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between the said Robert Stables Ackroyd of the first part, Richard Tolson of the second part, and Thomas Mason and Richard Thornton of the third part, whereby the premises mentioned in the last-mentioned deed were mortgaged to Mason and Thornton for 30001.; and also indentures of lease and release of the 19th and 20th of August, 1834,- the release made between Robert Stables Ackroyd of the first part, Richard Tolson of the second part, Thomas Mason and Richard Thornton of the third part, and Ellis Cunliffe Lister of the fourth part, - whereby, in consideration of 30001. paid by Lister to Mason and Thornton, at the request and by the direction of Ackroyd, and also in consideration of 40001. paid by Ellis to Ackroyd, the premises were conveyed to Lister, subject to a proviso for redemption on payment to Ackroyd, his executors, administrators, and assigns, of 70001. and interest at 41 per cent. on the 20th of February then next. It then recited a contract between Samuel Smith, John Smith, and Thomas Smith, and Robert Stables Ackroyd, for the sale to the former of “the said close and pieces or parcels of land and hereditaments hereinafter described," for 27401. 10s., and that Samuel Smith and Thomas Smith had agreed to relinquish their interest in that contract to John Smith; and that Lister had consented and agreed to release and convey “the said close and pieces or parcels of land and hereditaments hereinafter described," on the said sum of 27401. 10s., the purchase-money, being paid in equal moieties to him and to the said Robert Stables Ackroyd, he, Lister, being satisfied that the remaining part of the hereditaments and premises so in mortgage to him as aforesaid, was a sufficient security for the re-payment of the reinaining part of the said sum of 70001. and interest. The indenture then witnessed, that, in pursuance of the said agreements, and in consideration of the sum of
13701. 5s. paid to Lister, and the like sum to Ackroyd, and also in consideration of 10s. paid to Lister and Richard Tolson respectively, by John Smith, they, the said Ellis Cunliffe Lister and Richard Tolson, bargained, sold, and released, and the said Robert Stables Ackroyd, at the request and by the direction of Samuel Smith and Thomas Smith, granted, bargained, sold, aliened, released, ratified, and confirmed unto John Smith and his heirs, All that close, piece or parcel of land or ground called or commonly known by the name of the Mill field, situate in the township of Horton, in the parish of Bradford, in the county of York, bounded on or towards the north by the brook called Bradford Beck, and land the property of the devisees of the late J. H. Smyth, on or towards the south by the parcel of land next thereinafter particularly mentioned, on or towards the east in part by the said brook and in other part by the said last-mentioned parcel of land, and on or towards the west by land the property of John Bower, and containing, &c., and now in the possession or occupation of John Smith and of Joseph Smith and Thomas Smith ; and also all that plot, piece or parcel of land or ground adjoining the said close of land on the south and east, and extending from the south side of the said close forty yards, and from the east side twenty yards, and containing, &c., which said plot, piece, or parcel of land was lately part of a close of land there, called or commonly known by the name of the cottage field, and is also in the possession or occupation of the said John Smith, Joseph Smith, and Thomas Smith ; and also all that other piece or parcel of land, comprising the soil and freehold of a certain road ten yards wide, and lately formed for the convenience of the said John Smith exclusively, and leading from and out of a certain other road thereinafter mentioned to run between the Bradford and Thornton turnpike-road, and Legram's
Lane, at the south east of a certain warehouse lately crected by the said Robert Stables Ackroyd, to the said purcel of land lastly thereinbefore particularly mentioned, and containing, &c., — all which said close and pieces or parcels of land or ground were lately part of several closes of land called Far Langsides, attached to an estate at or near a place called Legrams, in Ilorton aforesaid, and called The Field Head estate, and were described in a plan in the margin of the deed: Together with all ways, patlis, passages (particularly the right anl privilege to and for the owners and occupiers, for the time being, of the said close, pieces, or parcels of land, or any of them, and all persons having occasion to resort thereto, of passing and re-passing, with or without horses, cattle, carts, and carriages, for all purposes, in, over, along, and through a certain road running between the Bradford and Thornton turnpike-road and Legram's Lane, or in, over, and through some other road in the same direction, to be formed by and at the expense of the said Robert Stables Ackroyd, his heirs or assigns, --such other road, nevertheless, passing the south east corner of the said warehouse of the said Robert Stables Ackroyd; he the said John Smith, his heirs and assigns, paying to the said Robert Stables Ackroyd, his heirs and assigns, a proportionate part of the expense of repairing the said road, according to the use thereof by him or them, not exceeding the actual damage donc to the road by the wear and tear thereof by the said John Smith, his heirs and assigns; and the said Robert Stables Ackroyd keeping the said road at all times in good and sufficient repair ; such proportionate expense to be determined, in case of difference, by two persons, one to be chosen by each party, and, if they differ, by a third person or umpire, to be appointed by such two referees), waters, water-courses, springs of water (particularly the
right, privilege, and enjoyment, for the purposes of the trade of a dyer, or otherwise, of all the water of the brook adjoining the said close, pieces, or parcels, thereby released, or intended so to be, or any of them, and of all springs or courses of water arising or being within the same premises; the said Robert Stables Ackroyd thereby granting and guaranteeing such rights to the said John Smith, his heirs and assigns, free from all interruption whatsoever by any person having a right to or in respect of such water respectively, except the owners of the land on the opposite side of the brook, in respect of their rights), mines, minerals, quarries, and the ground and soil thereof, mounds, fences, hedges, ditches, rights, liberties, privileges, easements, profits, commodities, emoluments, hereditaments, and appurtenances, to the said close, pieces or parcels of land or ground, and hereditaments, or any part thereof respectively, belonging, or in anywise appertaining, or with the same, or any of them, or any part thereof respectively, now, or at any time heretofore, held and occupied, or enjoyed, or accepted, reputed, deemed, taken, or known as part, parcel, or member thereof, or of any part thereof respectively, or appurtenant thereto: And the reversion, &c. ; labendum, to John Smith, his heirs and assigns, for ever.
Then followed a covenant by Ackroyd, that Lister, Tolson, and Ackroyd, or some or one of them, were or was lawfully seised in fee, and had full power and authority to convey " the said close, and pieces or parcels of land, hereditaments, and premises mentioned to be thereby released, with their appurtenances, in manner aforesaid," and a covenant for quiet enjoyment, “ without the interruption or denial of the said Robert Stables Ackroyd, his heirs or assigns, or of any other person or persons whomsoever.”
The demurrer was argued in Easter term last.
Tomlinson, in support of the demurrer.(a) The way in question is only granted for the use of the premises conveyed : and, if larger, it did not pass by the subsequent conveyances, as appurtenant; but the grant must be considered as a grant in gross. In Cowling v. Higginson (6), in trespass quare clausum fregit, the defendant pleaded, under the 2 & 3 W. 4. c. 71., a right of way for the occupiers of a close for twenty years, for horses, carts, waggons, and carriages, at their free will and pleasure: upon a replication traversing the right as pleaded, - it was held that the plaintiff might shew that the defendant had a right of way for horses, carts, waggons, and carriages, for certain purposes only, and not for all, and was not compelled to new assign; and that he might shew that the purpose for which the defendant had used the road, and in respect of which the action was brought, was not one of those to which his right extended.(c) That case shews that the words here, " for all purposes,” mean, for all purposes connected with the occupation of the land conveyed. The context -"and all persons having occasion to resort thereto ”shews that the grant ought to be construed in this
If the grant be as large as is contended for, then it does not pass to the assignee of the land. In Staple v. Heydon (d), it was agreed by the court
(a) The point marked for hereditaments conveyed by that argument on the part of the deed, but have alleged that the plaintiff, was as follows: same were committed in passing * That the right of way granted and repassing for the purposes by the first indenture of release of them the defendants, without in the fifth plea first mentioned, any limitation of such purposes, was a right of way only to and thereby claiming a more exfrom the land and heredita- tensive right than was so granted ments thereby conveyed, and by the said indenture,” that the defendants, in justify- (6) 4 M. 8; W. 245. ing the alleged trespasses, have (c) Quære, the materiality or not alleged that the same were relevancy of this fact. committed in passing and re- (d) 6 Mod. 3., Com. Dig. passing to and from the land and Chimin (D. 1.).