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(/) (1868), L. R. 3 Exch. 161. {m) See aboTe, p. 92.

10(2)



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148



ACQUISITION OP EASEMENTS.



L%ngUy v.
Himinond,



Implied grant [running along the side of a field, used for no other purpose, but
- only fenced off from the field, which I assume to be the property
of the owner of the house. I should wish for time to consider
before deciding that on the conveyance of the house the right to
use the road, not being a way of necessity, would not pass under
such words as these. The ground on which I think this rule
ought to be discharged is, that there is here really no defined road.
It is said that it is hard and gravelled, but in truth as soon as you
turn out of West Street, you do not come into what is a road and
nothing else, kept for no other purpose, but into a rick-yard, where
the occupier could, and no doubt did, go in any particular direction
he desired. But this is not a way of such a definite kind as will
pass under general words ; it is no more a way (if I may use the
illustration) than the short cut a man may take across his room
from the piano to the fireplace is a way. In one sense, no doubt,
it is a way which he may use, but he only uses it equally with
ways in other directions, by virtue of his rights of possession, not
because there is any road made there, but because it is the shortest
cut to the place he wishes to get to."

In Watts V. Kelson (n), Lord Justice Mellish, in the course of
the argument, made the following observation : " When a man
walks over his own land in a particular direction, he is not using
anything ; he is merely going where he pleases on his own pro-
perty. But where there is a structure erected for a purpose
connected with a certain part of his property, the case is quite
different. I am not satisfied that, if a man construct a paved
road over one of his fields to his house, solely with a view to the
convenient occupation of the house, a right to use that road would
not pass if he sold the house separately from the field." And in
giving the judgment of the Court, he says : " We may also
observe that, in Langley v. Hammond (o). Baron Bramwell ex-
pressed an opinion, in which we concur, that, even in the ease
of a right of way, if there was a formed road made over the alleged
servient tenement to and for the apparent use of the dominant tene-
ment, a right of way over such road might pass by a conveyance
of the dominant tenement with the ordinary general words" {p).



WaiU T.
KeU<m.



(n) (1870), L. R. 6 Ch. at pp. 172,
174. The decision did not depend on
this point (see above, p. 125).

(o) (1868), L. R. 3 Exoh. 161.

\p) Of. KayT. Oxley (1876), L. R. 10



Q. B. 360. Erj, J., quoted and adopted
these dicta in Barkshire y. Orubb (1881),
L. R. 18 Ch. D. 616 ; but that case also
was not decided on this ground (see
above, p. 99).



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BY IMPLIED GRANT. 149

[In both of these cases, the conveyance which was the subject Implied grant

of adjudication included ways "used and enjoyed" with the - ^ —

alleged dominant tenement ; and they are, therefore, no express
authority upon the efPect of a conveyance without those words.

The case of Davies v. Sear (q) was an authority in favour of the !>«?•« v.
implied reservation of a way, the ** apparent sign " in this case
being an archway upon the quasi-dominant tenement. But this
case, so far as it rest« on the doctrine of implied reservation pure
and simple, must now be deemed to be overruled by Wheeldon v.
Burrows (r).

In Brett v. Clowser {h) the plaintiff sued the defendant Clowser, Brett v.
among other things, for the obstruction of a right of way claimed ^^'^'
by the plaintiff over Clowser's premises. It appeared that
Clowser, who had occupied his premises since 1867 under an
agreement for a lease entered into by the common owner of the
plaintiffs and defendant's premises, had made an arrangement with
a former tenant of the plaintiff's premises, which was expressly
limited to the duration of such tenant's interest, under which a
door had been opened from part of the plaintiff's premises into
dowser's premises, and a way, leading from this door to the high
road, had been used by the tenant in question and his customers.
In June, 1878, the tenant's interest expired. In September, 1878,
the premises occupied by him were re-let to the plaintiff, with all
ways, &c., belonging or appertaining thereto. In October, 1878,
Clowser took a legal demise of his premises under his old agree-
ment. The plaintiff claimed a right of way through the doorway
into the high road.

Denman, J., in giving judgment for the defendant, said that the
question must turn upon whether the lease of September contained
any such words as to create anew the right of way claimed. " It
was contended for the plaintiff that it did, because the way was an
obvious one, passing through a made doorway and over a defined
path, and being in actual use at the time at which the lease of the
23rd of September, 1878, was made ; and a dictum of Bramwell, B.,
in the case of Langlcy v. Uammond (t) was strongly relied on.
That, however, was a case in which the words of the deed in ques-
tion were these, * together with all ways therewith * (Le,^ with the
premises) * now used, occupied, and enjoyed,' — words which render



(q) (1S69), L. B. 7 Eq. 427. («) (1880), L. R. 6 0. P. D. 376.

(r) (1879), L. R. 12 Oh. Div. 31 ; [t) (1868), L. R. 3 Exch. at p. 171

beloir, p. 164. above, p. 147.



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150



ACQUISITION OF EASEMENTS.



Brett V.
Clowser.



Implied grant [the dictum wholly inapplicable to the present case. The words of
the lease to the plaintiff relied upon as conveying the right of way
in question were the words * ways, paths, passages, easements, com-
modities, advantages, and appurtenances to the said premises,
belonging or in anywise appertaining/ It was contended that the
way in question passed under these general words, and the judg-
ment of Lord Justice Mellish in Watts v. Kelson (w) was cited in

support of that contention Kaf/ v. Oxlet/ {x) was also relied

upon, in which Lush, J., speaks approvingly of the view taken by
Bramwell, B., in Langley v. Hammond, But, in all these cases,
the * general words,* found in the conveyance, which were relied
upon, were words descriptive of the easements in question, as * with
the premises now occupied or enjoyed ; ' and [they] are therefore
no authorities for the plaintiff in the present case, which falls
within the doctrine laid down in Worthington v. Gimson (y),
Pearson v. Spencer {z)y and Wheeldon v. Burrotcs{a), that, except
in the case of a way of necessity, in the absence of any reservation,
no right to use ways which have been used and enjoyed in fact
passes to a grantee of the land, unless there be something in the
conveyance to show an intention to create the right to use the way
de novo."

The decision in Brett v. Clowser, so far as it rests on the opinion
above quoted, appears to be directly contrary to the dicta of Bram-
well, B., Mellish, L. J., and Lush, J., above quoted, and in fact to
decide the point under discussion. But it may be observed that
Mr. Justice Denman does not seem to have had before him the
cases of Hinchclifie v. Earl of Kimioul and Pheysey v. Vt'caryy above
quoted ; and that the actual decision in Brett v. Clowser is suflS-
ciently supported by the consideration that at the date of the
plaintiff's leeise the adjoining premises were, by virtue of the
agreement of 1867, equitably vested in Clowser (6).
Bayiey ▼. The decision in Bayley v. Cheat Western Rail, Co, (c) turned on

Ra^^^*^^ the words of the conveyance; but Chitty, J., in the course of his
judgment made some observations which bear directly on the
point under discussion. "Before I go to the authorities," he



ObservationB
on Brett y.
Clotcser.



(u) (1870), L. R. 6 Ch. App. at p.
174.

(x) (1876), L. R. 10 Q. B. 360.

(y) (I860), 2 E. & E. 618; 39 L. J.,
Q. B. 116.

(z) (1862), 1 B. ft S. 671 ; 3 B. & S.
761.



(a) ^1879), L. R. 12 Ch. Dir. 31.

(b) See Beddington y. Atleet quoted
above, p. 128, n.

((?) (1884), L. R. 26 Ch. D. 434 ; of.
per bowen, L. J., at p. 463, and Ford y.
Metropolitmi and IHstriet Bailwaye (1886),
L. R. 17 Q. B. Div. 12.



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BY IMPLIED GRANT.



161



[says, " I will mention the following point. During the argument Implied grant

I put this ease to the plaintiff's counsel. Assume that a house

abuts on a private road belonging to the owner of the house, with ^^^^ jrenurn
its front door opening on to the private road, and that there is •^«*'* ^•
an ordinary back way to the house, so that, as a matter of fact,
you could get into the house, not by the front door in the ordinary
way, but by the back door. If, in those circumstances, the owner
of the house and of the private road in front were to grant the
house, and the deed were entirely silent as to the private road
running in front, would the grantee of the house have a right of
way ? ITie plaintiff's counsel said * No ; ' and, as far as I am
aware, there is no express decision on the point. But, if that
point should ever come for decision, it seems to me it will be
worthy of consideration, whether the same principle which applies
to the grant of a house with reference to light should not apply
to the grant of the house with reference to a way of this kind. I
am assuming that in such a case there is a front door, and that
the private road is the usual mode of access to the house as a
house, a man not being in the habit of approaching his own
house by the back door. I quite admit that in point of law
there is a difference between the easement of light, which is
always permeating the open spaces which form the windows of a
house, — for in that sense, no doubt, the easement of light is con-
tinuous; whereas, as regards a right of way, that is a discon-
tinuous easement, because a man is not always walking in and
out of his front door. But at the same time the reason why the
easement of light passes as against the grantor is because the
grantor has granted the house in the state in which it is. It
seems to me there is strong groimd for holding, if the point
should come up for consideration, that, in the case I have put of
the right of way, there is in like manner a grant of the house to
be used as the house stands, and that the ordinary mode of
access to the front door is one that ought to pass. But that is
not the case I have now to consider.*'

In Ford v. Meiropolitan Railway Companies (d) the point arose. Ford v.
but not directly between grantor and grantee. The plaintiffs ^^^iw*^^
were lessees of rooms situate in the back block of a house, the
usual (but not the only) mode of access being through a passage
and hall forming part of the front block. A railway company

[d) (1886), L. R. 17 Q. B. Diy. 12.



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162



ACQUISITION OF EASEMENTS.



: ways.

Ford V.

Metropolitan

Jtailicai/8.



Implied grant [having, under their oompnlflory powers, taken down the front
block and removed the hall, it was held that the plaintiffs were
entitled to compensation for loss of their easement. "It wus
said," said Bo wen, L. J., " that this mode of access was a way of
necessity. That appears to me to be an imperfect statement of
its character. A right of way of necessity is a right which
arises by implication; but its true nature, and the distinctions
which obtain between the present right of access claimed and a
right of way of necessity is explained in Pearson v. Spencer (e).
The present right, using the language of Lord Chief Justice
Erie, falls imder that class of implied grants * where there is no
necessity for the right claimed, but where the tenement is so
constructed as that parts of it involve a necessary dependence,
in order to its enjoyment in the state it is in when devised, upon
the adjoining tenement.' It was therefore a private right which
the occupiers of these rooms were by law entitled to make use of
in connection with their property."

At last, in Brown v. Alahcmter (/), the question came up directly
for decision. There, a lessee of two plots of land, A. and B.,
had built upon B. two houses with gardens, the houses fronting
to one road and the gardens communicating with another by
garden-gates and a back-way formed over plot A. The back-
way, though not the only access to the houses on plot B., was
the only convenient way by which manure, &c., could be taken
into the gardens, and was admitted to be essential to the com-
fortable enjoyment of the houses. The houses on plot B., with
their *' rights, easements, and appurtenances," were conveyed to
the defendant, and subsequently plot A. to the plaintiff. It was
held that the defendant was entitled by implication to a right
of way over the back-road. Mr. Justice Kay, after referring to
many of the above cases, proceeded : " It seems to me that the law
is this — that a particular formed way to an entrance to premises
like these, * Westboume ' and * Cottisbrook,' which leads to gates
in a wall part of these demised premises, and without which those
gates would be perfectly useless, may pass although in some sense
it is not an apparent and continuous easement; or rather may
pass — because, being a formed road, it is considered by the



Brown v.
Alabaster,



(e) Above, p. 146.

(/) (1887), ii. R. 37 Ch. D. 490. Of.
Thomas ▼. (hem (1887), L. B. 20 Q. B.
Dir. 226, oited below, p. 169 ; and dist.



Tawi y. KnowUt, [1891] 2 Q. B. 664,
where the quasi-servient property was
in mortgage at the date of seyeranoe.



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BY IMPLIED GRANT. 1^3

[authorities, in eases like this, to be a continuous and apparent Implied grant

easement — by implied grant without any large general words, or '- —

indeed without any general words at all. Here I have a case in Alabaster,
which these two gardens, although they are not absolutely in-
accessible, are inaccessible except through a part of the house,
imless they ai'e to be reached by the gates at the bottom of the
gardens communicating with this formed back-way. That it was
intended, looking at all the facts, that the persons to whom
* Westboume ' and • Cottisbrook ' were conveyed should have the
use of those two gates and of this back-way, is, to my mind,
beyond all doubt. Then, although I agree that it is not for all
purposes a way of necessity, do I want any express grant? It
seems to me to be clear on the authorities that an express grant
is not wanted in such a case as this. Therefore I hold that the
right to use this back-way in the same mode as it was usable by
the occnpiers of * Cottisbrook ' and ' Westboume ' at the time of
the grant of these properties did pass by implied grant, and
accordingly this case must be decided on that footing."

In Nicholh v. NichoUs {g) the point was again directly decided, Nichoiu y.
although the learned judge appears to some extent to have based ^
his decision upon general words which he was of opinion ought to
be implied. In that case three persons, of whom the plaintiff and
defendant were two, were entitled to the residuary real estate of a
testator in equal shares. Two adjoining houses, called " Bedeburn"
and " Stanley Villa," formed part of the testator's residuary real
estate, and by an agreement entered into by the three beneficiaries
for the purpose of dividing the residuary estate, it was agreed (inter
alia) that " Bedebum " should be taken by and forthwith conveyed
to the plaintiff, and "Stanley Villa" should be taken by and
forthwith conveyed to the defendant.

These two houses fronted upon a road called Park Eoad, each
having a front entrance from that road. Along one side of
" Stanley Villa," commencing from Park Road, ran a private side
road made up with gravel between walls and fences ; this road was
continued until it met another road at right angles, which was also
made up with gravel between fences, and ran at the back of the
two houses, affording a back entrance to each of them. The plain-
tiff claimed the right to the use of this side and back road, and



{ff) (1900), 81 L. T. 811.



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154



ACQUISITION OF EASEMENTS.



IficholU V.
NicholU,



Brazier r.
GUutpool,



Implied grant [Stirling, J., held that she was entitled to such use on the ground
^^' that the agreement being executory was to be followed by convey-
ances which ought to be treated as if they were contemporaneous,
and that in these conveyances the descriptions should be followed
by such general words a?, previously to the Conveyancing Act,
1881, could have been insisted on by a purchaser as a matter of
right, and these words he took for the purpose of his judgment to
be '* together with the ways, rights and appurtenances thereunto
belonging."

The followiug passage appears in the judgment : " Although in
general a way, not being a way of necessity, does not fall within
this rule, still it is established, by many cases, that a formed road
over one tenement to and for the apparent use of the other does " ;
and the learned judge referred to Pearson v. Spencer (h) and Brotcn
V. Alabaster (i).

In Brazier v. GlasHpool (k), where the plaintiff claimed a right of
way over a tramway owned by the defendant, in respect of a piece
of land granted to him by the defendant, Byrne, J., although
deciding the point in the plaintiff's favour under the Conveyancing
Act, 1881 (/), expressed his opinion that there was an implied grant
of the right of way, which, though not a way of necessity, was a way
constructed in accordance with a prior agreement between the plaintiff
and the defendant, and was an apparent and formed tramway at
the date of the conveyance, enjoyed in such a manner as to lead to
a reasonable expectation that the enjoyment would be permitted to
continue.

miner's Safe In Mihier^s Safe Co,, Ltd. v. Great Northern and City Rail.

Great Northern ^^' (^'0» ^^^ question arose again, and was treated by the learned

and City judge as being hardly open to question, at any rate in the case of

grants ititer vivos.

In that case a testator built a row of houses, fronting on to a
public street, and having a narrow passage at the back with which
they all communicated. The plaintiffs were owners in fee of two
of these houses, and the defendants of two others, both deriving
their title from the testator, who had made no express grant of
any rights of way over the passage, in dealing with the property
by his will. The defendants pulled down their houses, and built



(A) Cited above, p. 146.
(«) Cited aboye, p. 162.
(k) [1901] W. N. 237 ; cited aboye,
p. 106.



(/) 44 & 45 Vict. 0. 41, b. 6.
(m) [1907] 1 Ch. 20S (oompromised on
appeal).



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BY IMPLIED GRANT. 155

[on their site an underground railway station, whence their Implied grant
passengers made use of the passage. The plaintiffs brought an — ^^^^' —
action against the defendants to restrain this user. ^o**^Ltd^v^

Kekewich, J., after stating the facts, continued as follows : OreatNorthem
" The first question is whether the several devisees had rights of ^^i/. cl.
way over the passage. None are expressly given, but it is said
that rights must be implied from the surrounding circumstances,
and I entertain no doubt that this contention is sound. If this
were a case of grant instead of devise, rights of way would neces-
sarily be implied, and there is ample authority for the proposition
that the settled law as regards implied grants is applicable to
devises, where the circumstances demand its application." The
learned judge referred to Phillips v. Low («), and to Pearson v.
Spencer^ quoting from the passage in the judgment delivered by
Erie, C. J., in the latter case, which is quoted above (o), and con-
tinued : " Bearing in mind that the passage with which we are
dealing has been constructed for the convenience of these houses,
there seems to be here that * necessary dependence * of which the
Chief Justice speaks," (in Pearson v. Spencer) " and that is not at
all affected by the fact that these houses had entrances to Finsbury
Pavement."

The decision was that there was an implied grant both to the
plaintiffs and defendants, but that the grant was limited to business
and domestic purposes only, and that the user by the defendants
was excessive, and unauthorised by the implied grant.

In an Irish case, Macnaghten v. Baird (/?), the easement claimed Maenaghten
was the right to use water from a well situate on the premises of ^' -^*""^*
the plaintiff, by whom these premises and the premises in respect
of which the easement was claimed had, prior to 1875, been held.
In 1875 the latter premises were let by the plaintiff to a tenant
through whom the defendant claimed.

The question came before the Irish Court of Appeal, who decided
against the easement claimed, on the groimd, so far as concerns the
question now under consideration, that the defendant's premises, on
which a dwelling-house then stood, had upon them, at the date of
the letting of 1875, only a barn, for the purposes of which the



(») [1892] 1 Ch. 47. (o) Page 147.

{j>) [1903] 2 It. R. 731.



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156



ACQUISITION OF EASEMENTS,



: wayp.

Result of the
dificuBsion.



Extinguish
ment.



Implied jp^nt [right claimed was unnecessary, and it was therefore not an existing
right at the date of the severance.

To sum up, it is clear that a way merely used with the quasi-
dominant tenement over other land of the same owner, and
not evidenced by any apparent sign, will not, independently of
the Conveyanciug Act, 1881 (g), pass upon a conveyance of the
quasi- dominant tenement without special words.

Further, it cannot be said to be completely settled that such a
way will pass if the only " apparent sign " be the state of the road
on the quasi-servient tenement itself. A hard and gravelled road
is indeed " apparent ; " but it is in this case a part, not of the
tenement conveyed, but of the tenement retained, and it cannot be
said that such a way, by reason merely of its ** apparent " nature,
is necessary to the use of any part of the tenement conveyed.
It is, however, submitted that a formed road or way over one
tenement, for the apparent use of the other, such road or way
being necessary for the reasonable and convenient occupation
and enjoyment of the quasi-dominant tenement, will pass, by
implied grant, upon a severance of the tenements.

And where the " apparent sign " of user is a part, not of the
tenement retained, but of the tenement conveyed, — such as a
substantial and permanent doorway, or a formed road extending
over both tenements,— there is ample authority for saying that the
doctrine of implied grant applies.

It has already been pointed out by the learned author that there
is no distinction between the different kinds of easements as to
their being extinguished by unity of ownership. The distinction
is, that upon a severance of the tenements those easements arising
from ** the disposition of the owner of two tenements," and ease-
ments of necessity, are created de novo by implied grant, while
other easements require express words of grant to create them.



The aathor*8
opinion.



(c.) Implied Reservation,

It was the opinion of the author of this treatise that, upon a
severance of two tenements connected by some apparent sign of
f eivitude, whether by the grant of the quasi-dominant or of the
quasi-servient tenement, an easement was by implication created



{q) AboTe, p. 83.



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BY IMPLIED GRANT. 1^"

[in favour of the quasi-dominant property. Looking upon the The author's



opiiiiun



quasi-easement as a quality added to the dominant close by the
owner of both tenements, he held that this quality remained
impressed upon it for the benefit of either grantee or grantor.
And, in his view, the doctrine that both parties are equally
bound to respect the disposition of the property, derived
additional weight from its coincidence with the analogous case of
easements oommonly called of necessity, which, it is quite clear,
are equally implied in favour of both parties. He saw no
reason why a purchaser should not exercise caution in ascertaining
what easements his projected purchase is liable to in favour of his
vendor, as well as in favour of other adjoining owners.

This opinion, which was shared by Mr. Willes, must now be No implied
considered to be overruled, the Courts considering that the opera-
tion of the doctrine in question, on a sale of the quasi-servient



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