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amongst others, that the plea did not show that the trespasses justified were committed in going to or from the premises conveyed, or that they were in any way connected with the enjoyment of those premises.
In support of the demurrer, it was contended, — first, that the road granted was only for purposes connected with the occupation of the land conveyed, and therefore was not sufficient to support the justification pleaded ; and, secondly, that, if the grant was more ample, and gave to the grantee a right of using the road for all purposes, although they might not be in any way connected with the enjoyment of the land, it would not pass to an assignee of the land, and therefore the defendants could not claim it under a conveyance of the land, with the appurtenances. On the other hand, it was contended that the right created by deed might be assigned by deed, together with the land, and was large enough to maintain the justification pleaded.
Upon consideration, we have come to the conclusion that the plaintiff is entitled to our judgment on the demurrer.
If the right conferred by the deed set out, was only to use the road in question for purposes connected with the occupation and enjoyment of the land conveyed, it does not justify the acts confessed by the plea. But, if the grant was more ample, and extended to using the road for purposes unconnected with the enjoyment of the land, — and this, we think, is the true construction of it, - it becomes necessary to decide whether the assignee of the land and appurtenances would be entitled to it. In the case of Keppell v. Bailey, 2 Mylne & K. 517, the subject of covenants running with the land was fully considered by Lord Chancellor Brougham; and the leading cases on it are collected in his judgment. He there says (2 Mylne & K. 537): “ The covenant (that is, such as will run with the land) must be of such a nature as 'to inhere in the land,' to use the language of some cases; or, it must concern the demised premises, and the mode of occupying them,' as it is laid down in others : “it must be quodammodo annexed and appurtenant to them,' as one authority has it; or, as another says, “it must both concern the thing demised, and tend to support it, and support the reversioner's estate.'” Now, the privilege or right in question does not inhere in the land, does not concern the premises conveyed, or the mode of occupying them; it is not appurtenant to them. A covenant, there
Stables Ackroyd ; he the said John Smith, his heirs and assigns, paying to the said Robert Stables Ackroyd, his heirs and assigns, a proportionate part of the expense of repairing the said road, according to the use thereof hy him or them, not exceeding the actual damage done to the road by the wear and tear thereof by the said John Smith, his heirs and assigns ; and the said Robert Stables Ackroyd keeping the said road at all times in good and sufficient repair ;” waters, mines, “rights, liberties, privileges, easements, profits, commodities, emoluments, hereditaments, and appurtenances” to the parcels, “or any part thereof respectively, belonging, or in any wise appertaining, or with the same, or any of them, or any part thereof respectively, now or at any time heretofore, held and occupied, or enjoyed, or accepted, reputed, deemed, taken, or known as part, parcel, or member thereof, or of any part thereof respectively, or appurtenant thereto.”
fore, that such a right should be enjoyed, would not run with the land. Upon the same principle, it appears to us that such a right, unconnected with the enjoyment or occupation of the land, cannot be annexed as an incident to it, nor can a way appendant to a house or land be granted away, or made in gross; for no one can have such a way but he who has the land to which it is appendant. Bro. Abr., Grant, pl. 130. If a way be granted in gross, it is personal only, and cannot be assigned. So, common in gross sans nombre may be granted, but cannot be granted over (per Treby, C. J., in Weekly v. Wildman, 1 Ld. Raym. 407). It is not in the power of a vendor to create any rights not connected with the use or enjoyment of the land, and annex them to it; nor can the owner of land render it subject to a new species of burden, so as to bind it in the hands of an assignee. " Incidents of a novel kind cannot be devised, and attached to property, at the fancy or caprice of any owner” (per Lord Brougham, C., in Keppell v. Bailey). This principle is sufficient to dispose of the present case.
It would be a novel incident annexed to land, that the owner and occupier should, for purposes wholly unconnected with that land, and merely because he is owner and occupier, have a right of road over other land. And it seems to us that a grant of such a privilege or easement can no more be annexed, so as to pass with the land, than a covenant for any collateral matter.
The defendants cannot, therefore, as assigns, avail themselves of the grant to John Smith ; and our judgment must be for the plaintiff.
Judgment for the plaintiff, Tomlinson, in support of the demurrer. T. F. Ellis, contra.?
HILL V. TUPPER.
[Reported 2 H. & C. 121.] DECLARATION. For that, before and at the time of the committing by the defendant of the grievances hereinafter mentioned, the plaintiff was entitled to, and had and was possessed of, the sole and exclusive right or liberty to put or use boats on a certain canal, called the Basingstoke Canal, for the purposes of pleasure and to let the same boats
1 Citing 5 H. 7, 7 (M. 5 H. 7, fo. 7, pl. 15): “Note, that it was said by Fairfax (Justice of C. P.) for law, that, if one has a way appendant to his manor, or to his house, by prescription, that way cannot be made in gross; because no man can take profit of that way, except he have the manor or the bouse to which the way is appendant.” — REP.
2 See Thorpe v. Brumfitt, L. R. 8 Ch. 650 ; Garrison v. Rudd, 19 Ill. 558.
for hire on the said canal for the purposes of pleasure. Yet the plaintiff says that, whilst he was so entitled and possessed as aforesaid, the defendant, well knowing the premises, wrongfully and unjustly disturbed the plaintiff in the possession, use, and enjoyment of his said right or liberty, by wrongfully and unjustly putting and using, and causing to be put and used, divers boats on the said canal for the purposes of pleasure, and by letting boats on the said canal for hire, and otherwise for the purposes of pleasure. By means of which said premises the plaintiff was not only greatly disturbed in the use, enjoyment, and possession of his said right and liberty, but has also lost great gains and profits which he ought and otherwise would have acquired from the sole and exclusive possession, use, and enjoyment of his said right or liberty, and was otherwise greatly aggrieved and prejudiced.
Pleas. — First : Not guilty ; secondly: that the plaintiff was not entitled to, nor had he, nor was he possessed of, the sole and exclusive right or liberty to put or use boats on the said canal for the purposes of pleasure, nor to let the said boats for hire on the said canal for the purposes of pleasure as alleged. — Issues thereon.
At the trial, before Bramwell, B., at the London Sittings, after last Hilary Term, the following facts appeared : Under the 18 Geo. 3, c. 75, the Company of Proprietors of the Basingstoke Canal Navigation were incorporated with perpetual succession and a common seal, for the purpose of making and maintaining a navigable canal from the town of Basingstoke, in the county of Southampton, to communicate with the River Wey in the parish of Chertsey, in the county of Surrey. The lands purchased by the Company of Proprietors, under their parliamentary powers, were by the Act vested in the company.
By the 100th section of the Act it is enacted : “ That it shall and may be lawful for the owners and occupiers of any lands or grounds adjoining to the said canal, to use upon the said canal any pleasure boat or boats, or any other boat or boats, for the purpose of husbandry only, or for conveying cattle from one farın, or part of a farm or lands to any other farm or lands of the same owner or occupier, without interruption from the said Company of Proprietors, their successors or assigns, agent or agents, and without paying any rate or duty for the same; and so as such boat or boats be not above seven feet in breadth, and do not pass through any lock to be made on the said navigation, without the consent of the said Company of Proprietors, their successors or assigns, or be employed for carrying any goods, wares, or merchandise to market or for sale, or any person or persons for hire; and so as the same shall not obstruct or prejudice the said navigation, or the towing-paths, or obstruct any boats passing upon the said navigation liable to pay the rates or duties aforesaid ; and the owner of all such pleasure boats or other boats shall, in his own lands or grounds, make convenient places for such boats to lie in, and shall not suffer them to be moored or remain upon the said canal.”
The defendant was the landlord of an inn at Aldershot adjoining the canal, and his premises abutted on the canal bank. The plaintiff, who was a boat proprietor, also occupied premises at Aldershot on the bank of the canal, which he held under a demise from the Company of Proprietors, and by virtue of the demise claimed the exclusive right of letting out pleasure boats for hire upon the canal, which was the right the defendant was alleged to have disturbed.
The lease under which the plaintiff claimed this right was dated the 29th of December, 1860, and by it, in consideration of the rents, covenants, and agreements therein contained, the said Company of Proprietors demised to the plaintiff, under their common seal, for the term of seven years from the 24th of June, 1860, at the yearly rent of £25, “ All that piece or parcel of land containing nineteen poles or thereabouts, adjoining Aldershot wharf, situate in the parish of Aldershot aforesaid, and the wooden cottage or tenement, boat-house, and all other erections now or hereafter being or standing thereon, &c.” (describing the premises by boundaries, and by reference to a plan), “ together with the appurtenances to the same premises belonging. And also the sole and exclusive right or liberty to put or use boats on the said canal, and let the same for hire for the purposes of pleasure only.” The lease contained various covenants framed with the object of preventing any interference by the plaintiff's pleasure boats with the navigation of the canal, and a proviso for re-entry for any breach of the covenants.
The evidence of the defendant was at variance with that adduced on behalf of the plaintiff upon the question whether the defendant had ever let out boats upon the canal for hire, in the sense of a direct money payment. The defendant did not deny that he kept pleasure boats, and used them upon the canal, but stated that he kept them for the use of his family ; he admitted, however, that gentlemen had come from time to time to his inn and used these boats for fishing and bathing.
The learned judge reserved leave to move to enter a nonsuit or verdict for the defendant, and left to the jury the question whether the defendant had obtained any pecuniary advantage from the boats. The jury found a verdict for the plaintiff; damages, a farthing.
Hance, on a former day in this term, obtained a rule nisi to enter a nonsuit or verdict for the defendant on the ground, first, that the Company of Proprietors of the Basingstoke Canal Navigation had no power to grant the exclusive right claimed ; secondly, that, if the grant were good, the action would not lie by the plaintiff against the defendant for the alleged infringement of the right: or for a new trial on the ground of misdirection by the judge in directing the jury that the defendant was liable if he obtained any pecuniary advantage from the boats.
Garth and Holl, showed cause.
Bernard (with whom was Montagu Chambers and Hance), appeared in support of the rule, but was not called upon to argue.
POLLOCK, C. B. We are all of opinion that the rule must be absolute to enter the verdict for the defendant on the second plea. After the
very full argument which has taken place, I do not think it necessary to assign any other reason for our decision, than that the case of Ackroyd v. Smith, 10 C. B. 164, expressly decided that it is not competent to create rights unconnected with the use and enjoyment of land, and annex them to it so as to constitute a property in the grantee. This grant merely operates as a license or covenant on the part of the grantors, and is binding on them as between themselves and the grantee, but gives him no right of action in his own name for any infringement of the supposed exclusive right. It is argued that, as the owner of an estate may grant a right to cut turves, or to fish or hunt, there is no reason why he may not grant such a right as that now claimed by the plaintiff. The answer is, that the law will not allow it. So the law will not permit the owner of an estate to grant it alternately to his heirs male and beirs female. A new species of incorporeal hereditament cannot be created at the will and pleasure of the owner of property ; but he must be content to accept the estate and the right to dispose of it subject to the law as settled by decisions or controlled by Act of Parliament. A grantor may bind himself by covenant to allow any right he pleases over his property, but he cannot annex to it a new incident, so as to enable the grantee to sue in his own name for an infringement of such a limited right as that now claimed.
MARTIN, B. I am of the same opinion. This grant is perfectly valid as between the plaintiff and the Canal Company; but in order to support this action, the plaintiff must establish that such an estate or interest vested in him that the act of the defendant amounted to an eviction. None of the cases cited are at all analogous to this, and some authority must be produced before we can hold that such a right can be created. To admit the right would lead to the creation of an infinite variety of interests in land, and an indefinite increase of possible estates. The only consequence is that, as between the plaintiff and the Canal Company, he has a perfect right to enjoy the advantage of the covenant or contract; and, if he has been disturbed in the enjoyment of it, he must obtain the permission of the Canal Company to sue in their name. The judgment of the Court of Common Pleas in Ackroyd v. Smith, 10 C. B. 164, and of Lord Brougham, C., in Keppell v. Bailey, 2 Myl. & K. 517, 535, are, in the absence of any case to the contrary, ample authority for our present decision.
BRANWELL, B. I am of the same opinion. I will only add, that the defendant cannot have the verdict entered for him on the plea of not guilty, for no leave was reserved at the trial; and the defendant could only succeed on that issue by obtaining a new trial on the ground of misdirection. The rule must therefore be absolute to enter the verdict for the defendant on the second plea, unless the plaintiff elects to be nonsuited; but as he can never make a better case, the better course would be to enter the verdict for the defendant on the second plea.
Rule absolute accordingly.