There are many cases on the subject, many more than were referred to in the argument, and I have looked into them. Most of the early authorities are referred to in Hill v. Grange, (a) collected in a side-note in that case. They fully settle that the garden and curtilage pass by a conveyance of the house. It seems, indeed, never to have been disputed that the curtilage would pass; but the early cases seem to have differed on the question whether the garden would pass. Ultimately, however, it was settled that it would. It is important, I think, to consider the principle upon which this was so settled, and I take it to have been this, that the garden was matter of necessity and not of pleasure to the house. It was so held in Carden v. Tuck. (b) There there was a devise of a messuage to which a garden and curtilage belonged; the whole were joined together, and inclosed with a wall. The garden and curtilage were held to pass, for, as it was said, "a curtilage is as parcel of a house, and shall pass in case of a feoffment without saying cum pertinentiis." It appears, indeed, in Rolle's Abridgment, (c) that a feoffment of the curtilage, and the curtilage only, will pass the house. Reverting, however, to Carden v. Tuck, the Court, after disposing of the question as to the curtilage, doubted whether the garden would pass, because it was said it was but a place of pleasure. Ultimately, how*660 ever, the Court resolved that the garden would pass, because, as it was said, "it is as well for necessity as pleasure." We have here, therefore, I think, the principle upon which a garden passes by the conveyance of a house merely (I am not speaking of the case of the conveyance of a house with the appurtenances); viz., that it is of necessity and not of pleasure merely. * That principle seems to me to be no less applicable to the question, whether more than a garden can pass by the conveyance of a house. It is impossible, I think, in this case to say that this strip to the north is of necessity, or any thing more than of pleasure, to the house. I agree, therefore, in the conclusion of the Master of the Rolls, and think his order refusing the injunction right. I need hardly add, that I am fortified in that opinion by the position of this strip, the use to which it has been applied, and the fact of (a) Plowd. 171 a. (b) Cro. Eliz. 89. (c) Feoffment D. its having been thrown together with the other strips and let in the mode appearing by the evidence. This motion, therefore (I agreeing in the conclusion of the Master of the Rolls), must be refused, but the costs, I think, should be costs in the cause. THE LORD JUSTICE KNIGHT BRUCE.-I am unwilling to attribute to the legislature the intention of passing a law which should be subject to the interpretation which (I need not say with probable correctness) the Master of the Rolls and the Lord Justice have considered themselves bound to put upon it. I do not myself so interpret the provisions of the Act of Parliament in question; and in my judgment the appellant, according to the true construction of the Act, is entitled to an injunction. The judgments, however, of the Master of the Rolls and of my learned brother being otherwise, no injunction can be granted. * PULLING v. THE LONDON, CHATHAM, AND DOVER *661 RAILWAY COMPANY. 1864. June 4, 6, 23. Before the LORDS JUSTICES. A person held under a lease, granted in 1853, a house, with the grounds and premises thereto belonging, and also an adjoining field, hereinafter called Field A. This field had, prior to the lease, been occupied separately from the house, and was separately demised by the lease. The field in question was of irregular width, the wider part of it being at the south end, where it adjoined the house and grounds, and the field gradually tapering and becoming narrower towards the north. The lessee, after the grant of the lease, added to and enlarged the house, and took the southern part of the field into the garden, and erected stables and other buildings at the south-east corner of the field. In 1857 he became the lessee of another field, hereinafter called Field B., lying on the west side of the narrow part of Field A., and extending to the north beyond that field. In this lease of 1857 there was included a cottage, with a garden and cow-house belonging to it, lying immediately to the north of Field A. Field B. extended towards the west considerably beyond the grounds lying immediately to the north of the dwelling-house, and at the time when the suit was instituted forming part of the garden. It formed the northern boundary not only of the house and garden, but of other houses lying to the west of the lessee's house. The lessee, after the grant of the lease of Field B., took a small part of it into his garden; threw down the hedge between Fields A. and B., leaving standing a row of trees which appeared to have grown in the hedge; made a gravel walk under the trees and past the cottage up to a public road into which it opened, and also another gravel walk along the south side of Field B.; and built sheds and a poultry-house and piggery in the south-west corner of the field, and used the cottage and garden and cow-house for his coachman's residence. Field B., however, was separated from the garden by a ha-ha, having in it an iron rail fence; but there were ornamental bridges over this ha-ha leading into the field. The field was used by the lessee for keeping his cows, and occasionally for pleasurable purposes, such as archery and dancing. A railway company desiring to take and enter upon portions of Fields A. and B., for the purpose of their undertaking, paid into Court the value of the land as fixed by a surveyor, and executed a bond under the Lands Clauses Consolidation Act, 1845, § 85, and proceeded to make their railway, which when completed passed over Field B. and the narrow part of Field A. to the north on an embankment. It so passed to the south of the coachman's cottage and garden, thus cutting them off from the house; but it did not touch any erections in the field, except perhaps the corner of the cow-house. When the railway had been completed and was on the point of being opened, the lessee filed his bill against the company, stating the lease of 1853, but taking no notice of that of 1857 or his interest in Field B., submitting that the house and premises comprised in the lease of 1853 constituted a house within the 92d section of the Act, and seeking a declaration that the company was bound to purchase his interest in the whole of such house and premises, and consequential relief. The Master of the Rolls having dismissed the bill without prejudice to the plaintiff bringing an action of ejectment: Held, (1.) By the Lord Justice TURNER (dubitante the Lord Justice KNight Bruce), that the dismissal of the bill was right; and by the Lord Justice KNIGHT BRUCE (the Lord Justice TURNER yielding the point), that the direction that the dismissal was to be without prejudice to the proceedings in ejectment was right also. (2.) By both the Lords Justices, that a termor is entitled to the benefit of the 92d section of the Lands Clauses Consolidation Act, 1845, although his option would not affect the owner of the fee. 66 Per the Lord Justice TURNER: The land taken by the company for the railway was not part of the plaintiff's house" within the meaning of the 92d section of the Lands Clauses Consolidation Act, 1845, not being such as would pass by a conveyance of the house. Fergusson v. The London, Brighton, and South Coast Railway Company (supra, p. 653) adhered to. Semble (agreeing with the Master of the Rolls), that in cases of this nature a plaintiff cannot insist that some portion of his property shall be taken as part of his house, and that another portion of it, which is in precisely the same position, shall not be so taken. But semble (disagreeing with the Master of the Rolls), that upon the record, as it stood in this case, the respondents might have been decreed to take the whole of the lessee's property if they were bound to do so, and that if upon the record as it stood such a decree could not have been made, leave to amend might have been given. Quare, whether the bill might not have been dismissed solely on the ground of the lessee having delayed filing it until the railway was on the point of being opened.1 THIS was an appeal by the plaintiff from the dismissal by the Master of the Rolls of the appellant's bill without costs and without prejudice to his bringing an action of ejectment. * 662 The question in the case arose under the Lands Clauses Consolidation Act, 1845, § 192. (a) The case in the Court below is reported in the 33d volume of Mr. Beavan's Reports. (b) The following statement of facts, taken in the main from the judgment of the Lord Justice TURNER, is, when coupled with the further facts mentioned in that judgment, sufficient for the purposes of this report: The appellant was tenant of a house, at the time when the suit was instituted, called St. Arvans, at Penge, under an indenture of lease dated the 16th of September, 1853, by which indenture Thomas Griffiths demised the house and premises, then called No. 3, Royston Villas, with the grounds and premises thereunto belonging, and * also a piece or parcel of land * 663 adjoining the demised house, and called the Shoulder of Mutton field, containing 2a. 2r. 7p., to the appellant for the term of twenty-eight years from the 24th of June, 1853. The Shoulder of Mutton field was of irregular width, the wider part of it being at the south end, where it adjoined the house and grounds, and the field gradually tapering and becoming narrower towards the north. The appellant, after the grant of the lease, greatly added to and enlarged the house. He also took the southern part of the Shoulder of Mutton field into the garden, and erected stables and other buildings at the south-east corner of the field. In the year 1857, he obtained a lease of another field called Bank's field, lying on the west side of the narrow part of the Shoulder of Mutton field, and extending to the north beyond that field. In this lease there was included a cottage with a garden and cow-house belonging to it lying immediately to the north of the Shoulder of Mutton field. This field, called Bank's field, extended towards the west considerably beyond the grounds lying immediately to the north of the appellant's house, and, at the (a) Set out above, p. 653. (b) Page 644. time when the suit was instituted, forming part of his garden. It formed the northern boundary, not only of the appellant's house and garden, but of other houses lying to the west of the appellant's house. The appellant, after he obtained the lease of this field, had taken a small part of it into his garden; had thrown down the hedge between this field and the Shoulder of Mutton field, leaving standing a row of trees which appeared to have grown in the hedge; had made a gravel-walk under the trees and past the cottage up to a public road into which it opened, and also *664 another gravel-walk along the south side of the field; had built sheds and a poultry-house and piggery in the south-west corner of the field, and had used the cottage and garden and cow-house for his coachman's residence. * This field, however, was separated from the appellant's garden by a ha-ha, having in it an iron rail fence, but there were ornamental bridges over this ha-ha leading into the field. The field was used by the appellant for keeping his cows and occasionally for pleasurable purposes, such as archery and dancing. The respondent's railway passed over Bank's field and the narrow part of the Shoulder of Mutton field to the north on an embankment of the height of seventeen feet. It so passed to the south of the coachman's cottage and garden, thus cutting them off from the house, but it did not touch any of the erections in the field, except, perhaps, the corner of the cow-house. On the 5th of December, 1862, the respondents served the appellant with the usual notice to treat for the land required by them, and in a few days afterwards they paid into Court the value of the land required by them as fixed by a surveyor, and also delivered to the appellant a bond in conformity with the provisions of the 85th section of the Lands Clauses Consolidation Act. They thereupon entered upon the land and began to make their railway. The appellant, soon after the notice to treat had been served and the bond delivered to him, gave a counter-notice to the respondents, requiring them, if they took any portion of his land, to take the whole which was comprised in his leases; but no further steps appeared to have been taken by the appellant until the filing of the bill in this cause. * 665 *The bill was filed on the 27th June, 1863, when the railway had been completed and was on the point of being |