L.C. & L.JJ. Selby v. Nettlefold. 1873 towing his barges were obliged to pass round the foot of the bridge with their horses, and to cross the road so as to reenter the towing-path on the other side of the bridge. In so doing they had to pass through part of Moilliet's land adjoining the road, and they continued to use this substituted way till shortly before the filing of the bill. In the year 1853 Moilliet sold a piece of land on the east bank of the canal, over which the towing-path passed, to the defendants, J. H. Nettlefold and J. Chamberlain. This piece of land included the land adjoining the bridge through which the plaintiff's substituted way passed. The defendants shortly after the purchase received £50 from Moilliet as compensation for the annoyance caused by the plaintiff's right of way over the towing-path. It did not appear that they were aware of his having deviated over the land. About the same time Moilliet sold the piece of land on the bank of the canal, on the other side of the bridge, to the Patent File Company, from whom the defendants purchased it in 1870. The defendants had erected a wooden fence on their land on each side of Crauford Street, which prevented the plaintiff's servants and horses from crossing the road; and after some correspondence the plaintiff filed the present bill, praying that the defendants might be restrained from obstructing the plaintiff, or the occupiers for the time being of his said piece of land, his or their servants or agents, in his or their free use of the towing-path, and from permitting the fence to remain so as to cause such obstruction. The Vice-Chancellor made a decree, granting a perpetual injunction in terms of the prayer, and from this decision the defendants appealed. It appeared, from the evidence in the cause, that Moilliet was only tenant for life of the land on the east side of the canal at the time of making the grant of the right of way to G. Selby. Evidence was also adduced to show that the plaintiff used the right of way very rarely, it being found more con venient to propel the barges with poles than to tow them with horses. *Mr. Fitzjames Stephen, Q.C., Mr. Eddis, Q.C., and [113 Mr. W. P. Beale, for the appellants: There is no authority for such a claim as this arising out of a grant of a right of way. The cases in which a right to deviate extra viam has been recognized have been cases of highways, or ways resting on prescription: Absor v. French ('); Robertson v. Gantlett ('); (1) 2 Show., 29. (2) 16 M. & W., 289, 1873 Selby v. Nettlefold. L.C. & L.JJ. Taylor v. Whitehead ('); Arnold v. Holbrook ("); Bullard v. Harrison (). But admitting that if a man grants a right of way, and then obstructs it, the grantee may pass through some other part of the grantor's land, that supposes that the original right of way is still in existence, and is only temporarily obstructed. Here the plaintiff has submitted to the permanent obstruction of the original way, and has in fact abandoned it. The right to deviate is merely an excuse for trespass; it is not such a right as can grow into a permanent easement in substitution for the orginal right, capable of being enforced by the court. The plaintiff's proper remedy is to proceed against those who maintain the bridge, which the defendants now have no power over: Reignolds v. Edwards (); Harrison v. Parker (); Llewellyn v. Earl of Jersey (). The defendants also insist on their right as purchasers without notice of the plaintiff's alleged easement. It is true that shortly after their purchase they had notice of the plaintiff's right of way along the towing-path, and received compensation for it, but they believed that it had been practically abandoned, and they had no notice of his claim to deviate through another part of their land. At all events, the plaintiff has no right to pass through the defendant's land except for the limited purpose of passing from the towing-path on one side of the bridge to the towingpath on the other side for purposes of towing. Mr. Kay, Q.C., and Mr. G. W. Lawrence, for the plaintiff: The defendants had notice of the original right, and that implied a right to a substituted way if the original way was obstructed. There has been no abandonment of the original 114] right. It was *kept up by user of the substituted way: Horne v. Widlake (); Comyns' Dig. "Chimin" (D. 2); Payne v. Shedden ("); Lovell v. Smith ("); Harvie v. Rogers ("); Hawkins v. Carbines ("). The plaintiff does not claim a permanent right of way over the defendant's land, but only a right of deviation so long as the original way is obstructed. There is no obligation on him to enter into litigation with those in whom the property of the bridge is vested. He is entitled to take the simplest remedy in his power. Mr. Fitzjames Stephen, in reply. (1) 2 Doug., 745. (2) Law Rep., 8 Q. B., 96. (3) 4 M. & S., 387. (4) Willes, 282. (5) 6 East, 154. (6) 11 M. & W., 183. (7) Yelv., 141. (8) 1 Moo. & Rob., 382. L.C. & L.JJ. Selby v. Nettlefold. 1873 LORD SELBORNE, L.C.: It is admitted that if A. grants a right of way to B. over his field, and then places across the way an obstruction not allowing of easy removal, the grantee may go round to connect the two parts of his way on each side of the obstacle over the grantor's land without trespass. In this case we think the defendants cannot be treated as purchasers either from Moilliet or from the Patent File Company without notice of the plaintiff's rights, such as they existed when those purchases were made, and of the manner in which they were then used and enjoyed. When the first of those purchases was made the bridge and road had been actually erected by Moilliet, so as to obstruct the direct use of the towing-path, and we hold it to be the right conclusion from the evidence that the plaintiff then practically enjoyed this right of way by passing over Moilliet's land, which was sold to the defendants, and over the street or road and the yard on the other side from the towing-path on one side of the bridge to the towing-path on the other; and that, as against Moilliet, the plaintiff in so passing and repassing was not a trespasser. As between Moilliet and the defendants, who received from Moilliet a money consideration in respect of their being subject to this servitude, we think it cannot be assumed that the defendants *would at any time have been entitled [115 in equity to obstruct this substituted mode of access, so as to make it necessary for Moilliet, if still the owner of the road and the bridge, to remove the original obstruction, which was the status quo when the defendants purchased. And that original obstruction remaining (in which the plaintiff, having practically enjoyed the substituted mode of access till shortly before the filing of the bill, has acquiesced for a length of time, which might make it now very difficult for him in equity to require that original obstruction to be removed), we think that the defendants who purchased from Moilliet with notice, have no better right as against the plaintiff than Moilliet himself would have had. The injunction must, however, be varied by limiting it in point of duration to the life of Moilliet, and to the period during which the obstruction of the towing-path by the bridge may continue; and it is not to prevent the defendants from substituting for that heretofore in use any other convenient mode of access, and it is to be stated that the order is not to extend so as to authorize the plaintiff to use the mode of access across the defendant's land heretofore used by him, or any other which may be substituted for it except in and for the continuous passage along the towing 1873 Selby v. Nettlefold. L.C. & L.JJ. path, for the purpose of towing, from one side of the bridge to the other side thereof. SIR W. M. JAMES, L.J., and SIR G. MELLISH, L.J., concurred. Solicitors for the plaintiff: Messrs. Lawrance, Plews & Co. Solicitors for the defendants: Messrs. Sharpe, Parkers & Co., agents for Messrs. Ryland & Martineau, Birmingham. A purchaser of an inner lot, may claim a right of way of necessity over the lots belonging to his grantor which lie between him and a public highway. Wheeler v. Gilsey, 35 How. Prac., 139; N. Y., etc. v. Milnor, 1 Barb. Chy., 353; Smiles v. Hastings, 24 Barb., 44, affirmed 22 N. Y.,217; Addison on Torts,(4th Eng. ed.), 86; 3 Kent. Com., 420-424, marg. p. But such a way, founded on an implied grant, must arise from necessity. Convenience alone is not sufficient to raise the implication of a right of way. Valley Falls Co. v. Dolan, 9 Rhode Island, 489. And for such purposes may pass over a road used by the owner of the plat before the same was divided into city lots. Wheeler v. Gilsey, 35 How. Prac., 139. The necessity out of which a right of way arises is strict and continues only so long as the necessity exists. Wheeler v. Gilsey, 35 How. Prac., 139; N. Y., etc., v. Milnor, 1 Barb. Chy., 354. The owner of a right of way from necessity can only use it for the purposes implied by the grant. Valley Falls Co. v. Dolan, 9 Rhode Island, 489; 2 Greenl. Ev., § 471; Addison on Torts, 4th Eng. ed., 308-9. And cannot use it for going to any lands except those to which it passes as an appurtenant, and has no right to use it as appurtenant to other lands afterwards acquired. Stearns v. Mullen, 4 Gray, 151; 2 Greenl. Ev., § 471; Addison on Torts, 4th Eng. ed., 308–9. But if such use be a bona fide exercise of a right of way to such lands, and not a mere colorable mode of getting to such other land the owner thereof is not liable. Skull v. Glemster, 16 C. B., N.S. (111 Eng. Com. L.), 81; Williams v. James, L. R, 2 C. P., 577. And if the grantee take a right of way by a public street one by way of an alley in rear will not pass. Huttemeir v. Albro, 2 Bosw., 546. The grantee of a private way, which has become founderous and impassible, cannot without being a trespasser, go on the adjoining close, and thus pass around the obstruction. The rule is the same where the owner of the close through which the private way passes, causes the obstruction. Williams v. Safford, 7 Barb., 309; Holmes v. Seeley, 19. Wend. 507; Boyce v. Brown, 7 Barb., 80. But see Leonard v. Leonard, 2 Allen, 543, Farnum v. Platt, 8 Pick., 339, contra when the owner of the land causes the obstruction. We think the latter cases the better law. There is no distinction with respect to the right of passing extra viam, between a private way by grant and a private way ex necessitate after the latter has been selected or assigned. The same rule applies to a private way by prescription, that controls in case of a grant. Williams v. Safford, 7 Barb., 309. A person travelling on a public highway, which has become founderous and impassible, has a right to remove enough of the fences in the adjoining close, to enable him to pass around the obstruction, doing no unnecessary injury. Williams v. Safford, 7 Barb., 309; Campbell v. Race, 7 Cushing, 408; Arnold v. Holbrook, 4 Eng. Rep., 236, 241, note. But he becomes a trespasser if he tears away other fences, and tramples down the herbage in other parts of the close. Williams v. Safford, 7 Barb., 309. But such a right is not to be exercised from convenience merely nor when, by the exercise of due care, after notice of obstructions other ways may be selected and the obstruction avoided. But it is to be confined to those cases of inevitable necessity or unavoidable accident: arising from sudden and recent causes which have occasioned temporary and impassible obstructions in the highway. What shall constitute such inevitable necessity or unavoid In 1859 H. brought ejectment against S. to recover a piece of woodland. S. set up adverse possession for more than twenty years, and the action was discontinued. H. shortly afterwards took up his residence in a house close to the wood, and frequently walked in the wood, turned cattle into it, and cut the brambles there. In 1873 he cut down a tree in the wood, and threatened to cut more, upon which S. filed his bill for an injunction. Held (affirming the decision of the Master of the Rolls), that, after H. had, by bringing ejectment, admitted S. to be in possession of the wood, the acts done by H. must be looked upon only as acts of trespass not putting him into possession, and that S., being in possession, was entitled to an interlocutory injunction to restrain him from cutting timber. Lowndes v. Bettle (1) approved and followed. THIS was a motion by way of appeal from an order of the Master of the Rolls refusing to dissolve an ex parte injunction. The plantiff was entitled in fee to a farm at Slaugham, in Sussex, part of which consisted, as the plaintiff alleged, of a wood called Jenner's Wood. This wood was bounded on two sides by the farm, on the third by a road, and on the fourth by property of the defendant. The plaintiff deposed that his father purchased the farm in 1828, that he succeeded to it under the will of his father, and that his father and he had been in undisputed possession of the farm, including the wood, from 1828 till 1859. In 1859 two actions of ejectment were commenced against the present plaintiff, Mr. Stanford-one by the present defendant, Mr. Hurlstone, to recover one moiety of the wood, and the other by parties who claimed the other moiety, Mr. Stanford, at the trial of the second action in 1860, adduced evidence of adverse possession for more than twenty years, and the plaintiffs in that action elected to be nonsuited. (1) 10 Jur. (N.S.), 226; 12 W. R., 399; 33 L. J. (Ch.), 451. |