1838. HINCHLIFFE บ. the ways used, and that they should pass, though he miscalled them appurtenant. In Plant v. James (a), Clements v. Lambert (b), and The Earl of Barlow v. Rhodes (c), the Court would apply only the KINNOUL. strict sense to the word appurtenances; but there was in those cases no proof of any intention that the grantors meant to apply it in any other sense: here, the Plaintiff is required, by the deed of 1819, to keep the messuage in repair, which he could not do on the east side unless he had an approach by this way. Sir W. W. Follett for the Defendant. The case for the Defendant is so plain as to be scarcely susceptible of argument when the dates of the leases are ascertained. The interest of the under-lessee, from whom the Plaintiff took his messuage in 1799, expired seven days before Lady-day 1822. The original lease of the soil of that messuage, and of the adjoining passage, expired at Lady-day 1824, and, as to the passage, at least, was assigned to the Defendant's predecessor in 1793. So that there were at least two years, from 1822 to 1824, during which it does not appear on the special verdict that the plaintiff had any interest in the messuage in respect of which he claims the right of way; at all events he was no more than tenant from year to year; and any such right belonging to the under-lessee expired with his lease in 1822. Then, at Lady-day 1824, any right of way belonging to the original lessee, or his assignees, was destroyed by the unity of possession accruing to the reversioner, Lord Grosvenor. And it was not till Lady-day 1824 that the lease of (a) 5 B. & Adol. 791. (c) 1 Cr. & Mee. 439. July 1819, under which the right is now claimed, was to commence and take effect. Accordingly, in 1822, the Defendant, as he was en 1838. HINCHLIFFE V. KINNOUL. titled to do, closed the way by a door, of which the The Earl of Plaintiff borrowed the key when he had occasion to lay in coals; thereby acknowledging the Defendant's right to exclusive possession. But it does not appear, even on the deed of July 1819, that there was any intention to pass a right of way: this is not pleaded as a way of necessity; and the way was not necessary, for the Plaintiff might have opened a shoot into his coal-cellar from the street on the north side of his house: the deed contains no grant of the way; and, though a way may pass where a deed discloses an express intention to that effect, it can never pass under the word appurtenances; Clements v. Lambert; Plant v. James. In Morris v. Edgington, which was doubted in Barlow v. Rhodes, the words were ways appurtenant," not "appurtenances." The decision in Dyer turned expressly on 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. (a) 66 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 purposes 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 (a) 1 B. & P. 371. 1838. HINCHLIFFE V. The Earl of 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 KINNOUL. 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 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 rests 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 1838. HINCHLIFFE 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 fifty-seven years and a half, from thence The Earl of 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 efflux 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 messuage 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 v. KINNOUL. 1838. 1820. By this lease the executors of the said Mary Forrester had demised the messuage and dwelling-house, HINCHLIFFE therein described, being the messuage in question, with The Earl of the yard or garden and appurtenances thereunto belongKINNOUL. ing, or usually occupied or enjoyed therewith, as the same v. 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 Ladyday 1824, on which latter day, and not until that day, the Earl's right to the actual possession would com mence. 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 sublease granted to Gray and Brown, so far as related to the passage in question, and certain other parts of the |