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The first point made was this: It was said that as this was a grant to the owner and owners for the time being of the lands, if the lands became severed the owners of the severed portions could not exercise the right of way. I am of opinion that the law is quite clear the other way. Where the grant is in respect of the lands and not in respect of the person, it is severed when the lands are severed, that is, it goes with every part of the severed lands. On principle, this is clear. It never could have been contemplated in the case of an award like this that the property was never to be divided, nor is it to be contended that if a man died and left two or three daughters co-heiresses, and they partitioned the estate, the right of way was lost, and their allotments forever deprived of access to the highway. But, in addition to that, I think that the case is fairly covered by authority. In Farris v. Dreie, 2 B. & Ad. 164, a pew was granted by a faculty to John Emery and his family forever, and the owners and occupiers of the said messuage, exclusively of all other persons. The plaintiff Harris occupied a summerhouse which he had converted into a house, and into which he had thrown one room of the old house. It was held that he had a right in the pew in respect of his occupation of that one room. Lord Tenterden says (2 B. & Ad. 166): The plaintiff was the occupier of the summer-house and of one room which was part of the old dwelling-house. The faculty gave a right to the several persons who should be occupiers of the messuage to use the pew.” And then Justice Littledale says: “I am of the same opinion. The plaintiff having a right by the faculty to use the pew, the church wardens had no right to interfere as they did, and were wrongdoers. It may certainly happen, in consequence of a house being subdivided, that three or four families may become entitled to use a pew belonging to the original messuage.” There are the very words, " owners and occupiers.” The same point in another shape came before the Court of Queen's Bench in Codling v. Johnson, 9 B. & C. 933, 934, where in trespass quare clausum fregit the defendant prescribed in a que estate for a right of way over the locus in quo. It appeared that the defendant's land had within fifty years been part of a large common, and afterwards enclosed under the provisions of an Act of Parliament, and allotted to the defendant's ancestor, and it was held that notwithstanding this evidence the right claimed by the defendant's plea might in law exist, and the jury having found that in fact it did exist, the court refused to disturb the verdict. Justice Bayley there says: “It appears by the report that the jury were satisfied of the existence of this immemorial right of way. Suppose this land to have been part of the waste before the enclosure, then the lord might have the right for himself and his tenants to use the way, and then each person having an allotment under the enclosure would have the right of way.” It seems to me, therefore, both on principle and authority, we must decide against the appellant.
The next point made was this: It was said that the grant conferred a right to use the way only so long as the allotment was used for agricultural
an allotice umar erect on everything the lands
purposes. I cannot find any such restriction. The right is to the owners or owner for the time being of the lands. Now land, according to English law, includes everything on or under the soil; all buildings that you may erect on it; all mines that you may sink under it. If an allottee builds a house, or, as it is said here, twenty-six liouses, on the land, the owner of each house, with the soil on which it stands, is an owner of part of the lands, and entitled to the benefit of the grant. Irrespectively of the technical meaning of the word "land," it could hardly be contended that on the occasion of an enclosure it was contemplated that at no time thereafter would any allottee erect on any part of these large allotments, which I see include old enclosures, any laborers' cottages, or any house or dwelling of any kind, or even a stable for his horses. I have no doubt, therefore, that the word "land” is used advisedly. This being so, it appears to me the right is a general right of way, a right of way to all the houses which may be built on the land in question.
Then it is said the provision that the allottees shall do as little damage as may be to the soil or the corn, grass, or herbage, prohibits what is now being done. That provision obviously is put in to show that if the way was not fenced off, the persons using it must only go from point to point in the shortest way, and not deviate over the field so as to damage the corn and grass more than necessary. It appears to me that these words by no means limit the right of the grantee to use the way for all reasonable purposes.
Then it was said, admitting the owner of each house to have a right of way, still the grantees have no right to enter upon the allotments over which the right of way is granted for the purpose of laying down a metalled road. Now, it was conceded to be the principle of law that the grantee of a right of way has a right to enter upon the land of the grantor over which the way extends for the purpose of making the grant effective, that is, to enable him to exercise the right granted to him. That includes not only keeping the road in repair, but the right of making a road. If you grant to me over a field a right of carriageway to my house, I may enter upon your field and make over it a carriage-way sufficient to support the ordinary traffic of a carriage-way, otherwise the grant is of no use to me, because my carriage would sink up to the naves of the wheels in a week or two of wet weather. It cannot be contended that the word “repair” in such a case is limited to making good the defects in the original soil by subsidence or washing away, it must include the right of making the road such that it can be used for the purpose for which it is granted. Therefore I think the defendants have a right to make an effective carriage-way going, as they are going, by the shortest route, and not interfering with the land to a greater extent in width than the width of the street pointed out by the deed itself.
The last point was this : It was said, “ Assuming the defendant has such a right, at all events he has not that right now, he has not ret comiltely built his house or houses; they are only in process of building, and he is preparing to make his road before it is wanted.” As to that, it appears to me that we must look at the case in a reasonable way. If a man is building a house or houses, and he wants carts or carriages to go along the road, either to carry materials for the building, or with a view to the use of the inhabitants of the houses when built, it is not reasonable to say that he may not make his road till the house is completed and somebody is going to inhabit it. The reasonable thing is, that he may during the building do, by way of anticipation, that which he would, according to this argument, have the right to do the moment the house was completed. But there is an additional answer to that argument, that, assuming it to be sound, it would not justify an injunction. If a man is about completing a house, and would have the right to make a road to it as soon as it was completed, the intermediate damage occasioned by his making the road while the house is building must be of the most trifling description. It must be the loss for that short time of the grass which would grow over the road which was continually traversed by men, horses, and carriages. Such a case is certainly not one in which the court will interfere by injunction. Nor was the case really put on that ground. For these reasons, it appears to me that the judgment of the Vice-Chancellor ought to be upheld.
JAMES, L. J. I am of the same opinion. As to what was read from the Vice-Chancellor's judgment about this not being an easement, I think there must be some mistake. It is an easement, and our judgment is based upon its being such. Those rights which the Master of the Rolls has held to belong to the defendants, in which I fully concur, belong to them as the owners of an easement in respect of the dominant tenement as against the owner of the servient tenement. As to forming a substantial carriage-road, I agree with the Master of the Rolls.
The case is not
spanne difficult as Dand v. Kingscote, 6 M. & W. 174, on which we are told . the Vice-Chancellor proceeded.
BagGALLAY, J. A. I agree.
LONDON v. RIGGS.
[Reported 13 Ch. D. 798.]
By an indenture dated the 6th of April, 1877, the defendant Heathcote granted to the plaintiffs, the Corporation of London, for value, cer. tain pieces of open and enclosed land being waste land of the manor of
Chingford and of Epping Forest, in the county of Esses, containing about 141 acres, to hold the same unto and to the use of the plaintiffs, their successors and assigns forever, subject to such rights of common (if any) as such hereditaments were then subject to : and the plaintiffs thereby declared that they would hold the said hereditaments as an open space forever, subject only to the forest laws and the rights of common (if any) subsisting over the said hereditaments or any part thereof.
By the Epping Forest Act, 1878, it was enacted that Epping Forest (which included the hereditaments conveyed by the said indenture) should be regulated and managed by the Corporation of London as conservators thereof. And by the said Act Epping Forest was disafforested; and it was provided that, subject to the provisions of the Act, the said conservators should at all times keep Epping Forest unenclosed and unbuilt upon as an open space for the recreation and enjoyment of the public, and should by all lawful means prevent enclosures, encroachments, and buildings, and all attempts for the purpose on any part thereof or to appropriate or use the same, or the soil, timber, or roads thereof, or any part thereof, for any purpose inconsistent with the objects of the Act.
At the date of the said indenture of the 6th of April, 1877, the defendant Heathcote, and for many years continuously before and down to the date thereof, he and his predecessors in title was and were seised in fee simple of the said hereditaments conveyed by the said indenture, and also of a piece of old enclosed land of about two acres called the Barn Hoppet, which was entirely surrounded by the hereditaments so conveyed to the plaintiffs.
During such unity of seisin in the defendant Heathcote of the said hereditaments so conveyed to the plaintiffs and of the Barn Hoppet, and down to the acts thereinafter complained of, the Barn Hoppet was exclusively used for agricultural purposes, and there were no buildings thereon. There was a gate on the northwest side thereof, but no road, path, or defined track leading to such gate, or to any other part of the Barn Hoppet, and the defendant Heathcote and his predecessors, owners of the Barn Hoppet and of the lands conveyed to the plaintiffs, and the tenants of the Barn Hoppet, obtained access to the Barn Hoppet, and conveyed their crops, manure, and other things necessary for and arising from the cultivation thereof, to and from the same by crossing the lands so conveyed in various directions to and from a road or track leading from a road called Whitehall Road on the south side of the land so conveyed to a house called Queen Elizabeth's Lodge on the north side thereof, and to and from a barn near to and held with the house.
The said indenture of the 6th of April, 1877, did not expressly reserve any right of way for the defendant Heathcote, his heirs or assigns, tenants or occupiers, to the Barn Hoppet.
The defendant Riggs, in the month of September, 1879, entered into possession of the Barn Hoppet as tenant of the defendant Heathcote,
ed track gate on the poses, and to
together in attract great the said acts, defendant
and had since made preparations for the erection on the Barn Hoppet of a house and other buildings for the sale of refreshments to the pub·lic. He had also dug trenches for the foundations of the house, had erected a workshop, and had drawn timber and other materials for the erection of the workshop and other buildings across the land conveyed to the plaintiff's by the indenture of the 6th of April, 1877, and had thereby made an unlawful use of the said waste, and had injured the surface of the said land and the herbage growing thereon, and had encroached upon the soil of the said forest. He and the defendant Heathcote threatened and intended to continue the said acts, and by the use of the intended buildings to attract great numbers of persons and cause them to collect together in order to visit and frequent the same, and for those purposes to cross the lands so conveyed to the plaintiffs both in carriages and on foot, and would thereby do further injury to and make further encroachments upon the soil and herbage of the said forest; and the defendants respectively claimed a right so to do.
The plaintiff's accordingly claimed, 1, that it might be declared that the defendants were not entitled to a greater or other way to and from the Barn Hoppet across the lands conveyed to the plaintiffs by the indenture of the 6th of April, 1877, than a way of necessity sufficient for the use of the Barn Hoppet for agricultural purposes only ; and that, if necessary, the position, dimensions, and other particulars of the said way of necessity might be set out and defined ; 2, that the defendant Riggs might be restrained from drawing or causing to be drawn across the lands so conveyed to the plaintiffs any timber or other materials for erecting upon the Barn Hoppet any building to be used for any purpose other than the ordinary agricultural purposes to which such piece of land was applied before and at the date of the conveyance to the plaintiffs; and that both the defendants might be restrained from otherwise using the said way of necessity, or the said lands so conveyed to the plaintiffs, or any part thereof, as a means of access to the Barn Hoppet otherwise than in accordance with such declaration ; and, 3, damages.
The defendants demurred to the whole of the statement of claim, except so far as it claimed, if necessary, to have the position and dimensions of a way of necessity to the Barn Hoppet set out and defined. The demurrer also alleged that, except as aforesaid, the statement of claim was bad in law on the ground that the defendant Heathcote and his tenants were entitled to a way of necessity to the Barn Hoppet across the lands conveyed to the plaintiffs for the use of the Barn Hoppet for all purposes, and not for agricultural purposes only.
The demurrer now came on to be argued.
JESSEL, M. R. I am afraid that, whatever I may call my decision, it will, in effect, be making law, which I never have any desire to do; but I cannot find that the point is covered by any decided case, or even
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