in the occupation of F. N. and the defendant. Previous to the time of this conveyance a private road was used for carriages, cattle, &c., from the turnpike road to the defendant's coach-house and stable, and field, from which road there was a gate into the field. The defendant afterwards pulled down his coach-house and stable, and built a wall across the private road near their former site (inclosing a portion of the road which had been conveyed to him in fee), and he also opened a gate at the further corner of his field into the private carriage road, which he used instead of the former gate, and drove cattle and carriages along the road into the field and back again. It was held, that the defendant was liable in trespass, inasmuch as the grant of all ways to the field belonging or usually enjoyed therewith extended only to the user of the way as it existed at the time of the grant through the then existing gate, and the express grant was of a right of way to the dwelling-house, coach-house and stable only. (Henning v. Burnet, 8 Exch. 187.)

A company and the defendant each purchased lands of W., which were separated by a road over which a right of way was reserved to each (the freehold remaining in W.) with a joint obligation to repair. In the conveyance to the company the land purchased by them was described as containing thirty-one acres or thereabouts, "which, with the abuttals and boundaries thereof, were more particularly described in the map or plan thereof affixed to and forming part of the conveyance, together with full and free liberty, licence and authority for the company, their successors and assigns and tenants, and all persons coming to or going from the same lands and hereditaments, or any part thereof, to use and enjoy, with horses, carts and carriages, or on foot, jointly or in common with others the person or persons for the time being entitled to the like liberties, licences and authorities respectively, the roads or ways leading to and from the same lands and hereditaments as the same roads or ways are described in the said map or plan." At the time of conveyance the land so purchased by the company was separated from the road by a hedge, in which were two gates, one at the upper, the other at the lower end of the road. The company removed the hedge and built a wall with two gates thereon, both at the same distance from the spot where the old gates had stood. The defendant obstructed the access to these new gates by excavating the road to the depth of between four and five feet. It was held, that the defendant was liable to an action at the suit of the company, for that whether the company was justified in altering the position of the gates or not, the company was still entitled to the uninterrupted use of the way as granted to them. (South Metropolitan Cemetery Company v. Eden, 16 C. B. 42.) But it seems that the grant was a general grant of a right of way along the road and every part thereof, and was not limited to a way through the old gates. (Ib.)

The acquiring a right of way by the public does not destroy a previously-existing right of way over the same line; but the private way must be previously existing. A private right of way cannot be proved by evidence of a public right. A right of way had been granted in 1675; there was evidence that for ten years before the commencement of the action for obstructing the right of way, that part of the way had become public. It was held unnecessary to state in the declaration that such part had become public. (Duncan v. Louch, 6 Q. B. 904.)

inclosure

By the 10th section of the General Inclosure Act, 41 Geo. 3, c. 109, Stopping the commissioners are directed to set out private roads; and by the ways under 11th section of that act it is declared that all roads, ways and paths, acts. over, through and upon such lands and grounds, which shall not be set out, shall be extinguished. But where a private inclosure act does not vary the terms of the above act, if the commissioners in their

award do not notice a road running over the inclosed lands, it is, by the operation of that act, extinguished, and the proprietor of the lands over which it runs may stop it up. Thus it was held, that a plaintiff, to whom an allotment was made by a commissioner under an inclosure act, of land over which the defendants had a private right of way before the passing of the act, but which was noticed or described amongst those set out by the commissioner, might justify the stopping up of such way, although the award contained no declaration that the road in question was stopped up. (White v. Reeves, 2 B. Moore, 23.) As to the construction of local inclosure acts giving powers to stop up roads, see Logan v. Burton, 5 B. & Cr. 513; S. C., 3 Dowl. & Ryl. 299; Harber v. Rand, 9 Price, 58; Rex v. Inhabitants of Hatfield, 4 Ad. & Ell. 156. Where commissioners had no power under the particular or general inclosure act to stop up a way over old inclosures, but did not by their award set out any new way over the waste lands inclosed, it was held, that an old footway passing from a public highway over wastes to old inclosures, into another public highway, still existed as it formerly did over the waste lands, and over the old inclosures into the public highway. (Thackrah v. Seymour, 1 Cr. & Mees. 18.) It is an elementary rule in pleading, that when a state of facts is relied on, it is enough to allege it simply without setting out the subordinate facts which are the means of producing it, or the evidence sustaining the allegation. Thus, in a case very familiar, if a trespass be justified by a plea of highway, the pleader never states how the locus in quo became a highway; and if the plaintiff's case is that a locus in quo, by an order of justices, award of inclosure commissioners, local act of parliament, or any other lawful means, had ceased to be such at the time alleged in the declaration, he simply puts in issue the fact of its being a highway at that time, without alleging the particular mode by which he intends to show, in proof, that it had before then ceased to be such. (Williams v. Wilcox, 8 Ad. & Ell. 331.) In all cases for disturbance of a way, the obstruction ought to be charged in the pleadings in the thing itself to which the party has a right, and if charged generally, the declaration would be bad. Much more then, when the mode of the obstruction is stated, and that not in the thing where the right is claimed. (Tebbutt v. Selby, 1 Nev. & P. 717; 6 Ad. & Ell. 786.) Trespass quare clausum fregit, with abuttals. Plea, a right of way. New assignment, trespass extra viam; plea, that before, &c., the plaintiff had wrongfully stopped up the way in the former plea mentioned, wherefore the defendant did necessarily go a little out of the said highway, quæ est eadem. Replication, de injuria. At the trial it appeared that there was a public footway over the plaintiff's close, which the plaintiff admitted, and another footway which the defendant claimed as public, but which the plaintiff had stopped up, and it was proposed to try the question as to the existence of a public right over this second way. The learned judge being of opinion that no issue was raised as to the second way, directed a verdict for the plaintiff: it was held, that the direction was right, for the precise locality being material to the defence, the defendant was bound to show it in his pleadings. (Ellison v. Iles, 3 Per. & D. 391; 11 Ad. & Ell. 665.) To a declaration in trespass quare clausum fregit, the defendant pleaded that he and the former occupiers of the house and land had for twenty years used and enjoyed as of right a certain way on foot and with horses, &c., from and out of a common highway towards, into, through and over the plaintiff's close to the defendant's house and lands and back, at all times of the year at their free will and pleasure. The replication averred that the defendant, &c., used and enjoyed the right of way mentioned in the plea, but that they did so under the plaintiff's leave and licence. At the trial it appeared that

the defendant and the former occupiers of his house and land had an admitted right of way from thence over the locus in quo to the highway, and across the highway to a close called Ruddock's, and that for the last twenty years they had had a licence from the plaintiff to use, whenever they pleased, a way from the defendant's house and lands over the locus in quo to the highway and back, when they had any intention of going to Ruddock's: it was held, that the replication was not supported by this evidence, and that the plaintiff was bound to show a licence co-extensive with the right claimed in the plea, and admitted by the replication. (Colchester v. Roberts, 4 Mees. & W. 76.) By an inclosure act, it was enacted, that all ways over a certain field, called West Field, allotted to B., should be extinguished from the time of the making and completion of a new road, as therein directed, with a proviso that nothing in the act should extend, or be construed to extend, to deprive A., his heirs or assigns, or his or their agents, &c., of the right of ingress, egress, and regress, to and from a watercourse, for the purpose of rebuilding, repairing, opening or shutting the sluices thereon, or to cleanse the same: it was held, that this reserved to A. his right of way unimpaired over West Field, for the purposes in the act mentioned: it was also held, that a tenant of A., who occupied meadow land irrigated by means of the sluices, was a competent witness in an action for an obstruction of this right of way. (Adeane v. Mortlock, 7 Scott, 189; 5 Bing. N. C. 236; 3 Jur. 105.)

An ancient public bridle way existed for the greater part undefined over common inclosed land, the remaining part being through old inclosures. By an award of inclosure commissioners, under a local act, the road was altered in some parts, and defined throughout within narrow limits, was set out as "one public and bridle road and private carriage road for the use" of certain private individuals named, to be kept in repair by them. No order of justices for stopping up or diverting the old road or certificate of the sufficiency of the new road had been obtained: it was held, that the award did not operate under the General Inclosure Act, 41 Geo. 3, c. 109, as a diversion or stopping up of the public bridle road and setting out of a new one, but that the public had the same right of passage as before, and therefore that the parish in which the road lay remained liable to do such repairs as were requisite to maintain it a public bridle road. (Reg. v. Cricklade, 19 Law J., M. C., 169, Q. B.)

An action on the case lies for the disturbance of a right of way, Action for created either by reservation, grant or prescription; (Com. Dig. Ac- disturbance of ways. tion on the Case for Disturbance, (A. 2); 1 Roll. Abr. 109;) and such disturbances may be either by absolutely stopping up the way, or by ploughing up the land through which the way passes (2 Roll. Abr. 140), or by damaging the way with carriages, so that it is of no use. (Laughton v. Ward, 1 Lutw. 111.) But such action will not lie for the disturbance of a highway, unless the plaintiff has sustained some special damage. (Co. Litt. 56 a; 5 Rep. 73 a; 2 Bing. 263, 266.) The Railway Clauses Consolidation Act, 1845, 8 & 9 Vict. c. 20, s. 53, takes away the common law right of action for an interference under the powers of a railway company with a private right of way, except when special damage has been sustained. (Watkins v. Great Northern Railway Co., 16 Q. B. 961; 20 Law J., Q. B., 391.)

In an action of trespass for breaking the plaintiff's close, which was set out by abuttals, and pulling down certain posts and bars then standing thereon, the defendants pleaded that there was a public footway over the said close, and that the defendants, because the posts and bars obstructed the footway, pulled them down. The replication traversed the public footway: it was held, that, on these

pleadings the defendants were entitled to a verdict on proving a right of footway over any part of the close, and were not bound to prove a right of way over the spot where the posts and bars stood. (Webber v. Sparkes, 10 Mees. & W. 485; 12 Law J. (N. S.) 41. See Wood v. Wedgewood, 1 C. B. 273.)

In an action of trespass for breaking and entering the plaintiff's close, called, &c., and cutting down and prostrating 100 yards of his rails there standing, the defendants pleaded a public right of way over the close, and that they were using the said way, and because the said rails were wrongfully erected upon, and standing in and obstructing the said way, they prostrated the same, &c., which are the same supposed trespasses, &c. The replication was, that the said rails were not standing in the said way, in manner, &c. Issue was taken thereon. The defendants had cut down some rails of the plaintiff standing on a public highway in the close described, and other rails belonging to him, which were in the same close and not on the highway. It was held, that the plaintiff could not recover; for, by taking issue on a plea which restricted the matter of dispute to the highway, he had excluded himself from proof as to rails in any other part of the close; and, to recover for these, he should have new assigned. (Bracegirdle v. Peacock, 8 Q. B. 174.)

A public thoroughfare was stopped, whereby the plaintiff, a bookseller, whose shop was in the thoroughfare, suffered a loss of custom; it was held sufficient special damage to entitle him to his action on the case. (Wilks v. Hungerford Market Company, 2 Scott, 446; 2 Bing. N. C. 281; 1 Hodges, 281.) In Iveson v. Moore, 1 Lord Raym. 186, it was held, that the preventing of colliers from coming to a colliery by obstructing a public highway, by which the benefit of the colliery was lost, was such a damage as would enable a man to maintain an action for the nuisance. (See Rose v. Miles, 4 Maule & S. 101; Rose v. Groves, 5 Mann. & G. 620, post, p. 88.) In a late case it was held, that a reversioner cannot maintain an action on the case against a stranger for merely entering upon his land held by a tenant on lease, though the entry be made in exercise of an alleged right of way, such an act during the tenancy not being necessarily injurious to the reversioner; for in order to entitle a reversioner to maintain an action on the case against a stranger, he must allege in his count, and prove at the trial, an actual injury to his reversionary interest. (Baxter v. Taylor, 4 B. & Ad. 72; S. C., 1 Nev. & M. 11. See Jackson v. Pesked, 1 Maule & S. 234; Alston v. Scales, 2 Moore & Scott, 5.) A reversioner cannot sue for the obstruction of a right of way, unless the obstruction be such as either permanently injures the estate, or operates in denial of the right. (Hopwood v. Scholfield, 2 M. & Rob. 34. See Young v. Spencer, 10 B. & Cr. 145.) A declaration in case by a reversioner alleged that the plaintiff was entitled to a right of way for his tenants over a certain close of the defendant, and charged that the defendant wrongfully locked, chained, shut and fastened a certain gate, standing in and across the way, and wrongfully kept the same so locked, &c., and thereby obstructed the way, and that by means of the premises the plaintiff was injured in his reversionary estate: it was held, on motion in arrest of judgment, that the declaration was sufficient, inasmuch as such an obstruction might occasion injury to the reversion, and it must be assumed after verdict that evidence to that effect had been given. (Kidgill v. Moore, 9 C. B. 364.) If a road, when made, was such as was authorized by a reservation in a lease, the intention to use it for a purpose not authorized is no ground for an action by the reversioner, though, if the intent were carried into effect, the tenant in possession may be entitled to bring an action of trespass. (Durham and

Sunderland Railway Company v. Walker, 2 Q. B. 940.) In the Schedule Forms of to the Common Law Procedure Act, 15 & 16 Vict. c. 76, the follow- pleadings. ing forms of pleading are given : "That the defendant, at the time of the alleged trespass, was possessed of land, the occupiers whereof, for twenty years before this suit, enjoyed, as of right and without interruption, a way on foot and with cattle from a public highway over the said land to the said land of the defendant, and from the said land of the defendant over the said land of the plaintiff to the said public highway, at all times of the year, for the more convenient occupation of the said land of the defendant, and that the alleged trespass was a use by the defendant of the said way." The form of replication to the above plea is, "That the occupiers of the said land did not for twenty years before this suit enjoy, as of right and without interruption, the alleged way."

Where the lessees of a colliery had agreed to grant to the lessees of Injunction. a neighbouring colliery licence to use a right of way enjoyed by the former, and the owner of the first colliery had granted to the second lessees the same right of way during a term of years, and afterwards by assignment from the first lessees became possessed of the first colliery and the right of way, an injunction was granted to restrain him from removing the materials and destroying the way. (Newmarch v. Brandling, 3 Swanst. 99.)

5. OF WATERCOURSES.

The right of conducting water through one estate for the use and Nature of convenience of an adjoining estate, is an incorporeal hereditament of the right to the class of easements, or a prædial service, which was known to the water. civilians under the name of service aquæ ductus (Domat's Civil Law, L. 1, T. 12), and is of use when Seius has a scarcity of water, and requires it for watering his cattle, or his lands, or for making his mill go, or for any other such advantage to his ground. (2 Frederican Code, 144.)

In Acton v. Blundell, 13 Mees. & W. 348, 349, the court considered the following to be a correct exposition of the law as laid down in Mason v. Hill, 5 B. & Ad. 1; 2 Ñev. & M. 747; and substantially declared by Sir John Leach, V. C., in Wright v. Howard, 1 Sim. & S. 190. The rule of law which governs the enjoyment of a stream flowing in its natural course over the surface of land belonging to different proprietors is well established; each proprietor of the land has a right to the advantage of the stream flowing in its natural course over his land, to use the same as he pleases, for any purposes of his own, not inconsistent with a similar right in the proprietors of the land above or below; so that neither can the proprietor above diminish the quantity or injure the quality of the water which would naturally descend, nor can any proprietor below throw back the water without the licence or the grant of the proprietor above. The principles upon which the right to the use of water depends, were thus expressed by Sir J. Leach, V. C., in a luminous judgment:-Primá facie, the proprietor of each bank of a stream is the proprietor of half the land covered by the stream, but there is no property in the water. Every proprietor has an equal right to use the water which flows in the stream; and consequently no proprietor can have the right to use the water to the prejudice of any other proprietor, without the consent of the other proprietors, who may be affected by his operations. No proprietor can either diminish the quantity of water, which would otherwise descend to the proprietors below, nor throw the water back upon the proprietors above. Every proprietor who claims