In the recent case of Bradburn v. Morris (3 Ch. Div. 812), it was held that user for twenty years of a way in a field, used only for agricultural purposes, does not give a right of way for mineral purposes.

There are a few other points in connection with private rights of way which may be briefly noticed. Under a right of way over a close to a particular place, a man cannot justify going beyond that place. Nor is it any answer to an action in trespass that the defendant has a right of way over part of the plaintiff's land, and that he had gone upon the adjoining land because the way was impassable from being overflowed by a river; for he who has the use of a thing ought to repair it; and for anything that appeared the overflowing might have happened by the neglect of the defendant, who, it did not appear, had no other road.* Unity of possession operates to extinguish a right of way by prescription; in other words, if the party entitled to a right of way becomes the owner of the land over which it passes, the right of way is extinguished if the party has the same extent of interest in the land and in the way. But if the one be held for an estate different in extent of duration from the other, the right is only suspended during the union of the two interests. Even where a right of way is extinguished by unity of possession, it will in some cases revive upon a severance of that unity, as by partition among the parceners, &c. The particular rights of the grantor of a private way continue to exist, although the owner of the land may have dedicated it to the public as a highway.

* Taylor v. Whitehead, 2 Doug. 745.

By the general Inclosure Act, all roads, public and private, within the district, not set out by the commissioners, are declared to be extinguished.

The grantee cannot throw the burden of repairing the way upon the grantor, unless by the terms of the grant, as proved by the deed or by usage, the grantor has engaged to enable the grantee to use the way.

If the occupier of the land over which a private way passes, or any other person, obstruct the way, the party entitled to the way may remove the obstruction, and he may also bring an action on the case, or in some cases, an action of covenant against the obstructor. On the other hand, if the occupier of the land resisting the claim of a right of way bring an action of trespass against the person exercising the alleged right, the defendant may plead in justification a title founded on prescription, grant, reservation, or statute.

If a person agree for a lease of a way-leave, at a yearly rent, and if, afterwards, without any fault either of the proposed lessor or lessee, events happen which would render the proposed way-leave useless, a specific performance will not be decreed.*

These are the leading rules which settle the rights connected with ways on the surface. The words of the Act for shortening the time of prescription, as it affects rights of way, will be found under that head. A form of the lease of a way-leave is also inserted in the Appendix. As to way-leaves underground, they are generally made the subject of special stipulation, and in consequence, it is presumed, of this practice, there has been comparatively little litigation on the

* White's case, 3 Swanst. 108.

subject, and few leading cases can be brought forward upon any peculiar points arising out of disputes under this head. A recent case upon this subject is Phillips v. Homfray and Fothergill v. Phillips (L. R. 6 Ch. 770). In that case the owners of a colliery entered into a contract with an adjoining landowner for the purchase of his estate, without disclosing the fact of which he was ignorant that they had without authority gotten a considerable quantity of coal from under it. The Court of Appeal declined to enforce the contract at the suit of the purchasers, though the sale was not shown to be of an undervalue, and held in a suit by the landowner that the landowner was entitled to the value of the coals gotten under his land, with an allowance for raising, but none for getting, and to compensation in the way of way-leave and royalty for all minerals. gotten by the defendants from their own mines and carried under his land.

CHAPTER VII.

RIGHTS CONNECTED WITH THE FLOW OF WATER.

By the law of England water flowing in a stream is publici juris, that is to say, a thing the property in which belongs to no individual, but the use of it to all. An individual can only acquire a right to it, by applying so much of it as he requires for a beneficial purpose, leaving the rest to others, who, if they acquire a right to it by subsequent appropriation, cannot lawfully be disturbed in the enjoyment of it. Primá facie the proprietor of each bank is the proprietor of half the land covered by the stream, but there is no property in the water itself. Every proprietor has an equal right to use the water. Consequently, none can have the right of using the water to the prejudice of another, nor can he lawfully diminish the quantity which would otherwise descend to those below, nor throw back the water upon those above, unless he has a grant or licence from the persons affected by such acts, or by proving an uninterrupted enjoyment of such right for twenty years. This period of twenty years has been adopted in the statute 2 & 3 Will. IV. c. lxxi., for shortening the time

of prescription in certain cases. The second section enacts that "no claim to any watercourse, or the use of any water, where such shall have been actually enjoyed by any person claiming right thereto without interruption for the full period of twenty years, shall be defeated by showing only that it was at first enjoyed at any time prior to such period; but nevertheless such claim may be defeated in any other way by which the same is now liable to be defeated; and when such shall have been enjoyed for the full period of forty years, the right shall be deemed absolute and indefeasible, unless it shall appear that the same was enjoyed by some consent or agreement expressly given or made for that purpose by deed or writing." For the other enactments or provisoes of this statute the reader is referred to the chapter on Prescription.

After the erection of works, and the appropriation by the owner of the land of the water flowing over it, if a proprietor of other land afterwards takes what remains of the water before unappropriated, the owner above, whatever he might have done before, cannot afterwards appropriate more to himself than he had done.*

The exclusive right to a flow of water once acquired can only pass by grant as an incorporeal hereditament. A licence, verbal or otherwise, to use or take the water at any place, may be revoked, even without an express power of revocation being reserved, unless works have been constructed and expenses incurred on the faith of it.+