WAY FOR FARMING PURPOSES. 93 



that which is claimed, viz., to drive fat oxen, animals dangerons in their 

 nature, and which there might be very good reason to except out of a 

 grant of a way through a closely-inhabited neighbourhood." Chamhre 

 J. differed from the Court in refusing a new trial, and thought that the 

 driving of hogs was very strong evidence of a grant of a way for cattle. 

 " Suppose," said his lordship, " any new species of cattle is introduced 

 into this country, shall the grantees of private ways have no passage for 

 them to their lands ? Is it to be contended, for instance, that no ancient 

 private way in the kingdom can be used for Spanish sheep ? Much of 

 the argument has been built on their being horned cattle. Many heads 

 of kine have no horns, may the grantee drive those ? " A claim of a 

 way for cattle and carts may be proved by showing constant use for cattle, 

 and a user for less than 20 years for carts, the claimant not having 

 possessed carts for the whole period {Dare v. Heathcote, 25 L. J. Ex. 245). 



In Cowling v. Higginson defendant justified his trespass by a plea of 

 user, under 2 & 3 Will. IV. c. 71, of a right of way for 20 years as 

 occupier of a close, for horses, Avaggons, and carriages, at their free will 

 and pleasure. The replication traversed the right, and it w^as held — 

 firstly, that under this issue the plaintiff" might show that the defendant 

 had a right of way for horses, carts, waggons, and carriages, for certain 

 purposes only, and not for all, and was not compelled to new assign, 

 and that he might show that the purpose for which the defendant had 

 used the road, and in respect of which the action was brought, was not 

 one of those to which his riglit extended ; and secondly, that evidence 

 of a user of a road with horses and carriages, iov farming purposes, does 

 not necessarily prove a right of road for all purposes (such, for instance, 

 as leading coal from a mine under defendant's land), but that the extent 

 of the right is a question for the jury, nnder all circumstances. And 

 Lord Macdonald C.B. ruled in Cohl {Cleric) v. Selhj, that where there 

 was a private road through a farm used by the owner of the land, for 

 agricultm-al and other purposes, the parson had a right to use it for the 

 purpose of carrying away his tithes, as long as it existed, although the 

 owner of the road might shut it up by planting trees, or any other such 

 means. But the farmer acting honct fide has a right to alter the line of 

 road for his own convenience, and the tithe-owner must use the road 

 thus substituted {James v. Dods). 



One tcho has a grant of an occupation vay, may declare in case against 

 the owner of the land over which the way leads for obstructing it, 

 although it be proved that the public had used the way without denial 

 for the last 12 years {Allen v. Ormond). And p)er Lord Denman C.J. 

 BiNisi Prius : "There may be an occupation way and a irablic highway 

 over the same road, for it does not on becoming a highway cease to be 



