This section is from the book "Dart's Treatise On The Law And Practice Relating To Vendors And Purchasers Of Real Estate", by J. Henry Dart . Also available from Amazon: A treatise on the law and practice relating to vendors and purchasers of real estate.
(g) Dairies v. Stephens, (1835) 7 C. & P. 570; Daniel v. North, (1809) 11 Ea. 372; but see as between tenant for life in possession and reversioner, Roberts v. James, (1903) 89 L. T. 282. The owner of a wharf or of property skirting a public road has, jure natures, a private right of access to the river or road; A.-g. v. Thames Conservators, (1862) 1 H. & M. 1; 8 Jur. N. S. 1203; Ramuz v. Southend Local Bd., (1892) 67 E. T. 169. Interference with such a private right is ground for an action for damages; Rose v. Groves, (1843) 5 Man. & G. 613; 12 L. J. C. P. 251; Lyon v. Fishmongers' Co., (1876) 1 A. C. 662; 46 E. J. Ch. 68; Fritz v. Hobson, (1880) 14 Ch. D. 542; 49 L. J. Ch. 735.
(h) Macnaghten v. Baird, (1903) 2 Ir. R. 731.
Where a right of way is granted in general terms it seems doubtful whether the grantor or grantee is the person to define it (i).
Grant of right of way in general terms. who defines way.
Where there was a grant of a right of way to a yearly tenant, his heirs and assigns, tenants and occupiers for the-time being of Blackacre and Whiteacre, it was held that a lessee claiming through the yearly tenant who had subsequently acquired the fee in Blackacre was entitled to the-right of way (k).
Effect of acquisition of enlarged interest in the dominant tenant.
A right of way, by necessity, may be claimed, as arising from an implied grant (l), but the mere fact of a tenement being land-locked will not raise a presumption of a grant over the adjoining land (m). Such a right is an exception to the general rule that a grantor, if he intends to reserve any right over the tenement granted, must reserve it expressly in the grant: the ground of the exception being, apparently, the public policy of preventing any tenement from becoming iajbsolutely useless (n). Hence, such a right of way is impliedly granted, or reserved, where a land-locked tenement is granted, or is retained, while the adjoining land is-granted (o). But nothing short of absolute necessity for the user of the way at the date of the grant is sufficient to raise the implication (p); and the right is limited by, and ceaseswith, the necessity which created it (q), and is confined to a user for such purposes as were necessary for the enjoyment of the land-locked tenement at the date of its separation from the adjoining land, and does not extend to a user for any other purposes (r).
Way of necessity.
(i) Gale, 10th ed. 346.
(k) Bytner v. Mcllroy, 1897, 1 Ch. 528; 66 L. J. Ch. 336.
(l) Proctor v. Hodgson, (1855) 10 Ex. 824, 828; 24 L. J. Ex. 195; Pinnington v. Galland, (1853) 9 Ex. 1; 22 L. J. Ex. 349.
(m) Wilkes v. Greenway, (1890) 6 T. L. R. 449; Menzies v. Breadal-bane, (1902) (No. 2) 4 F. 59, Ct. of Sess.
(n) Dulton v. Tayler, (1701) 2 Lutw. 477; Pinnington v. Galland, sup.; Wheeldon v. Burrows, (1879) 12 Ch. D. 31, 57; 48 L. J. Ch. 853.
(o) Clark v. Cogge, (1606) Cro. Jac. 170; Howton v. Frearson, (1798) 8 T. R. 50; Pinnington v. Galland, sup.; Gay ford v. Mofatt, (1868) 4 Ch. 133; Cannon v. Villars, (1878) 8 Ch. D. 415; 47 L. J. Ch. 597. Tho term "reserved" is not an accurate expression, because where the land-locked close is retained, while the adjoining land is granted, the implied right of way to the close - strictly speaking - operates by way of regrant from the grantee of the adjoining land; Corp. of London v. Biggs, (1880) 13 Ch. D. 798; 49 L. J. Ch. 297.
(p) Dodd v. Burchell, (1862) 1 H. & C. 113; 31 L. J. Ex. 364; Proctor v. Hodgson, (1855) 10 Ex. 824; 24 L. J. Ex. 195; Titchmarsh v. Boyston Water Co., (1899) 81 L. T. 673; and see Dawes v. Sear,
It is for the grantor to determine what is a convenient way to the land-locked land (s); but when once the way has been created, the owner of the servient tenement cannot divert it at his pleasure, even though the substituted way may be as convenient (t). Where on a devise a farm was severed, and there was no access to one of the severed portions, except over the other, and the will was silent as to any right of way, it was held that there was an implied grant of a right of way which actually existed at the death of the testator, who had himself occupied the farm (u).
By whom to be determined.
A private right of way is not necessarily lost by twenty years' non-user, the party entitled having had a more convenient mode of access; in order that non-user may have the effect of destroying the right, it must be the consequence of something which is adverse to the user (x); there must be a manifest intention to wholly abandon the right (y), and this depends on the fact of each particular case (z). A parol agreement for the substitution of a new way has been held no evidence of the abandonment of an old prescriptive way (a). A right of way by prescription must be restricted to the kind of user to which the prescription extends; the true principle being " that you cannot from evidence of user of a privilege, connected with the enjoyment of property in its original state, infer a right to use it, into whatsoever form, or for whatever purpose, that property may be changed " (b). Where it depends upon grant it may be lost by the user of it for purposes not authorised by the terms of the grant (c); but unless specially restricted, it will, as a general rule, be construed as alright of way for all purposes (d). Thus, where a right of way was granted to A. through a gateway, belonging to the vendor "to a wicket gate to be erected by A.," leading into part of the property conveyed to him, and A., instead of building a wicket gate, erected a cart shed, and claimed a right of carriage way to it, it was held that no restriction could be implied from the terms of the grant, and that the purchaser was entitled to a right of way for all purposes (e).
How right of private way may be lost.
(1869) 7 Eq. 427; 38 L. J. Ch. 535; and Clancy v. Byrne, (1877) 11 I. E. C. L. 355, where it was held that a way which at commencement of the tenancy had commonly been enjoyed as convenient though not necessary to the enjoyment of the dominant tenement would pass under general words.