Fencing of mines. Fencing of railway. ing Act, 18 & 19 Vict. c. 122, the rights of dealing with party-walls are regulated exclusively by the provisions of that Act relating to "Party Structures," s. 83, which supersede or qualify the common law rights of property. For the purposes of the Act a party-wall is defined by reference to the use made of it, independently of the owner-ship (1). Where minerals are separated from the ownership of the surface with the right of digging shafts and working through the surface, in the absence of express stipulation, there is an implied obligation on the owner of the minerals to fence the shafts for the protection of the owner of the surface; in which case the fence is maintained upon the dominant tenement (m). There is a statutory obligation to fence the shafts of abandoned mines, by the Metalliferous Mines Regulation Act, 1872, 35 & 36 Vict. c. 77 (n). The Quarry Fencing Act, 1887, 50 & 51 Vict. c. 19, provides that "any quarry dangerous to the public in open or unenclosed land within fifty feet of a highway or place of public resort dedicated to the public shall be kept reasonably fenced for the prevention of accidents, and unless so kept shall be deemed to be a nuisance." The term quarry is defined in the Act. By the Railways Clauses Act, 1845, 8 Vict. c. 20, s. 68, it is provided that "The company shall make and at all times maintain for the accommodation of the owners and occupiers of lands adjoining the railways, sufficient fences for separating the land taken for the use of the railway from the adjoining lands not taken, and protecting such lands from trespass, or the cattle of the owners and occupiers thereof from straying thereout, by reason of the rail 4 M. & G. 761; Hughes v. Percival, (1) Knight v. Pursell, L. R. 11 (m) Groucott v. Williams, 4 B. & S. 149; 32 L. J. Q. B. 237; Churchill v. Evans, 1 Taunt. 529; Hawken v. Shearer, 56 L. J. Q. B. 284. (n) Arkwright v. Evans, 49 L. J. M. 82. way provided that the company shall not be required to make any accommodation works with respect to which the owners and occupiers of the lands shall have agreed to receive and shall have been paid compensation instead of the making them." The statutory obligation does not apply to fencing between the railway and adjoining land of the railway company, as a yard retained by the company for the use of persons driving cattle to and from the line (0); or a tramway adjoining the line kept for the use of the public upon payment of tolls (p).-The statutory Extent of obligation extends to the owner and occupier of the ad- liability. joining land and to persons using the land with their licence; who may recover for the loss of cattle straying on to the line through defects in the fence. But there is no general liability to other persons having no right or interest in the adjoining land, and whose cattle are not rightfully using it; and no claim can be made against a railway company for loss of cattle which were trespassing upon adjoining land and thence strayed on to the line (2). Compensation made under the proviso of the section to the owner of land instead of a fence does not discharge the obligation to the occupier during his then existing tenancy; and a tenancy from year to year was held to be a continuing tenancy for this purpose until determined by notice (»). A passenger on the railway cannot charge the company upon this statutory obligation in the case of cattle breaking through the fence on to the line and causing an accident; he can only charge them upon the ground of negligence in the protection of the line (s). Neither the company nor any person in their employment can complain of a trespass of the cattle of an adjoining owner through a defect in the (0) Roberts v. Great Western Ry., 4 C. B. N. S. 506. (p) Marfell v. South Wales Ry., 8 C. B. N. S. 525. (q) Ricketts v. East & W. India Docks Ry., 12 C. B. 160; 21 L. J. C. P. 201; Dawson v. Midland Ry., L. R. 8 Ex. 8; 42 L. J. Ex. 49; see Sneesby v. Lancashire & Y. Ry., (r) Corry v. Great Western Ry., (s) Buxton v. N. Eastern Ry., L. R. 3 Q. B. 549; 37 L. J. Q. B. 258. fense which the company are bound by the statute to maintain e. The statutory obligation upon a railway company of keeping the gates deed at level crossings over highways exten is to all persons and cattle whether lawfully using the highway or not; and the owner of cattle killed on the line may recover for the loss, though they had strayed off his land on to the highway and through the open gates of the level crossing. The statutory obligation does not apply to a private railway constructed for private purposes across a highway by leave of the highway authority; the owner of such railway is not bound to fence it, nor is he liable for the loss of cattle trespassing upon it (u). Easements created by SECTION III. CREATION OF EASEMENTS. § 1. Grant.—§ 2. Prescription. §1.-GRANT. Easements created by grant or prescription-grant by deed-parol grant-Statute of Frauds-exception or reservation of easements— easements taken under Lands Clauses Act. Implied grant of necessary easements-way of necessity. Implied grant of apparent and continuous easements-no easement implied in derogation of grant-easements implied upon simultaneous grant of two tenements. Grant of tenement "with appurtenants"—grant of easements "used and enjoyed" with tenement-construction of grants-easements revived after unity of possession-Conveyancing Act, 1881. Implied grant of rights accessory to easements-right of maintenance and repair-obligation of servient owner. Easements are classed as incorporeal hereditaments; being incapable of possession and consisting in use only. (8) Child v. Hearn, L. R. 9 Ex. 176; 43 L. J. Ex. 100. (t) 5 & 6 Vict. c. 55, s. 9; 8 Vict. c. 20, s. 47; Fawcett v. York and Midland Ry., 16 Q. B. 610; 20 L. J. Q. B. 222; Ellis v. London & S. W. Ry., 2 H. & N. 424; 26 (u) Matson v. Baird, L. R. 3 Ap. Ca. 1082. They are thus distinguished, as subjects of property, from grant or prethe land itself to which they are appurtenant, which is held scription." in possession, and which at common law was transferred by delivery of possession, and therefore was said to lie in livery; while easements and other incorporeal hereditaments were said to lie in grant (a). Accordingly easements may be created by express grant by the owner of the servient tenement; or they may be established by prescription, that is, by use of the easement during the time required by law to raise the presumption of a grant. "Except where the positive law steps in, and in the absence of any legal origin gives to a fixed period of possession or enjoyment the status of absolute and indisputable right, every easement as against the owner of the soil must have had its origin in grant" (b). deed. limited term. The grant of an easement, as of all incorporeal heredita- Grant by ments, must be by deed sealed and delivered; for "the deed of incorporeate inheritances doth equal the livery of corporeate" (c). Easements may also be created by testamentary devise, which for this purpose is equivalent to a grant by deed, and is subject to the same rules of construction and application (d).—The grant of an easement Grant for for a limited estate also requires a deed. "Although the authorities speak of incorporeal inheritances, yet the principle does not depend on the quality of interest granted or transferred, but on the nature of the subject-matter; a right of common, for instance, which is a profit à prendre, or a right of way, which is an easement, can no more be granted or conveyed for life or for years without a deed, than in fee simple" (e). By the Conveyancing Act, 1881, Conveyancing Act, 1881. 44 & 45 Vict. c. 41, s. 62, easements may be granted by (a) Co. Litt. 9 a, b; ante, p. 185. (b) Cockburn, C. J., Angus V. Dalton, L. R. 3 Q. B. D. 102; 47 L. J. Q. B. 175. (e) Co. Lit. 9 a, b; per cur. Wood v. Leadbitter, 13 M. & W. 842. (d) Pearson v. Spencer, 1 B. & S. 571; see Polden v. Bastard, L. R. 1Q. (e) Per cur. Wood v. Leadbitter, Easements pass as appurtenant. Parol grant. Statute of way of use. "A conveyance of freehold land to the use that any person may have, for an estate or interest not exceeding in duration the estate conveyed in the land, any easement, right, liberty or privilege in, or over, or with respect to that land or any part thereof, shall operate to vest in possession in that person that easement, right, liberty or privilege, for the estate or interest expressed to be limited to him.” But where easements have once been created as appurtenant to a tenement, they pass with the tenement by any effectual mode of conveyance in law or in fact; and equally with or without express mention of appurtenants in the conveyance of the dominant tenement. So at common law easements appurtenant to land passed by livery of seisin of the land without deed (f). And a demise of land without a deed, so far as it may be valid, will carry with it an appurtenant easement, as a right of way, because "the principal subject of demise is corporeal and the other right is a mere incident"; but "if a right of way were granted de noro a deed would be requisite" (g). The grant of an easement by parol only without a deed, though expressed to be absolute and perpetual, operates as a licence only, justifying the use of the easement so long as it continues in force, but revocable at any time; although the grantor may be bound by contract not to revoke it, and may be liable to an action for breach of contract in revoking it (h). But if an easement be in fact used and enjoyed by permission of the servient owner, though without a valid grant, he may recover the consideration or the value of it (i).-An easement appurtenant to a dominant tenement is "an interest in or concerning land” within the fourth section of the Statute of Frauds, and therefore any contract or agreement concerning it must be in (f) Lit. s. 183; Co. Lit. 121 b; Sacheverill v. Porter, Cro. Car. 482. (g) Per cur. Bird v. Higginson, 6 A. & E. 826. (h) Ante, p. 195. (i) Davis v. Morgan, 4 B. & C. 8. |