but through one of those which he fold, although he did not reserve any right of way, yet he fhall have it, as reserved to him by law. S 14. In a modern cafe, it was determined by the Court of King's Bench, that where a perfon conveys land, merely as a trustee, to another, to which there is no access, but over the trustees land, a right of way paffes of neceffity, as incident to the grant. And Lord Kenyon obferved, that it was impoffible to distinguish this from the general case, where a man grants a close furrounded by his own land, in which cafe, the grantee has a way to it, of neceffity, over the land of the grantor; merely on the ground, that the plaintiff con veyed 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 perfons who granted to him, he was intitled to fuch a way of neceffity, upon the authority of all the cafes, and the principle, that every deed must be taken most strongly against the grantor. S 15. A right of way can only be used according to the intent of the grant, or the occafion from which it arifes, but muft not exceed it; and, therefore, if a perfon has a right of way over another's close to a particular place, he cannot justify going beyond that place. § 16. In trefpass for driving cattle over the plaintiff's ground, the cafe was, A. had a way over B's. ground to 190. Lawton v. 2 Comm. 36. to Blackacre, and drove his beasts over B's. ground to Blackacre, and then to another place beyond Blackacre; and whether this was lawful or not, was the question upon demurrer. It was urged, that when the defendant's beafts were at Blackacre, he might drive them whither he would. On the other fide, it was faid, that by this means, the defendant might purchase 100 or 1000 acres adjoining to Blackacre, to which he prefcribed to have a way, by which means the plaintiff would lofe the benefit of his land; and that a prescription prefuppofed 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 fame point appears to have been determined in a subsequent cafe, in which Powell, Justice, obferved, that the difference was, where he 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 paffage, expreffes a doubt, whether this diftinction be well founded, and fays, "the true point to be confidered upon fuch a cafe, "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 "place." § 18. Sir William Blackstone fays, that by the law of the twelve tables, where a man had a right over an 13 other's 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 cafes, feems to correfpond with the Roman. § 19. This pofition is supported by the following cafe.-In an action of trefpafs for destroying his close, the defendant pleaded, that, time out of mind, there was a common footpath through the clofe, &c. The plaintiff replied, that the defendant went in other places out of the way. The defendant rejoined, that the footpath was adeo luteofa 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 paffable way. And this was refolved to be a good plea and juftification. § 20. It has, however, been refolved, in a modern cafe, that where a perfon has a right to a precife fpecific 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 trefpafs for breaking and entering a clofe, the defendant pleaded a right of way by prefcription, 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 neceffarily went over the locus in quo. The plaintiff having traversed the 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 refpecting the right of way. The question on the validity of the laft plea was argued. e 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 precife 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, 66 "the use of a thing, ought to repair it. he who has The 66 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 66 may have happened by the neglect of the defen"dants; highways are governed by a different princi"ple; they are for the public fervice, and if the usual "tract is impaffable, it is for the general good "that people fhould be entitled to pafs in another "line." Buller, Juftice.-"If this had been a way of ne ceffity, the question would have required confidera❝tion; but it is not fo pleaded. It does not appear "that the defendant had no other road." § $ 22. It feems, that by the common law, where a person grants a right of way over his land to another, the grantee, and not the grantor, is bound to repair it. But the grantor of a private way may be bound, either by express stipulation, or prescription, to repair it. And, in a modern cafe, it was determined, that in an action on the cafe against the grantor of a private way, for neglecting to repair, it was fufficient to allege generally in the declaration, that he, by reason of his poffeffion of the close in which the way is, ought to repair it: and the fpecial matter of the obligation fhall be given in evidence on the general iffue. § 23. Where a person has a right of way over another's close, and he purchases such clofe, his right of way is extinguished by the unity of feifin. But there is a distinction between a right of way which is of neceffity, and a right of way which is merely an eafement: for, in the latter cafe, it is not extinct by unity of poffeffion. way S 24. Thus, if a vill has a way to a church, and one of the vill purchases the land over which the is, yet this unity shall not extinguish the way; because it is a thing of neceffity. S25. It is faid, that where a right of way has been extinguished by unity of poffeffion, it may be revived by feverance. |