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mon law, a benefit of that description went into whosesoever hands the land might pass. The exception was the case of landlord and tenant, where the benefit runs, but, in the case of the freehold interest, the benefit only runs, and the burden does not, a distinction which has been overlooked at least on one occasion. But in order to enable the assignee of the land to take advantage of such a benefit, it must be a benefit falling within the definition I have given, a definition frequently given with reference to the question whether a covenant runs with a reservation in cases arising under the Statute of Henry the Eighth, whether it was beneficial to the land and beneficial in respect of the ownership of the land, and not beneficial to any other person. Probably a further limit may be put, namely, whether the incident was an incident of the ordinary and usual kind. With these limits, there is no doubt the benefit granted to the owner in fee of the land might pass to the owner in fee who succeeds him, either by inheritance or by grant. The occupier might well plead by way of prescription such a right, because it might have been acquired by grant; but, in respect of a matter that does not fall within that description, it is perfectly clear it cannot be made appartenant; and, if it cannot be made appurtenant, pou cannot of course prescribe a claim in respect of it, but must claim by showing there has been a conveyance of the right. This plea does not slow any conveyance of the right to him, but simply shows that the tenant or occupier has the surface of the land to which it is alleged to
The law on this subject is adverted to, I observe, in the 3d edition of Gale on Easements, in the notes in pp. 10–13; and also in the case of Welcome v. Upton, 6 M. & W. 536, where the question arose whether the Prescription Act does or does not apply to a case of easement in gross. There is no doubt an easement in gross could not be claimed by an occupier under the Prescription Act, because under the Prescription Act, as has been pointed out already, the claim is by custom, prescription, or grant; and there is no doubt that a right could not be acquired under that Act, by twenty, thirty, or sixty years' enjoyment, according as it might be, whether an easement or a profit à prendre, except it was capable of being annexed to land within the rule I have mentioned. But the question has arisen whether it is not possible to plead a right in gross in the manner pointed out by the subsequent section, not a section giving the right, but a section giving the mode of plealing. It is perfectly clear to my mind that it cannot be $0 pleaded without showing something more than that the person is in possession as occupier; it must be shown that he is heir or assignee of the person to whom the right in gross has been granted. The mere fact of his being in possession does not show that. Therefore, notwithstanding the learned discussions that have taken place as to whether the right of an ensement in gross may be pleaded in the form given under the Prescription Act, it is quite clear to my mind that nothing has Passed affecting the right of prescription, and the fourth and fifth pleas are invalid. With respect to the sixth plea, that falls under the same
principle as the third. It speaks of an express grant, and the third plea speaks of prescription. The result is that an absurdity and an anomaly in the law is excluded by this judgment. Can any one conceive anything more absurd than that B. should purchase from A. in 1800 the right to all the trees in Black Acre, and that there should have been put into the conveyance these words, for the sake of caution, heirs, assigns, and occupiers or tenants of A.," then in the year 1862, A. should let his close of White Acre to a tenant from year to year, and that tenant should be allowed to grant to his successor any title to cut down the trees which had been purchased by B. of his ancestors by a distinct conveyance of which he might have had no notice whatsoever? I think all the pleas are bad.
Byles, J. I am of the same opinion. Mr. Prideaux's best plea, as it seems to me, is a plea of a lost grant, and that may be considered in this stage of the discussion as an existing grant; and the effect of it is, that at some distant period the owner of the servient tenement granted to the owner of the adjoining dominant tenement, and to his heirs and assigns, the right to cut down all the trees and wood of every description, for any purpose, to be used where he pleased ; and I think the authorities adduced by Mr. Prideaux clearly bring him halfway towards the goal. They show that this is a profit à prendre, in which a man may have an inheritable estate ; and my Lord Chief Justice pointed out in a very early stage of the argument what was the real difficulty. This may go to a man's heirs; but how can it go to his assigns? It is in no way connected with the enjoyment of the dominant tenement. There is really no more connection here, than if the owner of an estate in Northumberland were to grant a right of way to the owner of another estate in Kent; because, as has been stated (see the case of Ackroyd v. Smith), an incident of this nature cannot, even by express words in an existing deed, be connected with the estate by the mere act of the parties. It must, in addition to that, have some natural connection with the estate, as being for its benefit, or, as has been expressed, it must inhere in the estate. Therefore, if an express grant to this effect had been produced between the grantee and grantor, and going as between the heirs of the grantee and grantor, it cannot run with the estate. Lord Brougham observed, as quoted in that case, that no new incident can be connected with the estate. I own it seems to me there is a further objection to the plea of prescription, and also to the thirty years' plea and the sixty years' plea; and I agree with my Brother Willes, and I adopt his expression to the full extent, that such a claim of prescription as this is very absurd. That being so, it is unreasonable; and it is laid down that prescriptions must be reasonable. It is not enough to say it is possible to be granted. Even if this could by law be granted, I think it falls within the objection to a prescription, that it is unreasonable, and not only ought not to be in ferred by a jury, but cannot be inferred in point of law, when such a right is claimed. I think, for these reasons, and I have no doubt whatever that Mr.
Prideaux has laid before us all the cases upon the subject, that all the four pleas are bad, and the first three worse than the last.
KEATING, J. All the pleas demurred to in this case speak of a claim to exercise upon the land of another a right having no reference to the occupation of the land to which the right so sought to be exercised is alleged to be attached. That seems to be, in a legal point of view, very like a contradiction in terms, and not supported by any authority ; and therefore I think the pleas are bad.
Judgment for the plaintiff. Prideaux prayed leave to amend by limiting the claim to trees, &c., to be used on the close in the occupation of the defendant.
Erle, C. J. Upon payment of costs, the amendment may be made, within eight days; otherwise judgment."
HALL V. LAWRENCE.
SUPREME COURT OF RHODE ISLAND. 1852.
(Reported 2 R. I. 218.] In equity. The bill prayed an injunction to restrain the defendant
or hindering the plaintiff or his tenant, or the servants or agents of such tenant, in passing and repassing over a certain path or dritt-way to the shore or beach, and procuring sand, gravel, and seaweed from said shore or beach upon or adjoining the defendant's farm, and stones (below high-water mark) thereon, and tipping sea-weed on
In Huntington v. Asher, 96 N. Y. 604 (1884), one Hogan owned a tract of land, about seventeen acres of which were overflowed by a pond made by a dam on a stream. Hogan sold to J. H. Asher, in 1869, half an acre of his land adjoining the pond, by a deed containing the following clauses : “And the party of the first part, as incident to this conveyance, also grants and conveys to the party of the second part, his heirs and assigns, the exclusive right to take ice from the pond of the party of the first part, with the right and privilege of access for that purpose to and from the pond to the ice-house to be erected on the lot hereby conveyed. In consideration of which said grant, as aforesaid, the party of the second part hereby covenants and agrees for himself and his heirs and assigns to furnish and deliver to the party of the first part (so long as he shall continue to occupy his present residence), free of charge, all the ice which he shall require for his own family use, and also to furnish and deliver to the
or purchasers of the pond and mill privilege and their heirs and assigns, free of charge, all the ice which they shall require for their own family use, so long as they continue to reside in the village of Rheinbeck.” J. H. Asher erected an ice-house on the parcel conveyed, cut ice from the pond, and stored it in the ice-house. In 1870, Hngan conveyed the land on which the pond was situate to William Kelly, from whom, throngh a mesne conveyance, it came to the plaintiff'; all the deeds conveying this land recited that the conveyance was subject to J. H. Asher's right of taking ice from the pond. In 1878 J. H. Asher conveyed his parcel, with its appurtenances, to the defendant, but making no special mention of any right to cut ice. The Court of Appeals of New York held that the right to cut ice was appurtenant to the defendant's farcel, and conld be exercised by her.
the bank of said defendant's farm, as they had the right and had been accustomed to do. The bill further prayed an account of sea-weed taken by the defendant from said shore, and for damages for obstructions to the use of the way aforesaid.
The plaintiff claimed the right of way (which was a way passing over the defendant's land), and the privileges of the shore, by virtue of a certain indenture of partition and various conveyances, and by virtue of an uninterrupted user for more than twenty years. The cause coming on for hearing, it was agreed that the court, without considering the question of user, should first determine the rights of the parties under said indenture of partition, and the conveyances by which they respectively claimed title to said lands.
Said indenture of partition, dated Nov. 7, 1776, recites that Nicholas Taylor and Joseph Wanton Taylor are sons of Robert Taylor, ceased, and his devisees in common of a certain farm in Newport, containing one hundred and thirteen acres, of which farm they, by said indenture, make partition by metes and bounds, assigning the south part of said farm, containing fifty-nine acres and three quarters of an acre, to said Nicholas, and the north part, containing forty-nine acres and three quarters of an acre, to the said Joseph W. The indenture then proceeds : “And the said Joseph Wanton Taylor doth also covenant, promise, and agree that the said Nicholas Taylor, his heirs and assigns, shall have a drift-way through the meadow-land of him the said Joseph Wanton Taylor, where the path or drift-way now is, and the said Nicholas Taylor and the said Joseph Wanton Taylor do hereby agree that they, their heirs and assigns, shall and will at all times forever hereafter be at equal charge and expense in maintaining and keeping in good order the gates and lanes that are adjoining on said drist-way, and the said Nicholas Taylor doth grant free liberty of carry'ing away gravel and sea-weed off the beach belonging to his part of said farm, and also stones below high-water mark on said beach, to the said Joseph Wanton Taylor, his heirs and assigns, as also the liberty to tip the sea-weed on the bank on his part of said land.”
By a deed dated March 12th, 1803, Joseph W. Taylor convered to Nicholas Taylor in fee, from the south side of the tract of land assigned to him, a tract of land containing thirty acres, describing the same, “ together with all and singular the ways, waters, fences, improvements, rights, profits, privileges, and appurtenances to the same belonging or in any way appertaining, with the reversions thereof, and all the estate, right, title, claim, and demand whatever of me, the said Joseph W. Taylor, of, in, and to the same."
By deed, dated August 4th, 1812, the said Joseph W. conveyed all the residue of the land assigned to him by said indenture of partition to George Armstrong, together with all rights and privileges, &c. " And all the privileges and appurtenances which I, the grantor, now have, of taking and carrying away gravel and sea-weed off the beach belonging to Nicholas Taylor, and all stones below high-water mark on said
beach, and also to tip the sea-weed on the bank of the said Nicholas Taylor's land.”
By deed dated July 31st, 1813, Nicholas Taylor mortgaged to the President, Directors, and Company of the Bank of Rhode Island the tract of land of thirty acres which he had purchased in March, 1803, of Joseph W. Taylor, describing the same by metes and bounds, and as ** the same estate which I purchased of my brother, the said Joseph W. Taylor - To have and to hold the said granted and bargained premises, with all the appurtenances, privileges, and commodities to the same belonging, &c.” And, March 19th, 1819, the mortgagees were let into possession of the premises under their mortgage, as provided by the Statute, and held the same down to 1822. On January 4th, 1822, the said mortgagees transferred to the said George Armstrong their mortgage deed and all their right, title, &c., which they had in and to the lands therein described and thereby pledged and mortgaged, sul)ject to the equity of redemption therein of said Nicholas and the right of dower of his wife.
By deed dated July 4th, 1835, the said George Armstrong convered to the plaintiff, David P. Hall, the above-named lot of land of thirty acres, and the lot of land of nineteen and three quarters acres, which he purchased of Joseph W. Taylor, being the whole of the land of fortynine and three quarters acres, assigned to the said Joseph W. under the indenture of partition between him and said Nicholas — “To have and to hold the said granted premises, with all the appurtenances, privileges, and commodities to the same belonging or in any way apper
The defendant deduced his title as follows:
By deed dated September 5th, 1808, the said Nicholas Taylor mortLaged to Elisha Coggeshall the said fifty-nine and three quarters acres, set off to him by the aforesaid indenture of partition, and on March 7th, 1818. the executor of said Elisha took possession of said premises, by Virtue of a writ of possession, and, February 12th, 1835, the administrator de bonis non of the estate of said Elisha conveyed to the aforesaid George Armstrong, and to one John Wilbour, all the right, title, and interest of said Elisha in the aforesaid premises, and assigned to them the mortgage thereof, and the judgment of court rendered for possession of said premises.
By deed dated January 7th, 1836, the said George Armstrong granted, released, and quit-claimed all his right, title, and interest in and to the said Nicholas Taylor farm to the said John Wilbour.
By deed dated September 5th, 1836, the said John Wilbour (his wife relinquishing dower) conveyed to the defendant, William Beach Lawrence, the whole of the said Nicholas Taylor farm in fee. And the deed contained the following reservation : * Also saving and excepting a right which the proprietor of the adjoining farm bas to take, carry away, and tip sea-weed, and to carry away stones from below high-water mark from the south shore of said farm, and any claim which George Arm