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pose and on the occasion last aforesaid ; and did also use the said close in which &c. for the purpose of passing and repassing in, along, and across the same for the necessary use, occupation, and enjoyment of the said messuage and premises so in the occupation of the said defendant Gomme, as the tenants of the said last-mentioned messuage, before and at the time of the making of the said indenture so bearing date the 26th day of October, 1826, had been accustomed to use the same, as they the defendants lawfully might for the cause aforesaid.
And the plaintiff joined issue on the first and second pleas of the defendants.
To the plea of the defendants hy them lastly above pleaded, the plaintiff said that he brought this action and declared therein, not for the said supposed trespasses in the said last plea mentioned, but for the trespasses thereinafter mentioned. And the plaintiff said that, after the said conveyance to the said plaintiff as aforesaid, and after the defendant Gomme became such occupier as aforesaid, and before any of the said times when &c., to wit on the 1st February, 1833, the said defendant Gomme converted the said loft, and the space thereunder before then used as a wood-house as aforesaid, into a cottage ; and, before and at the said times when &c., the said loft and space were kept so converted into such cottage ; and, before and at the said times when &c., the said other defendant Darvell by the sufferance and permission of the said defendant Gomme, used and occupied the said cottage, and lived and resided therein, and, during all those times, the defendants ceased to use the same as a loft or wood-house as aforesaid. And the said plaintiff further said that the defendants broke and entered the said close in which &c. on other and different occasions than those in the last plea mentioned, and for other and different purposes than in that plea mentioned, to wit by then and there passing and repassing across the said close in which &c., from and to the said cottage so occupied by the defendant Darvell as aforesaid, and then and there passed to and from the said cottage, across the said close in which &c., unto and into the said other part of the said common yard in the said last plea mentioned, and thence unto and into a certain common highway there, and so from thence back again unto and into the said other part of the said common yard, and over the said close in which &c., unto and into the said cottage, for the purposes of the occupation of the same as aforesaid, and not for the said purposes in the said reservation in the said last plea mentioned. And the plaintiff said that the defendants, on the said days and times when &c., with force and arms &c., broke and entered the said close in which &c., and with feet in walking trod down, trampled upon, consumed and spoiled the grass and herbage of the plaintiff there then growing, on other and different occasions, and for other and different purposes, than in the said last plea mentioned, in manner and form as he the said plaintiff hath above thereof complained against the defendants.
And the defendants, as to the said several alleged trespasses abovenewly assigned, said that the said passing and repassing across the said close in which, &c., in the said new assignment mentioned, was done and committed by the defendants for the purposes mentioned in the said reservation in the said indenture bearing date the 26th day of October in the year of our Lord 1826, and in the manner and as the tenants of the said messuage and premises in the occupation of the said defendant Gomme, before and at the time of the making of the said last-mentioned indenture, had been accustomed to use the said close in which, &c., without this, that the defendants, or either of them, committed the said several trespasses above newly assigned, or any or either of them, or any part thereof, in manner and form as the plaintiff hath above thereof, by his said new assignment, complained against them; and of this the defendants put themselves upon the country &c. Upon which the plaintiff joined issue.
This cause was tried before our brother Littledale at Buckingham, at the Summer Assizes in 1838.
It was proved that the defendant Gomme converted the loft and the space thereunder, before then used as a wood-house, into a cottage, and that the other defendant, Darvell, by the sufferance and permission of Gomme, used and occupied the cottage, and that the defendants passed and repassed across the close in which &c. to and from the cottage as stated in the new assignment.
The jury found a verdict for the plaintiff, with 1s. damages.
The judge gave my brother Storks leave to move to enter a nonsuit, which he did, and also moved in arrest of judgment.
The question is, whether, under the terms of the deed of 26th October, 1826, the defendants were justified in going backwards and forwards to and from the cottage which was built upon the site of the space or opening under the loft and then used as a wood-house, mentioned in that deed, there being no cottage in existence there at the time of the execution of the deed.
The defendants claimed the right on two grounds.
First, that there is a right of way reserved to Browne, and those claiming under him and the future owners, to and from the space or opening under the loft then used as a wood-house; and that, such right being reserved in general terms, and without any restriction whatever, these future owners and tenants may use the way, not only to the mere site of the space or opening used as a wood-house, but also to whatever is built upon that site. The second ground of claim is, that, by the terms of the deed, Browne and those claiming under him had a right to use the yard in common with the plaintiff and his tenants, and in the same manner as the tenants had been accustomed theretofore to use the same; and that they had a right to the use of the yard under that clause of the deed without any reference to the reservation of the way.
We will give our opinion on the latter ground of claim first, as there is less difficulty in that than on the question on the reservation of the way.
The right to use the yard in question in common with the plaintiff and his tenants is confined to the use of it as it was at the time of the execution of the deed. But, when there was no cottage built on the site of the open space of ground used as a wood-house, the use of the yard was very different from what it would be when a cottage was built upon it. For, when the cottage was built, a much greater nunber of persons, perhaps some with more horses and carts, would come upon it, and be very likely to obstruct or put to inconvenience the plaintiff and his tenants, and prevent them from having the same enjoyment of it as before. And we think that, as the use of the yard by the defendant and his tenants since building the cottage is greater and more extensive, and may be more inconvenient to the plaintiff and his tenants, than it was before the cottage was built, that clause of the deed will not give the right to the defendants which they contend for.
Next, as to the reservation of the way.
It may be a question, in the first place, whether this is a way to a wood house by the description of a wood-house, or whether it is a way to the open space of ground, and the saying " now used as a wood-house” was merely to ascertain what piece of open ground was meant, and where it was. And it was contended by the defendants that, whatever might be the construction of the deed, if it was a way to a wood-house specifically, in which case it might be said that the way was limited to a wood-house merely as such, and that therefore, if the wood-house was converted into a cottage, the way was gone, yet that if the wood-house was merely mentioned to ascertain and point out the locality of the open space of ground, it could not be intended that the construction of the deed could be to confine the way to a mere piece of open ground, and that it must be intended that the way was meant to apply to a right to go to the ground, whatever was the use to which the ground was put, whether by building or by a deposit of loose articles, such as wood, coals, or any movable property.
We think, as between these two different meanings, considered as with reference to this property, the way is to be taken to be to an open piece of ground generally; and that the words “ now used as a woodhouse” are to be taken as merely ascertaining the place where the piece of open ground was, and which, of course, must be particularly ascertained, either by name or abuttals, or by the use which was made of it.
There is no direct authority to show whether, if the use of a place to and from which a way is by express words reserved or granted, be completely changed, the way can still be continued to be used.
It has been held that, if a man has a right of way to a close called A., he cannot justify using the way to go to A. and from thence to another close of his own adjoining to A. Vide 1 Rol. Abr. 391 ; 1
1 Chimin Private (A), pl. 3. See Ellison v. Isles, 11 A. & E. 673. Com. Dig. ('himin (D 5), was cited against the rule. See Heynsworth v. Bird, Trials per Pais, 623 (8th ed.). – REP.
Howell v. King, 1 Mod. 190;' Lawton v. Ward, 1 Ld. Raym. 75 ; s. c. 1 Lutw. 111. That, however, does not decide the question. The case of Ballard v. Dyson, 1 Taunt. 279, was a way claimed by prescription for cattle ; the evidence was of a carriage way, and the question was, whether that proved a drift way for cattle. It was held by all the court that a carriage way did not necessarily prove a right of way for cattle, but it was evidence for the jury to consider along with other evidence. The case however was decided on the effect of the evidence as to the user, and whether the jury had come to a correct conclusion. In delivering the judgment of the court, Lord Chief Justice Mansfield, Mr. Justice Heath, and Mr. Justice Lawrence were of opinion that the extent of the usage of a way is evidence only of a right commensurable with the user. Mr. Justice Chambre, however, was of opinion that it was not so limited.
In Cowling v. Higginson, 4 M. & W. 245, the defendant pleaded, to an action of trespass, a right of way for horses, carts, wagons, and carriages. On the trial before Mr. Justice Coleridge, it was admitted that there was a right of way for farming purposes over the locus in quo; but the defendants wished to establish a right to cart coals. On a motion for a new trial, Lord Abinger seemed to be of the same opinion that the three judges had expressed in Bullard v. Dyson, and did not agree with the opinion of Mr. Justice Chambre. Mr. Baron Parke, however, was of opinion, according to that of Mr. Justice Chambre, that, if a party has time out of mind used a way for all the purposes he wanted, it would seem to him to give him a general right. See p. 252.
In the case of Jackson v. Stacey, Holt's N. P. C. 455, Mr. Baron Wood held that the user of a way for agricultural purposes only was not suffcient to support a general right.
All these three cases, however, turned upon the evidence of usage, and were all cases for the jury upon the usage. The present case does not, however, depend upon the mode of using the way, but upon the legal effect of the reservation. Upon that we are of opinion that, under the terms of this deed, the defendant is not entitled to have the right of way claimed, but that he is to be confined to the use of the way to a place which should be in the same predicament as it was at the time of the making the deed. We do not mean to say that he could only use it to make a deposit of wood there, for we consider the words “now used as a wood-house” merely used for the ascertaining the locality and identity of the place called a space or opening under the loft; and we think he might have the benefit of the way to make a deposit of any articles, or use it in any way he pleased, provided it continued in the state of open ground. But we think he could only use it for purposes which were compatible with the ground being open, and that, if any buildings were erected upon it, it was no longer to be considered as open for the purpose of this deed.
1 Bull. N. P. 74, and Senhouse v. Christian, 1 T. R. 560, were cited against the rule. - REP.
Suppose that this piece of ground, instead of being a small quantity, had been a field of many acres, and that Browne had sold off the part above mentioned to the plaintiff, reserving to himself this right of way to the land, calling it a field then in pasture, or in corn, and had subsequently filled the land with small cottages, or had built a factory ou established gas works : it surely never could be contended that it was the meaning of either of the parties to the deed that there should be a right of way over the yard to those buildings. The supposed intention of the parties cannot, indeed, be considered ; and it can only be determined by the instrument itself what their intention was. In Luttrel's Case, 4 Rep. 86 a, the plaintiff declared that he was seised in fee of two old and ruinous fulling mills, and that, from time immemorial, a great part of the water of a certain rivulet ran from a certain place to the said mills; and that he afterwards pulled down those fulling mills, and in their place built two mills to grind corn ; and that the water ran to the new mills till such a time; and the defendants diverted the water from his corn mills. The defendants pleaded Not guilty, and the plaintiff had judgment. Then the defendants brought a writ of error in the Exchequer Chamber; and it was objected that the plaintiff, by pulling down the old fulling mills and building new mills of another nature, had destroyed the prescription, and could not have the benefit of the water for his grist mills. But the judgment of the court was affirmed; and the court held that the prescription did extend to the new grist mills, for the mill is the substance, and the addition of grist or fulling is but to show the nature of the mill. And, therefore, if the plaintiff had prescribed to have the watercourse to his mill generally, as he well might, then the case would be without question but that he might alter the mill into what nature of a mill he pleased, provided no prejudice should thereby arise either by diverting or stopping the water as it was before. And it should be intended that the grant to have the watercourse was before the building of the mills; for nobody will build a new mill before he is sure to have water; and then, the grant of the watercourse being generally to his mill, he may alter the quality of the mill at his pleasure. And the court said that, if a man has estovers, either by grant or prescription, to his house, although he alters the rooms and chambers so as to make a parlor where it was the hall, or the hall where the parlor was, and the like alteration of the qualities, and not of the house itself, and without making new chimneys, by which no prejudice arises to the owner of the wood, it is not any disturbance of the prescription ; for the many prescriptions will be destroyed; and though he builds new chimneys, or makes a new addition to his old house, by that he shall not lose his prescription : but he cannot spend or employ any of his estovers in the new chimneys, or the part newly added ; the same also of conduits and water pipes, and the like. So, if a man has an old window to his hall, and afterwards he converts the hall into a parlor or any other use, yet it is not lawful for his neighbor to stop it, for he shall prescribe to have the light in