How far prescription act has superseded common law.

Pleas of nonexisting grant.

particular estate (2 Wms. Saund. 174, n. (2); Daniel v. North, 11 East, 372; Barker v. Richardson, 4 Barn. & Ald. 579; Wood v. Veal, 5 Barn. & Ald. 454; S C. 1 Dowl. & Ryl. 20); but if the easement existed previously to the commencement of the tenancy, the fact of the premises having since been for a long period in the possession of a tenant will not defeat the presumption of a grant. (Cross v. Lewis, B. & Cr. 686.)

There is nothing in the act 2 & 3 Will. 4, c. 71, to interfere with a claim of a right of way or other easement by express grant. (Bright v. Walker, 1 Cr. M. & R. 223; ante, p. 10; Livett v. Wilson, 3 Bing. 115; Plant v. James, 2 N. & M. 517; 4 Ad. & Ell. 749, 765; Blewett v. Tregonning, 3 Ad. & Ell. 554.) Although that statute has facilitated the proof of profits à prendre and easements, it does not appear to have superseded the common law, so that a party may elect to proceed either under the statute or according to the common law. In Onley v. Gardiner, 4 Mees. & W. 496, where the defendant failed in proving a sufficient title under the statute, in consequence of an unity of possession, the court after argument, in which it was held that such unity defeated the title under the statute, allowed the defendant to amend his plea, by pleading a right of way immemorially. (See Richards v. Fry, 3 Nev. & P. 72.) In Welcome v. Upton, 5 Mees. & W. 403, Parke, B., said, the only question upon which there seems to be any doubt is this: whether, supposing a right of pasturage to be a profit to be taken out of the land, the defendant can plead in the old form, claiming the right from time immemorial; because the 1st section of stat. 2 & 3 Will. 4, c. 71, prevents such right, when enjoyed for thirty years, from being defeated, by showing that it first existed prior to that time. I think, however, that under the 1st section the proper mode is to plead the enjoyment of the right for the periods therein mentioned. (Welcome v. Upton, 5 Mees. & W. 403, 404.) The 7th section of the stat. 2 & 3 Will. 4, c. 100, empowers the parties relying on that statute to plead it, and when that is not done, the same construction will prevail as has been held with respect to the statute 2 & 3 Will. 4, c. 71, and consequently where a party pleads a modus existing from time immemorial, he may proceed just in the same way as he might have done before the former statute was passed, although his claim will be liable to be defeated by showing the payment of tithes in kind at any time within legal memory. (Earl of Stamford v. Dunbar, 13 Mees. & W. 822; ante, p. 18.)

In order to obviate the difficulty of proving an immemorial usage, it became a practice to plead a right of way by what was termed a non existing grant, (Blewett v. Tregonning, 3 Ad. & Ell. 554,) that is, a feigned grant by deed (supposed to be lost) from a former freeholder of the land, in or upon which the easement was exercisable, to a former freeholder of the tenements in respect of which it was claimed, but it was necessary that the names of the parties to, and the date of, such supposed grant should be stated (Hendy v. Stephenson, 10 East, 55); but profert of the deed is excused if it be averred that the deed has been lost by time and accident. (Read v. Brookman, 3 T. R. 151.) It is necessary to support the plea, if denied, by proof that, at the anterior period stated, the parties described as the former freeholders (the pretended grantor and grantee) of the easement really were such freeholders concurrently of the respective properties. (Blewett v. Tregonning, 3 Ad. & Ell. 554.) The defendant pleaded a grant of right of way by deed, subsequently lost. The plaintiff in his replication traversed the grant. At the trial, there being conflicting testimony as to the uninterrupted user of the way, the judge directed the jury, that if, upon this issue, they thought the defendant had exercised the right of way uninterruptedly for more than twenty years by virtue of a deed, they would find for the defendant; if they

thought there had been no way granted by deed they would find for the plaintiff:-it was held that this direction was right. (Livett v. Wilson, 3 Bing. 115; 10 Moore, 439. See Doe d. Fenwick v. Read, 5 B. & Ald. 232.) If the plaintiff merely traverse a non-existing grant of a way, he cannot on the trial give evidence to show that the supposed grantor was not, as alleged in the plea, seised in fee, even for the purpose of rebutting the presumption of the grant. (Cowlisham v. Cheslyn, 1 Cr. & Jerv. 48; Chitty, Pl. 597, 6th edit.) With reference to pleas of this kind, it was said by Littledale, J.,-" If the evidence establish an user as far back as memory goes, and there does not appear to have been any time at which it did not exist, that is proof of prescription; and, supposing the evidence sufficiently strong, a prescription is what the jury would find, and they have no right to find a grant, unless more be shown. Supposing the evidence in such a case to leave it doubtful whether the right existed sixty or seventy years ago, it may be protected under a plea of non-existing grant; but if the evidence of user goes far enough to prove a prescription, such evidence cannot be relied on to prove a grant." (Blewett v. Tregonning, 3 Ad. & El. 583, 584.)

poreal rights

A right of way, or a right of passage for water (where it does not Necessity of create an interest in land) is an incorporeal right, and stands upon the a deed to same footing with other incorporeal rights, such as rights of common, pass incorrents, advowsons, &c. It lies not in livery, but in grant, and a free- and easehold interest cannot be created or passed otherwise than by deed. ments. (Hewlins v. Shippam, 5 B & C. 221.) A term for years in an incorporeal hereditament, or in a thing lying in grant, cannot be created without deed. (14 Vin. Abr. tit. Grant (G a); 2 Roll. Abr. 63, tit. Grant (G); Co. Litt. 85, a; 5 B. & C. 882.) Although the older authorities speak of incorporeal inheritances, yet there is no doubt but that the principle does not depend on the quantity of interest granted, but on the nature of the subject matter; a right of common or a right of way can no more be granted for life or for years without a deed, than in fee simple. (Per Alderson, B., in Wood v. Leadbitter, 13 Mees. & W. 842, 843.) Where a subject is owner of a several fishery in a navigable river, where the tide flows and reflows, granted to him (as must be presumed) before Magna Charta, by the description of " separalem piscariam," it being an incorporeal hereditament, a term for years cannot be created in it without deed. (Duke of Somerset v. Fogwell, 5 B. & C. 875.) Where there was an agreement in writing, but not under seal, to let a messuage, together with the full and free and exclusive licence and leave to hunt, hawk, course, shoot, and sport over a manor, and the tenant entered and was possessed during the term, it was held, in an action of assumpsit on the agreement for the rent, on demurrer to a plea, that, not being by deed, the agreement was void, because an incorporeal hereditament was agreed to be let, and that the plaintiff was not entitled to recover in respect of the actual enjoyment of the premises let by the defendant, of which he had taken possession. (Bird v. Higginson, 2 Ad. & Ell. 696; 4 Nev. & M. 505; 1 Har. & Woll. 61; 6 Ad. & Ell. 824.) In the case of a written agreement not under seal, whereby the plaintiff agreed to let land to the defendant, with a right of sporting, the defendant to make satisfaction to the plaintiff's tenants for the damage done by game on their farms, although it was held that the right of sporting did not pass by the agreement, yet that the agreement to make compensation was valid and good ground for an action, the defendant having had the full benefit of such agreement. An agreement to execute a conveyance is valid as an agreement, though it does not operate to pass an estate; and its validity is not affected by the question whether the subject of the deed be corporeal or incorporeal. (Thomas v. Fredericks, 10 Q. B. 775.) A licence to a stranger to use a common,

Nature of a licence and

its legal incidents.

in effect amounting to a grant of the common of pasture, can only be by deed. (Hoskins v. Robins, 2 Wms. Saund. 328, and n. 12; Shep. T. 330.) Where the plaintiff in replevin answered an avowry for damage feasant by a plea of licence from the commoner, who had right for twenty beasts, it was objected, that if the commoner could license, he could not do so without deed, and of that opinion was the whole court. (Monk v. Butler, Cro. Jac. 574.) A licence or liberty cannot be created and annexed to an estate of inheritance or freehold without deed. (Shep. Touch. 231.) Whatever may be the effect of a parol licence by the owner of land to fence off part of a common and to build a house thereon, as against such owner it is clear that a grant of a freehold interest running with the inheritance cannot be binding on a stranger to the grantor, unless the grant was by deed. (Perry v. Fitzhowe, 8 Q. B. 757. See Ramsey v. Rawson, 1 Vent. 18-25.) It seems questionable whether a custom to demise by parol a right of common can be supported at law. (Lathbury v. Arnold, 1 Bing. 219; 8 Moore, 72. See Rex v. Lane, 1 D. & R. 78; 5 B. & Ald. 488.)

In Thomas v. Sorrell (Vaugh. 351), Vaughan, J., says :-" A dispensation or licence properly passeth no interest, nor alters or transfers property in anything, but only makes an action lawful, which without it would have been unlawful. As a licence to hunt in a man's park, to come into his house, are only actions which, without licence, had been unlawful. But a licence to hunt in a man's park and carry away the deer killed to his own use, to cut down a tree in a man's ground, and to carry it away the next day after to his own use, are licences as to the acts of hunting and cutting down the tree, but as to the carrying away of the deer killed and tree cut down, they are grants." A mere licence is revocable, but that which is called a licence is often something more than a licence; it often comprises or is connected with a grant, and then the party who has given it cannot in general revoke it, so as to defeat his grant, to which it was incident. It may further be observed, that a licence under seal (provided it be a mere licence) is as revocable as a licence by parol; and on the other hand a licence by parol, coupled with a grant, is as irrevocable as a licence by deed, provided only that the grant is of a nature capable of being made by parol. But where there is a licence by parol, coupled with a parol grant, or pretended grant, of something which is incapable of being granted otherwise than by deed, there the licence is a mere licence; it is not an incident to a valid grant, and it is therefore revocable. Thus a licence by A. to hunt in his park, whether given by deed or by parol, is revocable; it merely renders the act of hunting lawful, which, without the licence, would have been unlawful. If the licence be, as put by Chief Justice Vaughan, a licence not only to hunt, but also to take away the deer when killed to his own use, this is in truth a grant of the deer, with a licence annexed to come on the land: and supposing the grant of the deer to be good, then the licence would be irrevocable by the party who had given it; he would be estopped from defeating his own grant, or act in the nature of a grant. But suppose the case of a parol licence to come on my lands, and there to make a watercourse, to flow on the land of the licensee. In such a case there is no valid grant of the water-course, and the licence remains a mere licence, and therefore capable of being revoked. On the other hand, if such a licence were granted by deed, then the question would be on the construction of the deed, whether it amounted to a grant of the watercourse; and if it did, then the licence would be irrevocable. (Per Alderson, B., Wood v. Leadbitter, 13 Mees. & W. 844, 845.)

Where it appeared by entries in the court roll of a manor that the lord had granted a licence to build a cottage on the waste, subject to

the payment of an annual rent, and the licence had been executed, and the cottage inhabited, Lord Ellenborough said-"A licence is not a grant, but may be recalled immediately, and so might this licence the day after it was granted." (Rex v. Inh. of Hornden-on-the-Hill, 4 Maule & S. 565. See Rex v. Inh. of Geddington, 2 B. & C. 129; Rex v. Ink. of Hagworthingham, 1 B. & C. 634; Rex v. Warblington, 1 T. R. 241; Rer v. Inh. of Standon, 2 Maule & S. 461.)

The right to be buried in a particular vault was held to be an easement capable of being created by deed only; and therefore a parol agreement not under seal was held to confer no right, though the plaintiff had paid a valuable consideration on the faith of its validity. (Bryan v. Whistler, 8 B. & C. 298; 2 M. & R. 318. See Adams v. Andrews, 15 Q. B. 284.)

An agreement to let a party have a trench for water, though given for a valuable consideration, if there be no conveyance, is a parol licence, revocable at the will of the grantor. (Fentiman v. Smith, 4 East, 107.) The right to a drain running through the adjoining land cannot be conferred by a parol licence, but such interest can only be created by deed. In an action on the case for obstructing a drain, the plaintiff claimed right and title to the drain by virtue of a licence granted to his landlords, their heirs and assigns, to make the drain, and have the foul water pass from their scullery through the drain across the defendant's yard into another yard appurtenant to the premises in the plaintiff's occupation: it was held, that the interest as declared upon by the plaintiff being in its nature freehold, and the licence to support it being merely by parol and not by deed, the action was not maintainable. (Hewlins v. Shippam, 5 B. & C. 221; 7 D. & R. 783.) So where the plaintiff sued for an obstruction of a certain drain which had been originally constructed at the plaintiff's expense on the defendant's land by his consent verbally given, -after it had been enjoyed some time, the defendant obstructed the channel, so that the water was prevented running as before; and it was contended on the part of the plaintiff that the licence so given having been acted on, could not be revoked by the defendant; but the court held that the plaintiff was clearly not entitled to recover. With regard to the question of licence, the court said, "the case of Hewlins v. Shippam is decisive to show that an easement like the present cannot be conferred except by deed, nor has the plaintiff acquired any other title to the water." The mere entry into the close of another, and cutting a drain there, cannot confer a right. (Cocker v. Cowper, 1 Cr., M. & R. 418.)

It seems to require a deed to create the right to have light and air come unobstructed from the land of one owner of land to the newlyopened window of an adjoining owner of a house. (Bridges v. Blanchard, 1 Ad. & Ell. 536; 3 Nev. & M. 691; Blanchard v. Bridges, 4 Ad. & Ell. 195. See post, note on Lights.)

Where a personal licence of pleasure is granted, it extends only to the individual, and it cannot be exercised with or by servants, but if there is a licence of profit and not of pleasure it may. (Duchess of Norfolk v. Wirman, Year Book, 12 Hen. 7, 25, and 13 Hen. 7, 13, pl. 2, cited 7 Mees. & W. 77.) A parol licence from A. to B. to enjoy an easement over A.'s land, is countermandable at any time whilst it remains executory; and if A. conveys the land to another, the licence is determined at once, without notice to B. of the transfer, and B. is liable in trespass if he afterwards enters upon the land. A mere parol licence to enjoy an easement on the land of another does not bind the grantor, after he has transferred his interest and possession in the land to a third person. In order to make the grantee a wrong-doer in such a case he is not entitled to notice from the purchaser of the change of ownership in the soil, as that is a fact which

he is obliged to know at his peril. (Wallis v. Harrison, 4 Mees. & W. 538.)

There is a clear distinction between a licence to do something which in its own nature seems intended to be permanent and continuing, and by which expense is incurred, and a licence to do acts which consist in repetition, as to walk in a park, to use a carriageway, to fish in the waters of another, or the like; in the latter case, if the licence is countermanded, the party is but in the same situation as he was before it was granted; but in the former case the party to whom the licence was granted may sustain a heavy loss by its being countermanded, and the party granting the licence should expressly reserve the power of revoking the licence after it had been carried into effect. (Liggins v. Inge, 7 Bing. 694.) A plea of leave and licence to erect and maintain a wall upon a given spot is not supported by proof of a licence to erect only. (Alexander v. Bonnin, 6 Scott, 611; 4 Bing. N. C. 799; 1 Arn. 337.)

Notwithstanding these authorities, it has been contended, that a beneficial privilege in land may be granted without deed, and, notwithstanding the Statute of Frauds, without writing. (7 Taunt. 384.) In Webb v. Paternoster, Palm. 71, it is laid down, that the grant of a licence to stack hay upon land does not amount to a lease of the land. This case arose before the Statute of Frauds. In Wood v. Lake, Say. 8, a parol agreement was held valid, which was for liberty to stack coals on a part of a close for seven years, and that during this term the person to whom it was granted should have the sole use of that part of the close upon which he was to have the liberty of stacking coals. (See Sugd. V. & P. 96, 97, 11th ed.) In Taylor v. Waters, 7 Taunt. 384; 2 Marsh. 551, an action was brought against the door-keeper of the Opera House, for denying admission to the plaintiff, who was the holder of a silver ticket, purporting to give him an entrance into that theatre for twenty-one years. It was objected that the right claimed was an interest in land, and being for more than three years could not pass without a writing signed by the party, or his agent authorized in writing. But it was held, that it was not an interest in land, but a licence irrevocable to permit the plaintiff to enjoy certain privileges therein, and was not required to be in writing by the Statute of Frauds, though it extended beyond three years, and consequently might be granted without deed. In support of this opinion the cases of Webb v. Paternoster, Winter v. Brockwell, 8 East, 308, and Wood v. Lake, were relied on. The authority of the case of Taylor v. Waters has been denied.

A right to come and remain for a certain time on the land of another can be granted only by deed; and a parol licence to do so, though money be paid for it, is revocable at any time, and without paying back the money. To an action of trespass for assault and false imprisonment, the defendant pleaded that, at the time of the supposed trespass, the plaintiff was in a close of Lord E., and that the plaintiff, as the servant of Lord E., and by his command, molliter manus imposuit on the plaintiff to remove him from the said close, which was the trespass complained of. The plaintiff replied, that he was in the close by the leave and licence of Lord E.; which was traversed by the rejoinder. The evidence was, that Lord E. was steward of the Doncaster races; that tickets of admission to the grand stand were issued with his sanction, and sold for a guinea each, entitling the holders to come into the stand and the inclosure round it during the races; that the plaintiff bought one of the tickets, and was in the inclosure during the races; that the defendant, by the order of Lord E., desired him to leave it, and, on his refusing to do so, the defendant, after a reasonable time had elapsed for his quitting it, put him out, using no unnecessary violence, but not returning the guinea; it was