Слике страница
PDF
ePub

"together with the two messuages or dwelling-houses erected thereon, with their rights, casements, and appurtenances."

The plaintiff derived his title to Normanhurst under an indenture of the 13th day of November, 1879, by which Letts assigned that piece of land and the messuage thereon to the plaintiff's vendor. The parcels were therein described as those comprised in the original lease of that portion of the land to Letts, dated the 5th of October, 1877, in which the piece of land was described as being of a certain length on each side, and as containing so many square yards. These dimensions included so much of the site of the way behind the gardens as lay between Augusta-road and the opposite limit of the Normanhurst property. And the indenture of the 13th of November, 1879, contained no reservation by Letts of any right of way over the same. The way had been formed and existed in its present state prior to either of the above assignments by Letts, and had been used by the defendant since he acquired his two houses. The plaintiff disputed his right of using the way, and brought this action, claiming a declaration that the defendant was not entitled, as against him, to any right of way from or to his houses over or across his land to or from Augusta-road, and that he, his agents and servants, might be restrained from passing over or otherwise trespassing upon the plaintiff's land.

A surveyor and house agent, who was called on behalf of the plaintiff to prove a plan of the properties, said, in cross-examination, that in his opinion the passages to the gardens of Cottisbrook and Westbourne from Park-road were unsuitable for the carrying away of rubbish, etc., from the gardens, and that the use of the way at the back of the gardens was convenient for the occupiers of those two houses.

Methold, for the plaintiff.

Marten, Q. C., and Horace Browne, for the defendant.

KAY, J. (after stating the facts and describing the position of the properties). The question is whether the indenture of the 14th of December, 1878, passes a right of way from the gardens. of Cottisbrook and Westbourne through this passage into Augusta-road. When this assignment was made, this right of way was in no sense an easement. The question, therefore, is two

fold, (1) was it a way of necessity, and (2) did it pass by implied grant under the assignment? As a way of necessity it would be difficult for the defendant to sustain the right, for a way of necessity is not a right of passing over a defined way, but is merely a direct means of access to a tenement, and it is clearly established that a grantor is entitled to elect what course such a way shall follow. There is no question of any election in this case, the right claimed is to pass over a particular road, which is enough to show that it is not a way of necessity. If it were such a way, then, whether formed or not, a way would have passed with the property. That is to say, if there had been no back doors, and access to the gardens had only been through the tiled passages, in such case if the owners of Cottisbrook and Westbourne were held to be entitled to a way of necessity to their gardens, then the owner of Westbourne would be entitled to a way over both Cottisbrook and Normanhurst, and the owner of Cottisbrook to a way over Normanhurst alone. It would be impossible to hold that having already a way to the road in front through the tiled passages, they were also entitled to a way in some direction or other from the gardens to the other road. I am therefore of opinion that this is not a way of necessity.

Then comes the question whether this right of way will pass, as a continuous and apparent easement, by implied grant. It is stated in Gale on Easements, that a right of way is not a continuous easement, but no authority is given for the statement. In Hinchliffe v. The Earl of Kinnoul, 5 Bing. N. C. 1, a lessee claimed a right of way over a passage on one side of his house which communicated with a coal-shoot and with certain pipes for conveying water and soil from the house. These formed part of the tenement, for TINDAL, C.J., in giving judgment, says, at p. 24: "We cannot, therefore, feel any doubt but that, under the description contained in the lease, the coal-shoot and the several pipes passed to the lessee as a constituent part of the messuage or dwelling-house itself."

Now there was in that case another means of approaching the coal-shoot over the tenement, but the jury found that the passage was not merely convenient, but necessary, for the use of the coal-shoot, and there is this passage in the judgment, at p. 25: Since, therefore, as it appears to us, the right in question passed

66

to the lessees under the reversionary lease of 1819, as incidental to the enjoyment of that which was the clear and manifest subject-matter of the demise, it becomes unnecessary to consider the question argued at the bar before us, how far the same right might or might not pass to the lessees under the express words used in the lease itself as 'an appurtenant unto the said piece or parcel of ground, messuage, or tenement, erections, buildings, and premises, belonging, or appertaining.' There are strong authorities in the law books to show these words capable of a wider interpretation, and of carrying more than is an appurtenant in the strictly legal sense of that word, where such interpretation is necessary in order to give that word some operation." And after a reference to the authorities the judgment continues: "But we think it at once sufficient, and at the same time safer, to rely upon the ground on which we have already held that the right claimed by the plaintiff may be supported, and to give no opinion upon this second point." That ground having been stated on p. 24 to be that "upon the facts found in the special verdict, such right did pass as a necessary incident to the subjectmatter actually demised, although not specially named in the lease. The rule laid down in Plowden's Comm., 16a, is, "that by the grant of anything, conceditur et id, sine quâ res ipsa haberi non potest."

Therefore, in that case the way was really a way of necessity. That decision has often since been commented on and followed.

In Langley v. Hammond, 16 W. R. 937; s. c. L. R. 3 Ex. 161, there was a grant of part of certain demised premises, "together with all ways, etc., therewith now used, occupied, and enjoyed," and Lord BRAMWELL, in giving judgment, said: "Suppose a house to stand one hundred yards from a highway, and to be approached by a road running along the side of a field, used for no other purpose, but only fenced off from the field, which I assume to be the property of the owner of the house. I should wish for time to consider before deciding that on the conveyance of the house the right to use that road, not being a way of necessity, would not pass under such words as these;" that is, the words "used, occupied, and enjoyed with,” which were the words relied on in the case of James v. Plant, 4 Ad. & El. 749; s. c. 5 B. & Ad. 791. In the later case of

Watts v. Kelson, 19 W. R. 338; s. c. L. R. 6 Ch. at p. 174, MELLISH, L. J., said: "We may also observe that in Langley v. Hammond, BRAMWELL, B., expressed an opinion, in which we concur, that even in the case of a right of way, if there was a formed road made over the alleged servient tenement, to and for the apparent use of the dominant tenement, a right of way over such road might pass by a conveyance of the dominant tenement with the ordinary general words." This is a mistake, for the words in Langley v. Hummond were not ordinary, but extraordinary, as they were in James v. Plant.

In Pearson v. Spencer, 11 W. R. 471; s. c. 3 B. & S. 762, where the owner of a farm had divided it by his will into two portions, and one portion was landlocked, so that it was necessary to pass over the other portion to reach it, and the devisor had, during his life, used a way in a certain direction over that portion, the right to use this way was held to pass by the devise of the landlocked portion. This was distinctly an advance in the doctrine, for it was held, not that a way merely passed by the devise, but a particular way. In giving judgment, ERLE, C. J., said: "We have been much struck with the argument of Mr. Mellish, in which he contended that, if this right of way were taken as a right of way of necessity simply, the way claimed by the defendant could not be maintained; because we are inclined to concur with him that a way of necessity, strictly so called, ends with the necessity for it, and the direction in which the plaintiff says the way ought to go would so end. But we sustain the judgment of the court below on the construction and effect of James Pearson's will, taken in connection with the mode in which the premises were enjoyed at the time of the will. The testator had a unity of possession of all this property; he intended to create two distinct farms with two distinct dwelling-houses, and to leave one to the plaintiff and the other to the party under whom the defendant claims. The way claimed by the defendant was the sole approach that was at that time used for the house and farm devised to him. Then the devise of the farm contained, under the circumstances, a devise of a way to it, and we think the way in question passed with that devise. It falls under that class of implied grants where there is no necessity for the right claimed, but where the tene

VOL. XXXVI.-38

ment is so constructed as that parts of it involve a necessary dependence, in order to its enjoyment in the state it is in when devised, upon the adjoining tenement. These are rights which are implied, and we think that the farm devised to the party under whom the defendant claims, could not be enjoyed without dependence on the plaintiff's land, of a right of way over it in the customary manner." This, then, is a distinct decision of the Court of Exchequer Chamber that a way following a particular and defined route, and which is not a way of necessity, may nevertheless pass by implied graut from an owner who has unity of possession both of the close granted and of the adjoining close.

In the case of Wheeldon v. Burrows, 28 W. R. 196; s. c. 12 Ch. D. 31, the Court of Appeal drew a distinction between the effect of an implied grant and an implied reservation with regard to the much-contested question as to what rights are so reserved to a vendor, and THESIGER, L. J., in the course of his judgment, which was approved by the rest of the court, uses this language: "We have had a considerable number of cases cited to us, and out of them I think that two propositions may be stated as what I call the general rules governing cases of this kind. The first of these rules is, that on the grant by the owner of a tenement of part of that tenement as it is then used and enjoyed, there will pass to the grantee all those continuous and apparent easements (by which, of course, I mean quasieasements)," and this interpretation by means of the term "quasi-easements" was needed, because a man can have no easements over his own land, "or, in other words, all those easements which are necessary to the reasonable enjoyment of the property granted, and which have been and are at the time of the grant used by the owners of the entirety for the benefit of the part granted. The second proposition is that, if the grantor intends to reserve any grant over the tenement granted, it is his duty to reserve it expressly in the grant;" that is to say, he draws a distinction between an implied grant and an implied reservation. The point again came before the Court of Appeal in Bayley v. Great Western Railway, 26 Ch. D. 434; s. c. 32 W. R. Dig. 227. There the railway company had purchased a piece of land on which was a stable, and the property had been

« ПретходнаНастави »