138 BOARD OF AGRICULTURE. 



lot, " at all times when uecessaiy," the grantee is entitled to 

 reasonable notice of the intention of the grantor to make 

 repairs, before being liable to an action for obstrncting the 

 right of way. For it is not a right of way at all times. 



A grant of " right of way " may be presumed from an unin- 

 tojTnpted adverse possession for more than twenty years 

 unexplained . 



Ordinarily, the same rules apply to govern the use of a way, 

 claimed and acquired by prescription, as those acquired under 

 a general gi-ant by express terms in a deed. 



If it appears that the way has been used by the pei^mission 

 of the owner of the soil, and not by adverse possession, then 

 no length of time establishes the right to continue the ease- 

 ment, against the consent of the owner of the soil. 



It has been said that the three modes of acquiring and hold- 

 ing "rights of way," to wit, by grant, by prescription, and by 

 necessity, resolve themselves into one. They are all derived 

 from the voluntary grant of the proprietor of the fee. 



Prescription presupposes and is evidence of a previous 

 grant. 



Necessity is only a circumstance resorted to for the purpose 

 of showing the intention of the parties and raising an implica- 

 tion of a grant. The only difference between the two is, that 

 one is granted in express words, and the other only by impli- 

 cation. 



And a way by necessity, created by an implied grant, exists 

 only when the person claiming it has no mode of passing from 

 his land to a public road without it. And whenever the situ- 

 ation of his land is changed, so that by means of a new road, 

 or other cause, another way is provided by which he has access 

 to a public street without trespassing upon the land of another, 

 then the way of necessity ceases to exist, and he must adopt 

 another way of approach to his land. 



The right of way may be located by the owner of the land, 

 when claimed as a way of necessity. But it must be a reason- 

 able one ; it mil bo remembered that convenience alone will 

 not create a right for a way. 



And when once located it is not a shifting way, but the 

 parties are bound by it the same as though there was an 

 express gi'ant. 



