Rights of When soil of highway passes by conveyance. Ownership of waste adjoining highways. of Metropolis Management Act, 1855, is the same (Battersea v. County of London Lighting Co., 1899, 1 Ch. 474). A main road and the materials thereof, and all drains belonging thereto, except when the urban authority maintains it, is now vested in the County Council (Local Government Act, 1888, s. 11 (6); and see Curtis v. Kesteven Council, 45 Ch. D. 504). But the property of the local authority ceases when the highway ceases to be a highway (Rolls v. St. George's Vestry, 14 Ch. Div. 785). Where closes abutting on opposite sides of the highway belong to different owners, each owner is, according to presumption of law, entitled to the soil under the highway usque ad medium filum viæ (Beckett v. Leeds, 7 Ch. 424; Leigh v. Jack, 5 Ex. Div. 270; L. & N. W. R. v. Westminster, 1902, 2 Ch. 279). Accordingly, such closes may be "adjoining or contiguous" within the meaning of a lease (Haynes v. King, 1893, 3 Ch. 439). As to the meaning of "adjoining" in covenants, see further White v. Harrow, 86 L. T. 4; Ind, Coope & Co. v. Hamblin, 84 L. T. 168; Vale v. Moorgate, 80 L. T. 487; and in a statute Re Bateman and Parker, 1899, 1 Ch. 599). The above-mentioned presumption exists only in the absence of evidence of ownership (Beckett v. Leeds, 7 Ch. 421). The presumption applies equally to a private as to a public road (Holmes v. Bellingham, 7 C. B. N. S. 329). The ordinary rule of law is, that in the case of the conveyance of land adjoining a highway, the soil of the highway, ad medium filum vic, passes by the conveyance; and the fact that the land is set forth by admeasurement and referred to in a plan, which includes no portion of the highway, does not prevent the operation of such rule (Berridge v. Ward, 10 C. B. N. S. 400; and see R. v. Strand Board, 4 B. & S. 526, 12 W. R. 828, where the boundary of a parish was defined by statute; and Micklethwait v. Newlay Co., 33 Ch. Div. 145, a case of land bounded by a river). The rule applies to streets in a town as well as to highways in the country (Haynes v. King, 1893, 3 Ch. 439; Re White's Charities, 1898, 1 Ch. 659; L. & N. W. R. v. Westminster, 1902, 1 Ch. 279); and to leases as well as conveyances (Haynes v. King, sup.; see Landrock v. Metropolitan R. Co., 1886, W. N. 195). But the soil of the highway will not pass if it appears that such soil was not intended to pass, either from a map annexed to the conveyance, or from the form of the conveyance (Salisbury v. G. N. R. Co., 5 C. B. N. S. 174; 28 L. J. C. P. 40; Plumstead v. British Land Co., L. R. 10 Q. B. 16). The circumstances under which the conveyance was executed (e. g., trees on the highway having been omitted from a valuation) may assist to rebut the presumption (Pryor v. Petre, 1894, 2 Ch. 11). And where a conveyance described land as bounded by a street, which at that time was intended to be used as a highway, but had not been dedicated, the soil of the street did not pass (Leigh v. Jack, L. R. 5 Ex. Div. 264). Cotton, L. J., doubted whether the rule would ever apply to cases where land is sold in plots for building purposes, even although the roads had been actually laid out (Ib.) As to the effect of subsequent circumstances not contemplated at the time of the grant, seeMicklethwait v. Newlay Co., 33 Ch. Div. 133. Where the grantor is the owner of the soil beyond the medium filum, the presumption is that the conveyance passes the soil so far as vested in him (Re White's Charities, 1898, 1 Ch. 659). Strips of land lying along a highway, even though indirectly connected with parts of a waste, may well pass under a conveyance of the adjacent inclosure, though the deed purports to state the quantity of acres within the fences that were therein conveyed, if the words "more or less" were added (Dendy v. Simpson, 7 Jur. N. S. 1058; 9 W. R. 743; Simpson v. Dendy, 8 C. B. N. S. 433). At common law and independently of statute the presumption is, that waste land adjoining a road belongs to the owner of the soil of the adjoining inclosed land, and not to the lord of the manor (Steel v. Prickett, 2 Stark, 463; Scoones v. Morrell, 1 Beav. 251); whether such owner be a freeholder, copyholder, or leaseholder (Doe v. Pearsey, 7 B. & C. 304). The right to land adjoining either side of the road extends to the centre (Cooke v. Green, 11 Price, 736). The presumptive right of the owner of the adjoining land may be repelled by evidence of acts of ownership by the lord of the manor (Anon., Lofft, 358). And if the narrow strip be contiguous to, or communicate with, open commons or larger portions of land, the presumption is either done away, or considerably narrowed; for the evidence of ownership, which applies to the larger portions, applies also to the narrow strip which communicates with them (Grose v. West, 3 Taunt. 39; Headlam v. Hedley, Holt, N. P. C. 463). Upon this question the lord may give evidence of grants by him of the waste between the road and the other inclosures of other persons at a distance from the spot claimed by the plaintiff, provided such evidence is confined to the road which passes by the spot claimed by the plaintiff (Doe v. Kemp, 7 Bing. 332; 2 Bing. N. C. 102; see Stanley v. White, 14 East, 332; Dendy v. Simpson, 18 C. B. 831). The presumption may also be rebutted by the owner of the adjoining land accepting an allotment of the strip in question from commissioners appointed to inclose and allot the wastes of the manor (Gery v. Redman, 1 Q. B. D. 161). Where the lord has conveyed land to A. and other land to B., and it appears that a strip passed by one of these conveyances, but it is doubtful by which; no presumption arises in favour of A. from the fact that the strip lies between a highway and land indisputably comprised in the conveyance to A. (White v. Hill, 6 Q. B. 787). The presumption in favour of the adjoining owner may be rebutted by showing that the strip adjoins other land occupied adversely to such owner (Doe v. Hampson, 4 C. B. 267; 17 L. J. C. P. 225). The question of the ownership of grass adjoining a highway has been raised under recent statutes. Thus, under sect. 149 of the Public Health Act, 1875, which vests in the urban authority all "streets" being highways repairable by the inhabitants at large, it was decided that the herbage along the sides of such streets belonged to the authority (Coverdale v. Charlton, 4 Q. B. Div. 104; consider, however, Tunbridge Wells v. Baird, 1896, A. C. 434); on the other hand, sect. 11 (6) of the Local Government Act, 1888, which vests in the County Council main roads and the materials thereof, does not vest strips of grass bordering the metalled part of the road or the herbage thereon (Curtis v. Kesteven Council, 45 Ch. D. 504). As to the rights of the public over roadside wastes, see ante, p. 54. Rights of (8) Way. Balks are strips of land lying between lands which are private property. Balks and In presumption of law, balks belong to the owners of the adjacent land, ditches. unless the contrary is proved (Godmanchester v. Phillips, 4 Ad. & Ell. 560). The rule about ditching is this: no man making a ditch can cut into his neighbour's soil, but usually he cuts to the very extremity of his own land; he is of course bound to throw the soil which he digs out upon his own land, and after, if he likes it, he plants a hedge upon the top of it; therefore, if he afterwards cuts beyond the edge of the ditch, which is the extremity of his land, he cuts into his neighbour's land, and is a trespasser; no rule about four feet or eight feet has anything to do with it (Vowles v. Miller, 3 Taunt. 138). Where two adjacent fields are separated by a hedge and ditch, the hedge prima facie belongs to the owner of the close on the side of the hedge opposite to the ditch (Guy v. West, Selw. N. P. 1218). And the land constituting the ditch is also part of the close on the side of the hedge opposite to the ditch (Doe v. Pearsey, 7 B. & C. 308). Whether the presumption applies to a natural watercourse, qu. (Marshall v. Taylor, 1895, 1 Ch. 641). If there are two ditches, one on each side of the hedge, then the ownership of the hedge must be ascertained by proving acts of ownership (Guy v. West, Selw. N. P. 1218; see as to acts of ownership of a ditch, Searby v. Tottenham R. Co., 5 Eq. 409; Norton v. L. & N. W. R. Co., 13 Ch. Div. 268; Marshall v. Taylor, sup.). If a tree grows near the confines of the land of two parties, so that the Rights of (1) Different roots extend into the soil of each, the property in the tree belongs to the owner of the land in which the tree was first sown or planted (Holder v. Coates, M. & M. 112; see Waterman v. Soper, 1 Lord Raym. 737; Masters v. Pollie, 2 Roll. R. 141; Anon.. 2 Roll. R. 255). But the other owner can cut branches which overhang his land even where they have overhung for twenty years (Lemmon v. Webb, 1895, A. C. 1). B. Private Rights of Way. (1) Different kinds of Private Ways...60. Public and Private Ways co-existing and private access to Highways...60. (2) Acquisition of Private Rights of Way...61. (a) By Express Reservation or Grant...61. (b) By Implied Grant, including Ways of Necessity...63. (d) By Statute...66. (3) Nature of Private Ways acquired by Express Grant...66. (4) Nature of Private Ways acquired by User...67. (5) Right to deviate...68. (6) Repair of Private Ways and Liability for Negligence...68. (7) Extinction of Private Rights of Way...68. (8) Remedies for disturbance of Private Ways...70. There are four kinds of ways (Co. Litt. 56 a) :-1, a foot-way-2, a kinds of ways. horse-way, which includes a foot-way-3, a carriage-way, which includes both horse-way and foot-way-4, a drift-way. Although a carriage-way comprehends a horse-way and a foot-way (Davies v. Stevens, 7 C. & P. 570), yet it does not necessarily include a drift-way (Ballard v. Dyson, 1 Taunt. 279); but evidence of a carriage-way is strong presumptive evidence of the grant of a drift-way (Ibid.). As to the meaning of a right of way to "lead manure,' see Brunton v. Hall, 1 Q. B. 792. A way may be granted for agricultural purposes only (Reynolds v. Edwardes, Willes, 282); or for the carriage of coals only (Iveson v. Moore, 3 Ld. Raym. 291; 1 Salk. 15); or for the carriage of all other articles except coals (Stafford v. Coyney, 7 B. & C. 257; Jackson v. Stacey, Holt, N. P. C. 455). There may be a private right of way over a cul de sac (Roe v. Siddons, 22 Q. B. Div. 234). Public and private ways co-existing. Private access to highway. There may be both an occupation way and a public highway over the same road (Brownlow v. Tomlinson, 1 M. & G. 484; A.-G. v. Esher Co., 1901, 2 Ch. 647). The acquiring a right of way by the public does not destroy a previously existing right of way over the same line (Duncan v. Louch, 6 Q. B. 904). If the owner of land has granted to an individual an occupation way the subsequent absolute dedication by him of a footway to the public, in the same place, cannot be presumed, without also presuming, or proving, a release of the way by the individual; for without the release the owner can only be supposed to have given what he himself had, a right not inconsistent with the easement (R. v. Chorley, 12 Q. B. 515). The court acted on an enclosure award which set out the same way as a bridle and footpath for the public, and as a carriage-way for particular persons (Pullin v. Deffel, 64 L. T. 134). The right of a person who has land abutting on a highway to pass from one to the other is incontrovertible (Burgess v. Northwich, 6 Q. B. D. 275; Ramuz v. Southend Bourd, 67 L. T. 169). It is a private right (Chaplin v. Westminster, 1901, 2 Ch. 329), quite different from such a person's individual interest in the public right of using the highway (Ib. ; Lyon v. Fishmongers' Co., 1 App. Cas. 676; Fritz v. Hobson, 14 Ch. D. A private way is a right which one or more persons have of going over the land of another. This may be claimed by express reservation, or by grant, or as necessarily incident to a grant of land: or it may be claimed by prescription, custom, or by virtue of an inclosure act (Selw. N. P. 1266, 13th ed). Rights of (2) Acquisition of private rights of way: (a) A right of way may be claimed by express reservation; as where A. grants land to another, reserving to himself a way over such land (1 Roll. Abr. 109, pl. 45; Com. Dig. Chimin (D. 2); and see Cardigan V. by express Armitage, 2 B. & C. 197). Tindal, C. J., in Durham R. Co. v. Walker reservation; (2 Q. B. 967), observed, "A right of way cannot in strictness be made the subject either of exception or reservation. A right of way reserved to a lessor is, in strictness of law, an easement newly created by way of grant from the grantee or lessee, in the same way as the right of sporting or fishing" (see Doe v. Lock, 2 Ad. & Ell. 705; Wickham v. Hawker, 7 M. & W. 63). In order to establish an easement claimed by lessors, as in the nature of a grant from the lessee, it would in general be essential to show the execution of the lease by the lessees (Durham R. Co. v. Walker, 2 Q. B. 967; Corcor v. Payne, I. R. 4 C. L. 380). The effect of such a reservation, operating as a re-grant, was considered (Dynevor v. Tennant, 33 Ch. Div. 420; 13 App. Cas. 279). A right of access stipulated for by a contract was extinguished by the deed of conveyance which did not reserve it (Teebay v. Manchester R. Co., 24 Ch. D. 572). In such a case the court must see that the deed covers the whole ground of the contract (Paliner v. Johnson, 13 Q. B. Div. 357). A way may be claimed by grant, as where an owner of land grants to by express another person a way through or over a particular close (Com. Dig. grant; Chimin, D. 3). But the word "way" in a grant is not an apt word to create a new right of way. It is a word descriptive of an existing right -a right of way over the land of another person (Roe v. Siddons, 20 Q. B. Div. 236). The description of a right of way in a grant was rectified, as not in accordance with the intention (Cowen v. Truefitt, 1899, 2 Ch. 309). A covenant by an owner of land that another person shall have and use a way amounts to a grant (Holme v. Seller, 3 Lev. 305). A contract to grant a right of way was held equivalent to a contract for sale of real estate, so that no damages were given for breach (Rowe v. London School Board, 36 Ch. D. 619; see Jones v. Watts, 43 Ch. Div. 574). Where the plaintiff claimed a way over the defendant's soil, and in the defendant's lease, granting him all ways, without qualification, there was a covenant for contributing with other occupiers of the lessor's property to the keeping up paths used in common by them, and the plaintiff had always used the path in question, and there was no other path to which the covenant could apply, it was inferred that the defendant took the soil, subject to the plaintiff's right of way (Oakley v. Adamson, 8 Bing. 356). Where houses, with ground, part of an adjoining yard, were leased to a tenant, together with all ways with the said premises or any part thereof used or enjoyed before; and at the time of the lease the whole of the yard was in the occupation of one person who had always enjoyed a right of way to every part of that yard; the lessee was entitled to such right of way to the part of the yard demised to him (Kooystra v. Lucas, 5 B. & Ald. 830; Staple v. Haydon, 6 Mod. 3). If a right of way is appurtenant to a piece of land which is demised, the right of way passes also without any special mention of such right (Skull v. Glenister, 7 L. T. 827). Where an underlease described the ground demised and the ways granted by the words "always thereunto appertaining," a road over the soil of the original lessor was held not to pass by those words, although it might have done so by the words "heretofore used" (Harding v. Wilson, 2 B. & C. 96). Under a reversionary lease of a messuage granted by one who was entitled in reversion both to the messauge and also to the soil of an adjoining passage, a right of way over the passage was held to pass as being not merely convenient but necessary for the enjoyment of the messuage (Hinchliffe v. Kinnoul, 5 Bing. N. C. 1; see Kavanagh v. Coal Mining Co., 14 Ir. C. L. R. 82). The conveyance of an inland farm with Rights of evidence as to grants; effect of plan. Where there is unity of seisin, what words will pass ways which existed before the unity of seisin. the "appurtenances" did not pass the right to take sea-weed from the A railway company cannot grant a private right of way over land On the construction of the devise of a right of way, it was held limited to the lifetime of the devisee (Pym v. Harrison, 33 L. T. 796). General words reserving a wayleave to a bishop for coal got out of any land were restricted by the context to land belonging to the See (Midgley v. Richardson, 14 M. & W. 495; see Hedley v. Fenwick, 3 H. & C. 349). A right of way cannot be so granted as to pass to the successive owners of land as such, in cases where the way is not connected in some manner with the enjoyment of the land to which it is attempted to make it appurtenant (Ackroyd v. Smith, 10 C. B. 164; 19 L. J. C. P. 315; see Thorpe v. Brumfitt, 8 Ch. 650). A grant of a right of way to Blackacre made to A., "his heirs and assigns," who at the time was tenant from year to year, and subsequently acquired the freehold, enured for the benefit of such freehold (Rýmer v. McIlroy, 1897, 1 Ch. 528). The grant should define the way (Metropolitan R. Co. v. G. W. R. Co., 84 L. T. 333). And a grantor having once defined a way cannot alter it (Deacon v. S. E. R. Co., 1889, W. N. 79). Compare the rule as to a way of necessity (Pearson v. Spencer, 1 B. & Sm. 584). In an action for obstructing a way, granted by a lease from the defendant to the plaintiff, the judge will receive evidence of the state of the premises at the time of the lease, and will then put a construction on the lease as to the line along which the way is granted: but he will not receive evidence of the declarations or acts of the parties, either before or after the lease, as showing where the way is or was intended to be; but if it be uncertain on the words of the grant which of two ways is intended, the judge will receive parol evidence to show which the grantor meant to grant (Osborn v. Wise, 7 C. & P. 761). In order to prove a grant of an occupation way through a lane to the defendant's premises, he offered two deeds, which purported to be grants by the owners of the soil of an occupation way through the lane, to tenants of premises situated on the opposite side of the lane from the defendant's premises. The deeds were inadmissible as evidence (R. v. Chorley, 10 W. R. 2). A grant of a private right of way was inferred from the description of boundaries in a lease together with the indorsed plan (Espley v. Wilkes, L. R. 7 Ex. 298; Furness Co. v. Cumberland Society, 52 L. T. 144). As to the effect of a plan, see Bayley v. G. W. R. Co., 26 Ch. Div. 441, 457; Randall v. Hall, 4 D. G. & Sm. 343; Roe v. Siddons, 22 Q. B. D. 228; Re Lindsay and Forder, 72 L. T. 832; Dart, V. & P. 6th ed., 136. Where there is an unity of scisin of the land, and of the way over the land, in one and the same person, the right of way is either extinguished or suspended, according to the duration of the respective estates in the land and the way; and after such extinguishment, or during such suspension of the right, the way cannot pass as an appurtenant under the ordinary legal sense of that word. In the case of an unity of seisin, in order to pass a way existing in point of user, but extinguished or suspended in point of law, the grantor must either employ words of express grant, or must describe the way in question as one "used and |