right of way, the plaintiff ought to show in his statement of claim whether he claims the right by prescription or by grant. He ought also to allege with reasonable certainty the termini of the way and its course (h). Chap. VI. A right of way may arise either by grant, express or implied, Modes of from the owner of the freehold or by prescription (i). acquiring the right. If a right of way is appurtenant or annexed to land, it passes Grant. by a grant of the land to which it is appurtenant without any special words of conveyance (k). But if a way is not appurtenant to land, it will not pass by general words of conveyance, unless there be something in the deed or in the general circumstances of the case to show that the parties intended the words in a way other than their strict sense (1), or unless the right is necessary for the beneficial enjoyment of the premises for the purposes for which, according to the obvious. intention of the parties, the grant was made (m). General words such as "appurtenants," "appertaining to," "belonging to," &c., are not sufficient to pass the right (n); nor would a mere reference in the deed to an intended way be sufficient to pass the way (0); but a conveyance of lands with " ways heretofore," or "therewith used or enjoyed," is as a general rule sufficient (p). Where there are two adjoining closes and there exists over one of them a formed and constructed road which is in fact used for the purpose of the other, and that (h) Harris v. Jenkins, 22 C. D. 481; and see Spedding v. Fitzpatrick, 38 C. D. 410 (C. A.). (i) Dodd v. Burchell, 1 H. & C. 122; Krehl v. Burrell, 7 C. D. 551. (k) Skull v. Glenister, 16 C. B. N. S. 81; see Watts v. Kelson, 6 Ch. 173; Thorpe v. Brumfitt, 8 Ch. 650; Kay v. Oxley, L. R. 10 Q. B. 365; and see C. A. 1881, s. 6. (1) James v. Plant, 4 A. & E. 761; Worthington v. Gimson, 2 El. & El. 618; Kay v. Oxley, L. R. 10 Q. B. 361; Brett v. Clowser, 5 C. P. D. 382. (m) Kavanagh v. Coal Mining Co., 14 Ir. C. L. 82; Thompson v. (n) Plant v. James, 5 B. & A. (o) Harding v. Wilson, 2 B. & C. 96; Bolton v. Bolton, 11 C. D. 971. (p) Plant v. James, 5 B. & A. 794; Worthington v. Gimson, 2 El. & El. 624; Kay v. Oxley, L. R. 10 Q. B. 367. Chap. VI. other is granted with the general words "together with all ways now used or enjoyed therewith," a right of way over the formed road will pass to the grantee even though that road had been constructed during the unity of possession of the two closes and had not existed previously (q). But if the way is not a defined road but is merely a way which has been used by the owner of two closes for his own convenience during unity of possession, it will not upon a severance taking place pass even under the words "used or enjoyed "(r). The mere fact however that the way did not exist as a right of way before unity of possession, will not prevent the Court from holding that a new right of way as appurtenant to the use of the premises is created (s). Though as a general rule a right of way will not pass under the word "appurtenances" the case is different, if, under the circumstances of the case, the word "appurtenances" admits of a secondary meaning and is equivalent to rights "usually enjoyed" with the land conveyed (t). It is upon the principle that upon the grant of a thing. everything is impliedly granted which is necessary to enable the grantee to enjoy the subject of a grant, that a way of necessity passes with land when granted (u). The same principle which applies to the use of conveyances also applies to cases where a severance of a heritage takes place by will (x). One devisee, if necessary, may pass over land devised to another, in order to gain access to land which has been devised to himself (y). (q) Barkshire v. Grubb, 18 C. D. 620; Bayley v. Great Western Railway Co., 26 C. D. 457; Nicholls v. N., W. N. (1900) p. 4, 81 L. T. 811. (r) Langley v. Hammond, L. R. 3 Exch. 161; Watts v. Kelson, 6 Ch. 173; Kay v. Oxley, L. R. 10 Q. B. 361; Brett v. Clowser, 5 C. P. D. 382; Re Peck and the School Board for London, (1893) 2 Ch. 315. (8) Bayley v. Great Western Railway Co., 26 C. D. 455. See Brown v. Alabaster, 37 C. D. 490; Nicholls v. N., W. N. (1900) p. 4, 81 L. T. 811. (t) Thomas v. Owen, 20 Q. B. D. 225; Nicholls v. N., W. N. (1900) p. 4, 81 L. T. 811. (u) Staple v. Heydon, 6 Mod. 1; Pearson v. Spencer, 1 B. & S. 584. (x) Pheysey v. Vicary, 16 M. & W. 484; Polden v. Bastard, L. R. 1 Q. B. 156; Phillips v. Low, (1892) 1 Ch. 47. (y) Pearson v. Spencer, 1 B. & S. 584, 3 B. & S. 760. Section 6 of the Conveyancing Act, 1881, under which general words are implied in conveyances of land, applies only to conveyances and does not affect contracts (z). Accordingly, under a contract for sale of land "with the appurtenances,' the purchaser is only entitled to have such general words inserted in the conveyance as he would have been entitled to before the Conveyancing Act, 1881, came into operation; and if the general words implied by sect. 6 are more extensive than the contract the vendor is entitled to have them limited accordingly (z). Chap. VI. If a right of way be acquired by grant, the extent of the Limits of right when acquired easement must be determined by the words of the grant (a). by grant. In construing the terms of a grant and its meaning with respect to the nature and extent of the easements that pass with it, reference is to be had to the existing state of things at the time of the grant (b), and what must be imputed to the parties as their intention at the time of the deed will be regarded (c). As a general rule, the grant of a right of way imports the grant of such a way as is reasonably necessary for the purposes for which it was granted. The grantee may use the way in such a manner as is necessary for its most commodious enjoyment (d). Thus under the grant of a way with liberty to make and lay causeways, and to use and enjoy the same with carts, waggons, and other carriages, and to carry coals, it was held that the grantee had a right to lay a framed waggon way (e). So also where the grant was made of a piece of land, as a foot or causeway, with other liberties, powers, and authorities incident to or appurtenant, needful or necessary (z) Re Peck and School Board for London, (1893) 2 Ch. 315. (a) Williams v. James, L. R. 2 C. P. 581; Watts v. Kelson, 6 Ch. 166; Cannon v. Villars, 8 C. D. 420. (b) Henning v. Burnett, 8 Exch. 187; Pearson v. Spencer, 1 B. & S. 585; Wood v. Saunders, 10 Ch. 582; Cannon v. Villars, 8 C. D. 420; Bayley v. Great Western Railway Co., 26 C. D. 453; 44 & 45 Vict. c. 41, s. 6. (c) Collins v. Slade, 23 W. R. 200, W. N. (1874) 205. (d) Senhouse v. Christian, 1 T. R. 560; Cannon v. Villars, 8 C. D. 420. See Abson v. Fenton, 1 B. & C. 195; Hughes v. Chester and Holyhead Railway Co., 3 D. F. & J. 352. (e) Senhouse v. Christian, 1 T. R. 560. Chap. VI. to the use, occupation, or enjoyment of the said road, way or passage, it was held that the grantee had a right to put a piece of flagstone upon a part of the land in front of a door opened by him from his house (f). So also the grant of a wayleave to a coal mine comprises such a wayleave as will be reasonably sufficient to enable the grantee to get all the seams of coal at a reasonable profit. The right is not confined. to such ways as were in use at the time of the grant. A railway may, it would appear, be laid down for the purpose (). In a case where lessees were authorised to take and use full and sufficient rail or other ways, paths and passages to carry all or any of the coal, iron and ironstone, the produce of the mines demised or any other mines, it was held that they might lay down a railway for the carriage of coal raised by them from the pits of adjoining collieries worked by them, and that they were not restricted to using the railway for the carriage of coals raised by or through the pits of the mines demised to them by the lease (). The right, however, is limited to such ways as are reasonably necessary or proper for enabling the grantee to get at the things conveyed, and does not extend generally to making roads for other purposes (i). But if a right of way is granted over land in general terms, the grantee is not limited to a right of way for agricultural purposes. If houses are built upon the land, the grantee has a right of way for all reasonable purposes to all the houses which may be built on the land (k). So also where there is an express grant of a private right of way to a particular place to the unrestricted use of which the grantee of the right of way is entitled, the grant is not to be restricted to access to the land for purposes for which access would be required at the time of the grant (1). (f) Gerard v. Cooke, 2 B. & P. N. R. 109. (g) Dand v. Kingscote, 6 M. & W. 174; Proud v. Bates, 34 L. J. Ch. 407; Duke of Hamilton v. Graham, L. R. 2 H. L. Sc. 169. (h) Bidder v. North Staffordshire Railway Co., 4 Q. B. D. 429. (i) Durham and Sunderland Rail way Co. v. Walker, 2 Q. B. 940. See Farrow v. Vansittart, 1 Ra. Ca. 602; comp. Bostock v. Sidebottom, 18 Q. B. 813. (k) Newcomen v. Coulson, 3 C. D. 133; see Somerset v. Great Western Railway Co., 46 L. T. 884. (1) Finch v. Great Western Railway Co., 5 Ex. D. 254. When the turning of a carriage or cart is necessary to the convenient enjoyment of the dominant premises, such a right of turning over a piece of land may be a part of the right of way to the dominant premises (m). Where a right of way is granted to "the owner and owners for the time being" of lands, and the lands are subsequently severed, the grant gives a right of way to the owner, for the time being, of every part of the severed lands. If the land be parcelled out into allotments, every allottee would have a right of way (n). The grantee of a right of way has a right of way to enter upon the land of the grantor over which the way extends, for the purpose of making the grant effective, i.e., so as to enable him to exercise the right granted to him. This includes not only the right of repairing, but the right of making a road. If a man grants another a right of carriage way over a field to his house, the grantee may enter on the field and make a carriage way over such portions of the field as will be sufficient to support a carriage and horses and the ordinary traffic of a carriage way (o). The grant of a right of way to a house primâ facie extends to members of the grantee's family, his servants, visitors, guests, and tradespeople, although not expressly named (oo). Chap. VI. terms of the If a right of way be granted in express terms for a definite Right cannot be purpose, the grantee may not use the way beyond the terms of used beyond the his grant. If a man has a right of way to one close of land, grant. he may not use the way for the purpose of going to another close beyond it (p). Nor can a right of way granted for a carriage road to a dwelling-house be used for the purpose of driving cattle to a field (q). So also if a way be granted to a particular corner of a field, the grantee may not use it to enter his field at any other point (r), nor would the grantee of a way (m) Knox v. Sansom, 25 W. R. 864. (n) Newcomen v. Coulson, 5 C. D. 133. (0) Ib. (00) See Baxendale v. North Lambeth Liberal and Radical Club, (1902) 2 Ch. 427, 429. (p) Senhouse v. Christian, 1 T. R. (g) Brunton v. Hall, 1 Q. B. 792 |