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et franchis' &c. quot c. aliquis &c. It was refolved, 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 fo the common would be infinitely furcharged. But, if fuch common had been appendant or appurtenant, it would have been revived: for no perfon would have common for more cattle, than were pro portionable to his land.

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Section 1.

way is the privilege which an indi-
vidual, or a particular description of perfons,
fuch as the inhabitants of the village of A. or the
owners or occupiers of the farm of B. may have of
going over another perfon's grounds. It is an incor-
poreal 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 alfo from
common ways, which lead from a village into the

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§ 2. Lord Coke fays, there are three kinds of ways: 1 Inft. 56 a First, a footway, which is called Iter quod eft jus eundi vel ambulandi hominis. The fecond is a footway and horseway, which is called Actus 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. alfo. The third is via or aditus, which contains the other two,


1 Vent. 189. Term Rep.


Bro. Ab. Tit.
Prefcrip. 91.
Jenk. Cent. 3.


6 Mod. 3


and also a cartway, &c. for this is, jus eundi, vehendi, 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.


§ 3. Notwithstanding these diftinctions, it seems, any of these ways which is common to all the king's fubjects, whether it lead directly to a market town, or only from town to town, may properly be called a highway; and that any fuch cartway may alfo 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 houfe: and Lord Hale fays, that whether it be a highway or not, depends much upon reputation.

$ 4. It was held in 18 Edw. 4., that a person may have a right of way to go through a churchyard; and it was faid, in that cafe, that the churchyard of the charter-house was a common way for the inhabitants of London to St. John'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.

§ 6. A right

§ 6. A right of way over another perfon's ground may be claimed in three ways. First, by prescription and immemorial ufage: as, where the inhabitants of a certain vill have, time out of mind, traversed a par ticular close or field to get at their parish church.

How a Right of Way may be claimed." Vide Tit. 31.

§ 7. So a perfon may prescribe for a way from his Palm. R. 387. house through a certain clofe, &c. to church, though he himself hath lands next adjoining to his house, through which of neceffity he must first pass; for the general prescription fhall 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 paffing over his grounds in a particular direction, he thereby acquires a right of way over those grounds.

Senhouse v.

1 Term Rep.

§ 9. It has been determined in a modern cafe, that where a perfon granted to another, "a free and con"venient way, as well an horseway as a footway, as 560. "alfo for carts, waggons, wains, and other carriages "whatsoever in, through, over, and along a certain "flip of land, &c. leading between Flemby and Nether"hall, to carry stone, timber, coal, or other things "whatfoever." The grantee had a right to lay a framed waggon-way along the flip of land for the purpofe 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.

§ 10. It

Campbell v.
3 East. R.

Vide I Saund.

R. 323. n. 6.

2 Roll. Ab. 60. pl.17.18.

Clark v.

§ 10. It has been held in a modern cafe, 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 fufficient to leave to a jury to prefume a grant.

§ 11. Thirdly, a perfon may claim a right of way over another's land from neceffity: as, if A. grants a

piece of land to B. which is furrounded by land belonging to A., a right of way over A's. land paffes of neceffity to B.; for, otherwife, he could not derive any benefit from the land. And it is faid in Roll's Abridgement, that the feoffor shall affign the way where he may best spare it. It is also faid 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 laft paffage,

§ 12. In trefpafs upon demurrer, the case was, a Cogge, Cro. Jac. 170. perfon fold 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 refolved, without argument, that the way remained, and that he might well juftify the ufing thereof; because it was a thing of neceffity: for, otherwife, he could not have any profit of his land.

S 13. It was held in the fame cafe, that if a man hath four closes lying together, and fells three of them, referving the middle clofe, and has no way thereto,


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