Page images

et franchis' &c. quot &c. aliquis &c. It was resolved, that, being common in gross, it was not revived : for, in that case, every person, who had any part of those lands, should have as great common as the abbot had; and so the common would be infinitely surcharged. But, if such common had been appendant or appurtenant, it would have been revived : for no person would have common for more cattle, than were pro, portionable to his land.


W A Y s.

$ 1. Nature of a Right of Way. 6. How a Right of Way may

be claimed. 15. How a Right of Way is 10

be used.

$ 22. Who are bound to repair

a Way.
23. How a Right of Way may

be extinguished.

Section 1.


way is the privilege which an indi. Nature of a vidual, or a particular description of persons, Way.

Right of such as the inhabitants of the village of A. or the owners or occupiers of the farm of B. may have of going over another person's grounds. It is an incorporeal hereditament of a real nature; and a way of this kind is entirely different from the king's highway, which leads from town to town, and also from common ways, which lead from a village into the fields,

S 2. Lord Coke says, there are three kinds of ways: 1 Inft. 56 a First, a footway, which is called Iter quod est jus eundi Pel ambulandi hominis. The second is a footway and horseway, which is called A&tus ab agendo ; and this is vulgarly called a Pack and Prime Way; because it is both a footway, and a pack or drift way also. The third is via or aditus, which contains the other two,


and also a cartway, &c. for this is, jus eundi, vebendi, et vehiculum et jumentum ducendi; and this is twofold, viz. Regia via, the king's highway for all men, and communis ftrata belonging to a city or town, or between neighbours and neighbours.

Vent. 189. S 3. Notwithstanding these distinctions, it seems, · Term Rep.

that 570.

any of these ways which is common to all the king's subjects, whether it lead directly to a market town, or only from town to town, may properly be called a highway; and that any such cartway may allo , be called the king's highway. But a way to a parish church, or to the common fields of a town, or to a village, which terminates there, may be called a private way ; because it does not belong to all the king's fubjects, but only to the inhabitants of a particular parish, village, or house: and Lord Hale says, that whether it be a highway or not, depends much upon reputation.

Bro, Ab. Tit.


$ 4. It was held in 18 Edw. 4., that a person may Prefcrip. 9!; have a right of way to go through a churchyard ; and Jenk. Cent. 3

it was said, in that case, that the churchyard of the charter-house was a common way for the inhabitants of London to St. John's.

6 Mod. 3.

S 5. A person cannot claim a way over another's ground, from one part thereof to another: but he

may claim a way over another's ground, from one part of his own ground to another part of it.

S 6. A right

$ 6. A right of way over another person's ground How a Right

of Way may may be claimed in three ways. First, by prescription be claimed. and immemorial usage: as, where the inhabitants of Vide Tit. 31. a certain vill have, time out of mind, traversed a pare ticular close or field to get at their parish church.

§ 7. So a person may prescribe for a way from his Palm. R. 387. house through a certain close, &c. to church, though he himself hath lands next adjoining to his house, through which of necessity he must first pass; for the general prescription shall be applied only to the lands of others.

$ 8. Secondly, by grant; as, where the owner of a piece of land grants to another a liberty of passing over his grounds in a particular direction, he thereby acquires a right of way over those grounds.

$ 9. It has been determined in a modern case, that Senhouse .

Chriftian, where a person granted to another, “ a free and con

1 Term Rep. “ venient way, as well an horseway as a footway, as 560. “ also for carts, waggons, wains, and other carriages “ whatsoever in, through, over, and along a certain

Nip of land, &c. leading between Flemby and Netherhall, to carry stone, timber, coal, or other things “ whatsoever.” The grantee had a right to lay a framed waggon-way along the flip of land for the purpose of carrying coals, it being the most convenient way of transporting them. But that the grantee was not justified in making transverse roads across the flip of land.

S 10. It

Campbell v.
3 East. R.

S 10. It has been held in a modern case, that an adverse enjoyment of a right of way for 20 years, and no evidence that it had been used by leave or favour, or under a mistake, was sufficient to leave to a jury to presume a grant.

Vide 1 Saund.
R. 323. n. 6.

2 Roll. Ab. 60. pl.17.18.

S 11. Thirdly, a person may claim a right of

way over another's land from necessity; as, if 4. grants a piece of land to B, which is surrounded by land belonging to A., a right of way over A's. land passes of necessity to B.; for, otherwise, he could not derive any benefit from the land. And it is said in Roll's Abridgement, that the feoffor shall assign the way where he may best spare it. It is also said in Roll, that it is the fame, if the close aliened be not totally inclosed by the land of the grantor; but partly with the land of strangers, for the grantee cannot go over the stranger's land. But there is a quere put to this last passage,

Clark v.

$ 12. In trespass upon demurrer, the case was, a Cogge, Cro. Jac. 170. person sold lands, and afterwards the vendee, by reason

thereof, claimed a way over the plaintiff's land, there being no other convenient way adjoining. And whether this was a lawful claim, was the question. It was resolved, without argument, that the way remained, and that he might well justify the using thereof; because it was a thing of necessity : for, otherwise, he could not have any profit of his land.

S 13. It was held in the same cafe, that if a man hath four closes lying together, and sells three of them, reserving the middle close, and has no way thereto,


« PreviousContinue »