and buildings in the occupation of Lord Hampden; towards the north for five feet on Green Street; towards the west for seventy-five feet; and then towards the north for fifty feet on ground and buildings in the occupation of Mrs. Hinchliffe: to hold from the 5th of April 1824,"at which time the indenture of lease of 2d October 1728 would determine," for sixty-one years: 1838. HINCHLIFFE V. The Earl of KINNOUL. That Lord Hampden bequeathed all his leasehold estates to his wife, and died in 1830: That his wife died in 1833, and that her executors assigned to the Defendant all the pieces of ground, 1838. HINCHLIFFE V. The Earl of messuages, &c. demised by the indentures of 25th March 1791, and 24th September 1822; to hold for the said terms of twenty-nine and sixty-one years: That in 1789, and until the year 1822, the way or passage mentioned in the indenture of the 20th July 1819 had been used by the public as a thoroughfare to go from Green Street to Lees Mews, situate at the back of the messuage of the Plaintiff, and had been paved and lighted by the parish; but that, after Lord Hampden had obtained the said reversionary lease in the year 1822, he built a coach-house and stables at the south end of the passage, a little to the south of, but free and clear from, the coal-shoot in the declaration mentioned, and thereby prevented all persons from passing through the same; and also put a gate at the north entrance of the said way or passage, which gate has been usually from that time kept locked, and the key thereof, during the time of Lord Hampden, kept by his porter, in the porter's hall, and since by the Defendant or his servants: that from the year 1788, down to the time of putting up the gate, the occupiers of the messuage of the Plaintiff used the way or passage for the purpose of carrying coals from Green Street to the coalshoot, when and as the same were wanted there, the same being done once or twice in the course of each year, and also for the purpose of doing the necessary repairs to the pipes, and to the side or wall of the messuage of the Plaintiff, abutting upon the way or passage respectively, as the same were wanted-the same having been done three times since the year 1788,without any interruption whatsoever; and that from the time of putting up the gate, down to the time of refusal and obstruction by the Defendant, as aforesaid, the Plaintiff had used the way or passage for the same purposes as before, by calling at the house of the Defendant for the key of the gate, which had been thereupon delivered to him; he afterwards returning the key when the coals had been shot, and the repairs done. 1838. HINCHLIFFE V. The Earl of The question was, whether the Plaintiff had any right KINNOUL. of way over the passage between his house and the De fendant's. The case was argued in Easter term by Wilde Serjt. for the Plaintiff. The premises of the Plaintiff, and those of the Dedefendant, including the passage which separates the two, and over which the Plaintiff claims a right of way, were originally parcels of a large field, demised in 1728 by the predecessor of Lord Grosvenor to Barlow and Andrews for a term of years which expired at Lady-day 1824. The Plaintiff obtained possession of his messuage by virtue of a demise, made in 1799 by an under-lessee, of the messuage therein described, with the garden and appurtenances thereunto belonging, or usually occupied or enjoyed therewith, as the same were in the occupation of the under-lessee. This demise expired at Midsummer 1820; the interest of the under-lessee who made it commenced in 1764, and expired at Lady-day 1822. The Defendant obtained possession of the passage, and the premises adjoining on the east side, by assignment made to him in 1793 of the interests of several under-lessees, and of the original term granted to Barlow and Andrews. Under these circumstances the reversioner in fee, Lord Grosvenor, in July 1819, demised to the Plaintiff and his mother the ground on which their messuage stood, together with the messuage which they had occupied from 1799, and all and singular the appur 1838. tenances unto the said piece or parcel of ground, messuage or tenement, erections, buildings, and premises, belonging, or in any wise appertaining to hold from The Earl of Lady-day 1824 for fifty-seven years and a half. HINCHLIFFE v. KINNOUL. And, in September 1822,. demised to the Defendant the soil of the passage, and the premises adjoining it on the south, to hold from 5th of April 1824, at, which day the lease of 1728 would expire, for sixty-one years. And the question is, whether a right of way over the passage passed to the Plaintiff by the deed of July 1819. It is clear that, at Lady-day 1824, the whole of the premises erected on the ground demised in 1728 would revert to Lord Grosvenor, unfettered by any thing that had been done during the term: it was in his power to ratify or annul any dispositions made by lessees or under-lessees; and, whatever he had a right to grant in possession at Lady-day 1824, he had a right to grant in reversion at any previous period. The question therefore is, what he intended to grant by the deed of July 1819, which, being prior in date to the deed of September 1822, must be first satisfied.. First, then, being acquainted with all the circumstances, and referring to the passage in the description of the abuttals, he must have intended to pass the house in the condition in which it was enjoyed at the time: if it had been intended to contract or extend the mode of enjoyment, the deed would have pointed out in what respect. 2dly. Although, under a strict technical construction of the word appurtenances, the right of way might not pass, yet the conveyance of the messuage passes whatever is necessary to the enjoyment of it, and the special verdict finds that the use of this passage was necessary for the beneficial occupation thereof; without it the tenant could neither be supplied with fuel, nor have any proper drainage. But, 3dly. According to the principles laid down in Cholmondeley v. Clinton (a), as the word appurtenances cannot be rejected, we may inquire whether the grantor did not use it in a sense more extended than its technical mean ing. Sheppard lays it down, Touchst. 89., "When any thing is granted, all the means to attain it, and all the fruits and effects of it, are granted also, and shall pass inclusive, together with the thing, by the grant of the thing itself, without the words cum pertinentiis, or any such like words. Cuicunque aliquid conceditur, conceditur etiam et id sine quo res ipsa non esse potuit. As, by the grant of conusance of pleas, is granted the ordinary process to bring causes to judgment. By the grant of a ground is granted a way to it. By the grant of trees is granted withal power to cut them down and take them away. By the grant of mines is granted power to dig them and by grant of fish in a man's pond is granted power to come upon the banks and fish for them." But, according to Plowden, 178 a., usage may make a thing appurtenant. And in Hill v. Grainge (b), where a house was demised with all the land appertaining to it, though the Court said that land could not appertain to a house, yet it passed under these words from the intention of the parties. In Morris v. Edgington (c), a lessor, having used convenient ways over his own adjoining land during his own occupation, demised the premises with all ways appurtenant; and it was held that, unless it were shewn in evidence that there was some way appurtenant in alieno solo, to satisfy the words of the grant, it should be intended that he meant |