it was not revived; for in that case every person who had any part of those lands should have as great common as the abbot had; and so the common would be infinitely surcharged. But if such common had been appendant or appurtenant, it would have been revived; for no person would have common for more cattle than were proportionable to his land. Worledge v. 100 Nature of. 1 Inst. 56 a. A RIGHT of way is the privilege which an individual, or a particular description of persons, such as the inhabitants of the village of A., or the owners or occupiers of the farm of B., may have, of going over another person's grounds. It is an incorporeal hereditament of a real nature; entirely different from the king's highway, which leads from town to town; and also from the common ways, which lead from a village into the fields. 2. There are three kinds of ways. First, a footway, which is called iter, quod est, jus eundi vel ambulandi hominis. The second is a footway and horseway, which is called actus ab agendo. This is vulgarly called a pack and prime way, because it is both a footway, and a pack or drift way also. The third is, via or aditus, which contains the other two, and also a cartway; for this is jus eundi, vehendi, et vehiculum et jumentum ducendi. This is twofold; namely, regia via, the king's highway for all men; and communis strata, belonging to a city or town, or between neighbours. 1 Term Rep. 570. 3. Notwithstanding these distinctions, it seems that 1 Vent. 199. any of the ways here described which is common to all the king's subjects, whether it lead directly to a market town, or only from town to town, may properly be called a highway; and that any such cartway may also be called the king's highway. But a way to a parish church, or to the common fields of a town, or to a village, which terminates there, may be called a private way; because it does not belong to all the king's subjects, but only to the inhabitants of a particular parish, village, or house. And Lord Hale says, that whether it be a highway or not, depends much upon reputa tion. Tit. 31. c. J. Palm. Rep. 387. 4. A right of way over another person's ground How claimed. may be claimed in three ways. 1. By prescription and immémorial usage: as, where the inhabitants of a certain vill have, time out of mind, traversed a particular close or field, to get to their parish church. So a person may prescribe for a way from his house, through a certain close, to the church; though he himself has lands next adjoining to his house, through which of necessity he must first pass. For the general prescription shall be applied only to the lands of others. 3 Ca. 94. 5. It was held in 18 Edw. 4. that a person may Jenk. Cent. have a right of way to go through a church-yard. And it was said in that case, that the church-yard of the Charter House was a common way for the inhabitants of London to St. John's. 6. A person cannot claim a way over another's 6 Mod. R. 3. ground, from one part thereof to another; but he may claim a way over another's ground, from one part of his own ground to another. 7. 2. By grant; as where the owner of a piece of land grants to another the liberty of passing over his lands in a particular direction; the grantee thereby acquires a right of way over those lands. Christian, 8. It has been determined in a modern case, that Senhouse v. where a person granted to another "a free and con- 1 Term R.560. Campbell v. 2 Roll. Ab. 60. Clarke v. venient way, as well a horseway, as a footway, as 9. It was held in another modern case, that an uninterrupted enjoyment of a right of way for twenty years, and no evidence that it had been used by leave or favour, or under a mistake, was sufficient to leave to a jury to presume a grant. 10. 3. A person may claim a right of way over an other's land from necessity. As if A. grants a piece of land to B., which is surrounded by land belonging to A.; a right of way over A.'s land passes of necessity to B., for otherwise he could not derive any benefit from his acquisition. And the feoffor shall assign the way where he can best spare it. It is the same though the close aliened be not totally inclosed by the land of the grantor, but partly by the land of a stranger; for the grantee cannot go over the stranger's land. 11. In trespass upon demurrer the case was, a person sold lands; afterwards the vendee by reason thereof claimed a way over the plaintiff's land, there being no other convenient way adjoining; and whether this was a lawful claim was the question. It was resolved, without argument, that the way remained; and that he might well justify the using thereof, because it was a thing of necessity; for otherwise he could not have any profit of his land. 12. It was held in the same case, that if a man hath four closes lying together, and sells three of them, reserving the middle close, and has no way thereto but through one of those which he sold, although he did not reserve any right of way, yet he shall have it, Vide 1 Sanad as reserved to him by law. Rep. 323. n. 6. Trearson, 13. In a modern case, it was determined by the Howton v. Court of King's Bench, that where a person conveys 8 Term . 50. land, merely as a trustee, to another, to which there is no access but over the trustee's land, a right of way passes of necessity, as incident to the grant. And Lord Kenyon observed, it was impossible to distinguish this from the general case, where a man grants a close surrounded by his own land, in which case the grantee has a way to it, of necessity, over the land of the grantor; merely on the ground that the plaintiff conveyed to the defendant in the character of a trustee; for it could not be intended that he meant to make a void grant. There being no other way to the defend- Reignolds ant's close, but over the land of one of the persons who Willes R. 282. granted to him, he was entitled to such a way of necessity, upon the authority of all the cases, and the principle that every deed must be taken most strongly against the grantor. v. Dillow, used. 1 Mod. 190. 14. A right of way can only be used according to How to be the grant, or the occasion from which it arises; and must not exceed it. Therefore, if a person has a right of way over another's close to a particular place, he cannot justify going beyond that place. 15. In trespass for driving cattle over the plaintiff's Howell v. King, ground, the case was,-A. had a way over B.'s ground to Blackacre, and drove his beasts over B.'s ground to Blackacre, then to another place beyond Blackacre. Upon demurrer, the question was, whether this was lawful or not. It was urged, that when the defendant's beasts were at Blackacre, he might drive them whither he would. On the other side, it was said, that by this means the defendant might purchase one-hundred or one-thousand acres adjoining to Blackacre, to which he prescribed to have a way, and by that means the plaintiff would lose the benefit of his land that a prescription presupposed a grant, and ought to be |