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of the close 4, had been accustomed to drive wagons and carts from the highway over the southern extremity of the closes 1, 2, and 3, into close 4, and so back again, for the convenience, use, and occupation of the said last-mentioned close.
The plaintiff contended, that from the time of the feoffment in 1801, the defendant and his tenant, even though they should up to that time have had a way of necessity over the locus in quo, ought to have gone from the Arundel Road over his own land, the fifth close, towards close 3, without going over the close 2 ; and that at the time of the trespasses, they might and ought to have gone from the Arundel Road into close 4, entirely over closes 5 and 6, defendant's own lands.
The defendant contended that the necessity of the way was to be considered with reference to the situation of the properties at the date of the feoff'ment.
The learned Baron, in an early stage of the trial, required that these points, if raised by the evidence, should be reserved for the opinion of the court. The jury found that the ancient and usual way from and to close 4, had been and was immemorially over said closes 3, 2, and 1, into the said highway.
The question for the opinion of the court was, whether, under the circumstances above mentioned, the defendant was entitled to a verdict on the issue so joined on the replication to the second plea, and if the court should be of opinion in the affirmative, the verdict was to be entered, and defendant to have judgment according to that opinion; but if the court should be of opinion, on the other hand, that the plaintiff was entitled to a verdict on that issue, then the verdict was to be entered for the plaintiff generally.
In the other action against Elliott, Goring's tenant, there was a third plea, stating a right of way by non-existing grant; and in which it appeared that Elliott had married Mrs. Falconer, and occupied close 5. In other respects, the two cases were alike.
This case was argued twice : by Lens and Taddy, Serjts., in Trinity Term, 1823, and by Bosanquet and Taddy, Serjts., in this term (Easter, 1824).
Best, C. J. Substantially there is no difference between these two cases; in the second there is a plea of a way by prescription, but as that has been extinguished by unity of possession, the point to be decided is in effect the same in both, and the question is, Whether or no the defendant is entitled to a way of necessity over the plaintiff's close. This is an action for a trespass committed in the close No. 2, to which the defendant has pleaded, that in 1801 he enfeoffed George Duke of the close in which, &c., and that at the time of the feoffment he had no way to his own close except over the close in which, &c., and was there. fore entitled to a convenient and necessary way to his own close, over the close in which, &c.; so that the issue to be tried was whether or no he had any other way? Considering that as the question, much that has to-day been advanced in argument has no bearing upon it; because if the defendant has not made out that he had no other way, the plaintitf is entitled to judgment. But I had rather take the case on the broad ground on which it has been argued, than on this narrow ground. The plaintiff complains that the defendant has trespassed on his land; the defendant insists that he was entitled to pass over it in the enjoyment of a way of necessity : all the four closes, he says, were originally his, and he was then accustomed to pass from the first unto the fourth ; he parted with the two in the middle, and contends that it is still necessary for him to pass through them. On behalf of the plaintiff it is asserted, that this necessity does not exist; that at the time of the trespass he might have passed from close 4 into his own land, close 6, and thence over his own land into the high road; or that, at all events, and at all times, he might have passed out of close 3 into close 5, and so have avoided close 2, the locus in quo. My judgment will be on the latter course; if the defendant could have pursued that, and I am of opinion he could, be is entitled to no way of necessity. It has been contended that we are to look to the state of things at the time of the feoffinent, and that at that time the defendant could not have passed into close 5, because it Eras in the occupation of Mrs. Falconer; if so, the defendant ought to have shown in her an interest sufficient to exclude him ; instead of that, the case only states that she was in the occupation of close 5, — a statement consistent with a mere tenancy at will, which the defendant might at any time have determined. It is clear, therefore, that he ought to have passed from close 3 into close 5, and if so, he could not claiin I way of necessity over close 2. On the part of the plaintiff the case las been put on its right ground. If I have four fields, and grant away wo of them, over which I have been accustomed to pass, the law will presume that I reserve a right of way to those which I retain ; but what right? the same as existed before? No; the old right is extinguished, and the new way arises out of the necessity of the thing. The passage which has been cited from Serjt. Williams's note contains a complete ans i ser to the argument on the part of the defendant. "A way of necessity, when the nature of it is considered, will be found to be nothing else than a way by grant;” but a grant of no more than the circumstane ces which raise the implication of necessity require should pass. If it were otherwise, this inconvenience might follow, that a party might retain a way over 1,000 yards of another's land, when by a subsequent purchase he might reach his destination by passing over 100 yards of his own. A grant, therefore, arising out of the implication of necessity, cannot be carried farther than the necessity of the case requires ; and this principle consists with all the cases which have been decided. It has been argued, that the new grant operates as a prevention of the extinguishment of the old right of way; but there is not a single case which bears out that proposition, or which does not imply the contrary. By the grant a new way is created, and that way is limited by necessity. Serjt. Williams says, “ Where a man having a close surrounded with his own land grants the close to another, the grantee shall have a
way to the close over the grantor's land, as incident to the grant; for without it he cannot derive any benefit from the grant. So it is where he grants the land, and reserves the close to himself.” What way is it the grantee shall have? not the old, but a new way, limited by the necessity. The case of Buckby v. Coles [5 Taunt. 311] is not very clearly reported, and I do not altogether understand it; but in Clarke v. Cogge [Cro. Jac. 170] the court says that " although the grantor in such a case reserve not a way, it shall be reserved for him by law;” that is, not the old way, but a new one of necessity, if he hath not any other way. In Jorden v. Atwood [Owen, 121], Popham, C. J., says that, “ if a man had three fields adjoining, and makes a feoffment of the middle field, the feoffee shall have a way (not the way) to this through the other close.” Then in Packer v. Welsted [2 Sid. 39), it was expressly found that the party had not any other way; but in the present case there might be a sufficient way reserved, although the defendant should never pass over close 2. The claim, therefore, to a way of necessity is completely answered ; and as for a way by prescription, it cannot for a moment be doubted that such a way was extinguished by unity of possession. I think, therefore, that on the present occasion our judgment must be for the plaintiff.
PARK, J. On the former argument, Dallas, C. J., and the rest of the court were satisfied that the plaintiff was entitled to judgment, but granted a second argument at the instigation of the defendant's counsel. I am still of the same opinion, and that, from what appears on the face of the plea. The defendant states that he had no other way at the time of the feoffment; but that assertion has not been made out in proof; and from all the authorities referred to, it is clear, that when a way is claimed of necessity, it is a good answer to show that there is another way which the party may use.
BURROUGH, J. The defendant's case is disposed of by the facts which have come out. The lease to Duke ended in 1807, long before the time of the trespass complained of; at that time there was no impediment to the defendant's reaching the Arundel Road by passing over his own land, unless it were Mrs. Falconer's occupation; but we are nowhere informed what the nature of her interest was, and may therefore presume the defendant might have passed over land of which he owned the fee. Upon the former argument it was contended, that the only necessity which could support the defendant's plea must be a necessity continuing up to the time of the trespass justified under it: in this I entirely agree, and am therefore satisfied our judgment must be for the plaintiff.
Judgment for plaintiff accordingly."
1 “PARKE, B. The extent of the authority of Holmes v. Goring is that, admitting a grant in general terms, it may be construed to be a grant of a right of way as from time to time may be necessary. I should have thought it meant as much a grant forever as if expressly inserted in a deed, and it struck me at that time that the court was wrong ; but that is not the question now. ALDERSON, B. Probably, if this case be taken to a court of error, Holmes v. Goring will be reviewed." Proctor P. Hodgson, 10 Ex. 824, 828 (1855).
MOORE v. RAWSON.
[Reported 3 B. & C. 332.] Case for obstructing lights. Plea, Not guilty. At the trial before Hullock, B., at the last Spring Assizes for the county of Derby, it appeared, that the plaintiff was seised in fee of a messuage and building, with a yard, garden, and appurtenances, situate at Ripley, in that county, in the occupation of a tenant from year to year. The defendant was the owner of other messuages and premises next adjoining the plaintiff's, on the northern side thereof. The plaintiff's messuage was an ancient house, and adjoining to it there had been a building formerly used as a weaver's shop. The old sbop had ancient windows, for the convenience of light to the weavers who worked looms there. About seventeen years ago the then owner and occupier of the premises took down the old shop, and erected on the same site a stable, having a blank wall next adjoining to the premises of the present defendant. This building had latterly been used as a wheelwright's shop. About three years ago, and while the plaintiff's premises continued in this state, the defendant erected a building next to the blank wall, and the plaintiff' then opened a window in that wall, in the same place where were had formerly been a window in the old wall, and the action was brought for the obstruction of this new window by the building so erected by the defendant. The learned judge directed the jury to find a verdict for the plaintiff, but reserved liberty to the defendant to move to enter a nonsuit. A rule nisi having been obtained accordingly,
Vaughan, Serjt., and N. R. Clarke, showed cause. Denman and Reader, contra. ABBOTT, C. J. I am of opinion that the plaintiff is not entitled to ain this action. It appears that many years ago the former owner premises had the enjoyment of light and air by means of certain ws in a wall of his house. Upon the site of this wall he built a
wall without any windows. Things continued in this state for inteen years. The defendant, in the interim, erected a building pposite the plaintiff's blank wall, and then the plaintiff opened a win
that which had continued for so long a period a blank wall withindows, and he now complains that that window is darkened by buildings which the defendant so erected. It seems to me that, if a son entitled to ancient lights pulls down his house and erects a
K Wall in the place of a wall in which there had been windows, and nters that blank wall to remain for a considerable period of time, it lies upon him at least to show, that at the time when he so erected the abandonment of the enjoyment, and that he intended to resume the enjoyment of those advantages within a reasonable period of time. I think that the burden of showing that lies on the party who has discontinued the use of the light. By building the blank wall, he may have induced another person to become the purchaser of the adjoining ground for building phrposes, and it would be most unjust that he should afterwards prevent such a person from carrying those purposes into effect. For these reasons I am of opinion, that the rule for a nonsuit must be made absolute.
ank wall, and thus apparently abandoned the windows which gave mynt and air to the house, that was not a perpetual, but a temporary
BAYLEY, J. The right to light, air, or water, is acquired by enjorment, and will, as it seems to me, continue so long as the party either continues that enjoyment or shows an intention to continue it. In this case the former owner of the plaintiff's premises had acquired a right to the enjoyment of the light; but he chose to relinquish that enjoyment, and to erect a blank wall instead of one in which there were formerly windows. At that time he ceased to enjoy the light in the mode in which he had used to do, and his right ceased with it. Suppose that, instead of doing that, he had pulled down the house and buildings, and converted the land into a garden, and continued so to use it for a period of seventeen years; and another person had been induced by such conduct to buy the adjoining ground for the purposes of building. It would be most unjust to allow the person who had so converted his land into garden ground, to prevent the other from building upon the adjoining land which he had, under such circumstances, been induced to purchase for that purpose. I think that, according to the doctrine of modern times, we must consider the enjoyment as giving the right; and that it is a wbolesome and wise qualification of that rule to say, that the ceasing to enjoy destroys the right, unless at the time when the party discontinues the enjoyment he does some act to show that he means to resume it within a reasonable time.
Holroyd, J. I am of the same opinion. It appears that the former owner of the plaintiff's premises at one time was entitled to the bouse with the windows, so that the light coming to those windows over the adjoining land could not be obstructed by the owner of that land. I think, however, that the right acquired by the enjoyment of the light, continued no longer than the existence of the thing itself in respect of which the party had the right of enjoyment, -I mean the house with the windows; wlien the house and the windows were destroyed by his own act, the right which he had in respect of them was also extinguished, If, indeed, at the time when he pulled the house down, he had intimated his intention of rebuilding it, the right would not then have been de stroyed with the house. If he had done some act to show that we intended to build another in its place, then the new house, when built would in effect have been a continuation of the old house, and the liquo attached to the old house would have continued. If a man has a rig of common attached to his mill, or a right of turbary attached to house, if he pulls down the mill or the house, the right of common