SHACKLETON v. SUTCLIFFE.

1847.

Nov. 5th, 6th, 8th, & 18th.

THE plaintiffs were devisees in trust of the will of Ed- The owner of

mund Wadsworth, and under the trusts of the will had power to sell a certain farm and lands, called Higher Murgatshaw, near Halifax.

In execution of the trusts, they put up the farm and lands for sale by public auction, pursuant to a certain particular of sale, which described the property as eligible for building purposes, and subject to certain conditions, among which were the following:

7th. "That the vendors shall, within six weeks from the day of sale, make out, at their own expense, an abstract of their title to the premises, according to the tenure thereof stated in the particulars on the other side; such abstract to be delivered to the purchaser, or his or her solicitor, on

land, situated on an acclivity, conveyed, by a

deed of 1816, a portion of lower land, with liberty

to enter on upper lands, and fetch water from a spring, and to cut open, cleanse, and cover in, such gutters

and drains as

might be ne

cessary for the

purpose of conducting the spring to the conveyed land; and also, with liberty to pass and repass, for

ingress and egress, on the upper land around or adjoining the conveyed land, and to put any ladders against the cottages then intended to be built upon the conveyed land.

By another deed of 1820, other part of the lower land was conveyed, with liberty to take water from specified springs in the higher land, and to make such reservoirs in a particular field, part thereof, as might be necessary for taking up water for family use and other necessary purposes, and with liberty to pass for ingress and egress in the upper land surrounding or adjoining the conveyed land.

By other deeds of 1824, other portions of the lower land were released, with all watercourses, particularly as the same ran to an inn on the conveyed land, from the upper land. By other deeds of 1825, further portions of the lower land were released, with liberty to fetch water for family and domestic uses, at a well on the higher land.

By other deeds of 1834, other part of the lower land was released, with liberty to the relessee to make a covered goit, or water-course, across the bottom part of a field, part of the upper land, and to open and repair the same when necessary.

Several years afterwards, the upper land was sold, according to a particular, describing it as fit for building, and subject to conditions of sale, providing, that, if any mistake were made, in the description of the premises, or if any other error should appear in the particulars, such error or omission should not annul the sale, but compensation should be given or taken. The existence of the easements was not stated in the particulars or conditions:

Held, First, that the circumstances of the purchaser living in the neighbourhood, being acquainted with the property, and passing constantly some of the wells on the lower land, supplied from the upper land, did not affect him with notice of the existence of the easements. Secondly, that the existence of the easements, granted by any one of the deeds of 1816, 1820, and 1834, alone constituted a material defect in the title to the upper land.

Thirdly, that the existence of the easements, granted by the deeds of 1824 and 1825, would have been alone sufficient to render the title subject to such serious doubt, that a purchaser could not be compelled to accept it.

Fourthly, that, under the circumstances, and inasmuch as the whole purchased land did not exceed thirty acres, the purchaser could not be compelled to take the title, with compensa tion as to the lands prejudicially affected, which admeasured about four acres and a half.

VOL. I.

S S

D. G. S.

1847.

V.

SUTCLIFFE.

application for the same, at the office of Messrs. Sutcliffe, SHACKLETON Solicitors; and such purchaser shall, within one month after such abstract shall have been delivered to him, or his or her solicitor, give notice to the vendors or their solicitors, whether the title is satisfactory or not; and, in case he or she shall declare himself or herself dissatisfied therewith, the vendor's agent or solicitor shall be at liberty to return the deposit money, and re-sell the premises, or compel an execution of the contract, as the vendors may think fit; and in case the purchaser does not give such notice of his or her being dissatisfied with the title, within one month, as aforesaid, the purchaser shall be considered as having accepted the title as developed by the abstract.” 14th. "That, if any mistake be made in the description of the premises, or, if any outpayment (other than parliamentary or parochial taxes), to which the premises may be subject, shall be omitted to be mentioned and specified at the sale, or if any other error whatsoever shall appear in the particulars of the estate, such error or omission shall not annul the sale, but compensation or equivalent shall be given or taken, as the case may require."

The 16th condition provided, that, if the purchaser should neglect or fail to comply with the above conditions, or any of them, in any respect, his or her deposit monies should be actually forfeited to the vendor, who was to be at liberty to resell the premises, either by public auction or private contract, and the deficiency (if any) in price, arising from such second sale, together with all expenses attending the same, were to be made good by the purchaser making such default.

The defendant was declared the purchaser at the sale; but, on investigating the title, he declined to complete his purchase, on the ground that the lands were subject to certain water rights and other easements, in favour of the owners of lands lying below those purchased, granted by various deeds; and the present suit was instituted to enforce a specific performance.

1847.

pro- SHACKLETON

One of the deeds was dated February 20th, 1816, and made between John Wadsworth, a former owner of the perty now sold, of the one part, and Roger Varley, of the other part, whereby John Wadsworth, in consideration of 9l., conveyed to Varley, his heirs and assigns, a piece or parcel of land or ground, then set out for building, situate in certain closes or fields forming part of the property now in question, and called Lower Hey and Briggfield, parcel of an estate called the Shaw, in Stansfield aforesaid, belonging to the said John Wadsworth, containing in the whole, by admeasurement, 180 superficial square yards of land or ground, together with the appurtenances, (particularly, full and free liberty, power, and authority to and for the said Roger Varley, his heirs and assigns, to fetch and carry water from a certain spring or rise of water, in the said close of ground, called the Lower Hey, belonging to the said John Wadsworth; and to cut, open, dig, cleanse, and cover in such gutters and drains as might be necessary for the purpose of conducting the said spring or rise of water towards the said piece or parcel of land;) and also full and free liberty, power, and authority to and for the said Roger Varley, his heirs and assigns, tenants, servants, and workmen, to pass and repass for ingress, egress, and regress, on foot, in the lands and grounds of the said John Wadsworth, around or adjoining the said piece of land; and to put any ladder or ladders to or against the cottages or dwelling-houses forthwith intended to be erected upon the said piece of land, (excepting, nevertheless, and always reserving thereout, unto the said John Wadsworth, his heirs and assigns, owners and occupiers of the said estate called the Shaw, full and free liberty, power, and authority to take and carry away all such ashes and necessary dung as should arise, be bred, or made at the buildings intended to be erected as aforesaid, and premises, at his and their free will and pleasure, without making or allowing any recompense for the same,

V.

SUTCLIFFE.

1847.

SCICLIFFE

other than providing ground for the necessary houses and SHACKLETON middensteads; but reserving and excepting to Varley, his heirs and assigns, all such manure, compost, dung, and tillage as might be bred or made by keeping horses, cows, cattle, and pigs, to eat hay, corn, or fodder upon the said premises); to hold to Varley, his heirs and assigns, for ever.

Another of the deeds was of the same date, and was made between John Wadsworth, of the one part, and Henry Sutcliffe, of the other part, being a conveyance of a piece of land to Sutcliffe, in precisely the same terins as the last, with the same powers, expressed in the same language.

On the two plots of ground comprised in these deeds, there had been built five houses, which were supplied with water from a spring situate in part of one of the closes of land, called Longfield, which were the subject of the purchase, and the inhabitants of those houses claimed and exercised the rights granted by the above indentures.

Another of the deeds was an indenture of feoffment, dated the 3rd of November, 1820, and made between the said John Wadsworth and Edmund Wadsworth, the plaintiff's testator of the one part, and one John Walton, of the other part, whereby the two Wadsworths conveyed to John Walton, his heirs and assigns, 230 superficial square yards of land, therein particularly described, and part of two closes, called Briggfield and Hillyfield, together with all ways, paths, passages, rights, liberties, privileges, advantages, and appurtenances, to the same piece or parcel of land or ground belonging or in any wise appertaining; particularly, full and free liberty, power and authority to and for the said John Walton, his heirs and assigns, to take up water from certain springs or rises of water in the said two closes of land, called the Briggfield and Hillyfield aforesaid, and to make such reservoir or lodge therein, as might be necessary for taking up water or drawing therefrom for family use and other necessary purposes, at the buildings to be erected upon said plot,

1847.

V.

SUTCLIFFE.

piece, or parcel of land or ground; and likewise, full and free liberty, power, and authority, to and for said John SHACKLETON Walton, his heirs, assigns, tenants, servants, and workmen, to pass and repass, for ingress, egress, and regress, on foot, in the lands and grounds of them the said John Wadsworth and Edmund Wadsworth, around or adjoining said plot, piece, or parcel of land.

Walton had built a dye-house and three cottages on the ground conveyed to him by the last-mentioned feoffment, and another cottage had been afterwards built thereon, but he had not as yet made such reservoir as was mentioned in the feoffment.

Others of the deeds bore date May 3rd and 4th, 1824, and were made between John Wadsworth and Edmund Wadsworth, the testator, of the one part, and William Midgley of the other part, whereby John Wadsworth and Edmund Wadsworth, in consideration of 300%., conveyed to William Midgley, his heirs and assigns, all that messuage, dwelling-house, or tenement, then occupied as a publichouse, with the brewhouse, necessary house, yards, gardens, and appurtenants thereunto belonging, called or commonly known by the name of the New Delight; together with all houses, outhouses, edifices, buildings, folds, yards, backsides, fronts, frontsteads, ways, paths, passages, waters, water-courses, (particularly as the same then ran to the said messuage or dwelling-house and premises from the lands of the said estate called Murgatshaw), easements, liberties, privileges, hereditaments, and appurtenances whatsoever, to the said messuage, dwelling-house, or tenement and premises belonging or in anywise appertaining, to hold to the said William Midgley, his heirs and assigns, for ever.

Others of the deeds bore date August 25th and 26th, 1825, and were made between John Wadsworth and Edmund Wadsworth, the testator, of the one part, and Thomas Horsfall, of the other part, whereby John Wadsworth and Edmund Wadsworth, in consideration of 9l. 148. 7d., conveyed