the appellant, and that he ought not to have taken proceedings under the Clergy Discipline Act. This argument in fact divided itself into two parts. It was said, in the first place, that the respondent had duly reported to the bishop the grounds on which he had repelled the appellant from the holy communion, and that he was then entitled to wait until he received some order from the bishop on the subject, and that no such order was given. The other form of the argument was that the appellant had, under the rubric and canons, a right of appeal to the bishop personally, and that he either had not so appealed, or, if his communications with the bishop amounted to an appeal, the bishop had expressed his opinion against the appellant, and in favour of the respondent. As to the first part of this argument, their Lordships are clearly of opinion that the repelling by the respondent of the appellant must be judged of at the time when it took place, and could not be affected by anything afterwards occurring between the respondent and the bishop. At the time it took place it was either justifiable or unjustifiable. If justifiable, the respondent is, of course, entitled to succeed; but, if unjustifiable, the appellant must be immediately entitled to a remedy, and their Lordships can discover nothing which shifts the responsibility from the respondent and places it upon the bishop. Their Lordships also think that the remedy to which the appellant is entitled is that which in this case he has sought for. He complains that the respondent has committed an offence against the laws ecclesiastical by wrongfully refusing him admission to the holy communion, and he has followed the process prescribed by the Clergy Discipline Act. Their Lordships do not find in the rubric prefixed to the communion office any indication of an appeal to the bishop by a parishioner repelled from the communion. They find that an intimation is to be given to the bishop by the minister, but this is apparently for a purpose entirely different, namely, that the bishop may proceed against the person repelled to punish him pro salute animæ. With regard to an appeal under the canon, their Lordships do not understand how an appeal given by a canon, even if it were given, could take away a higher right to maintain proceedings for a violation of a right protected by statute. But their Lordships do not understand that the canon referred to in this case, the 27th, professes to give the repelled person any right of appeal; and even if it did, the Bishop in the present case appears throughout to have expressed the opinion that he ought not himself to decide the question between the appellant and the respondent, but that it should be decided in proceedings such as have been taken. On the whole, their Lordships are of opinion that they must advise Her Majesty to reverse the sentence of the Dean of Arches, and in remitting the cause to admonish the respondent, the Rev. Flavel Smith Cook, for having, on the 4th Oct. 1874. without lawful cause, refused to deliver to the appellant, or permit the appellant to receive, the elements of the Holy Communion, and, further, to monish him to refrain from committing the like offence in future. Their Lordships have no doubt that the respondent has acted throughout in good faith, and in the conscientious belief that he was discharging a duty imposed him, and they have also not failed to observe that this controversy appears to have been preceded by an uncalled for,

[CT. OF APP.

and, as they think, uncourteous letter, written by the appellant to the respondent, his minister, protesting against and condemning a sermon preached by him. Their Lordships cannot, however, hold that there is in these circumstances sufficient to warrant them in departing from the general rule according to which the respondent must pay the costs in the court below and on appeal.

Solicitors for the appellant, Pritchard and Sons, for C. Taddy, Bristol.

Solicitors for the respondent, Moore and Currey, for Brittan, Press, and Inskip, Bristol.

Supreme Court of Judicature.

COURT OF APPEAL.

SITTINGS AT WESTMINSTER. Reported by GILBERT G. KENNEDY, Esq., Barrister-at-law.

Tuesday, Jan. 18, 1876.

(Before Lord COLERIDGE, C.J., JAMES and MELLISH, L.JJ., BAGGALLAY, J.A., and CLEASBY, B.) PYM v. HARRISON.

ERROR FROM THE QUEEN'S BENCH. Devise of right of way before Wills Act-Words of limitation-Intention of testator-Personal privilege-Excessive user.

Plaintiff's and defendant's lands adjoined each other, plaintiff's land being on the south and defendant's on the north, and about the middle of the boundary was a gate into defendant's land at the end of a lane or road leading to this gate from the public street, and passing through the plaintiff's land. On the eastern side of the defendant's land adjoining the highway, was a house in a ruinous state, which was once, in 1830, a dwelling-house, and in the centre of defendant's land, equidistant from the gate and the house, and surrounded by a garden, was a separate building, then used as a kitchen for the house. The remainder of defendant's land had been partly and at different times garden, orchard, grass, &c. The owner of plaintiff's and defendant's premises, who died in 1830, by his will devised to his nephew, the defendant's predecessor, the said kitchen and garden. The will then continued as follows: “I will and direct that my said nephew, John Harrison, shall have the privilege or right of a road for loading coals and dung, and other necessary things, through the said gate, to the said kitchen and garden.'

This right of a road, which was the lane or road above mentioned, was at that time the only approach to the said kitchen and garden. Shortly afterwards the remainder of the premises now occupied by defendant came by inheritance into the possession of John Harrison, whereby he had other access to the highway through the ruined dwelling-house, though the only approach for a horse and cart was through the way in dispute. The defendant, who carried on the business of a coal higgler, used the said kitchen as a stable for his horse, and made use of the said way with his cart and horse.

Held (reversing the decision of the Queen's Bench), that this grant of a right of way was merely a

personal privilege for the life of the grantee; for that by the words of the devise merely a life estate in the easement passed, and it was manifestly the intention of the testator that the right should not extend beyond the lifetime of the devisee. THIS was an action of trespass brought by the plaintiff against the defendant. The action came on to be tried before Baron Pollock at the Derby Summer Assizes, 1873, when, by order of the learned judge and by consent of the parties, a case was stated for the opinion of the court without pleadings.

The three questions in dispute were: First, the right of defendant to use a private roadway over ground occupied by plaintiff; secondly, if he had the right whether the user was excessive; and, thirdly, whether the defendant had, by non-interference on the part of the plaintiff and his predecessors, obtained a prescriptive right to use this road.

The plaintiff's and defendant's lands adjoin each other along their greatest length, the plaintiff's land lying to the south, and coloured green on the plan annexed to the case, the defendant's land lying to the north, and coloured pink, orange, and blue on the plan; both lands extended to the east as far as a public street and highway. About the middle of the boundary is a gate at the end of the lane or road leading to this gate from the said highway over the plaintiff's land.

On the defendant's land, opposite and close to the said gate, is a separate building (coloured pink), surrounded by a garden (also coloured pink); on the eastern side of defendant's land abutting on the said highway is a house (coloured blue), and extending from this house westward, up to, and beyond the said separate building is the property of the defendant (coloured orange).

In 1786, Abraham Harrison the elder, surrendered a messuage, bakehouse, and garden, coloured orange on the plan hereto annexed, to the use of himself for life, and after his death to the use of his son, Abraham Harrison the younger, for his life, and after his death to the use of Elizabeth, the wife of Abraham Harrison the younger, for her life, and after her death and the death of the survivor of Abraham Harrison the younger and Elizabeth his wife, to the use of the heirs of the body of Abraham Harrison the younger, and in default of such issue, to the use of his own right heirs.

At the same time, Abraham Harrison the elder surrendered the messuage coloured blue on the said plan, to the use of Ann Harrison, his daughter-in-law, for her life, and after her death to the use of John Harrison, her eldest son, and the heirs of his body, and for default of such issue to the use of his own right heirs.

The said Abraham Harrison the elder, died in or about the year 1787.

The said Abraham Harrison the younger, in addition to the life estate in the property coloured orange, to which he succeeded on the death of his father, Abraham Harrison the elder, was also entitled to the copyhold property coloured pink and green on the said plan.

During the life of the said Abraham Harrison the younger, the building shown on the property coloured pink, was used by him as a kitchen, the eastern half of the property coloured pink on the said plan was used by him as a garden, while the western half was used by him as a croft. Access to the garden was obtained over the road marked on

[CT. OF APP.

the plan, which was used by the said Abraham Harrison the younger soon after he acquired the property coloured pink, and which has been used since the death of the said Abraham Harrison the younger, in manner hereinafter mentioned.

Abraham Harrison the younger, by his will dated the 25th Jan. 1830 (the material parts of which are set out in this paragraph) devised to his wife, Elizabeth Harrison, for her life, with remainder to Thomas Richardson and the heirs of his body, the dwelling-house, crofts, outbuildings, and appurtenances, and piece of land therein described (being the premises coloured green in the said plan appended to this case), and, after making several other devises, the testator gave and devised all his other freehold and copyhold hereditaments unto his executors thereinafter named, during the life of his wife, in trust, to apply the rents and profits for the purposes of his will, and after the decease of his wife the testator gave and devised to his nephew, John Harrison, and to his heirs and assigns for ever, all that kitchen standing behind a dwelling-house wherein Thomas Herrod then lived (such dwelling-house being the premises coloured orange on the plan), and also the garden behind the said dwelling-house and premises occupied by the said Thomas Herrod, and so much of the upper and lower croft adjoining as would enlarge the garden so as to extend to the bottom of the lower croft, and so as to be eighteen yards in width from the top or kitchen end all the way down to the bottom (the kitchen and garden so devised to the said John Harrison, form the part coloured pink in the plan). The said will then proceeds as follows:-" And I will and direct that my said nephew, John Harrison, shall have the privilege or right of a road for loading coals and dung and other necessary things, through the large gate opening from Bridge-street, near to the cow-house in the said upper croft over the said upper croft to the said kitchen and garden."

The said testator, Abraham Harrison, died on the 6th Feb. 1830, and his will was proved in the same year.

The testator's widow, the said Elizabeth Harrison, entered into possession of the premises so devised to her, and died on 9th Nov. 1839. Thereupon the said Thomas Richardson was admitted on 2nd March 1841, to hold as customary tenant in tail the lands and tenements devised to him as aforesaid according to the custom of the manor of Beaureper, and the said John Harrison entered into possession of the lands and tenements respectively devised to him in the said will.

Upon the death of Elizabeth Harrison, the tenant for life, John Harrison became entitled as customary heir of Abraham Harrison the elder, and entered into possession of the property coloured orange, but was not formally admitted until 17th July 1852.

Upon the death of his mother Ann Harrison in 1831, the said John Harrison entered into possession of the property coloured blue on the plan to which he had become entitled under the surrender made by Abraham Harrison the elder in 1786, but was not formally admitted until 17th July 1852.

On 17th July 1852, John Harrison surrendered the property coloured blue to uses to bar the estate tail therein.

From the death of Elizabeth Harrison in 1839,

down to the year 1860 or 1861, John Harrison or his tenant used the road in question in connection with their use and occupation of the building on the property coloured pink as a kitchen, and of the remainder of the property coloured pink as a garden and orchard in the manner hereinafter mentioned.

In 1860 or 1861, the said kitchen ceased to be used as a kitchen and became a pig-stye, and from 1871 until the present time has been used as a stable. From and after such change of user in 1860 or 1861 down to the death of the said John Harrison, which took place on 7th March 1865, the said John Harrison or his tenants used the road in question in connection with their use and occupation of the said building as a pig-stye, and of the remainder of the property coloured pink, as a garden and orchard in manner hereinafter mentioned.

John Harrison, by his will dated 7th May 1861, devised the properties coloured blue, orange, and pink respectively, to Joseph Wright and Michael Jessop, upon trust to sell the same, and the said Joseph Wright having disclaimed the property so devised to him, the said Michael Jessop was admitted alone on 10th May 1866.

On the same day Michael Jessop surrendered the properties so devised to him in trust for sale to Joseph Wright, in fee, to whom he had sold the The defendant is and was at the time of the alleged trespass the tenant to Joseph Wright of the properties coloured blue, orange, and pink.

same.

From the death of John Harrison down to the sale to Joseph Wright, Michael Jessop, and from the sale to Joseph Wright down to 1871, Joseph Wright or their respective tenant used the road in question without interruption in connection with their use and occupation of the said building as a pig-stye, and from 1871 to 12th June 1872 as a stable, and of the said remainder of the land coloured pink as a garden and orchard.

From 1839 to 1848, whilst the defendant's premises were in the occupation of one Thomas Herrod as tenant, the road in question was constantly used by him for the purposes of driving cows, sheep, and pigs, and for carrying cabbages, manure, straw, coals, firewood, and other things of like character in a wheelbarrow. The said road was also used by him with his horse and cart at the time of hay harvest when he carried his hay from some other grass land in his possession and stacked it upon the said croft coloured pink.

From 1848 to 1868, whilst the defendant's premises were in the occupation of one George Berresford as tenant, the said road was constantly used by him for the purposes for which the said Thomas Herrod constantly used the same as in the last paragraph mentioned. Bricks, sand, mortar, lime, and stone, had also at one or more times been carried in a cart drawn by a horse along the said road for the purpose of being worked up or used by him upon the said croft in the way of his trade as a stonemason, but such user was not shown to be of a general or continuous character, but was of an exceptional and temporary character in conuection with some temporary arrangements with regard to his said trade as a stone

mason.

No interruption, interference, or dispute of any kind had at any time arisen with respect to the said road until after the plaintiff had entered into MAG. CAS.-VOL. X.

[CT. OF APP.

possession in June 1872, nor had any notice whatever been given to the owners from time to time of the premises now in the occupation of the plaintiff of any difference in or enlargement of the user of the said road until after the plaintiff had entered into possession in June 1872.

Save the road in question there is not now and never has been any access for carts, horses, or cattle to the said property coloured pink, and save the road in question there is not and never has been any access for persons on foot to the said property except through the sitting-room of the house coloured orange. The said house is now in a ruinous state, and can be and has occasionally been used as a passage for persons on foot passing from the High Street to the said property, and cows can be and have occasionally been driven down the said passage and through the said sitting-room. The said passage is too narrow to admit of the passage of a cart.

The property so as aforesaid devised to the said Thomas Richardson (coloured green upon the plan accompanying and part of this case), included the upper croft, and now belongs to the plaintiff's landlords, viz.: the Right Honourable Lord Belper, Anthony Radford Strutt, Esquire, and George Henry Strutt, Esquire, as tenants in common, they or their predecessors in title having purchased it from the said Thomas Richardson, who had previously made a surrender on the 6th July 1852, of the premises with a view to cutting off the entail created by Abraham Harrison's will. A copy of the court roll containing such surrender accompanies and forms part of this case.

The plaintiff became tenant to Lord Belper and Messrs. Strutt, of the premises coloured green on the plan in 1872, and sues for the injury done to his occupation by the use of the road in question by the defendant as hereinafter mentioned.

The defendant, who is a coal higgler and stationer, uses the building upon the property coloured pink, as a stable for the horse kept by him in the way of his business, and places his cart in the garden coloured pink, and the defendant makes use of the said road in question passing over the same to and from the said stable and garden with his cart and horse.

Mellor, Q.C. and G. G. Kennedy for the plaintiff, the present appellant. This will was drawn before the Wills Act, and according to the then strict construction of law, "that a devise without words of limitation conveys but a life estate to the devisee," John Harrison, under whom the defendant claims, took but a life estate in this right of way. But more than that, it is evidently the intention of the testator that nothing more than a life estate or personal privilege in this easement shall pass to John Harrison. The testator, or the person who drew up his will, must have been some one conversant with legal words, and one who knew the effect of such words, for the will abounds with words of art and other limitations, such as heirs," heirs-at-law," "to the use," "tenants in common," and there is also another right of way devised in fee. [MELLISH, L.J.-Had John Harrison any other access to the property?] Not at that time. [COLERIDGE, C.J.-If the testator had meant to give this road unto John Harrison until he had other access, he might have said so.] But we contend he has impliedly said so, for the testator must be taken to have known, at the time he made his will, that Join

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Harrison was entitled, subject to the life estate of his mother, to the property coloured blue as tenant in tail, and to the property coloured orange, as heir-at-law of Abraham Harrison the elder, and that therefore John would in all probability shortly come into possession of the properties coloured blue, orange, and pink, whereby he would have other access to the kitchen; these devolutions of property did in fact take place during the lifetime of John Harrison; so that the intention of the testator to give this right of way for a short time proved sufficient for the purpose for which it was intended, namely, to give John Harrison access to the property over the defendant's land, until he came into property which would give him access through land of his own. The use he is to make of this right of way strengthens this contention, it is not a general right of way, but a way for limited purposes. [MELLISH, L.J.-Where there is a devise of land in fee, and also of something appurtenant to that land, is not the devise of the thing appurtenant coextensive with that of the land?] Not always; in the case of a rentcharge it is not: (Nichols v. Hawkes, 10 Hare 342) [MELLISH, L.J.-That would not be the same thing. JAMES, L.J.-Suppose a devise of land in fee, and with it a devise of hedge bote and fire bote out of an adjoining close ?] In that case the devise of the hedge bote and fire bote would be for life only: (Reay v. Rawlinson, 30 L. J. 330, Ch.) Secondly, there has been an excess of user by the plaintiff, whereby the easement has been rendered more burdensome to the servient tenement than the testator intended it should be, and the easement is thereby extinguished.

Hemming v. Burnett, 8 Ex. 1;
Allen v. Gomme, 11 A. & E. 760;
Williams v. James, L. Rep. 2 C. P.;
Wood v. Saunders, L. Rep. 10 Ch. 582;
Cowling v. Higginson, 4 M. & W. 245.

Wills, Q.C. (Cave, Q.C. with him), for the defendant.

The intention of the testator was to grant this right of way as appurtenant to the land. [MELLISH, L.J. Did Abraham Harrison the younger use this way?] Yes, he had no other access. If this way had not been mentioned, there would have been a devise of a kitchen and garden without any access at all, and this shows that the way was not meant to be a mere personal privilege. [JAMES, L. J.-Supposing the land belonged to John Harrison, how would you then construe the devise of this way ?] In that case the land would be land without any access. [MELLISH, L. J.—Is it not the law that the way of necessity ceases when the necessity ceases ?] In all the cases in which that has been decided, the land over which the way has led fell into the possession of the person claiming the right of way. [MELLISH, L.J. -How did the owner of orange get through the highway, but through blue?] It is found in the case there is no way for carts through blue. We have also a right by prescription. [MELLISH, L. J. -If you prove a right by prescription, do you prove a right for all purposes?] For all purposes. [BAGGALLAY, J. A.-I find in the will a devise of another right of way for the owners and occupiers of certain other property devised by the testator in fee.]

Mellor, Q.C., in reply.-It is decided in Holmes v. Goring (2 Bing 76), that the way of necessity will cease when the necessity ceases. On the question of prescription, no amount of user without

[CT. OF APP. the knowledge of the owner can bind the servient

tenement.

COLERIDGE, L. J.-In this case we have to corstrue a provision in a devise of the year 1830, and therefore a devise before the Wills Act came into operation; consequently we have to be guided by the rules of law existing at that time. We have, moreover, to deal with matters of a complicated nature, but which when explained and arranged by counsel are clear, and form themselves into four distinct matters of deyise. They are distinguished on the plan by the colours blue, orange, pink, and green, and it appears that John Harrison, under whom the defendant claims, took in various ways the lands coloured blue (the ruined dwellinghouse), pink (kitchen and garden), and orange (the remainder of the property); he never had green, and the question is to what extent had he a right of way over green to pink? He took pink by devise, and orange at the same moment by inheritance as right heir of the settlor, by a settlement which had been made in 1786. He was also tenant in tail to blue with remainder to himself in fee under the settlement, but he did not come into possession of blue at the same time with pink and orange. Such being the state of the property, the defendant under and by virtue of the proviso in the will, claims to be entitled to this right of way, as a way for all purposes, and at the same time a more convenient way to the kitchen and garden; this claim is now in dispute, and we find that, although the way was more convenient, yet that he now has other access to the property through the ruinous house which is coloured blue, though, at the date of the testator's will, this road in dispute was the only access to the property. Such being the state of things, the question arises what is the effect which the court is to give to the following devise? "I will and direct that my said nephew, John Harrison, shall have the privilege or right of road for loading coals and dung, and other necessary things, through the large gate opening from Bridge-street near to the cow-house in the said upper croft over the said upper croft to the said kitchen and garden." There can be no doubt that at the time the will was written, according to the rules of law which then existed (before the Wills Act had come into operation), the words in dispute would not have been sufficient to convey the fee to John Harrison, and the court is bound to give effect to those rules unless, from an inspection of the whole document, it is apparent that the intention of the testator would be frustrated, and in that case, if it was evidently the intention of the testator to pass the fee, the court would give effect to such intention. Here, however, the court have looked into the will itself, which appears to have been drawn by someone conversant with terms of art, and it appears, moreover, that the devise of this right of way occurs between two separate devises in fee. [His Lordship read from the will.] In addition to that, as Sir Richard Baggallay has pointed out, in other parts of the will rights are bequeathed in which legal terms are used, and in another part of the will there is a devise of a right of way which is distinctly granted as appurtenant to certain premises devised. At the same time other estates in fee are also created, showing that the will we have to deal with was drawn up by some person who knew the effect of legal terms. The inflexible rule of law is that legal words are to be given their

It

legal interpretation, and seeing that in this will there is nothing to compel or induce the court to turn aside from the ordinary rules of interpretation, I come to the conclusion that when the testator uses the words "I will and direct that John Harrison shall have the privilege or right of road, &c.," he means what he says. has been suggested, very reasonably, that a way of necessity must be given, because, without any mention of a right of way, the law would have put one in as a way of necessity, but if this were so, I am not sure but that would only apply to a certain reasonable length of time, namely, up to the time when John Harrison came into possession of pink, orange, and blue. The moment he became possessed of all these properties, he would have other access, and the right would cease, and authority has pointed out that the way would cerse when the necessity ceases; in point of fact, in five or six years the necessity for this way would have ceased, and John Harrison would have other access to it. I say now, what I said in the argument on the limited construction of this devise, John Harrison got all the testator meant to give him, he meant at all events that John Harrison should have this right of way for his lifetime. He knew that John Harrison would soon have other access to the property, and it seems to me, by the true construction of the will, that the right and privilege was limited to the lifetime of John Harrison, and that therefore the defendant cannot succeed. Then it has been suggested that the defendant can make out the right he claims by user, because there has been from 1839 to 1868 a user by John Harrison or John Harrison's tenants sufficient to gain the right. Now without going into the difficult and unsettled question of what would be the effect of coming into a limited right, and then endeavouring by user to enlarge such right, or what effect a tacit assent might have on such user I do not say, ou I conceive it to be impossible for the defendant to enlarge this from a personal right to a fee, which is the only effect such user could have; and I come to the conclusion that whether under the will or not, nothing has been made out to justify the defendant's right to use this way.

JAMES, L.J.-I am of the same opinion. It was conceded that if at the time of the direction in this will relating to the right of way in dispute, John Harrison had been possessed in fee of the land to which the way leads, that then these words, "I will and direct that John Harrison," &c., would not have given anything more than the right to John Harrison for himself. But let that be so, how are we to give a different meaning to these words than that which they ordinarily would bear? Is there any inference we can draw from the will to say that something else was the meaning of the testator? It would be very singular for the testator simply to give this right for life, when he could have easily expressed a larger right; he might have known that John Harrison would not abuse this right. We have no means of knowing this one way or the other, for we are dealing with words themselves, and the meaning of those words is to give the right to John Harrison alone, and not to John Harrison, his heirs and assigns. On the first point, therefore, I am unable to agree with the Court of Queen's Bench. With regard to the second point, which was, assuming this right of way to be a

[CT. OF APP.

right in fee simple, whether, originally a gift for limited purposes, it has been altered by user? With regard to that, there was a case recently decided by the Court of Appeal with reference to a right of way over Wimbledon Common, and there, entirely adopting the rule of law as laid down in Williams v. James (ubi sup.), we decided that the use must be limited to the reasonable use, for the purposes of land in the state in which it appeared to be when the right arose (a).

MELLISH, L. J.-We have here to decide whether a devise of a right of way is to be construed to be a way for all purposes and for all times, whether by the will or by user, or by necessity, or whether it is to be a right limited to the lifetime of the devisee. The material matter on which we have to proceed is the will, and this, beyond all question, uses words which, according to their natural interpretation, would give an interest for life only. Whether this way is appurtenant or not is not necessary to decide. This case is not alleged to belong to that class of cases decided before the Wills Act in which the courts have enlarged the estate devised; still, if from reading the whole will we can discover any intention to grant a larger estate than here is strictly given, we would decide in favour of such intention; but when we look at the will, and the reasons for conferring on the devisee an estate only for life, we cannot but come to the conclusion that that is all the testator meant to give. The reason given against this is, that, if we do not hold this to be a devise in fee, on John Harrison's death, the way would be a way of necessity, and the testator could not have contemplated that. Now if there really had been no other way, then considerable weight would attach to that argument, but the strong probability was that John Harrison before his death would come into the blue property as tenant in tail. He was possessed in fee of the remainder of the property, and therefore on his death this would not be a way of necessity. It therefore comes to be a question of probability. Are these probabilities sufficient to induce the court to hold this to be a devise in fee, or are they not? I am of opinion they are not. There is then under the will no such right of way as is claimed. Is there then a right of way by necessity? It is clear there is not. It is no answer to this to say there is another way only narrower, because in such case the owner can enlarge it. In the next place, is there any way by user? John Harrison did not get this right of way for all purposes, and in that case no user would give any greater right. No doubt there is the question whether the change in the premises has not affected the right, but it is not necessary to decide that, as there must be a substantial change. It is not necessary to give an opinion on this, because the inference of fact we should draw is that the user was intended to be a user under the will, and was so understood by all parties.

BAGGALLAY, J. A.-I am of the same opinion and for the reasons given.

CLEASBY, B.-I come to the same conclusion and for the same reasons.

Judgment reversed with costs. Solicitor: Henry G. Field, for J. G. Jackson, of Belper; Bevan and Daniel, for Worthington, of Derby.

(a) The case to which James, L.J., here refers is the case of The Wimbledon and Putney Common Conservators v. Dixon, reported 33 L. T. Rep. N. S. 679.