to Blackacre, and drove his beasts over B.'s ground to Blackacre, then to another place beyond Blackacre. Upon demurrer, the question was, whether this was lawful or not. It was urged, that when the defend, ant's beasts were at Blackacre, he might drive them whither he would. On the other side, it was said, that by this means the defendant might purchase 100 or 1,000 acres adjoining to Blackacre, to which he prescribed to have a way, and by that means the plaintiff would lose the benefit of his land: that a prescription presupposed a grant, and ought to be continued according to the intent of its original creation; to which the Court agreed; and judgement was given for the plaintiff. v. Ward, 75. 17. The same point appears to have been deter- Lawton mined in a subsequent case, in which Powell, Justice, 1 Ld. Raym. observed, that the difference was, where the person having a right of way to a particular place, goes farther, to a mill, or a bridge, there it may be good: but when he goes to his own close, it is not good. The editor of the fourth edition of Lord Raymond's Reports, in a note upon this passage, expresses a doubt, whether this distinction be well founded; and says, "The true point to be considered upon such a case should seem to be, quo animo the party went to the close; whether really and bona fide to do business there, or merely in his way to some distant place." 18. Where a person has a right of way over another's land, and the road is impassable, he may go over any other part of the land. 296. 19. In an action of trespass for destroying his Henn's Case, close; the defendant pleaded, that time out of mind W. Jones, there was a common footpath through the close, &c. The plaintiff replied, that the defendant went in other places, out of the way. The defendant rejoined, that VOL. III. I Taylor v. the footpath was adeo luteosa et funderosa, by default of the plaintiff, who ought to amend it: that he could not pass along; therefore he went as near the path as he could, in good and passable way: this was resolved to be a good plea and justification. . 20. It has however been resolved, in a modern case, that where a person has a right to a precise specific way over another's ground, which he is bound to repair, he cannot deviate from it, even though it should be overflowed by a river. 21. In trespass for breaking and entering a close, Doug. 745. the defendant pleaded a right of way, by prescription, through a lane of the plaintiff's; that the tenants of the locus in quo were bound to repair; that the lane was overflowed with water, and that he necessarily went over the locus in quo. The plaintiff having traversed the prescription to repair, and the right of way, the jury found for the plaintiff, as to the first plea, respecting the repairs, and for the defendant, as to the second plea, respecting the right of way. 2 Show. R. 28. is * The question on the validity of the last plea having been argued, Lord Mansfield said," The question upon the grant of this way. Now it is not laid to be a grant of a way generally over the land, but of a precise specific way. The grantor says, you may go in this particular line, but I do not give you a right to go either on the right or left. I entirely agree with my brother Walker, that, by common law, he who has the use of a thing ought to repair it. The grantor may bind himself, but here he has not done it. He has not undertaken to provide against the overflowing of the river; and, for ought that appears, that may have happened by the neglect of the defendants. Highways are governed by a different principle; they are for the public service; and if the usual tract is impassable, it is for the general good that people should be entitled to pass in another line." Mr. Justice Buller observed, that if this had been a way of necessity, the question would have required consideration, but it was not so pleaded. It did not Vide 1 Saund. appear that the defendant had no other road. 22. A right of way being an incorporeal hereditament, similar in many respects to a right of common, cannot be devested. 23. It seems that, by the common law, where a person granted a right of way over his land to another, R. 322. n. 3. Cannot be devested. Touch. 23. Who are bound to repair. ante, f 21. Rider v. the grantee was bound to repair it. But the grantor is 24. Where a person has a right of way over another's close, and he purchases such close, his right of way extinguished by the unity of seisin and possession. 25. There is however a distinction between a right of way which is of necessity, and a right of way which is merely an easement; for in the latter case it is not extinguished by unity of possession. 26. Thus, if a vill has a right of way to a church, and one of the vill purchases the land over which the way is; yet this unity of possession shall not extinguish the way, because it is a thing of necessity. 3 Term R. 766. How extinguished. Heigate v. Williams, Noy, it 119. 3 Surry v. Pigot, Bulst. 340. Noy, R. 84. 27. It is said that where a right of way has been How revived. extinguished by unity of possession, it may be revived by severance. 1 Ca. 37. 28. Thus where upon a descent to two daughters, Jenk. Cent. land over which there had been a right of way, was allotted to one of them, and the land to which the right of way belonged, was allotted to the other; it was held that this allotment, without specialty to have the way anciently used, was sufficient to revive it. 7 Whaley v. 371. . There is a case similar to this in Brook's Ab. title Extinguishment, where it is doubted whether the partition did not create a new right of way. But this doctrine of revival does not seem to have been admitted in the following case. 30. Thomas Adderley being seised at the same time 1 Bos. & Pul. of two closes, over one of which a right of way had been immemorially used to the other, devised the close to which the right of way had been annexed, with its appurtenances, to A. B., and devised the other close to another person. A. B. claimed the right of way. The Court held, that from the moment when the possession of the two closes was united in one person, all subordinate rights and easements were extinguished. The only point therefore that could possibly be made in the case was, that the ancient right, which existed while the possession was distinct, was merely suspended, and might revive again. It was admitted that the word appurtenances would carry an easement, or legal right; but its operation must be confined to an old existing right; and if the right of way had passed in this instance, it must have passed as a new easement; but the right of way being extinct, the word appurtenances had nothing to operate upon. Keymer v. 31. It is said that though a right of way be extinBummer guished, yet if it is used for thirty years after, this is sufficient to afford a presumption of a new grant of licence from the owner of the land. 74. A SECTION 1. N office is a right to exercise a public or private Nature of. employment, and to take the fees and emolu ments belonging to it; and all offices relating to land, or exercisable within a particular district, are deemed 1 Inst. 20 a. incorporeal hereditaments, and classed under the head of real property. 2. Offices are either public or private; the first are those which concern the general administration of justice, or the collection of the public revenue. Such as the judges of the King's courts at Westminster, sheriffs, coroners, &c.; the commissioners of the customs and excise, &c. The second are those which only concern particular districts belonging to private individuals, such as stewards and bailiffs of manors. |