6 Mod. 20. Common may be revived. Ante. s. 84. Sandys v. Oliff, Grymes v. Pea cock, Bulst. 17. Clements v. 1 Taunt. 205. Sawyer's case, Worledge v. him, the Court decreed that he should hold and enjoy the same right of common which belonged to the copyhold. 94. It is said by Lord Holt, that if a copyholder of one manor has common in the wastes of another manor, an enfranchisement of the copyhold does not extinguish the common; for it is a derivative right which the copyholder has. So, if it be taken as appendant to land, enfranchisement will not extinguish it. 95. A right of common, which has been extinguished by unity of possession, may be revived by a new grant. 96. Thus, in the case of Bradshaw v. Eyr, the Court held that the words of the lease," all commons, profits, &c. occupied or used with the said messuage, &c." operated as a grant of a new right of common. For although it was not common in the purchaser's hands, yet it was quasi common, used therewith; and though not the same common as was used before, yet it was the like common. 97. Where common appurtenant to a messuage was extinguished by unity of possession in the lord's hands, it was held, that a grant by the lord of the messuage, with all common appurtenant, did not pass the common extinct. But that a grant of all commons usually occupied with the said messuage would have passed such common as the first was. 98. Where a person had common in gross, derived from the abbot of W., which was destroyed by unity of possession in the crown, with the lands in which the common was; and the crown granted the lands to which the common belonged, with the words, Tot, tanta, talia, libertates, privilegia, et franchis, &c. quot, &c. aliquis, &c. Resolved, that being common in gross, it was not revived; for in that case every person who had any part of those lands should have as great common as the abbot had; and so the common would be infinitely surcharged. But if such common had been appendant or appurtenant, it would have been revived; for no person would have common for more cattle than were proportionable to his land. A RIGHT of way is the privilege which an individual, or a par- Nature of. ticular description of persons, such as the inhabitants of the village of A., or the owners or occupiers of the farm of B., may have, of going over another person's grounds. It is an incorporeal hereditament of a real nature; entirely different from the king's highway, which leads from town to town; and also from the common ways, which lead from a village into the fields. 2. There are three kinds of ways, First, a footway, which is 1 Inst. 56 a. called iter, quod est, jus eundi vel ambulandi hominis. The second is a footway and horseway, which is called actus ab agendo. This is vulgarly called a pack and primeway, because it is both a footway, and a pack or driftway also. The third is via or aditus, which contains the other two, and also a cartway; for this is jus eundi, vehendi, et vehiculum et jumentum ducendi. This is twofold; namely, regia via, the king's highway for all men; and communis strata, belonging to a city or town, or between neighbours. 1 Term R. 570. 3. Notwithstanding these distinctions, it seems that any of Vent. 189. the ways here described which is common to all the king's subjects, whether it lead directly to a market town, or only from town to town, may properly be called a highway; and that any such cartway may also be called the king's highway. But a way to a parish church, or to the common fields of a town, or to a village, which terminates there, may be called a private way; because it does not belong to all the king's subjects, but only to How claimed. 933. the inhabitants of a particular parish, village, or house. And Lord Hale says, that whether it be a highway or not, depends much upon reputation. 4. A right of way over another person's ground may be claimed 9 Barn. & Cres. in three ways. 1. By prescription and immemorial usage: (a) as, where the inhabitants of a certain vill have, time out of mind, traversed a particular close or field, to get to their parish church. Palm. Rep.387. So a person may prescribe for a way from his house, through a certain close, to the church; though he himself has lands next adjoining to his house, through which of necessity he must first pass. For the general prescription shall be applied only to the lands of others. Jenk. Cent. 3 Ca. 94. 6 Mod. R. 3. 7 Barn. & Cress. 257. Senhouse v. 1 Term R. 560. 5. It was held in 18 Edw. 4. that a person may have a right of way to go through a church-yard. And it was said in that case, that the church-yard of the Charter House was a common way for the inhabitants of London to St. John's. 6. A person cannot claim a way over another's ground, from one part thereof to another; but he may claim a way over another's ground, from one part of his own ground to another. 7. 2. By grant; as where the owner of a piece of land grants to another the liberty of passing over his lands in a particular direction; the grantee thereby acquires a right of way over those lands. 8. It has been determined in a modern case, that where a person granted to another " a free and convenient way, as well a horseway, as a footway, as also for carts, waggons, wains, and other carriages whatsoever, in, through, over and along a certain slip of land, &c., to carry stone, timber, coal, or other things whatsoever," the grantee had a right to lay a framed waggon way along the slip of land, for the purpose of carrying coals; it being the most convenient way for transporting them but that the grantee was not justified in making transverse roads across the slip of land. (a) [By stat. 2 & 3 Will. 4. c. 71. s. 2. It is enacted, that rights of way and other easements after uninterrupted enjoyment for twenty years, shall not be defeated by shewing only that such right was first enjoyed at any time previous to such period of twenty years; but nevertheless, such claim may be defeated in any other way by which the same was at the time of the passing of the act liable to be defeated and that where such enjoyment shall have been for forty years, the right thereto shall be indefeasible, unless it shall appear that the same was enjoyed by consent or agreement, expressed by deed or writing.] Wilson, 3 East. R. 294. Livett v. Wil 9. It was held in another modern case, that an uninter- Campbell . rupted enjoyment of a right of way for twenty years, and no evidence that it had been used by leave or favour, or under a mistake, was sufficient to leave to a jury to presume a grant. 10. 3. A person may claim a right of way over another's land from necessity. As if A. grants a piece of land to B., which is surrounded by land belonging to A.; a right of way over A.'s land passes of necessity to B., for otherwise he could not derive any benefit from his acquisition. And the feoffor shall assign the way where he can best spare it. It is the same though the close aliened be not totally inclosed by the land of the grantor, but partly by the land of a stranger; for the grantee cannot go over the stranger's land. son, 3 Bing.115. 2 Roll. Ab. 60. 3 Taunt. 24. 5 ib. 311. Cro. Jac. 170. 11. In trespass upon demurrer the case was, a person sold Clark v. Cogge, lands; afterwards the vendee by reason thereof claimed a way over the plaintiff's lands, there being no other convenient way adjoining; and whether this was a lawful claim was the question. It was resolved, without argument, that the way remained; and that he might well justify the using thereof, because it was a thing of necessity; for otherwise he could not have any profit of his land. 12. It was held in the same case, that if a man hath four closes lying together, and sells three of them, reserving the middle close, and has no way thereto but through one of those which he sold, although he did not reserve any right of way, yet he shall have it, as reserved to him by law. 13. In a modern case, it was determined by the Court of King's Bench, that where a person conveys land, merely as a trustee, to another, to which there is no access but over the trustee's land, a right of way passes of necessity, as incident to the grant. And Lord Kenyon observed, it was impossible to distinguish this from the general case, where a man grants a close surrounded by his own land, in which case the grantee has a way to it, of necessity, over the land of the grantor; merely on the ground that the plaintiff conveyed to the defendant in the character of a trustee; for it could not be intended that he meant to make a void grant. There being no other way to the defendant's close, but over the land of one of the persons who granted to him, he was entitled to such a way of necessity, upon the authority of Vide 1 Saund. Howton v. Frearson, 8 Term R. 50. Reignolds v. willes R. 282. Edwards, How to be used. Howell v. King, 1 Mod. 190. Lawton v. Henn's case, all the cases, and the principle that every deed must be taken most strongly against the grantor. 14. A right of way can only be used according to the grant, or the occasion from which it arises; and must not exceed it. Therefore, if a person has a right of way over another's close to a particular place, he cannot justify going beyond that place. 15. In trespass for driving cattle over the plaintiff's ground, the case was,-A. had a way over B.'s ground to Blackacre, and drove his beasts over B.'s ground to Blackacre, then to another place beyond Blackacre. Upon demurrer, the question was, whether this was lawful or not. It was urged, that when the defendant's beasts were at Blackacre, he might drive them whither he would. On the other side, it was said, that by this means the defendant might purchase one hundred or one-thousand acres adjoining to Blackacre, to which he prescribed to have a way, and by that means the plaintiff would lose the benefit of his land that a prescription presupposed a grant, and ought to be continued according to the intent of its original creation; to which the Court agreed; and judgment was given for the plaintiff. 16. The same point appears to have been determined in a subsequent case, in which Powell, Justice, observed, that the difference was, where the person having a right of way to a particular place, goes farther, to a mill, or a bridge, there it may be good but when he goes to his own close, it is not good. The editor of the fourth edition of Lord Raymond's Reports, in a note upon this passage, expresses a doubt, whether this distinction be well founded; and says, "The true point to be considered upon such a case should seem to be, quo animo the party went to the close; whether really and bonâ fide to do business there, or merely in his way to some distant place." 17. Where a person has a right of way over another's land, and the road is impassable, he may go over any other part of the land. 18. In an action of trespass for destroying his close, the defendant pleaded, that time out of mind there was a common footpath through the close, &c. The plaintiff replied, that the defendant went in other places, out of the way. The defendant rejoined, that the footpath was adeo luteosa et funderosa, by de |
