The lease contained a proviso that at the end of the term, the lessors, on giving six months' previous notice in writing of their intention whether they would purchase or not, to the defendant, should have the option of purchasing the iron castings, railways, gins (or windlasses), wimseys, boilers, machines, and moveable implements and materials then in use, or being in and about the furnaces, fire-engines, ironworks, stone-pits, lands, and premises, at a price to be determined in the manner specified; and in the event of their neglecting to avail themselves of the option, the defendant might remove all such articles as described above. The plaintiffs did not avail themselves of the option or give the notice, and the defendants, before the lease expired, disannexed from the freehold and took away a variety of articles, and in so doing injured the furnaces and iron-works. In delivering the judgment of the Court of Exchequer, Lord Chief Baron Pollock said as to this point, "The rule which the Court thinks the correct one to act upon is this, that whatever was in the nature of a machine, or part of a machine, as iron-work or iron-casting, or railways, gins, or moveable implements, or materials, the defendants had a right to remove; that whatever was in the nature of buildings, or support of buildings, although made of iron, the defendants had not a right to remove, and that with respect to damage to the brick work, the defendants were not bound to restore the brickwork in a perfect state, as if the article it was intended to protect, or support, or cover, were there; it was sufficient for the defendants to exercise their right to remove what the lease gave them

H

authority to remove, and in doing so, to remove the brickwork, and to leave it in such a state as would be most useful and beneficial to the lessors, or to those who might next take the premises." The Court then proceeded to dispose of the various items one by one. They were of opinion that the tenants might remove the boilers, the boiler grates, the castings and ironwork of the engine and regulator, and the spring beams. As to the damage sustained by the removal of these articles, if it meant damage to the brickwork connected with them, the Court thought they were not sufficiently informed as to the manner of removal. The only rule they could lay down was that the tenants had a right to remove them, doing as little damage as possible, and leaving the premises in a state fit to be used for a similar purpose by another tenant. Then as to the brickwork of the hot-air apparatus, if it was merely disturbed for the purpose of taking that apparatus which the tenant had a right to take, and being so disturbed was left in a condition fit and convenient for the restoration of another hotair apparatus by another tenant, then no damages ought to be recovered. The next item was the valve piping, which they thought the tenants entitled to remove. The next item was the damage done to the furnaces by the removal of the hoops, beams, and brick-staffs. The Court thought that the lessors were entitled to recover damages for the removal of these, because these articles were not iron work in the nature of machines or implements, but were iron work substituted for additional brickwork, with a view to give additional, and probably necessary, strength to

the furnace, which the defendants had no right to remove or to deteriorate. They thought the tenants might remove the cupola, and the blast-pipes which worked them. They might also remove the puddling furnaces, the mill furnaces, the boilers of the forgeengine, the grates of the boilers, and the castings and iron-work of the forge-engine, but the tenant might not remove the oak taken from the foundation of the forge-hammer. The tenants might remove the plates from the shears foundation, but the lessors might recover damages for any improper method of removal. They might also remove the holding down pins and the bed plates. With regard to the cast-iron columns used for the support of the building, the Court thought they were not within the exception in the lease, and ought not to be taken away, but that the tenants might remove the gasometer and apparatus. If any unnecessary and wanton damage had been done, and the premises left in such a state as not to be conveniently applicable to the same purpose, to that extent the lessors would be entitled to recover damages.

Though this case and judgment furnishes a good guide under similar circumstances, it must be distinguished from ordinary disputes relating to the removal of fixtures. This case turned upon the special provisions of the particular lease. But as colliery leases very generally contain provisions of a similar nature, the opinion of the Court is given very fully.

CHAP, VI.

PRIVATE WAYS, AND WAY-LEAVES.

Ir is obvious that the work of collieries can only be carried on without private rights of way in those cases where the land over which the produce is conveyed to the railway, canal, or public road, is the property of the occupier of the colliery. As this is not usually the case, the subject of private ways and way-leaves is one of considerable importance.

The distinction between public and private ways is this public ways are open to all persons; private ways are enjoyed by particular persons or classes. The general rules of law with respect to private ways are these :—A private right of way belongs to the class of easements, which are a division of incorporeal rights. An easement is a right annexed to, or issuing out of, or exercisable over or within an hereditament corporeal. The right of way is the right, in one person, or more, of passing over the land of another person. There are five kinds of way,-footways; horseways, for persons passing on horseback; driftways, for driving cattle; carriage ways, for carts and carriages, including always a foot and horseway; and lastly, waterways for ships and boats,

The proper origin of a private right of way is a grant from the owner of the soil, as when by deed the owner of the land bestows on another the liberty of passing over his grounds to go to market, &c. This right may also be gained by prescription, as where all the owners and occupiers of such a farm have been used to cross such a ground for such a particular purpose. The rule of law as to this mode of acquiring the right is settled by 2 & 3 William IV. c. 71, sect. 2, which enacts that "in claims of right of way by prescription, when the way shall have been actually enjoyed for full twenty years without interruption, it shall be defeated or destroyed only by showing that such right was first enjoyed at any time prior to such period of twenty years; and where it has been enjoyed for full forty years the right shall be absolute and indefeasible, unless it shall appear that the same was enjoyed by some consent or agreement expressly given or made for that purpose by deed or writing." Prescription is a title by long usage, and though it depends on usage, it is distinguishable from custom in this, that custom is a local usage, and prescription is a personal usage, attaching to a man and his ancestors, or those whose estate he has. But it is important to observe that this title is always founded on the actual usage of enjoying the thing in question, and without this use and enjoyment, a mere bare claim, however often repeated, or long continued, and whether its validity had been questioned or not, will not suffice to establish a prescriptive right.* The enjoyment must * Stephen's Black. 2, 35.