But when a right of way is appendant or annexed to an estate, it may pass by assignment when the land is sold to which it was appurtenant. Thus, in the case stated in Staples v. Heydon," if one be seised of lot A. and lot B., and he used a way from lot A. over lot B., to mill, or to a river, and he sells lot A. with all ways and easements, the grantee shall have the same privilege of passing over lot B. that the grantor had.

b

A right of way may arise from necessity in several respects. Thus if a man sells land to another which is wholly surrounded by his own land, in this case the purchaser is entitled to a right of way over the other's ground to arrive at his own land. The way is a necessary incident to the grant, and without which the grant would be useless. This principle was carried so far, in a modern case, as to be applied to a trustee selling land he held in trust, and to which there was no access but over the trustee's own land. The right of way in that case passed of necessity as incidental to the grant; for though he conveyed in the character of trustee, it could not be intended that he meant to make a void grant, and every deed must be taken most strongly against the grantor. Lord Kenyon said it was impossible to distinguish that from the ordinary case where a man granted a close surrounded by his own land.

The general rule is, that when the use of *a *421

• 6 Mod. Rep. 3. 2 Lord Raym. 922. Newmarch v. Brandling, 3 Swanston, 99. S. C.

b Finch's Law, 63. Clarke v. Cogge, Cro. Jac. 170. Oldfield's case, Noy's Rep. 123. Turnbull v. Rivers, 3 M'Cord's Rep. 131. Holmes v. Seely, 19 Wendell, 507. Nichols v. Luce, 24 Pick. R. 104. All the au thorities support the doctrine, says Mr. Woolrych, in his full and accurate Treatise on the Law of Ways, 21, that in the case of a grant of land with. out a reservation of any way, a way of necessity will pass as incident to the grant.

⚫ Howton v. Frearson, 8 Term Rep. 50.

by which If one man

thing is granted, every thing is granted the grantee may have and enjoy such use.a gives another a license to lay pipes of lead in his land to convey water to a cistern, he may enter on the land and dig therein to mend the pipes. So, if a person has a shop on another's soil by permission, he has a right of ingress and egress as to the soil between the highway and the shop. The right is necessary to the enjoyment of the tenement.c The maxim is, that quando aliquis

Co. Litt. 56.

b Twysden, J., in Pomfret v. Ricroft, 1 Saund. Rep. 321.

Doty v. Gorham, 5 Pickering, 487. In Chambers v. Furry, 1 Yeates Rep. 167, the Supreme Court of Pennsylvania held, that the owner of a ferry over a navigable stream had no right to land, or receive freight on the adjoining banks, even though the landing place was a public highway, without the owner's consent. The dedication of ground for the purpose of a public road, was said to give no right to use it for the other purpose. This doctrine was afterwards referred to, recognised and adopted by the same court, in Cooper v. Smith, 9 Serg. & Rawle, 26. The same principle is to be found in Saville, 11. pl. 29, where it is said, that in every ferry the land on both sides the water ought to belong to the owner of the ferry, for otherwise he could not land on the other side. But this strict and severe rule is somewhat relaxed in England; and in Peter v. Kendal, 6 Barnw. & Cress. 703, the K. B. denied the justness of the conclusion in Saville, and held, that the owner of a ferry need not have the property in the soil on either side. It was sufficient that the landing place was a public highway. It was a right incident to the ferry, to use such a landing place for the purposes of a ferry. This is the most reasonable conclusion upon the right to the use of a public highway to which a ferry is connected.

In Allen v. Farnsworth, 5 Yerger's Tenn. Rep. 189, it was held, that the state, by virtue of the right of eminent domain, might establish ferries wherever the legislature should deem them necessary for the public ease. ment, without any regard to the ownership of the soil, on making just cornpensation. But in point of fact all the statutes authorized the grant of the franchise by way of preference to the owners of the land on each bank of the river where the ferry was established. So, by statute in New-York, the owner of the land through which the highway adjoining to the ferry runs, is first entitled to the license for keeping a ferry. N. Y. R. S. 3d edit. vol. i. 642. By the Tennessee act of 1807, c. 25, the owner of the soil on each side of a river is, in exclusion of all others, entitled to the ferry. Without statute provision he is not, as a matter of right, and because he is owner, entitled to keep it. Nashville Bridge Company v. Shelby, 10 Yerger's Rep.

aliquid concedit, concedere videtur, et id, sine quo res uti non potest.

If a man hath several distinct parcels of enclosed land, and he sells all but one surrounded by the others, and to which he has no way or passage except over one of the lots he has sold, it has been made a question, whether he be entitled to a right of way against his own deed, when he has been so improvident as to reserve none. It is said, in Clarke *v. Cogge, that *422

280. The case of Pipkin v. Wynns, 2 Dev. N. C. Rep. 403, recognises the same general right of the sovereign, but holds that the owner of the adjacent land is entitled to the preference, and if he refuses to exercise the franchise, it may be granted to another, on making compensation to the owner of the fee for the use of the soil, and this must be done, although there be a public highway leading to the river on both sides. This decision, like those in Pennsylvania, construes more strictly than the late English case, the easement of a public highway leading to the river. The law in Kentucky in respect to ferries is, that the owner of land on the river Ohio is alone entitled to be the grantee of a ferry across it. It is a franchise incident to the land, and is valuable property. But no ferry is to be granted within a mile and an half of one previously established, unless, in the opinion of the granting power, the public interest shall require it, and the abuse of that discretion is subject to judicial control. Carter v. Kalfus, 6 Dana's Rep. 43. Though a ferry franchise be a statutory incident to land, yet the beneficial interest may be transferred to another, and entitle him to the profits. Kennedy v. Covington, 8 Dana, 59. The statute provision in some of the western states is, that no person shall keep a ferry so as to demand and receive pay, without a license, to be granted and regulated by the county courts. Revised Statutes of Missouri, 1835.

It was declared, in Bowman & Burnley v. Watken, 2 M'Lean's Rep. 376, that the right to a ferry attaches to the riparian proprietor, and it cannot be taken from him without compensation. The riparian owner on a navigable river may convey the soil, excepting the right of ferriage. This right of ferriage becomes an incorporeal hereditament, and may be granted the same as a rent, and the grantee will have a right to use the soil for ferryways, and for no other purpose. By the laws of Indiana this ferry-right is assignable. It is real estate, and descends to the heirs, and is subject to dower and the other incidents of real property; and in Illinois ferries are declared to be publici juris, and can be granted by the sovereign power, and riparian possessors are not thereby entitled to the ferry franchise. Mills v. County Comm 2 Scammon's Rep. 53.

the law reserves to him a right of way in such case from necessity. But the position in that case seems to have been contrary to the doctrine in the prior case of Dell v. Babthorp," where it was held, that if a man had a close, and a wood adjoining it, and time out of mind a way had been used over the close to the wood, and he then sells the close to one man, and the wood to another, the grantee of the wood has no right of way over the close, for the grantor had excluded himself, as he had sold the close without reserving such a right; and as he had lost his right, he could not communicate any to the grantee of the wood. But in this last case, it did not appear to be necessary to go over the close in question to the wood, and there might have been another way to it; and the weight of authority is, that the grantor has a right of way to his remaining land, in case of necessity, when he cannot otherwise approach his land. The law presumes a right of way reserved, or rather gives a new way, from the necessity of the case, and the new right of way ceases with the necessity for it.b This principle of law has been for a long time recognised. Thus, in Packer v. Welsted, decided in the Upper Bench, under the protectorate of Cromwell, A. had three parcels of land, and there was a private way out of the first parcel to the second, and out of the two first parcels to the third. B. purchased all these parcels, and then sold the two first to C. There was no way to the land not sold, but through the other two parcels; and the court adjudged, that the way continued from necessity, and that the party was not liable

Cro. Eliz. 300.

Holmes v. Goring & Elliott, 2 Bing. Rep. 76. 9 Moore, 166. S. C. Collins v. Prentice, 15 Conn. R. 39.

• 2 Sid Rep. 39.

in trespass for using it. So, also, in Dutton v. Tayler, A. owned two closes, B. and C., and there was no passage to close B. but through close C., *and *423 he sold close C., and it was held, upon plea and demurrer, that the right of way still existed from necessity, and that it was not for the public good that the close B. should be left uncultivated. This last case is supposed to be binding; and Lord Kenyon said, in Howton v. Frearson, that he was prepared to submit to the express authority of it, though his reason was not convinced, and he thought there were great difficulties in the question.

But the doctrine of the case of Dutton v. Tayler received confirmation in Buckby v. Coles, where it was decided, that if a person owned close A. and a passage of necessity to it over close B., and he purchased close B., and thereby united in himself the title to both closes, yet if he afterwards sold close B. to one person, without any reservation, and then close A. to another person, the purchaser of close A. has a right of way over close B. This case seems to put an end to all doubts as to the existence of a right of way from necessity, even over the land which the claimant of the way had previously sold.

But

If a right of way be from close A. to close B., and both closes be united in the same person, the right of way, as well as all other subordinate rights and easements, is extinguished by the unity of possession.d there is a distinction between a right of way existing from necessity, and one merely by way of easement or convenience. The former is not extinguished by the

2 Lutw. Rep. 1487. b 8 Term Rep. 50.

5 Taunt. Rep. 311.

Whalley v. Thompson, 1 Bos. & Pull. 371.