IN THE COURT OF COMMON PLEAS, AND OTHER COURTS. Michaelmas Term, IN THE SECOND YEAR OF THE REIGN OF VICTORIA. The Judges who sat in Banc during this Term were, 1833. HINCHLIFFE V. The Earl of KinnoUL. THE Plaintiff declared that he was possessed of house in the parish of St. George, Hanover Square, June 13.(a) a In 1728 land was let on a building lease, in the county of Middlesex, abutting on the north on which expired at Lady-day 1824. In 1819 Plaintiff, by virtue of a demise from an under-lessee, which expired in 1820, was in possession of a house erected on part of this land, and, under that demise, exercised, as all his predecessors had done, for more than thirty years, a right of way over a passage on one side of his house, as necessary for the use and enjoyment thereof; particularly for repairing the eastern side: the under-lessee's interest expired in 1822: Defendant was in possession of the soil of the passage by virtue of an assignment, in 1791, of the lease of 1728: in 1819 the party possessed of the reversion expectant on the lease of 1728 demised to Plaintiff the house of which he was in possession, as above, for fiftyseven years and a half, to hold from Lady-day, 1824, together with all the appurtenances to the same belonging, subject to a covenant for repairs. In 1822 the reversioner demised the soil of the passage to Defendant for sixty-one years, to hold from Lady-day, 1824: Held that, under the demise of 1819, Plaintiff was entitled to a right of way over Defendant's passage. 1838. บ. The Earl of KINNOUL. Green Street, and on the east on a passage leading from Green Street to Lee's Mews: that there was a coalHINCHLIFFE shoot, coal-hole, or opening in the passage, communicating with a coal-cellar, parcel of the Plaintiff's house; and that the coal-shoot, coal-hole, or opening was necessary for the convenient and beneficial use and occupation of the house: that a pipe, for the conveying water necessary for the convenient and beneficial use and occupation of the house, was placed through and under the passage: and that another pipe, for conveying water and soil from a watercloset in the house, was placed in and down the eastern wall of the house, which abutted upon the said passage: that the Plaintiff had a right for himself and his servants to pass and repass, on foot, along the passage, for the purposes of using the coal-shoot, coal-hole, or opening; of using and filling the coal-cellar; and of cleansing, amending, altering, and repairing the pipes and side of the house abutting on the passage, at all such seasonable, convenient, and necessary times as should during his possession of the house become necessary for any or either of such purposes: that while he was so possessed, it became necessary for him, and his servants, and workmen, to pass and repass through the passage, for the purposes aforesaid; but that the Defendant prevented him from having access, by closing the entrance of the passage. In a second count, the Plaintiff claimed a right or easement to pass and repass along the passage, with coals and such other things, at seasonable times, for the beneficial use and occupation of the coal-cellar; and In a third, a right of way for himself and his servants, to pass and repass along the passage, at their will and pleasure, at all times of the year, as to the messuage necessarily belonging and appertaining, and as necessary for the full and convenient use, enjoyment, and occupation of the same, with the appurtenances. 1838. In the third, seventh, and ninth pleas the Defendant traversed the rights as claimed in the three counts of the declaration; and upon those traverses the Plaintiff HINCHLIFFE joined issue. Upon these three issues it was found, by a special verdict, that the Plaintiff for many years before, and on the said several days and times, when &c., in the declaration mentioned, was possessed of, and occupied the messuage in Green Street, in the declaration mentioned, under a lease hereinafter mentioned; which messuage abutted on the north on Green Street, and on the east on the passage in the declaration mentioned, leading from Green Street to premises in the occupation of the Defendant, which-at the time of granting a certain lease, hereinafter mentioned, by Robert then Earl Grosvenor to Elizabeth Hinchliffe, since deceased, and the Plaintiff, bearing date the 20th of July 1819-extended from Green Street to Lee's Mews, as in the lease described: that during all the time of the Plaintiff's possession as aforesaid, and for many years antecedent thereto, there was a coal-shoot or coal-hole, covered with a moveable iron plate, in the said passage near to the eastern side of the said messuage of the Plaintiff, and which said coal-shoot or coal-hole passed in an oblique direction into a coalcellar belonging to the said messuage, and forming part thereof: that during all the time of the Plaintiff's possession as aforesaid, and for many years antecedent thereto, there was a pipe for carrying water necessary for the convenient and beneficial use and occupation of the said messuage, and which was the sole pipe for the supply of water to the said premises, situate in the soil under the said passage; and also another pipe for conveying water and soil from a water-closet, part and parcel of the said messuage, for the necessary occupation of the same; which last-mentioned pipe, and also V. The Earl of KINNOUL. |