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said land for the time being, at their free will and pleasure, by themselves and their servants, to enter upon a certain strip of the said close of the plaintiff, next adjoining the said close called Bloody Field, to wit, a lugfall of the said close of the plaintiff, measured from the boundary of the said two closes, for the purpose of cutting down and carrying away, and to cut down, carry away, and convert to his and their own use, the trees and wood growing and being in the said strip or lug. fall, as to the said close called Bloody Field appertaining; that the said James Emery was at the time of the alleged trespass tenant to the said William York of the said close called Bloody Field, and as such tenant, and by virtue of the said grant, was entitled to the right, at his free will and pleasure, by himself and his servants, of entering into the said strip or lugfall for the purpose aforesaid, and of cutting down, carrying away, and converting to his own use the trees and wood growing and being in the said strip or lugfall; that the said trees in the declaration mentioned were growing and being in the said strip or lugfall; and that the said trespass was committed by the defendant as the servant and by the authority of the said James Emery, and on his behalf, in the said strip or lugfall, and not elsewhere in the said close of the plaintiff, in the exercise of the said last-named right, and was a user by the said James Emery of the said right.
Seventh plea, to the residue of the declaration, never indebted.
The plaintiff demurred to the third, fourth, fifth, and sixth pleas, the ground of demurrer stated in the margin being, “ that the plea shows no defence to the action, and claims too large a right.” Joinder.
Montague Smith, Q. C. (with whom was Barstov), in support of the demurrer.
ERLE, C. J. We are much obliged to Mr. Prideaux for the assistance he has afforded us; but, after giving the best attention I could to his able argument, I come to the conclusion that the pleas are bad, and therefore that our judgment must be for the plaintiff. The pleas set up a right in the occupiers of the close of the defendant to go upon the close of the plaintiff and to take all the wood that shall be growing there. It is a claim, therefore, of a right appurtenant to the land of the defendant, to take all the profits of the land of the plaintiff, wholly unconnected with the defendant's land; and to take that as passing with the estate of the defendant. Now, all the diligence and all the learning that Mr. Prideaux has brought to bear upon the matter have failed to enable him to produce any authority for such a right as that which the defendant here claims. The case of Douglas v. Kendal, Cro. Jac. 256, was a prescription for the owner of an estate to take, as appurtenant to that estate, all the thorns that should grow upon the land of the plaintiff, to be used at the house and in the tenement of the defendant; and it falls within a class of cases perfectly well known to the law, that the owner of an estate may claim, as appurtenant to that estate, a profit to be taken in the land of another, to be used upon the
land of the party claiming the profit. But that does not bear upon the present case, because this is a claim by the owners or occupiers of the defendant's close to cut down the trees on the plaintiff's land, and to sell and dispose of them at pleasure, wholly irrespective of the land of the defendant. Mr. Prideaux has further cited the case of Sir Francis Barrington, 8 Co. Rep. 136; Liford's Case, 11 Co. Rep. 46 b, and several other cases, which show that the owner of land may grant to a man and his heirs the right to take, for instance, all the wood or all the grass that shall grow upon the land of the grantor. That would be what we call a grant in gross passing to him and his heirs ; and it may be construed to mean all the land or all the pasture, that is, the surface of the land ; or it may be construed to be a profit à prendre, - a profit taken out of the land, and lying in grant. All the cases to which our attention was drawn as supporting the defendant's argument have been cases where the grant is in gross, to a man and his heirs, and not to a man and all who may thereafter occupy a certain close.
man and a who may thereafter ou That class of cases, therefore, can have no bearing on this. The case of Hoskins V. Robins, 2 Wms. Saund. 323, bas been much pressed. There, there was a prescription very nearly to the effect of that claimed here; but I think the distinction which I pointed out in the course of the argument was one that is fully justified by our law : it was a claim to have the pasture by one of the customary tenants of a manor against the lord of the manor. There are many rights well known in manors, and capable of being supported, which arise entirely out of, and are dependent upon, the peculiar relation between the lord and the copyholder ; but the analogy cannot be borne out between those cases and a case like this. All cases of grants are supposed to pass between the tenant in fee simple of the servient tenement and the tenant in fee simple of the dominant tenement, wholly irrespective of the rights of any other. The case of Stanley v. White, 14 East, 332, and other cases stand upon the reservation of a right, — the reservation of a right (construed to be a reservation of the land itself) in the trees. It is a claim of the land, not a claim, as this is prescribed, of a right as appurtenant to the estate, and yet wholly unconnected with the estate, - a right to take all the growth of a certain kind upon the land. I cannot find any authority for such a claim. The case of Ackroyd v. Smith, 10 C. B. 164, cited for the plaintiff, is strong to show that the owner of the dominant tenement cannot claim, as appurtenant to that tenement, a profit wholly unconnected with the enjoyment of the right of property in the dominant tenement. I therefore think the claim set up upon the present occasion is not supported by any authority, and that our judgment must be against the defendant.
WILLES, J. I am of the same opinion. With reference to the first plea, which sets up a prescriptive right, it amounts to this, that, before the time of legal memory, some one made a grant to some one else, whereby the occupiers of the defendant's close for the time being, ad infinitum, were to be entitled to cut all the trees growing in the close
of which the plaintiff was in possession at the time the trespass was committed. The simple answer to that, is, that it is not an incident which can be annexed by law to the ownershin, much less to the occupation, of the land. I wish to guard myself against being supposed to deny that there may be a grant by A. to B. of the right to enter and cut trees in a given close, analogous to that which one has seen in mining setts, of the right to enter and to work mines within a given area, and to take away the minerals there found, — a grant of a right to work and take minerals, unaccompanied by a grant of the mines themselves. I also wish to guard myself against being supposed to say that the interest in either of those grants cannot be assigned over, so that the assignee could not exercise it against the original grantor. It is unnecessary to express any opinion upon that. But, for all these positions, when it may become necessary to decide them, it may be well to refer to the case of Muskett v. Hill, 5 N. C. 694, 7 Scott, 855, where it was held that a license to search for and raise minerals, and also to carry them away and convert them to the licensee's own use, passes an interest which is capable of being assigned. In the judgment in that very important case, which appears to have received great consideration, a passage is cited from Vaughan's Reports ( Thomas V. Sorrel, Vaughan, 351), where it is said : “ A dispensation or license properly passeth no interest, nor alters or transfers property in anything, but only makes an action lawful which without it had been unlawful; as, a license to go beyond the seas, to hunt in a man's park, to come into his house, — are only actions which, without license, had been unlawful. But a license to hunt in a man's park, and carry away the deer killed to his own use; to cut down a tree in a man's ground, and to carry it away the next day after to his own use, — are licenses as to the acts of hunting and cutting down, but as to the carrying away the deer killed and tree cut down, they are grants.” And, that such a grant to a man and his assigns carries an interest which is assignable, appears from the cases which are referred to in that judgment. But assuming such grants have been made, I apprehend it is clear they can only be made in gross. They convey an interest to the grantees, which grantees, if they wish to convey, must convey by the ordinary conveyances known to the law; and it is not because the grantee may happen to be the owner of the close at the time at which the grant is made to him, that such a conveyance may be dispensed with in favor of the person who may from time to time thereafter become the owner of the freehold of the close, or take the license of the owner of the freehold in the close. And the reason is a simple one, and it will be found in that class of cases now not often referred to, because the law depends principally upon the Statute of Henry the Eighth. I mean the case of a conveyance by which a certain incident is granted which, though beneficial to the grantee of the land so long as he remains the owner of it, and beneficial in respect of his ownership of the land, can be of no benefit to any other person. And the authorities are to this effect, that at com
mon law, a benefit of that description went into whosesoever hands the land might pass. The exception was the case of landlord and tenant, where the benefit runs, but, in the case of the freehold interest, the benefit only runs, and the burden does not, – a distinction wbich has been overlooked at least on one occasion. But in order to enable the assignee of the land to take advantage of such a benefit, it must be a benefit falling within the definition I have given, — a definition frequently given with reference to the question whether a covenant runs with a reservation in cases arising under the Statute of Henry the Eighth, whether it was beneficial to the land and beneficial in respect of the ownership of the land, and not beneficial to any other person. Probably a further limit may be put, namely, whether the incident was an incident of the ordinary and usual kind. With these limits, there is no doubt the benefit granted to the owner in fee of the land might pass to the owner in fee who succeeds him, either by inheritance or by grant. The occupier might well plead by way of prescription such a right, because it might have been acquired by grant; but, in respect of a matter that does not fall within that description, it is perfectly clear it cannot be made appurtenant; and, if it cannot be made appurtenant, you cannot of course prescribe a claim in respect of it, but must claim by showing there has been a conveyance of the right. This plea does not show any conveyance of the right to him, but simply shows that the tenant or occupier has the surface of the land to which it is alleged to be annesed. The law on this subject is adverted to, I observe, in the 3d edition of Gale on Easements, in the notes in pp. 10–13; and also in the case of Welcome v. Upton, 6 M. & W. 536, where the question arose whether the Prescription Act does or does not apply to a case of easement in gross. There is no doubt an easement in gross could not be claimed by an occupier under the Prescription Act, because under the Prescription Act, as has been pointed out already, the claim is by custom, prescription, or grant; and there is no doubt that a right could not be acquired under that Act, by twenty, thirty, or sixty years' enjoyment, according as it might be, whether an easement or a profit à prendre, except it was capable of being annexed to land within the rule I have mentioned. But the question has arisen whether it is not possible to plead a right in gross in the manner pointed out by the subsequent section, not a section giving the right, but a section giving the mode of pleadling. It is perfectly clear to my mind that it cannot be so pleaded without showing something more than that the person is in possession as occupier; it must be shown that he is heir or assignee of the person to whom the right in gross has been granted. The mere fact of his being in possession does not show that. Therefore, notwithstanding the learned discussions that have taken place as to whether the right of an easement in gross may be pleaded in the form given under the Prescription Act, it is quite clear to my mind that nothing has passed affecting the right of prescription, and the fourth and fifth pleas are invalid. With respect to the sixth plea, that falls under the same
grant; and the considered
principle as the third. It speaks of an express grant, and the third plea speaks of prescription. The result is that an absurdity and an anomaly in the law is excluded by this judgment. Can any one conceive anything more absurd than that B. should purchase from A. in 1800 the right to all the trees in Black Acre, and that there should have been put into the conveyance these words, for the sake of caution, “ heirs, assigns, and occupiers or tenants of A.," then in the year 1862, A. should let his close of White Acre to a tenant from year to year, and that tenant should be allowed to grant to his successor any title to cut down the trees which had been purchased by B. of his ancestors by a distinct conveyance of which he might have had no notice whatsoever? I think all the pleas are bad.
BYLES, J. I am of the same opinion. Mr. Prideaux's best plea, as it seems to me, is a plea of a lost grant, and that may be considered in this stage of the discussion as an existing grant; and the effect of it is, that at some distant period the owner of the servient tenement granted to the owner of the adjoining dominant tenement, and to his heirs and assigns, the right to cut down all the trees and wood of every description, for any purpose, to be used where he pleased ; and I think the authorities adduced by Mr. Prideaux clearly bring him halfway towards the goal. They show that this is a profit à prendre, in which a man may have an inheritable estate ; and my Lord Chief Justice pointed out in a very early stage of the argument what was the real difficult. This mar go to a man's heirs: but how can it go to his assigns? It is in no way connected with the enjoyment of the dominant tenement. There is really no more connection here, than if the owner of an estate in Northumberland were to grant a right of way to the owner of another estate in Kent; because, as has been stated (see the case of Ackroyd v. Smith), an incident of this nature cannot, even by express words in an existing deed, be connected with the estate by the mere act of the parties. It must, in addition to that, have some natural connection with the estate, as being for its benefit, or, as has been expressed, it must inhere in the estate. Therefore, if an express grant to this effect had been produced between the grantee and grantor, and going as between the heirs of the grantec and grantor, it cannot run with the estate. Lord Brougham observed, as quoted in that case, that no new incident can be connected with the estate. I own it seems to me there is a further objection to the plea of prescription, and also to the thirty years' plea and the sixty years' plea; and I agree with my Brother Willes, and I adopt his expression to the full extent, that such a claim of prescription as this is very absurd. That being so, it is unreasonable ; and it is laid down that prescriptions must be reasonable. It is not enough to say it is possible to be granted. Even if this could by law be granted, I think it falls within the objection to a prescription, that it is unreasonable, and not only ought not to be inferred by a jury, but cannot be inferred in point of law, when such a right is claimed. I think, for these reasons, and I have no doubt whatever that Mr.