44 L. J. {h) Lee v. Riley, 18 C. B. N. S.
C. P. 24. 722 ; 34 L. J. C. P. 212.
(/■) Ellis V. Loftm Iron Co., {i) Cox v. J^urbidffe, 13 G. B. N.
L.R. lOC.P. 12;44L. J. C. P. 24. S. 830; 32 L. J. C. P. 89; ex-
(y) The Queen v. Fratt, 4 E. & B. plained in Lee v. liikij, supra.
( II \i'. 1. i;.\si;mknis. 'Zo^i
meut, like a covuiiaiit ruuuinj^Mvilli the laud, uud i.s charge-
able upon the occupier by reason of his possession {j) .
This right may be claimed by a special title of grant, or
by prescription ; it may also be created by Act of Parlia-
ment, as is frequently the case ininclosures of commons (A-).
— Wliere the owner of two closes separated by a fence Grant,
sells and conveys one close and reserves the other with the
fence upon it, in the absence of express terms of grant or
agreement, there is no implied grant of the easement of
having the fence maintained for the benefit of the close
sold ; nor is there any obligation upon the vendor or his
assigns to continue to maintain tlie fence (/). "Even
where adjoining lands, which have once belonged to dif-
ferent persons, one of whom was bound to repair- the fences
between the two, afterwards become the propei-ty of the
same person, the pre-existing obligation to repair the
fences is extinguished by the unity of ownership ; and
where the person who has so become the owner of the
entii-ety afterwards parts vdih. one of the two closes, the
obligation to repair- the fences does not revive, unless ex-
press words be introduced into the deed of conveyance for
that purpose " {jn). The same principle applies upon a
lease of one of adjoining closes ; in the absence of express
stipulation in the lease there is no implied obligation upon
the lessor to maintain existing fences of the closes reserved
by him adjoining the demised land, so as to prevent
the cattle of the lessee from straying on to them (;/). On
the other hand the tenant is presumptively bound to main-
tain the fences upon the land demised, and is liable to the
landlord for not so doing upon the ground of the waste or
injury done to the inheritance {o).
{J) Star V. Rookcsby, 1 Salk. [l) Boijle v. Tamlyii, G B. & C.
335 ; Chcetham v. Eampsou, i T. R. 329.
318. («') I'd' cur, Boi/Ie v. l\imlyti,
(k) Starv. Rookcsby, 1 Salk. 335; 6 B. & C. 337.
Biill'er, J.. Jiiilrry. Smit/i, 3 T. R. (») luskinc v. Adrane, L. R. 8
768; Mellish, L. J., Erskim- y. Ch. 763 ; 42 L. J. C. 835.
Adeanc, L. R. 8 Ch. 7(33; 12 L. J. (o) Kouyon, C. J., Chnthain v.
C. 838. Ilainpsuii, 4 T. R. 319 ; ante, p. 35.
256 USES AND niOFlTS IN LAND OF ANOTHER.
Prescription. The rig'lit of liaviiig a fence maintained upon the ad-
joining close, with tlie corresponding obhgation, may be
established by prescription, that is, by proof of the fence
having been constantly maintained and repaired in compli-
ance with the obligation (j)). The mere fact of maintain-
ing the fence is no proof of the obligation ; for it is
presumed to be maintained for the use of the owner liini-
seK rather than of the owner of the adjoining land, though
it may serve equally for the use of both. In order to
prove a prescriptive right the fence must have been main-
tained under circumstances presumptive of legal obliga-
tion (q). A complaint by the owner of a close to the
owner of the adjoining close of the escape of the cattle of
the former through defects in the fence of the latter, would
amount to a claim of right to have the fence repaired ;
because the complainant would otherwise be bound him-
self to keep his cattle from escaping ; therefore repairs
done in consequence of such complaint Avould be evidence
of the obligation tipon the servient tenement. But a
complaint of the trespass of cattle from the adjoining close
tlu'ough defects of the fence would not import any claim
of right as to the fence ; because the owner of the cattle
would be equally bound to keep them from trespassing,
with or "without a fence, and repairs done would not be
evidence of any right or obligation (/•). Where it ap-
peared that a close of land was an ancient inclosure from
the waste of a manor, and that the owners and occupiers
had always maintained the fence against the cattle of the
commoners of the waste ; it was held to be a proper in-
ference that the close was originally granted subject to the
obligation of maintaining the fence, and that the obliga-
tion continued for the benefit of a recent inclosure of an
adjoining part of the waste (.s).
(/;) Lawrence Y. Jenkins, L. R. 8 (r) Jiorjle v. Tamhjn, 6 B. & C.
Q B. 279; 42 L. J. Q. B. 147. 329; Latvrence v. Jenkins, L. R.
(q) Boyle v. Tatnlyn, 6 B. & C. 8 Q. B. 274 ; 42 L. J. Q. B. 147.
329 ; Mndson v. Tabor, L. R. 2 Q. (.s) Barber v. Whitcley, 34 L. J.
B. D. 290 ; 46 L. J. Q. B. 463. Q. B. 212.
CHAP. 1. KASK.MKNTS. 2o7
The obligation upon tlie owner of the ser\'ient tenement Extent of
imports generally the maintenance of a suifiQient fence at liability,
all times and in all events, the act of God and vis major
only excepted. He is responsible for defects in the fence
whether caused by his own negligence or that of servants,
or by strangers or trespassers. He is not excused by want
of notice to repair it, nor b}' want of a reasonable time for
repairing it after notice of the defects (f). — The occupier
of the dominant tenement may recover not only in respect
of his o^vn cattle escaping through a defect in the fence ;
but also for the cattle of others in his possession, whether
on hire, or for reward, or as gratuitous bailee («). Also a
person using the close for his cattle by the licence of the
occupier, and though only for that occasion, is equally,
entitled to recover (r). And if cattle from any other cause
were lawfully upon the dominant close, the owner of the
cattle may recover for their escape through a defect in the
fence of the servient close {ir). But if the cattle were
■^Tongfull}' upon the dominant close, the owner of the cattle,
having no claim upon the servient owner in respect of the
fence, is liable for a trespass of his cattle upon the servient
tenement (.r). — On the other hand, the occupier of the ser-
vient tenement has no remedy against the dominant owner
for trespasses of cattle entering through a defect in the
fence ; for it is sufficient answer to his claim that he, or
those under whom or by whose licence he occupies, are
bound to keep the fence in repair (^). Nor has he any
remedy for damages done by the cattle after entering, as
by breaking down inner fences ; for such damage is the
(t) Laurence v. Jcnllns, L. E,. 8 {x) Erskine v. Adcaiie, L. R. 8
Q. B. -lli ; 42 L. J. Q. B. 147. Ch. 75G ; 42 L. J. C. 835 ; Ricketts
(ti) Booth V. Wihoi), 1 B. & AH. v. East ImUa Docks Jl,/., 12 C. B.
59. 160 ; 21 L. J. C. P. 201 ; Dovaston
'{v) Dawson v. MidlamI Rtj., L. E. v. Payne, 2 H. Bl. 531.
8 Ex. 8 ; 42 L. J. Ex. 49 ; per cur. {y) Xowel v. Smith, Cro. Eliz.
Lcke's Case, Dyer, 3G5 b. 709 ; Carruthers v. HoUis, 8 A. &
(«•) Per car. Jones v. Robins, 10 E. 113; Wiseman v. Hooker, L. R.
Q B. 640, explaining Smith v. 3 C. P. D. 184; Chihl \. Hearn,
Baynard, 3 Keble, 417. L. R. 9 Ex. 17G ; 43 L. J. Ex. 100.
T.. S
258 T'SES AXn PT^OFITS IX T.AXD of AXOTlIFn.
consequence of tlie defect of the fence (c) . He has no right
to distrain the cattle ; nor is he justified in turning them
out into a hig•ll^^'ay and there leaving them ; hut it seems
that he must put them hack into the adjoining close from
which they escaped {a).
Damages The damages recoverahle for an escape of cattle through
the defective fence include all in j urines to the cattle reason-
ahlj attrihutahle to the risks that the cattle incur upon the
servient close ; as in cases where the cattle were there
killed by falling into a ditch, and where they were killed
by a hay-stack falling upon them {b), and where they
were poisoned hy feeding on the leaves of yew trees there
growing {(■).
Ownership of The 0T\Tiership of ancient boundary fences is frequently
a matter of mere presumption. In the case of the ordinary
hedge and ditch fence between two closes of land the pre-
sumption is that the boundary of property is the outside of
the ditch, so that both hedge and ditch pr/nui facie belong
to the close on the side of the hedge ; this presumption
being founded on the general custom of the country to dig
the ditch at the boundary line and to throw the earth
inwards to form the bank of the hedge (d). The filling
up and obliteration of the ditch in process of time and an
adverse occupation of the siurface by the adjoining owner,
as by cultivating it or building uj^on it, may create a pos-
sessory title in him to the site of the ditch under the
Statute of Limitations (c). But the mere straying and
feeding of cattle upon the site of the ditch is not a suffi-
(z) Singhton v. WiJliamson, 7 II. Crowhurst v. Amersham, L. R. 4
& N. 410 ; 31 L. J. Ex. 17. Ex. D. 5 ; 48 L. J. Ex. 109 ; TFil-
(a) I'^inffletonv.lFilliamson, supra; son v. Newberry, L. R. 7 Q. B. 31;
Carruthers t. Ilollis, supra. 41 L. J. Q. B. 31 ; Firth v. Boiv-
(b) Anon., Ventris, 256; I'ou-ell limj Iron Co., L. R. 3 C. P. D.
V. Salishury, 2 Y. & J. 391. 254 ; 47 L. J. C. P. 358.
(c) Latvrence \. Jenkins, L. R. 8 (</) Lawrence, J., Voivles v. Mil-
Q. B. 274 ; 42 L. J. Q. B. 147. ler, 3 Taunt. 138 ; Holroyd, J.,
As to the 'responsibility for yew Doe v. Pearscy, 7 B. & C. 307.
tress and other matters noxious to (e) Norton v. London ^- N. W.
cattle upon the adjoining close, Mij., L. R. 13 C. D. 268.
ciiAi'. 1. eask:mi;nts;. 259
cient adverse possession to supi»ort siieli a title ; nor is the
clipping or mending of the fence alone sufficient (/).
• Upon a like principle if a wall or fence between two Party-wall,
properties is constructed with buttresses, posts, or spurs on
on-e side, so as to show an inner and an outer face, it is
presumptively the property of the OAvner of the land on the
inner side. If the wall or fence be uniform on both sides,
in the absence of evidence of exclusive ownership, it is pre-
sumptively a party- wall ; that is, a M'all built half on the
land of each of the adjacent o"v\aiers and belonging to them
in undivided moieties as tenants in common (g) . The pre-
sumptive ownership arising fi'om the position and form of
the wall may be rebutted by evidence of title to the entire
wall, or to the several halves, in separate owniership (//).
The wall may be a party- wall to a certain height, and above
that height an external wall in several ownership (/). A
description of property as " enclosed by a wall " imports
that the wall is part of the property, so that a purchaser
would not be compelled to take it ^vdthout the wall (J) . And
a property cannot be said to " front, adjoin or abut " upon
a road, if separated from the road hy a wall belonging
to another person (/.•). — One of co-tenants of a party-wall
may repair it, and may pull it do^^^l, if necessary, for the
temporary pm-pose of rebuilding it ; but permanent destruc-
tion of the wall or exclusion of the other tenant fi-oni the
use and possession, is wrongful (/). Each co-tenant is
responsible for his own wi-ong or negligence in dealing
with the party-wall, and for the damage caused thereby
to the other co-tenant (?;?)— Under the Metropolitan Build-
( f) Scnrhy v. Tottenham Ity. Co., C. D. 309 ; 54 L. J. C. GOo.
L. R. 5 Eq. 409. {^) Li:/fil/'oiiii(l x.Jlehiiigton Local
\g) Ciibilt V. Porter, 8 B. & C. Board, L. R. 16 Q. B. D. 577 ; 55
257 ; lVatso» V. Grai/, L. R. 14 L. J. M. 94.
C. D. 192; 49 L. J. C. 243. (/) Cubitt v. Fortcr, 8 B. & C.
(/() Matts V. Hawkins, 5 Taunt. 257; Standard Bank \. Stokes,!,. "R.
20 ; Murhi v. McLcrmott, 8 A. & E. 9 C. D. 68 ; 47 L. J. C. 554 ; ll'at-
138. son V. Gray, L. R. 14 C. D. 192 ;
(i) Weston V. Arnold, L. R. 8 Ch. 49 L. J. 0. 243 ; Stedman v. Smith,
1084 ; 43 L. J. C. 123. 8 E. .^- B. 1 ; 20 L. J. Q. B. 314.
{j) Brewer v. Brown,- li. R. 28 (»«) Brad bee v. Christ's Hospital,
260
USES AND PROFITS IN LAND OF ANOTHER.
ing Act, 18 & 19 Yict. c. 122, the rights of dealing with
party- walls are regulated exclusively by the provisions of
that Act relating to " Party Structures," s. 83, which
supersede or qualify the common law rights of property.
Tor the purposes of the Act a party-wall is defined by
reference to tlie use made of it, independently of the owner-
ship (l).
Fencing of
mines.
Fencing of
railway.
'\Vhere minerals are separated from the ownership of the
surface with the right of digging shafts and working
through the surface, in the absence of express stipulation,
there is an implied obligation on the owner of the minerals
to fence the shafts for the protection of the owner of the
surface ; in which case the fence is maintained upon the
dominant tenement ( w) . There is a statutory obligation
to fence the shafts of abandoned mines, by the Metal-
liferous Mines Eegulation Act, 1872, 35 & 36 Yict.
c. 77 («). The Quarry Fencing Act, 1887, 50 & 51 Vict.
c. 19, provides that " any quarry dangerous to the public
in open or unenclosed land within fifty feet of a highway
or place of public resort dedicated- to the public shall be
kept reasonably fenced for the prevention of accidents, and
unless so kept shall be deemed to be a nuisance." The
term quarry is defined in the Act.
By the Railways Clauses Act, 1845, 8 Vict. c. 20, s. 68,
it is provided that " The company shall make and at all
times maintain for the accommodation of the owners and
occupiers of lands adjoining the railways, sufficient fences
for separating the land taken for the use of the railway
from the adjoining lands not taken, and protecting such
lands from trespass, or the cattle of the owners and occu-
piers thereof from straying thereout, by reason of the rail-
4 M. & G. 761 ; If/tffhe.s v. Perrival,
L. R. 8 Ap. Ca. 443; o'i L. J.
Q. B. 719.
(/) Kniffht V. rurscU, L. E,. 11
C. D. 412 ; 48 L. J. C. 395 ; Sian-
dard Bank v. Stokes, L. R. 9 C. D.
68 ; 17 L. J. C. 554.
[ill) Groucutt V. Tniliams, 4 B.
& S. 149; 32 L. J. Q. B. 237;
Churchill V. Evans, 1 Taunt. 529 ;
Jfaickcn v. Shearer, 56 L. J. Q. B.
284.
(w) Arkwrighl v. Erans, 49 L. J.
M. 82.
CHAl'. 1. KASEMKNTS. 201
way : provided that tlie company shall not be required to
make any accommodation ^\■orks with respect to wlucli tlie
owners and occupiers of the lands shall have agreed to
receive and shall liave been paid compensation instead of
the making them." The statutory obligation does not
apply to fencing between the railway and adjoining land
of the railway company, as a yard retained by the com-
pany for the use of persons diiving cattle to and from the
line (o) ; or a tramway adjoining the line kept for the use
of the public upon payment of tolls (7;). — Tlio statutory Extent of
obligation extends to the owner and occupier of the ad- '^ ^^^ '
joining land and to persons using the land with their
licence ; who may recover for the loss of cattle straying on
to the line through defects in the fence. But there is no
general liability to other persons ha^'ing no right or interest
in the adjoining land, and whose cattle are not riglitfidly
using it ; and no claim can be made against a railway
company for loss of cattle which were trespassing upon
adjoining land and thence strayed on to the line {q). Com-
pensation made under the proviso of the section to the
owner of land instead of a fence does not discharge the
obligation to the occupier during his tlien existing tenancy ;
and a tenancy from year to year was held to be a continu-
ing tenancy for this pm-pose imtil determined by notice (r).
A passenger on the railway cannot charge the company
upon this statutory obligation in the case of cattle breaking
through the fence on to the line and causing an accident ;
he can only charge them upon the ground of negligence in
the protection of the line {s) . Neither the company nor
any person in theii" employment can complain of a trespass
of the cattle of an adjoining owner tlu'ough a defect in the
(0) Roberta v. Great Western liij., sec Sneexhii v. Laticnshlre .<• 1'. lii/.,
4 C. B. N. S. 506. L. R. 1 Q. B. D. 42 ; 45 L. J.
{p) Marfell v. South Wales J!>/., 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., Z<w/i v.-Sf/mr- S. 571; rheysey v. Vicary, IG M.
dcr, L. R. 9 Ch. 472 ; 43 L. J. C. & W. 4S4.
490 : James, L. .T., in Master v. (") Serjf v. Acton Local Board,
Hansard, L. E. 4 C. D. 721 ; 40 L. R. 31 C. D. 679 ; 55 L. J. C.
L. J. C. ouo. 569.
(«) 1 Wms. Saund. 323 n. (G), (x) Howton v. Frcarson, S T. R.
Pomfrct V. Ricroft ; Caims, L. C, 50.
Gai/ford v. Moffatt, L. R. 4 Ch. (//) Froctor v. Hodgson, 10 Ex.
135 ; Fbniiiidlon v. Galland, 9 Ex. 824 ; 24 L. J. Ex. 195.
1 ; 22 L. J. Ex. 348. W 1 Wuis. Saund. 323 a ; Bid-
(r) Fcarson v. Spencer, 1 B. & hrd v. Harrison, 4 M. & S. 387.
268 USES AKD PROFITS IN LAND OF ANOTHEJl.
regrant fi*om the grantee of the siirroiincling laud ; and
though the latter do not execute the conveyance, by
accepting the grant he subjects himself to all the condi-
Naturo and tious iuiplit'd in it (//). — A grant of a way of necessity is
of necessity '^"^ implied ouly where there is no other way. Mere con-
venience of way, short of necessity, there being other
reasonably convenient access available to tlie close, is not
sufficient ground for implying a grant of the way (b). If
there are tAvo available ways, they cannot both be of
necessity, and the election of the way to be used lies with
the grantor of the close, who created the necessity, whether
he granted or reserved the close to which the necessity is
incident (c). " 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"(f/). Where land was laid out
for building upon a plan showing houses with a mews at
the back, having the only access to the mews through an
archway in one of the houses ; it was held that a purchaser
of the house with the archway took the house subject to a
reservation of the way, having notice from the building
plan of the necessity of the way, though the mews was
not then in fact inclosed and was otherwise accessible (e).
— The way may be limited in use by the requirements of
the close in its state and condition at the time of the sever-
ance, which would be the general presumption in the case
of agricultiu^al land, requiring a way for agricultural jjiu'-
poses only ; but the circumstances of the grant may show
that the land is intended to be used for all pm^poses and
the way would be enlarged accordingly (/). A grant of
[a) 1 Wins. Saund. 323, n. (6) ; {c) Bolton v. Bolton, L. R. 11 C.
TinmmiUm v. Galland, 9 Ex. 1 ; 22 D. 968 ; 48 L. J. C. 467, citing
L. J. Ex. 348 ; London Corp. v. Clarke v. linggc, 2 Roll. Abr. 60 ;
liuj'/s, L. R. 13 C. D. 798; 49 L. Packer v. Welsted, 2 Sid. Ill ; and
J. C. 297. Pefirson v. Spencer, 1 B. & S. 585.
[h) Morris V. Hdffington, ZTaunt. (d) Mellish, L. J., JFimbledon
24 ; I'heyHcy v. Vicari/, 16 M. & W. Com. v. Dixon, L. R. 1 C. D. 370 ;
484 ; Troctor v. Hodgson, 10 Ex. 45 L. J. C. 353.
824 • 24 L. J. Ex. 195 ; Dodd v. («) iJavies v. Sear, L. R. 7 Eq.
Burchall, 1 H. & C. 113 ; 31 L. J. 427 ; 38 L. J. C. 545.
Ex. 364; Broicn v. Alohaster, L. (/) Ante, p. 205; Gayford v.
R. 37 C. D. 490 ; 57 L. J. C. 255. Mofalt, L. R. 4 Ch. 136; Lo)idon
ments.
CIl Al'. I. KASKMENT.S, 2G9
land to a local board was held to carry a way of necessity
for all purposes for wliieh the local Loard was consti-
• tuted {y). — And it is said that a way of necessity is limited
by the continuance of the necessity, and that it would
cease, if hy a subsequent purchase the dominant owner
acquired a way over land of his own (//).
The doctrine of implied grant upon a disposition by the Implied grant
owner of t^'o tenements is extended to 'some easements °f «PP'i''c"t
used and enjoyed in fact at the time of severance (though tinuous ease-
not strictly of necessity), by reason of their being apparent "'""*"
and continuous in use, as distinguished from easements
that are not apparent and are only used occasionally.
" There is a distinction between easements, such as a rio-ht
of way, used from time to time, and continuous easements.
And it is clear law that, upon a severance of tenements,
easements nsed as of necessitj^, or in their natiu-e con-
tinuous, will pass by implication of law without any Avords
of grant; but witli regard to easements wliidi are used
from time to time only, they do not pass, unless the
OAraer by appropriate language, shows an intention that
they should pass"(/). The easements here referred to
are " those easements only which are attended by some
alteration which is in its natm-e obvious and permanent ;
or, in technical language, those easements only which are
apparent and continuous ; understanding by apparent
signs not only those which must necessarily be seen, but
those which may be seen or known on a careful inspection
by a person ordinarily conversant with the subject" {j). —
Where a dock and adjoining wharf had been held in
Corp. V. Riggs, L. E. 13 C. D. 79S; shire v. Grubb, L. R. 18 C. D. 620.
49 L. J. C. 297. (J) Pir cur. Puldot v. }{a»tard,
(g) Serf V. Acton local Board, L. R. 1 Q. B. 161 ; 3') L. J. Q. B.
L. R. 31 C. D. 679 ; 55 L. J. C. 92 ; cited in U'attx v. h'r/son, L. R.
669. 6 Ch. Ap. 173 ; 40 L. J. C. 126.
(/() Best, C.J. , Holmes \. Goring, {/) Gale on Easements, p. 100,
2 Bing. 76 ; but see Parte, B., 5th ed., adopted in J'ger v. Carter,
Froctor v. llodqsoti, 10 Ex. 828; 1 H. & N. 916 ; 26 L. J. Ex. 261.
24 L. J. Ex. \M1\ Fry, J., Bark-
270 USES AND PROFITS IN LAND OF ANOTHER.
united ownorsliip, during wliicli tlie vessels lying in the
dock were placed with the bowsprits extending over the
wharf, whereby the dock was available for larger vessels
than it would otherwise accommodate, and the wharf was
afterwards convej^ed separately to a purchaser without any
express mention of the use of it for vessels lying in the
dock, it was held that no grant of such use or easement
could be implied. " The easement," it was said, " is
not ' continuous,' for that means something the use of
which is constant and uninterrupted ; neither is it an
' ajiparent easement,' for, except when a ship is actually
in the dock, v,i.ili her bowsprit projecting beyond its limits,
there is no sign of its existence ; neither is it a * necessary
easement,' for that means something without which the
enjoyment of the dock could not be had at all " (/.•).
Drains and Upon the above principle it is held that all drains then
serving the tenement granted over the tenement reserved
pass by implied grant, as being apparent and continuous,
• though not described or referred to in the instrument of
conveyance ; and drains are for this purpose considered to
be apparent if with ordinary care and inquiry their exist-
ence could be ascertained (/) . — Also watercourses, consist-
ing of some actual construction on the servient tenement
by which water is continuously brouglit to the dominant
tenement for the use of the occupier, Avhether naturally or
artificially, pass under the like circumstances by imj)lied
grant (m).
Implied grant Upon the same principle all lights of the tenement
granted, which are apparently supplied over adjacent land
of the grantor, pass by implied grant (»). " Wliere a man
grants a house in which there are windows, neither he nor
anybody claiming under him can stop up the windows or
(k) Sufficld V. Brown, 4 D. J. & {m) Nicholas t. Chamberlain, Cro.
S. 185 ; 33 L. J. C. 249. Jac. 121 ; WarcUe v. BrockJehurst, 1
(/) Bijer V. Carter, 1 H. & N. E. & E. 1058 ; 29 L. J. Q. B. 145 ;
916; 26 L. J. Ex. 258; Ball v. TFatts v. Kelson, L. li. 6 Ch. 173;
Lund, 1 H. & C. 676 ; 32 L. J. Ex. 40 L. J. C. 126.
113. Sec Swart v. Cochrane, 4 (n) Holt, C. J., Tenant v. Gold-
Macq. Sc. Ap. 117. wiw, 2 L. Raym. 1093.
of Uglit.
( IlAl'. I. i:\sKM KNTS. 271
destroy tin; liglits. Tliat is based on tlic piiiuiiJc that a
man sliall not derogate from his own grant ; and it makes
no difference wliether he grants the house simply as a liouse,
or wlietlier lie grants the lionse with the ^vind(J^\•s or the
lights thereto holonging. In both oases he grants with the
apparent easements or qiiaiii easements" (o). And the
easement is impliedly granted over the land of the grantor,
though not strictly adjoining to the tenement granted, as
where it is separated by a public road {j)). But no similar
easement attaches to a house built after the grant, nor to
windows subsequently added, though with the knowledge
and acquiescence of the grantor ; nor though the land was
sold for the piu'pose of building, unless under obligation to
build on a specific plan recjuii-ing a definite easement of
light over the land of the grantor {(f). There is no differ-
ence in the extent of the right thus impliedly granted and
that acquired by prescriptive use and enjoyment; it is
measm-ed by the access of light in fact enjoyed at the time
of the grant (r). It is not enlarged by an express covenant
for quiet enjoyment in the deed of conveyance ; for such
a covenant operates only as a fm-ther security to the sub-
ject of the conveyance (s). — The implied grant of light
with tlie tenement conveyed may be expressly excluded by
the terms of the conveyance ; as where a conveyance was
made of land " except rights, if any, restricting the fi'ee
use of adjoining land or the conversion at any time there-
after of such land for building or other piu'poses." But
such exception does not prevent the subsequent acquiring
of such rights by prescriptive use {t). It may also be
excluded or modified by the ch-cumstances of the con-
veyance, as where the tenement granted fomis part of
building land of which the grant of each part is under-
[o) Jessel, M. E... AUen v. Tat/hr, E. 176.
L. R. 16 C. D. 357 ; .50 L. J. C. (») MclUsh, L. J., Larh v.
178. Schweder, L. R. 9 Ch. 463; 43
{p) Birmbiffhain Banliing Co. v. L. J. C. 487.
Ross, L. R. 38 C. D. 296 ; 57 (j.) Leech v. Schweder, supra.
L. J. C. 601. (0 Mitchell v. Cantrill, L. R. 37
{q) Blanchard v. Bridges, 4 A. & C. D. 56 ; 57 L. J. C. 72.
272
rSES AND I'ROFITS ]X LAND OF ANOTHER.
Easements
not apparent
and con-
tinuous.
Implied grant
limited to
estate of
grantor.
Grant by-
trustee.
stood to be taken siiLjoct to Luildings upou tlie adjoining
land {/().
Eiglits of way, in general, are not continuons easements,
bnt are of occasional nse only. Accordingly it is held
that npon the disposition of two tenements ways nsed
before severance, nnless ways of necessity, will not pass
•without w^ords sufficient to describe and convey them (v).
But where there is a defined and made road over the
servient tenement to and for the apparent use of the
tenement granted or reserved, the right of w^ay may pass
as an apparent easement though not a way of necessity {/(•).
Thus a road leading to entrance gates in a wall of the
demised premises was held to pass by implied grant as
being a continuous and apparent easement {x). >So also
a way through an archway under a house {>/). 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 (</) Chelmsford, L. C, Cnssh-i/y.
C. D. 328 ; 5G L. J. C. Goo. Lightoivler, L. R. 2 Ch. 4SG ; Cot-
((■) Westbiiry, L. C, Siifflehi v. ton, L. J., Rttssdl v. Watts, L. R.
Broun, 4 D. J. & S. 194 ; 33 L. 25 C. D. 572.
J. C. 259 ; Wheeldon v. Burrows, (e) Holt, C. J., Tenant v. Gold-
L. R. 12 C. D. 42; 48 L. J. C. niit, 2 L. Raym. 1093; White v.
853. Bass, 7 H. & N. 722 ; 31 L. J. Ex.
274
rSES AND PROFITS IN LAND OF ANOTHER.
EascniC'iits
implied upon
simultaneous
grants of two
tenements.
Where two tenements are sold and conveyed at the
same time by the same vendor to different purchasers, each
being aware of the sale to the other, all the apparent and
continuous quasi easements in use over the tenements at
the time of the sale, in the absence of express stipulation,
are impliedly granted with them. It is considered in
equity as one transaction (/). Thus, in the case of a
house and land of the same owner being sold by auction
in separate lots to different purchasers, the purchaser of
the house becomes presumptively entitled to the light as in
fact^ enjoyed at the time of the sale, and the pm'chaser of
the land is precluded from building in a manner to
obstruct the light. The sales being sales by the same
vendor and taking place at one and the same time, the
rights of the parties are brought within the general rule of
law, "that no man shall derogate from his own grant "(^).
The same doctrine applies to dispositions by will of a house
and land to two devisees separately {h). If the sales are
not simultaneous the later pm-chaser takes subject to the
title of the first purchaser, and is deprived of all easements
not expressly reserved, except easements of necessity (?") .
But the several successive purchasers may be bound by a
common plan upon which the lots appear to be mutually
subservient to one another {j). — It is immaterial that the
tenements are in the occupation of tenants at the time of
the disposition and so out of the control of the grantor or
testator ; the presumption being that they are disposed
of in their then existing condition with all the incidents of
283 ; Curriers' Co. v. Corbctt, 2 Dr.
& Sm. 355 ; Ellis v. Manchester
Carriage Co., L. R. 2 C. P. D. 13 ;
Whccldon-v. Jiurroics, L. R. 12 C.
J). 31 ; 48 L. J. C. 853.
(/) Fer cicr. JJarnes v. Loach,
L. R.4Q. B.D.497; Jessel,M. R.,
Allen V. Taylor, L. R. 16 C. D.
355 ; 50 L. J. C. 178 ; Russell v.
Watts, L. R. 10 Ap. Ca. 590 ; 55
L. J. C. 158.
[g) Swanshorough v. Coventry, 9
Biijg. 305 ; Compton v. Richards, 1
Price, 27.
(A) Barnes v. Loach, L. R. 4 Q.
B. D. 494 ; 48 L. J. Q. B. 756 ;
Allen V. Taylor, L. R. 16 C. D.
355; 50 L. J. C. 178.
(0 Murchie v. Black, 19 C. B. N.
S. 190; 34 L. J. C. P. 337.
(y) Russell V. Watts, L. R. 10
Ap. Ca. 590 ; 55 L. J. C. 158.
i
CHAP. 1. KASKMKNTS. 275
ways, lights, and otlicr easements ajiparently used and
enjoyed between tlioni (/.).
Tho grant of a tenement expressed to be " witli the Grant of tcne-
appurtenants " has no additional efficacy in creating ease- ^pur^nants
ments ; although at the time of the grant quasi easements
were in fact used and enjoyed with the tenement over other
land of tho grantor. For the term " appm'tenant," applied
to easements, includes only such easements, strictly so
called, as are used as of right over land of another ; and
these pass with the grant of a tenement without being ex-
pressly mentioned or referred to (/). So a devise by "«all
of a tenement " with the appm-tenances " presumptively
carries with the tenement no other easements than such as
are strictly and legally appurtenant at the time of the
de\'ise (/;/). But the word " appm-tenant " may have
a more flexible construction in a deed or will if required by
the context and ciix-umstances, and ma}' cany land or other
rights, if the intention is clear that they shall pass by
that description (;?). — Upon the above principle upon a
partition of land by tenants in common, who hold the land
in imdivided moieties, the conveyance of the shares in
severalty, " with all easements and appurtenances," ^oll
not convert into easements over the separate tenements the
ways or other quaHt easements previously used over tho
entirety (o) , So if a lease be made granting a right of
way over other land of the lessor, the way is not thereby
made appm-tenant, strictly speaking, to tho demised tene-
ment ; and an underlease of the tenement " ^^'ith all ways
thereunto appertaining" does not pass the way. "Leases
generally contain the words ' heretofore used ' by which
(/.) Bari)cs\. Loach, L. R. 4 Q. S. 671.
B. D. 494 ; 48 L. J. Q. B. 756. (;/) Cuthbert v. Robinson, 51 L. J.
(0 Ante, p. 189; Barlow v. C. 238 ; Thomas v. Oirrn,!^. B.. 20
Rhodes, 1 C. & M. 439; Brett v. Q. B. D. 22.5; .57 L. J. Q. B. 198,
Clowser, L. R. 5 C. P. D. 382. citing Blowdcn, 170.
{in) Whallei/ v. Toinpson, 1 B. & («) irorthington v. Gimson, 2 E.
P. 371 ; Pheijsey v. Vicarij, 16 M. & & E. 618 ; 29 L. J. Q. B. 116.
W. 484 ; Pearson v. Spencer, 1 B. &
276
VSES AND PROFITS IN LAND OF ANOTHER.
Easements
used and
enjoyed ■with,
tenement
granted.
Construction
of grants as to
easements
used and
enjoyed.
such a way -would pass"(;j). Tdglits and casements
acquii'ed as between the tenants do not affect the landlord,
and therefore are not, strictly speakmg, appurtenant to the
respective tenements ; they do not pass with the tene-
ments as appm-tonant or existing easements, though they
may pass by the doctrine of apparent and continuous ease-
ments (q). Upon tlie same principle if a contract be made
to sell a certain tenement " with the appurtenances," the
purchaser is entitled to have a conveyance in those terms
only, and not to have additional words inserted sufficient
to grant rights then de facto used and enjoyed as easements
over other land reserved by the vendor, such being rights
of ownership and not merely appurtenant rights (r) .
But the grant of a tenement expressed to be with all the
rights and easements "used and enjoyed therewith" will
create and pass as easements all those rights in the nature
of easements which at the time of the grant were in fact
used and enjoyed with the tenement over other land of the
grantor ; though such rights were not strictly speaking
easements because they were used and enjoyed in right of
the o^vner over his owti land (.s). Under a grant in such
terms a way will pass which was in fact used and enjoyed
for the service of the tenement granted, though in right of
ownership of the land and not as an easement (/). Water
rights that have been used and enjoyed with the tenement
may pass as easements in the same manner (?/) .
What ways or other easements pass or are granted with
the tenement by the descrij)tion "used and enjoyed there-
with," or by other similar exi")ressions, depends in each case
upon the construction of the terms of the grant in applica-
(2)) Holroyd, J., Harding v. Wil-
son, 2 B. & C. 96.
(q) Daniel v. Anderson, 31 L. J.
C. CIO; ante, p. 274.
(r) Bolton v. Bolton, L. R. 11
C. D. 9C8 ; 48 L. J. C. 469. See
Barkshire v. Gruhb, L. E,. 18 C. D.
616; SOL. J. C. 731.
(«) James v. Plant, 4 A. & E. 749.
{t) Kooystra v. Lucas, 5 -B. &
Aid. 830 ; Barkshire v. GruM, L.
E. 18 C. D. 616; 50 L. J. C. 731 ;
Bayley v. Great Western Ity., L. R.
26 C. D. 434.
(m) Wardle v. BrocJdehurst, 1 E,
& E. 1058; 29 L. J. Q. B. 145;
Watts V. Kelson, L. R. 6 Ch. 166 ;
40 L. .J. C. 126.
CHAP. I. EASEMENTS. 277
tion to the circumstances. A devise by will of a liouse,
described " as now in the occupation " of a certain tenant,
is construed as referring to the occupation merely for the
pm-poso of identifying the house and not for the purj^oso
of indicating the rights and uses incident to the occupa-
tion ; consequently it was held not to grant as an ease-
ment the right of taking water from the adjacent land of
the testator which the occupier had in fact been used to
enjoy diuiug the lifetime of the testator. If the devise
had been of the house " as now enjoyed " by the occupier
it might have been construed as passing the easement (r).
Where a lease described the demised premises as abutting
upon a newly made road according to a plan annexed to
the lease ; it was held that the terms of the lease estopped
the lessor from denying the existence and use of the road,
and thereby operated as a grant of a way along the site of
it (ic). But a lease describing the demised premises as
bounded by an " intended " way, was construed not to be
a grant of tlie way, but a mere expression of intention
or contract, a breacli of which might be measured in
damages (.r) .
If serA^ent and dominant tenements become united in Easements
one ownership, all easements are extinguished; and though ^'^'''}J^^°- ^^^
■I ' _ . iimty of pos-
the actual use and enjoyment may be continued as before, session,
it is in exercise of the right of ownership over the united
tenements and not of an easement of one over the other.
Hence the pre^'iously existing easements vdW. no longer
pass by a mere grant of the tenement to -ohich they were
formerly appiu-tcuant ; nor "will they pass by the mere
additional expression of " appurtenances " or *' rights
appertaining or belonging " to it. An easement thus
extinguished, and continued by use only, may be revived
and regranted with the tenement by the description of a
(v) Polden v. Bastard, L. R. 1 495 ; Hsplei/ v. Wilkes, L. R. 7 Ex.
Q.B.156; 35L.J.Q.B. 9'2; J^,»/y>- 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. (</) Goodhart v. lliittl, L. R. 25
Atlee, L. E,. 35 C. D. 331 ;"56 L. C. D. 182 ; 63 L. J.'C. 219.
J. 0. 655.
280
USES AND ruoirrs ix land of another.
Obligation of
ser\'ieut
owner.
gives the right to maintain the well or the pump and to
do what is necessary to keep it in order (h). — Upon this
principle the riglit to build a bridge over a railway was
held to give the accessory right to do everything reasonably
necessary for the principal right of building the bridge, as
to place scaffolding upon the soil of the railway, and for
workmen to cross the line (i). So a right of building upon
the surface would in general carry the accessory right of
excavating the necessary foundations and disposing of the
material excavated (/).
There is no implied obligation upon the ser\^ent owner
to repair' for the benefit of the dominant owner, or to do
anything beyond suffering the easement. " The addi-
tional obligation to repair could only be imj)osed upon the
owner of the servient tenement by an express stipulation
to that effect in the instrument creating the easement ; or
by some prescriptive right to the repair as well as to
the easement." Nor, in general, are repair's done by the
servient owner upon his own j3roperty any evidence of
obligation on him to repair ; as they must be presumed
to be done for his own convenience, and not in consequence
of any obligation (k). — The servient owner can do nothing
upon his tenement that obstructs the right of the dominant
owner to repair. Thus in the case of an easement of
water supply through pipes the owner of the land was
restrained from building over the pipes in such a manner
as would prevent access for cleaning and rej)airing them (/).
But the dominant owner is only entitled to such access as
is reasonably necessary to repau- the work, and not to any
particular mode of access in one direction rather than
another (m) .
(A) Tomjret v. Itlcroft, 1 Wms.
Saund. 321 ; Lord BlackLurn, Smith
V. Archihald, L. R. 5 Ap. Ca. 512.
(i) Clarence Jly. Co. v. Great
Northern lUj. Co., 13 M. & W. 70G.
(7) Itobinson v. Milne, 53 L. J.
C. 1070.
(k) Stockport Hightvay Board v.
Grant, 51 L. J. Q. B. 357 ; ante,
p. 211.
(/) Goodhart v. Ilyett, L. R. 25
C. D. 182 ; 53 L. J. C. 219.
{m) Birkenhead \. London iS; N. W.
Rij., L. R. 15 Q. B. D. 572 ; 55
L. J. Q. B. 48.
CUAl'. I. KASEME.NTS. 281
§ 2. rRESCKIl'TIOX.
Prescription — distiuution of casements by prescription and grant.
Prescription at common law — time immemorial — non-existing grant.
The Prescription Act — prescription for ways, watercourses, and other
easements — prescrii)tiou for lights.
Enjoyment required for i^rescription — enjoyment as of i-ight— in right
of fee of dominant tenement against fee of servient tenement —
daring unity of possession — enjoj^ment of light as of right.
Secret enjoyment.
Enjoyment bj^ licence or agreement — by sufferance.
Continuous enjoyment — voluntary discontinuance — impossibility of en-
jo3'mcut — unity of possession.
Enjoyment for jieriod next before action.
Interruption of enjoyment— submission of dominant owner.
Pi-esuniptiou from enjoyment short of prescribed period.
Disabilities of servient owner — suspension of computation — inteiTuption.
during disabilities — exclusion of tenancy for life or years.
Proscription is the title to an easement derived from Prescription,
continued use and enjojnnent. Easements, being incor-
poreal hereditaments incapable of possession, are said to lie
in grant ; and proscription imports a grant as the origin
of title.- Corporeal liercditaments, being held in posses-
sion, are not the subject of prescription ; but present
possession of a corporeal hereditament is presumptive
evidence of title, and continued possession by the Statutes
of Limitation bars adverse claims (a).
An easement derived from prescription is defined and I>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 ii<lji)ining-
building (r). — As to watercourses, the claim to discharge
foul water, being the washing of minerals, into a water-
course (s) ; the claim to discharge sand and rubbish into a
stream to be carried down and deposited upon the land of
the lower proprietors (t). " The claim to have the water
of a natural stream which would other^vise have flowed
down to the claimant's land diverted over other land so as
no longer to come to it, is a claim to a watercourse, and is
one which may be created by grant " (u).
Sect. 3, enacts " that when the access and use of light Prescription
to and for any dwelling-house, workshop, or other building, "
shall have been actually enjoyed thercsnth for the full
period of twenty years without inteiTuption, the right
thereto shall be deemed absolute and indefeasible, any
local usage or custom to the contrary not'svithstanding ;
unless it shall appear that the same was enjoyed by some
consent or agreement expressly made or given for that
purpose by deed or ■s\Titing." — " The statute has in no
degree altered the pre-existing law as to the nature and
extent of the right " ; it has only altered the mode of pre-
scriptive acquisition {/:). The customs of London and
York to obstruct ancient lights by building upon ancient
foundations, are avoided by the enactment (ic).
The enjoyment required to foimd a prescriptive title at Enjoyment
common law, and, subject to modifications therein men- pre^ription.
tioned imder the Prescription Act, is an actual enjoyment
" as of right," continued without inten'uption for the
period prescribed by law(.r). — The expressions " enjoyment Enjoyment as
of rijrlit.
()•) Icmaitre v. Darts, L. R. 19 ((/) Blackburn, J., Mason v.
C. D. 281 ; 51 L. J. C. 173 ; Tone S/iirusbitn/ liu., L. R. 6 Q. B. 583 ;
V. Presio)), L. R. 24 C. D. 743 ; 53 40 L. J. Q. B. 293.
L. J. C. 52. (r) Per cur. Krlk v. Pearson, L.
(s) Wright v. WUIiams, 1 M. & R. 6 Ch. 811 ; ante, p. 285.
W. 77. («<•) Salters' Co. v. Jaij, 3 Q. B.
(/) Carhjon v. Povcri»g, 1 H. & 109 ; Merchant Tailors' Co. v. Tnis-
N. 784; 26 L. J. Ex. 251. See cott, 11 Ex. 855; 25 L. J. Ex.
Murgatroiid v. Pobinson, 7 E. & B. 173.
391 ; 26 ii. J. Q. B. 233. (.r) Co. Litt. 113 i-; per cur.
288 USES AND PROFITS IX I, AND OF ANOTHER.
as of risflit," and '• elaiuiino: rio-lit thereto " as used in tlie
Prescription Act are explained to mean " an enjojTiient
liad, not secretly, or by stealth, or by tacit sufferance, or
by permission asked from time to time ; but an enjoyment
had openly, by a person claiming to use it without danger
of being treated as a trespasser, as a matter of right" [ij).
An actual enjoyment " as of right " for the prescribed
period was held suiheient, though it had been enjoyed
under a mistaken claim of right ; for it is immaterial upon
what ground the claim of right is made, provided that
the actual enjojTnent is suthcient and capable of being
referred to a legal origin (;:).
In right The right must be claimed as appm'tenant to the
dominant dominant tenement by the owner of the fee or in his right,
tenement. ^he mode of pleading an immemorial prescription at
common law is by alleging that the owner in fee of the
tenement and all those whose estate he hath in the tene-
ment from time immemorial have enjoyed the right
claimed as appurtenant to the tenement ; which is called
prescribing in a que estate. The tenant of a particular
estate for life, years or at will cannot plead such pre-
scriptive title in right of his own estate or occupation ; he
must prescribe in right of the owner in fee of the tene-
ment, and then derive title to the possession and enjoy-
ment from him {a). Prescriptions for the times pre-
scribed in the Prescription Act may be alleged in pleading
according to the fact, the Act providing by sect. 5 that
" it shall be sufficient to allege the enjoyment as of right
by the occupiers of the tenement in respect whereof the
same is claimed for and during such of the periods
mentioned in this Act as may be applicable to the case,
Bright v. Walher, 1 C. M. & R. IcU v. Wilson, 3 East, 294.
219; Jlolfonl V. moi/chison, 5 Q. B. {a) 6 Co. 60 a, Gateward's Case;
584. liakerx. Brcrcman, Cro. Car. 418 ;
((/) Per cur. Tickle v. Brown, 4 Att.-Gcn. v. Gauntlett, 3 Y. & J.
•A. & E. 382. 93. Sco /JffivV.v v. WilUams, IG Q. B,
{£) Be la TFarr v. Jfihs, L. E.. 17 54G ; 20 L. J. Q. B. 330.
C. D, 535 ; 49 L. J. C. 487 ; Camp-
CHAP. I. EASEMENTS. 289
and witliout claiming- in the name or rio-lit of tlio owner
of tlio fee, as is now iisnally done." But the mode of
pleading does not affect the nature of the claim as being
of an easement aj^purtenant to the tenement in right of
the fee (i). — The right must also he claimed against the A-^^ainst fee
servient tenement as binding the fee in the land and not tenement^
merely the tenant of a particidar estate ; " if it give not a
good title against all, it gives no good title at all." The
tenant can bind himself and his ot\ti estate by grant only.
The Act in shortening the time of prescription has made
no difference in this respect, bnt has only changed the
mode of acquiring the right (r).
During unity of possession of the dominant and servient Enjoyment
tenements in the same person all enjoyment is referred to of^poi^^e^s^on
the possession, and there can bo no enjo}inent of an ease-
ment as of right upon wliieh a prescriptive title can be
based (d). Accordingly, the actual enjoyment of the
access and use of light for the "\Aindows of a house will not
support a prescriptive claim so long as the house and the
alleged servient tenement are in the same occupation (e). —
Upon tliis principle a tenant in occupation under a lease
cannot treat any use or enjojonent of the demised tene-
ment as servient to another tenement of his own, in order
to found a prescriptive claun to an easement against his
landlord ; nor though the tenancy was only from year to
year, which the landlord might put an end to by notice
for the pm-pose of inteiTupting the enjoyment ; nor though
the use in question was not Avithin the terms of the lease,
if it was enjoyed in fact under the lease and by virtue of
the position of lessee ; as where the lease ga\e the right of
making a certain di-ain through the land and the lessee
made another different drain (/"). Hence it seems that a
{b) BrUjht V. Walker, 1 C. M. & (er) Harbidi/e v. iranvhk, 3 Ex.
E.. 221. 552; Ladyman v. Grave, L. E. 6
((•) Brujht V. Walker, 1 C. M. & Ch. 703.
E. 211. (/) Outram v. Mau,le, L. E. 17
(rf) Ouhii V. Gardiner, 4 M. & W. C. D. 391 : oO L. J. C. 783 ; Ladi/-
496; Clayton \. Corby, 2^. B.^Vo. man v. Grave, L. E. 6 Ch. 7GS ;
I,. U
290 LSE.S AND PROFITS IN LAXIJ OF AXOTIIKR.
tenant for }'ears of a honso may prevent the accrual of an
easement hy taking a tenancy of the adjacent servient
land ; and lie cannot be said to prejudice thereby his land-
lord's right, because the landlord has no right before the
lapse of twenty years (r/). — Upon the same principle a
tenant in occupation of the alleged dominant tenement
cannot maintain a prescriptive claim by any enjojonent
over another tenement of his lessor, because all the tenant's
rights are derived fi'om his landlord, who could not have
an enjoyment as of right of an easement over his own
property (h) . Such is the position of copyholders claiming
rights over the waste of the manor, which is vested in the
lord as well as the freehold of the copyhold tenement ;
their rights are not prescriptive, but appurtenant to
Unity of title their tenements by custom of the manor (/). — "Where
a person is trustee of that wliich is to be the dominant
tenement, and is beneficial owner of that which is to be
the servient tenement, there is not such a unity of posses-
sion as prevents the application of the statute or the appli-
cation of the doctrine of a lost grant." Thus wliere a
chm'ch was vested in the incumbent of the benefice as
trustee for the use of the parish, and adjacent glebe land
was vested in the incumbent for his own use, it was held
that notwithstanding such unity of possession an easement
of light over the glebe land might be acquired as appurte-
nant to the church (/).
Enjoyment of Section 3 of the Prescription Act, providing for the
rjTrht. enjoyment of light, omits the expression " as of right,"
which occurs in sect. 2 with regard to other easements ; and
the omission, it is said, is justified because such condition
is inapplicable to the negative easement of light, there
being no claim of right implied against the adjacent tene-
Chamher ColKcry Co. v. Ilopwood, N. G4 ; 2G L. J. Ex. 298 ; Gayford
L. R. 32 C. D. 549; 55 L. J. C. v. Mojfalt, L. R. 4 Ch. 133; Daniel
859. V. Anderson, 31 L. J. C. 610.
{ff) Hatherley, L. C, Ladyman (i) Hee jjost, p. 568.
v. Grave, L. R. 6 Ch. 768. {j) Eccles. Commis. v. Kino, L. R.
(h) Warburton v. Farke, 2 H. & 14 C. D. 213 ; 49 L. J. C. 529.
CHAP. 1. EASEMENTS. 291
mont in opening a Avindow for Iho access of light. The
omission, however, is immaterial as regards the actual
enjoyment required as the basis of prescription, which
must be " in the character of an casement, distinct from
the enjoyment of the land itself," for tliis as for all other
easements {k). Sect. 5 of the Act requires that in plead-
ing easements it must be alleged that the enjoyment was
" as of riglit," and no exception is there made of easements
of light (/). — Under the above sect. 3 one of two tenants
of separate tonomonts imder tlie same landlord may
acquire against the otlier an easement of light dming theii*
tenancies by an enjoyment of twenty years ; though the
easement would be extinguished upon the tenements
reverting in possession to the landlord {m).
Tlie rale of the civil law, that possession must not be Secret enjor-
clani or secret, "is so far adopted in English law that no "^^" "
prescrii:)tive riglit can be acquii'ed whore there is any con-
cealment, and probably none where the enjoyment has not
been open" (;?)• It is sufficient if the enjoyment is so far
open that the owner of the servient tenement has the
means of information, if ho please to inquire ; and he
will be taken to know what ho might ascertain by inquiry.
But if upon inquiry information were improperly with-
held, or false or misleading information given, or anji:hing
done in order to keep material facts from his knoM-lcdge,
the enjoyment in such case would be claui. or secret, and
woidd not support a prescriptive claim. Thus, in the case
of a building erected upon the boimdary line of a tene-
ment, the owner of the adjoining tenement must be
presumed to have knowledge of the fact that such a
building cannot ordinarily stand without lateral support,
{k) Harhidgc v. TT'anvick, 3 Ex. N. S. 449 ; 30 L. J. C. P. 356 ;
652 ; Flifffit v. Thomas, 11 A. v<t E. Mitchell v. Caiitrill, L. R. 37 C. D.
695 ; riasterers^ Co. v. J'arish Clerks'' 50 ; 57 L. J. C. 72 ; see Daniel v.
Co., 6 Ex. 630 ; 20 L. J. Ex. 302. Andtrson, 31 L. J. C. 610.
{I) Ante, p. 288. (^0 L. Blackburn, Ballon v. An-
\m) Frcuen v. Thillip^ 11 C. B. tji's, L. R. Ap. Ca. 827.
u2
292 L'SES AND PROFITS IN LAND OF ANOTHER.
and he must have imputed to liim knowledge that an ease-
ment of sujiport would be acquired against him unless
he ' interrupts or prevents it (o). But if a building be
erected upon excavated land so as to require extraordinary
support fi'om the adjoining land, the right could not be
acquired by prescription unless the owner of the servient
land knew or had the means of knowing the fact of the
excavation (^;). Where contiguous houses in a street had
fallen out of the perpendicular and leaned one uj)on the
other, it was lield that their dependence for support was
not so manifest and open as to found a prescriptive claim
to its continuance {q).
Enjoyment An enjoyment by licence asked and given, or by any
Dv I1C611CG or • • -I ■ •
aoreement. agreement importmg a licence, wt.11 not found a pre-
scriptive title. " The asking leave from time to time
icitJiin the forty or twenty years, breaks the continuity of
the enjoyment as of right, because each asking of leave is
an admission tliat, at that time, the asker liacl no right ;
and therefore the e\ddence of such asking witJiin the
period is admissible under a general traverse of the enjoy-
ment as of right. It will follow that not only an asking
leave but an agreement commencing icithhi the period may
be given in evidence under the general traverse, notwith-
standing the words of the fifth section (that ' if the party
rely on any matter not inconsistent with the simj)le fact of
enjoyment, the same shall be specially alleged and shall
not be received in evidence on any general traverse or
denial of such allegation ' ) ; for the j)arty cannot and
does not rely on it as an answer to an enjoyment as of
riglit which he confesses, nor as avoiding any such enjoy-
ment during tlie time covered by the agreement ; but as
showing that there was not at the time when tlie agree-
ment was made an enjoyment as of right." A licence or
(0) Selbome, L. C, Dalton v. {jj) Tartrldge v. ScM, 3 M. &
AmjuH, L. B. 6 Ap. Ca. 801 ; W. 220.
L. Blackburn, ih. 828. {q) Solomon v. Vintners' Co., 4
H. & N. 585 ; 28 L. J. Ex. 370.
( II.Vl'. 1. EASEMENTS. 293
agreement anIiicIi covers the whole period of enjojonent,
and shows a right duiing all that time, is a matter not
inconsistent Avitli tlie alleged enjoyment and therefore in
tlie words of tlie statute " the same shall be specially
alleged" (y).
By the Prescription Act, sect. 2, as to easements gene- Parol licence,
rally, enjoyment for forty years gives an absolute title,
" unless it shall appear that the same was enjoyed by some
consent or agreement expressly given or made for that
jDurpose by deed or writing.^' And sect. 3 provides the
same exception as to the twenty years' enjoj-ment of lights.
In these cases a licence asked and given or an agreement
made by parol is not within the exception of the statute,
and therefore, if covering the whole period of enjoyment,
it cannot be alleged in answer to the claim ; but a licence
asked or an agreement made A\ithin the alleged periods of
enjoyment, whether in writing or not, contradicts the
allegation of enjoyment as of right and so defeats the
claim (-s). Where a prescriptive right has been once ac-
quired, it will not be affected by a subsecpient act of the
dominant owner in asking or accepting a licence, unless it
amounts to a.smTender of his vested right (/).
"Where the owner of a house signed a document in A<,n-eemcut
writing to the effect that he had opened certain windows
by leave of the o-v\Tier of the adjacent land, and that he
would at the recpiest of him or his heirs or assigns at any
time thereafter block up the same, and in the meantime
would pay him his heirs and assigns sixpence a year for
the indulgence ; it was held to be an agreement within
the exception of the statute, sect. 3 ; that it was binding
upon the party who signed it, aud upon a piu'chaser of the
house with notice of it ; and that it might be enforced in
equity independently of its elTect under the statute. It
(/•) r,r cur. TU-lilc v. Broiot, 4 AV. 795.
A. & E. 3S3; Moumouth ('amtl Co. (») Tickle v. Broun, supra.
V. Harford, 1 C. M. & R. C31 ; (0 Freuch Hock v. Hugo, L. R.
Bcasley v. Clarke, 2 Bin^. N. C. 10 Ap. Ca. 336; 54 L.J. V.C. 17.
705. See Kinlvch v. Xciilf, M. \
29-i USES A2iD PROFITS IN LAM) OF ANOTHER.
was fui'tlier licld upon tlie construction of tlie agreement
tliat it remained in force until the request to block the
■windows was made and acted upon ; though if the money
were left unpaid for twenty years it would be evidence
that the agreement had been abandoned (k). An excep-
tion in a conveyance of land, of all " rights restricting the
fi'ee use of the adjoining land or the conversion of such
land at any time hereafter for building " was held to apply
only to rights at the time of the conveyance, and not to
operate as a consent or agreement within the statute,
in respect of futm^e enjoyment and acquisition of such
rights (y). — Where the owner of a building which rested
on the wall of the servient tenement, had entered into an
agreement with the owner of the latter, upon notice given,
to make a road over the site of the building ; it was held
that his enjoyment of the easement for the biulding was
not of right, but determinable at any time iinder the
agreement {w) .
Enjoyment The excrcise and enjoyment of an easement by the
by sufferance. (jQ^-^j^f^^f; owner is sometimes attended with beneficial
enjoyment by the servient owner ; as in the case of a
watercourse discharging into the servient tenement which
is beneficial to the latter, or of diverting a watercourse
from the servient tenement the flow of which would be
prejudicial. But in such cases the servient owner acquires
no right to the continuance of the easement and to the
incidental advantages arising to him from it, his enjoy-
ment being by sufferance only and not as of right, and
subject to withdi'awal at any time (x).
Continuity of Tlic enjoyment, both at common hiw and under the
enjoyment. Prescription Act must be continuous during tlie periods
(m) Beu-lcy v. Atkinson, L. K. 13 (m) Tone v. Preston, L. K. 2-1 C.
C. D. 283 ; 49 L. J. C. 193. D. 739 ; 53 L. J. C. 50.
{v) Mitchell v. Cantrill, L. R. 37 [x) Arkivri(jht\. Gcll, 5M. &W.
C. D. 5G ; 57 L. J. C. 72 ; cited 203 ; Mason v. Shrewsbury and U.
ante, I). 271. HiJ., L. R- 6 Q. B. 578 ; 40 L. J.
Q. B. 293 ; ante, p. 233.
CliAP. I. EASEMENTS. 295
prescribed; the continuity of enjoyment being requii-ed
according- to the natiu'e of the easement. Thus, the enjoy-
ment of a riglit of way being in its natm^e occasional only,
the continuity consists in using the way as and when occa-
sion requires ; and a general right of way may be proved
by evidence of using it for all purposes from tune to time
requii-ed, though the occasion for some of the purposes fii'st
arose within the prescribed period {y) . Also a right of
way may be limited to pm'poses whieli only occasionally
recm* (;:). But a right of way for drawing wood from a
plantation at the proper periods for cutting, which recurred
at intervals of twelve years, was held to bo too discontinu-
ous in its natm'e to admit of proof under the Prescription
Act, though it might be claimed and proved prescriptively
at common law {a) . The dilf erence between easements to
be enjoyed at long and short intervals, with reference to
the statutory prescription, is one of degree rather than one
of principle ; the statute does not afford any certain test
but leaves it to be treated as a question of fact {b) . — The
enjoyment of a Avatercom-so may be in its natm"c inter-
mittent, as a drain to carry away flood A\'ater or streams
flowing dm'iug wet seasons only ; and the intermissions
do not prevent such a continuity of enjoyment as is re-
quired to support a prescriptive title {c) . The continuous
enjoyment of light does not import a continuous occupa-
tion of the house to which it is appm'tenant ; the access of
light continues for the pm'pose of acquiring the right
though the house bo in fact uninliabited, and even though
it be not fit for habitation, if it be struutimilly complete {d).
But the flow of light must be continuous through the same
defined opening ; it cannot bo claimed for a building in
((/) Bare V. llcathcotc, 25 L. J. {c) Hall v. .b'ifi/V, 4 Bing. X. C.
Ex. 24.5. 381.
(z) Boitiisonx. C(trlwri(fht, o B. &, {d} Wilson w. Townoul, 1 Dr. &
S. 1 ; 33 L. J. Q. B. 137. Sm. 324 ; 30 L. J. C. 25 ; Court-
{a) Jfolliiis V. Vcniri/, L. R. 13 aiiltl v. Lajh, L. R. 4 Ex. 12G ; 33
Q. B. D. 304 ; 53 L. J. Q. B. 430. L. J. Ex. 45; aii'e, p. 215.
ill) Hulliiisy. WriK II, sti])rr.
296
ISES A>1) 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., d<i.sc)/tie>i(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. (<j) Tucker v. Xewman, 11 A. &
(w) Clai/ton V. Corhi/, 2 Q. B. 813. E. 40 ; ante, p. 235.
(o) Onlei/ V. Gardiner, 4 INI. .*c W. (r) Jiaxlcr v. Tui/hr, 4 B. .t AJ.
304 USES AND PROFITS IN LAND OF ANOTHER.
Exclusion of Sectioii 8 Giiacts "■ tliat -\vlien any land or water upon,
or^vears f rem 0"^'^!% o^' from wliicli any siic'li way or other convenient (s)
period of watercoui'se or use of water shall have been or shall be
enjoj'ed or derived, hath been or shall be held under
or by virtue of any term of life, or any term of years ex-
ceeding thi-ee years from the granting thereof, the time
of enjojanent of any such way or other matter diu'ing
the continuance of such term shall be excluded in the
computation of the said period of forty years, in case the
claim shall within three years next after the end or sooner
determination of such term be resisted by any person
entitled to any reversion expectant on the determination
thereof." This section applies only to the period of forty
years expressly mentioned, and has no implied aj)plication
to the twenty years' period of the 2nd section (/). — The
exclusion from computation by this section is not absolute,
as that by the 7th section, but conditional only ; the
condition being that the person entitled to the reversion
on the determination of the term for life or years shall
within three years resist the claim, which condition must
be strictly satisfied (//). The reversioner or his assignee
only can take the benefit of the condition ; and the term
"reversion" is construed strictly and technically as not
including a "remainder " ((!•). — "The effect of the 8th
section (as already stated of the 7th section), is not to
unite discontinuous periods of enjoyment, but to extend
the period of continuous enjoyment which is necessary to
give a right by so long a time as the land is out on lease,
subject to the condition therein mentioned" (?r).
72; ;;«• cur. F raven v. rhilltps, {t) Talk v. Shifuwr, 18 Q.B. rjQS;
11 C. B. N. S. 455 ; 30 L. J. C. P. 22 L. J. Q. B. 27 ; ante, p. 28G.
35G ; Hatherley, L. C, Lad>/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" (<?).
" As an express release of the easement would destroy it Abandon
at any moment, so the cesser of use coupled ^\■ith any act
(a) Co. Lit. 264 ^•: Willes, J., Aid. 791.
Lovell V. Smith, 3 C. B. N. S. 127. (<) Littledale, J., Moore v. liaic-
(i) Fa- cur. J)oc\. Hilda; 2 B. & son, 3 B. & C. 339.
ment.
306 USES AND PROFITS IN LAND OF ANOTHER.
clearl\' indicative of an inteutiou to aLaudon the right would
liave the same effect without any reference to time." In
this respect, "it is not so much the duration of the cesser
as the natiu'e of the act done hy the grantee of the ease-
ment, or of the adverse act acquiesced in by him, and the
intention in him which either the one or the other indi-
cates, which are material for consideration. The period of
time is only material as one element from whicli the
grantee's intention to retain or abandon his easement may
be inferred against him ; and what period may be sufficient
in any particular case must depend on all the accompany-
ing circumstances " (f/). Accordingly an easement may
be considered as abandoned and lost, if the dominant owner
makes such a permanent alteration of the dominant tene-
ment, or if he suffers such a permanent alteration of the
servient tenement, as renders further exercise of the ease-
ment useless or impracticable ; but mere discontinuance of
exercise without any act of abandonment does not affect
the right further than that it tends in coui'se of time to
raise the j^resumption of a release ; which presumption,
however, may be rebutted by the circumstances of the
discontinuance. — The above principles have been applied
in the following cases.
Abandonment A right of way granted for the use of a piece of open
o ways. land, as such, Avas held to be abandoned and lost by cover-
ing the land with building ; the Court saying that the
grantee of the way could use it only for jDurposes com-
patible with the land remaining oj^en according to the
grant (e). A right of way to part of the dominant tene-
ment was held to be lost by severing that part permanently
from the princijial pai't for tlie use of which only the way
was appurtenant ; as part of the yard of a house (/).
Where land was sold to a railway company under the
(d) Per cur. The Queen v. Chorleij, , (e) Allan v. Gomme, 1 1 A. & E,
12 Q. B. 519. See Crossloj v. 7 b9 ; ante, p. 206.
Lirjhtowler, L. R. 2 Ch. 478 ; 3G (/) See Boucr v. Hill, 2 Bing.
L. J. C. 584. N. C. 342.
CHAP. I. EASEMKNTS. 807
powers of tlieir Act, liaving stables built upon it with a
way over a private road giving access to the stables, it was
held that the riglit of way, being impliedly limited to the
use of the stables, was abandoned and lost by tlio company
pulling down the stables and converting the land into a
railway {<j). — On the other hand, where the use of. a way
was discontinued by the occupier of the dominant tene-
ment, because he had for the time being a more convenient
way over another close in his occupation, it was held to be
no e\idencc of an intention to abandon the right [h). So
where the owner of the dominant tenement used a varia-
tion of the way for the time being, by agreement with the
owner of the ser\ient tenement, it w\as held to be no
evidence of a-jjaandonment of the original way {i). Where
a doorway of a house opening on to a way had been
bricked up by the owner, and after an interval of thirty
years the door was re-opened and the way resumed, no
change having been made in the interval upon the servient
tenement ; it was held to show merely a discontinuance of
use and not an abandonment of the way [J). So where
the way to a tenement by a navigable channel had been
suffered to become choked with mud and impassable, it
was held to be merely a voluntary suspension of the right,
and not such an abandonment as would justify the servient
owner in stoj^ping it permanently (/.•) .
The easement of light ajipurtenant to a house is pre- Abandonment
simiptively abandoned by pulling down the house. Pullino- °* ^s^^-
do^vn a house with the intention of re-building upon the
site does not affect the appiu^tcnant easements ; but it lies
upon the dominant o"v\Tier to show cu-cumstances from
which the intention of resuming his rights may be
(<7) liaiilcy V. Great Wcstem E>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<Hr>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<tnl, supra. King v. IChijclty, 1 T. R. 137; Lons-
(*) &ec post, p. 5G3. dale v. Rigg, 11 Ex. 654; 1 H. &
{c) Wclamw V. Upton, 6 M. & W. N. 923.
530. " Instances of sole pasturage (</) Co. Lit. 20a,
are to be found in the South Downs (c) Co. Lit. b&b ; Hue v. Taylor,
in Sussex, and they are frtH|uontly 4 Co. 306.
transferred in gross. Itistliesame (/) Co. Lit. 47ff. See Mastersy.
with the cattlo-gates in the North Green, L. R. 20 Q. B. D. 807.
of England, although some have (17) Co. Lit. 4A.
332
USES AND ]M;()FITS IN LAND OF ANOTHER.
Construction
of teiins.
Commons.
foD.siira, excluding all other rigbts and profits (//). — Tlio
grantee of exclusive pasture, or of the herbage or vesture
of land has possession of the surface for the time being so
far as is necessary for taking the profits granted, and he
can maintain an action of trespass in right of that actual
possession. The owner of the soil subject to such exclusive
possession of the sui'face is excluded from maintaining an
action for a trespass upon the surface only ; but he retains
the right of action for a trespass to the subsoil [i). An
exclusive use of pasture in absence of other facts indicative
of ownership is priinci facie evidence of title to the land
itself ; and the inference is stronger where tlie nature of
the land is such as not to admit of other profitable uses (,/) .
—The terms "pasture," "meadow," or other like term in
a conveyance may bo construed as a description of the
land sufficient to pass the land itself ; or it may be con-
strued to mean only the profit of pastming cattle, whilst
the land itself in respect of all other uses remains the
property of another. The construction depends primarily
upon the context of the instrument in application to the
circumstances ; and if doubtful it may further be explained
by the usage in which it has been accepted {k) .
" Cfmimon" is used as a general expression for "a
profit which a man hath in the land of another " ; the
common interest being between the owner of the profit and
the owner of the soil, or between the owner of the profit
and other owners of like profits ; and in the latter case it
may be exclusive of the owner of the soil. There are
various species of commons : — of pastiu-e, of estovers, of
turbary, of pischary, of digging for coals, minerals, and
the Uke [1).
(A) Co. Lit. 58 h ; Stammers v.
Dixon, 7 East, 200 ; Johmon v.
BarncK, L. R. 8 C. P. 527 ; 41 L. J.
C. P. 250.
(i) Co. Lit. 4 b ; Cox v. Glue, Cux
V. Mousley, 5 C. B. 533 ; Coverdale
V. Charlton, L. R. 4 Q. B. D. 104 ;
48 L. J. Q. B. 128.
{j) Jones V. liicliard, 5 A. & E.
413.
{k) Co Lit. 4 b ; Stammers v.
Dixon, 7 East, 200 ; Doe y. Bevis,
7 C. B. 504 ; Mo'/g v. Yatton, L. R.
6 Q. B. D. 10 ; 50 L. J. M. 17.
[l) Co. Lit. 122 «; Pot tcrY. North,
1 "Wms. Saund. 349 b.
CHAP. II. I'llOl'lTS A rilKNDRE. 'j'33
Coinmon of pastiu'o is tlic rig-lit (jf feeding beasts on Common of
another's land ; and it is so called " for that the feeding of ^"^ ^^'
Leasts in tlie land Avherein the common is to be had belongs
to many " (di). Common of pasture can be taken only
by jmtting cattle ujioii the laud to eat the herbage; thus
differing from a right to the herbage of land which may
be taken by cutting it and carrying it away to use else-
where for food, litter, or manm-e (//). — Common of pasture lu (p-oss.
may be in gross, or appuytouuit. Common of pasture in
gross may be claimed by grant or by prescription at
common law. It is defined and limited by the express
terms of the grant, or by the mode of use and enjo}Tnent
upon which the prescription is founded. It may be of any
kind that is capable of being made the subject of a
grant (o).
Common of pasture appiu-tenant is claimed as an inci- Common of
dent annexed to a dominant tenement, and is defined and appurtenant
limited, dii-ectly or indirectly, by some beneficial connec-
tion with the occupation of that tenement {p). It may
be limited to the cattle " levant and couchant " upon the
dominant tenement, or to the cattle required for ploughing
and manuring the tenement, or to cattle of a certain
species, or it may be "stinted," that is limited to a certain
number of cattle, either fixed absolutely or by reference to
the value or extent of the tenement ((7). — The phrase Cattle levant
"levant and couchant" literally imports that the cattle
should be permanently kept upon the land; but it is con-
strued in modern times to refer to the capacity of the
tenement to maintain the cattle rather than as a condition
to be literally satisfied. " It is settled that what is meant
by cattle k'vant and couchant is the number of cattle which
the land in respect of which the common is claimed will
maintain, and that it is a mode of admeasm'iug the
(«0 Co. Litt. 122 a. (0) Ante, p. 326.
(h) A»te, p. 331 ; De la Warr v. {p) And; p. 327.
Miles, L. R. 17 C. D. 535 ; 50 L. J. (v) liaiflis v. Tyssen-Amhurst, L.
C. 754. R. 6 C. i>. 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.&: (<i) Loidgc v. Carpeiilcr, G M. &
N. 643 ; 29 L. J. Ex. 401 ; i://a>-<i S. 47.
V. Hill, Siilertiu, '226. [e) WeeJdy v. Wildman, 1 L.
(rt) roxv.AmhufU, supra ; Baylis Raym. 4 07; Ivatt v. Maun, 3 M.
V. Tijssen-Amhnrst, supra; 13 Geo. & G. 091 ; Morhi/v. Cliford, L. R.
3, c. 81. 20 C. D. 753; 51 L. J. C. 087;
{b) Chapman v. Cowhm, 13 East, Welcome v. Upton, G M. «fc W
10. 636.
(r) Benson v. Chester, 8 T. R. [f) Johnson v. Barnes, L. R. 8
396; Chapman v. Cowlan, 13 East, C. P. 527; 41 L. J. C. P. 260;
10 ; rouell V. rouis, 1 Y. & J. The King v. Churchill, 4 B. & c!
161 ; Junes v. liiehard, G A. & E. 750; Mellor v. iSpateman, 1 Wms.
530 ; Morhy v. Clifford, L. R. 20 Saund. 346rf.
C. D. 757; 51 L. J. C. 087.
336
USES AND riiOFlTS IN I,.VND OF ANOTHER.
cattle of others, provided there be no surcharge (,/'), or
it may he assigned altogether {g). Common appiu'tenant
for cattle levant and couchant cannot he used for feeding
the cattle of others ; unless such cattle are hii'ed and kept
by the commoner as his own (//).
Sheep--n-alk. A commou of pastm'e may be claimed for a certain
species of animals onl}^ as for sheep, which is known as a
" sheej) w^alk," and under certain circumstances as a " fold
coui'se " (/'). In ancient times it Avas commonly subject to
" foldage," or the obligation of folding the sheep upon the
demesnes of the manor for the benefit of manuring the
land (,y) ; a similar right of " foldage " was sometimes
exacted from the tenants of a manor, as a service of their
Pannage. tenure (/.•) . — Common of " pannage " is the right of feeding
swine in woods and forests with the acorns and beech mast
fallen from the trees. In ancient times it was frequently
tlie subject of grant or of manorial custom; and in some
places it is a valuable right at the present day. It gives
no specific right or interest in the growing trees, or to take
the produce from them, or to restrain the owner from
cutting them for timber or from lopping them in the
proper coiu'se of management (/).
Common
apiJondant.
The earliest form of common appurtenant is the common
of pasture appendant to arable land at common law. Upon
the grant of a close of arable land by the lord of a manor
before the Statute of Quia Emptorcs, there was appended
by general custom or common law the right of pasturing
upon the w^astes of the manor the cattle that were neces-
(/) 2 Wms. Saund. 327, 7/o6-
hins v. liohins.
iff) Daniel v. ILandip, 2 Lev. 67 ;
Drury v. Kent, Cro. Jac. 14.
(/() I'er cur. Bennett v. Reeve,
WilleH, 232 ; Jones v. Itichard, 5
A. & E. 530.
(i) Jones v. Itichard, 5 A. & E.
413; 6 lb. .530 ; liohinaon v. JJulcep
Singh, L. K. 11 C. D. 798; 48 L.
J. C. 758.
{j) Brook V. WiUct, 2 H. Bl.
224.
[k] 8 Co. 125i; Tioisaity v.
I^eader, 1 Leon. 11 ; liobiiition v.
Dulcej) Singh, L. R. 11 C. D. 810.
(/) Chilton V. Corp. of London,
L. R. 7 C. D. 562 ; 47 L. J. C.
433 ; Bracton, 1. iv., c. 38, cited
in I)e la TFarr v. Miles, L. R. 17
C. D. 535 ; 49 L. J. C. 479.
CHAI". II. I'liOiriS A I'KENDUE. 337
sary i'ur i)liju<^liiny- and imiiiuriii;^' tlic land inclosed. Ai'ter
the Statute of Quia Umpforcs a grant of manorial land took
the land out of the manor altogether a.s regard.s the tenui'e ;
for the grantee by force of the statute held dii-eetly of the
superior lord and not of the manor, and therefore the incident
of common ajipendant no longer attached (in). " Common
appendant is of common riglit and therefore a man need
not prescribe for it" ; but by reason of its early origin it
necessarily imports a prescriptive title, and hence it is said
that " appendants are ever by prescription, but appurte-
nants may be created at this clay" {ii). — Common appen-
dant can be claimed for arable land only, or at least
for land originally arable ; it cannot be claimed as
originally granted for a house, or for meadow or
pasture land. But " if a man has had common for cattle
which serve for his plough appendant to his land, and
perhaps of late time an house is built upon part and some
part is employed to pasture and some for meadow, in this
case the common remains appendant ; it shall be intended,
in respect of the continual use of the common, at the begin-
ning all was arable ; but in pleading he ought to prescribe
to have it appendant to land; and although now it is
pasture or meadow, yet it is arable, id est, may be
ploughed" (o).
Common appendant is limited to " commonable cattle," CommonaUe
that is, cattle that serve for the maintenance of arable
land, namely, horses and oxen to plough the land, and
cows and sheep to maniu-e it. Common appm-tenant by
grant or prescription has no such limits, but may extend
to swine, goats, geese, and the like, according to the tenns
of the grant or the prescriptive usage ; it is limited only by
the condition of being appurtenant to the tenement {p).
(in) Co. Litt. V22a; 2 Inst. 85; (o) Tyrringham'scase, 4 Co. 374;
4 Co. 37rt, Tyrrmgham'' s cine; Carr y. Zanibtrt, 1,. B,. I Bx. 168 ;
Warrick v. Queen's Coll., L. R. G 34 L. J. Ex. 66; ante, p. 334.
Ch. 716; 40 L. J. C. 780. [p) Co. Lit. 122rt; 4 Co. 37 fl,
(w) Co. Lit. 121/', 122(7; liar- I'yningfiain's case ; p<r cur. Biai'
grave's note, ib. raven v. Llewellyn, 15 Q. B. 810.
338 USES AND PROFITS IN LAND OF ANOTHER.
The grant of a tenement witli tlie common law incident
of common appendant may also have other profits appm'-
tenant to it ; which may he evidenced hy the terms of the
grant or by prescriptive nse {q) . A claim of common for
all commonable cattle may be supported by evidence of
the conmionor tm-ning out all kinds of commonable cattle
that he kept, though he had never kept any sheep (r).
— The commonable cattle must be levant and couchant
upon the land ; but this condition here imports no more
than the connection of the cattle with the land which is
necessary for ascertaining the number. " The tenant can
only have a right of common for such cattle as are levant
and couchant on his estate, that is, for such and so many
as he has occasion for to plough and manm^e his land in
proportion to the quantity thereof" (-s). "The right of
common appendant is confined to arable land only, and
yet the party must state in claiming this right, that the
cattle were levant and couchant upon the land ; it follows
therefore that arable land in point of law may have cattle
levant and couchant thereon" (t).
Common of Common pur cause do ricinage, or intercommoning, is
vicmage. where adjacent commons are open and unfenced, and there
is a local custom for the cattle to intereommon, that is,
for the cattle rightfully put upon one common to stray
and feed upon the other. The commoners of one common
have no right to turn out cattle upon the other, " but they
must escape thither of themselves by reason of vicinity.
In which case one may inclose against the other, though it
hath been so used time out of mind, for that it is but an
excuse for trespass" (<f). "The substance of the custom
is that cattle lawfully on one common have been used to
stray upon the other. All that is necessary therefore for
(17) IFarricJcr. Quceii's Coll., L. E. («) Bennett v. Reeve, Willes, 231.
6 Ch. 726 ; 40 L. J. C. 780. (4 Fer cur. Cheesmati v. Hard-
(»•) Mainfold v. Tcnmnyton, 4 B. ham, 1 B. & Aid. 710.
& C. 161. (m) Co. Lit. 122 a; 4 Co. 38 i
Tyrringhcmi' s case.
CHAP. II. rUOiriS a IMtKNUIlE. 339
tlie pleading to sliow is that the cattle were lawfully on
their own common before they strayed." The custom
may he proved hy immemoiial usage of cattle straying
and feeding upon the commons of \icinage, or by reputa-
tion ; and the (evidence of cattle stra}ing may be mot by
proof that they were constantly diiven back. The right
of a commoner to his own common, to which the com-
mon of vicinage is incident, is not necessarily immemorial,
but may be claimed by grant or by modern prescription
under the Prescription Act (r). The commoners are re-
stricted, as to the number and kind of cattle, by their
rights upon their own respective commons, without respect
to the extent of the common of \'icinage ; "for the original
cause of this common for cause of \'icinage was not for
profit, but for preventing of suits"; and "if all the cattle
feed promisciie together through the whole, it mil be no
prejudice to one or the other " {ic). In case of surcharging
the common of vicinage a commoner of the latter may
bring an action upon the case ; but he cannot determine
the cpiestion for himself by distraining or driving off the
cattle in excess {x) . Common of vicinage cannot extend
through the adjacent common to commons beyond ; it is a
mutual right between adjacent commons only, and it
seems is restricted to two commons (i/). — No similar custom
can arise between two tenements held in several and
exclusive ownership over which there are no commons ;
nor between commoners and an adjoining imfenced tene-
ment over which there is no common ; nor between a sepa-
rate tenement and a common ; the claim being in deroga-
tion of the general exclusive ownership of land, "the
general principles of law require that it should be shown
to arise by grant or prescription " (2).
(i) Prichard v. roiccU, 10 Q. B. (y) Bromjleld v. Eirher, 11 Mod.
603 ; JLath v. Ellioit, 4 Binjr. N. C. 72 : Commiss. of Sewers v. Gldsse,
3SS ; Chtrk v. TinUer, 10 Q. B. 604. L. R. 19 Eq. 134 ; 44 L. J. C. 129.
Uc) 7 Co. bb, Corbet's case. (-) Joiies v. Jiobiii, 10 Q. B. 637 ;
r) Cape v. Scolt, L. R. 9 Q. B. Clar/.e v. Tiidkr, 10 Q. B. 604;
269 ; 43 L. J. Q. B. 65. Jfealh v. £iHot(, 4 Bing. N. C. 388.
z2
340
USES AND PROFITS IX LAND OF ANOTHER.
Whilst the custom prevails the commoners cannot drive
out the cattle straying on to their common, but must suffer
them to he there ; their only remedy is to extinguish the
mutual rights by inclosure {(() ; but " a commoner may
go on to a common of vicinage to drive his cattle off into
his own common, for he ought not to keep them in the
common of %'icinage, and he may justify this trespass " (h).
Inclosure. — Common of %T.cinagc may be extinguished at any time by
inclosure of one of the commons in a manner to prevent
the straying of cattle from the other common. Where a
private Inclosure Act had extinguished the rights over one
of the commons and allotted it into separate tenements,
but no inclosure had in fact been made under it ; it was
held that the private Act did not affect the rights of the
other commoners, who might continue their common of
vicinage until prevented by an inclosure in fact (c) . Where
an inclosure was made of one of the commons lea\ing only
a passage for a highway across the commons, it was held
that as the inclosure and separation were not complete the
common of vicinage was not in fact excluded (d).
Common
fields.
There is a species of intercommoning still prevailing in
some places, where arable land is held by several persons
in small parcels intermixed and uninclosed, with the right
appendant by custom to each parcel to have common
over the whole when the crops are off, for such common-
able cattle as are required to plough and manure the land.
The fields of arable land held in this manner are called
" common fields," and the common is known locally by the
term "common of shack" (^). "Common fields" are
said to be the remains of a mode of holding and cultivat-
ing land prevalent in ancient times ; they were of frequent
occurrence until they were for tlie most part inclosed
(a) Co. Lit. 122 « ; per cur. Jones
V. Jiobin, 10 Q. B. 630.
{b) Holt, C. J., Bromfield v.
Kirher, 11 Mod. 72.
{c) Wells V. Pearcy, 1 Bing. N. C.
656.
{d) Gullett V. Lopes, 13 East, 348.
(<?) Corhei's case, 7 Co. 5 « ; CheeS'
man v. Ilurdham, 1 B. & Aid. 710.
CHAP. II. i'ROFlTS A PllENnUE. 341
under modem Inclosure Acts. Evidence of reputation is
admissible to prove the custom, as it concerns the rights of
all iK'i'Sons interested in the common field (./'). By custom
a freeholder in the common field may inclose his parcel aud
so exclude the other freeholders from common ; and at
same time as a consequence in law he excludes himself
from common over tlie other uninclosed lands {(j). The
times for opening and closing the common may be fixed
by custom, or by agreement of the freeholders ; and in
general the commoners may put in cattle at the proper
time, although the crops are not wholly gathered (A),
Powers for the better cultivation, improvement and regu-
lation of common arable fields were given to the occupiers
by the statute 13 Geo. III. c. 81. And powers to inclose
such fields and to extinguish the right of intercommonage
have been given by the statutes G & 7 Will, IV. c. 115,
and 8 & 9 Vict. c. 118 (the General Inclosure Act). — The LammaB
intercommoning of " Lammas lands " is of a similar kind. ^^'^^^•
These are meadows or pastm-e lands held in exclusive
possession during the season of the year for taking the first
crop, and open to common pastm'e during the rest of the
year, generally from Lammas to Candlemas ; the number
of cattle being restricted to those levant and couchant upon
the dominant tenements, or according to a stint or number
regulated by custom or by the commoners (/) .
Common of estovers is the profit of taking wood and Common of
other materials necessary for the maintenance and supply '^^*°^®"'
of a house or land, including what are kno^vn by the terms
(/) Wetks V. Sparke, 1 M. & S. 500; IG L. J. C. 718; Nichols v.
679. Chapman, 5 H. & N. 643 ; 29 L. J.
[g) Corbcfs caxr, supra ; Hickman Ex.461. The Act for correctiuf^
V. Thorn, 2 Mod. 104 ; Barber v. tho calendar, 24 Geo. 2, c. 23. s. .5,
Dixon, 1 Wils. 44 ; How v. Strode, advanced the date for opening:
2 Wils. 269. commons of the above kind by
(A) Year Book, 21 Hen. VI., eleven days, to compensate for the
cited 2 Leon. 202. daj-s taken out of the calendar ; so
(i) Fox V. Amhiirst, L. R. 20 Eq. that Lammas or 1 August became
403; 44 L. J. C. 666; liaiiHs v. 1 2 August for that purpose.
Tysscii-Amhurst, L. R. 6 "C. D.
342 USES AM) PROFITS IN LAM) OF AXOTHl'Jl.
house-bote, ploiigh-bote, cart-bote and bedge-bote. Tbese
terms have been abeady explained with reference to the
common Law right of a tenant for life or for years to take
the estovers from his own tenement. Common of estovers
is the right of taking similar things to the same extent
from the land of another (,/). The right of estovers may
extend by grant or custom to other materials required for
the use or repair of the tenement, as cutting and taking
litter for the use of the cattle kept upon the tenement {k),
and taking sand, gravel, stone, clay and the like ; in such
cases the occupier in order to justify the exercise of his
right must prove the want of repair or other necessity, and
that he entered for the pui'pose of taking the material in
question, and that he applied it to the required purpose {I).
Common of estovers of the above kinds over the wastes of
a manor is a frequent incident of the tenements of the
manor, both freehold and copyhold. The right of a tenant
at common law to take estovers without impeachment of
waste is not a profit a prendre in the land of another, being
a profit of his own tenement, and is subject to the terms of
bis lease. So the customary rights of copyholders to take
profits from their own tenements, as to dig gravel, sand,
and the Hke, are not profits a prendi-e («?).
Common of Common of turbary is the right to cut turf for fuel. It
turbary. ^^^ ^^ appm'tenant to a house to be consumed therein for
necessary fuel ; and it then passes in a conveyance of the
bouse without special mention. But it cannot be appur-
tenant to land, merely as open land, because not applicable
thereto («). It may be granted as a right in gross (o). In
a case under an Inclosure Act it was held that the occu-
piers of certain ancient tenements for the time being were
entitled to common of turbary by way of a charitable
(i) Ante, p. 36; 2 Blackst. Com. (w) JTanmer v. Chance, 4 D. J. &
yg^'^' S. 626; 34 L. J. C 413.
(k) Sean v. Bloom, 2 W. Bl. 926; (w) Co. Lit. 121 i; 4 Co. 37 a,
3Wils. 456 ; iJe la Warr v. Miks, L. Tijrrbujham's Case; seeSolmev.Bul-
R. 17 C. D. 53-5; .50 L. J. C. 754. lock, 3 Levinz, 165.
(1) Feppin v. Shakespear, 6 T. R. {o) See WilsonY.3Tachreth,Z'B\xrT.
749. 1824.
CHAP. II. PllOKITS A rilEXDKE. 343
tnist, and not as a right ajipurtenant to the tenements or
giving any interest to the owners of the tenements beyond
enhancing the vahie of the occupation (p).
In copyhold tenure the frooliold is vested in the lord, Common of
and the copyliolder is only tenant at A\dll, but secm-ed in
his tenancy by the general custom of the manor. Hence
a copyholder cannot claim jirofits in the waste or other
manorial land as aj)pm'tenant to his tenement by title of
prescription, because the lord cannot prescribe to have
profits in his own soil. But a special custom of the manor
may annex rights to the tenement, and by virtue thereof
the copyholder may claim common of pasture, or estovers,
or any other profit. Such custom is not oj)en to the
general objection to claiming profits by local custom,
because it annexes the profit to the tenement, which neces-
sarilj' has a determinate ©"wner, and not merely to an
indeterminate person, as an inhabitant or occupier in a
manor or district [q). But the claim of a copyliolder to
common or other profit in land which is not parcel of the
manor cannot be maintained by custom, for custom pre-
vails only within the bounds of the manor; he must
prescribe in the name of the lord in right of his tenement
in the ordinary manner (r). — Special customs as to commons
and profits vary in different manors ; and the custom may
vary as to different tenements in the same manor, assign-
ing common to some in one part, and to others in other
pai'ts of the waste ; and there may be a custom applicable
to one tenement only, for the other tenements may have
become merged or extinguished as copyholds (.s). The
onus of proving the custom lies upon the tenant who
claims the benefit of it (/).
The claim of a copyholder by special custom of a manor Profits of
{p) Jte Christehurch Inclosttre Act, Sec post, p. 568.
L. R. 38 C. D. 520. (») FoUton v. CracAroode, supra.
{q) FoistoH V. Crachrooile, 4 Co. (s) Ibid.
31 6; Gatcuard's Case, 6 Co. 59 *; [t) Portland v. Hill, L. E. 2 Eq.
Smith V. Gatcicood, Cro. Jac. 162. 765 ; 35 L. J. C. 439.
344
VSKS AM) TROFITS IN LAND OF ANOl II i:iJ.
ropyhold
tenement.
to take profits from the soil of liis tenement, in excess of
the general customary rights of a copyholder, as a custo-
mary right to dig and carry away sand, gravel, or other
minerals, is not a profit a prendre in the soil of another,
tut an incident of his own possession. It is therefore not
within the Prescription Act, which regulates the prescrip-
tive claims to profits ii prendre {h). Such rights may be
established by custom, as incidents of the grant of the
tenement (r).
Eights of
common of
lord.
The lord of the soil over which there are rights of
common retains all the beneficial uses and profits which
are not inconsistent with the rights of the commoners ;
whatever has not been granted away remains in hini
without any special reservation. Hence where there are
limited rights of common, or more common than is neces-
sary for the commoners, the lord is presumptively entitled
to take the rest for his own use (h') . AVhere the OTvmer of
a farm claimed the appurtenant right of feeding sheep on
a common, the lord of the soil was held entitled to all the
pastm-e which the sheep of the farm did not consume ; and
therefore the commoner was not entitled to take in other
sheep to feed there (.r). By custom the copyholders may
have tlie whole pasture of the manorial land, to the ex-
clusion of the lord (y) ; and by custom the lord may be
stinted to a certain number and species of commonable
cattle, the tenants taking all the residue of the pasture ; in
which case a commoner may distrain the lord's cattle put
on in excess of his stint, as he might that of a stranger (z) .
— The right of the lord in such cases is, strictly speaking,
a profit to be taken in his own soil, and not a profit to be
{u) JIanmer v. Chance, 4 D. J. &
S 62G; 34 L. J. C. 413.
{v) Salisbury v. Gladntone, 9 H.
L. C. 692 ; 34 L. J. C. P. 222.
[w) Ellonborough, C. J., Coxvlam
V. Sluck, 15 East, 112; Bayley, J.,
Arlett V. Ellis, 7 B. & C. 3G9.
[x) Jones V. Itichard, 6 A. & E.
530.
(y) Potter v. North, 1 Wms.
Saund. 353 (2) ; ILoshins v. Robins,
2 Wms. Saund. 324; Fisher v.
JTlen, 3 Mod. 250.
(z) lienrie/cv. Parff iter, Yelv. 129.
CIlAl'. II. I'liOiriS A rUKNDRK. 345
taken in alivno wlo; but being a profit tu Le taken con-
currently with the commoners it is often spoken of as a
right of common. Tlius, "it is not an uncommon thing
that the lord has demesne famis that have always been his
freehold, and which therefore never could strictly acquire
the right of common. Nevertheless the tenants of these
demesne lands under the lord did enjoy the same rights of
common over the wastes as those persons to whom lands
had boon conveyed, and llicy did dc facfo enjoy and use
the rights of common, just as if the freeholder of the
demesne lands was not possessed of the freehold of the
land over which the right of common was used " (*'/)•
Hence in the General Inclosure Act, 8 & 9 Vict. c. 118, statutory
s. 27, the provision made for compensation for "any right f°r\oid^s '^"^
of pastm-age which may have been usually enjoyed by the rights.
lord or his tenants," besides the compensation for his right
to the soil, is held to include the qiia.^i right of pasturage
over the wastes of the manor usually enjoyed by the lord
or his tenants in respect of his demesne lands (i). Simi-
larly the Lands Clauses Act, 1845, 8 Vict. c. 18, s. 99,
provides for compensation for " any commonable or other
rights to which the lord of the manor may be entitled,
in lands, other than his right in the soil of such lands."
(a) Fer cur. Mufffravev. Inclosure (b) ifuagrarex. Inclosure Commiss.,
Commiss., L. R. 9 Q. B. 175; 43 L. R. 9 Q. B. 162; 43 L J. Q. B.
L. J. Q. B. 87; Aruiidell v. Tal- 80. See Lloyd y. Fowls, 4 E. & B.
mouth, 2 M. & S. 440. 485.
346
"USES AND PROFITS IX LAND OF ANOTHER.
Section II. Creation of Profits a Prendre.
Grant of profit
a pi'endre.
Statute of
Frauds.
Grant of profits a prendre — Statute of Frauds — profits appurtenant.
Exceptions and reservations of profits a prendre.
Rights accessory to profits a prendre — rights, accessory to mining.
Title by prescription at common law.
The Prescription Act — profits appiu'tenant — profits of copyhold tene-
ments.
Profits in gross — corporate rights.
Prescriptive usage must be lawful— certain — continuous.
Profits a prendre, being incorj)oreal hereditaments, are
created by grant or by prescrij)tion. The grant of a
profit a prendre requires a deed, whether it be granted for
a freehold interest or for a term of years ; and if not made
by deed, it operates only as a licence and is revocable {a).
" A valid licence for a time certain must be by deed ; to
give a sole and exclusive right even for an hour a deed is
necessary, and that would be a grant ; and whether the
grantee had it in fee, or for a term of years, or even an
hour, he could sue for a disturbance dming the time that
the interest under his grant continued" {h). — A right to
take profits from land is an interest in or concerning land
within the 4tli section of the Statute of Frauds, and there-
fore an agreement respecting it must be in writing signed
by the party to be charged with it ; as an agreement re-
specting the right of shooting and taking game (c) . A sale
of pasture to be taken by the cattle of the buyer is within
the statute ; but a contract by the owner of pasture for the
agistment of cattle or taking in cattle to feed is not a
contract within tlio statute {d). — An agreement for a
(«) Ante, p. 198 ; Co. Lit. 9 a, b ;
Duke of Somerset v. For/ well, 5 B. &
C. 875.
(i) Fer cur. Ilol/ordv. Bailey, 13
Q. B. 446, citing Hoplcins v. Itobin-
aon, 2 Lev. 2.
(e) TnUcr v. Zee, L. R. 9 Q. B.
D. 315 ; 51 L. J. Q. B. 485 ; ante,
p. 79.
{(l) Jones V. Flint, 10 A. &: E.
753.
(HAT. II. ruoirrs a i'ki:ni)rk. 347
profit a prendi'o made in Avriting and duly signed may be
enforced as a contract, altliongli, not being under seal, it
is inoperative in law to convey the profits contracted
for (e). And if a profit be in fact taken under a parol
agreement to pay for it, the payment may be recovered as
a debt {/). Also a parol reservation of game upon a
parol demise is sufficient to j)rotect a person acting under
it from being cliarged with a tresj^ass in pursuit of game
under the statute 1 & 2 Will. IV. c. 32, s. 30 (g).
Profits a prendre which have been made appiu'tenant to Profits up-
land by former grant, or by prescription, pass with the 1^" ^ ^
land by any mode of conveyance that is sufficient to pass
the land, and without express mention in the convey-
ance (//). A demise without deed of a messuage or land,
together with incorporeal rights which are not appurtenant
to the demised tenement, though it may be effectual as a
demise of the tenement, is void as a demise of the incor-
poreal rights ; as in the case of a parol demise of land
together AWth the right of shooting and taking game over
other land (/). As to such incorporeal rights, it can
operate only as a licence (J).
Profits a prendre cannot be claimed by way of exception Exceptions
or reservation from a grant oi land; lor an exception, tions of profits
strictly speaking, applies only to an existing part of the 'i prendre,
thing granted ; and the term reservation, strictly speaking,
applies only to rents and services to be rendered as the
condition of teniu-e. "\\"liereas profits a prendre are rights
newly created by the temis of the deed of grant, and
vested in some other person than tlio o^\iior of the land,
either in gross or as appurtenant to other land. Tliereforo
expressions in a deed of grant purporting to except or
(c) Smart v. Joties, 15 C. B. N. S. {/>) 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. <Srt/<-
C. B. N. S. 687 ; 34 L. J. C. T. ««/i, L. K. 7 Ap. Cu, 660.
309.
352
rSES AND PROFITS IN LAND OF ANOTHER.
Profits in
gross.
Corporate
risrhts.
to take profits from tlio soil of liis own tcniement, tliougli
in excess of tlie general customary riglits of a copj^iolder ;
such as a customary right to dig and carry away sand and
graveL Sucli customs must he proved at common law
independently of the statute (/>) .
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 (</).
A prescriptive right to enter and take minerals, paying a
reasonable compensation for the use thereof and for all
damage to the land, was held to be an entire prescription,
of which the condition, though subsequent to the right,
must be alleged and proved (r).
The use and enjoyment required to found a prescriptive
title must in general be continuous (.s). But in claims of
profits by prescription the enjoyment may be such as is
not capable of continuity or repetition, as the taking of
minerals or parts of the soil, which can be taken only once
in the same spot. Such enjoyment, however, may be
evidence of a right to take the like profits in other places
forming part of one entire waste, manor or district (t).
[n) Baylis v. Tyssen-Amhurst, L.
B. 6 C. i). 509 ; 46 L. J. C. 718.
{o) Clayton v. Corby, 5 Q. B.
415.
{p) TFllsoHv. JFilles, 7 East, 121.
{'/) Lovdace v. Reynolds, Cro.
Eliz. 546, 563 ; Gray's Case, 5 Co.
78 b ; Cro. Eliz. 405.
(?•) Paddock v. Forrester, 3 M. &
G. 903.
(«) Ante, p. 294.
[t] Maxiuell v. Martin, 6 Bing,
CHAP. II. IMlOblTS A rREXDUi:. 355
Thus tlio usage of cutting tiu-f from a common was lield
to support the chiim of cutting turf from every part of the
common where turf could ho found ; hut exclusive of such
parts as were incapahle of producing tm-f, which therefore
might be inclosed as against the alleged claim (ii). The
continuity of enjoyment of common of pasture depends
upon the seasons, and the kind and quantity of common-
able stock kept from time to time, and the extent of the
waste or district over wlucli the common ranges (r).
Section III. Extinction of Profits a Prendre.
Release — release of profits in part of the land — presumption of release
from non-user.
Alteration in dominant tenement — severance of dominant tenement —
exhaustion of servient tenement.
Unity of title of profit and servient land — imity of title in part of the
land — common appendant apportionable — unity of title in lord of
manor — re-gi'aut of copyhold tenements.
Approvement and inclosure of -wastes — Statutes of Morton and of
Westminster 2 — construction of the statutes — leaving sufficiency
of pasture.
Approvement against copyholders — special customs to inclose.
Approvement against turbary and other commons.
Inclosure under Acts of Parliament.
A release of a profit a prendre to the owner of the land Release,
in which it is taken operates by way of extinguishment ;
for '' a man cannot have land and a common of pasture
issiung out of the same land, cf -s/f dc cieferis" {a). — Wliero Release of
. ,1 1 n 1 1 1 • 1 profits in part
there is common appurtenant over land held m several ^f i^^^^
tenements, a release of the common in part of the servient
land extinguislies the whole common ; otherwise it would
thi'ow the whole bui'den upon the rest of the land, to the
622 ; see Banics v. Mawson, 1 M. & 123 ; 20 L. J. Q. B. 133, post, p.
S. 77 ; Tyrichitt v. Wynne, 2 B. & 365.
Aid. oo-l. (i) Carr v. Foster, 3 Q. B. 581.
(f<) Feardmy. Undcrhill, 16 Q. B, [a) Lit. s. 480 ; Co. Lit. 280 a.
A A 2
356
USES AND PROFITS 1\ LATs'D OF ANOTHER.
Presumption
of release from
non-user.
prejudice of the tenants. Accordingly, " a release of
common in one acre is an extinguishment of the whole
common." But if the whole land in which the common
is taken is in one ownersliij), a release of the common in
part will not extinguish the common in the rest, because it
is an improvement of part for the benefit of the owner and
with his consent {?j). An exclusive right of pasture, being
a right to take the whole herbage, may be released in part
of the land, without extinguishing it in the rest, because
it is no increase of the bm'den on the rest or prejudice to
the owners (c). — "Where there are several commoners they
must all join in a release in order to extinguish the
common in part or in all of the land (d).
No presumption of release or abandonment arises from
mere non-user of a profit a prendre. Thus where land
had been conveyed in fee, with a reservation of a right to
take and carry away minerals, and sixty years afterwards,
during which there had been no working or claim, the
land was conveyed to a purchaser without notice of the
reservation, it was held that no presumption arose of a
release of the right ; the Court said that " the relinquish-
ment of the right cannot be presumed from the non-
exercise of it ; for that mines are frequently purchased or
reserved not only without any view to immediate working,
but for the express purpose of keeping them un-
wrought" {e). Also profits a prendre being incorporeal
hereditaments are incapable of adverse possession, and
therefore the Statute of Limitations has no application by
way of defeating the right (/).
Alteration of Profits appurtenant to a dominant tenement are extin-
dominant guishcd wholly or in part by such permanent alteration of
(b) Rotherhani v. Green, Cro. Eliz.
593 ; i)er cur. Miles v. Etteridge, 1
Shower, 349 ; Willcs, .J., Johnson \.
Barnes, L. R. 7 C. P. GOO.
(c) Johnson v. Barnes, L. R. 8
C. P. 527 ; 42 L. J. C. P. 250.
(rf) Kenyon, C. J., Benson v.
Chesier, 8 T. R. 401.
(e) Seaman v. Vawdrey, 16 Ves.
390.
(/) See Smith v. Lloyd, 9 Ex.
5C2: 23 L. J. Ex. 194.
CIlAl'. 11. I'lioms A I'KENDHE. 307
the tenement as destroys or diminislies the appurtenancy
of the profits. " Changes in the mode of managing farms,
in tlic description of cattle kept and the kind of food given,
and in the produce raised, tlie appropriaticjii of the hand
to other uses, its conversion into nurseries, hop gardens,
market gardens, or huilding ground may permanently
diminish the demand of the commoners on the pastm-e of
the common," and may thus work a permanent diminution
or extinguishment of the right. Thus, in a case where the
question arose whether the lord had left sufficient of the
waste to satisfy the rights of the commoners, it was held
that the average demand for the last ten years might be
taken as a fair measm-e of the requirements of the com-
moners for the future [(J) . Where a tenement, originally
of arable land with common appendant for ploughing and
manuring the land, is so built over as to be wholly in-
applicable for keeping or using cattle, the right of common
necessarily ceases and is extinguished. "But if a man has
had common for cattle which serve for his plough appen-
dant to his land, and perhaps of late time a house is built
upon part, and some part is employed to pasture and some
to meadow, in this case tlu; common remains appendant,
and it shall be intended, in respect of the continual usage
of the common, at the beginning all A\as arable ; but in
pleading he ought to prescribe to have it appendant to land
that may be ploughed, although it is not now in tillage and
ploughed" (//). So also it was held that a right of common
appurtenant for cattle levant and couchant was not extin-
guished or suspended by building upon part of the land
and turning the rest into orchard ; the capacity for main-
taining the cattle remaining, though not in fact exer-
cised (/). — Upon the same principle if a house with the
appiu'tenant profit of taking estovers for fuel and repau- bo
pulled down without intontion of re-building, the profit is
{g) LiisccUis V. Onslow, L. R. 2 onif, p. 334.
Q.B. D. 449 ; 46 L. J. Q. B. 343. (i) Can- v. Lamhcrt, L. R. 1 Ex
{h) 4 Co. 37 ff, Tijrringham' n Caxe, 168 ; 35 L. J. Ex. 121.
358
VSES AM) PROFITS IX LAND OF AXOTlIEll.
Severance of
dominant
tenement.
Exhaustion
of servient
tenement.
thereby extinguished. But if the house is rebuilt sub-
stantially as before, the profits are retained ; and if the
house is altered, in particulars not material to the charge
VL-pon the ser\aent tenement, the right to take estovers is
not prejudiced, but may be applied to the altered tenement
to the same extent as it was enjoyed before (k).
Severance of the tenement to which common is appiu*-
tenant does not extinguish the common ; but it is appor-
tioned to the several parts of the tenement, each of which
canies with it a proportionate share of the common accord-
ing to the commonable cattle aj)pertaining to that part, so
that it can be no more charge to the tenant of the land in
which the common is taken after the severance than it was
before (/). "So if A. has common appendant to twenty
acres of land and enfeoffs B. of part of the said twenty
acres to which the common is appendant, this common shall
be apportioned, and B. shall have common j^i'o rata'' (ni).
If the commoner leases to a tenant part of the land to
which the common is appm-tenant " the common during
the lease for years is not suspended or discharged, for each
of them shall have common rateable and in such manner
that the land in which shall not be surcharged ; and if so
small a parcel be demised which will not keep one ox or a
sheep, then the whole common shall remain with the
lessor" {ii).
A profit may be extinguished by exhaustion of the
servient tenement. Thus a lease of minerals is j^ra.ctically
determined by taking all the minerals before the expiration
of the term. For this reason an unexpired term of years
in minerals, after exhaustion of the minerals, was held to
be no incumbrance upon the title, nor any breach of a
covenant for title (o). So after exhaustion of the tiu-f on
(k) LuttrelVs Case, 4 Co. 86 a ;
Brou-n v. Tucker, 4 Leon. 241 ;
Arlctty. Ellis, 9 B. & C. 671.
(/) Co. Lit. 122 a; Wild's Case, 8
Co. 78 h.
[m) 4 Co. 37 b, Tyrrhnjham'' s
Case; Bennett v. Beeve, Willes,
230.
(m) Morse y. Webb, 13 Co. 66; 8
Co. 79 *, WiWs Case.
(o) Spoor V. Green, L. R. 9 Ex.
99 ; 43 L. J. Ex. 57.
CHAP. 11. PROFITS A PRENDRE. 359
a common or on part of a common the lord may incloso
against common of turbary or the right of cutting turf {p).
" Unity of possession of the wholu laud to which a profit Unity of title
is appurtenant and of the whole land in which the profit is servient land,
taken is an extinguishment of the riglit. For when a man
has as high and perdurable estate as well in the land as in
the common and other profit issuing out of the same land,
there the common and profit is extinct." He cannot take
common or other profit in his own land as a separate
right (y). — Whore a person, being owner of part of the Unity of title
land in which the common was taken, purchased the land Jaud^'^ " *^
to which it was appm'tenant, it was held " that by the said
purchase all the common was extinct ; for in such case
common appui-tenant cannot be extinct in part and be in
esse for part by tlie act of the parties " (/•). " So if he who
has conunon appurtenant purchase part of the land in
which, all the common is extinct ; or if he takes a lease of
part of the land, all is suspended "(«) . — But "common Common
appendant may be apportioned because it is of common appemlant
.1 1 p • p 1 1 apiwrtion-
right, and therefore if the commoner purchases parcel of able,
the land in wliich it is taken, yet the common shall be
apportioned. But not so of a common appurtenant, or of
any other common of what nature soever " (;').
The lord of a manor cannot have any right of common, xjnity of title
sti-ictly so called, over the waste of the manor, because he ''^ ^^^'^ °^
is the o-WTier of the soil ; though pasture of the waste
remaining in the lord, subject to the rights of commoners,
is frequently so designated {u). Hence, if a tenement of
the manor becomes vested in the lord, all appurtenant
rights in the wastes of the manor become merged in the
ownership and extinguished ; and upon a re-grant of the
{p) Clfirksonv. IVoodhouse, oT. E,. ton v. Jiellami/, 1 Leon. 43.
412; see post, p. 365. (0 Co. Litt. 122 a ; 4 Co. 37 i,
(q) 4 Co. 38 ff, Tijrringham'' s Case. Ti/rriiiff/iain's Caxc.
{>•) 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;<W<T, Mood. .tM. 493. J',r cur. L. R. 4 C. P. 57; 88 L. J C P
Oxl,!/ V. James, 13 M. & W. 214. 91.
{z) rarmentcr v. Wehbtr, 8 Taunt. {a\ Lit. s. 72 ; Co. Lit. 57 b ;
593; Thorn v. Woolcoinbe, 'i V>. 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-
.^//<?,L.R.21C. D. 14; .32L..J.C.2.
See Coatsworth v. Johnson, 55 L. J.
Q. B. 220.
{d) Kcaraleij v. Philips, L. R. 11
Q. B. D. 021 ; 52 L. J. Q. B. 581.
{c) Jolhi V. Arbiiihnot, 4 D. & J.
224 : 28 L. J. C. 547.
(HAP. HI. RENTS. 379
though there can bo no legal tenancy, the attornment .
clause is effectual by way of contract or estoppel, and
enables the moi-tgageo to distrain (/), and a similar attorn-
ment clause may bo inserted in successive mortgages {(j).
But such attornment is within the Bills of Sales Act, 1878,
s. G, -wliieli enacts that it *' shall be deemed to be a bill of
sale of any personal chattels wliich may be seized or taken
under sucli power of distress "(/(). The rent reserved be-
tween mortgagor and mortgagee in an attornment clause,
if greater tlian necessary to secure tlio mortgage debt and
interest, ma}' operate in fraud of tlie banla'uptcy law, and
therefore be void against other creditors (/).
If a mortgagor, remaining in possession after conveying Lease by
his title to the mortgagee, make a lease reserving a rent, ° °
the lessee entering under it cannot dispute his title, and
the mortgagor has a reversion by estoppel to which the
rent is incident with the right of distress, so long as the
possession of the lessee continues. The lease is, in general,
wholly void as against the mortgagee, who may enter at
any time and evict the lessee ; or he may give notice to
the tenant to \)i\y the rent to him, which the tenant may
accept {j). But the mortgagee has no claim against the
mortgagor for rents or profits received whilst he remains in
possession {k). — By the Conveyancing and Law of Pro-
perty Act, 1881, 4-1 & 45 Vict. c. 41, s. 18, a mortgagor
in possession has now a limited statutory power of making
leases valid against the mortgagee and all other incum-
(/) Morton v. Woods, L. R. -1 II. 14 C. D. 725 ; Ex parte Voisey,
Q. B. 293 ; 38 L. J. Q. B. 81. lie Knujhl, L. R. 21 CD. 442 ; 52
[y) Ex parte Fiinnett, lie Kite/tin, L. J. (J. 121.
L. R. Iti C. D. 22G ; 50 L. J. C. {j) Ante, Vol. I. p. 290; Alehorne
212. V. Gomme, 2 Bing-. 54 ; Johnson v.
{h) He Willis, Ex parte Kenneeh/, Jones, 9 A. & E. 809 ; Underhay v.
L. R. 21 Q. B. D. 384 ; see Hall Head, L. R. 20 Q. B. D. 209; 57
V. Comfort, L. R. IS Q. B. D. 11 ; L. J. Q. B. 129.
56 L. j. Q. B. 18.). (/•) Yorkshire Jiuildimj Co. v.
(i) Ex parte Williams, L. R. 7 C. Jfiillan, L. R. 35 C. D." 125; 50
D. 138 ; 47 L.J. B. 26; lie Stockton L. .T. C. 562 : (;ar/!( v. Alhn, 57
Iron Co., L. R. 10 C. T>. 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«<e,p. 374.
(r) Lit. s. 229.
(,s) Kerry v. Derrick, Cro. Jac.
104 ; Maundy v. Maundy, 2 Stra.
1020.
{t) Ante, p. 380.
dlAl'. HI. JIKNIS.
asy
execute the uses, and with fittoudant remedies of distress
and entry, if such remedies be expressly declared as
uses (ii). If it he fuvllier declared tliat the ceatui que use is
to hold the rent to the use or upon trust for another, tlic
latter uses are not operated upon by the statute, but are
trusts or equitable interests only (v). — If a rent be granted
to one and liis heirs, and the power to distrain to him only,
this is a rent charge for his life and a rent seek after, the
power to distrain not being extended to the heirs ; so with
a power to enter for non-pa}nnent of the rent {n-).
Ivent may be limited for an estate tail, being a " tenement " Estate tail,
within the Statute Dc Bonis, 13 Edw. I. c. 1 , West. 2. " This
is the only word which the said statute that created estates
tail useth ; and it includeth not only all corporate inherit-
ances, which are or may be holden, but also all inheritances
issuing out of any of those inheritances, or concerning or
annexed to or exerciseable within the same, though they lie
not in tenure ; therefore all these without question may be
intailed. As rents, estovers, commons, or other profits
whatsoever ^ranted out of land "(.!■) -—Estates tail in rents DisentaU-
° T • 1 ment.
were formerly baiTed by Fines and llecoveries ; tliey are
expressly included in the Act for the Abolition of Fines and
Eecoveries, 3 & 4 Will. IV. e. 74, and may now be dis-
entailed and converted into fee simple by a deed under
that Act. Wliere the rent is originally limited to the
grantee for an estate tail, with remainder to anotlier in
fee, it is a perpetual rent, and the tenant in tail may bar
the remainder and enlarge his estate tail in the rent into a
fee simple absolute. But where the rent is originally
granted for an estate tail only, it is limited to the con-
tinuance of his issue in tail ; the tenant in tail may by a
disentailing deed convert his estate in the rent into a
(m) 27 Hen. 8, c. 10, ss. 1, 4, 5 ; [v) Aiile, Vol. I. pp. 120, 125.
1 Sandcr-s on Uses, 4th ed. 107; 2 (ir) Co. Lit. 147 6; nos-scll v.
lb. 28. See Havcrgill v. Hare, Cro. Gowthuaitr, Willos, 507.
Jac. 510, as to entrj'; Cook v. (x) Co. Lit. 20«.
Eerie, 2 Mod. 138, as to distress.
390 USES AND PROFITS IN LAND OV ANOTHIOU.
determinable or base fee diiring the continuance of issue,
but he cannot enlarge it .into a fee simple (y) . If rent
service be reserved upon a grant of land for an estate tail,
the tenant in tail of the land can bar the reversion, but he
cannot bar the rent, because it is a separate tenement dis-
tinct from the land (2). Tenant in tail of land cannot
grant a rent charge out of the land as against the issue in
tail, without executing a disentailing assurance {a).
Seisin of rent. Eeut, as being an incorporeal hereditament, is incapable
of seisin, entry or occupancy ; but for some pm-poses
payment of rent is a possession equivalent to seisin (b).
Formerly seisin -wcis necessary to maintain an assize or
other real action ; and payment of rent was a sufficient
seisin for this purpose (c). Payment of rent was also
sufficient seisin to create a new root of descent imder
the old law of inheritance, which traced descent from
the person last seised (d). Upon the grant of a
rent charge at common law the mere delivery and
acceptance of the deed of grant give no actual seisin
or possession of the rent; but if the grant be made
by a deed operating under the Statute of Uses -the grantee
is "deemed and adjudged in lawful possession" of the
rent by the words of the statute, which expressly includes
"rents, reversions and other hereditaments." The distinc-
tion is important with reference to the " actual possession"
of a rent charge required for the qualification of a county
voter imdcr the Eeform Act, 2 Will. IV. c. 45, s. 2G (e).
(y) Butler's note to Co. Lit. 298 «; {c) Lit. s. 233; Co. Lit. 153 «,
Smith V. Bamahi/, Carter, 52; 1G0«. Real actions were abolished
Anon., 12 Mod. 513 ; Chaplin v. by 3 & 4 Will. 4, c. 27, s. 36.
Chaplin, 3 P. Wras. 229. {d) Co. Lit. 15 b ; anir, Vol. I.
(2) JFhiicv. JFest,Cro.'E\iz. 792. p. 61.
(«) LamhrrtY. Austin, Cro. Eliz. {(■) Co. Lit. 1G0«; ante, Vol. I.
333; Fairfax V. Deri))/, 2Yem. 612. p. 103; Ileclis v. Blain, 18 C. B.
(A) Lit. 8S. 233—240 ; Co. Lit. N. S. 90 ; 34 L. J. C. P. 88 ; Had-
160 a; Dmitt v. Christchurch, L. field's Case, L. R. 8 C. P. 306 ; 42
R. 12 Q. B. D. 365; 53 L. J. Q. L. J. C. P. 146; Orme'B Case, L.
B. 177. R. 8 C. P. 281 ; 42 L. J. C. P. 38.
CIIAl'. 111. KKNTS. 391
— For tlio reason that rent tloos not admit of entry, if a Entiy.
rent ehargo be granto(l upon condition, and tlie condition
be broken, the rent is ipso facto extinct without entry ;
altliougli entry is in general necessary to divest a freehold
in possession upon the breach of a condition (/). — Also, iri Occupancy.
the case of a rent pxr autre vie and death of the tenant
pending the life, there can be no general occupancy; but
there may be a special occupant by the express words of
the grant, (though not properly called an occupant but
rather a special grantee) , or under the statute 1 Vict. c. 2G,
s. 6, (repealing but substantially re-enacting the statute
29 Car. II. c. 3, s. 12,) which expressly includes incorporeal
lioreditaments {g) . A rent reserved upon an assignment of
an estate 7;/o* autre vie is a rent charge j^ur autre vie, which
passes to the heir or executor of the assignor, upon his
death pending the life, according to the terms of the
reservation (A).
Eent charge limited for an estate of fi'eehold is real Rent as real
estate ; and if the land is of customary tenure, the rent estate.''''^*
follows the rules of the teniu'e ; as the tenure of ancient
demesne, or of gavelkind, or of Borough English (/). A
rent charge pur autre vie is a fi'eehold estate ; but in ease of
the death of the owner pending the life without leaving a
special occupant, it passes to the executor, to be aj^plied
and distributed as personal estate, by the statute 1 Vict.
c. 20, s. G {j). — Hent charge granted for a term of years,
and rent charge granted out of a term of years, though
limited for the life of the grantee, are personal estate, and
pass to the executor of the deceased grantee, together
with the rights of distress (A-). — Rent service foUows the
(/) Co. Lit. 218(7 ; ante, Vol. I. {h) Jcnison v. Lexington, 1 P.
p. 225. Wms. 555.
(y) Co. Lit. 41 J, 388 ff ; Hasscl (i) Robinson on Gavelkind, 79.
V. Gowthwaitc, Willcs, 500; Bear- i:ec Knot/is' duse, Dyer, ab.
park V. Hutchinson, 7 Bing. 178; (/) Chat field \. lierchtohlt,'Li.'R.
Chatftehl V. llcrchtvhlt, L. R. 7 Ch. 7 Ch. 192 ; 41 L. J. C. 255.
192 ; 41 L. J. C. 255 ; ante, Vol. I. (A) Butt'sCasc, 7 Co. 23 a; Saffenj
p. 193. V. Elijood, 1 A. & E. 191.
302 USES AM) rUOFllS IX l.AM) OF ANOIIIIK.
nature of the reversion to wliicli it is incident ; it is real
or personal estate, and passes to tlie heir or executor, with
the reversion (/). Eent service reserved upon a lease for
years, and severed from the reversion, becomes a rent
Arrears of charge for years, and is personal estate (m) . — Arrears of
^^^ ' rent, whether rent charge or rent service, accrued due at
the time of death are personal estate, and pass to the
executor ; and so are apportionments of rent to the death
of the testator (;?)• And now the executor has by statute
the like remed}'' of distress for such arrears as the testator
had in his lifetime (o). At common law neither the heir
nor the executor of the owner of a freehold rent had any
right to distrain for arrears accrued clue at his decease {])).
Annuity. " An annuity is a yearly payment of a certain sum of
money granted to another in fee, for life, or for years,
charging the person of the grantor only." An annuity as
a mere personal obligation at common law did not charge
the land of the grantor in his lifetime ; nor did it charge
the. heir of the deceased grantor, although he took assets by
descent, unless the heir was expressly bound in the grant
or instnmient of obligation {q) . Now by the Convey-
ancing Act, 1881, 44 & 45 Vict. c. 41, s. 59, a contract,
bond, or obligation under seal, made after the commence-
ment of the Act, " though not expressed to bind the
heirs, shall operate in law to bind the heirs, and real
estate, as well as the executors and administrators and
personal estate, of the person making the same, as if
heirs were expressed ; " but " only if and so far as a con-
trary intention is not expressed." — A rent charge, as being
(/) Ante, p. 380. Sachcvcnll v. [o) 32 Hen. 8, c. 37, ss. 1, 4 ; 3
Frogrjalt, 2 Wms. Saund. 371. & 4 WiU. 4, c. 42, ss. 37, 38.
{m) KnolWs Cane, Dyer, bh. (p) Co. Lit. 162 a; OffnePs Case,
(w) Broivnrigg v. Fike, L. R. 7 4 Co. 48^; Edrich''s Case, 5 Co.
P. D. Gl ; .51 L. J. Prob. 29. See 118 a; Trescott v. Boucher, 3 13. &
Buppa V. Mayo, 1 Wms. Suuud. Ad. 849. i^ee post, p. 418.
286 b, citedipost, p. 426 ; apportion- [q) Co. Lit. 144 b.
ment, post, p. 421.
cjiAi'. 111. Ki;.Nrs. 393
an annuity, imports tlie remedy by personal action against
the grantor, unless the personal liability is exjiressly
excepted; and the grantee lias the election to proceed by
action against tlie grantor, or by distress for the rent in
arrear ; but lie cannot do botli togotlier (/•). The grant of
a mere powtn- of distress ujion laud for an annual sum
imjiliedly creates a rent charge, but without personal lia-
bility of the grantor (.s). Upon a reservation of rent
service the grantee or lessee of the laud was not chargeable
personally by ^^a■it of annuity at common law, because the
words of reservation were taken as those of the grantor only
and not of the grantee (f) ; but rent service was recoverable
at common law by a real action ; and under the statute
8 Anne, c. 14, s. 4, by an action of debt (u).
An annuity expressly charged upon land is in the nature Annuity
of a rent. If it is charged by a clause of distress, it 1^;^^'"^ "P^""
becomes a rent charge ; if it is charged upon land generally
without any power of distress, it is a rent seek, to which
the statute 4 Geo. II. c. 28 applies and gives a power of
distress {r). — An annuity charged generally upon land jire- Upon rents
sumptively charges not only the annual rents and jorofits f^^^'^'^^^ °^
but also the land itself (?r) ; it may be charged upon the
annual rents and profits only, without recoiu-se to the corpus
of the land {x) ; or it may be charged primarily upon the
rents and profits, with recourse to the corpus for the annual
deficiency (//) ; or it may be charged upon the annual rents
and profits, with a cmnulative charge upon the rents and
(;•) Lit. ss. 219. 220; seo^of/ireW Eq. 411; Kowarth-f. Rothwell, 30
V. BodivcU, Cro. Car. 171 ; post, p. Beav. 516 ; 31 L. J. C. 449.
471. (.r) Foster v. Smith, 1 Ph. 629;
(s) Ante, p. 386. Stelfoxv. Sufjden, Johns. 234 ; Yates
\t) Co. Lit. 144 a. ■ v. Yates, 2B Boav. 641 ; 29 L. J. C.
(w) Fust, p. 472. 874 ; Baker v. Baker, 6 H. L. C.
(r) Ante, p. 374; Hardwicke, 616; 27 L. J. C. 417; Miehelly.
L. C, Stafortl V. Bitekleij, 2 Vcs. Wilton, L. R. 20 Eq. 269 ; 44 L. J.
sen. 177 ; Jliittcri/v.Jiobinson, SB'iug. C. 490.
392 ; So/lorif v. 'leaver, L. R. 9 Eq. (»/) Be Grant, 52 L. J. C. 552 ;
22 ; 40 L. J. C. 398. lie Jlastn, L. R. 8 C. D. 411 ; 47
(m) Fcarson v. lleUiiieU, L. R. 18 L. J. C. 660.
394 ISES AND PllOFlTS IX LAND OF ANOTHEll.
profits of succeeding years until tlie arrears of the annuity
are diseliarged (;:). The incidence of the charge in these
respects depends upon the construction of the terms in
which it is granted.
Limitation of " If an annuity be granted to a man and his heirs, it is
annuities— ^ ^^^ simple personal," or " a personal inheritance which
the law allows to descend to the heirs ; " and " not only
the grantee, but his heir and his or their grantee also shall
have a writ of annuity." It is assignable, and devisable
by vnW ; it passes by a will of personal estate and by a
residuary bequest of personalty, but not to executors virtute
officii (a). A limitation of an annuity " for ever," without
the limitation "to the heirs," has not the like effect; it is
not inheritable, but passes to the executor as a mere
annuity (b). A limitation of an annuity to a man and
" to the heirs of his body " is construed like a fee simple
conditional upon issue ; and upon his satisfying the condi-
tion of having issue it becomes his absolute personal pro-
perty. It does not admit of a limitation in remainder (c) .
for life. — The grant of an annuity to a person without words of
limitation is presumptively an annuity for his life only.
Also the grant of an annuity to one expressly for life, with
remainder to another without words of limitation, is pre-
sumptively given to the latter for his life only; "the
duration of the life of the first taker is expressed, not for
the purpose of limiting the gift to the first taker, but of
limiting the commencement of the gift to the second or
successive takers "(r/). The Wills Act, 1 Yict. c. 2G,
(z) :Boofh V. CouUon, L. R. 5 Ch. Bodcn, Hotloy, 80.
684 ; 39 L. J. C. 622 ; Dirch v. She7-- {b) Taylor v. Martindak, 12 Sim.
ratt, L. R. 2 Ch. 044 ; 36 L. J. C. 158.
925 ; Taylor Y. Taylor, L. R. 17 Eq. (c) Co. Lit. 20 a ; Turner v. Tur-
324 ; 43 L. J. C. 314 ; Wormald v. ncr, Ambl. 776 ; Stafford \. Buckley,
Muzecn, L. R. 17 0. D. 167 ; 50 sajora ; ante. Vol. I. p. 35.
L. J. C. 776. [d) Fry, J., Blight v. Jlartmll,
(«) Co. Lit. 2 a, 144 h \ Stafford L. R. 19 C. D. 297; 51 L. J. C.
V. 7y«cZ,-fey, 2 Ve.s. sen. 177 ; Auhin 164; dissenting from Evans v.
V. ii«A/, 4 B. & Aid. 59 ; Gerard y. jraM'cr, L. R. 3 C. D. 211. Bletuitt
CllAl', III. RENTS. 39-5
B. 28, makes no difference in the creation of an annuity iu
this respect {c) . But the grant to a person of an annuity
for a term of years, or j/iir aulrc vie, or imtil a certain
event, as the dcatli or marriage of anotlier, witliout further
limitation, is not also imjtlicdly limited to the life of tlio
annuitant ; and if he die within the term his executors -will
take tlio continuance of the annuity (_/'). The grant of an Annuity for
annuity to cliildi'en " for their maintenance and educa- "^^i^^euance.
tion " is construed as giving them tlie annuity for their
lives, and not during minority only ; because " mainte-
nance would certainly last beyond minority, and education
would not necessarily end with minority" [g).
A direction to trustees or executors to pui'chase an Trust to pur-
annuity for a person is presumptively construed as an '^^^'^^^^^'"•'y-
anniuty for life only ; but if the trust bo to apply certain
property, or the proceeds of the sale of i^roperty, iu the
purchase of an annuity of a certain amoimt for a person,
it is presimij)tively a perpetual annuity (/<) . A dii-ection
merely to approj)riate sufficient property to answer an
annuity is not sufficient to extend it beyond the life of the
annuitant (/) ; nor is a charge of the annuity upon pro-
perty generally, for the property may be equally susceptible
of a charge of an annuity for life or in fee, and there is no
presumption that tlie diu'ation of an annuity should cor-
respond with the limits of the estate charged {J). — A gift Gift of annual
of the annual income of property, or of a certain amount "^^°°^®*
of the income is an absolute gift of the property out of
which it issues, in perpetuity [k).
V. Robots, Cr. & Ph. 274 ; Yatesx. (t) Kindersley, V.-C, Bignoldx.
Maddan, 3 Mac. & G. 532. See Giles, 4 Drew. 343; 28 L. J. C.
Mauseryh v. CiimpbcU, 3 D. & J. 358 ; lie Grove's Trusts, 1 GifF 74 •
237 ; 28 L. J. C. 61. 28 L. J. C. 536 ; Ite Taber, 51 l!
(<•) Kieholls V. Ilawkes, 10 Hare, J. C. 721.
342 ; 22 L. J. C. 255. {j) Wdson v. Jf.iddisoii, 2 Y. &
(/) Savcri/ V. D'/rr, Ambl. 139 ; C. 0. 372. See Matiser/fh v. Cmiip-
JRe Ord, L. R. 12 C. D. 22. be//, 3 D. & J. 237 ; 28 L. J. C. 61.
(r/) ini/atis V. Jodre//, L. R. 13 (/.) Sto/ces v. Jfero/i, 12 CI fr F.
C. D. 564 ; 49 L. J. C. 2G. 161 ; Ji/ewitt v. Roberts, Cr. \' Ph.
(h) Kerr v. Middlesex Hospital, 2 280; Fuwsun v. rausoH, 19 Beav
D. M. & G. 57'3. 146 ; 23 L. J. C. 954.
396
USES AND rUOFirS IN LAM) OF ANOTIIKll.
Charprc of
anuuity iu
adniiui.stra-
tiou of assets.
Priority.
Annuities given by will are in general treated as
legacies, of tlie value of the annuity estimated at the
testator's death (/)• So, under a dii-ection in a will to buy
an annuity for a person, whether for life or in perpetuity,
the annuitant is entitled to have the money value instead
of the annuity, which he would himself be able to sell and
convert into money (m). And if the annuitant die before
the annuity is bought, his personal representative becomes
entitled to the value {ii). Hence in the administration of
assets the personal estate is primarily liable to pay
annuities, in the absence of intention appearing in the
will to the contrary ; and a mere charge of the annuity
upon the real estate is not sufficient to show a contrary
intention (o). But an annuity may be charged upon
certain land primarily, by w^ay of ^^'hat is called a demon-
strative legacy, with recom-se to the personal estate only in
case of deficiency of the land specifically charged there-
with (|;) ; or it may be charged exclusively upon land,
as in the form of a rent charge upon specific land, with
powers of distress and entry {q) ; or it may be charged
proportionately upon both the real and personal estate,
which is impliedly the case where they are constituted a
mixed fund for payment of charges (r). — An annuity has
no priority over other legacies merely because it is charged
upon land, or seciu'ed by powers of distress and entry. An
annuity bequeathed in bar of dower was held to have
priority, if there were in fact any dowable lands dis-
charged by it ; but not otherwise (-s) .
[l) Ward V. Grey, 26 Beav. 491 ;
29 L. J. C. 74 ; Malins, V.-C, liopcr
V. Roper, L. R. 3 C. D. 720.
(m) Slokes v. Cheek, 28 Beav. 020 ;
29 L. J. C. 922 ; lie Browne's Will,
27 Beav. 324.
In) Baxj V. Day, 1 Drew. 569 ; 22
L. J. C. 878.
(o) lioiigliton V. Boitghtrm, 1 H.
L. C. 40G ; Yongev. I'lrrse, 20 Beav.
380 ; 24 L. J. C. 643 ; lie Muffett,
Weekly Notes, 1888, p. 185.
(j») Mann v. Copland, 2 Madd.
223 ; Viekers v. round, 6 H. L. C.
885 ; 28 L. J. C. 16; Payet v. JLmh,
1 H. & M. 663 ; 32 L. J. C. 468.
{q) roole V. Heron, 42 L. J. C. 348 ;
Tatching v. Barnett, 51 L. J. C.
74.
(/■) Allan V. Gott, L. R. 7 Ch.
439; 41 L. J. G. 571.
(s) Roper v. Roper, L. R. 3 C. D.
714.
(HAP. 111. RKNTS. 397
By the Act for the better protection of purchasers, 18 Reffistration
Vict. c. 15, 8. 12 (substituted for the statutes 17 Geo. III. li^J^^^j'^
c. 26, and 53 Geo. III. c. 141, wliich provided for the charge,
registration of annuities and rent charges), it is enacted
that : — " Any annuity or rent charge granted after the
passing of this Act, otherwise than by marriage settlement,
for one or more life or lives, or for any term of years or
greater estate determinable on one or more life or lives,
shall not affect any lands, tenements or hereditaments, as
to pm-chasers, mortgagees or creditors," unless and imtil
a memorandum of the same sliall be registered to tlie
effect and in IIk; manner provided in the Act. Sect. 14
proN^des that the Act shall not extend to require the
registry of annuities or rent charges given by will. — The
enactment does not ob\date the effect of notice ; and a
grant of an annuity or rent charge, not registered, is not
therefore void against a purchaser or mortgagee who takes
the land with notice of the charge, but the annuitant
retains his priority (f). An agreement to grant an
annuity is not within the statute, and may be sijeeifically
enforced against the grantor or his representatives, as
against creditors, without registration {ti) ; and a bond
sociu'ing payments of interest upon a principal debt is not
within the statute (/•).
(/) Greaves v. Tojield, L. R. 14 (c) Best, J., IJ'inter v. Mouseley,
C. D. 563 ; L. R. 50 C. 1 18. 2 E. & Aid. 806.
(») Niehly. Smith, 14 Ves. 491.
398 rSES AM) PROFITS IN LAND 01' ANOTHEU.
§ 3. Tithe Rent charge.
Tithe rent charge — Commutation Act.
Valuation and apportionment of tithe.
Corn average — valuation of rent charge.
Discharge of tithe and substitution of rent charge.
Remedy by distress — hy vrrit of possession — no remedy by sale.
Extraordinary tithe — Redemj^tion Act.
Tithe rent charge as freehold estate — tithe rent charge upon copyhold.
Merger of tithe rent charge.
Grant or lease of land subject to rent charge — liability of tenant to
pay rent charge — contribution from co-owners of land charged.
Assessment of tithe rent charge for rates and taxes.
Tithe rent By tlie "Act for tlie Commutation of Tithes in
charge. England and Wales," 1836, 6 & 7 Will. lY. c. 71, a
special kind of rent charge was created, in commutation of
the ancient prescriptive charge of tithe upon the produce
of land. The Act abolished tithe, and substituted a rent
charge based upon statutory authority and subject to
statutory rules; thereby superseding the earlier law of
titlie, which, therefore, has no longer any practical interest.
The following are the principal results and provisions of
the Commutation Act (a) .
Valuation of Under sect. 37, the clear average value of the tithes of
every parish, according to the average of seven years
(a) A BiU is now before Parlia- the judge may make an order for
ment, entitled "The Tithe Rent payment, to be enforced by a
Charge Recovery and Variation receiver, but not personally against
Bill," which, if passed into an Act, the owner or occupier, nor by sale
will make material alterations in of the laud. An alternative remedy
the law relating to the tithe rent is by injunction to the occupiier to
charge, as stated above. The pay the rent charge due, and not
chief proposed alterations are, the to pay any rent to the landlord
abolition of distress for the re- until the rent charge has been
covery of tithe rent charge ; and paid to the tithe owner. The Bill
the substitution of proceedings in further proposes to assess the rent
the County Court, involving an charge in future upon a triennial
inquiry into the net profits of the average of prices, instead of the
land to the owner, to the amount septennial average i^rovided by the
of which the rent charge is to be Tithe Commutation Act.
restricted ; upon which i)roceedings
( IIAl'. HI. HKNTS. 399
preceding', "svas awarded " as the sum to Le taken lor
calculating the rent charge to he paid as a permanent
commutation of tlie said tithes." Under sects, 60 — 55, tlie Apportion-
total amount a\\'arded for every parish was apportioned
among the lands of the parish, having regard to their
average titheable produce and productive quality, and a
di-aft apportionment was made stating " the name or
description and the quantity of the several lands ; the
names and description of the several proprietors and
occupiers thereof ; and the amount charged upon the
said several lands, and to wliom and in what right the
same shall be resjiectively payable."
Sect. 5G provided tliat immediately after the passing of Com average,
the Act, and in the month of January in every year an
advertisement shoidd be inserted in the London Gazette,
" stating wliat has been during seven years then next
preceding tlie average price of an imperial bushel of
British wheat, barley, and oats, computed from the weekly
averages of the com retm-ns." And sect. 57, " that Valuation of
every rent charge charged upon any lands by any ap- ^^^^ t^barge.
portionment shall be deemed to be of the value of such
number of imperial bushels of wheat, barley, and oats, as
the same woidd have purchased at the prices so ascer-
tained by the advertisement published immediately after
the passing of this Act, in case one third part of such
rent charge had been invested in the purchase of wheat,
one third part in the pm'chase of barley, and the
remaining third part thereof in the pm-chase of oats ; and
the respective quantities of wheat, barley, and oats, so
ascertained shall be stated in the di-aft of every ap-
portionment " (^»). — By the "Corn Eeturns Act, 1882,"
45 & 46 Vict. c. 37, s. 9, the Board of Trade is requu'cd
to cause to be published in the London Gazette the weekly,
(i) In the following year, 1837, the provisions of the said Act, are
it was declared by statute, 1 Vict. 7s. Old. for a bushel of wheat,
c. G9, s. 7, "that the prices at which 3*. 11 W. for a bushel of barley,
the conversion from money mto and 2*. 9(^ for a bushel of oats."'
corn is to be made, according to
400
USES AND PROFITS IN LAND OF ANOTHER.
Discliargc of
titlie.
Substitution
of rent
cha7-<rc.
Remedy by
dLs tress.
Writ of
possession.
quarterly, auuiial and septennial average prices of corn ;
and to state tlio annual and septennial average for the
imperial bushel ; and by s. 10, the statement of the
septennial average price so published is substituted for
the advertisement referred to in s. 56 of the above statute
of Will. IV. ; which section is also repealed.
Sect. 67 enacted that the land " shall be absolutely dis-
charged from the payment of all tithes"; — "and instead
thereof there shall bo payable thenceforth to the person
mentioned in the said apportionment a sum of money
equal in value, according to the prices ascertained by the
then next preceding advertisement, to the quantity of
wheat, barley, and oats respectively mentioned therein, in
the nature of a rent charge issuing out of the lands charged
therewith ; and such yearly sum shall be payable by two
equal half-yearly payments ; and the sum of money
thenceforth payable in respect of such rent charge shall
vary so as always to consist of the price of the same
number of bushels of wheat, barley, and oats respectively,
according to the prices ascertained by the then next pre-
ceding advertisement : provided that nothing herein con-
tained shall be taken to render any person whomsoever
personally liable to the payment of any such rent charge."
By sect. 81, "In case the said rent charge shall be in
arrear and unpaid for the space of twenty-one days, it
shall be lawful for the person entitled, after having given
or left ten days' notice in writing at the residence of the
tenant in possession, to distrain upon the lands liable to
the payment thereof for all arrears of the said rent charge,
and to dispose of the distress and otherwise act in relation
thereto as any landlord may for arrears of rent : provided
that not more than two years' arrears shall at any time be
recoverable by distress "(c).
By sect. 82, "In case the said rent charge shall be in
{c) The owner of the rent charge
is entitled to 2.?. Gd. for each notice
to distrain ; and may Hcnd notice by
post in a registered letter. 23 & 24
Vict. c. 93, ss. 29, 30.
CHAl'. 111. RENTS. 401
arrcar and unpaid for tlio space of forty days, and tliero
sliall be no sufRcient distress on the premises liable to the
payment thereof," — " the owner of the rent charge may
sue out a vait of //abera facias j^osscssionem, directed to the
sheriff, commanding him to cause the owner of the rent
charge to have possession of the lands chargeable there-
witli, until the arrears of rent charge, and costs of the writ
and execution, and of cultivating and keeping possession
of the lands, shall be fully satisfied : provided always that
not more than two years' arrears over and above the time
of such possession shall be at any time recoverable." And
by a later Act power is given to tlio owner of the rent
charge, having taken possession under such writ, " to let
the land for any period not exceeding one year in posses-
sion at such rent as can be reasonably obtained for the
same" (c). — By sect. 85, the powers of distress and entry
given by the Act are made to extend to every part of the
land situate in the parish occupied by the same person as
is the occupier of the lands on Avliieh such rent charge is in
arrear, whether occupied by him as the owner or as tenant
holding under the same landlord.
The rent charge being the creation of the Act has no other No remedy by
remedies than those given by the Act. There is no jurisdic- ®'^^*^"
tion in equity to make it a charge upon the inheritance of
the land, or to extend the charge beyond the terms of the Act.
Consequently in the event of the statutory remedies failing
by reason of there being nothing upon the land to distrain,
and the land being unproductive for occupation, tlie o\vner
of the rent charge cannot claim to have the land sold for
satisfaction of arrears {(/). This is in accordance with the
natm-e of the original tithe which was taken from the pro-
duce of the land only, and was no charge upon the land
itself. So before the commutation there was no personal
liabilit}' in respect of the tithe ; as now there is no personal
liability for payment of the rent charge (r).
(c) 5 & 6 Vict. c. 51, s. 12. («•) Sect. 67, <ui(,; p. 400 ; Cock-
(rf) JIailt'!/ V. Badltam, L. K. 30 burn, J., lUdJ'ord v. Sutlon Cold-
C. D. 84; 54L. J. 0. 1067. /cW, 3 C. B. N. S. 470.
],. 1) I)
402
USES AND PROFITS IN LAM) OF ANOTHER.
Extraordi-
nary tithe.
Redemption
Act.
Tithe rent
charge as
freehold
estate.
lu the case of land cultivated as liop gTounds, orchards,
fruit, plantations and market gardens, it was further pro-
vided that the amount of rent charge apportioned shall he
distinguished into two parts, which shall ho called the
ordinary charge and the extraordinary charge, and the
extraordinary charge shall be a rate per imperial acre ; and
all lands which shall cease to he so cultivated shall be
charged only with the ordinary charge upon such lands,
and all lands v^'hich shall be newly so cultivated shall be
charged with an additional amount of rent charge per
imperial acre ec[ual to the extraordinary charge ,(/).
13y the Extraordinary Tithe Redemption Act, 1886,
49 & 50 Yict. c. 54, s. 1, "No extraordinary charge shall
be levied on any hop ground, orchard, fruit, plantation or
market garden, newly cultivated as such after the passing
of this Act." And by sects. 2, 3, 4, it is enacted that the
capital value of the extraordinary charge payable at the
date of the Act shall be estimated ; and that the land shall
be charged with a rent charge of four per cent, on sucli
capital value in lieu of the extraordinary charge, and
which shall be recoverable in the same way as rent charge
in lieu of ordinary tithe. Sect. 5 provides for redemption
of the extraordinary charge, or of the substituted rent
charge, by payment of the amount of the capital value.
The Commutation Act, s. 71, declares that" every estate
for life or other greater estate in any such rent charge
shall be taken to be an estate of freehold ; and every estate
in any such rent charge shall be subject to the same lia-
bilities and incidents as the like estate in the tithes
commuted for such rent charge." Accordingly the statu-
tory rent charge is an hereditament (iescendible and devis-
able in the same manner as freehold land. It is real assets
in the hands of the heir or devisee of a deceased owner.
It may be limited upon conveyance or by "svill for the
same estates and by the same terms as freehold land.
(/) G & 7 WiU. 4, c. 71, s. 42 ; 2 & 3 Vict. c. G2, ss. 26—33.
( ][A1'. III. RENTS. 403
But being an incorporeal liereditament it cannot be con-
veyed without deed. It is within the Act for the Abolition
of Fines and Recoveries, 3 & 4 AVill. IV. c. 74, wliich
expressly includes tithes, and it may be disentailed by a
deed under that Act. — Tlie tithe rent charge upon land of Tithe rent
cop}'hold or other customary tenure is not affected by copvhold^^^
manorial customs, because the tithe for wliicli it was
substituted, as a lay hereditament, must have originated
within legal memory, having pre^'iously belonged to
ecclesiastical corporations to which descents and other
customary rules did not appl}^ Accordingly it is not
alfectcd by the special rules of gavelkind or borough
English tenure {g).
The tithe rent charge retains a special quality of the Merger of
original tithe in being an hereditament distinct from the char"-o.
land ; so that it is not, like an ordinary rent charge, merged
and extinguished in the ownership of the land where they
vest in the same person ; as it was said of tithes " no unity
of possession can either extinguish or suspend them" {//).
By the Commutation Act, s, 71, it is expressly declared
that " no such rent charge shall merge or be extinguished
in any estate of which the person entitled to such rent
charge may be seised or possessed in the lands on which
the same shall be charged." But provision is made by
the same section for tenant in fee simple or in fee tail
merging and extinguishing the tithe rent charge b}- a
declaratory deed. And further provision is made for
facilitating merger by 1 & 2 Vict. c. G4, and by 9 & 10
Vict. 0. 73, ss. 18, 19. — Provision is made for redeeming Redemption,
the rent charge by 9 & 10 Vict. c. 73, ss. 1, 2 ; 23 & 24
Vict. c. 93, s. 31 ; and by 41 & 42 Vict. c. 42.
Where the owner of land and of the tithes of the same Grant or lease
land granted and conveyed the land, " together A^•ith aU ^^Jt^^^'^t'"!^;
profits, hereditaments and appmienances to the promises
iff) Doc V. Bis/ioj} of Zlumlaf, 2 (/<) 11 Co. 13 i, Priddlc's Case.
B. &r. N. E. 191.
D 1) 2
• 404 USES AXl) PROFITS IX LAND OF ANOTHER.
belouging or apportaiuing," it was hold that tlio titlio did
not pass hy the conveyance, because it was a distinct
hereditament which did not belong or appertain to the
land (/) . For the same reason a lease made by the clerical
incumbent of a rectory, of glebe land, rendering a certain
rent in discharge of all demands, but not mentioning the
tithe, was held not to give possession of the land tithe
free (J). And a demise of land and tithe by an instru-
ment not under seal was held ineffectual to pass the tithe,
as being a distinct incorporeal hereditament which could
only be conveyed by deed ; and consequently an entbe
rent reserved, being partly for the land and partly for the
tithes, could not be distrained for upon the land, uidess
sej)arately apportioned {k).
Liability of But the Commutation Act, s. 80, has now pro^dded that
rent^harc^. "every tenant or occupier who shall occupy any lands by
any lease or agreement subsequent to such commutation,
and who shall pay any such rent charge, shall be entitled
to deduct the amount thereof from the rent payable by him
to his landlord and shall be allowed the same in account
with the said landlord." Therefore a lease or agreement
for a lease of land, made since the Act and whether by deed
or not, is presumptively free of the rent charge; and
though expressed to be " tithe free " in the terms of the
lease or agreement, such words are mere surplusage, and
the whole rent is appropriated to the land (/). — The tenant
or occupier may, however, renounce his presumptive right
to deduct payment of the rent charge from the rent, and
so make liimself liable for the payment as between him-
self and his landlord (m). But there is no personal lia-
bility of the occupier or of the landlord to ]3ay the tithe
owner, whose only remedies are those given by the statute
by distress or occupation of the land (n). Hence if goods
(i) C'ha^r/naii v. Gatcomhe, 2 Bing. (/) Mcfjqi&on v. Bowes, 7 Ex. 685 ;
N. C. 516 ; see Fhillips v. Jones, 3 21 L. J. Ex. 284.
B. & P. 362. [m) Parish v. Skcman, 1 D. F. &
{j ) rarkins v. Hinde, Cro. Eliz. J. 326 ; 29 L. J. C. 96 ; Jcfrey v.
161. Ncale, L. E. 6 C. P. 240 ; 40 L. J.
{k) Gardiner r. JFilliawson, 2 B. C. P. 191.
& Ad. 336. (;/) 6 & 7 Will. 4, c. 71, s. 67;
( IIAl'. III. IIKNTS. 40'J
of an outgoing- tenant after tlie oxiiiration of liis term, or
goods of a third party, being upon the land, are distrained
for tho rent charge, which he is thus compelled to pay,
he has no claim against the landlord or occui^ier to recover
the money as paid to their use, because they are not
discharged from any liability by tho payment (o) . — By T*^nant leav-
14 &- 15 Vict. c. 25, s. 4, " If any occupying tenant of charge un-
land shall quit, leaving unpaid any tithe rent cliarge P^^*^-
Avhiih lie Avas by tlio terms of his tenancy legally or equit-
ably liable to pay, and the tithe owner sliall give notice of
proceeding by distress for recovery thereof, it shall be
lawful for the landlord or the succeeding tenant or occu-
pier to pay sucli tithe rent charge, and to recover the
amoimt against such fii'st named tenant or occupier in the
same manner as if it were a debt by simple contract."
A right of contribution is given by statute between Contribution
co-owners of land subicct to the same rent charge. By *^*^™ ^°'
" D J owners.
5 & 6 Vict. c. 54, s. 16, " In case any land charged with
one amount of rent charge shall belong to two or more
landoT^mers in several portions, and the owner of any one
of such portions or his tenant shall have paid the w^hole of
such rent charge or any portion thereof greater than his
first proportion," he or his tenant may proceed to claim
contribution from the other landowners ; jmisdiction is
given to two or more justices of the peace to determine
the proportion of contribution and to order payment of
the amount wdth costs ; and tliereupon the claimant may
take tho like proceedings for enforcing pa;vTiient of the
amount and Anth the like restriction as to arrears as are
given to the owner of the rent charge {p).
By tho Commutation Act, s. GO, '* Ever}' rent charge Assessment of
payable as aforesaid instead of the tithe shall be subject to for rates and
taxes.
ante, p. 400. See WlUouohbif v. (t/) Griffuihoofe v. Daiiliuz, 5 E.
WUloughby, 4 Q. B. G87 ; 'Christie & B. 746 ; 25 L. J. Q. B. 237.
V. Barker, 53 L. J. Q. B. 537. {p) The Queen v. Williams, 21
L. J. M. 150.
406
USES AND PllOFlTS IN JAN]) OF ANOTHER.
all parliamentary, parocliial, and county, and other rates,
charges, and assessments in like manner as the tithes
commuted for such rent charge have hitlierto been
subject." The assessment of the rent charge for income
tax is made upon the net annual value, deducting rates
and taxes and the necessary costs of collection (</).
Section II. Extinction and Apportionment of Rents.
Ecloase of
rent to the
tenant.
Release of rent — discharge of land from rent.
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.
Merger of rent service — merger of reversion to which rent incident.
Eviction of tenant by lessor — eviction by title paramount — eviction of
grantor of rent charge.
Apportionment of rent — by partition of the rent — by partition of the
reversion — partition by act of law — partition by tenant.
Ai)portionment of conditions — under the Conveyancing Act, 1881.
Apportionment of rent to time at common law — in equity — apportion-
ment by terms of limitation.
Apportionment by statute — between lessor and lessee — between succes-
sive owners of rent.
Apportionment Act, 1870 — rent apportioned between real and personal
estate — between tenant for life and remainderman — between as-
signor and assignee of lease.
A release of rent service by the landlord to the tenant
of the land operates by way of extinguishment of the
rent ; " for the tenant cannot have service to be taken of
himself, nor can one man be botli lord and tenant" (a).
A release of rent charge to the tenant of the land charged
operates in the same manner ; because " a man cannot
have land and a rent issuing out of the same land" {b).
If a man have a rent charge ho may release to the tenant
{q) Stevens v. BisJiop, L. R. 19
Q. B. D. 442 ; 57 L. J. Q. B. 283.
(a) Lit. s. 479 ; Co. Lit. 280 a.
{h) Lit. s. 480 ; Co. Lit. 280 a.
CHAP. 111. RENTS. 407
of the land more or loss, and reserve part (r). And he
may do the same with rent service {d).
At common law a release of part of the land from a Discharge of
rent charge prima facie discharged the whole land, and ^^^ ^^^"^
extingnisliod tlie rent, because the rent being entu-o
and issuing out of every part of the land, could not
bo thrown exclusively upon the rest of tlie land, nor
apportioned to the several parts, without the consent
of the owners of the land. An owner of land, upon
the release of part from a rent, may make it charge-
able upon the residue ; which amounts to a new grant of a
rent out of that part of the land (o). — Now by the statute
22 & 23 Yict. c. 35, s. 10, it is enacted that " the release
from a rent charge of part of the hereditaments charged
therewith, shall not extinguish the whole rent charge, but
shall operate only to bar the right to recover any part of
the rent charge out of the hereditaments released; without
prejudice nevertheless to the rights of all persons interested
in the hereditaments remaining unreleased and not con-
cm-ring in or confoming the release." - Under this enact-
ment a release of part of the land with the concurrence of
the o^Tier or owners of the uni'eleased part leaves the
imreleased -part prima facie chargeable with the whole rent.
A release of part of the land AAdthout the concm'rence of
the owner or (iwners of the imreleased part operates
^^'ithout prejudice to theii* rights, and therefore leaves the
unreleased part cliargeable with only a jiroportionato part
of the rent ; for the right of the owner of part of land
chargeable with an entu'e rent, xipon being compelled to
pay more than liis share, is to have contribution fi'om the
other owners, in proportion to their respective shares (/).
Eent, whether rent service or rent charge, is merged Merger of
and extinguished by the owner of tlio rent acquiiing pos- session ^T'
land charged.
((•) Co. Lit. 118 a. (/) Jiooth v. Sutilh, L. R. 14 Q.
(d) Lit. s. 538. B. D. 318 ; 51 L. J. Q. B. 1 19.
(r) Co. Lit. 147 l>.
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 <i.
600 ; HoUand v. raher, 2 Stark. (/) Doe v. Boiham, 7 Q. B. 976 ;
161 ; Hopkins v. Helmoir, 8 A. & E. Doe v. Hillvlt, 7 Q. B. 983.
463; Walsh v. Lonsdale, L. R. 21 (•<) Fer cur. Doc \. Benham, supra.
426 USES AND PROFITS IN LAND OF ANOTHER.
tenant lia%'ing until miclniglit of tliat day for payment.
At common law if the lessor died on the rent- day before
micbiig-lit the accruing rent together with the right of
distress passed with the reversion or title, and not as
arrears to his executor ; hut it is now apportionable by
statute (s) . — The time for distraining may be postponed
by express terms of the lease ; but a clause of distress in
merely affirmative terms, that if the rent be behind for so
many days the lessor may distrain, does not take away the
common law right of distraining immediately the rent is
due (/).
Limitation By the 3 & 4 Will. ly. c. 27, s. 42, " No arrears of rent,
of arrears. s; • j. l • i. s^ c ii
or 01 interest m respect oi any sum oi money charged
upon, or payable out of any land or rent, or in respect of
any legacy, or any damages in respect of such arrears of
rent or interest, shall be recovered by any distress, action
or suit, but within six years next after the same respectively
shall have bepome due, or next after an acknowledgment
of the same in writing shall have been given to the person
entitled thereto or his agent, signed by the person by
whom tlie same was payable or his agent." By the 3 & 4
Will. IV. c. 42, s. 3, the personal remedy by action of
debt or covenant for aiTears of rent or interest of money
charged upon land is expressly limited to twenty years ;
and it is held not to be impliedly limited to six years by
the former statute, which is construed as applying only to
remedies against the land by distress or otherwise (ii).
Express By the " Eeal Property Limitation Act, 1874," 37 &
trusts of rent, gg Yi^t. c. 57, s. 10, "After the commencement of this
Act no action suit or other j)roceeding shall he brought to
recover any sum of money or legacy charged upon or pay-
able out of any land or rent, at law or in equity, and
(*) Diipjxi V. Maijo, 1 Wms. (?<) Par/et v. Foley, 2 Bing. N. C.
Saund. 28G h; ante, p. 416. 690; SfracJum v. Thomas, 12 A. &
{t) Co. Lit. 205 a ; per cur. in E. 536 ; Humfrcii v. Gery, 7 C. B.
Giles V. Spencer, 3 C. B. N. S. 253 ; 567 ; Hunter v. Nockolds, 1 M. & G.
Me Swale Brick Co., 52 L. J. C. 640.
638.
CHAP, III. KENTS. 427
secui-ed hy an express trust, or to recover any aiTears of
rent or of interest in respect of any sum of money or legacy
so cliarged or pa}'able and so secured, or any damages in
respect of such arrears, except -within the time witliin
whicli tlie same would bo reco^'erable if there -were not any
such express trust." By the above statute 3 & 4 Will. IV.
c. 27, s. 25, express trusts of land or rent were protected
from limitation by time, until they had been conveyed to a
purchaser for a valuable consideration ; which protection
is now abolished (r).
By the Banlmiptcy Act, 1883, 4G & 47 Vict. c. 52, Rent in
s. 42, a distress levied upon the goods of a baukinipt after ^'*"''''"P*'^J'-
the commencement of the bankruptcy is available only for
one year's rent accnied due prior to the date of the order
of adjudication ; and the person to whom the rent may
be due must prove under the bankruptcy for the surplus
of arrears (ir).
By the Agricultural Holdings Act, 1883, 4G & 47 Vict. Rent of
c. 61, s. 44, " After the commencement of this Act it shall Sini^r''^
not be lawful for any landlord entitled to the rent of any
holding to which this Act applies to distrani for rent,
which became due in respect of such holding more than
one year before the making of such distress. — Provided
that where it appears that according to the ordinary com-se
of dealing between the landlord and tenant of a holding
the pajanent of the rent of sucli holding lias been allowed
to be deferred imtil the expiration of a quarter of a year
or half a year after the date at which such rent legally
became due, tliou for the pm-pose of tliis section the rent
of such holding shall be deemed to liave become due at
the expiration of such quarter or haK year as aforesaid, as
the case may be, and not at the date at which it legally
became due" {.>•).
(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 an<l for a
valuable consideration to any person not privy to such
fraud." — Sects. 3 — G, impose a penalty upon any tenant
so fraudulently removing goods and any person assisting
in the removal, and provide for recovery of the penalty.
And sect. 7 gives a special power, upon the conditions
therein stated, to break open and enter into any house or
other place to take and seize such goods (»).
The fraudulent intention to prevent distress must be Construction
proved as a matter of fact, as by evidence that no sufficient
distress was left and other cii-cumstances ; a mere removal
of goods whilst rent is in aiTear is not sufficient to raise
the presumption of fraud (r). And a removal of goods
with intention to avoid distress is not necessarily fraudu-
lent, as there may be a honCi fide question of the right to
distrain (/r). — The statute applies only to goods removed
whilst subject to distress, and makes tliem distrainablo as
if they had not been removed. Groods cannot be taken
which were removed before the rent was due {x) ; or which
were removed after the right to distrain had ceased by
the termination of the tenancy (//), or by the landlord
having conveyed away his reversion iz). — The statute is
expressly restricted to the goods of the tenant or lessee, and
does not apply to goods of another person ; which the tenant
may lawfully remove to prevent then- being distrained by
the superior landlord (r/) . A creditor of the tenant may take
goods in satisfaction of his debt, with notice of an intended
distress, and lawfully remove the goods to prevent their
being distrained {h).
(h) See post, -p. i^r,. Q. B. 412.
((•) rani/ V. I)imca>i, 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 (</). — The five days allowed for replevin are Time cf
reckoned from the time of notice left, from Avliich time '^^ "°'
there must be five clear days or intervals of twenty four
hoiu's each, before the goods can be lawfully appraised
and sold {e). By the Law of Distress Amendment Act,
1888, 51 & 52 Vict. c. 21, s. G, " the period of five
days shall be extended to a period of not more than
fifteen days, if the tenant make a request in wiiting in
that behalf" (_/'). A reasonable time, according to the
circumstances, may be taken after the five days for tlie
purpose of appraisement and sale ; and a fui'ther tiijie
may be taken with tlie consent of tlio tenant {g). —
Appraisement of the goods before sale by two SAvom Appraise
appraisers (to be sworn by the sheriff, imdersheriff, or "^^"t-
constable of the hundred, parish or place), was also a statu-
tory condition ; but wliicli the tenant might dispense
wdth (//). This condition is now rej^ealed by the Law
of Distress Amendment Act, 1888, s. 5, " except in cases
where tlie tenant or o'VNTier of the goods and cliattels by
writing requu-es such apjiraisement to be made ; and the
landlord or other person levying a distress may, except as
aforesaid, sell the goods and cliattels distrained without
causing them to be previously appraised " (/). The two
appraisers must be reasonably comjietent, but they need not
be professional {k). They must not be interested in tlie
distress, and tlicrofore the distrainor liimsclf cannot act as
{d) Hcdv.Doibiff/i, 2^ L.J. C.F. 208; Fis/ur v. Aff/<tr, i C. & P.
273. 374.
(e) Wallace \. Kliiq, 1 H. Bl. 13 ; (/<) ]ilggbis v. Goodc, 2 C. & J.
Harper v. Tasuelh « C. k V. ir,6. 364 ; Bishop v. Brijaut, 6 C. & P.
( /•) This Alt repeals s. 57 of the 484.
As-Ticiiltural Ilokliiigs Act. 1883, [i) Tliis Act repeals s. 50 of the
■tthicli enacted to the wime effect Agricultural Holdings Act, to the
for agricultural holdings oiil)'. same effect.
((?) rut V. Hhaw, 4 B. & Aid. {k) Bodcn v. Eijtoti, 6 C. B. 429.
442 ITSES AND PROFITS IN LAND OF ANOTHER.
Price. one of tliem (/). — The sale must also be " for tlie best price
that can be gotten." The sworn appraisement is presump-
tively the best price, until the contrary be shown ; and
the goods may be sold to the sworn appraisers. It is not
neoessary to have a sale by public auction ; nor is the
actual sale, whether by auction or not, a conclusive test of
the best price (/ ). By the Law of Distress Amendment
Act, 188cS, 51 & 52 Yict. c. 21, s. 5, a sale by public auction
may be had at the request in writing and at the cost of the
tenant (/.•). The goods must be sold free of all covenants
or restrictions that may affect the price ; if the tenant has
covenanted to consume hay and straw upon the premises,
the landlord having distrained such goo.ds cannot sell them
subject to the like condition, but must sell them abso-
lutely (/). The landlord cannot take the goods at the
aj)praised value in discharge of so much rent, instead of
selling them for the best price that can be gotten in satis-
faction of the rent ; unless by consent of the tenant or of
Charges of the owner of the goods {///). — Goods distrained may be sold
" towards satisfaction of the rent and of the charges of the
distress, appraisement and sale, leaving the overplus, if
any, for the owner's use." Where the rent does not ex-
ceed twenty pounds, the charges are fixed by 57 Geo. III.
c. 93 (sched.) ; if the rent exceeds that amount, the charges
must be reasonable, and the amount may bo questioned in
an action for not leaving the overplus according to the
statute {n). By the same statute, sect. 6, the broker or
person distraining is required to give a signed copy of his
(i) li/on V. Wddon, 2 Bing-. 334. (0 ILmkins v. Jf'alro)/d, L. R. 1
Ij) n'alter\.RumbaU,lZi.Ri\.jm.. C. P. D. 280; 45 L. J. C. P. 772.
53 ; 4 Mod. 390 ; Keightlcij \. Birch, See Roden v. Eijton, 6 C. B. 427.
3 Camp. 524 ; Smith v. Ashforth, {iii) King v. England, 4 B. & S.
29 L. J. Ex. 259. 782 ; 33 L. J. Q. B. 145.
(/i) The above Act repealed s. 50 (w) Lyon v. Tumkics,' 1 M. & W.
of the Agricultural Holdings Act, C03. By the DiKtrcss Amendment
1883, which enacted to the same Act, supra, s. 8, the Lord Chan-
effect for agricultural holdings only, cellor may make rules for regu-
See ante, p. 441. lating the fees, charges and ex-
penses in distresses.
distress.
CHAP. III. RENTS. 443
charges, tand of all costs of tlio distress to tlio person on
whose goods the distress is levied ; but a landlord not ])er-
sonally interfering in the distress is not liahlo for tlio
neglect of his broker to deliver a cojiy (o) .
The sale of a distress under the above statutes is optional ; Salc optional.
a landlord having distrained for rent may detain the dis-
tress as a pledge at common law instead of selling it (p).
But he can bring no action for the rent so long as he
detains the distress, though it may be insufficient in
value ((7). He cannot detain the distress on the j)remises
beyond the five days allowed for replevin by the statute ;
for the right of impounding upon the premises under 11
Geo. II. c. 19, is only given for the convenience of selling,
and continues only so long as may be necessary for that
purpose ; and if the distress is not removed within a
reasonable time after the five days the distrainor is answer-
able as a tresjiasser, imless the tenant consents (r). The
sale of corn and hay, distrainable and saleable by statute
2 W. & M. c. 5, s. 3 ; and of growing crops, distrainable
and saleable by 11 Geo. II. e. 19, s. 8, is made compul-
sory ; such goods bcuig of a perishable kind (.v) .
The tenant or owner of the goods may prevent the sale Tender before
not only by replevin, as expressly pro\dded in the statute, ^^^^•
but also " upon an equitable construction of the statute "
by a tender of the amount of rent and costs within the five
days, and a sale after such tender would be ■WTongful {f).
At common law a tender after impounding was too late to
avoid the distress ; but replevin may be made at any time
during the continuance of the distress {11).
(0) JT(rrt V. Leach, 1 M. & "W. 5G0. Winterhourncx.Morgaii, 1 1 East,395.
(p) Bayley, J., Ltar v. Edmomh, (s) Per cur. Figgott v. BiHles, 1
1 B. & Aid. 159 ; Uudd v. Ravcnor, M. & W. 448, post, p. 446.
2 B. & B. G62. {t) Johnson v. I'pham, 2 E. & E.
((jr) Lihain v. Thitpott, L. R. 10 250; 28 L.J. Q. B. 252, overruling
Ex. 242 ; 44 L. J. Ex. 225 ; post, Ellis v. Taylor, 8 M. & W. 415.
P- -in. («) I'ost", p. 462 ; Jacob v. King,
(>•) 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. £d<fe, L. R. 20
46 L. J. C. 501. Q. B. D. 683 ; 57 L." J. Q. B. 406.
(A) Jie Xetv City Chih, L. R. 34 (o) Me Exhall Coal Co., 4 D. J. &
C. D. 646 ; 56 L. J. C. 332. S, 377 ; 33 L. J. C. 595 ; Re Lundy
distress.
460 VSES AM) ritOllTS IN LAND OF ANOTHER,
of a tenant wlio lias sub-let to a company, for all arrears
of rent ; and he may take goods of the company upon the
premises [y) .
§ 3. Wrongful Distress.
Wrongful distress.
Illegal distress — distress taken in illegal manner— distress where no
rent due — distress after tender of rent due — second distress for
same rent — separate distresses.
Irregular distress — trespass ah initio — actions for irregular distresses.
Excessive distress — value of distress taken — distress for excessive claim.
Rescue — pound breach.
Replevin — jurisdiction of shei'iff — jurisdiction of County Court —
security to prosecute — avowry and cognizance — writ of capias in
icithcrnam.
Wrongful distresses are distinguished as being illegal,
irregular, or excessive : — An illegal distress is where the
goods are taken in an illegal manner, or taken without
any right to distrain, or detained after the right to distrain
has ceased. — An irregular distress is a distress taken legally
under a right to distrain, but afterwards conducted in an
irregular manner. — An excessive distress is where goods are
taken to an excessive amount in proportion to the rent due.
The different remedies and circumstances of the ^vrong
require these forms of wrongful distress to be treated
separately.
Illegal An illegal distress, whether taken in an illegal manner,
or without right to distrain, is a trespass, for which the
tenant or owner of the goods may bring an action ; and in
such action he may recover the goods taken, or their full
value as damages, witliout any reduction on account of
rent due ; for the person thus taking goods illegally is not
Granite Co., L. R. 6 Ch. 4G2 ; 40 {y) Itc Carriage Supphi Ass., L.
L. J. C. 588 ; Re Ecr/cnt Stores, L.- R. 23 C. D. 154 ; 52 L. J. C. 472 ;
R. 8 C. D. GIG ; 47 L. J. C. G77. He New Cit>i 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<l
■svitli"(y). The condition of a demand required at com-
mon law may bo modifii'd or wholly excluded, hy express
terms of the lease ; and the demand must then he made or
not according to the terms and in tin; manner stipulated (r).
By the Common Law Procedure Act, 1852, 15 & 16 Ejectment.
Vict. c. 76, s. 210, rc-enaetmg 4 Geo. II. c. 28, s. 2, "In
all cases between landlord and tenant as often as it shall
]iap2:)en that one half-year's rent shall be in arrear, and
the lantllord or lessor to whom the same is due hath right
by law to re-enter for the non-payment thereof, sucli land-
lord or lessor shall or may, without any formal demand or
re-entry, serve a writ in ejectment for the recovery of the
demised premises. And if it shall be proved that half-a-
year's rent was due before the said writ was served, and
that no sufficient distress was to be found on the demised
premises countervailing the arrears then due, and that the
lessor had power to re-enter, then the lessor shall recover
judgment and execution in the same manner as if the rent
in arrear had been legally demanded and a re-entry made."
The action of ejectment is equivalent to a re-entry, and
operates as an unequivocal and conclusive election to deter-
mine the lease (.s). — " Tlie proper com-se for a landlord
who has a right of re-entry is to bring an action for eject-
ment, as prescribed in the above statute ; yet it is sufficient
if the tenant, being in default, chooses to acquiesce in the
re-entry" (f). And where proceedings are pending before
the Coiu"t and the right of re-entry is clear, the Com-t wUl
order possession to be given up, without an action of eject-
ment {ii). A forcible entry is unlawful by the statute
5 Rich. II. c. 8 ; and a right of re-entry under a condition
of a lease does not justify an entry by force. " The rights
(s) Junes V. CiU-tci; 15 M. & W.
718; (Jrimuood v. Moss, L. R. 7
C. P. 360; 41 L. J. C. P. 239.
(0 Re Brain, L. R. 18 Eq. 409;
44 L. J. C. 103.
(m) General Share Co. v. IFelhy
IS rick Co., L. R. 20 C. D. 260.
(<i)
Co. Lit.
, 201 i ; per
cur.
John-
son V.
Lyttle's
Iron Agency, L
. R. 5
C.
D,
. 694.
(r)
Jhe V.
Masters, 2
B.
& C.
490;
FhiUips
V. Bridge,
L.
R. 9
€.
P.
48 ; 43 L. J. C. P.
13.
478 rSES AND PROFITS IN LAND OF ANOTHER.
of persoiis wlio have a rig-lit of entry are to enter in a
peaceable manner, and if tlioy cannot do so, they must
resoii to the Comets" {v).
Relief against The Com't of Chancer V exercised an original iuiisdiction
condition of , ,. . . ^ •'
re-entry. to relieve a tenant against a condition of re-entry for non-
payment of rent. This jm-isdiction is now regulated hy
statute and may he exercised hy all Divisions of the High
Com-t. The tenant may proceed for relief at any time
within six months after execution in the ejectment ; and
in support of such proceeding must bring into Coiui the
an^ears of rent claimed and the costs of the landlord (?r).
The Conveyancing Act, 1881, 44 & 45 Yict. c. 41, s. 14,
providing generally for relief against re-entry and forfei-
tm-e for breaches of covenants and conditions in leases,
expressly excepts from its effect " the law relating to re-
entry, or forfeitm-e, or relief in case of non-payment of
rent," which was provided for by previous statutes.
Condition of Eeiit may be further secured by a condition in the lease,
profrts.^ ^ '^ ^^^^^ i^ tliG rent be in aiTear, it shall be lawful for the lessor
to enter and hold the land and take the profits to his own
use until the arrears are satisfied. Upon such a condition
a demand of the rent is not recpiired before entry, as upon
the condition to re-enter absolutely, unless it be expressly
stipulated for ; because there is no forfeiture or transfer of
estate, but only an interest by the agreement of the parties
to take the profits in the nature of a distress, subject to
which the estate of the tenant continues as before. A
similar power may be given to secui-e a rent charge {x) .
Summary By the statute 11 Ceo. II. c. 19, s. 10, it is provided, to
for recoi^fy avoid " the expense and delay of recovering in ejectment,"
of possession. — " that if any tenant liolding any lands, tenements, or
hereditaments at a rack rent, who shall be in arrear for one
{v) Fry, J., Edwick v. ITawles, (x) Lit. s. 327; Co. Lit. 203 a\
L. E,. 18 C. D. 199 ; -S'. C. Edridge Havcrrjill y. Hare, Cro. Jac. 610;
V. Hawker, 50 L. J. C. 577. Jemott v. Cowley, 1 Wms. Saund.
(«') 15 & 16 Vict. c. 76, ss. 210 112c; HasseUv.'Goivthivaite,WiU.ea,
—212 ; 23 & 24 Vict. c. 126, s. 1. 500 ; Doe v. Horslei/, 1 A. & E. 766.
cTiAT. 111. nr.XTs, 479
year's rent, ^luiU desert tlio demised premises and leave
the same imcultivated or unoccupied, so as no sufficient
distress can be had to countervail the arrears of rent," the
landlord or lessor may take proceedings Lefore justices of
the peace, as therein prescribed, who are empowered to put.
him into the possession of tlio demised premises, " and tlie
lease thereof to such tenant shall from thenceforth become
void." By sect. 17, tenants may appeal to the next justices
of assize. The landlord must have a right of re-entry in
order to proceed under this section (/y) . — Fm-ther summary
jm-isdiction for recovery of possession is given to justices by
the statute 1 & 2 Yict. c. 74, when the term or interest of the
tenant of any house, land, or corporeal hereditament, held
at vnW or for any term not exceeding seven years, at a
rental not exceeding twenty pounds a year, shall have
ended by legal notice to quit or othermse, and such tenant
shall neglect or refuse to deliver up possession. And by Jurisdiction
the County Courts Act, 1888, 51 & 52 Yict. c. 43, s. 138 Cou^""*^
(re-enacting the County Com-ts Act, 1856, s. 50), jm-is-
diction is given to the County Com-t "when the term-
and interest of the tenant of any corporeal hereditament,
where neither the value of the premises nor the rent pay-
able shall have exceeded fifty pounds by the year, shall
have expired, or shall have been determined by notice to
quit, and such tenant shall neglect or refuse to deliver
up possession accordingly " (-).
The Com-t of Cliancery had an original jm-isdiction, Jurisdiction
now extended to all Divisions of the High Com-t, to raise ceiSJot sale,
rent charges and annuities charged upon land by appoint-
ing a receiver of the rents and profits ; and, if necessaiy,
by ordering a sale or mortgage of so much of the land as
may be requii-ed to discharge the arrears {a). But the
(y) Ex parte Filton, 1 B. & Aid. {a) BuJce of Leeds y. Foiccll, 1 Ves.
369. sen. 171 ; C'lipil v. Jackson, McCl,
(z) See Friend v. Shaw, L. R. 20 495; 13 Price, 721 ; Graves v. Micks,
Q. B. D. 374. 11 Siin. 551; White \. James, 26
480
I'SKS AND rUOFlTS IN LAM) OF ANOTHER.
Kemedios
under Con-
veyancing
Act, 1881.
Court Avill not apply the extraordinary remedies of a
receiver or sale, unless the ordinary legal remedies of
distress, action or entry are unavailable or insufficient (&).
The Court ordered a sale of the glehe lands of an ecclesi-
astical corporation in satisfaction of a rent charge, which
had been charged upon the land for a term of years for
the execution of improvements imder the statutory powers
of the Inclosm-e Commissioners ; the rent charge being
secmx'd ^A-ith powers of entry to take the profits and of
distress, but these powers having become useless by reason
of the land being unoccupied and profitless, and a receiver
being useless for the same reason (e) . The Court refused
to order a sale of land in satisfaction of arrears of the
tithe rent charge, because it is a charge upon the annual
profits only and not upon the inheritance (d).
By the Conveyancing Act, 1881, 44 & 45 Yict. c. 41,
the remedies for rent charges and other annual sums are
given a statutorj^ definition and application. Bys.44 (1),
" Where a person is entitled to receive out of any land
any annual sum, payable half-yearly or otherwise, whether
charged on land or on the income of land, and whether by
way of rent charge or otherwise, not being rent incident
to a reversion, then, the person entitled to receive the same
shall have such remedies for recovering the same as are
described in this section."— (2) " If at any time the annual
sum is unpaid for twenty-one days, the person entitled
may enter into and distrain on the land charged, and
dispose according to law of any distress found." — (3) "If
at any time the annual sum is un^iaid for forty days, then,
although no legal demand has been made for jDayment
thereof, the person entitled may enter into possession of,
Beav. 191 ; 28 L. J. C. 179 ; llorlon
V. Ifall, L. R. 17 Eq. 4.37.
{b) H(jllory v. Leaver, L. R. 9 Eq.
22 ; 40 L. J. C. 398 ; Kehey v.
Keherj, L. R. 17 Eq. 495.
(c) Scottish tilclojvs^ Fundv. Cmirf,
L. R. 20 C. D. 208; 61 L. J. C.
3G3.
{d) Bailei/ v. Badham, L. R. 30
C. D. 84 ; 54 L. J. C. 1067 ; ante,
p. 401.
CHAI'. III. RKMS. 481
and hold the land cluirgod, and take the income thereof,
until thereby or otherwise the annual sum and all aiTears
thereof and all costs occasioned by non-payment are fully
piaid ; and such possession when taken shall be without
impeachment of waste." — (4) "In the like case the person
entitled, whether taking possession or not, may also by
deed demise the land charged, or any part thereof, to a
trustee for a term of years, with or without impeachment
of waste, on trust, by mortgage, or sale, or demise, to raise
and pay the annual sum and all aiToars thereof and all costs
occasioned by the non-payment." — (o) " This section applies
only if and so far as a contrary intention is not expressed
in the instrument under which the aniuial sum arises, and
shall have effect subject to the terms of that instrument
and to the provisions therein contained." — And (6) "This
section applies only where that instrimient comes into
operation after the commencement of this Act."
T T
482 USES AND PROFITS IN LAND OF ANOTHEK.
CHAPTER IV.
PUBLIC USES OF LAND.
Section I. Highways.
II. Local customs.
Section I. Highways.
.§ 1. Highways iu general — § 2. Orig-in and extinction of highways —
§ 3. Maintenance and repair of highways — § 4. Remedies relating
to highways.
§ I. Highways in general.
Public rights — general and local.
Highway — different kinds of highway — cattle way — railway — navig-
able river — towing path.
Pubhc way without thoroughfare — public commons and open spaces.
Ownership of soil of highway — land at sides of highway — inclosing up
to highway — conveyance of land abutting on highway.
Rights of ownership of highway — trespass on highway.
Ownership of highways under statutes — Turnpike Acts — Public Health
Act — Metropolis Local Management Act — comjDensation for high-
ways taken.
Limits of highway — termini — width— deviation.
Use of highway by public — public meetings — excessive traffic — loco-
motive engines^tramways — telegraphs.
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.
Fencing land adjoining highway- — cattle straying through defect of
fences — fencing nuisances on adjoining land.
Public riglits, TliG riglits in alieno solo above treated belong to a
Iqq^^^ person in a private or corporate capacity, and are riglits
of property in the strict meaning of the term. The
rights in alieno solo here treated belong to a person only
as one of the public ; and they differ from rights of
property in having no determinate owner, personal or
corporate. They are common to the public at large, or
to a part of the public limited by a certain locality or
J
CHAT. IV. IFIfiirWAYS. 483
description ; and they are distinguished accordingly as
being general or local. Of the former kind are all public
rights of way, highways, bridges, and the like, which are
for the use and accommodation of all subjects of the
realm. Of the latter kind are privileges of j)ersons within
some limited district of using land for piu'poses of local
convenience ; such as a right of way to church or market,
or a right of enjoying an open space for exercise or
recreation. The former kind of public rights are founded
upon the general custom of the realm or common law; the
latter upon the special custom of the district or lex loci {a).
— -The public, as such, can acquu"e no right to take profits
ill a/ieiio nolo {b).
A public way or highway is a right of passage for the Highway,
public in general. It resembles an easement in regard to
the ser\dent tenement, but differs fi'om an easement in
there being no dominant tenement, without which there
can be no easement properly so called. But " in truth, a
public road or highway is not an easement; it is a
dedication to the public of the occupation of the sui-face of
the land for the piu'pose of passing and repassing, the
^niljlic generally taking upon themselves (thi-ough the
parochial authorities or otherAvise) the obligation of
repairing it. It is clear that that is a very different thing
from an ordinary easement, where the occuj)ation remains
in the owner of the servient tenement subject to the
easement " (c).
It is said " there be three kinds of wa3's : fii-st, a foot- Different
way ; the second is a footway and horseway, and this -^.jiy. °
\'ulgarly is called a pack or drift way also ; the thii-d,
which contains the other two and also a cartway." But
ways may fm-ther vary according to the limitations of
theii' creation, as either expressed in tei-ms or implied in
{a) Post, p. 549. ((•) Cairns, L. J., Eangelcy v.
{b) Xeill V. Devonshire, L. E. 8 Mulland By., L. E. 3 Ch. 311 ; 37
Ap. Ca. 13.5 : pmt, p. 560. L. J. C. 31G.
I l2
484
USES AND PROFITS IX LAND OF ANOTHER,
usage {(■). — " Hig'liway" is the general term for all kinds
of public ways, "wlietlier carriageway, horseway, or foot-
wa}' ; and it serves to describe them all, except where it is
material to state the species of way (d). In the construc-
tion of the Ilighwaj^ Acts it is provided that " the word
' highways ' shall be understood to mean all roads, bridges
(not bluing county bridges), carriageways, cartways, horse-
ways, bridleways, footways, causeways, churchways, and
pavements" (p). In an inclosure Act the word "road"
was construed to include a footway (_/). The cause-
ways by the sides of high roads are j)art of the high-
way, and the surveyor is bound to secure them from
Cattle way. injmy by carriages (ff). — " In general a public highway is
open to cattle, though it may be so unfrequented that no one
has seen an instance of their going there ; but the pre-
sumption would be for cattle as well as carriages, otherwise
cattle could not be driven from one part of tlie kingdom to
anotlier" (//). And an adjacent owner cannot complain of
the nuisance caused by the ordinary th'iving of cattle along
the highway (/). But cattle are lawfully on the highway
onlj^ for the pm^j)ose of passing and repassing {J ) .
Railway, A railway constructed under an Act of Parliament, to
be used by the public with waggons and carriages, was
held to be " a public highway to be used in a particidar
mode" ; and a company incorporated to make and main-
tain it was held liable to an indictment for taking up the
rails, and to a mandamus to restore them (k) . — By the
Railway Clauses Act, 8 Vict. c. 20, s. 92, as to railways con-
structed under that Act, it is expressly provided that " upon
(c) Co. Lit. 5Grt; po.st, p. 503.
(d) Holt, C. J., The Queen v.
Sabitijf', G Mod. 255; Allen v. Or-
mmul, 8 East, 4 ; Ellenborough,
C. J., The King v. Salop, 13 East, 95.
(e) 5 k 6 Will. 4, c. 50, s. 5.
(/) Logan v. Burton, 5 B. & C.
513.
iff) b k Q WiU. 4, c. 50, s. 24 ;
Ellis V. Woodbridge, 29 L. J. M.
183.
{h) Mansfield, C. J., Ballard v.
Dyson, 1 Taunt. 283.
(j) Truman v. London, Brighton
Jig., L. li. 11 Ap. Ca. 45; 55 L. J.
C. 354.
{j) Bovaston v. Bagne, 2 H. Bl,
527 ; 2 Smith, L. C.
{k) The Iving v. Severn Eg., 2
B. & Aid. 646. See Rou-e v. Shil-
son, 4 B. & Ad. 726.
tUAT. l\. HK.JIWAVS. 485
payment of tlie tolls demaiidablo all persons shall be
entitled to use the railway with engines and carriages
properly constructed, subject to the regulations to be from
time to time made by the company by virtue of the powers
hereby and by the special Act conferred upon them."
But where special agreements are made with the comjoany
for tlie use of the railway, the rights of the parties are no
longer governed by the provisions of the Act, but depend
upon the terms of the agreement (/).
A public na^'igable river is analogous to a liighwa}', and Navigable
. . . river,
has the legal rights and incidents of a highway, for
passage of the public, for the carriage of goods, and for
the accommodation of riparian owners. The right of
navigation is generally proved by the immemorial usage,
which also prescribes the mode and limits of the naviga-
tion (w/). Tidal rivers are pri/nu /arie public f(jr navigation
at common law ; and the right of navigation along a tidal
river includes the right of grounding on the bed of the
river until the tide serves, whenever it is necessary for the
piu-pose of navigation (n). — A toA\'ing path on the bank of Towing path,
a public navigable river or canal is a highway for the par-
ticular purpose of towing vessels ; and for such purpose
" the towing path must be taken to include so much of the
bank as is reasonably and properly used as such(o)." The
right of using the bank of a navigable river for a towing-
path does not exist generally at common law ; but it may
be established by custom, or by special grant, or by
statute (;>). 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 .<c 46 Vict. c. 15). 421.
488 USES A>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, M<iiin v. Brodic, As to pleading private ways, see
L. R. 10 Ap. Ca. .'586; Brett, J., ante, p. 208.
Ctibilt V. Maxse, L. R. 8 C. P. 7H; (c) Inclosure Clauses Consolida-
42 L. J. C. P. 278. tion Act (41 Geo. III., c. 109), s. 8;
(/') Aspimiall v. Bruivti, 3 T. R. General Inclosure Act, 1815 (8 & 9
2G5; but see .S>v/(/«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<tn, 3 Biiig. 117;
rebutted.
50G USES AND PROFITS IN LAND OF ANOTHER.
use required to raise tlie presumption must be certain and
definite as to tlie place and direction, tlie time and extent
of the use, the persons using, and all other matters
necessary to constitute a highway {ii). The duration of
the public use which may be necessary depends upon the
locality and the circumstances, no definite space of time
being prescribed by law ; but in all such cases the time is
a material ingredient in aid of the presumed dedication (o).
A way originally set out as a private way, to be used and
repaired by certain persons ouly, may become a highway
by public user sufficiently established, notwithstanding the
difficulty of distinguishing the public use and preventing
it {p).
Presumption The presumptiou may be rebutted by showing that the
v^ay was used by the public not as of right, but by
j)articular license or sufferance of the owner, or as a mere
occasional trespass from a public way for sake of con-
venience (q) ; or by showing that it was referable to some
express agreement operating only as a temporary or con-
ditional license which was revocable under the circum-
stances, or which expired according to its terms (r). The
presumption cannot bo rebutted by a more verbal declara-
tion of the intention of the owner to the contrary, without
any actual interruption or obstruction of the public use ;
but the public use of a way being ouly presumptive
evidence of the dedication, a single act of interruption by
the owner is of more weight than many acts of enjoyment
by the public (.s). Accordingly the erection of a gate or
The Queen v. Petrie, 4 E. & B. 737; to establish a public way by pre-
24 L. J. Q. B. 165. scription ; and such way may be
(«) Fer cur. Att.-Gen. v. Biphos- lost by a period of forty years ex-
phate Co., L. E.. 11 0. D. 341 ; 49 elusion of the public; Mcmn v.
L. J. C. 73 ; Mmldock v. Wallasey lirodie, supra.
Board, 55 L. J. Q. B. 267. {p) The Queen v. Bradfield, L. R.
(6) Gibbs, J., Woodyer v. Had- 9 Q. B. 552 ; 43 L. J. M. 155.
den Taunt. 135; Jiuyhy Charity (fj) Maddockv. ITallasey Board, 55
Trmtees v. Merryweather, 11 East, L. J. Q. B. 267.
376 n. ; L. Blackburn, 3Iann v.. (r) Barraclough v. Johnson, 8 A.
Brodie, L. R. lOAp. Ca. 386. Ac- & E. 99 ; The King v. Hudson, 2
cordiii}^ to Scotch law there is a Stranfj^e, 909, ante, p. 505.
fixed period of forty years required («) Littledale, J., Barracloufjh v.
CHAP, l^ . HIGHWAYS.
607
obstacle across tlio way, though soon after kuocked down,
was held suiHciont to rebut the intention of dedication {f) .
Dedication of a public way can only be made by an Dedication by
- , .„..",, ,y ,, . , , I owner in fee;
absolute owner ni fee simple. " Jsotlung- done by a lessee,
without the consent of the owner of the fee, would give the
right of way to the public." Accordingly, where the land
had been held under a lease for ninety-nine years, dming
which the public had used a ANa}-, and at the expiration of
the lease the reversioner entered and erected a fence ; it
was held that, there being no evidence of a dedication
before the lease, or of the consent of the reversioner during
the lease, the public had acquii-ed no right, and he was
entitled to stop the way (u). For the use of the way
during the lease, being presumptively no injury to the
reversion, and therefore not actionable at the suit of the
reversioner, was no evidence of right against him (r). — A byrever-
consont and dedication by the reversioner may, however, ^^°^^^-
be presumed from the pai-ticular circumstances of the case,
and it is said that "after a long lapse of time and a
frequent change of tenants, from the notorious and
uninterrupted use of a ^^•ay by the public, it should be
presumed that the landlord had notice of the way being
used, and that it was so used with his concmTence " ;
and notice to the steward or agent of the property is for
such purpose notice to the landlord (?r). In the case of
copyhold land the public use of a way is presumptive
evidence of dedication against the lord of the manor,
without proof of his ever having been in possession of the
tenement (^•).
Public use presumes a dedication by an owner ha\'ing Presiimption
title to make it, and prinui facie dispenses with any hiquuy Jedklle^
Johnmi, 8 A. & E. 105 ; Parke, B., (i) Baxter v. Taijhr, 4 B. & Ad.
Poole V. Huskisson, U M. & W. 830. 72.
{t) Roberts v. Karr, 1 Camp. 202, ■ (w) Ellenborough.C.J., The King
n. (A) ; Hcuhii v. Bat/cif, L. R. 19 v. Barr, 1 C;uup. 16 ; Jarvis v.
Eq. 388 ; 44 L. J. 0. 642. Dean, 3 Biug. 44 7.
(i<) Wood V. Yeah o B. & Aid. [x) Foucrs v. Bathurst, 49 L. J.
454. C. 294.
508 USES AND TKOFITS IN LAND OF ANOTUKR.
into tlie title or act of dedication ; but the presumption
may be rebutted by showing tliat no such owner in fact
existed as could, or did make the presumed dedication.
And as the dedication must have been coeval with the
public use, it is sufhcient that a title could then have existed
to support the dedication, and such a title will then be
presimied, although it may appear that subserpient owners
had no such power, or did not acquiesce in the dedica-
tion (//) . If by reason of the uncertainty as to any other
ownership the title may be presumedly vested in the Crown,
the public use may establish a dedication against the
Dedication by Crown (s). — A Corporate body or public company holding
body. ' land for the purposes of their undertaking may dedicate a
public highwaj^, provided such use of the land is not
inconsistent with the act or object of their incorporation ;
and with that restriction a dedication may be presumed
against them from public use (n). Thus a canal company
was held capable of dedicating a public carriage way over
a bridge of the canal and of dedicating a public footway
along a towing path of the canal, sidoject to the use of the
bridge and to^\ing path for the pm-poses of the canal ; and
such dedications may be justly presumed from long public
use (Ij).
Acceptance of "It is not compulsory on the public to accept the use of
public.'^" ^ a way when offered to them; but both dedication by the
owner and acceptance by the public must concur to create
a highway, otherwise than by statute. Acceptance by the
public is ordinarily proved by user by the public; and
user by the public is also evidence of dedication by the
Adoption by owucr " (r). — Repair of the road by the j)arish is evidence
of acceptance by the public, but not conclusive ; because
the parish, though bound to repair, if the public at large
(.v) The Queen v. EuhI Mark, 11 (i) Grand Surrci/ Canal Co. v.
Q. B. 877; The Queen v. Tetrie, 4 JTall, 1 M. & G. 392; Grand June-
E. & B. 737 ; 24 L. J. Q. B. 1G5. Hon Canal Co. v. iW/y, L. R. 21
(z) Turner v. Walsh, L. E. G Ap. Q. B. D. 273 ; 57 L. J. Q. B. 572.
Ca. 636 ; 50 L. J. P. C. 55. See Mulliner v. Midland Ity., L. E.
(a) The King v. Leake, 5 B. & 11 C. D. 611 ; 48 L. J. C. 258.
Ad. 469. {,■) Brett, J., Cuhilt v. Maxse,
CHAP. IV, IUfMIWAYS.
509
accept the road, is only piirt oi tln^ public for tlie piu'pose
of acceptance. "If tlio road lias been used hy people
in the parisli, it furnishes evidence pro (auto of its being
a way for the rest of the public, and if the parish liave
repaired it, it furnishes a strong inference that it is a
public highway ; but it only raises a strong presumption,
and there is no estoppel against a parish in such a case ;
the adoption by the parish does not necessarily as a matter
of law make a road public, nor dues their refusal to adopt
it prevent its being so " (d).
" There can be no dedication of a way to the public for Dedication for
a limited time, certain or uncertain. If dedicated 'at aU, it ^"''^'^'^ t^^-
must be dedicated in perpetuity." The dedication is an
irrevocable licence to the public t(3 use the way {c). Dedi-
cation by the lessee of a term would operate as a licence
during the term, as against himself and his assignees ; but
it would not create a public way as regards the charge of
repair and other legal incidents (,/'). — An Act of Parliament
may create a highway for a limited time, as was generally
the practice with Turnpike Acts, which were limited in
their operation to a term of years, and then renewed fi'om
time to time. In such case the highway has by statute
dm-ing the term all the legal incidents of a highway, as to
the rights of the public and obligation to repair ; but it is
not a permanent highway, except by continual renewal of
the Act of constitution {g). The use and repau* of the
road dmiug the term -svill not serve as evidence of a
permanent dedication or acceptance, because they are
referable to and explained by the provisions of the Act (A) .
L. R. 8 C. P. 704 ; 42 L. J. C. P. 343.
278. I'tr cm-. Att.-Oni. v. ISi- [f) Att.-Gai. \'. Biphosphate Co.,
phosphate Co., L. R. 11 C. D. 340 ; L. R. 11 C. D. 338; 49 L. J. C.
49 L. J. C. OS. (58.
(rf) Littlcdalc, J., 'fhr Kiiiii v. (v) The Qitccn v. Lordsnure, 1.5
Leake, 5 B. & Ad. 484 ; Roba'ts v. Q. B. 689 ; 19 L. J. M. 215 ; The
Hunt, 15 Q. B. 17. King v. JJ'iitter, 8 B. & C. 792.
(<•) Byles, J., Dawes v. Haukinii, (/») The Kiiii/ v. Jlillor, 1 B. &
8 C. B. N. S. 858 ; 29 L. J. C. P. Ad. 32.
510
USES AND PROFITS IN LAND OF ANOTHER.
Dedication
to limited
public.
For limited
use.
There cannot bo a dedication to a limited part of the
j)uhlic, with the effect of creating a public way so limited ;
it would operate as a licence only, without the legal
incidents of a public way; and upon this principle a
dedication to a ^''ii'i^h is not a dedication to the public,
tlie parish being only a part of the public (/). A limited
part of the public, as a parish, may have a right of way
by custom ; which is a prescriptive title founded upon
immemorial use and enjoyment in the particular place
with wliicli such part of the public are identified (./). —
There may be a dedication of a highway to the public for
a limited use, as for a foot-way, or for a bridle-way.
There may also be a dedication of a general highway,
with the exception of a particidar use, as the carriage of
coals. In such cases " the public must take the way
secundum formam doni ; if they cannot take according to
that, they cannot take at all." The right given cannot be
more extensive than the gift imports (/.•). And there may
be a dedication limited to occasional use, as a bridge for
the use of the public only in times of flood, when an
adjoining ford is dangerous, and to be closed at all other
times (/). So the public may acquire the right to pass
over land adjoining the sea shore, when the tide prevents
the use of a public way along the shore [m).
Dedication
Bubject to
obstructions.
The dedication of a way may be made subject to
obstructions and incmiibrances existing in the original
construction ; as in the case of a new street in which there
may be projecting door steps, cellar doors, coal holes, and
the like ; and if obstructions have existed beyond living
memory, they may be presumed to be coeval with the
street and with the original dedication. Any such ob-
structions erected after the dedication of the way become
(i) Poole V. HusJcisson, 11 M. &
W. 827 ; ante, p. 509.
{j) See post, p. 549.
{k) Stafford v. Coynei/, 7 B. & C.
257.
[l) The King v. liuchingham, 4
Camp. 189; The King \. Nurthamp'
ton, 2 M. & S. 262.
[m) See Maddoch v. Wallasey
Board, 55 L. J. Q. B. 267.
( ii.\r. i\'. iiu;ri\\.vYS.
511
nuisances, and those -wlio placed tlieni, or avIio aftenvards
maintain them there are responsible for the consequences (»).
— Tims, a puhlic way may ho dedicated subject to the gates Gates and
and stiles existing u})on it ; -which, if erected upon a pre-
viously existing highway, would be indictable (o). The
right of placing works upon the highway, which may
prove obstructions, is in some cases given by statute, as
the fire-plugs connected -with waterworks, under Water-
works Acts ; trap doors connected with public sewers and
the like (7;). — A way over land may be subject to the Ploughing,
occupier ploughing iip the beaten track whenever plough-
ing is necessary for the cultivation of the land ; and where
it appeared that as far back as living memory went a
footpath across a field had been so ploughed up, it was
held that the proper inference was that the original dedi-
cation of the field had been made subject to the right of
ploughing (r;) . When the dedication is thus qualified the
public have no right of deviation from the prescribed line
of way upon the occasions of the ploughing (r) . A way
may be dedicated subject to the owner of the laud
pasturing cattle over it(s;). — A highway may by imme- Markets and
morial custom be subject to the holding of a market or '^^*"
fair upon certain days, lea\dng sufficient space for public
passage (/). And a way may be dedicated subject to the
right of the adjacent occupiers to place goods and exercise
their business upon the spaces in fi'out of tlierr tene-
hi) Per cur. The Queen v. Longton Arnold v. Blaker, L. E. G Q. B.
Gas Co., 29 L. J. M. 123: Fi.^her 433; 40 L. J. Q. B. 185.
V rrousc. Cooper v. ll'alker, 2 B. & (/) Arnold v. HoUirooh-, L. R. 8
S'. 770 ; 31 L. J. Q. B. 212. See Q. B. 96 ; 42 L. J. Q. B. 80. See
Sandford v. Clarke, L. R. 21 Q. B. ante, p. 494.
D. 398, post, p. o45. («) Coverdale v. Charltou, L. R. 4
(0) James v. Hai/ward, Cro. Cur. Q. B. D. 104 ; 47 L. J. Q. B. 446.
184 ; Bateman v. iutrge, 6 C. & P. (t) Eluoody. liullock, 6 Q. B. 883;
391. As to the width of gates Att.-0'en. v. Horner, 0.5 L. J. Q.B.
across public ciirtwavs and horse- 193 ; L. R. 11 Ap. Ca. G6 ; Horner
ways, see 5 .t 6 WiU.'4. c. 50, s. 81. v. Whiteckapel, 55 L. J. C. 289. By
{p) Moore\. Lambeth Waterworks, the Fairs Act, 1871 (34 & 35 Vict.
55 L. J. Q. B. 304. c. 12), power is given to abolish
(7) Mercer v. Woodgate, L. R. fairs.
5 Q. B. 26: 39 L. J. M. 21 ;
512
rSES AND PROFITS TX LAN]) OF ANOTHER.
Public vray
subject to
private vray.
Iliglnvay
Bubjectto toll.
Toll
tliorout
ments (») ; but siieli a right cannot be prescriptively
acquired after the original right of way (r).
A public way may be dedicated subject to a private
way over the same ground ; as a public footway over a
private road for can'iages, where the use of carriages would
be prinui facie a nuisance to the foot passengers. In such
case the private way must have preceded the public right,
or at least must have been contemporary with it ; because
no private right could have been acquired by grant or
prescription in derogation of the public right. " The
owner of the servient tenement could not dedicate
absolutely to the public so long as it remained subject
to the prior right ; he could give nothing but Avhat
he himself had, a right of user not inconsistent with the
private easement" {ir). A private way may become jire-
simiptively dedicated also as a public way by CA^dence of
pubhc use, and as sucli it would be repairable by the
parish ; but the subsecpiont dedication does not merge the
]^)rivate way, nor the special remedies appropriate to it (^■) .
The right of taking toll from the public is a francliise
emanating from the prerogative of the Crown, and may
be vested in a subject by charter or roj'al grant, or by im-
memorial prescription, which imports such grant. It may
also be created by statute, as in modern times by Tm^n-
pike Acts, which create highways subject to the condition
of toll, but attended with the legal incidents of a public
highway at common law(y). Tf)ll upon a highway is
distinguished at common law as being to/l f/zoroHgh or toll
traverse. Toll thorough, which generally occurs in some
town or borough, is a toll granted in consideration of
(«) Lc Xeve v. Mile End, 8 E. & lirownloiv v. Tomlinson, 1 M. & G.
B. 1054; 27 L. J. Q. B. 208;
Moranl v. Chamhcrlain, 6 II. & N.
541 ; 30 L. J. Ex. 299.
(f) Fowler v. Sanders, Cro. Jac.
446.
[tv) Per cur. The Queen v. Char-
ley, 12 Q. B. 520; Grand Surrey
Canal v. llaU, 1 M. & Q. 392;
484.
(.r) Allen V. Ormond, 8 East, 4 ;
PattesoD, J., Luncan v. Louch, 6
Q. B. 915 ; The Queen v. Bradfield,
L. R. 9 Q. B. 552 ; 43 L. J. M.
155.
(?/) The Queen v. Lordsmere, 15
Q. B. G89; 19 L. J. M. 215.
(HAP. I\'. IIKiinVAYS. /513
doing soiiio .service of j)uljlic benefit upon tlio liiglnvay, as
repairing the road, or maintaining a Lridge or a ferry; it
cannot be imposed witliout some beneficial consideration
eonmiensui-ate Avith tlie toll {z). Accordingly, a claim of
toll to be taken throughout all parts of a to^vn cannot be
sup])orted upon the consideration of rej^airing only some
of tlie streets of the town ; toll can be claimed for passage
over those streets onh' A\liicli there is the duty to repair (a).
2\)U traverse is a toll granted in consideration only of Toll traverse,
a public way over the land of the grantee ; the w'ay being
dedicated to the public subject to the toll, in consideration
of the grant of the toll to the owner of the land ; for no
man can take a toll, as such, even in his own land for a
l)ublic ^\ ay without the licence of the Crown ; and if he
accepts a charter to take toll for a way over his land, he
impliedly dedicates the way to the public {b). It seems
therefore that, except \mder such charter, a person cannot
dedicate a way subject to toll ; the dedication Avould
amount merely to a licence to use the way from time to
time in consideration of paying the toll, and would be
revocable at any time (c). — Hence in claiming a toll
thorough a sufficient continuing consideration must be
alleged and proved ; but " a toll traverse is said to differ
from a toll thorough in this, that no consideration for it
need be averred. This does not, however, mean that there
need be no consideration for it ; it merely expresses that,
as there can be no toll traverse excej)t in respect of going
over the land of the grantee, the consideration of using
the land is implied from the character of the toll, and
need not be fm-ther averred than by stating it is a toll
traverse " (f^-
(z) Kott'Digham v. Lambert, grave's Tracts, p. 10. ^ee Richards
Willes, 111. V. Bennett, 1 B. & C. 223.
(«) Truman v. TJ'ali/fiam, 2 Wils. (c) Austerberrij v. Olilham, L. R.
296 ; IIUI V. timith, 4 Taunt. 520 ; 29 C. D. 750 ; 55 L. J. C. 633.
Brett V. Beaks, 10 B. & C. 508 ; (d) Per cur. Brecon Markets Co.
Brecon Markets Co. v. Xeath Jii/., v. Neath and Bnvon Jii/., L. R. 7
L.R. 8C.P. 157; 42L. J.C.P.63. C. P. 5G6 ; 41 L. J. C. P. 257;
{b) Hale dc Jure Maris, Har- James v.Jo/inson, 'lliod. Hi.
L. I. L
514 1 SKS AND TROFITS IN L.VNI) OF ANOTHER.
ToU of feriy A f eiiy is a francliiso analogous to toll tliorougli, giving
tolb* ^^ ^ Tight to take toll for conveying passengers and goods
across a river, in consideration of the duty of providing
and maintaining the means of conveyance ; and " no man
may set up a common ferry for all passengers, without a
prescription time out of mind or a charter from the
king" (e). A similar toll may be granted for pontage, or
the maintenance of a bridge (./). Tolls analogous to toll
traverse may he claimed for the use of land for various
other purposes ; as for landing goods at a wharf (r/) ; or
for bringing and delivering goods in a town {Ji) ; or for
ships entering and using a port (/) ; the claim of toll in all
such cases having originated in the ownership of the land,
and the dedication of it to public use. Such tolls may be
appm'tenant to a manor, and pass with a conveyance of
the manor (/ ) .
Prescription "Where a highway has originally existed free of toll, no
lijo-hway. loll cau be subsequently imposed without a sufficient con-
sideration, as of repairing the road or a bridge. Hence
" a man cannot prescribe to have toll for passing in the
king's highway, for that it is the inheritance of every man
to pass on the king's highway, which is prior to all pre-
scriptions ; and therefore if a man will plead such a pi'c-
scription he must show a reasonable cause for its com-
mencement, which is not to be presumed " (/•). But a toll
traverse, originally well created, may subsequently be dis-
severed from the title to the land ; and where a toll had
been taken from time immemorial without any apparent
consideration beyond the use of ihe highway, and the toll
{e) Hale dc Jure Maris, Har- 422 ; Colton v. Smith, 1 Cowp. 47.
grave's Tracts, p. 6 ; rai/ne v. rar- (h) Elckards v. Bennett, 1 B. &
tridge, 1 Show. 231 ; S. C. Tain C. 223.
V. Patrick, 3 Mod. 289 ; BliHsct v. (i) Yarmouth v. Eaton, 3 Burr.
Bart, Willes, 512 («) ; I'vter v. 1402 ; The Queen v. Ttirham, 28
Kendal, G B. & C. 703 ; Trotter v. L. J. M. 232 ; Exeter v. Warren,
Harris, 2 Y. & J. 285. 5 Q. B. 773.
(/) 2 Co. Inst. 701; Nicholl \. (,/) James \. Johnson, iModi.Ui.
Allen, 1 B. & S. 91G ; 31 L. J. (k) NottinyhamY.Ijamhert,'Wi\\e8,
Q. B. 283. Ill ; see Smith v. Shepherd, Cro.
((/) C'rispe ^ v. Ilelwood, 3 Lev. Eliz. 710.
ClIAl". 1\'. I IK; II WAV:
515
and the laud liad Itccii originally vested in tlio same
person, though since severed ; it was held to he rightly
presumed, in favour of a legal origin, that the toll had
been granted in consideration of the original dedication of
the high"\vay, and therefore might be claimed as a toll
traverse (/).
A grant ma}' be made of toll, with exemption of a cer- Exemption
tain part of the public; as the toll upon corn imported
into the City of London, with exemption of freemen of
the city (w). Such exemption maybe proved by imme-
morial custom ; as a custom for the iidiabitants of a town
to pass a ferry toll free (;/). — There are also statutory
exemptions from toll on turnpike roads applied to certain
persons and upon certain occasions, namely, the Queen
and the lioyal family, the military forces, the police,
ministers and persons attt^'uding climx-h on Sundays, and
funerals, horses, carts and im})lements of husbandry, agri-
cultural manurc^s and produce, the carriage of materials
for repair of roads and bridges, county elections, and
various other matters (o). Also, no tolls can be demanded
or taken for any horse, or beast, or cattle of any kind, or
for any carriage of any kind, " which shall only cross any
tiu'upike road or shall not pass above one hundi'ed yards
thereon" {/>).
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, Hi<rhways
obtained under the HighwaysAct, 1878, to be "unnecessary ^^^^J^^f..^.^^
for public use," cease to be repairable by the i)ublic, but do
not cease to be highways ; and if they afterwards become
of public use, the liability to repair may be re^aved (s).
The maintenance and repair of highways are now, for Repair under
the most part, regulated by statutes, commonly known as ^c&/^'^^
the "Highway Acts " {t) , These Acts provide for the coni-
(p) As to this section, sec T/ir Vict. c. 101, s. 21; 41 & 42 Vict.
Queen v. Baffffr, 44 L. J. M. 45. c. 77, s. 24 ; ante, p. 517.
(^) Jtoberts V. Jliint, 15 Q. B. 17. (0 The Highway Act, 1S35, 5 &
{;•) Hobn-ts V. Jlinit, supra; The G Will. 4, c. 50; 1862, 25 & 26
Queen X. irUsou, IS Q. B. 348; 21 Vict. c. 61 ; 1864, 27 \: 28 Vict.
L. J. Q. B. 281 ; Healey v. liatlen, c. 101 : 1878. 41 & 42 Vict. c. 77 ;
L. R. 19 Eq. 375 ; 44 L. J. C. 642. and see the Local Government Act,
(.9) See Highway Acts, 27 k 28 1888, post, p. 525.
524 rSES AND P]U)F1TS IN LAM) OF ANOlIIKll.
filiation of parishes and any places maintaining tlioir own
liiglnvays into " bigliway districts;" and fortlio formation
Hig-lnvay of a *' higliwav board " for eacli district, consisting of way-
■wardens elected in tlie several places witliin the district,
and of the justices acting for the county and residing
within the district. And hy these Acts all the jiroperty,
debts, powers, rights, duties, liabilities, capacities and in-
capacities, of the surveyors of the parishes forming the
district are vested in and attached to the highway board;
who are required to ajipoint a district sui'veyor to act as
agent of the board in the performance of their duties. —
District fund. J3y the Acts of 1862, 1864, the exjienses incurred for
officers and for the common use of the district were charged
to a district fund, contributed by the several parishes rate-
ably ; and the expenses of maintaining and keeping in
repair the liighways of each parish Avere made a separate
charge upon each parish, as at common law. But by the
Act of 1878, s. 7, all the ex])enses of maintaining and re-
pairing the highways within tlie district, together with all
otlier expenses of the board, were charged upon the dis-
trict fund. This section was held to change only the
incidence of tlie expense, Avitliout transferring to tlie board
at large any right to dispute tlie liability to rejiair, which
is referred by the Act of 1862, s. 18, to the waywarden of
the parish ; and in case of tlie waywarden disputing the
liability an indictment must be brought against the parish,
as at common law, and not against the board (ii).
Main roads. The Act of 1878, s. 13, created a class of roads called
" main roads," consisting of turnpike roads which ceased
to be such since a certain time before the passing of the
Act; and roads ordered by the county authority to be main
roads, " by reason of being a mediimi of communication
(m) Loughborough Tlighuag Board C02; .5G L. J. M. 131 ; but see The
V. Curzon, L. R. 16 Q. B. t). 565 ; Queen v. Marjor of Wakefield, 57
55 L. J. M. 122; The Queen \. L. J. M. 52 ; ■/;r;,sC, p. 539.
Mayor of Poole, L. R. 19 Q. B. D.
CHAl". 1\'. II ir; II WAYS. 525
between great t(j\vu.s, or a tli(jrouglii'aru to a raihs'ay
station or otherwise." And it provided as to main roads
tliat " one-half of the ex2>euses 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 ; au<l a hody corporate may l)e bound to repaii* by
prescri2>tion 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 {<l) The King v. Derbyshire, 3 B.
East, 342 ; The Jung v. Or/ord- & Ad. 147.
536
USES AND PllOFITS IN LAND OF ANOTHER.
What are
county
bridares.
Approaches
to bridges.
being a main road, inclusivo of every bridge carrying sueli
road, if repaiivable by the highway authority, shall, after
the appointed day, be wholly maintained and repaired by
the council of the county ; and such council shall have the
same powers and be subject to the same duties as a high-
way board, and may further exercise any powers vested in
the council for the pm-pose of the maintenance and repair
of bridges, and the enactments relating to highways and
bridges shall apply accordingly " (c).
The bridges within the common law liability of the
coimty to repair are such only as carry a highway, whether
footway, bridleway, or carriage way, over a river or water-
course ; there must be "water flowing in a channel between
banks more or less defined, although such channel may be
occasionally dry " (/) . A causeway over meadows occasion-
ally flooded ^^^.th water, lia\dng culverts at intervals to let the
water pass through for the safety of the structiu-e, was held
not to be a bridge repairable by the county {g) . It is not. a
necessary condition of a county bridge that it must have
parapets (//).
By the common law, declared and defined by the Statute
of Bridges, 22 Hen. VIII. c. 5, s. 9, it is enacted " that
such part of the highways, as lie next adjoining to the ends
of any bridges distant from any of the said ends by the
space of tliree hundred foot, be made, repau-ed, and
amended, as often as need shall rec^uire." The liability of
the county to repair extends to the approaches thus de-
fined ; and a new bridge, becoming a public bridge, carries
with it the same aj^proaches rej)airable by the county («).
But the liability to repair approaches does not apply to
a substantive bridge situate within the limits (/) . — The
prescriptive liability of a person or corjDorate body to repair
1
(e) See ante, p. 52-5.
(/) Per cur. The King v. Oxford-
shire, 1 B. & Ad. .'301. See TJie
King v. Salop, 13 East, 95.
(y) The King v. Oxfordshire,
supra.
{h) The King v. Whilneg, 3 Ad.
& El. 69.
(i) The King v. West Biding, 7
East, 588 ; 5 taunt. 284.
(/) The King v. Devon, 14 East,
477.
CHAi'. i\. nif;ii\\Avs. ;>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 Qu<en v. Jl',i/:iji,lil, L. R.
Southampton, L. R. 19 Q. B. D. 20 Q. B. D. 810; 57 L. J. M. 52.
599; 56 L. J. M. 118. (/) Russell v. Men of Devon, 2
(r) Per cur. The Qiircn v. M<i>ior 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 <!«/<;, p. 511.
R. 21 C. D. 752; 57 L. J. C. 746. {:) Ante, p. 499 ; irdJcins v.
Sco irallaseij Local Board v. Gracei/, Day, L. R. 12 Q. B. D. 110;
L. R. 3G C. D. 593. Harris \.Mohb^, L. R. 3 Ex. D. 268.
[v) The Kiny v. Tindall, 6 A. & («) Holt, C. J., The Kiny v.
E. 143 ; The Queen v. Eussell, 3 E. If'ebb, 1 L. Riiyiu. 737.
544
T'SES AND PROFITS TN LAND OF ANOTIIEU,
Action for
liuisance.
Special
damagre.
responsible for ctmsiug sueli obstructiou, tliougli he him-
self remains on private ground {a) .
It is a principle of law that where an indictment will
lie for a public nuisance there is no remedy by action,
except for special or particular private damage sustained
from it. Therefore in cases of nuisance upon a highway
a person who is merely hindered from using the way in
common with the rest of the public must proceed by
indictment. But if he sustain some special damage to
himself or to his propert}^ which is not common to others,
as by himself, or his horse and carriage, being thrown
do^^^l, he has an action to recover that damage against
the person who caused the nuisance (Z/). Local highway
authorities have no greater power in this respect than a
private person; they may proceed by indictment, or by
information in the name of the Attorney- General on
behalf of the public for an injunction to restrain the
nuisance; but they cannot bring an action in their own
name, except for some special and particular damage
caused to them by the nuisance {c). — The plaintiff in such
action must allege and prove some direct, particular and
substantial damage, different from that sustained by the
public in general from the destruction of the passage ;
as, that the sale of goods was lost, or that goods were
de'leriorated, by obstruction of the carriage {d) ; that
additional expense Avas incm-red in caiTying goods by
another ^^•ay (e) ; tliat the plaintiff was prevented by the
obstruction from carrying his corn, which became damaged
(a) JTorner v. Cadman, bo L. J. L. J.
M. 110; Jiack v. Holmes, 57 L. J. L. R
M. 37 ; ante, p. 495 ; and see post, 1C2.
p. 516. (c)
{b) Co. Lit. 56 a; Ivemn v. Moore, L. R
1 L. Raym. 486 ; as cited and ex- (d)
plained in SoUau v. De Held, 2 Sim. 486 ;
N. S. 145; Erie, J., Iticket v. Me- {e)
tropolitan Ilij., 5 B. & S. 161 ; 34 Greas
Q. B. 259 ; Bcnjmmn v. Btorr,
. 9 C. P. 400 ; 43 L. J. C. P.
ira/ldsei/ Local Board v. Graccy,
. 30 C. b. 593.
Ivcson V. Moore, 1 L. Raym.
12 Mod. 262.
Rose V. 3Iiles, 4 M. & S. 101 ;
:hj V. Codling, 2 Bing. 263.
f II \i'. i\-. uioiiwAVs. 545
by ruin (/); that carts and horses were kept standing au
unreasonable time before his business premises, whereby
the premises were rendered dark and unwliolesome, and
the access obstructed, to the loss of customers and ma-
terial diminution of liis business {(/). But it is not sufficient
for the plaintiff to prove merely that lio was delayed, in
common witli all other persons using- the way, by being
obliged either to remove the obstruction, or to go by a
longer way (A), — The action will lie against a landlord
who lets i^remises with a public nuisance, as well as against
the lessee who continues the nuisance (/).
An action for special damage 's\'ill lio against the sm'- Action
veyor of highways, or the highway authority appointed as surveyor :
siu'veyor of highways by statute, in respect of an actual
nuisance or obstniction caused by them, or by persons in
their employment. Thus a local board, as smweyor of
highways, was held liable for damage sustained by a
person falling over a heap of stones placed in the highway
by their servants {J ) . — Local boards may also be liable for against
damages caused by the defective and dangerous state of
sewers, w^atercoiu'ses, gratings, traps, and any other artificial
constructions vested jn them in theii' various capacities,
which are placed or left in the highway so as to be a
nuisance to the public (/.•).
The same principle applies to the abatement of a iiuis- Abatement
aiice by act of the party. " An individual Avho is only
injm'ed as one of the public can no more proceed to abate
than he can bring an action." But " a public nuisance
becomes a private one to him who is specially and in some
(/) Mayucll v. Sallmarsh, 1 Keb. (/) White v. Hindhi/ Loc. Board,
847. L. R. 10 Q.B. 219; 44 L. J. Q. B.
{(/) Benjamin v. Storr, L. R. 9 114; Blackiitovc \. Mile E»<l,lj.'R.
C. P. 400; 43 L. J. C. P. 162; 9 Q. B. D. 4 ol ; 51 L. J. Q. B.
Fritz V. Hobson, L. R. 14 C. D. 496 ; Kent v. V'orlhiiig Loc. Board,
542 ; 49 L. J. C. 321. L. R. 10 Q. B. D. 118 ; 52 L. J.
(/() Vintevhotluun v. Derby, L. R. Q. B. 77 ; Bathiirst v. Macpherson,
2 Ex. 316 ; 36 L. J. E.x. 194, L. R. 4 Ap. Ca. 256. As to tram-
((') Sand ford \. Clarke, L. R. 21 ways, see llowitt v. Kottinyhani
Q. B. P. 398. Tramirai/ Co., L. R. 12 Q. B. D.
(j) Foreman v. Canterhuni, L. R. 16; 53 L. J. Q. B. 21.
6 Q. B. 214; 40 L. J. Q. B. 138.
L. X N
local board.
of nuisance.
546
TSES AM) PROFITS IX LAND OF ANOTHER.
particular way inconvenienced thereby, as in the case of a
gate across a higln\'ay -wliicli prevents a traveller from
passing, and wliicli lie may therefore tlu-ow down"(/i).
A person can abate an obstruction to a way only Avlien it
is necessary for him to use the part of the way that is
obstructed ; he is not justified in destroying the obstruction,
if he can conveniently pass without doing so (/).
Summary
remedies,
penalties for
■\vilf ul ob -
struction.
Summary remedies against nuisances are given by tlie
Highway Act, 1835, 5 & 6 Will. IV. *c. 50 :— Sect. 72
imposes a penalt}'-, if any person shall do any of the
specified acts of injury, damage, or annoyance upon a
highway, which are particularly mentioned therein, or in
general terms, " if any person shall in any way wilfully
obstruct the free passage of any highway." Omitting to
remove an obstruction may be a wilful obstruction Avithin
this section ; as where a wall fell into the highway and
the owner after notice left it there (m). And for a
surveyor of highways in repairing a road to leave stones
upon it at night insufficiently fenced and. lighted was held
to be within the section (»). But suffering trees to grow
over the adjacent highway was held not to be a wilful
obstruction within the section ; though it may be matter
of indictment (o). A crowd of persons standing upon a
highway, or uj)on any part of a highway, are an obstruction
to the free passage ; and a person collecting or causing such
a crowd may be convicted of a wilful obstruction, and
though he was not himself upon the higliway (/>). 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<loptcd into the common law, and as such are recognized
hy the judges without any e\'idence. These are called
customs because they only apply to particular descri])tions
of persons, and do not affect all the subjects of the realm ;
but if they govern all persons belonging to the classes to
which they relate, they are to be considered as public
laws"(.r). — Custom has no application beyond its local Custom
limits ; there cannot be a custom in one place giving io"^i|t' . '
any right or duty in another place (//). Thus a copy-
holder cannot claim by custom of the manor to have com-
mon in land which is not parcel of the manor ; but he
must prescribe for such common in tlio name of the
lord (c). And there cannot be a custom in a parish for
the inhabitants to repair the roads in another parish, or to
have their roads repaired by another parish (a) . So it
wa^ held that an alleged custom for the inhabitants of a
parish to exercise horses in a place beyond the limits of
the parish could not be supported ; because " a custom
could not be claimed on behalf of the inhabitants of one
place to be exercised and enjoyed in another and different
place" (h). A claim of custom cannot be made in respect
of a separate close or tenement over another close, as that
the occupiers of the one have immemorially used a way
over the other ; such right must be claimed by prescription
in the owner of the fee, as an appurtenance of the tene-
{w) Co. Lit. 110 i. 31 b.
(x) Fcrcur.GiJ/brdv. YarbofoiKjh, {a) Dawson v. iriUou(jhbij, o B.
oBing. 164. & S. 920; 34 L. J. M. 37; T/ie
{>/) 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<hl , 1 B. &
Aia. ;j.)7.
558 USES AND rUOFlTS IN LAND OF ANOTIIEK.
and against reason at the beginning of it" (o). " When
it is said tliat a custom is void, because it is unreasonable,
nothing more is reallj meant than that the unreasonable
character of' the alleged custom conclusively proves that
the usage, even though it may have existed immemorially,
must have resulted from accident or indulgence and not
from any right conferred in ancient times " ( jj). Whether
an alleged custom is inadmissible in law as being un-
reasonable is a question of law for the Com't to decide
upon the facts found {q).
ITsago against " ^ custom is not unreasonable merely because it is con-
trary to a particular maxim or rule of the common law ;
for ' consududo ex ccrta causa rationahill usitata privat
conirmtnem legem,^ as the custom of gavelkind and borough
Enghsh which are dii-ectly contrary to the law of descent,
or the custom of Kent which is contrary to the law of
escheats. Nor is a custom unreasonable because it is pre-
judicial to the interests of a private man, if it be for the
benefit of the commonwealth ; as the custom to turn the
plough upon the headland of another, in favoiu' of hus-
bandly ; or to diy nets on the land of another in favour
of fishing. But, on the other hand a custom that is con-
trary to the public good or prejudicial to the many and
beneficial only to some particular person is repugnant to
the law of reason ; for it could not have had a reasonable
commencement " (r) ; as a custom alleged for the in-
habitants of a town to maintain a nuisance upon a high-
way (-s). — But "no custom or prescription can take away
the force of an Act of Parliament " {t).
io) Coke, C. J., Hlx v. Gardener, cur. Tt/son v. Smith, 9 A. & E. 421 ;
2 Bulstr. 195. adopted in Bradhurn v. Foley, L. R.
{j}) Ld. Cvanworih, 3Iarq. Salh- 3 C. P. D. 13o ; 47 L. J. C. P.
lury V. Gladdone, 9 H. L. 692; 331.
Ilatherley, L. C, Warrick v. Queen'' s (r) Per cur. Tyson v. Smith, 9 A.
Coll., L. E,. 6 Ch. 722 ; 40 L. J. C. & E. 421 ; and see Abbott, C. J.,
780. " Consuetudo contra rationem The King v. Joliffe, 2 B. & C. 59.
introducta potitts t(sur}}atio quam con- See per cur. The King yr. Mayor of
suetudo appcllari debet.'''' Co. Lit. London, 9 B. & C. 29.
113 a. («) Fowler v. Sanders, Cro. Jac.
{q) Co. Lit. 56 i, 59 b ; i:)er cur. 446.
Bell V. Warden, Willes, IM; per {t) Co. Lit. 113^; seortw^e, p. 551.
CllAl'. I\. hOCAI. CUSTOMS. 559
According- (o tlio above piinciples tlir J'nllcnving customs Reasonable
have been allowed : — A custom for the inhabitants of a ^^^ """*■
town to walk or ride for health and exercise over a private
close of land was su])ported as reasonable and valid (ii),
also to play all kinds of lawful games upon a private
close {v),0T to erect a maypole and dance for recreation (/r) ;
also a custom for the inliabitants of q, parish to use a
"village green" for exercise and recreation and for all lawful
sports and pastimes {.v) . — A custom alleged for the inhabit-
ants of a toAMi to walk and ride over a close of arable
land for health and exercise at " all seasonable times in the
year," was held reasonable and valid, being constnied by
the Com-t to mean all times seasonable for the land, ex-
cluding the season when the corn was grooving {?/). And
a custom alleged for inliabitants to enjoy any lawful
recreation ujion certain land " at all times of the year "
was held good, because impliedly limited by judicial con-
struction to seasonable times (;:). The claim of a custom
for the inhabitants of a city to hold horse races upon a
close of land on a certain clay in every year was held to be
maintainable, whether the day was in fact seasonable or
not ; for the usage being immemorial, the validity must be
determined with reference to the state of the land at its
origin, and not at the time of pleading (a). — " The right
to perambulate parochial boundaries, to enter private j^ro-
perty for that piu'pose, and to remove obstructions that
might prevent this from being done prevails as a notorious
custom iu all parts of England ; but a custom on that
(ti) Sell V. Warden, Willes, 202. 39 & 40 Vict. c. 56, as to the
(i') Fiteh V. limvlhiff, 2 H. Bl. allotment of recreation grounds,
394. See Millee/iamp v. Johnson, and the preservation of public rights
Willes, 205 b. over connnou.s.
(iv) Abbot V. Wecldif, 1 Lev. 17G; (//) JJell v. Wardell, Willes, 202.
Hall\. XottDif/ham,!^. B^.l'Ex.'D. See Souerbif v. Coleman, L. R. 2
1 ; 45 L. J. Ex. 50. Ex. ^Q ; 36 L. J. Ex. 59.
(j) Forbes v. Fceles. Coinmiss., (z) Hall v. Kotiuigham, L. E. 1
L. R. 15 Eq. 51 ; 42 L. J. C. 97. Ex. D. 1 ; 45 L. J. Ex. 50.
See llammcrtoii v. Iloimi, 24 W. R. (</) Mouusty v. lamai/, 1 H. & C.
603; cited L. R. 17 "C. D. 598. 729; 32 L. J. Ex. 94.'
And see the Commons Act, 1876,
iiaut to
ownership
560 rSES AND PROFITS IN LAND OF ANOTHER.
occasion to enter a ]^)articular liouse which is neither upon
the boundary line, nor in any manner wanted in the course
of the perambulation, cannot be supported" {a).
Usage repug- A usage which tends to deprive the owner of all bene-
ficial use of his property is repugnant and unreasonable,
and therefore cannot be supported as a legal custom (b) .
For this reason 11 if claim of a custom could not be supported,
for the inhabitants of a parish to exercise and train horses
upon land, without limit as to the number of horses, or as
to the time of year (r) . So, a custom claimed in a manor
for working collieries v/ithout making compensation for
damage to the surface or buildings {(/). And a custom
claimed to w^ork minerals by sinking pits and laying
the earth and rubbish on the land near to the pits for an
unlimited time, w^as held to be unreasonable as it might
deprive tlie tenant of the whole benefit of the land (e).
Customs to It is a general rule of law that a claim by custom to a
oHand?^^^ profit a prendre, that is, to take some material profit from
the land is unreasonable and void ; because the effect of
the perpetual use of such a custom by an indefinite number
of persons, as all the inhabitants of a place, would neces-
sarily tend to the destruction of the subject-matter of the
custom. Uses of the nature of easements are the only
rights over land admissible as the subject of custom, strictly
so called. "A custom that every inhabitant of such a town
shall have a way over such land cither to the church or
market, &c. is good ; for it is but an easement and no
profit "(/). — The prescriptive title to a profit a prendre
differs from a custom in being vested in a certain j)erson
by whom it may be released or extinguished ; whereas " a
(a) Tai/hr v. Ucvci/, 7 A. & E. (c) Brnndheul v. Wilkes, Willes,
409 ; Goodday v. Michel!, Cro. Eliz. 360 ; IFil/ces v. Broadbent, 1 Wils.
441. G3 ; ante, p. 557.
(i) Per. cur. Hilton v. Gruaville, (/) 6 Co. 60 b, Gateivard^s case ;
5 Q. B. 730. per cur. Race v. Ward, 4 E. & B.
(c) Sowerbif \. Coleman,!^. R. 2 713; 24 L. J. Q. B. 153; and
Ex. 98 ; 36 L. J. Ex. 59. Rivers v. Adams, L. R. 3 Ex. D.
{d) Hilton V. Granville, supra. 364 ; 48 L. J. Ex. 47.
CIIAl". IV. J.OC'AL ( rsTOMS. 561
custom lias no cei-taiu person 'svlio can extinguish it, for as
soon as lie who releases it removes, the new inhabitant
shall have it " {<j). Aim a prescriptive title in a person is
founded upon grant, and therefore extends to whatever is
grantahle (//).
Under the above rule the following claims of customs Claims to
have been disallowed : a custom for the inhabitants of a custom ^
town or parish to take common of pasture (/) ; a custom fallowed,
for the inhabitants of a parish to cut imderwood or lop-
wood for fuel {J) ; a custom for the inhabitants of the
district of an ancient forest to cut and cany away brake,
fern, heather, and litter {k) ; a custom to glean in the
harvest field (/) ; a custom for the householders of a parish
to cut and pick up dead wood and carry it away for fuel ;
but " it might have been otherwise if the claimant could
have stated that he was possessed of a certain ancient
tenement, and so prescribed in a que estate.'^ (m). A
crown grant for the inhabitants in a forest to gather dead
sticks was allowed upon demurrer, because such a grant
might possibly take effect by implied incorporation of the
inhabitants for the pm'^iose of the grant (y^). — By the Claim to take
same ride no claim can bo made by custom to take mine-
rals, stone or any part of the soil, from the land of
another (o) . A claim by inliabitunts to enter a close of
land to take sand di-ifted from the sea shore, was held bad,
because the di-ifted sand had become part of the soil(;;).
A usage for the inhabitants of a parish of taking gravel
out of another person's land for the pm-pose of repauing
iff) 6 Co. 60a, GatcicanVs case; per 17 C. T). 535 ; 49 L. J. C. 490.
cm: Att.-Ge)i. V. 3rat/iias, iK. &J. (/) Steel v. Houghton, 1 II. Bl.
579;27L.J.C.76G. Scert^i^e, p.3o5. 51; ah^*-, p. 557.
{h) See a)ite, p. 2S1. (iii) Se/l/i/ v. llohbison, 2 T. E.
(i) Gateicard's ease, 6 Co. 59 i ; 758; ante, t^. bb\.
Weekli/ V. Wildman, 1 Ld. Eaj-m. {n) Willingale v. JIaiiland, L. K.
405 ; G>-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</, 3 A.
(/.) See De la Jl'arr v. Miles, L. R. & E. 554.
I- o o
562
I'SES AND PROFITS I\ T, AM) OF AXOTIIEll.
Claim to take
fish.
the higliway cannot be supported as a custom at common
law, because it is a profit a prendre ; nor can it give a pre-
scriptive right, because the inhabitants, not being incorpo-
rated, are incapable of taking a grant {q) . A usage of
agricultiu-e for the tenant to pick and carry away stones in
the process of cultivation was held binding between land-
lord and tenant, in the absence of express agreement upon
the matter; but such usage does not amount to a cus-
tom properly so called, nor is the subject a profit in
(lUeno solo, but a profit of the demised premises (r) . —
A custom pleaded for all the inhabitants of a parish to
angle and catch fish in a private water or river, was held
bad, because it claimed a profit a prendre, and might lead to
the destruction of the subject-matter to which it applied ;
" and a claim to angle for and catch the fish, without
claiming a right to carry them away, would be equally
destructive of the subject-matter, and bad" (.s) ; nor can
any right be acquired by usage for the public in general
to fish in private waters or rivers, navigable or non-navi-
gable {t). So a custom alleged for all the free inhabitants
of a borough to cbedge for oysters in a several fishery of
the borough, was held bad (ii) ; but a grant of the fishery
of oysters to the corporate borough to be taken and en-
joyed by the " free inhabitants" during certain times of
the year, without stint, was held good, because a profit a
prendre might pass to the borough by the grant, which
might also prescribe the mode of enjoyment by the inhabi-
Claimto take tants (v). — A custom for the inhabitants of a district to 2:0
water.
upon a close of land to take water from a natural stream,
sirring, or well may be valid ; because, fiowing water being
[q) Constable -V. Nicholson, 14 C. B.
N. S. 230; 32 L. J. C. P. 240.
(/•) Tucker v. Linger, L. R. 21
C. D. 34; 52 L. J. C. 941; ante,
p. 68. And see ante, p. 552.
(s) Campbell, C. J., Bland v.
Lipsconibe, 4 E. & B. 713 (c) ; Lloijd
V.Jones, 6 C. B. 81.
(0 Hudson V. McRac, 4 B. & S.
685 ; 33 L. J. M. G5 ; Ilaryreavcs
V. Liddams, L. R. 10 Q. B. 582 ;
44L.-J. M. 17 ; PearceY. Scotcher,
L. R. 9 Q. B. D. 162 ; Neill v.
Devonshire, L. R. 8 Ap. Ca. 135.
See ante, p. 180.
[u) Snltash v. Goodman, L. R. 7
Q. B. D. 106 ; 50 L. J. Q. B. 508.
[v) Goodman v. Snltash, L. R. 7
Ap. Ca. 633; 52 L. J. Q. B. 193.
See lie Favvrsham Free Fishers,
L. R. 36 C. D. 329 ; and see post,
p. 566.
( HAl'. \y. LOCAL (TSTOMS. 06*J
no part of tlio soil nor the subject of projjei-ty, the right
claimed is a mere easement and not a profit a preudi-e {tc).
It seems that a custom for taking a profit in aUcno solo Profits sub-
or f(jr an occupation of the soil may be valid, if supported ir'^fees..^
by the consideration of a customary payment to the owner ;
as in the case of stallage at a customary fail- for Avhicli a
reasonable toll is payable {x). So A\itli a custom to firsli
upon payment of a reasonable fee, which might, in
favour of ancient enjoyment, be deemed a sufficient re-
striction on the one band, and satisfaction or retiu-u for the
profit taken on tlie other, to make the custom reason-
able (//).
A custom of mining, subject to payment of toll, pre- Customs of
vails in the county of Cornwall, which is kno-«Ti as tin °^'^°o'
bounding. The custom is that any tinner, i. e., any
person employing himself in tin mining, may acquire to
himself the right of mining for tin in waste or uninclosed
land, by marldiig out boundaries for his working, and
obtaining jDossession from the Stannary Com-t. He is
then entitled to work the mine, rendering toll tin, or a
certain poi-tion of the produce, to the owoier of the soil.
He is at the same time bound to work the mine, and
cannot preserve or renew the right without w^orking (s).
Subject to the custom of bounding, "'• the o^vnership of a
tin mine in Cornwall is in the owner of the fi'eeliold of the
soil, rat tone soli, by the common law of England, ajiplicable
to it as to any other mineral district in any other pai-t of
England " (f/) . The working of mines subject to the
custom under the jurisdiction of the Stannary Coiu't is
now regulated by the Stannaries Acts, 1869, 32 & 33 Vict.
(if) Eacc V. Jl'ard, 4 E. & B. Lutw. 1517.
702 ; 24 L. J. Q. B. 153 ; Mmmutg {>/) 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,
{<!) 1 Wms. Saund. 34G a, McUor 1 Q. B. 782.
I
CHAP. IV. J.OCAL CUSTOMS.
067
certain season by the l)m'ges.ses {r) ; a right for the free-
men or the inliabitant.s of the borougli to cut turf and to
take gravel, clay, and other materials for their own use (*) ;
a right of several fishery to be enjoyed by tlie inhabitants
of the borougli (f).
Immemorial usage for the inhabitants of a town or parish, Customs
or otlier indeterminate persons, to take profits of land may charitable
also be supported in some cii'cumstanees as a charitable use "*^^-
or trust. Such persons, though they cannot, witliout in-
corporation, be made grantees of any legal estate or
interest, may be made the beneficial recipients ; and " a
gift subject to a condition or trust for the benefit of the
inhabitants of a parish or town, or of any particidar class
of such inliabitants, is a charitable trust" (ii). Thus, a
grant of laud " that as many of the inhabitants of a parish
as were able to buy three cows might feed them on the
land from May till August," was established as a charit-
able trust {r). An alleged grant of the CroTVTi to the
inhabitants of a parish, being' a Crown manor, that the
poor people inhabiting the parish might cut fuel for their
own use upon the wastes of the manor, was supported
upon demurrer, as impliedly incorporating the inhabitants
for the purpose of taking the grant of profit, but as trustees
of a charitable trust for the poor («•). Upon the same
principle it was held that a right given by an Inclosure
Act, for the occupiers for the time being of ancient
cottages in the inclosed district to cut turf for their own
use in certain waste land, was a charitable use ; in which
the owTiers of the cottages had no interest beyond that the
value of the occupation of their cottages might be thereby
(>•) 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 Kin<i v. Warkuorth, 1 M. & S. [ic) H'll'lintfalc v. Maitland, L. R.
473 ; The Queen v. Alnwick, 9 A. & 3 Eq. 103 ; 36 L. J. C. 64 ; Jes-sel,
E. 444. ^I. K.. Chilton v. London, L. R. 7
{t) Goodman v. Saltash, L. R. 7 C. D. 738. See lie Christchurch
Ap. Ca. 633. Inclosure Act, L. R. 35 C. D. 355 ;
[u) Selbornc. L. C, L. R. 7 Ap. 5G L. J. C. 674.
668
USES AKD PROFITS IN LAND OF ANOTIIKU.
Customs of
manors.
Customaiy
rights of
copyhold
tenants.
increased (u). And a gift to tlie copyliolders of a manor,
to take tlie wood grooving from time to time upon certain
land for the repair of sea walls witliin tlie manor, Avas lield
to be a gift for a charitable use {v) .
Tlie customs of manors b}^ which rights and profits are
claimed by tenants of the manor, freehold and copyhold,
OA^er lands of the ijianor are not open to the legal objec-
tions to customs, above stated, of being unreasonable as
dej)riYing the oAviier, or as claiming profits a prendre.
Customary rights are claimed by the tenants of a manor as
appurtenant to their tenements, and therefore as originally
derived from a grant of the lord. The custom of the
manor prescribes the appurtenant rights, and may annex
rights of common or any other profits which are within the
power of the lord to grant. — Copyhold tenants, whether in
fee or for life or for years, claim rights and profits over
land of the manor by custom ; as also they claim the cus-
tomary estate in their tenements, of which, except by
custom, they were at common law only tenants at will.
They cannot claim by prescription in their own right,
because they have no sufficient legal estate; and they
cannot prescribe in right of the lord as the freeholder,
because the lord cannot have common in his own soil.
Therefore they can claim by custom only ; and the custom
is good in law, though it be to take a profit in the soil of
another, because it annexes the profit to the tenement, and
not to the person of the copyholder (?r). Thus by special
custom copyhold tenants may claim to take profits from
the waste of the manor ; as common of pastm^e, estovers for
repairs or fuel, quarrying stone, digging sand and the
like {cc). By custom copyholders may be entitled to com-
mon, subject to a payment to the lord in money or in kind;
(m) In re Chrisichurch Inclosure
Act, L. R. 38 C. D. 520.
{v) Wilson V. Barnes, L. R. 38
C. D. 507.
(«■) See ante, p. 343 ; Foiston v.
Crachroode, 4 Co. 31 b ; Gatewarffs
case, 6 Co. 60 h ; per cur. Rogers v.
11 ronton, 10 Q. B. 61.
(.r) jli/te, p. 343.
CHAP. 1\ . ],()( Al. CI MOMS. 56(i
and the payment may Le a couditiou precedent or subse-
quent according to the custom (y). By custom copyholders
may liave the right to take coal and other minerals in the
■waste of the manor ; and a custom for the tenants to dig
coal, stated in the tei-ms of a customary of the manor to ho
j)roj)rii.s u.sis, was construed to mean for their own con-
sumption only, and to ho valid {z). The onus of pro^-ing
tlio special custom of a manor lies upon the tenant claiming
under it (a) .
Freehold tenants of a manor may claim by grant or Freehold
prescription according to the general rule ; but they may
also have rights and profits over other land of tiic manor
as appurtenant to their tenements by custom. If the usage
is clearly proved, the Court will presume grants in con-
formity with it, upon the general principle of referring
immemorial usage to a legal origin, if possible. " It would
not bo imreasonable to hold that the right had originated
in the grant to every freehold tenant of all the rights and
privileges which every other freehold tenant had. It may
be that the tenants had separate grants, and that a par-
ticular grant was free from some claim or demand on the
part of the lord from whieli others were not free ; but that
would not prevent their having certain privileges in com-
mon Avith others" (b). Thus, freehold tenants of a manor
may be entitled by custom to common appendant ; which
was appurtenant to their tenements by general custom or
common law before the Statute of Quia Emptorcs (c). So, a
custom for the occupiers of land in a i>arish 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. Glaf<Hc, {g) Ante, p. 5G0 ; Hardwicke,
L. R. 7 Ch. 456 ; L. R. 19 Eq. L. C, Dean of Elij v. Warren, 2
134- 44 L J. C. 129; Earl I)e la Atk. 190; Austin y. Am.]iurst,'L.'R.
Warr v. Miles, L. R. 17 C. D. 53.5 ; 7 C. D. 689 ; 47 L. J. C. 467.
50 L. .J. C. 754. See ante, p. 84. (A) ,Sewers Commiss. v. Glasse,
(/) Hatherky, L. C, lielts v. L. R. 7 Ch. 456 ; 41 L. J. C. 409.
Thompson, Ij. U. (j<Jh..T6d; Potter (i) Warrick v. Queen's College,
V. North, 1 Wins. Saund. 350; L. R. 6 Ch. 716; 40 L. J. C. 780.
Fisher v. Wren, 3 Mod. 250 ; ante, {J) See ante, p. 567.
p. 371.
INDEX.
Abanpontiext.
of easements, 30.5—309.
See Easement ; Lioni ; "Water ; Way.
Abatejient.
of nuisance to land, 13, 323.
of nuisance to easement, 322, 324.
of excess in use of easement, 323.
of nuisance to common, 3G'J.
of nuisance on highway, .543, 547, 548.
unnecessary damage in abating nuisance, 32.5.
Accident.
exception of, in covenant to repaii", 98.
escape of water by, 145.
trees severed bj--, 39.
fire caused by, 96.
ACCEETIONS.
to soil, property in, 108.
to banks of stream, 154.
to sea shore, 1G5.
AcainESCENCE.
in interruption of casement, 299.
in obstruction of easement, 319.
as answer to claim of injunction, 319.
Admiralty.
jurisdiction of, 159, IGl.
Agistment.
of cattle on common, 335.
distress of cattle agisted, 454.
Agreement.
for lease, tenancy under, 377.
Agricultural Customs, G8, 429, 552, 562.
aoricultur.il holdings.
fixtures and improvements of, 115.
distress for rent of, 427, 441, 452.
Air.
distinction of right to light, 218.
claim to access of, 201, 219.
pollution of, 220.
Animals.
distress of, for rent, 445, 449, 452, 454.
distress of, damage feasant, 3G8, 432, 448, 462.
escape of, 252, 2)7.
fi'fte >i(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 IIoldiii<fs Act, 18S3, 88. 1, 34
(teiiant'.s fi.xturcsl, 115.
H. 44 (limitation of distreMs), 427.
H. 45 (distre.s.s of machinery or stock hired), 452.
ss. 45, 40 (distros,s of cattle ajjisted), 451.
49 & 50 Vict. 0. 54 (extraortliuary tithe), 402.
50 & 51 Vict. 0. 1!) (feucing of quarries), 70, 2G0.
c. 43 (stannaries), 504.
51 & 52 Vict. c. 21, Distress Amendment Act, 1888, 8. 5 (appraise-
ment of distress), 441.
8. G (sale of distress), 441, 442.
s. 7 (certificated bailiffs), 434.
c. 41, Local Government Act, 1888, s. 3 (county
bridges), 535.
8. 1 1 (main roads), 525.
c. 43, County Courts Act, 1888, s. 50 (recovery of pos-
session from tenant), 479.
ss. 134, 135 (replevin), 468.
8. 147 (goods protected from execution), 448.
8. 160 (claim of I'cnt in execution), 455.
Stint.
of common, 334, 335. See CostaON.
Stoey.
of house as separate tenement, 252.
Stream.
natural and artificial, 226, 232.
below surface, 149.
change of course of, 154, 157.
See Water.
StrSSIDEXCE.
of land from draining, 143.
of building, 248.
StrPEEFLUous Laxd.
of railway company, 14, 66.
minerals under, 67.
adjoining highway, 490.
Support.
for surface by subjacent land, 55, 236.
presumed upon severance, 236.
grunt of, 237.
under grants and reservations of mineraLs, 238.
under mining leases, 240.
by minerals under railways, 241.
artificial substitute for, 242, 244.
by adjacent land, 243.
for buildings, 245.
by grant or prescription, 246, 247, 250.
for building by adjoining building, 249.
of upper by lower story, 252.
repair of servient building, 251.
limitation of action for disturbance of, 242, 244.
damage by disturbance of, 248, 251.
SUECnAROINO.
common, 368. See Comjion'.
Surface.
property in, 12.
severance of, from substratum, 51, 236.
598 INDEX.
SuBFACE — continued.
trespass to possession of, 332, 367.
See MiNEEAis.
SUEVETOE.
of liigliways, highway authority as, 539.
action for non-repair, 539.
summary remedies against, 541.
removal of nuisance by, 548.
Suspension.
of easement dimng ovraership, 311.
of rent during eviction, 410.
Telegraph Posts.
fixed on private land, 13, 107.
on highways, 496.
rating of, 107.
Tenant.
possessory rights of, in fee simple, 15.
in fee tail, 16, 17.
for life or years, 18.
equitable, possessory rights of, 26.
Hability of, for waste, 18, 19, 98.
right of, to materials for repair, 36, 95.
right of, to remove fixtui-es, 103, 112, 116.
duty of, as to boundaries of, 10.
holding over, remedies against, 429, 430.
Tenant at Will.
waste by, 25.
not liable for repairs, 37.
right of, to emblements, 47.
distress for rent of, 377.
removal of goods by, at end of tenancy, 117, 196.
Tenant FEOJt Yeae to Yeae.
right of, to emblements, 47.
underlease for years by, 377.
Tenant in Tail.
not impeachable for waste, 16, 17.
sale of tunber by, 16.
after possibility of issue extinct, 17.
of rent, 380, 388.
Tendee.
of rent before distress, 461.
before impounding, 461.
after impounding and before sale, 443, 462.
of damages, to distress damage feasant, 462.
Tenement.
meaning of term, 8, 9.
Tenure.
liability for repair by, 528, 532.
transfer of liability to parish, 530.
Teemini.
of private way, 208.
of public way, 493.
Teeeitoeial Watees, 160. See Sea.
TnoEouoHFAEE, 486. See Cxjl de sac ; Higitway.
Tidal Watees.
property in, 161, 175.
public navigation of, 156.
fisheries in, 178.
IKDEX, 599
Tidal Wateeb— continued.
non-tid;il waters, 102, 174, 180.
TmuEK.
rif,'ht of tenant to, 33, 31.
estates cultivated for, 33.
right of tenant to cut, for repairs, 30, 37.
property in, cut during tenancy, 23, 37.
cut in collusion with reversioner, 38.
severed by wind or accident, 40.
cut by order of court, 40.
application of proceeds of, 4 1 .
statutory powers to sell, 43.
application of proceeds under Settled Land Act, 43.
See Teees.
Time immemorial, 282, 552. See Pbesceiption.
Tin boundino, custom of, 72, 503.
TiTUE Rent Chaeoe, 398.
com average for, 399.
valuation and apportionment of, 399.
substitution of rent-charge for tithe, 400.
distress for, 400.
■writ of possession for, 400, 401.
personal liability for, 400, 404, 473.
extraonliuary, redemption of, 402.
freehold estate in, 402.
charged upon copyhold and customary laud, 403.
merger of, 403.
redemption of, 403.
grant or lease subject to, 403.
liability of tenant for, 404.
tenant quitting without paying, 405.
contribution to, from co-owners, 405.
assessment of, for rates and taxes, 405.
Title Deeds.
property in, 124.
box used for, 125.
larceny of, 125.
right of purchaser to, 125.
property in lease and counterpart, 120.
right of mortgagee to, r_'0.
custody of, by tenant for life, 127.
custody of, by cestui que trust, 127.
control of court over, lliS.
order to bring into court, 128.
concuiTcnt interests in, 128.
of land sold in lots, 128.
production of, 130.
privilege of mortgagee against production, 131.
right of mortgagor to inspection and copies, 131.
covenant to produce, 12G, 132
right to attested copies of, 132.
production under Conveyancing Act, 132.
property in, separate from land, 133.
deposit of, as security, 134.
lien of solicitor on, 125, 134.
adverse possession of, 135.
Toll.
thorough, 512
traverse, 513, 514.
600 INDEX.
Toll — co>i 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. Sec Txmbee ; Tkees ; Dead Wood.
Weeck. _
of the sea, prerogative right to, i2, ii2.
franchise of, 172.
receivers of, 172.
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ADVOCACY.— Harris' Hints on Advocacy.- Fourteenth
Edition. 1911. 7.-?. 6rf.
"Deserves to he carefully read by the youn? b.nrri«ter whose
career is yot before him." — Lnw Magazine.
AGRICULTURAL LAW.-Spencer's Agricultural Hold-
ingActs. Fifth Edition. WithNntos. 1911 t*. I'.U.V 8<
"A thoroughly prax-tical and useful treatise." — SafHtdatf
Heview.
ANNUAL COUNTY COURTS PRACTICE, 1917. {Searhf
read I/.) M.')^.
" It admirably fulfils the es.-jcntial requisite* of a praeticw
book." — Law Times.
ANNUAL PRACTICE, 1917. \'/. 1/ .^
".\ book which every practisinjf English lawyer must havg." —
Law Quarterly Revinc.
ANNUAL STATUTES, 1915. l».r
BANKING.— Hart's Law of Banking.— Thiixl Edition.
1914. 1/. 12s.
"The best all-round work on banking law which is in exist-
ence." — Financial News.
BANKRUPTCY.— Aggs' Handbook on Bankruptcy. 1915.
Net, 4s.
Lawrance's Deeds of Arrangement, ^vith Precedents.
Eighth Edition. By Sydxfa' E. William.s. 1914.
7s. %d.
" CVincise, practical, and reliable.'' — Zrrw Times.
Williams' Law and Practice in Bankruptcy.—
Eleventh Edition. By E. W. Hansell and M. E.
HAN.SELL. 1915. ^ 11. 10s.
" The leading te3#-book on bankruptcy.'" — Law Journal.
CARRIERS.— Disney's Law of Carriage by Railway.-
Fourth Edition. 1915. 7s. %d.
'' t'an be cordially recommended to the lawyer." — Law Times.
CHANCERY.—Daniell's Chancery Practice.— Eighth Edi-
tion. By Sydney PI William.s and F. Guthrie-Smith.
2 vols. 1914. 51. 6s.
Daniell's Chancery Forms and Precedents. — Sixth
Edition. By li. White, F. E. AV. Nichols and H. G.
Garrett. 1914. 21. 10s.
" The two volumes on Practice and the one volume of Forms
constitute together a most valuable work on the practice of the
Chancery Division.'' — Jjaiv QimrterUj Heviaio.
COMPANY LAW.— Palmer's Company Law. A Practical
Handbook for Lawyer.s and Business Men. Tenth Edi-
tion. 1916. 15s.
" Palmer's ' Company Law ' is one of the most useful and
convenient text-books on the practitioner's bookshelf." — Law
Times.
Palmer's Company Precedents.— Eleventh Edition.
Part L General Forms. 1912. 21.
Part II. Winding-up Forms and Practice. 1912.
II. 14s.
Part III. Debentures and Debenture Stock. 1912.
II. 6s.
'• I'almer's works on Company Law are all beyond criticism."
— Laiv Magazine.
COMPANY LAW— continued.
Palmer's Private Companies.- Twenty-ninth Edition.
1015. ^'et, Is.
Palmer's Shareholders', Directors', and Voluntary
Liquidators' Legal Companion. -Twenty-ninth Edi-
tion. 1915. Net, 23. dd.
CONSTITUTIONAL LAW. Ridges' Constitutional Law
of England.- Second Edition. 191.5. 1.')$.
'• It enables the student U) obtain a completer view of the whole
field than is obtainable from any othi^r lidnk with whinh wo arf
acquainted." — Law Notes.
CONTRACTS. Addison's Law of Contracts.— Eleventh
Edition. By W. E. Gordon and .T KnciriE. 1911.
21. 2s.
''Among all the works on (Contracts, there is none more useful
to the practitioner than Addison." — Law Times.
Leake's Principles of the Law of Contracts.— Sixth
Edition. By A. E. IUndall. 1911. lM2s.
'■'A full and reliable guide to the principles of the English Law
of Contract." — Law Journal.
Pollock's Principles of Contract. -Eighth Edition.
1911. \l. 8s.
"There is no book on the English Law of Contract which deals
so lucidly and yet so comprehensively as this." — Law Jourtial.
CONVEYANCING. Prideaux's Forms and Precedents
in Conveyancing. — Twenty-first Edition, ^y B. L.
Cherry and II. Bkddington. 2 vols. 1913. 4/. 4s.
" ' Prideaux " is the 'best work on Conveyancing." — Law
.Journal.
Wolstenholme's Conveyancing and Settled Land
Acts. — Tenth Edition. Bv B. L. ('iikki;y, A. E. Rus-
sell and C. V. R.\wi,ence. 19 L'-. IZ. 5s.
"The work is valuable not only as an ai. ui.n. r-iaii-iucnt of the
present law, but a,s the most reliable truidc on matters of detail
intended to bo covpro<l by the new loiri-jlatioii." — /.'/"' .Journal.
COPYHOLD ENFRANCHISEMENT. Lloyd's Practice
in Enfranchisements und^r the Copyhold Act, 1894.
1913. 5s.
"The book is well arranged and well written, and the subject
13 so clearly dealt with as to be easily understood." — Law Xotas.
CRIMINAL LAW. — Archbold on Indictments. — With
Forms. By H. D. Roome. 1916. 10s. 6d.
Russell's Treatise on Crimes and Misdemeanors. —
Seventh Edition. By W. F. Craies and L. W. Ker-
shaw. 3 vols. 1909. 4Z. 105.
%* May be had in 2 vols, bound in buckram, price
4:1. Us. 6d.
" Indispensable in every CJourt of criminal justice here and in
oui- colonies." — The Times.
DEATH DUTIES.— Webster-Brown's Finance Acts.—
Third Edition. 1915. 12s. 6d.
" Contains much practical advice which v?ill be of substantial
assistance to practitioners." — The Times.
DIARY.— The Lawyer's Companion and Diary, 1917.
Net, 3s. to 10s. ad.
DICTIONARY.— Wharton's Law Lexicon.— Twelfth Edi-
tion. By E. A. WuRTZBURG. 1916. 21. 2s.
"The most useful of legal works." — Law Journal.
The Pocket Law Lexicon. — Fourth Edition. 1905.
6s. ad.
" A wonderful little legal Dictionary." — Lavj Students' Journal.
DIGEST.— Mews' Quinquennia! Digest, 1911-1915. By
John Mews. 1916. 21. 10s.
DIVORCE.— Browne and Watts' Law and Practice in
Divorce and Matrimonial Causes. — Eighth Edition.
By J. H. Watts. 1913. 11. 8s.
"The practitioner's standard work on divorce practice." — Law
Quarterly Review.
EASEMENTS.— Goddard's Treatise on the Law of Ease-
ments.r— Seventh Edition. 1910. 11. 5s.
" Nowhere has the subject been treated so exhaustively." — Lav)
Times.
Innes' Digest of the Law of Easements.— Eighth Edi-
tion. 1911. 7s. ad.
" Tlie student will find in it everything that he wants, while the
practitioner will be glad to have so safe and comprehensive a
guide." — Law Journal.
EQUITY.— Seton's Forms of Judgments and Orders.
With Practical Notes. Seventh Edition. By A. R.
Ingpen, K.C, F. T. Bloxam and H. G. Garrett.
3 vols. 1912. - 6Z.
"A mo.st valuable and indispensable work." — Laio Journal.
Smith's Practical Exposition of the Principles of
Equity.— Fifth Edition. 1914. 21s.
"Useful to both practitioner and student alike." — Law Stu-
dents' Journal.
EVIDENCE. Tregarthen's Law of Hearsay Evidence. -
1915. . Net, 'J8.
" An olaboriito and detailed account of a very imperfectly
understood topic." — Laiv Quarterly Review.
EXECUTORS. -Ingpen's Treatise on the Law relating
to Executors and Administrators.— Socx>n<l Edition.
1914. Net, II. OS.
"The book may be rucominended, with confidence, as awurate,
practical, and learned." — Law Quarterly Revien-.
FORMS.— Bowstead's Collection of Forms and Prece-
dents other than Conveyancing, Company, f.ocal Govern-
ment and Practice Fonns. — 2 vols. 1914. Net, 21. 10s.
" An uidispensable adjunct to every practising lawyer's
library." — Law Journal.
Chitty's Forms of Civil Proceedings in the King's
Bench Division.— Fourteenth Edition. By T. W.
Chitty, E. H. Chapm.vn and P. Cl.-vrk. 1912. 2l2s.
"An indispensable adjunct to every working lawyer's library."
— Law Journal.
DanielTs Chancery Forms and Precedents. — Sixth
Edition. By R. White, F. E. W. Nichols and H. G.
Garrett. 1914. 11. 10*.
"The standard work on Chancery Procedure." — l^aw Quarterly
Review.
HIRE-PURCHASE SYSTEM.-Russell's Practical Manual
of Hire-Trade Law.— Fifth Edition. 1914. 7s. &d.
"The book is full of practical suggestions." — SolicUom'
Journal.
INSURANCE. Arnould on the Law of Marine Insurance
and Average. — Ninth Eldition. By E. L. de Haui
and R. I. Simey. 2 vols. 1914. il. 10s.
"Arnould'a ' Marine Insurance ' is recognised throughout the
British Empiio and the United States as a standard work of
almost judicial authority." — Law Journ-al.
Stone's Insurance and Workmen's Compensation
. Cases.— 2 voLs. 1914. Net, 21. 2s.
"A very valuable compendium of the case law of insurance." —
Solioifors' Journal.
INTERNATIONAL LAW. Cheng's Rules of Private
International Law Determining Capacity to Con-
tract. 191G. 7s. (id.
Wheaton's Elements of International Law.- Fifth
English Edition. By Coleman Phiilii'son, LL.D.
With an Introduction by the Right Hon. Sir Frederick
Pollock, Bart., D.C.L., LL.D. 1916. 1/. los.
" Wheaton stands too high for criticism." — Law Times.
LAND VALUES. Napier's New Land Taxes and their
Practical Application. — Second Edition. 1912. 186-.
'• Napier's explanatory summary of the new taxation and his
notos on tlie sections are admirable." — Law Quarterly Review.
LANDLORD AND TENANT.-Woodfall's Law of Land-
lord and Tenant. — Nineteenth Edition. By W. Haix-
BURY Aggs. 1912. IZ. 186-.
" Woodfall is really indispensable to the practising lawyer,
of whatever dcgi-ee he may be." — Law Journal.
LEADING CASES.—Caporn's Selected Cases on the Law
of Contracts.— Second Edition. 1914. . 155.
Petrides' Student's Cases, illustrative of all branches
of the Law. 1910. • 10s. Qd.
"The cases appear to be well chosen and correctly stated." —
Solicitors' Journal.
Randall's Selection of Leading Cases in Equity.—
1912. 95.
" One of the foremost, if not the best, of Equity case books." —
Lajv Students' Journal.
Shirley's Selection of Leading Cases in the Common
Law.— Ninth Edition. By R. Watson. 1913. I65.
" The selection is very large, though all are distinctly ' Leading
Cases,' and the notes are by no means the least meritorious part
of the work." — L^aiv J our mil.
LEGAL HISTORY.- Deans' Student's Legal History.-^
Third Edition. 1913. 75. Qd.
" There is no better short introduction to the study of the law."
—Law Notes.
LIBEL AND SLANDER.— Ball's Law of Libel as affecting
Newspapers and Journalists. — 1912. 65.
"A well-arranged and well-executed work." — Laiv Journal.
Odgers' Digest of the Law of Libel and Slander.-
Fifth Edition. 1911. 11. Us.
" Should be found on the shelves of every practitioner." — Xaw
Students' Journal.
LUNACY.— Heywood and Massey's Lunacy Practice.-
Fourth Edition. 1911. ll. IO5.
"A complete treatise on lunacy practice." — Solicitors' Journal.
MAGISTRATES' PRACTICE, 1916.— By G. M. Atoinson,
Stipendiary Magistrate for Leeds. 2O5.
MENTAL DEFICIENCY.— Davey's Law relating to the
Mentally Defective.— Second Edition. 1914. IO5.
"This admirably arranged and handy book." — Z«w Journal.
MORTGAGE. Coote's Treatise on the Law of Mort-
gages.- Eig-lifli IvIiliMri I'.v >\p,M.s I' WffMAMS.
2 vols. 1912. 3/. 3«.
"It is ossontially .i puui uinnir > imnK, aim «•■ j.ioiifiiinco it
*ono of tlici host.' "-—Law yofps.
NATIONAL INSURANCE. Watts on National Insur-
ance.- I'Jin. l2s.Cjd.
" Mr. Watts Ims studied this oumplicated .Vet with (^reat caro,
and producHKl a very elaborate and romplcto (xlition." — Kiv
Mdf/ozine.
NIGERIA. Titles to Land in Nigeria. i'ii<; A ' ;m
NOTARY. Brooke on the Office and Practice of a
Notary.-- Sovontli Edition. r.\ I ('nANsToix. 1913.
11. 5s.
" The book is an emin<'ntly priiitieul one, and cnntain-s u very
complete colloftion of notarial prwiedcnts." — Lntr Journal.
PARTNERSHIP. Pollock's Digest of the Law of
Partnership. Tenth TMitiMii. 191;k 10.?.
PLEADING. BuMen and Leake's Precedents of Plead-
ings. — Seventh Edition. By W. Bi..4KK Odokrs, K.C ,
and W.^T.TEK Bi.akr.Odgrrs. 1915. 2/. 2.s\
"The standard work on modern pifadinir.'" I.nir Jnttrnnl.
Eustace's Practical Hints on PIeading.--1907. 5*.
"Especially useful to youngs solicitors and students of both
branches of tlic loe;al profession." — T^w Times,
Odgers' Principles of Pleading and Practice.— Seventh
Edition. 1912. 12s. 6rf.
"The safest possible guide in all matt-ers affeotinpr pleading
and practice.'' — Lav Jourtwl.
POOR LAW SETTLEMENT. Davey's Poor Law Settle-
ment and Removal. -Second Edition. 1913. I05.
'■ Tlic law of the subject is most industriously and lucidly set
out.'' — The Spectator.
POWERS. Farwell's Concise Treatise on Powers.—
Third Edition. By C. .1 W . Farwki.t. and F. K.
Arciikk. 1916. . 1/. lo.«.
PRIZE CASES. Cases Decided in the Prize Court and
on Appeal to the Privy Council.
E;irh Part Net 7s: ed.
RATES AND RATING. Davey's Law of Rating.— 1913.
1/. lOs.
" A complete and exhaustive treatise on the subject, beyond
doubt the most comprehensive which has yet appeanxl.'' — Lnw
Journal.
RECEIVERS AND MANAGERS. Riviere's Law relating
to Receivers and Managers.— 1912. 9s.
"A reliable guide to an intricate subject, and should be of erect
service to practitioners." — L<i'W Journal,
TORTS.— Addison's Law of Torts.— Eighth Edition. By
W. E. Gordon and W. H. Griffith. 1906. 11. 18,s.
"Essentially the practitioner's text-book." — Law Journal.
Pollock's Law of Torts.— Tenth Edition. 1916. 26s.
" Concise, logically arranged, and accurate." — Law 'fimes.
%* An Analysis of the above foi" Students.— Second
Edition. By J. K. Mannooch. 1916. 5.5.
TRADE UNIONS.— Greenwood's Law relating to Trade
Unions.— 1911. 10-9.
"An admirably clear exposition of the law."— i^w Quarterly
Jtevww.
A Supplement to above, inehiding the Trade Union Act,
1913. 19ia. Net, 3s. Gd.
The two works together, net, 10,5.
TRUSTS AND TRUSTEES.— Godefroi on the Law of
Trusts and Trustees.— Fourth Edition. By Sydney
E. Williams. 1915. 1^- 10s.
"An eminently practical and useful work." — Lav: Time-i.
WAR^Chartres' Munitions of War Acts.— An Analysis,
with Not&s. 1916. Net, 5s.
Higgins' Armed Merchant Ships. 1914. Net, Is. 6d.
Page's War and Alien Enemies.— The Law affecting
their Personal and Trading Eights; and herein of Con-
traband of War and the Capture of Prizes at Sea.
Second Edition. 1915. Net, 6s. 6d.
Stringer's Practice of the High Court under the Courts
(Emergency Powers) Act, 1914, &e. 1915. Net,Ss.6d.
WILLS.— Theobald's Concise Treatise on the Law of
Wills.— Seventh Edition. 1908. H. 15s.
" Indispensable to tlie conveyancing practitionel'." — Law Times.
WORKMEN'S COMPENSATION. Knowles' Law relat-
ing to Compensation for Injuries to Workmen.—
Third Edition. 1912. 15s.
" Its merits entitle it to rank with the best of the treatises on
the subject." — X«w QnartPrly Beview.
Workmen's Compensation Reports.— A complete Series
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