NEW CASES COURT OF COMMON PLEAS, AND OTHER COURTS. Michaelmas Term, IN THE Second Year of the Reign of Victoria.-1838. The Judges who sat in Banc during this term were, TINDAL, C. J. BOSANQUET, J. COLTMAN, J. HINCHLIFFE v. The Earl of KINNOUL.-p. 1. In 1728 land was let on a building lease, 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 fifty-seven 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. THE plaintiff declared that he was possessed of a house in the parish of St. George, Hanover Square, in the county of Middlesex, abutting on the north on Green street, and on the east on a passage leading from Green street to Lee's Mews: that there was a coal 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 The publication of this and the two following cases has been unavoidably postponed till the present term 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-chir; 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 hiin, and his servants, and workmen, to pass and repass through the passage, for the purposes aforesaid; but that the defendant. prevented him out 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, foy 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. 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 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, lead ing 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 coal-cellar 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 part of the first-mentioned pipe, passed outside the eastern wall of the said messuage so abutting on the said passage as aforesaid: and that the coal-shoot in the declaration mentioned was, during all the time aforesaid, necessary for the convenient use and occupation of the said mes suage and premises, with the appurtenances: that the said coal-shoot could not be used without passing or repassing along the said passage: that the necessary repairs to the said pipes, and side or wall of the messuage abutting upon the said passage, could not be done without passing and repassing along the said passage: that, at the said several times, when, &c., the plaintiff had occasion to use the coal-shoot, and to repair the pipes and side or wall; and that the defendant hindered and obstructed the plaintiff at the said several times, when, &c., from passing and repassing along the said passage for the purpose of using the coal-shoot, and for the purpose of repairing the said pipes and side or wall: That, by indenture of lease of 2d October, 1728, Robert Myddleton, as committee of Dame Mary Grosvenor, widow, a lunatic, demised to Thomas Barlow and Robert Andrews, part of a field, called Upper Hill Field, in the parish of St. George, Hanover Square, fronting towards the east one hundred and twenty feet on Audley street; towards the north four hundred and forty feet on an intended street to be called Green street; and toward the west two hundred and ten feet on another new street to be called Hyde Park street; and abutting on the south partly on buildings leased to John Brown, and partly on an intended stable-yard or mews; together with all ways, passages, lights, easements, &c.; (which parcel of ground was part of a large piece of ground agreed to be let to Barlow and Andrews by the said Sir R. Myddleton;) to hold the said piece of ground and premises, from Lady-day 1727, unto the full end and term of ninety-seven years thence next ensuing, at a yearly rent of 4s.: That, by indenture of lease of 22d July, 1729, Barlow and Andrews demised to Gray and Brown a part of Upper Hill Field, fronting towards the south sixty-five feet on the said intended stable yard or mews; towards the east seventy-five feet on land in the occupation of Roger Morris; then towards the north fifty feet on land in the occupation of James Richards; then towards the east seventy-five feet on the same land; then towards the north five feet on Green street; then towards the west seventy-five feet on land in the occupation of Robert Umpleby; then towards the north ten feet on the same land; and then towards the west seventy-five feet on land in the occupation of Richard Oakman: with free ingress, egress, and regress; along with other tenants, over the intended stable-yard or mews: to hold from Lady-day then last past for ninety-three years thence next ensuing; at the rent of 107. per annum: That the part of the last-mentioned premises, described as fronting five feet on Green street, and seventy-five feet east and west on land in the occupation of Richards and Umpleby respectively, was the soil of the way or passage in the declaration mentioned; and that the premises in the occupation of Umpleby were the premises of the plaintiff in the declaration mentioned: That, by indenture of lease of 17th July, 1730, Barlow and Andrews demised to Robert Umpleby, part of Upper Hill Field, fronting towards the west seventy-five feet on land let by Barlow and Andrews to Thomas Parker, carpenter; towards the north fifty feet on Green street; towards the east seventy-five feet on land in the occupation of Gray and Brown (being the way or passage before described); and towards the south partly on land in the occupation of Gray and Brown, and partly on land in the occupation of Oakman: to hold from Lady-day then last past for ninety-two years, at a rent of 107. per annum: |