JUDICIAL COMMITTEE OF THE PRIVY | prietor of all the land up to the very walls of the COUNCIL. Reported by Henry F. PURCELL, Esq., Barrister-at-Law. Dec. 20, 1867, and March 11, 1868. (Present; Lord ROMILLY, Sir J. W. COLVILLE, Sir E. V. WILLIAMS, Sir R. T. KINDERSLEY, and Sir R. PHILLIMORE.) RUGG v. KINGSMILL. A faculty having been decreed by the local ordinary authorising the appropriation of a vault under the chancel of a chapel, the entrance to which was from the outside in private and unconsecrated ground, on an appeal by the incumbent, in opposition to the grant of the faculty, their Lordships Held, that the incumbent could not be compelled to perform the service in unconsecrated ground, and that the grant of the faculty should be made conditional upon a sufficient piece of ground near the aperture to the vault being first duly consecrated for the sole and special purpose of burials in the vault: Semble, the discretion of the ordinary in granting such faculty is not fettered by the dissent of the vicar, whose objections should, however, be considered. Very exceptional circumstances alone can justify an ordinary in granting a faculty for interments in the chancel or body of a church. This was an appeal from a sentence pronounced by the late Judge of the Arches Court at Canterbury, whereby he affirmed the sentence of the Consistorial Court of Winchester, which decreed a faculty to issue to Mr. Kingsmill, authorising the appropriation to that gentleman of a vault under the chancel of Sydmonton Church. This church is situate in the parish of Sydmonton, in the county of Southampton. It appears that the whole property, as well as the principal house in the parish, belongs to Mr. Kingsmill, and that, with the exception of the consecrated ground upon which the church is built, he is proMAG. CAS.-VOL. V. church, which has no burial ground attached to it. In the year 1849 there was a chapel which occupied the site of the present building. Under the chancel of this former chapel the father of Mr. Kingsmill possessed a vault. In 1849 the chapel was pulled down. In 1852 Sydmonton, with Ecchenswell, which formerly formed part of the parish of Kingsclere, was formed, under an Order in Council bearing date 19th Aug. 1852, into a distinct and separate parish for ecclesiastical purposes. In Sept. 1852 Mr. Rugg, the appellant, was instituted incumbent of Ecchenswell with Sydmonton. In 1853 the present church was built by Mr. Kingsmill, at his sole cost and expense. In Aug. 1864 the church was consecrated." In Aug. 1865 the faculty now in question was granted by the Consistory of Winchester. The appellant opposed the grant of the faculty, and appealed from the decision of the Judge of the Consistory Court at Winchester to the Dean of Arches, who confirmed the judgment, with slight variation, of the court below. The present appeal was then brought. Appellant in person.-First. The bishop has no jurisdiction over this vault at all; it is not uncommon for vaults under a church to be used as wine vaults. There is no access to this vault from the church or from any consecrated ground. It does not follow that because a building is consecrated, all beneath it is so too. At Winchester, a church is built over the public road, and it cannot be contended that the road is consecrated also. Secondly. Even if the bishop have jurisdiction over both church and vault, he cannot grant a faculty without consent of the incumbent for a vault in any parish church, still less in a chapel where no custom of burial has existed; a faculty is a dispensation to do that which is not permitted by law and is irrevocable; it transfers, too, a part of the freehold : it is different from a licence: the 25 Hen. 8, c. 21, is the only Act that I know of under which the bishop has power to grant a faculty; that Act gives him no B PRIV. Co.] RUGG v. KINGSMILL. [PRIV. CO. permission to do so without consent of the incum- | ordinary. The faculty which has been decreed in bent; the freehold is in the incumbent, and the this case is, as has been stated, for a burial vault exercise of this power would amount to a transfer underneath the chancel. The objector to the grant of the freehold : of the faculty is the incumbent, who is either vicar or perpetual curate. The applicant for the faculty is Ayliffe's Parergon; Griffin v. Deighton, 33 L. J., N. S., 29, Q. B.; 8 L. T. the impropriate rector, who resides in the parish, Rep. N. S. 500; Rogers' Eccl. Law, 236; Rich v. Bushnell, 4 Hagg. 164; Fuller v. Lane, 2 Addams, 431. and whose father appears to have rebuilt and partially endowed, at his own cost, the church. The vicar or perpetual curate, although entitled to Thirdly. The citation in this case is illegal; before officiate in and to have free access to the chancel, it issued the Ecclesiastical Court should have ascertained whether the incumbent's consent had been obtained; it should also have been addressed to the minister and churchwardens, not to the people at large; this latter is the ordinary form, because in all cases the minister's consent is first obtained. It was not affixed to Ecchenswell church-door as should have been done. Under the Marriage Act (6 & 7 Will. 4, c. 85), s. 26, notice must always be given to the minister before a church is licensed for marriage. Fourthly. As there is no custom to bury at Sydmonton, it is opposed to the rubric in reference to chancels : Wheatley on Common Prayer; At a council held at Winchester all burial in churches was forbidden; no custom to bury in churches existed from the earliest period: (3 Phil. 349.) Fifthly, there is no public access to this vault; there is no consecrated ground at its entrance, and, ratione loci, the bishop has no jurisdiction over the stone at the entrance. I cannot be compelled as incumbent to perform the service on unconsecrated ground, and on private ground from which I am liable to be ordered away: Kemp v. Wicks, 3 Phil. 295. Suppose the owner change his religion, the bishop could not prevent a Catholic service from being gone through underneath the church, nor could I bring an action of trespass; to open an entrance to the vault from the church itself would be utterly illegal. By the Cemeteries Act (10 Vict. c. 65), | ss. 15 and 24, it is clear that burial ground must be inclosed on every side. Sixthly, the Burial Service in the present case cannot be performed in accordance with the rubric. It is not compulsory that the service should be performed within the church, the priest should stand on consecrated ground, and that outside the grave-the service cannot be read on unconsecrated ground. A clergyman cannot read the service under the Cemeteries Act in the Dissenting portion of a cemetery. The Burial Service is a public service. The whole spirit of modern legislation is opposed to intramural interments. Deane, Q. C. and Swabey for respondent (who were heard only on the last objection).-All the service might be performed within the church. By the act of consecration the stone at the entrance of the vault and the steps leading to it are consecrated, the minister could stand on these steps, the vault itself is perfectly legal, if a difficulty as to a burial arises hereafter it can then be settled-a faculty is granted in connection with a particular case. It was not a condition precedent to the granting of this faculty that the place of access should be consecrated; there can be no objection to the granting of the faculty; it may, however, be allowed, subject to conditions. The appellant replied. March 11.-Their LORDSHIPS now delivered judgment.-Before a faculty, either to the parishioners in general or to a private inhabitant of the parish, can be decreed, the ecclesiastical law requires that all persons interested in opposing the grant should have an opportunity of being heard before the has no right, strictly speaking, to fees for the erection of monumental tablets, or for the construction of vaults (in the very rare instances in which they should be allowed) in the chancel; but he has certainly a persona standi, by reason of his general spiritual position as incumbent, to oppose the grant of such a faculty as the present. The objections of the appellant to the sentences from which he appeals are various: First, he contends that the Ecclesiastical Court has no jurisdiction to grant this faculty. He supports this objection by reference to the facts chapel; that no funeral has ever taken place there; that there is no burial ground attached to this that the inhabitants of the district have consequently no general right of burial connected with the chapel, and his argument appeared to extend so far as to question the validity of the consecration of the chapel itself by the bishop. Their Lordships, however, see no reason to doubt that the bishop had full authority to consecrate this building, and they are of opinion that the objection founded on the absence of any burial ground, and of any general right of burial on the part of the parishioners, did not render unlawful the act of the ordinary, though it imposed upon him the duty of exercising with much caution the discretion which the law has vested in him as to granting a faculty of this kind. The appellant further contended that the grant of this faculty was bad, upon the ground that the proper forms prescribed by the practice of the Ecclesiastical Court had not been complied with. Their Lordships, however, are of opinion that the case was regularly and properly conducted in the Diocesan Court of Winchester, and that this objection cannot be sustained. The appellant contends that this faculty could not be granted without his consent, but this contention is not supported by authority or practice. The vicar or perpetual curate, as has been stated, is entitled to be heard against the grant of the faculty, and his objections ought of course to be considered by the ordinary, but the discretion of the ordinary is not fettered or taken away by the dissent of the vicar. There are objections, however, urged by the appellant which are of a more serious character; they may be all ranged under the general head-that the discretion of the ordinary was unwisely exercised in the grant of this faculty. From the decision of the ordinary an appeal lies to the Archbishop, and ultimately to the Crown, under the advice of the Judicial Committee of the Privy Council. If we think that the grant of this faculty, though not absolutely illegal, was, as it at present stands, indiscreet and likely to give rise to future troubles and difficulties in the church and district of Sydmonton, which were not duly considered by the Ecclesiastical Courts, we ought to advise Her Majesty accordingly. The appellant has pointed out to their Lordships that the ground upon which the church stands alone is consecrated, that the jurisdiction of the ordinary depends upon the consecration of the ground, and does not extend over any part of the ground which comes up to the very walls of the church. The legal consequences of this circumstance, upon which the appellant insists, will presently be noticed. Their Lordships, having regard to the peculiar circumstances of this church and parish, are not disposed to dissent from the opinion expressed by the PRIV. Co.] COOK v. THE MAYOR, Aldermen, and Burgesses oF THE CITY, &C., OF BATH. [V.C. M. vault. The jurisdiction of the ordinary, ratione loci, would then be unquestionable; and any impropriety with relation to the performance of the burial service would be subject to his correction and control. Their Lordships therefore think that this cause should be remitted to the Court of Arches, with directions to issue the faculty in question whenever it has been duly certified to that court that the consecration of the additional portion of ground has taken place; and with power, if it should be deemed necessary, to vary the terms of the faculty by a reference to a recital of the fact of such consecration having been effected. Their Lordships think that both parties ought to bear their own costs incurred in this court and in the Court of Arches. Their lordships will humbly advise Her Majesty in accordance with the opinion which they have now expressed. Proctors for the respondent, Rathery and Co. V. C. MALINS' COURT. Reported by G. T. EDWARDS, Esq., Barrister-at-Law. Feb. 7, 8, and 10, 1868. COOK v. THE MAYOR, ALDERMEN, AND BURGESSES Right of way-Injunction-Non-user for forty years-Re- A judge of the Arches Court, that the judicial discretion of the local ordinary was lawfully exercised in granting permission to Mr. Kingsmill to retain, for the use of himself and his family, so long as they shall remain proprietors of Sydmonton Court (for this must, of course, be a provision contained in the instrument), the vault which has been constructed underneath the chancel. Their Lordships desire that it should be understood that they do not mean to express any approbation of a general practice of granting faculties for interments in chancels or the body of churches. On the contrary, they are of opinion that very exceptional circumstances can alone justify such an exercise by the ordinary of the discretion which the law has vested in him. With respect to the particular faculty the consideration of which is now before their lordships, they have come to the conclusion that it ought not to be issued, at the present time, in the manner proposed. Their Lordships are extremely reluctant to interfere with the exercise of the discretion in these matters by the local ordinary, and they fully recognise the expediency of the rule of practice which discountenances such interference. But their Lordships think that the objection to the immediate issue of this faculty, while the only entrance to the vault is in the private and unconsecrated ground of Mr. Kingsmill, is deserving of great consideration. In the first place it is clear that the ordinary could not compel the incumbent by eeclesiastical censures to perform the burial service in the unconsecrated ground in which the only entrance to the vault is to be found. It has not been argued that the ordinary could so compel the incumbent: indeed, it has been very properly admitted by the counsel for Mr. Kingsmill, that no authority can be found for such a practice. In the next place it appears to their Lordships to be inexpedient that the spot upon which a portion at least of the burial service is usually performed by the minister should be exempt from the jurisdiction of the ordinary. It is true that the ordinary would have jurisdiction over the vault itself, and that the whole service might lawfully, their Lordships think, in the peculiar circumstances of this case, be performed in the church, and the corpse afterwards taken into the garden and deposited in the vault; and their Lordships do not mean to say that the ordinary might not be enabled to punish any unlawful proceedings which might precede or accompany the act of burial; but it is also true that the absence of any ecclesiastical jurisdiction over this spot of ground might afford an apparent impunity to evade the law, and thereby possibly cause a scandal in the parish. If, in the present state of circumstances, the grantee of this faculty or his successors in the mansion to which it is in fact attached, were hereafter, either perhaps on account of their having ceased to be members of the church, or on account of some quarrel with the incumbent, or for any other motive, to cause a service different from that which is enjoined in the Prayer Book to be read over the corpse, or if they were to place the body in the vault without the previous performance over it of any religious service, in any case of this kind the present or future ordinary might be considerably embarrassed in the exercise of his proper jurisdiction to remove the scandal, or to punish the authors of it. Their Lord-messuage in question, situate on the north side of ships think that it is the duty of the ordinary, when granting a privilegium of this kind, to take every precaution in his power against the possibility of a misuse by the grantee or his representative of the special favour which is conceded to him. They see no reason why the grant of this faculty to Mr. Kingsmill should not be made conditional upon his consenting to allow a sufficient piece of ground near the aperture to the vault, to be first duly consecrated for the sole and special purpose of burials in this messuage abutting, in the rear, on a narrow lane in the city of B. had a back door, which being constantly used for access to or from either end of such lane, was shut up for forty years, during which time also (although the two periods were not exactly commensurate in date) gates were put up at either end of the lane, to abate a nuisance, but only occasionally closed, being in fact the result of an arrangement amongst the occupiers of the houses; and free access being always given, although a key was kept. The back door of the messuage was then re-opened, and continuously used for three and a half years, when the next but one adjoining house was purchased by the corporation of B., who proposed, and had plans prepared, to build upon the site of the house and lane an hotel and baths, so as entirely to obstruct the way from such back door through the lane. On bill filed and injunction moved for to restrain such building, injunction granted. Semble, if an easement is disused for a time sufficient to bar the right of resumption as against parties acting on the assumption of abandonment, unless there are some acts on such assumption, and unless other persons have expended money on the faith of the right having been abandoned, the right continues, and is merely suspended, and may be resumed. This was a motion for an injunction to restrain the defendants, their servants, agents, and workmen from building upon a certain lane called White Hart, or Cross Bath-lane, in the city of Bath, so as to obstruct the plaintiff's access through such lane to Stall-street from the back door of his messuage, No. 14, Bath-street. The plaintiff (George Henry Cook, who was a solicitor) was seised in fee-simple in possession (subject to the interest of his tenant) of the Bath-street, the lane being at the back of such messuage leading east into Stall-street and west into other public streets. The plaintiff had a door opening into such lane, by which, as he alleged, he and his predecessors, and their tenants, had been accustomed, at their pleasure, from the time of the erection of the plaintiff's house in 1793 (and that without interruption or agreement with the defendants, or any other persons) to pass along the lane into Stall-street, the only direct communication 8 Sim. 272). Whether the damage is great or small, Daniell v. North, 11 East. 372-5; Gale on Easements, 4; Wedmore v. The Corporation of Bristol, 7 L. T. Rep. V.C. M.] COOK V. THE MAYOR, ALDERMEN, And Burgesses OF THE CITY, &c., OF BATH. [V.C. M. being along the lane. That the defendants had J & Div. App. Cas. 47, settles that (Sampson v. Smith, recently purchased No. 16, which they were pulling down, and intended to erect upon part of the site, a building intended for baths, which, if completed, according to the plan, which the defendants intended to act upon, would obstruct and render the lane impassable, and wholly and permanently destroy the communication between the plaintiff's back door and Stall-street. He also alleged that in March 1867, he heard of the contemplated erection and applied to the architects, and was informed that the plans were not completed; but they admitted the intended obstruction. The plaintiff thereupon gave notice to the architects of his objection to what was proposed, and that unless the plans were altered he should be compelled to take steps to prevent the obstruction. In Nov. 1867, the plaintiff perceiving placards in the windows of No. 16 as to the removal of the tenant, wrote to the corporation by their town clerk, protesting against their intention to close the lane to Stall-street or interfering with such lane, and to their pulling down Nos. 15 and 16 or altering their fronts in Bath-street, stating that he so protested in the hope that the plans might be altered, but that otherwise he would be under the disagreeable necessity of applying to the Court of Chancery to restrain their proceedings. To this letter the town clerk replied, that he had laid the matter before the Borough Property Committee, and he appointed an interview, which took place without any satisfactory result; the defendants declining to recognise the plaintiff's right both then and in a correspondence which subsequently took place. On the 19th Dec., the plaintiff, having ascertained that the defendants still intended pulling down No. 16, on the 20th served a notice on the town clerk objecting to the obstruction of the lane and the diminution of the light at present passing through his back windows, and stating that a bill would be filed. This was not replied to, and accordingly this bill was filed, alleging the plaintiff's title to free access along the lane, which was a great advantage to him and to his property, and that if it was stopped up he would be obliged to take a more circuitous route. That the present means of communication very materially increased the value of his house; that the lane was a public highway, and any obstruction of it would be injurious to the public, but the closing of it would be an injury to the plaintiff of a private and particular nature, and an irreparable damage, and the value of the property would be materially diminished, and that the defendants had no justification for their conduct. The bill then prayed for the injunction to restrain the building so as to obstruct, &c., and also for a mandatory injunction. Evidence was gone into to show that forty years ago the back door was built up and reopened in 1863, and that for a similar period high gates and doors were placed at either end and sometimes closed, but that the key was always accessible. Glasse, Q.C. and Charles Hall appeared in support of the motion.-There is no doubt that this was a public way, and the disuser is no destruction of the easement; it must be non-user with a manifest intention never to resume. There must be a case of actual abandonment. There is no evidence of any acts by the freeholder, they are all by the tenants. No doubt the door was shut up; but it being a question of public right, and having been opened four years ago and constantly used, that is sufficient to entitle us to open the door. If it is a public highway the plaintiff is one of the public, and has a right to use it; and, moreover, as one of the public, has a remedy for a special injury to himself. The Attorney-General might also file an information: Bickett v. Morris, L. Rep. 1 Scotch Morgan, 263, note to sect. 2; Lyon v. Dillimore, 14 L. T. Rep. N. S. 183; Freeman v. The Tottenham Railway Company, 13 W. R. Ward v. Ward, 7 Ex. 838. Cole, Q. C. and Ince for the defendants.-There must be a manifest intention to abandon; and what can be a more complete abandonment than building up with brick and allowing it so to remain for forty years? (Crossley v. Lightowler, 2 Ch. App. 478.) Moreover, the way has been actually shut up, and it was always necessary to obtain the key to get through, and that is a perfect destruction of the public nature of the way, and destroys the right to the easement: Attorney General v. The Conservators of the Thames, The Vestry of Bermondsey v. Brown, 35 Beav. 226; To show a right of way it must be on behalf of the Daris v. Williams, 20 L. J., N. S., 330, Q. B. The VICE-CHANCELLOR.-I am sorry that the good sense of the parties has not enabled them to settle this dispute, involving an amount utterly incommensurate with the length of the argument necessary in order to enable me to arrive at a conclusion, and to consider points of law by no means free from difficulty. The plaintiff was seised in fee of the house in question, the front abutting upon Bath-street, the back upon White Hart-lane, adjoining the well-known hotel. It is clear upon the evidence that for a century and a quarter, if not more, there has been an open space freely accessible by the public to pass through without obstruction, at all events until the erection of the gates forty years ago, and I must treat this lane as at that time a public way like any other in the city of Bath. Whilst it was so, the commissioners for the improvement of Bath, whose property (it is immaterial how) has become vested in the corporation, conveyed to the predecessors of the plaintiff the site of this house in 1793 (subject to a rentcharge of 20l. 16s. 6d.) in fee, and it was described as bounded on the south by Bath-street and on the north by White Hart-lane; that is seventy-four years ago. I am satisfied, on the evidence of old witnesses, V.C. M.] Cook v. THE MAYOR, Aldermen, and many of whom speak of matters more than half a century since, that this was just as much a public way as Bath-street or Stall-street into which it led. It was dark, disagreeable, and no doubt dirty, and only used for the sake of a short cut; but it was undoubtedly a public way. The plaintiff's house does not appear to have been erected more than seventy years ago, but beyond all doubt it had a back door opening into this lane as well as a front door into Bath-street, and for many years after its erection there was free access from both; and this is not denied by the defendant. It is also proved to my satisfaction, and not denied, that about forty years ago this back door was closed by a former occupier, although it does not distinctly appear whether that was with the consent of the freeholder; but as no objection appears to have been made I must assume it to be the act of the tenant and also of the freeholder. The evidence is contradictory, but I consider it as proved that it was closed by a pawnbroker, his pledges being safer, as he considered, without a back door. Accordingly, from about forty years ago till 1864, the house was without a back door, but it is distinctly proved that in the spring of 1864 the present occupier restored it as much as possible to its former condition, and reopened the back door into White Hart-lane; that is three years and a half before the bill was filed. When the dispute commenced he was in possession of the house, having a free access into Bath-street and White Hart-lane. Another very material thing relied upon by the defendant is this: There is no dispute that at least forty years ago this lane, never having been properly lighted or cleansed and being dark and the resort of disorderly persons, became a nuisance, and the occupier of the hotel, as I collect, with the concurrence of all the occupiers of the houses abutting upon it, for the purpose of abating the common nuisance, erected, at the east end leading into Stall-street, very substantial doors or gates nine feet high. Some of the witnesses say these were sometimes closed in the daytime, and constantly at night, the evidence is not conclusive. We find, however, that if the closing was remonstrated against they were immediately opened, and the freest access given. Now, one question is, did the erection of these gates alter the position of affairs? I am of opinion that, inasmuch as the arrangement was satisfactory to all the inhabitants of the houses, it cannot be considered as the renunciation of any right, but as an arrangement for the common advantage; and the plaintiff must be considered as having the same rights as if the gates had never been erected. But even if that is not so, the gates only being closed at night, if the easement were used only during the day, there would be no difficulty in law; for if the right was exercised only during one part of a year or of a day-if a deed could be produced by which the owners of the soil had contracted to open it at all times from sunrise to sunset-that would have been conclusive. But, although there may be a doubt as to any contract, if there be usage for more than twenty years the court presumes a grant as distinctly as if the right were proved to exist by deed. I think, therefore, that the defence of the corporation as to the erection of these gates, fails as any defence of their acts in closing the access from Stall-street. Another very material point is this:-The plaintiff (that is one of his predecessors) | having closed this back door, and allowed it to remain so closed for at least thirty years, and only reopened it some four years since, must he be considered to have abandoned his right? The law on this point is not entirely free from difficulty; but, as I understand the principle upon which I mean to act, it is this:-A right of way or a right to light may be abandoned, and it is always a Burgesses oF THE CITY, &C., OF BATH. [V.C. M. question of fact to be ascertained, sometimes by a jury, and sometimes by this court, from certain circumstances, whether the act was itself an abandonment or intended to be so. If in this case the defendants had commenced building before this door had been reopened, I should have been of opinion that the plaintiff had, by allowing it so to remain closed, shown that he intended to abandon his right, and that in that event he could not have sustained his bill. Now this distinctly appears by the case of Moore v. Ransom (supra), an analogous case, and a very valuable authority, where the plaintiff having ancient windows pulled down the wall in which they were, and erected a blank wall, and allowed it so to remain for seventeen years, during which period the defendants erected buildings which they could not have done if the windows had remained, and incurred expenses. Lord Tenterden, in the Court of Queen's Bench, held that the plaintiff could not maintain an action, and directed a nonsuit. But it is clear that if there had been no building erected before the expiration of the seventeen years, the plaintiff might have resumed his windows and gained a new right of action. This also appears in Stokoe v. Singers (supra), where Sir William (then Justice) Erle held, that if the defendant had incurred expense on the faith of windows being closed, the plaintiff could not recover; that is a case of great importance. In Ward v. Ward (supra) Alderson and Pollock, BB. held mere nonuser of a way no abandonment by the party in the absence of the acquisition of rights by other parties in consequence, but only an inference that he had no occasion to use it. Mr. Cole referred to Crossley v. Lightowler (supra) as to fouling a stream, the material circumstance there being that within twenty-five years Crossley had altered his position and erected large works in such a manner as to show an abandonment; but Wood, V. C. held that there had been none, because rights had not been acquired by other parties meantime. That is my view of this case. Inasmuch as this house, if originally erected (as I think it was) with a back door leading into the lane, conferred on the owner as much right to use such back door as he had to use the front door; while he had that right no one could say "you shall only have one door;" he could use either. It is clear that if this door had been open the whole time, but during that whole time there had been nothing more than the right and no exercise of it, there was a continuing right in the plaintiff to re-open it, unless in the interval some other parties had acquired rights so that it would be a prejudice to them. And, on this principle, if the door had been closed to the last, the plaintiff would have failed in this motion. But the defendants rely on his abandonment of the right, when four years, or at least three years, before their attempt to exercise any adverse rights, he actually reopened it; and, as far as I can tell on the dealings which took place, they knew perfectly well that this door was used in the same manner as the doors of the other houses. This gentleman, therefore, who thought fit thus to re-open this door four years before any adverse act, and who objected to such act, thereby showed his intention not to abandon his right; and his contention that he had never fully abandoned it whilst no other parties had acquired adverse rights, must succeed; and he has preserved his right on the authority of Stokoe v. Singers and the other cases. On these grounds I am of opinion that there was no abandonment; it was a mere suspension of the right, and the plaintiff had a right to re-open the door as he did in 1864, and as owner of the house, to have as theretofore two entrances. The defendants suggest that, finding this lane liable to be closed by gates at both ends, there was on the authorities the right to close it at |