held, that on this evidence the jury were properly directed to find the issue for the defendant. (Wood v. Leadbitter, 13 Mees. & W. 838.)

The plaintiff, a tenant of a house for a term of years, being possessed of certain fixtures, which were his own property, but annexed to the freehold, requested the landlord to purchase them at the expiration of the term, or let them remain for purchase by the incoming tenant, but to be taken away by the plaintiff if the tenant should refuse them. The landlord wrote an answer declining to purchase, but adding, "I have no objection to your leaving them on the premises and making the best terms you can with the incoming tenant." The articles remained unsevered from the freehold until the entry of the new tenant, who came in under demise from the same landlord, but who declined to take them. The plaintiff then (after the tenant had been two months in possession) demanded liberty to enter and remove the fixtures, but the tenant refused permission, and the plaintiff thereupon brought an action for the hindrance and trover against the tenant: it was held, that if the landlord's letter to the plaintiff amounted to a licence to take away the articles, yet, not being under seal, it was no valid grant of such privilege as against a new tenant in possession, and not party to the licence. (Roffey v. Henderson, 17 Q. B. 574; 21 Law J., Q. B., 49.)

In an action of trover for sand, tin ore and gravel, a party claiming ownership in a field granted to the plaintiff a parol licence to search therein for minerals. The plaintiff, acting under this licence, dug pits in the field, and threw up sand and gravel, mixed with ore, which the defendant took away, professing to act under the authority of a third party. Before the defendant took away the sand, gravel and ore, the party who gave the plaintiff the parol licence granted him a similar licence by deed: it was held, that the plaintiff was entitled to maintain an action for the gravel, sand and ore, as against the defendant, who was a wrong-doer. (Northam v. Bowden, 11 Exch. 70; 24 Law J., Exch., 237.)

A parol licence to put a skylight over the defendant's area (which impeded the light and air from coming to the plaintiff's dwelling-house through a window), cannot be recalled at pleasure, after it has been executed at the defendant's expense, at least not without tendering the expenses he had been put to; and therefore no action lies as for a private nuisance arising from the existence of such skylight. (Winter v. Brockwell, 8 East, 308.) Bailey, J., said, "The case of Winter v. Brockwell, 8 East, 309, is distinguishable from Hewlins v. Shippam, 5 B. & C. 221. All that the defendant there did, he did upon his own land: he claimed no right or easement upon the land of the plaintiff. The plaintiff claimed a right and easement against him, viz. the privilege of light and air through a parlour window, and a free passage for the smells of an adjoining house through defendant's area; and the only point decided there was, that as the plaintiff had consented to the obstruction of such easement, and had allowed the defendant to incur expense in making such obstruction, he could not retract that consent without reimbursing the defendant that expense. But that was not the case of the grant of an easement to be exercised upon the grantor's land, but a permission to the grantee to use his own land in a way in which, but for an easement of the plaintiff's, such grantee would have had a clear right to use it. Webb v. Paternoster, Wood v. Lake, and Taylor v. Waters, were not cases of freehold interest, and in none of them was the objection taken that the right lay in grant, and therefore could not pass without deed." (5 B. & Č. 233.) The court seems to have proceeded upon the same distinction in the following case-where the plaintiff's father gave the defendant leave, by parol, to lower the bank of a

river and to erect a weir, whereby a part of the water which before flowed to the plaintiff's mill was diverted: it was held, that his son could not maintain an action against the defendants for continuing the weir, although his father, a few years after the licence was given, had required them to raise up the bank and pull down the weir. (Liggins v. Inge, 7 Bing. 682; 5 M. & P. 712. See Mason v. Hill, 5 B. & Ad. 15.) The court did not consider the object, and still less the effect, of the parol licence, to be the transferring from the plaintiff's father to the defendants any right or interest whatever in the water which was before accustomed to flow to the lower mill, but simply to be an acknowledgment, on the part of the plaintiff's father, that he wanted such water no longer for the purposes of his mill; and that he gave back again and yielded up, so far as he was concerned, that quantity of water which found its way over the weir, which he then consented should be erected by the defendants; that after he had once clearly signified such relinquishment, whether by words or acts, and suffered other persons to act upon the faith of such relinquishment, and to incur expense in doing the very act to which his consent was given, it was too late then to retract such consent, or ta throw on those other persons the burthen of restoring matters to their former state and condition. (See also Duke of Devonshire v. Eglin, 14 Beav. 530; 20 Law J., Ch., 495.)

A parol agreement which is void under the Statute of Frauds, 29 Car. 2, c. 3, s. 4, may operate as a licence so as to excuse what would otherwise be a trespass, as where the purchaser entered to take away a crop. (Carrington v. Roots, 2 Mees. & W. 257; Crosby v. Wadsworth, 6 East, 602.) Goods which were upon the plaintiff's land were sold to the defendant; by the conditions of sale, to which the plaintiff was a party, the buyer was to be allowed to enter and take the goods: it was held, that after the sale the plaintiff could not countermand the licence. And the defendant having entered to take, and the plaintiff having brought trespass, and the defendant having pleaded leave and licence and a peaceable entry to take, to which the plaintiff replied de injuriâ, it was held, that the defendant was entitled to the verdict, though it appeared that the plaintiff had, between the sale and the entry, locked the gates and forbidden the defendant to enter, and the defendant had broken down the gates and entered to take the goods. (Wood v. Manley, 11 Ad. & Ell. 34; 3 P. & D. 5.) Alderson, B., approved of this decision, and said it was a case not of a mere licence, but of a licence coupled with an interest. The hay, by the sale, became the property of the defendant, and the licence to remove it became, as in the case of the tree and the deer, put by C. J. Vaughan, irrevocable by the plaintiff. (Vaugh. 351, ante, p. 52.) The case was analogous to that of a man taking another's goods and putting them on his land, in which case the owner is justified in going on to the land and removing them. (Wood v. Leadbitter, 13 Mees. & W. 853, citing Vin. Abr. Trespass H. a. 2, pl. 12; Patrick v. Colerich, 3 Mees. & W. 483. See Williams v. Morris, 11 Law J., N. S., 126, Exch.)

It seems that the crown may, by parol, confer privileges over land so as to deprive itself of the power of treating the party exercising the privilege as a wrong-doer; the actual possession of crown lands, under a parol licence from the crown, entitles the party in possession to maintain trespass against a wrong-doer. Generally speaking, trespass may be maintained by a person in the actual possession of land against a wrong-doer, even where that possession may be wrongful as against a third person. (Harper v. Charlesworth, 4 B. & C. 590; 8 D. & R. 572.)

4. OF RIGHTS OF WAY.

ways.

There are four kinds of ways (Co. Litt. 56 a.)—1, a foot-way-2, a Different horse-way, which includes a foot-way—3, a carriage-way, which in- kinds of cludes both horse-way and foot-way-4, a drift-way. Although a carriage-way comprehends a horse-way and a foot-way (Davies v. Stephens, 7 Carr. & P. 570), yet it does not necessarily include a driftway. (1 Taunt. 279.) It is said, however, that evidence of a carriage-way is strong presumptive evidence of the grant of a drift-way. (Ibid.)

A way may be granted for agricultural purposes only (Reynolds v. Edwardes, Willes, 282), or for the carriage of coals only (Iveson v. Moore, 3 Ld. Raym. 291; 1 Salk. 15), or for the carriage of all other articles except coals. (Marquis of Stafford v. Coyney, 7 B. & C. 257; Jackson v. Stacey, Holt, N. P. C. 455.) A reservation in a lease of a right of way on foot, and for horses, oxen, cattle and sheep, does not give any right of way to lead manure. The term "leading" implies drawing in a carriage. A grant conferring a right "to lead manure" would be construed according to the usual mode of leading, that is, by drawing in a cart. In case for disturbance of a way, the plaintiffs claimed a right for themselves, &c., on foot to go, return, &c., and also to lead and carry away manure, but proved only a grant of way on foot and for horses, oxen, cattle, and sheep. It was held a variance; for the term "lead," so used, implies drawing in a carriage. (Brunton v. Hall, 1 Q. B. 792; 1 Gale & D. 207.) The plaintiffs took issue upon a plea, traversing the whole right claimed in the declaration. The right actually interfered with was that of carrying away manure with a wheelbarrow. It was held, assuming this privilege to be covered by the grant, that the plaintiffs could not, by proving so much of the alleged right, entitle themselves to a verdict on the issue generally. (Ib.) Evidence of an user of a road with horses, carts, and carriages, for certain purposes, does not necessarily prove a right of road for all purposes, but the extent of the right is a question for the jury, under all the circumstances. (Cowling v. Higginson, 4 Mees. & W. 245. See Ballard v. Dyson, 1 Taunt. 279; Jackson v. Stacey, Holt, N. P. C. 455; Allan v. Gomme, 3 P. & Dav. 589, 590.) There may be both an occupation way and a public highway over the same road; for it does not on becoming a highway cease to be an occupation way. (Brownlow v. Tomlinson, 1 Man. & Gr. 484.)

A right of way may be either public or private. Ways common to Highways. all the king's subjects are called highways. (1 Vent. 189; 1 T. R. 570.) A way leading to any market town, and common for all travellers, and communicating with any great road, is a highway; but if it lead only to a church, or to a house, or a village, or to the fields, it is a private way; whether it be a public or private way is a matter of fact, and depends much on common reputation. (1 Ventr. 189; Hawk. P. C. b. 1, c. 76, s. 1.) The public may have a right to a road as a common street, although there be no thoroughfare; (Rugby Charity v. Merryweather, 11 East, 575; but see Woodyear v. Haddon, 5 Taunt. 125;) or to a road terminating in a common. (Rex v. Inhabitants of Wandsworth, 1 B. & Ald. 63.) So it may be a highway, although it is circuitous; (Rex v. Lloyd, 1 Camp. 261; 3 T. R. 265 ;) and although it is only occasionally used by the public, and does not terminate in any town, or in any other public road; (Rex v. Inhabitants of Wandsworth, 1 B. & Ald. 63;) and, on the contrary, it is not necessarily a public highway, although it does lead from one market town to another, or connect any two points by a line which might be advantageously used by the public, or is used by them under certain restrictions. (11 East, 376, n. (a).) On an issue, whether or not

Dedication of ways to the

public.

certain land in a district, repairing its own roads, was a common highway, it is admissible evidence of reputation (though slight), that the inhabitants held a public meeting to consider of repairing such way, and that several of them, since dead, signed a paper on that occasion, stating that the land was not a public highway, there being at the time no litigation. (Barraclough v. Johnson, 8 Ad. & El. 99; 3 Nev. & P. 233; see Nicholls v. Parker, 14 East, 331, n. to Outram v. Moorewood.)

It is a rule, that evidence of reputation must be confined to general matters, and not touch particular facts; the question in a cause being whether a particular road admitted to exist was public or private, evidence was offered that a person, since deceased, had planted a willow on a spot adjoining the road, on ground of which he was tenant, saying, at the same time, that be planted it to show where the boundary of the road was when he was a boy: it was held, that such declaration was not evidence either as showing reputation, as a statement accompanying an act, or as the admission of an occupier against his own interest. (The Queen v. Bliss, 7 Ad. & Ell. 550.)

If a man opens his land, so that the public pass over it continually, the public, after a user of a very few years, will acquire a right of way; and a party not meaning to dedicate a way, but only to give a licence, should do some act to show that a licence only is intended. The common course is to shut up the way one day in every year. (The Trustees of British Museum v. Finnis, 5 Car. & Payne, 460.) The presumption of a dedication may be rebutted by proof of a bar having been placed across the street soon after the houses forming the street were finished; though the bar was soon afterwards knocked down, and the way been since used as a thoroughfare. (Roberts v. Carr, 1 Camp. N. P. C. 262, n.; and see Lethbridge v. Winter, Id. 263, n.) But a gate being kept across a way is not conclusive that it is not a public way, as the way may have been granted to the public with the reservation of the right of keeping a gate across it to prevent cattle from straying. (Davies v. Stephens, 7 Carr. & P. 570; Rex v. Bliss, 2 Nev. & P. 464.)

A permissive user of a way is not inconsistent with a right to resume the way. In determining whether or not a way has been dedicated to the public, the proprietor's intention must be considered. If it appear only that he has suffered a continual user, that may prove a dedication; but such proof may be rebutted by evidence of acts showing that he contemplated only a licence resumable in a particular event. Thus, where the owner of land agreed with an iron company, and with the inhabitants of a hamlet repairing its own roads, that a way over his land in such hamlet should be open to carriages, that the company should pay him 5s. a year and find cinders to repair the way, and that the inhabitants of the hamlet should lead and lay down the cinders, and the way was thereupon left open to all persons passing with carriages for nineteen years, at the end of which time a dispute arising, the passage was interrupted, and the interruption acquiesced in for five years: it was held, that the evidence showed no dedication, but a licence only, resumable on breach of the agreement. (Barraclough v. Johnson, 8 Ad. & El. 99; 3 Nev. & P. 233.) A dedication to the public may be presumed from a shorter time than is necessary to establish a right of possession to land; and it has been presumed from a user by the public during a period of eight years, and even six years. (Rugby Charity v. Merryweather, 11 East, 376.) So where a court on one side of a public street in London was left open to the public, and occasionally used as a communication from one part of the street to another, a dedication to the public was presumed. (Rex v. Lloyd, 1 Camp. 268; 3 T. R. 265.) Where a canal company originally erected a bridge for the use of the tenants

of particular lands, but for ten years the public had crossed it without interruption: it was held, that it was properly left to the jury to say, whether the company intended or not to dedicate it to the public, and the jury, having so found, the court, in the absence of any misdirection in law, refused to interfere with such finding. (Surrey Canal Company v. Hall, 1 Scott, N. S. 264; 1 Mann. & G. 382. See Rex V. Wright, 3 B. & Ad. 681.) A user by the public of an open strand or waste does not necessarily lead to the inference that the owner of the soil has abandoned his right to it, and given it to the public. Although the dedication of a way to the public may be partial or limited as to the sort of way (as to a horseway, &c.), yet there cannot be a qualified dedication to the public, subject to a power of resumption to the grantor, for that would be the reservation of a right inconsistent with the dedication to the public. (Fitzpatrick v. Robinson and others, 1 Hudson & Brook, 585. See Blundell v. Catterall, 5 B. & Ald. 315; Lade v. Shepherd, 2 Str. 1004; Barraclough v. Johnson, 3 Nev. & P. 233.) Although there may be a dedication of a way to the public for a limited purpose, as for a footway, horseway or driftway, there cannot be a dedication to a limited part of the public, as to a parish; and such a partial dedication is simply void, and will not operate in law as a dedication to the whole public. In order to constitute a dedication of a way to the public by the owner of the soil, there must be an intention so to dedicate, of which the user by the public is evidence, subject to be rebutted by contrary evidence if interrupted by the owner. (Poole v. Huskinson, 11 Mees. & W. 827.) There can be no dedication to the public of land as a highway, with a reservation of a right of making cuts through the land when wanted for the purpose of drainage. (Rex v. Leake, 2 Nev. & M. 595; 5 B. & Ad. 469.) It seems that the setting out a road under a local act, by commissioners, for the use of particular persons, which in fact has been used by the public for many years, is not sufficient evidence of a dedication, without evidence of acquiescence on the part of the parish. (Rex v. St. Benedict, 4 B. & Ald. 447. See Campbell v. Wilson, 3 East, 294; Rex v. Miller, 1 B. & Ad. 82; Rex v. Edge Lane, 6 Nev. & M. 81.) If a road has been used by the public for a great number of years, a dedication by the owner of the soil may be presumed, whoever he may be; and it is not material to inquire who the precise owner was, or whether he intended to dedicate the road to the public. (Reg. v. Tything of East Mark, 12 Jur. 332; 17 Law J. Q. B. 177; 11 Q. B. 877.)

By an inclosure act, commissioners were authorized to set out public and private roads; and it was enacted, that after the commissioners had set out and allotted the parts of the commons and waste lands for the purposes aforesaid, they should allot and award to the lord of the manor, in respect of his right and interest in the soil in the commons and waste land, such parts thereof as should to them seem meet, not exceeding one-twentieth part of the remaining parts of the commons or waste lands. On an indictment against a tithing of the parish for the non-repair of a road set out by the commissioners as a private road, it was held, that the jury were properly directed to presume, from fifty years' uninterrupted usage, an intention of the owner of the soil, whoever he might be, to dedicate it to the public. (Ib.) It was held, that the crown, if owner of the soil, might dedicate it to the public. (Ib.)

The principle is, that when there is satisfactory evidence of such an user of the road as to time, manner and circumstances, as would lead to the inference that there was a dedication by the owner of the fee, if it was shown who he was, it is not necessary to inquire who the individual was from whom the dedication necessarily inferred from such an user first proceeded. On the trial of an indictment for