8S WAY OF NECESSITY. 



the land of third persons, and there is no other way to the lessee's 

 house, he is entitled to a way of necessity to the nearest public high- 

 way by the shortest line across the grantor's land; and the law is that 

 the grantee of a private way is to make it" {Oshorn v. Wise). It cannot 

 be pleaded generally, without showing the manner in which the land 

 over which it is claimed is charged with it {Bullnrd v. Harrison). A 

 man cannot prescribe for a way or other easement over his own soil, for 

 the two rights are perfectly inconsistent, and even a way of necessity 

 cannot be so claimed {Larrjp v, PiU). If the origin of a way of necessity 

 cannot any longer be traced, but the way has been used without inter- 

 ruption, it must then be claimed as a way either by grant or prescrip- 

 tion, according to the circumstances of the case. Where the fact is, 

 that there existed at one period a unity of possession, it must then be 

 claimed as a way by grant (Williams n. 1 Saund. 323 a). But where 

 there has been no unity of possession, and the way has been used imme- 

 morially, it must then be claimed as a way by prescription {Keijmrr v. 

 Summer). TJmt unity of jjossession exfinguislies a presaijML'e rigid of 

 irmj, see Wright v. Rattray, and Hinchcliffe v. Earl of Kinnoul. A 

 unity of possession of the land a qua and of the land in qua an ease- 

 ment exists, does not extinguish but only suspends the easement, where 

 the party is seised in fee of the one parcel and possessed for the residue 

 of a term of the other {Thomas v. Thomas, 2 C. M. & E. 34). 



A way of necessity exists after unity of possession of the close to 

 which, and the close over which, it leads, and after a subsequent sever- 

 ance ; hence, 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 

 lie may enter close A, and then sells close B, without a reservation of 

 any way, and then sells close A and C, the purchaser of close A shall 

 nevertheless have the ancient way of necessity to close A, over close B 

 (Bucksby V. Cotes). 



In Holmes v. Goring, Best C. J. thus stated the law as to a way of 

 necessity: "On the part of the plaintiff the case has been put on its 

 right ground. If I have four fields, and grant away two of them, over 

 which I have been accustomed to pass, the law will presume that I 

 reserve a right of way to those I retain; but what right ? the same as 

 existed before ? No : the old right is extinguished, and the new right 

 arises out of the necessity of the thing. The passage which has been 

 cited from 1 Wms. Saunders, 323, note 6, contains a complete answer to 

 the argument on the part of the delcndant : ' A way of necessity, when 

 the nature of it is considered, will be found to be nothing else than a 

 way by grant ; ' but a grant of no more than the circumstances which 



