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such a part of the house. And although in this case the plaintiff has made a question, forasmuch as he has not prescribed to have the watercourse to his mill generally, but particularly to his fulling mill, yet, inasmuch as the mill was the substance, and the addition demonstrates only the quality, and the addition was not of the substance but only of the quality or name of the mill, without prejudice in the watercourse to the owner thereof, it was resolved that the prescription remained.
The court, therefore, appears to have put the case on whether the alteration of the thing, in respect of which the right was claimed, was of the substance and not merely of the quality of the thing. Now the alteration of a piece of vacant ground into a cottage is certainly an alteration of the substance, and not merely of the quality.
A great number of cases have occurred of late years, as to lights, where there has been an alteration in the building in respect of which the lights were claimed ; and, in some of them, the question has been, whether the original right has not been altogether extinguished by the alteration. We do not think it necessary to advert to the particular circumstances of the cases ; but in none of them was it contended that, if the substance of the thing in respect of which the right was claimed was altered so as to occasion any injury or prejudice to the person who supplied the easement, any additional right of easement could be acquired. We think therefore that the defendants had no right to use the way to the newly erected cottage, and that therefore there is no ground to enter a nonsuit.
As to the motion in arrest of judgment upon the new assignment, it is made upon the ground that the replication is no answer to the plea, and that the new assignment is only in respect of trespasses which on the record appear to be justified by the plea.
As to the replication being no answer to the plea, it is not in fact a replication properly so called, but it is a new assignment; and it begins with stating that the plaintiff brought his action, not for the trespasses mentioned in the plea, but for the trespasses thereinafter mentioned ; and then it goes on to enumerate other trespasses, and the circumstances under which they were committed. And we think that the plea, for the reasons we have before given, affords no answer to them, and that therefore there is no ground for arresting the judgment.
But besides, the merits of the cause being against the defendants on this point, the defendants could not, even in point of form, have the judgment arrested, as the record now stands ; for at the end of the new assignment there is a general allegation, independent of the question about the way or the use of the yard, that the defendants committed the trespasses on other occasions, and for other purposes than those mentioned in the plea, to which no answer is given in any part of the record, except the traverse at the end of the plea to the new assignment, which is in effect only Not guilty.
The rule, therefore, for entering a nonsuit, and also for arresting the judgment, must be discharged.
DARE v. HEATHCOTE.
[Reported 25 L. J. Ec. 245.) TRESPASS quare clausum fregit, with carts and horses. Plea – Right of way for cattle, horses, and carts. Issue thereon.
At the trial before Pollock, C. B., at the London Sittings after Hilary Term last, it appeared that the defendant was the owner of land, to which the only way was across the land of the plaintiff, the locus in quo, and that the defendant had for upwards of twenty years always used the way for the purpose of taking cattle to pasture, and this was the only use to which it was then necessary to apply the right of way until about twelve years before the action, when he had built the farm-house, and then used the way with carts and horses for carrying bricks and mortar to the house. And since that time he had used the way for all purposes connected with the occupation of the farm ; and with carts and horses as well as for cattle only. Pollock, C. B., was of opinion that the exercise of the right for twelve years past for all purposes, and for twenty years for the only purposes to which the defendant could have required to apply it, was evidence from which the jury might infer the existence of the general right pleaded. A verdict, however, was found for the plaintiff; and a rule having been granted to set aside the verdict and enter it for the defendant, or for a nonsuit, —
J. Henderson (with him Channell, Serjt.), for the plaintiff, showed cause. — There was no evidence of the exercise of the right pleaded for twenty years.
[ALDERSON, B. Yes; there was sufficient prima facie evidence. It was the only evidence which could be given in cases in which the occa
1 "In Allan v. Gomme a more strict rule was laid down than I should have been disposed to adopt ; for it was said that the defendant was 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 of the deed. No doubt, if a right of way be granted for the purpose of being used as a way to a cottage, and the cottage is changed into a tan-yard, the right of way ceases ; but if there is a general grant of all ways to a cottage, the right is not lost by reason of the cottage being altered. ... The case of Allan v. Gomme, 11 A. & E. 759, would probably authorize us to make this rule absolute. I confess, however, that I do not concur to the full extent of the doctrine there laid down, although that decision may be supported by the context, because it was a reservation of a right of way to that space only, which was then used as a wood-house, and was not like the case of a general grant of a way to Greenacre, which would mean for whatever purpose the field was used, unless limited by the context.” Per PARKE, B., in Henning v. Burnet, 8 Ex.' 187, 192, 194.
See Cannon y. Villars, 8 Ch. D. 415.
sion for the exercise of the general right has only arisen within twenty years. The contrary doctrine would practically deprive the defendant of the power of ever asserting or establishing his right. The principle has often been applied in cases of prescription for moduses. In no other way could moduses for potatoes, for instance, ever have been established. Some potatoes have been introduced into this country since the time of legal memory commenced ; so of many new grasses that have been brought into our agriculture in recent years. Bayley v. Drever, 1 Ad. & E. 449; s. C. 3 Law J. Rep. N. S. Exch. Ch. 369. You must generalize in some degree in all such cases. Surely it is some evidence that a party has a right, for all purposes, to show that he has exercised it from time to time for all the purposes for which he could exercise it?
Shee, Serjt., and Bovill, for the defendant.
PER CURIAM (POLLOCK, C. B., ALDERSON, B., and MARTIN, B.). The case is clear. The principle was established in Cowling v. Higginson, 4 Mee. & W. 245 ; s. c. 7 Law J. Rep. N. S. Esch. 265. The direction was quite right, and therefore the rule will be absolute for e nonsuit.
WILLIAMS v. JAMES.
COMMON PLEAS. 1867.
[Reported L. R. 2 C. P. 577.] DECLARATION for trespass to land.
Fifth plea, that one Ann Morgan was owner in fee of certain land, and was entitled by immemorial user to a right of way over the plaintiff's land, on foot, and with wagons, carts, and horses, to a public highway from her said land, for the more convenient occupation thereof; that Ann Morgan demised this land with its appurtenances to one Jenkins; and that the alleged trespasses were the use of the right of way by the defendant, as the servant of Jenkins.
Issue and new assignment of excess in the user of the way.
At the trial before Pigott, B., at the Spring Assizes for Monmouthshire, the following facts were proved : Ann Morgan was owner in fee of a field called the Nine-acre field, and of two other fields adjoining, called Parrott's land. These three fields were in the occupation of R. Jenkins. There was from time immemorial a right of way on foot and for wagons, carts, and horses, from the Nine-acre field over the plaintiff's land to a public highway. There was no right of way over the plaintiff's land from Parrott's land. In the summer of 1866 Jen. kins mowed the Nine-acre field and Parrott's land, and stacked all the hay upon the Nine-acre field. In September, 1866, Jenkins sold the hay to the defendant, who carted it over the plaintiff's land to the highway, which was the alleged trespass.
The jury found, first, that there was an immemorial right of was from the Nine-acre field to the highway; secondly, that the stacking of the hay was done honestly, and not to get the way further on ; thirdir, that there was no excess in the user of the war by the defendant, apart from the question of defendant's right to cart the hay grown on Parrott's land over the plaintiff's land ; fifthly, if Parrott's land has could not be legally carried over the plaintiff's land, then damages 40s.
Pigott, B., directed a verdict for 40s. to be entered for the plaintiff, with leave to the defendant to move to onter the verdict for him.
A rule having been obtained accordingly, Huddleston, Q. C., and Jelf (J. 0. Griffits with them), showed cause.
Gilmore Evans (H. Matthews with him), contra.
Bovill, C. J. In all cases of this kind which depend upon user the right acquired must be measured by the extent of the enjoyment which is proved. When a right of way to a piece of land is proved, then that is, unless something appears to the contrary, a right of way for all purposes according to the ordinary and reasonable use to which that land might be applied at the time of the supposed grant. Such a right cannot be increased so as to affect the servient tenement by imposing upon it any additional burden. It is also clear, according to the authorities, that where a person has a right of way over one piece of land to another piece of land, he can only use such right in order to reach the latter place. He cannot use it for the purpose of going elsewhere. In most cases of this sort the question has been whether there was a bona fide or a mere colorable use of the right of way. That was the question in Skull v. Glenister, 16 C. B. N. S. 81 ; 33 L. J. C. P. 185, and on which the case was ultimately decided. This question is excluded here by the finding of the jury.
With respect to the purposes for which the land was used, it is agreed on both sides that that question was raised and discussed at the triat; and the question whether there had been any excess in the user of the right of way, and also the question of the bona fides of Jenkins in stacking the hay, were left to the jury. The question, therefore, of what was the ordinary and reasonable use of the land, was practically left to the jury. They found that Jenkins acted honestly; and that is equivalent to finding that what had been done was done in the ordinary and reasonable use of the land to which the right of way was claimed, and in the ordinary and reasonable use of the right of way itself. It was for the plaintiff to show that there had been some excess of user on the part of the defendant, as by showing that the user of the right of way was only colorable, or that the Nine-acre field was used for purposes other than those included in the ordinary and reasonable use of the land. The finding of the jury excludes both these questions. In considering the matters submitted to them, the jury must have had to consider whether any additional burden had been cast upon the servient tenement. This was a necessary element for them to take into consideration in deciding whether there had been only an ordinary and
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reasonable use of the land in question. If no additional burden was cast upon the servient tenement, the jury might well find that there had been only the ordinary and reasonable use of the right of way. On the whole, the right of way being established, and the plaintiff not showing any excess in the user, I think the defendant is entitled to the verdict, and this rule must therefore be made absolute.
WILLES, J. I am of the same opinion. The distinction between a grant and prescription is obvious. In the case of proving a right by prescription, the user of the right is the only evidence. In the case of a grant, the language of the instrument can be referred to, and it is of course for the court to construe that language ; and in the absence of any clear indication of the intention of the parties, the maxim that a grant must be construed most strongly against the grantor must be applied. Accordingly, in South Metropolitan Railway Company v. Eden, 16 C. B. 42, where a grant was produced without stating the object of the grant, it was the opinion of the judges that the grant was general, and that the way in that case might be used to any part of the land to which the way was granted.
I agree with the argument of Mr. Jelf that in cases like this, where a way has to be proved by user, you cannot extend the purposes for which the way may be used, or for which it might be reasonably inferred that parties would have intended it to be used. The land in this case was a field in the country, and apparently only used for rustic purposes. To be a legitimate user of the right of way, it must be used for the enjoyment of the Nine-acre field, and not colorably for other closes. I quite agree also with the argument that the right of way can only be used for the field in its ordinary use as a field. The right could not be used for a manufactory built upon the field. The use must be the reasonable use for the purposes of the land in the condition in which it was while the user took place. A right of way by user was here proved, and I think the verdict of the jury excludes the excess of the user charged by the plaintiff. Honest user of the Nine-acre field must have been understood by the jury in the large sense of bona fide and reasonable, not a user in order to get an advantage to which the defendant was not entitled. The finding of the jury was, that the land was used honestly, and not in order to get a right of way further on. This is equivalent to finding that the stacking of the hay on the Nine-acre field was in the reasonable and ordinary use of it as a field; also that the carting was from the Nine-acre field, and not from Parrott's land. I think both these propositions are included in the finding. I think, therefore, that the rule must be made absolute. We could not refuse this without splitting straws on a subject which ought to be dealt with substantially. The case has been well argied on both sides, and Mr. Jelf has said all that could he said for the plaintiff.
MONTAGUE Smith, J. The proposition contended for by Mr. Jelf in his able argument is, that this question is to be decided by us as a matter of law. I think that is not so. It is an admitted fact that some of the hay carried from the Nine-acre field was grown on Parrott's