service, and if the usual track is impassable, it is for the general good that people should be entitled to pass in another line (m). to 2. By Prescription.-A private way may also be claimed by prescription (n), e. g., that defendant is seised in fee of a certain messuage, and that he, and all those whose estate he has in the said messuage, have, from time immemorial, had a footway, &c. (as the case may be) from -. From the words in italics, this plea is termed prescribing in a que estate. By stat. 2 & 3 Will. IV. c. 71, s. 5, (ante, p. 449,) where a party used to allege his claim from time immemorial, the period mentioned in the act may be alleged, and the party need not claim, as heretofore, in the name or right of the owner of the fee. In pleading a prescriptive private way, it is not necessary (o) to describe all the closes intervening between the two termini. A right of way being an easement merely, and not an interest, it is not proper to lay the way as appendant or appurtenant (p). Unity of possession of the land to which a way is appurtenant by prescription, and of the land over which the way is, will extinguish the way; for the prescription is gone, and the way is against common right (q). Where there is a unity of seisin (r) of the land, and of the way over the land, in one and the same person, the right of way is either extinguished or suspended, according to the duration of the respective estates in the land and the way; and, after such extinguishment, or during such suspension of the right, the way cannot pass as an appurtenant under the ordinary legal sense of the word. In the case of a unity of seisin, in order to pass a way existing in point of user, but extinguished or suspended in point of law, the grantor must either employ words of express grant, or must describe the way in question as one "used and enjoyed with the land," which forms the subject-matter of the conveyance. 3. By Custom.-A custom that every inhabitant of such a vill shall have a way over such land, either to church or to market, is good, because it is but an easement, and not a profit. A titheowner is entitled to make use of the road ordinarily used for the ordinary occupation of the close in which the tithe is taken (s); but he cannot justify carrying his tithes home by any other road, although the farmer himself may have used it for the occupation of his farm (t). 4. By express Reservation.-A right of way may be claimed by (m) Per Lord Mansfield, C. J., in Taylor v. Whitehead, ubi sup. (n) Rastall's Entr. 617, pl. 5, ed. 2. (p) Godley v. Frith, Yelv. 159. ment in error, in Exch. Chr., James v. Plant, 4 A. & E. 761. See ante, p. 1128, as to unity of possession. (s) Admitted in Cobb v. Selby, 2 Bos. & Pul. N. R. 466. See also 1 Bulstr. 108, and ante, p. 1300, tit. "Tithes." (t) Adjudged, S. C. express reservation; as where A. grants land to another, reserving to himself a way over such land. 5. For Necessity.-If a person having a close, bounded on every side by his own land, grants the close to another, the grantee shall have a way to the close, as incident to the grant, or, as it is sometimes termed, a way of necessity; for otherwise he cannot derive any benefit from the grant (u); but this kind of way cannot be pleaded generally without showing the manner in which the land over which the way is claimed is charged with it (x). If A. has four closes lying together, and sells three of them to B., reserving the middle close, to which A. has not any way except through one of those closes which he sold, although he reserved not any way, yet A. shall have a way to the middle close, as reserved to him by operation of law (y); and unity of possession will not extinguish this species of way (z). J. S., as a trustee, conveyed land to another, to which there was not any way, except over the trustee's land; it was holden, that a right of way passed of necessity, as incidental to the grant (a). If A., the owner of a close over which there is a right of way (b), plough up the way, and assign a new way, any person may justify using the new way as long as it lies open: but if A. afterwards stops up the new way, the removal of the obstruction to the new way cannot be justified (c). A way of necessity exists after unity of possession of the close to which, and the close over which, and after a subsequent severance. If a person purchases close A., with a way of necessity thereto over close B., a stranger's land, and afterwards purchases close B., and then purchases close C., adjoining to close A., and through which he may enter close A., and then sells close B. without reservation of any way, and then sells closes A. and C., the purchaser of close A. shall nevertheless have the ancient way of necessity to close A. over close B. (d). Having detailed the several methods by which a party may entitle himself to a way over the land of another, it may not be improper to subjoin a few remarks relative to the form of pleading a right of way, and of replying thereto. Pleading Right of Way.-In pleading a right of way, the defendant ought to show the nature of the way, i. e. whether it be a footway, horseway, or carriageway; otherwise the plea will be bad, on demurrer (e), for uncertainty: this rule applies both to public and private ways; but in other respects the form of pleading a public highway is more general than that of pleading a private way. Hence, it has been holden, that in a plea of a public highway, it is (u) 2 Rol. Abr. 60, pl. 17. (x) Bullard v. Harrison, 4 M. & S. 387. (y) Per Cur., in Clark v. Cogge, Cro. Jac. 170. (2) Ib., and Beaudeley v. Brook, Cro. Jac. 190. (a) Howton v. Frearson, 8 T. R. 50. not necessary to state either the places from which and to which it leads (f), or that such way has existed from time immemorial (g). It is sufficient to state compendiously, that it is a public highway; but wherever the precise locality becomes material to the defence, the defendant is bound to fix it in his pleadings (h). In pleading a private way, the terminus a quo, and terminus ad quem, ought to be set forth (i). By R. G. H. T. 4 Will. IV., pleas of a right of way over the locus in quo varying the termini or the purposes, are not to be allowed; and where the defendant pleads a right of way with carriages and cattle and on foot in the same plea, and issue is taken thereon, the plea shall be taken distributively; and if a right of way with cattle or on foot only shall be found by the jury, a verdict shall pass for the defendant in respect of such of the trespasses proved as shall be justified by the right of way so found; and for the plaintiff in respect of such of the trespasses as shall not be so justified. And in all actions in which such right of way or other similar right is so pleaded, that the allegations as to the extent of the right are capable of being construed distributively, they shall be taken distributively. In replying to a plea of right of way, the plaintiff either admits the right, and new assigns, e. g., extra viam, or that the plaintiff has used the way in a different manner than that to which he was entitled; or he denies the right; and here it is to be observed, that in denying the right the plaintiff ought to deny or traverse it specially, in conformity to the rules of pleading, which do not allow the general traverse de injuriâ suâ propriâ absque tali causá to be pleaded in cases where the defendant insists on a right (k); and which rule holds as well where the defendant justifies by command of another claiming the right, as where he insists on the right in himself (1). To a plea claiming a right of way, the plaintiff may traverse the right, and give in evidence that the way had been stopped up by an order of justices (m). 8. Tender of Amends. If a person brings an action of trespass for taking away his beasts, or other goods, tender of sufficient amends before action brought is not a bar; because the party making the tender is See also Hooker v. Nye, 1 Cr. M. & R. 258; 4 Tyr. 777; Bowler v. Nicholson, 4 P. & D. 16; 12 A. & E. 341; Purchell v. Salter, 1 Q. B. 197; 1 G. & D. 682. (1) Cockerill v. Armstrong, Willes, 99. (m) See 5 & 6 Will. IV. c. 50, ss. 84 to 92, (repealing 13 Geo. III. c. 78, and 55 Geo. III. c. 68,) amended by stat. 2 & 3 Vict. c. 45, and 4 & 5 Vict. c. 51. For cases on the repealed statutes, see 8th edition of this work, p. 1359, tit. "Trespass." not the owner of the goods, as in the case of a distress (9), but a trespasser to whom the law does not show any favour (n). By stat. 21 Jac. I. c. 16, s. 5, "in all actions of trespass quare clausum fregit, wherein the defendant shall disclaim in his plea, to make any title or claim to the land, and the trespass be by negligence or involuntary, defendant may plead a disclaimer, and that the trespass was by negligence or involuntary, and a tender of sufficient amends before action brought.' V. Evidence. THE plaintiff may prove the trespass to have been committed at any time before action brought, though it be before or after the day laid in the declaration. But in trespass with a continuando, the plaintiff ought to confine himself to the time in the declaration; yet he may waive the continuando, and prove a trespass on any day before action brought, or he may give in evidence only part of the time in the continuando. Bull. N. P. 86. So where trespasses are alleged to have been committed on a particular day, and on divers other days and times between that day and the commencement of the action, the plaintiff may prove either one trespass before the day specified, or as many trespasses as he can within the space of time mentioned in the declaration, but he cannot do both, and must waive the one or the other. Per Gould, J., Northumberland Summ. Ass. 1775, MSS., Chambre, J. In trespass (o) against several, the plaintiff having proved a joint trespass by all, cannot waive that, and give evidence of another trespass committed by one defendant only. Declarations respecting the subject-matter of a cause, by a person who at the time of making them had the same interest in such matter as the plaintiff; were holden (p) to be admissible in (n) 2 Inst. 107. (0) Tait v. Harris, 1 M. & Rob. 282; 6 C. & P. 73; but see the remarks of Patteson, J., on this case, in Hitchen v. Teale, 2 M. & Rob. 31. (p) Woolway v. Rowe, 1 A. & E. 114; 3 Nev. & M. 849. (9) With respect to distresses, either for rent arrear or damage feasant, the law is, that if a tender is made before the taking the distress, the taking is wrongful; if after the taking, and before impounding, the detainer is wrongful. But a tender, after impounding, comes too late.t Hence, in pleading a tender of amends to an avowry for damage feasant, it ought to appear on the face of the plea, that the tender was before impounding. The clause in stat. 21 Jac. I. c. 16, s. 5, hath not made any alteration in this respect, for that clause is confined to actions of trespass. *2 Inst. 107. + See ante, p. 1212. Allen v. Bayley, Lutw. 1596. evidence against him, although the maker of them was alive, and might have been called as a witness. Where the declaration charges the commission of trespasses in a close of the plaintiff, which it describes by abuttals, the plaintiff, in support of the declaration, is not obliged to prove trespasses committed in every part of the close. And if the defendant pleads that the “close in which, &c." is part of certain ground once waste, but which was set out under an award for particular purposes, and that he (defendant) is entitled to use it for those purposes; and if it appears that the whole extent of ground mentioned in the plea was not set out under the award, but if part of it was so set out, and the place where the trespasses proved were committed was within that part, then the defendant has proved his justification; for as the plaintiff is not bound to carry his proof of trespasses to every part of the close mentioned in the declaration, so the defendant is not bound to support his justification as to all parts. The "close in which, &c." does not mean the whole close referred to in the declaration, but the place in which the trespass is proved to have been committed, and the defendant may so apply it (q). To support a plea (framed on stat. 2 & 2 Will. IV. c. 71, s. 2, which see ante, p. 1126) of a right of way enjoyed for forty years, evidence (r) may be given of user more than forty years back. But the plea is not supported by proof of user from a period of fifty years before the commencement of the action down to within four years of it (s). Under a plea (t), denying that the defendant had used the way for forty years, as of right and without interruption, the plaintiff is at liberty to show the character and description of the user and enjoyment of the way during any part of the time; as that it was used by stealth, or in the absence of the occupier of the close and without his knowledge; or that it was merely a precarious enjoyment by leave and license, or any other circumstances which negative that it is an user or enjoyment under a claim of right; the words of the 5th section (u), "not inconsistent with the simple fact of enjoyment," being referable to the fact of enjoyment as before stated in the act, viz. an enjoyment claimed and exercised "as of right." VI. Damages; Costs. Damages. By stat. 3 & 4 Will. IV. c. 42, s. 29, in actions of trespass de bonis asportatis, the jury, on the trial of any issue, or on any inquisition of damages, may, if they shall think fit, give damages in the nature of interest over and above the value of the goods at the time of the seizure. (q) Bassett v. Mitchell, 2 B. & Ad.`99, recognizing Richards v. Peake, 2 B. & C. 918. (r) Lawson v. Langley, 4 A. & E. 890. (s) Parker v. Mitchell, 11 A. & E. 788; 3 P. & D. 655, ante, p. 1128. (t) Beasley v. Clarke, 2 Bingh. N. C. 709, recognizing Tickle v. Brown, 4 A. & E. 369; 6 Nev. & M. 230. (u) For which see ante, p. 449. |