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but through one of those which he fold, although he did not reserve any right of way, yet he shall have it, as reserved to him by law.
S 14. In a modern case, it was determined by the Howton v.
Frearson, Court of King's Bench, that where a person conveys 8 Term Rep land, merely as a trustee, to another, to which there 50. is no access, but over the trustees land, a right of way passes of necessity, as incident to the grant. And Lord Kenyon observed, that it was impossible to distinguish this from the general case, where a man grants a close surrounded by his own land, in which case, the grantee has a way to it, of necessity, over the land of the grantor; merely on the ground, that the plaintiff conveyed to the defendant in the character of a trustee : for it could not be intended that he meant to make a void grant; there being no other way to the defendant's close, but over the land of one of the persons who granted to him, he was intitled to such a way of necessity, upon the authority of all the cases, and the principle, that every deed must be taken most strongly against the grantor.
15. A right of way can only be used according to How a Right the intent of the grant, or the occasion from which it
of Way is to
be used. arises, but must not exceed it; and, therefore, if a person has a right of way over another's close to a particular place, he cannot justify going beyond that place.
$ 16. In trespass for driving cattle over the plaintiff's Howell v.
King, ground, the case was, A. had a way over B’s. ground
1 Mod. Rep. to 190.
to Blackacre, and drove his beasts over B’s. ground to
prescribed to have a way, by which means the plaintiff would lose the benefit of his land ; and 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 judgment was given for the plaintiff.
§ 17. The same point appears to have been determined in a subsequent case, in which Powell, Justice, observed, that the difference was, where he
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, “ fhould seem to be, quo animo the party went to " the close; whether really and bona fide to do bu“ finess there, or merely in his way to some distant
2 Comm. 36.
$ 18. Sir William Blackstone says, that by the law of the twelve tables, where a man had a right over an
other's land, and the road was out of repair, he who had the right of way might go over any part of the land he pleased, which was the established rule in public as well as private ways: and that the law of England, in both cases, seems to correspond with the Roman.
S 19. This position is supported by the following case.-In an action of trespass for destroying his close, W. Jones,
296. the defendant pleaded, that, time out of mind, 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 the footpath was adeo luteosa et funderofa, in default of the plaintiff, who ought to amend it, that he could not pass along it, and therefore he went as near the path as he could, in good and passable way. And this was resolved to be a good plea and justification.
S 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, Taylor v. the defendant pleaded a right of way by prescription, Whitehead,
Doug. 745. 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.
The question on the validity of the last plea was argued.
Lord Mansfield.—“ The question is 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 fpe“ cific way. The grantor fays, 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 overflow: « ing of the river, and, for ought that appears, that
may have happened by the neglect of the defen“ dants; highways are governed by a different princi.
ple; they are for the public service, and if the usual “ tra& is impassable, it is for the general good « that people should be entitled to pass in another " line."
Buller, Justice.- “ If this had been a way of ne
cessity, the question would have required considera« tion ; but it is not so pleaded. It does not appear " that the defendant had no other road.”
a. n. 4.
22. It seems, that by the common law, where a Who are
bound to reperson grants a right of way over his land to another,
pair a Way. the
grantee, and not the grantor, is bound to repair i Sand. 322 it. But the grantor of a private way may be bound, Ante, I. 20. either by express stipulation, or prescription, to repair it. And, in a modern case, it was determined, that Rider v.
Smith, in an action on the case against the grantor of a
3 Term Rep. private way, for neglecting to repair, it was suffi- 766. cient to allege generally in the declaration, that he, by reason of his possession of the close in which the way is, ought to repair it: and the special matter of the obligation shall be given in evidence on the general issue.
§ 23. Where a person has a right of way over an- How a Right
of Way may other's close, and he purchases such close, his right of be extinguishway is extinguished by the unity of seifin. But there
i Roll. Ab. is a distinction between a right of way which is of ne- 935:
Heigate v. cessity, and a right of way which is merely an ease. Williams,
Noy 119. ment: for, in the latter case, it is not extinct by unity Surry v.
Pigot, of possession.
3 Bullt. 340.
S 24. Thus, if a vill has a way to a church, and Roll. Ab. one of the vill purchases the land over which the way
936. is, yet this unity shall not extinguish the way; because it is a thing of necessity.
§ 25. It is said, that where a right of way
has been extinguished by unity of posseslion, it may be revived by severance.