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the servient tenement does not point out the line of way, then the grantee must take the nearest way he can. If the owner of the servient tenement wishes to confine him to a particular track, he must set out a reasonable way, and then the person is not entitled to go out of the way merely because the way is rough, and there are ruts in it, and so forth. In my opinion the bill has properly admitted that the defendant has a right of way for some purposes.
Then comes the question, What is the extent of that right of way? That depends partly on a question of law, and partly on a question of fact, but mainly on a question of law. When the question of law is settled, there is no great difficulty in arriving at a proper conclusion in point of fact. The question of law is this : Assuming that it is made out that Mr. Drax and his tenants have used this way, not exclusively for agricultural purposes, but for all purposes for which they wanted it, in the state in which the land was at the time of the supposed grant, — at the time when the way first began, - and assuming that there has been no material alteration in the premises since that time, does that entitle Mr. Drax to alter substantially and increase the burden on the servient tenement by building any number of houses he pleases on this property and giving to the persons who iphabit those houses a right to use the way for all purposes connected with the houses? I certainly was under the impression when this case was opened that the owner of the dominant tenement could not increase or alter the burden on the servient tenement in any such way as that. Mr. Miller called our attention very pointedly to the language of Mr. Baron Parke in Cowfing v. Higginson, 4 M. & W. 245, which certainly raised some doubt øn my mind as to what the true rule of law is. But now that the other cases have been cited, I doubt whether Baron Parke had the question now before us present to his mind, and I am of opinion that the true rule is that laid down by Lord Chief Justice Bovill and Mr. Justice Willés in the case of Williams v. James, and substantially assented to by Baron Parke himself in the case of Henning v. Burnett, 8 Ex. 187. In Cowling v. Higginson, 4 M. & W. 245, 256, Lord Abinger is cautious in the way in which he lays down the rule. He says (4 M. & W. 256): “If a way has been used for several purposes, there may be a ground for inferring that there is a right of way for all purposes ; but if the evidence shows. a user for one purpose, or for particular purposes only, an inference of a general right would hardly be presumed.” If he has used it only for purposes connected with the occupation of the land in its existing state, that may be considered to be a user for particular purposes, and I have a doubt whether Baron Parke really intended the contrary; for if the facts in Cowling v. Higginson are looked at, it will be found that the mines had been opened, and therefore, though they had not been worked for seventy years, it was a property with existing mines in it. The way, it is true, had not been used for those mines, but as the property was a property within which there were opened mines, it might fairly be inferred that the right ex: tended to using the road for the purposes of the mines, the working them being a reasonable use of the land in the condition in which it was. But however that may be, in my opinion the true rule is that stated by Lord Chief Justice Bovill, that when a right of way to a piece of land is proved, then that is, unless something appears to the X 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. Mr. Justice Willes evidently agrees with that viewa
That being the rule, wbat are the purposes for which, according to the ordinary and reasonable uses to which this land might be applied, according to its state at the time of the grant or supposed grant, this road may be used? When Warren Farm was first enclosed we do not know, but at whatever time it may have been enclosed, one cannot suppose that anybody thought of its being used for general building pures poses, though no doubt the owner of the farm must always have required, first of all, the way to the Kingston Road in one direction, and then a way to Wimbledon, which lies in another direction. Is there any such evidence of user for purposes beyond what was necessary, and beyond what was reasonably required for the occupation of the land in its existing state, as that we can find that the right extends beyond that? I agree, if we found that several houses had been built from time to time, and that the owner had carried the materials over this road, and the occupiers of the new houses had used the road, we might infer that the right of way was not to be confined to those particular houses, because that was not the original grant, but that the parties contemplated building generally at the time of the original grant, and intended to include in it a right of way to all future houses. I will not say that there is no evidence here of such a right, but there is not sufficient evidence for us to act upon, or to lead us to say that there is a right beyond wbat is necessary and reasonable for the occupation of the premises as a farm. The enlargement of Warren Farm-house does not carry the right beyond a right for farming purposes. It would be a very narrow construction to say that where a small farm-house with some small buildings was erected 200 or 300 years ago, the right of way to it did not include a right of carting materials to enlarge the farm buildings so as to adapt them to the present state of agriculture.
Then with regard to the changing a mud cottage into a brick cottage. That is very weak evidence, if it is evidence at all; because if a mud cottage becomes unfit for human habitation, and is rebuilt with brick, although there is the carrying of bricks for the time, the burden is not permanently increased, for going to the brick cottage after it is once built is no greater burden than the going to the mud cottage. The other users that occurred of taking away gravel, of going there for the purposes of shooting, are users reasonably connected with the occupation of the premises, as they have been during the whole time that the right of way has existed, as far as we know. I am therefore of opinion that it is not made out that there is any right to use this road for
the purpose of erecting entirely new buildings, and then, after those buildings are erected, to use the road for the purpose of those buildings. I agree, therefore, that the appeal must be dismissed.
BAGGALLAY, J. A. I am of the same opinion. It appears to me that there are two questions for decision in this case. First, what is the extent of the right of way which is proved by the evidence in the case ; and, secondly, if a right of way is established limited to particular purposes, whether it can be extended consistently with the rules of law applicable to questions of the like kind. I think the judgment of Mr. Baron Parke in the case of Cowling v. Higginson has been interpreted so as to extend its application beyond what that learned Baron intended. It is true that in one part of the judgment he uses this expression : “If it is shown that the defendant, and those under whom he claimed, had used the way whenever they had required it, it is strong evidence to show that they had a general right to use it for all purposes, and from which a jury might infer a general right.” Those words taken by themselves point in the direction of Mr. Miller's argument; but I think those wide words are qualified by this further statement: “ If the way is confined to a particular purpose, the jury ought not to extend it; but if it is proved to have been used for a variety of purposes, then they might be warranted in finding a way for all.” Now let us take the case of an agricultural district where there had been a right of way to certain land exercised for agricultural purposes only for a length of time, and then it appears that there is valuable gravel on the estate, and the gravel is raised and sold from time to time, and carried over the way previously used for agricultural purposes alone; if afterwards other mineral produce is found and raised, and the way is used for carrying that away, and then the way is used for a variety of other purposes that from time to time arise in the course of the occupation of the land, I can understand that if the case went to a jury, with user for all this variety of purposes established, the jury would or might infer that the original grant was a grant for all purposes. No such case arises here. If it is not proved by evidence — as I think it is it is admitted that the right of way was used for agricultural purposes from time immemorial. In addition to that, two or three users are suggested as going beyond agricultural purposes, but do not appear to me to do so. such as building a new barn, adding a wing to the house, and the shooting. Then we have two slight circumstances, — the replacing a mud cottage upon a portion of the property by a more substantial building, and the taking gravel and carting it away. We have no eridence of user for any purposes beyond the purposes I have referred to If the case came before me as a juryman to say whether I would infer a right to use the way for all purposes, I should answer "No." It is not like a general user for all purposes, such as Baron Parke contemplated. Therefore the first question must be answered that the right of way extended to the purposes for which it has hitherto been enjoyed, and no further.
Then the second question is, whether the right to use this way being limited to the particular purposes, as to which there has been actual proof, can be extended to the purposes for which the defendant desires to use it. I think he cannot do that consistently with the rules of law which have been from time to time enunciated, and particularly in the case of Williams v. James, that you must neither increase the burden on the servient tenement, nor substantially change the nature of the user. Answering the questions that arise in this case in the way I have suggested, it appears to me that the judgment of the Master of the Rolls is correct; and, subject to the modification which has been mentioned by the Lord Justice, there must be an injunction.
BRAMWELL, B. I agree. I have nothing to add.
NEWCOMEN v. COULSON.
(Reported 5 Ch. Div. 133.] In 1760 an Act was passed for enclosing common lands at East Colthams man fish iwas passende for each Coatham, in Yorkshire. By the award made in pursuance of this Act, being in form a deed to which all the allottees were parties, the commissioners allotted to Richard Agar a portion of the common, containing 7a. Or. 4p., and directed that he should maintain the southern and eastern fences. The award conferred upon Agar and some other allottees a right of way in the following terms :
“ The said commissioners do hereby award, direct, and appoint that the said W. Turner, R. Agar, &c., and the owner and owners for the time being of the lands hereby to them respectively allotted, shall forever hereafter have and enjoy a way-right and liberty of passage for themselves and their respective tenants and farmers of the said lands_ and grounds, as well on foot as on horseback, and with their carts and carriages, and to lead and drive their horses, oxen, and other cattle, as often as occasion shall require, from the common highway leading from Redcar aforesaid to the northeast end of the said R. Agar's aforesaid allotment in the said East Stoney Butts, and from thence to the said old enclosures called West Dyke Closes, in, over, and through the east end or part of their said respective allotments in the said East Stoney Butts and Upper Half Acres to and from their said respective allotments without interruption, or paying any consideration for the same, doing as little damage to the soil or the corn, grass, or herbage as may be.”
The award also directed that in case the said allottees, or any of them, or any of the owners for the time being of their respective allotments, should “ street out” the same way leading through their said
respective allotments, the same should be made, and should forever remain, eleven yards broad, at the least, between the quicksets, but that such way was not, nor was intended to be, admitted to be a way of right for any other person or persons whomsoever than as aforesaid.
In pursuance of this award a road was set out with a quickset hedge on each side of it, being of the required width of thirty-three feet.
The defendants were the owners of a portion of Agar's allotment. The plaintiff was the lord of the manor, and also the owner of the land adjoining the highway mentioned in the award. The road set out by the award from Agar's allotment to the above-mentioned highway ran over part of the lord's said land.
The defendants had commenced building upon their land a number of villa residences, and for more convenient access to them they had commenced forming a solid granite road in lieu of the common cart-road which had for many years existed there; and they were also about to erect a bridge across a small stream called the Stell, which formed the boundary between the land allotted under the award and the high-road.
The plaintiff thereupon commenced this action, asking for an injunction restraining the defendants from erecting a bridge across the Stell, so as to rest upon or otherwise interfere with the piece of land belonging to the plaintiff situate on the south side of the high-road, and from making a road upon the eastern boundary of the plaintiff's said piece of land, and from exercising any rights of ownership thereupon, and from using the same piece of land otherwise than in accordance with their rights under the award, whereby, as the plaintiff alleged, a right of road solely for agricultural purposes over the plaintiff's said piece of land was given to the owners for the time being of the defendants' land; and for damages for wrongfully entering the plaintiff's piece of land and erecting the said bridge and making the road.
The plaintiff moved for an injunction as above. The motion was heard before Vice-Chancellor Malins on the 21st of December, 1876.
When the case was opened, Glasse, Q. C., for the defendants, submitted, for the purpose of the present application, to an injunction as to the bridge proposed to be erected over the Stell. The Vice-Chancellor refused the motion as to the right of way, but continued the interim order as to the bridge. The plaintiff appealed.
Higgins, Q. C., and Procter, for the appellant.
Glasse, Q. C., and W. W. Karslake, for the defendants, were not called upon.
JESSEL, M. R. I think that this appeal cannot be maintained. The first question to be considered is, What is the effect of the grant? It is not very artificially worded, but we must look at it with regard to the nature of the case. The enclosure was carried out in a way that was common in former times, - by a deed to which all the allottees are parties. [His Lordship read the clauses which are set out above.]