v. Rhodes, the words were "ways appurtenant," not " appurtenances." The decision in Dyer turned expressly upon the intention of the parties. And, where an old right of way is extinguished by unity of possession, there must be a grant de novo to establish another; Bro. Abr. Exting Com. Dig. Chemin. D. 3; Whalley v. Thompson, 1 B. & P. 371.

The covenant to repair would not convey to the plaintiff a right of way; and his inability to enter the passage would be an answer to any action for neglect of his covenant as to that part of the house which abutted on the way. It would be dangerous to twist to particular pur poses a general covenant found in all deeds between lessor and lessee. Wilde, in reply.-It would be more dangerous to defeat the manifest intention of the parties, by giving a strict technical interpretation to words employed in a popular sense. As the lessor has stipulated for the repairs, which cannot be effected without using the way, the way is a way of necessity: and the finding of the jury establishes it as such. As a rule of law it may be that the way would not pass under the word appurtenances; but the question here is a question of construction, (Willes, 327,) what is the intention to be collected from the deed of 1819 and the intention was that this way should pass as parcel of the house. If, as the plaintiff contends, that deed discloses a clear intention' to pass the way, the grantor had then a right to pass it, and his intention would not be defeated by a subsequent unity of seisin in 1824.

Cur. adv. vult.

TINDAL, C. J.-This special verdict, which has been found upon the third, seventh, and ninth issues, stated in the pleadings, raises the question of the existence of the right claimed by the plaintiff in his declaration; namely, the right to pass over and upon the passage adjoining to and abutting on the plaintiff's messuage for the purpose of using the coal-shoot placed in the passage, and filling the plaintiff's coal-cellar, being part and parcel of his messuage; and also for the purpose of cleansing, amending, and repairing the pipes for conducting the water to, and carrying soil from, his said messuage, and amending and repairing the side and wall of the messuage itself abutting on the said passage. The plaintiff rest his title to this right upon the exercise and enjoyment of it, prior to and at the time of the granting of a lease by Robert Earl Grosvenor to the plaintiff's late mother and himself, and upon the legal operation of that lease; by which lease, bearing date the 20th of July 1819, the said earl demised the messuage now belonging to the plaintiff by the description therein contained, and to which it will be necessary afterwards more particularly to advert, to hold to the plaintiff's late mother and himself, from Lady-day 1824, for the term of fiftyseven years and a half, from thence next ensuing.

The defendant, on the other hand, contends that the right claimed by the plaintiff cannot be supported in law: for that such right, if it ever existed, was altogether extinguished by the unity of possession of the plaintiff's messuage, and of the soil of the said passage; which, as he contends, took place in the earl at Lady-day, 1824, when the original ground lease, comprising as well the plaintiff's messuage as the said passage, and the various other adjoining messuages, expired by effiux of time, and let in the reversion of the said earl: and the defendant further objects, that, unless it can pass as an appurtenant, it cannot exist at all, there being no words in the lease of 1819 capable of granting or creating a new right.

In order to determine the first question which has been raised between the parties, namely, whether the right claimed by the plaintiff has been extinguished by any unity of possession in the earl, it will be necessary to ascertain precisely the legal interests of Earl Grosvenor and of the plaintiff, in relation to the messuage of the plaintiff, and also the legal interests of the said earl and of those under whom the defendant claims, in relation to the soil of the passage of the defendant, at the time of the execution of the said lease of the 20th of July, 1819. At the time of the execution of that lease, it appears from the special verdict, that Mrs. Hinchliffe was in the actual possession and enjoyment of the messua ge with the appurtenances in Green street, now belonging to the plaintiff, under a lease granted to her by the executors of one Mary Forrester, deceased, bearing date the 29th of June, 1799, and expiring at Midsummer, 1820. By this lease the executors of the said Mary Forrester had demised the messuage and dwelling-house, therein described, being the messuage in question, with the yard or garden and appurtenances thereunto belonging, or usually occupied or enjoyed therewith, as the same were late in the tenure or occupation of the said Mary Forrester: and it appears further, that Mary Forrester herself had held, by various mesne 'assignments, the residue of a certain lease which had been granted to one Samuel Adams, by indenture of the 27th February, 1764, in terms of description of the premises demised, not less extensive than those of her own grant. The immediate reversion expectant on the lease so made to Mrs. Hinchliffe, was therefore vested at that time in the executors of Mrs. Mary Forrester, under the said indenture of lease of 1764, which reversion expired seven days before Lady-day, 1822; and it appears from the special verdict, there was one other intermediate reversion outstanding and in existence interposed between the expiration of Adams's lease, and the expiration of the original ground lease granted by the Grosvenor family on the 2d of October, 1728, and expiring at Lady-day, 1824, on which latter day, and not until that day, the earl's right to the actual possession would commence.

Again, with respect to the soil of the passage adjoining the plaintiff's messuage, it appears from the special verdict, that, at the time of granting the said reversionary lease of 1819, from Earl Grosvenor to the plaintiff and his mother, the interest in the soil of the passage was vested in Lord Viscount Hampden, who, by indenture of the 28th of March, 1793, had taken by assignment from the party in whom the several terms were vested, as well the residue of the original lease, as of the sub-lease granted to Gray and Brown, so far as related to the passage in question, and certain other parts of the premises: so that, at the time of the execution of the said lease of 1819, Lord Hampden was entitled to the possession of the soil of the said passage until Lady-day, 1824, when the original lease of 1728 would fall in, at which time, and not until which time, Earl Grosvenor would be entitled to the actual possession of such passage.

Now the original lease of 1728 comprised a considerable tract of ground, at that time completely open and unbuilt upon; not only the spot upon which the plaintiff's 'messuage was afterwards erected, but the soil of the passage adjoining thereto, upon and over which the disputed right is claimed to exist; and over and above that, a large extent of the surrounding ground, upon which numerous houses have been subsequently erected by various sub-lessees; and the earl had made no

leases in reversion prior to the expiration of the original ground lease, he would have been entitled, at such expiration, to the possession of the whole tract of land comprised therein, whether covered or uncovered with buildings, and also of all the messuages built thereon during the continuance of that lease; and it is obvious that such unity of seisin and possession in the earl would have extinguished all rights and easements of every kind which might have been acquired in or over any part of the soil demised, whether by grant, user, or otherwise howsoever, as between any of the sub-lessees, during the existence of their several interests; so that, with respect to the plaintiff's messuage, any right or easement which the occupiers thereof might have acquired by adverse enjoyment in or over the passage in question, would, at the expiration of such original lease, have been entirely destroyed and extinguished. The earl might have remodelled the whole of the property included in the original lease, in any manner he thought fit; he might have relet the several houses, as they had been occupied before, or subdivided them into different parts or portions, and let them with or without the rights and easements which had been before enjoyed by the several lessees of the respective houses upon or in the adjoining soil.

Such, however, in the year 1819, being the state of the interest and title of the plaintiff, and of Lord Viscount Hampden, in their respective properties, it appears by the special verdict, that the earl did not wait the falling in of the original lease at Lady-day, 1824, when he would have been entitled to the actual possession of all the premises included therein; but that, on the contrary, on the 20th July, 1819, he granted to the plaintiff and his late mother, the reversionary lease of the messuage now belonging to the plaintiff, which has been before adverted to; and subsequently thereto, namely, on the 24th September, 1822, he granted to Lord Viscount Hampden a reversionary lease of the soil of the said passage next adjoining the plaintiff's messuage, (amongst other premises,) to commence at Lady-day, 1824, and to continue for sixty-one years thence next ensuing, under which lease the present defendant, the Earl of Kinnoul, now holds by assignment.

As to the first point, therefore, which has been raised on the argument of this case, we think it clear, upon the facts stated in this special verdict, that there was no unity of possession in the earl, both of the messuage and of the soil of the adjoining passage, at the time of the expiration of the original ground lease. For that lease having been made to the original lessees, to hold, from Lady-day, 1727, for the full term of ninety-seven years thence next ensuing, it must have expired at welve o'clock of the night of Lady-day, 1824. But the lease of 1819 demises to the plaintiff and his mother, to hold, from Lady-day, 1824, for fifty-seven years and a half thence next ensuing. The latter was, therefore, strictly and properly a reversionary lease commencing at the precise moment when the original lease terminated, and leaving no interval whatever between: and, indeed, as if to prevent the possibility of such a construction, the commencement of the lease is expressly stated to be "from Lady-day, 1824, when the indenture of 2d October, 1728, would end and determine." And so again, with respect to the lease to Lord Hampden of the 24th of September, 1822, the term thereby granted, although made to commence from the 5th day of April, 1824, (the day before old Lady-day,) yet by the addition of the words, "at which time the said indenture of lease of the 2d October, 1728, would

determine," must be held to be strictly and properly a reversionary lease. When, therefore, the original lease expired, there could be no unity of possession in Lord Grosvenor, for there was no right to the possession at all: but the several and distinct possession of the messuage, in the state in which it had been before held, was continued in the lessees named in the lease of 1819; and the several and distinct possession of the passage, as it had been before held by Lord Hampden, was continued in him under the lease of 1822. Not that it is absolutely necessary for the purpose of avoiding the legal consequences of unity of possession, that both the leases should be reversionary, it is sufficient if there is a reversionary lease of the messuage alone. Even, therefore, if it could be contended as to the lease of 1822, that there existed an interval between the expiration of the original lease, and the commencement of the term granted by that lease to Lord Hampden, upon the ground, that the original lease, by the alteration of the style, expired on the 25th March, 1824, and the term newly granted was not to commence until the 5th April following: yet, in consequence of Earl Grosvenor's reversionary lease of the messuage in 1819, the right to the possession of both properties was severed, and there could be no unity of possession of both the messuage and the passage in him; and if so, it is obvious that he could not, by his subsequent grant, derogate from a former valid grant which he had already

made.

We think, therefore, there is no ground for the objection, that the right in dispute was extinguished by unity of possession: but that the real question between these parties turns upon the proper construction to be put upon the lease made by the Earl of Grosvenor in 1819, for whatever effect that lease would have against the earl, the same effect must be given to it against the present defendant, who claims only under the subsequent lease of 1822.

Now, at the time of the execution of the lease of 1819, it is found by the verdict that the plaintiff and his mother were in possession and occupation of the messuage in question, having a coal shoot or coal hole, of which the opening was in the passage, near to the house, and which ran in an oblique direction into the coal cellar of the house; having also a water pipe under the passage, which was the sole pipe for supplying water to the house; and two other pipes, one to supply water to a closet, and the other a pipe to carry soil therefrom; of which the first entirely, and the other in part, passed from the interior of the house, outside the eastern wall thereof: "all which," according to the finding of the jury, "were necessary for the convenient and beneficial use and occupation of the said messuage." It is further found that the occupiers of the said messuage exercised the right of passing and repassing over the said passage, for the purpose of using their coal shoot and filling their coa! cellar, and of repairing the pipes and the side and wall of their messuage when necessary, for a long time, that is, from as early a period as the year 1788, downwards; and further, it is expressly stated by the jury, that the coal shoot could not, during all the time aforesaid, and cannot be used; and that the needful and necessary repairs of the said pipe. and side or wall of the said messuage, could not and cannot be done, without passing and repassing upon, through, and along the said passage. Such then, being the description of the messuage itself, and of the right actually exercised and enjoyed in and upon the soil of the passage at and before the time of granting the reversionary lease, the Earl of Gros

venor, on the 20th July, 1819, in consideration of a fine paid down, demises to the plaintiff and his mother the messuage or dwelling-house in which they had been residing for many years past, by the description of "all that piece or parcel of ground, and the messuage or tenement. erections and buildings thereupon, or on some part thereof erected and built, situate, &c., and abutting and adjoining towards the east on the said way or passage;"—the lease then goes on to describe the other abu.tals, the exact incasurement of the land, and to refer to a plan or ground plot drawn on the margin of the indenture,-" together with all and singular the appurtenances unto the said piece or parcel of ground, message or tenement, erections, buildings, and premises, belonging or in any se appertaining." And the first question arising upon this lease, gran.ed under the circumstances above stated, is, whether the use of the coal shoot, the water pipe and other pipes, passes thereby to the lessee? And we feel no doubt upon this state of facts, that the coal shoot, and the water pipe and other pipes, did pass to the lessee as integral parts of the messuage or dwelling-house itself. They are stated in the special verdict to be let into and through the walls of the dwelling-house, so that, if they were stopped or cut off, the messuage or dwelling-house must be damaged and dismembered, and would no longer be the same as that which the plaintiff and his mother had before enjoyed, and which is described in the new lease. And it must be remembered that, at the time the earl grants the new lease, he must be taken to know the actual state and condition of the premises which form the subject-matter of the demise. For although when his ancestor granted the original ground lease in 1728. he denised a large vacant piece of ground; in 1819 the earl demised a messuage or dwelling-house of a certain definite and known shape. size, and character, consisting of certain parts and additions, as it then actually stood. We cannot therefore feel any doubt, but that under the description contained in the lease, the coal shoot and the several pipes passed to the lessee as a constituent part of the messuage or dwellinghouse itself.

The next question which then arises, and that upon which the determination of the present case rests, is, whether the right of passing and repassing over the soil of the passage, and using it for the purposes above mentioned, did also pass to the lessees under this lease. And we are of opinion that, upon the facts found in this special verdict, such right did pass as a necessary incident to the subject-matter actually demised, although not specially named in the lease. The rule laid down in Plowden's Comm. 16 a., is, "that by the grant of any thing, conceditur et id, sine quâ res ipsa haberi non potest; as if one grants his trees, the grantee may enter upon his land for the cutting down and carrying them away," for which the authority of the Year-book, 2 Rich. 2, is cited. And again, TWISDEN, J., Pomfret v. Ricroft, 1 Saund. 322, lays down the rule of law to be," when the use of a thing is granted, every thing is granted by which the grantee may have and enjoy such use. As if a man gives me a license to lay pipes of lead in his land to convey water to my cistern, I may afterwards enter and dig the land to mend the pipes, though the soil belongs to another and not to me." Now, in the present case, the jury have found expressly in their verdict, that the passing and repassing over the way or passage is not merely convenient but necessary "for the use of the coal-shoot, and of the pipes, and of the repairing and amending the same, and the side or wall of the house;" to the