pleaded in an action of trespass (ƒ). A claim incident to a fishery of drawing fishing nets to land upon the banks of a private river, was held to be an easement which was established by the usage (g). A claim alleged generally to use an adjoining close for hanging and drying linen, was held not to be supported by proof that the occupiers of the dominant tenement had done so for the use of their families only (). A claim by the owner of a dock for the vessels using the dock to extend their bowsprits over the adjoining wharf of another owner, was treated as a legal easement which might be acquired by grant or prescription (i). A claim by the owner of a wharf adjoining a public navigable river to fix piles in the bed of the river for the purpose of mooring and unlading vessels at the wharf, was held to be so far of the nature of an easement that the piles though fixed to the bed of the river remained his property (j). So there may be an easement of placing a fender on the bank of a stream for keeping up the water of a mill (). An easement may be maintained of erecting a sign-post upon adjacent land for the use of a public-house (); or of attaching a sign-board to the wall of another house (m). A facia formed of cement attached to a house, and used for exhibiting the name of the occupier and the number in the street of a neighbouring house, was held to pass by a lease of the latter as constituting part of the house, and not as a mere easement or use of the house to which it was attached (n).—An easement may be appurtenant to a messuage for the occupiers to use a particular pew or seat in the parish church for attending divine service; and the title to such easement may (f) Hawkins v. Wallis, 2 Wils. 173. (g) Gray v. Bond, 2 B. & B. 667. (h) Drewell v. Towler, 3 B. & Ad. 735. (i) Suffield v. Brown, 33 L. J. C. 249. (j) Lancaster v. Eve, 5 C. B. N. S. 717. As to moorings in a river, see Cory v. Bristow, L. R. 1 C. P. D. 54; 45 L. J. M. 145. (k) Wood v. Hewett, 8 Q. B. 913. (Hoare v. Metrop. Board, L. R. 9 Q. B. 296; 43 L. J. M. 65. (m) Moody v. Steggles, L. R. 12 C. D. 261; 48 L. J. C. 639. (n) Francis v. Hayward, L. R. 22 C. D. 177; 52 L. J. C. 291. be founded upon a faculty granted by the Ordinary, or upon prescription which implies such a faculty. But "it is only on account of the pew being annexed to a house that the temporal Courts can take cognizance of it" (o). Such an easement being the result of a faculty and not the subject of a grant is not within the Prescription Act (p). The Court will issue a prohibition to restrain an Ecclesiastical Court from trying a claim by prescription to a pew in a parish church (q). Every inhabitant of a parish has the right of entering the parish church for the purpose of attending divine service; and though it may be the office of the churchwarden to distribute seats, he has no right to prevent an inhabitant from entering upon the ground that he cannot be conveniently accommodated (r). easements. The following claims have been disallowed as easements Claims not upon general principles: A claim to free and uninter- admitted as rupted access of air and wind from the adjacent land for the use of a windmill; because too vague, undefined, and extensive to be recognised in law (s). A claim to uninterrupted access of air to and from the adjacent land for the service of the chimneys of a house; "the right is not one the law allows, being too vague and uncertain; one the acquisition of which the adjoining owner could not defend himself against" (t). Upon the same principle a claim to uninterrupted access of light cannot be supported as an easement to open ground; the right can only be claimed as appurtenant to houses and buildings (u). The (0) Mainwaring v. Giles, 5 B. & Ald. 356; Byerley v. Windus, 5 B. & C. 1; Brumfitt v. Roberts, L. R. 5 C. P. 232; 39 L. J. C. P. 95; Crisp v. Martin, L. R. 2 P. D. 15. (p) Haliday v. Phillips, "Times," 25 June, 1888, Day, J. (q) Re Bateman, L. R. 9 Eq. 660; 39 L. J. C. 383; Byerley v. Windus, and churchyard for burying the (s) Webb v. Bird, 10 C. B. N. S. (t) Bryant v. Lefever, L. R. 4 C. P. D. 172; 48 L. J. C. P. 380. (u) Roberts v. Macord, 1 M. & Rob. 230; Potts v. Smith, L. R. 6 Eq. 311; 38 L. J. C. 58. claim to an uninterrupted prospect over land cannot be maintained as an easement. "For prospect, which is a matter only of delight, and not of necessity, no action lies for stopping thereof;" and "it has been held expedient that the right of prospect, which would impose a burden on a very large and indefinite area, should not be allowed, except by actual agreement" (r). Also a claim cannot be supported, as an easement for a house or shop, to be uninterruptedly open to view from a distance, though such view may be valuable; as in the case of trade premises, that they should be conspicuous to the public (y). Nor can a person claim an easement to prevent the adjacent owner opening windows to overlook his land. "The Court will not interfere on the mere ground of invasion of privacy; a party has a right to open new windows, although he is thereby enabled to overlook his neighbour's premises, and so interfere with his comfort." A person can protect the privacy of his land only by building upon Compensation it to the exclusion of his neighbour's view (≈).-Upon the for prospect, principle that prospect, privacy, peace and quietness, freeprivacy, &c. dom from the noise and dust of public traffic, and other like amenities and advantages of situation are not proper subjects of legal rights, they are also not subjects of compensation, under the Lands Clauses and Railway Clauses Acts, to owners of lands that are "injuriously affected" by the execution of public works; the phrase "injuriously affected" being construed to refer only to injuries in the strict legal sense, for which damages may be claimed (a). But in the case of any land or any easement appurtenant to land being taken, for which a claim for compensation arises, the amount may be assessed at the full depreciation (x) Aldred's Case, 9 Co. 58 a; (y) Smith v. Owen, 35 L. J. C. R. 2 Ch. 158. (2) Kindersley, V.-C., Turner v. Spooner, 1 Dr. & Sm. 467; 30 L. J. C. 801; Re Penny and S. E. Ry., 7 E. & B. 660; 26 L. J. Q. B. 225. (a) Ricket v. Metrop. Ry., L. R. 2 H. L. 175; 36 L. J. Q. B. 205. of the rest of the land, including loss of prospect, or of privacy, or of other like advantages caused by the application of the property taken to the purposes intended (b). All such matters as above mentioned, though not proper Covenants concerning subjects of easements, may be made the subjects of cove- use of land. nant, so as to give a right similar to an easement against the covenantor, so long as he continues the owner of the land affected; for he is at liberty to bind himself by contract, as he thinks proper, in respect to the use or application of the land in his possession. Such covenants do not, in general, affect or charge the land permanently; though, under certain circumstances, they might become binding in equity upon persons taking the land with notice of the obligations created by them (c). SECTION II. SPECIFIC EASEMENTS. § 1. Ways.-§ 2. Light.-§ 3. Air.-§ 4. Water.-§ 5. Support.§ 6. Fences. Ways general and limited. § 1. WAYS. Ownership of land subject to way. Limitation of ways by grant-construction of grant as to purposes of limited. A right of way over land of another may be a general Ways right of passage for all purposes connected with the domi- general and nant tenement; or it may be a limited right of passage for certain purposes only, as for agriculture, mining, the (b) Buccleuch v. Metrop. Board, L. R. 5 H. L. 418; 41 L. J. Ex. 137. (c) Mellish, L. J., Leech v. Schweder, L. R. 9 Ch. 475; 43 L. J. C. 492; Leake on Contracts, Part VI. c. 2. See ante, p. 187. Ownership of the land. Limitations of way. carriage of minerals, the carting of timber, the fetching of water, attending market or church. The right may also be general or limited in respect to the manner of use; as a carriage way, a bridle way, a foot way, or a way for cattle. A claim of way must be alleged in pleadings and legal proceedings according to its limitation, and it must be proved according to the allegation. A claim alleged too largely may fail from defect or variance in the proof (a); but it is immaterial that the proof exceeds the allegation, if it sufficiently includes it (b). The owner of the servient tenement retains the property in the land subject to the right of way, and may exercise all rights of property which do not interfere with the reasonable use of the way (c). The use of an unlimited way is in itself an act of ownership, and is primâ facie evidence of entire ownership of the land in the absence of evidence or presumption to the contrary; so where a road divided two properties which was used equally by the owners of both, it was held that, in the absence of other evidence of ownership, half the road along its length belonged to each owner, with an appurtenant right of way over the other half. It seems that such a way would presumptively be available for all purposes and modes of use, because each owner is entitled so to use it upon his own half (d). A way is limited and defined, according to the nature of the title by grant or prescription, either by the express terms of the grant, or by the actual use upon which the prescriptive title is founded. "In proving a right by pre (a) Ballard v. Dyson, 1 Taunt. 279; Higham v. Rabett, 5 Bing. N. C. 622; Drewell v. Towler, 3 B. & Ad. 735; Brunton v. Hall, 1 Q. B. 792. (b) Duncan v. Louch, 6 Q. B. 914; Davies v. Williams, 16 Q. B. 546; 20 L. J. Q. B. 330. (e) Clifford v. Hoare, L. R. 9 C. P. 362 43 L. J. C. P. 225. (d) Holmes v. Bellingham, 7 C. B. N. S. 336; 29 L. J. C. P. 134; Mellish, L. J., Bradburn v. Morris, L. R. 3 C. D. 823. |