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would lose the benefit of his land : and that a prescription presupposed a grant, and ought to be continued according to the intent of its original creation.
THE WHOLE COURT agreed to this. — And judgment was given for the plaintiff:1
TAYLOR v. WHITEHEAD.
KING's Bench. 1781.
[Reported 2 Doug. 745.] Trespass for breaking and entering the close of the plaintiff, at the parish of Otley, in Yorkshire. The defendant pleaded : 1. The general issue ; 2. A rigbt of way, by prescription, through a lane of the plaintiff's contiguous to the locus in quo, to Otley Bridge on the River Wharfe : that the tenants and occupiers of the locus in quo were, from time whereof, &c., by reason of their tenure, bound to repair the lane, and the banks thereof next to the river; that, at the several times when, &c., the lane was out of repair and overflowed with water, so that the defendant could not use the way without imminent danger of the loss of his life, and goods; and that he necessarily went into, through, and over the locus in quo, as near to his said way as he possibly could, as it was lawful for him to do for the cause aforesaid ; 3. That the locus, &c., lay contiguous to a lane of the plaintiff's, and that the said lane was adjoining to the River Wharfe ; that the defendant had a right of way, by prescription, through and over the lane; and that, because the lane and way were overflowed with water from the said river so much that the defendant could not at the several times, &c., pass or repass, he did necessarily go out of the said way, as near to the said way as he possibly could, into, through, and over, &c.
The plaintiff having traversed the prescription to repair laid in the first special plea, and the right of way laid in the last, the cause came on to be tried, before Lord Loughborough, at the Summer Assizes for Yorkshire, 1780; and the jury found for the plaintiff on the general issue and the first special plea, and for the defendant on the last.
Afterwards, Fearnly obtained a rule to show cause why the plaintiff should not be at liberty to enter up judgment on that issue, as well as the others, notwithstanding the finding of the jury, on the ground that, in point of law, although the defendant had the right of way through the plaintiff's close, he was not entitled to go upon the adjoining land of the plaintiff when the way was out of repair.
1 See Skull v. Glenister, 16 C. B. N. S. 81; Davenport v. Lamson, 21 Pick. 72; French v. Marstin, 32 N. H. 316 ; Kirkham v. Sharp, i Whart. 323 ; Lewis v. Carstairs, 6 Whart. 193.
Lee, Davenport, and Wood, for the defendant.
LORD MANSFIELD. The question is upon the grant of this way. Now, it is not laid to be a grant of a way, generally, over the land, but of a precise specific way. The grantor says, You may go in this particular line, but I do not give you a right to go either on the right or left. I entirely agree with my Brother Walker, that, by common law, he who has the use of a thing ought to repair it. The grantor may bind himself; but here he has not done it. He has not undertaken to provide against the overflowing of the river; and, for aught that appears, that may have happened by the neglect of the defendant. Highways are governed by a different principle. They are for the public service; and if the usual tract is impassable, it is for the general good that people should be entitled to pass in another line.
Willes and AshHURST, JJ., of the same opinion.
BULLER, J. If this had been a way of necessity, the question would have required consideration ; but it is not so pleaded. It does not appear that the defendant had no other road. There can be no ground for a repleader, for the plea is substantially bad; there is no fact alleged in it which it could serve any purpose to deny, or go to issue upon.
The rule made absolute, 1
BALLARD v. DYSON.
COMMON PLEAS. 1808.
(Reported i Taunt. 279.] In replevin the defendant avowed taking a heifer damage feasant. The plaintiff pleaded a right of way to pass and repass with cattle from a public street through and along a certain yard and way adjoining to the said place, in which, &c., towards and unto certain premises in his own occupation, as appurtenant thereto, at all times, 1. by prescription ; 2. by a grant from a person in whom he supposed the seisin in fee, as well of the yard and way, as of the plaintiff's premises, to have been united. The defendant, in his replication, took issue upon these rights of way. Upon the trial of this cause, at Hertford Summer Assizes, 1807, before Mansfield, C. J., it appeared that the plaintiff's building
Part of the case relating to a point of practice is omitted.
When the owner of the servient tenement has obstructed a way, the owner of the dominant tenement may deviate. Selby v. Nettlefold, L. R. 9 Ch. 111 (see contra, Wil. lians v. Safford, 7 Barb. 309). In Selby v. Nettlefold there was a defined way. The law has been held the same in the United States. Farnum v. Platt, 8 Pick. 339; Lemird v. Lemard, 2 All. 543 ; Kent v. Judkins, 53 Me. 160 ; but in none of these was the way defined, except by ordinary use. See Haley v. Colcord, 59 N. H. 7, and ef. Hamilton v. White, 5 N. Y. 9.
had anciently been a barn, but had not been used as such for a great many years; that the folding doors of it opened not to the plaintiffos yard, but to a highway; for many years it had been converted to the purposes of a stable; the last preceding occupier, who was a porkbutcher, had used it as a slaughter-house for slaughtering his hogs, and the present occupier, who was a butcher, used it as a slaughter-house for slaughtering oxen. The yard in question, along which the right of way to these premises was claimed, was a narrow passage, bounded by a row of houses on each side, the doors of which opened into it: when a cart and horse was driven through it, the foot-passengers could not pass the carriage, but were compelled, on account of the narrowness, to retreat into the houses; and they would be exposed to considerable danger if they were to meet horned cattle driven through it. It was in evidence that the preceding occupier had been accustomed to drive fat hogs that way to his slaughter-house; and that the plaintiff had been accustomed to drive a cart, the only carriage which he possessed, usually drawn by a horse, but in one or two instances by an ox, along this passage to his barn, where he kept his cart; there was then no other way to it. He had lately begun to drive fat oven that way to the premises for the purpose of killing them there; but there was no evidence of any other user than this of the way for cattle. No deed of grant was produced. The defendant produced no evidence that he had ever interrupted the occupiers of the plaintiff's premises in driving cattle there, nor that they had been usually possessed of horned cattle which had not been driven that way; he admitted that there was sufficient evidence of a right of way for all manner of carriages. It did not appear at what period the houses adjoining the way had been built. Best, Serjt., for the plaintiff, contended that a way for all manner of carriages necessarily included a right of way for all manner of cattle ; and therefore proved the prescription. Mansfield, C. J., told the jury, that inasmuch as this was a private, and not a public way, they were not to conclude that a man might not grant a right of way to pass with horses and carts, and yet preclude the grantee from passing with all manner of cattle ; and the degree of inconvenience which would attend the larger grant in this case, furnished an argument against the probability of it. He directed them, therefore, to say whether there was sufficient evidence of a right of way to drive cattle loose, or whether they would consider the grant or prescription as only co-extensive with the use that had been made of it. The jury found a verdict for the defendant.
Best, Serjt., having in Michaelmas Term last obtained a rule nisi for a new trial,
Shepherd, Serjt., on a former day in this term, showed cause.
MANSFIELD, C. J., having adverted to the facts of the case, observed that in general a public highway is open to cattle, though it may be so unfrequented that no one has seen an instance of their going there;
but the presumption would be for cattle as well as carriages, otherwise cattle could not be driven from one part of the kingdom to another. The authority cited from Hawkins only refers to Co. Lit., and the passage in Co. Lit. does not prove that Lord Coke was of opinion that in the case of a private way, which must originate in a grant, of which, the grant itself being lost, usage alone indicates the extent, evidence of a limited user could not be received to restrict the usual import of the grant. The general description given by Lord Coke does not seem to touch the question. He refers to Bracton, lib. 4, fol. 232, who only says, “ there are iter, actus, and via ;” but says not a word to explain the meaning of either, or the difference between them. Nor can I find in any of the books, nor even in any nisi prius case, any decision that throws light upon the subject. A parson has the viu or aditus over a farm with carts to bring home his tithe ; but he can use it for no other purpose. I have always considered it as a matter of evidence, and a proper question for a jury, to find whether a right of way for cattle is to be presumed from the usage proved of a cart-way. Consequently, although in certain cases a general way for the carriages may be good evidence from which a jury may infer a right of this kind, yet it is only evidence; and they are to compare the reasons which they have for forming an opinion on either side. As well at the trial, as since, I have thought that there might often be good reasons why a man should grant a right of carriage-way, and yet no way for cattle. That would be the case where a person who lived next to a mews in London should let a part of his own stable with a right of carriage-way to it, which could be used with very little, if any, inconvenience to himself; yet there it would be a monstrous inference to conclude that if a butcher could establish a slaughter-house at the inner end of the mews without being indictable for a nuisance, he might therefore drive horned cattle to it, which would be an intolerable annoyance to the grantor. So cases may exist of a grant of land, where, from the nature of the premises, permission must be given to drive a cart to bring corn or the like, and that right might be exercised without any inconvenience to the grantor; but it does not follow that cattle may be driven there. The inconvenience in this case is a strong argument against the probability of the larger grant. The defendant was the proprietor of all these houses. My Brother Chambre mentioned the case of a public way, restricted to carriages only, in which some public notice was affixed to caution the public that there was no drist-way, and thought that the absence of such notice in this case was an argument against the probability of the restricted grant. This notice might be requisite in a public way, but in a private way, out of which cattle were excepted, the grantor might reasonably think it unnecessary to give his grantee notice of that, of which he must already be conusant; he might justly suppose that the grantee, knowing the nature of his right, would not attempt to use the way otherwise than according to his grant. I can find no case in which it has been decided that a carriage-way necessarily implies a drift-way, though it appears sometimes to have been taken for granted. I speak with doubt, because my Brother Chambre is of a different opinion ; but I incline to hold that the verdict ought not to be disturbed.
HEATH, J. This is a prescription for a way for cattle, and a carriageway is proved. A carriage-way will comprehend a horse-way, but not a drift-way. All prescriptions are stricti juris. Some prescriptions are for a way to market, others for a way to church, and in the ancient entries, both in Rastal and Clift, the pleadings are very particular in stating their claims. In Rastal, tit. Quod permittat, the distinction is clearly seen. Sometimes there is a carriage-way qualified. One claim is remarkable, fugare quadraginta averia. The usage then in this case is evidence of a very different grant from that which is claimed, namely, to drive fat oxen, - animals dangerous in their nature, and which there might be very good reason to except out of a grant of a way through a closely inhabited neighborhood. The jury having heard the evidence, and formed their opinion upon it, I am not prepared to say that the verdict shall not stand.
LAWRENCE, J. I should have been as well satisfied if the verdict had been the other way, but as the jury have decided upon the evidence, I am unwilling to disturb their verdict. This is the case of a prescriptive private way, which presumes a grant: the question then is, What was the grant in this case? That is to be collected from the use; for it is to be presumed that the use has been according to the grant. A grant of a carriage-way has not always been taken to include a driftway. In the entries are cases of prescription, not for carriages only, but for cattle also. Co. Ent. 5, 6. Quod permittat ad carriandum et recarriandum blada, foenum, et fimum, ac omnia alia necessaria sua, cum carris et carectis suis, et ad fugandum omnia et omnimoda averia sua. The person who drew that entry certainly did not conclude that a carriage-way included a drift-way for cattle. The use proved here, is of a carriage-way: the grant is not shown, and the extent of it can only be known from the use. If the use had been confined to a carriage-way, I should have had no difficulty whatever in saying that it afforded no evidence of a way for horned cattle ; for till they were driven there, no opposition could be made, nor the limitation of the right shown; but pigs have been driven that way, and stress is laid upon this circumstance. That then may be good proof of a right to drive pigs that way; but the user of the way for pigs is not proof of a right of way for oxen. The grantor night well consider what ani. mals it was proper to admit, and what not. The place is very narrow, and full of inhabitants. There is no danger from pigs, and carriages always have some one to conduct them. Cattle may do harm, and passengers cannot always get out of their way ; but if the cattle are driven forward, serious injury may be done. The nature of the place, therefore, may probably have suggested a limitation of the grant.
CHAMBRE, J. I think there ought to be a new trial; for all the evi