CHAPTER IV.

PRIVATE RIGHTS: RIGHTS IN, TO AND OVER THE PROPERTY OF ANOTHER.

WE have described in barest outline the full rights enjoyed by the owner of property. But he is not bound to retain all these rights in his possession. He may split up his dominion, and give or sell some of the fragments to others, while reserving the rest to himself. He still remains the legal owner of the whole, but others have acquired rights over a portion of his property, so that the exclusive enjoyment of that portion is no longer his.

In this way one man becomes the owner of rights in, to or over the property of another. These rights are very various. Take a common instance of what is known as a "trust." When a marriage is about to take place, the father of the bride often transfers stocks and shares to trustees upon trust to pay the income to the bride for her life, then to the husband for the rest of his life, and then to divide the capital among the children of the marriage. The legal ownership of the property is thus vested in the trustees; the stocks and shares stand in their names, and they receive the dividends. The whole trouble of management falls upon them; but they may not make the least profit for themselves out of the trust. Every penny which they receive must be paid over to the successive beneficiaries.

So when a man dies, his executors stand before the world as the owners of his estate. They are clothed with practically every power which an owner usually possesses. But they may not exercise these powers for their own benefit. They must administer the estate; and unless there is an express provision in the will, they receive no recompense for their trouble. They are the legal owners of the testator's estate,

but they may neither use nor enjoy it. They must account to the legatees for all money which passes through their hands.

We turn next to leaseholds. A leasehold is a possessory interest in land. It arises out of a contract, usually reduced into a written lease or agreement, by which the landlord agrees to let certain premises to the tenant for a fixed period (called the term), and the tenant agrees in return to pay him rent and to perform certain covenants in relation to the property. But it is more than a contract; for the tenant has the right at once to enter on the premises, and as soon as he does so he has a real right over the property of his landlord—a right, namely, to remain in exclusive possession of the premises till the end of the term, so long as he pays his rent and keeps the covenants in his lease. And the landlord in his turn has a right, though not a possessory one, over the things of the tenant. If a tenant fails to pay his rent at the proper time, his landlord has a right to distrain practically all the goods of the tenant, and in many cases also the goods of a third person if any such be then upon the premises, and after certain formalities he may proceed to sell them. This right to seize the goods is by law inherent in the relation of landlord and tenant.

There are also important rights over the land of another, which are known as easements. An easement is a right which the owner of one piece of land has over an adjoining piece of land-such as a right to walk over it, to pour water on to it, or to carry a pipe through it for the conveyance of gas or water. But the right is not vested in the owner of the first piece of land personally, but only in him as the owner of that land and so long as he owns it. If he sells that piece of land, the right will pass along with it to the purchaser and may no longer be exercised by the former owner. It is "appurtenant to the land and "runs with it." The land to which the right is thus attached is called the "dominant tenement;" the land over which the easement is exercised is called the "servient tenement." Should these two tenements subsequently become the property of the same owner, the easement disappears.

An easement may be acquired by grant or prescription. A grant is the express conveyance by a deed under seal of land or rights over land from one man to another. If an owner in fee simple expressly grants a right over his own land to the owner of another piece of land, the latter owner at once acquires an easement. But very often, although the parties obviously intended to create an easement, they omit any express mention of it in the deed. The Court will then sometimes read into the deed a grant of such an easement; this is called an implied grant. Thus, if an owner of land grants to another a part of it so situated that the grantee can only obtain access to it by passing over the part retained by the grantor, the Court will conclude that the grantee was intended so to pass and will imply a grant of "a way of necessity."

Again, an easement may be acquired by prescription. If the occupiers for the time being of the dominant tenement have exercised the right for a number of years openly, peaceably, uninterruptedly, and without any express permission. from the owner of the servient tenement, the Court will deem that a user as of right continued for so long a period must have had a lawful origin, and will permit the present occupiers of the dominant tenement to continue to enjoy it.' Lord Ellenborough once said that he would, if necessary, presume a hundred lost grants whenever people have for a long period of time been doing something which they would have no right to do, unless they had a deed of grant.2

A private right of way is an easement. We have already defined a public right of way. There, no doubt, the soil belongs to one man, though the public have rights of various kinds over a definite strip of it which is called a highway. But a public right of way is not an easement, for there is no dominant tenement, and the public are incapable of taking a grant of a right from any one. Any member of the public is entitled to use a highway, although neither he nor any of his ancestors have ever yet set foot on the spot or owned any land in the neighbourhood. A private right of way is wholly distinct from this right of the public. It exists only in the owner of the dominant tenement; it can be exercised only by the occupier

572.

1 This mode of acquiring an easement is largely controlled by the Prescription Act, 1832 (2 & 3 Will. IV. č. 71); see Disturbance of Easements, &c., post, pp. 570— ? And see L. & N. W. Ry. Co. v. Fobbing Level Commissioners (1896), 66 L. J. Q. B. 127. See ante, pp. 8, 9, and post, p. 247.

PRIVATE RIGHTS.

of the dominant tenement and his family, and they will cease to enjoy the right the moment they cease to occupy that tenement.

And there is another distinction between a public and a private right of way. The owner of land adjoining a public highway is entitled to erect gates or open doors so as to give him access to the highway at any point he pleases, whether the soil of the highway be his or not,1 for he is one of the public. The owner of land adjoining a private way may not do this, unless he happens to be the owner of the dominant tenement.

There is another class of rights over land which is distinct from, though closely analogous to, an easement. A profit à prendre is a right which a man may have, not only to enter on the land of another, but also to take something off or out of the land and carry it away for his own benefit. It is this liberty to take a profit out of the land which is the origin of the quaint Norman-French title still applied to this class of rights; it is also the incident which distinguishes a profit à prendre from an easement. In the case of an easement those who exercise the right may never take anything out of, or carry anything away from, the servient tenement, except some running water, which is no man's property. But persons who enjoy various rights of profits à prendre may, in some cases, catch fish, cut turves or faggots, or dig up gravel, and carry away what they thus obtain; in other cases they may send in horses or cattle to graze, or pigs to pick up acorns, on the adjoining land.

As a rule a right of profit à prendre is vested, as an easement always is, in the owner of some dominant tenement. But it is sometimes expressly granted to, or acquired by, a person or corporation who owns no land in the neighbourhood; it is then called a profit à prendre in gross. Like an easement, a profit à prendre may be acquired either by express grant, or by implied grant, or by prescription.

An easement and a profit à prendre must both be distinguished from a personal licence. A licence is merely a permission given by one man to another to do some act which, but for such permission, it would be unlawful for him to do. Thus, if A. gives to B. a verbal permission to

1 Marshall v. Ulleswater Steam Navigation Co. (1871), L. R. 7 Q. B. 166 ;

Ramuz v. Southend Local Board (1892), 67 L. T. 169.

2 Race v. Ward (1855), 24 L. J. Q. B. 153.

walk across his land, this is not the grant of an easement, but a mere licence which renders B.'s action in walking across A.'s land lawful, and not, as it would otherwise have been, a trespass. A licence is a personal right, and cannot be sold or transferred to any one else; if not previously withdrawn, it dies with the man to whom it is given. Moreover, unlike an easement or a profit à prendre, it can as a rule be revoked by the licensor, unless the licensee has paid money for it.1

So far we have dealt mainly with rights over land. But instances occur every day in which one man has rights over things which belong to another. Take, for instance, a bail

ment.

A bailment arises where the owner of goods voluntarily hands over possession of them to another person, not his servant, upon a trust or under a contract that the other shall do something with or to the goods, and then return them to the owner or deliver them to his order. Two ingredients are essential to a bailment-a delivery, and a trust or contract. The person who so delivers the goods is called the "bailor." The person who accepts such delivery under such trust or contract is called the "bailee." The goods remain the property of the bailor, but the bailee has the possession of them, which carries with it the right to recover them from any wrong-doer who dispossesses him of them during the continuance of the bailment. The rights thus conferred on the bailee carry with them a corresponding duty: viz., he must with due diligence execute the trust or perform the contract, which is the consideration for the delivery of the goods to him. The degree of care which the law exacts from him will vary with many circumstances; if, for instance, he is paid for his services, he must take greater care than would be required of a gratuitous bailee.2

The most common instance of a bailment is the delivery of goods to a railway company or other carrier, who expressly or impliedly undertakes to deliver them safely and securely at the destination named, and who is entitled to receive from the bailor payment for the carriage.

1 As to when a licence cannot be revoked, see post, pp. 578-580.

2 See Bailments, post, pp. 635-640.