00 EIGHT OF WAY. 



A riglifc of way of necessity can only arise ly grant, express or implied 

 (Proctor V. Hoihjson) ; and no right of way of necessity can exist, where 

 the title of the parties is by escheat. It must be shown that the party 

 to whom the hind was granted or escheated, supposing escheat were 

 equal to a grant, had no other way {il)). If one sells lauds, and after- 

 wards the vendee by reason thereof claims a way over part of the 

 l)laintilF's land, there being no other convenient way adjoining, this is 

 a lawful claim because it is a thing of necessity, otherwise he could have 

 no profit of his land {Clarke v. Cogge). And c converso : " If a man 

 hath four closes lying together, and sells three of them, reserving the 

 middle close, and hath not any laud thereto, but through one of those 

 wliich he sold, although he reserved not any way, yet he shall have it as 

 reserved unto him by the law, and there is not any extinguishment of a 

 way by having both lands " (ib.). And jw Lord Kenyon C. J. : If A 

 grants a close surrounded by his other land to B, the law would presume 

 a right of way {Large v. Piit). In Dcnne v. Light, the owner of a piece 

 of arable land lying in Ham Common field, surrounded by land belong- 

 ing to other persons, and to which arable laud there was no apparent 

 road or footway, contracted to sell the land, no mention of a right of 

 way being made in the contract. The purchaser required a right of 

 carriage or roadway, and a good title to such way to be shown, in 

 def\iult of which he refused to complete. The vendor filed a bill for 

 specific performance, which was decreed by V. C. Stuart; but on appeal 

 to the Lords Justices it was held that such a contract could not be 

 enforced against the purchaser without proof of a right of way ; and 

 unless the plaintiff elected to take an inquiry as to the execution of such 

 right the bill must be dismissed with £40 costs. Among the deposi- 

 tions was the evidence of one Davis, Avhose suggestion was, that by 

 non-user or neglect, the owners of the inclosed pieces of land in Ham 

 Common field had lost their right of passing over the neighbouring 

 land, to reach the roadway. It was observed by TimM C. J. in his 

 judgment in Walt is v. Harrison, and Durham and Sunderland Railway 

 Company v. WalJcer, in the Exchequer Chamber, "that a right of way 

 cannot in strictness be made the subject either of exception or reserva- 

 tion ; it is neither parcel of the thing granted, nor is it issuing out of 

 the thing granted : the former being essential to the exception, and the 

 latter to the reservation. A right of way reserved (using that word in 

 a somewhat popular sense) to a lessor, as in the present case, is an ease- 

 ment newly created by way of grant from the grantee or lessee, in 

 the same way as a right of sporting or fishing, which has been lately 

 very much considered in Doe dem Douglas v. Lock, and Wickham v. 

 Uawker;' 7 M. & W. 63. 



