Way. (11.) Another Form.(r) Except, and always reserved out of these presents, all that piece of ground situate at or near the middle of the field called, &c., which is now marked out and distinguished from the residue by stakes, which said excepted ground extends the whole length of the said field, from east to west, and contains in breadth twenty feet at the east end thereof for the length of two hundred feet, and twenty-five feet in breadth for the residue thereof.(s) (12.) Another Form.(t) Except, and always reserved out of this demise, fifteen feet of the middle part, or as near the middle part as may be, of the said close called, &c., for the whole length thereof, from east to west, for the purpose of forming a carriage road to lead from the mansion house of the lessor, with such right of passage to and for the said, &c., as well on foot and on horseback, as with carts, carriages, and horses, in, to, through, over, and along, every part of the same field as shall be necessary or convenient for making and perfecting the said road. (r) If the road has not been already formed, then, except the part through which the road is intended to lead, similar to the above form. (s) The description of the extent must be adapted in every instance to the circumstances of the case. Holes should be made where the stakes are placed, when the ground for the road is set out, and workmen should be directed to pay particular attention to these boundaries, in order, if they should be effaced or destroyed by the tenant, that there may be evidence to ascertain the excepted quantity. (t) This form may be adopted where no boundary stakes or stones are placed. AN exception is a clause in a deed whereby the What an exlessor excepts something out of that which he has ception is. granted before by the deed; and, being the act and words of the lessor, shall be taken strictly against him.(u) In every good exception these things must always What must concur: concur in making an First, the exception must be by apt words; as, exception. "saving and excepting," &c. Secondly, it must be of part of the thing demised, and not of some other thing. Thirdly, it must be part of the thing only, and not all, the greater part, or the substance of the thing granted; thus, an exception in a lease which extends to the whole thing demised is void. Fourthly, it must be such a thing as is severable from the premises demised, and not of an inseparable incident. Fifthly, it must be of such a thing as he who doth except may have, and which properly belongs to him; thus, it must be of a particular thing out of a general, and not of a particular thing out of a particular thing. Sixthly, it must certainly be described and set down; therefore, if one demise a manor, excepting one acre, without setting forth which or what acre it shall be, the exception is void. (v) If a man be possessed of a new house and an old cases dehouse, and make a lease, with an exception of the cided. new house, for the use of the lessor, when he pleases to reside there, and at other times for the use of the lessee, the new house is well excepted, and such exception is not avoided by the words, "At all times to be used by the lessee when the (u) Shep. Touch. 77. (v) Dorrell v. Collins, Cro. Eliz. 6. Cases. Plea of tres lessor doth not dwell there;" for that sentence doth not enure as an exception out of an exception, (which sets the matter at large,) but only as a declaration of the lessor's intention in making the exception. (w) So, if a man lease his house, excepting his new house during the term, this exception is good; but if he except it during life, it is void; or, if a man having a term of two houses for certain years, grant his houses, excepting one of them, for life, this exception is void; for the words "during life," qualify the exception, and show his intent that the one house shall not be excepted during the whole term, and so it is void. Where a lessee for life made a lease for years, excepting the wood, underwood, and trees, growing upon the land, it was held a good exception, although he had no interest in them but as lessee, because he remained always tenant, and was chargeable in waste; wherefore, to prevent it, he might make the exception; but if a lessee for years assign over his term with such an exception, it is a void exception.(x) An exception of all trees, woods, coppice wood, grounds, of what kind or growth soever, in a lease, does not extend to apple trees. (y) An exception in a lease of lands in Dorsetshire, of all timber trees and other trees, but not the annual fruit thereof, does not include apple trees.(2) Any one may now lease or convey his land, and reserve to himself the right of entering to kill game, without being sued as a trespasser. (a) A plea to trespass quare clausum fregit, stating (w) The latter words, however, make the lessee tenant at will.-Cudlip v. Randall, 3 Salk. 156. S. C. 4 Mod. 11. 12 Mod. 15; and see Hob. 170. Dyer, 264, b. (x) Bacon v. Gyrling, Cro. Jac. 296. (2) Bullen v. Denning, 8 Dowl. & Ryl, 657. S. C. 5 Barn. & Cress. 842. (a) But an exception in a deed made 1653, of the free liberty of hunting and hawking, will not extend to shooting feathered game with a gun, because guns not being in common use could not be in the contemplation of the parties.-Moore v. Plymouth (Lord), 1 Moore, 346. S. C. 7 Taunt. clausum that the plaintiff was tenant to the defendant of the pass quare close, subject to the reservation to him of all pits fregit. in the close, with ingress, &c., to cut and carry away peat and turf, is bad on demurrer; first, for not showing how and when defendant's interest in the close commenced; and secondly for alleging a reservation of what is properly the subject of exception.(b) Notwithstanding an exception in a lease of certain closes or rooms which the lessee is not to use, he may pass and re-pass through them if they are so situated that he cannot otherwise have the complete enjoyment of the lands or premises demised to him.(c) (b) Fancy v. Scott, 2 Man. & Ryl. 335. Parties. tion. GRANTS. (1.) Grant of a Road or Way. (d) THIS indenture made the day of, &c., BETWEEN A. B., of, &c., of the one part, and C. D., of, Considera. &c., of the other part; WITNESSETH, that in consideration of the sum of, &c., by the said C. D., to the said A. B., in hand, paid at, &c., and also in consideration of the sum of, &c., a year, to be paid to the said A. B., his heirs and assigns, he, the said A. B., DOTH grant and confirm unto the said A. B., his heirs and assigns, [if for a term of years say, "executors, administrators, and assigns,"] FREE and convenient way, (e) as well a horseway as a footway, as also for carts, waggons, and all other carriages whatsoever, in, through, over, and along, all that piece or parcel of land or ground leading from, &c., called, &c., and lying between, &c., of the breadth, &c., as the same is more particularly delineated in a plan thereof, drawn in the margin of these presents, with full and free liberty to make and lay causeways, or otherwise to repair and amend the same, when and as often as there shall be occasion, together with full and free license for the said Way. What is a right of way. Grant of way. (d) A right of way, or a right of passage for water, (where it does not create an interest in the land,) is an incorporeal right, and stands upon the same footing with other incorporeal rights, such as rights of common, rents, advowsons, &c. It lies not in livery, but in grant, and a freehold interest in it cannot be created or passed otherwise than by deed.~5 B. & Cress. 229. (e) Under the grant of a free and convenient way for the purpose of carrying coals, (among other articles,) the grantee has a right to lay a framed waggon way.-Senhouse v. Christian, 1 T. R. 560. But under a grant of a way from A. to B., in, through, and along, a particular way, the grantee is not justified in making a transverse road across the same.-Id. Where A. granted land to B. of unequal width, described as abutting on & road on his own soil, it abutted on the broadest part of the road; but in the narrowest part of it a narrow strip of the grantor's land intervened between the road and the premises granted; it was held that the grantor, and those claiming under him, were concluded from preventing the grantee from coming out into the road over this slip of land.-Roberts v. Karr, 1 Taunt. 495. |