WAY OF NECESSITY. 89 



raise the implication of necessity, require should i^ass. If it were otlier- 

 wise, this inconvenience might follow, that a party might retain a way 

 over 1000 yards of another's land, when by a subsequent purchase he 

 might reach his destination by passing over 100 yards of his own. A 

 grant, therefore, arising out of the implication of necessity cannot be 

 carried fartlier than the necessity of the case requires, and this principle 

 consists with all the cases which have been decided. It has been argued 

 tliat the new grant operates as a prevention of the extinguishment of 

 the old right of way ; but there is not a single case which bears out that 

 proposition, or which does not imply the contrary. Serjeant Williams 

 says, ' Where a man having a close surrounded with his own lands, grants 

 the close to another, tlie grantee shall have a way to the close over the 

 grantor's land, as incident to the grant : for without it he cannot derive 

 any benefit from the grant. So it is where he grants the land and 

 reserves the close to himself.' What way is it the grantee shall have ? 

 not the old, but a new way limited by the necessity " (2 Bing. 76). 



Hence a way of necessity is limited l)ij the necessif/j which created it, 

 and it ceases if at any subsequent period the party entitled to it can 

 approach the place to which it led, by passing over his own land. And 

 where A, the owner of a close within a close of B's, had a prescriptive 

 right of way through B's close, to his own, and 24 years ago B stopped 

 up the old way and made a new one, which A had used ever since, but 

 it also was stopped up by B, it was held in an action by B against A 

 for going over the new way, that A could not justify using it as a way 

 of necessity, but that he should have either gone the old way, and 

 thrown down the inclosure, or brought an action against B for stopping 

 up the old way. The new way was only a way of sufferance during the 

 pleasure of both parties; and B by stopping it up determined his 

 pleasure {Reignolds v. Edwards). Parlce B. thus observed upon Holmes 

 V. Goring, in Proctor v. Hodgson : " The extent of the authority of 

 Holmes v. Goring is, that admitting a grant in general terms, it may be 

 construed to be a grant of a right of way as from time to time may be 

 necessary. I should have thought it means as much a grant for ever, 

 as if expressly inserted in the deed, and it struck me at the time that 

 the Court was wrong." AJdcrson B. also considered that Holmes v. 

 Goring was open to review in a court of error. And per Parke B. : 

 " All ways of necessity arise from a presumed grant, all the precedents 

 allege a grant ; but the lords of the manors are not grantees. Even 

 assuming that escheat is equivalent to a grant, the only ground on which 

 the lord of the manor can claim a way of necessity, is that he has no 

 other way" (10 Exch. 824; 24 L. J. Ex. 195; see also Pearson v. 

 S})encer, 1 B. & S. 571, 584). 



