Barlow v Rhodes and Another
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1833 |
| Date | 01 January 1833 |
| Court | Exchequer |
English Reports Citation: 149 E.R. 471
EXCH. OF PLEAS.
S. C. 3 Tyr. 280; 2 L. J. Ex. 91. Followed, Bolton v. Bolton, 1879, 11 Ch. D. 968. Referred to, Baring Abingdon, [1892] 2 Ch. 374.
barlow v. rhodes and another. Exch. of Fleas. 1833.-The words " with all ways, thereto belonging, or in anywise appertaining " in a conveyance, will not pass a way not strictly appurtenant, unless the parties appear to have intended to use those words in a sense larger than their ordinary legal sense.-Qucere- Whether such intention can be collected from any thing dehors the deed, as, from a plan of the premises marked on particulars of sale referred to in the deed. Semble-Not. [S. C. 3 Tyr. 280; 2 L. J, Ex. 91. Followed, Edton v. Bollon, 1879, 11 Ch. D. 968. Keferred to, Baring v. Abingdon, [1892] 2 Oh. 374. J This was an action of trespass for breaking and entering the plaintiff's close, and pulling down hia wall, at Wetherby, in Yorkshire. The defendants pleaded several special pleas, of which only the third and seventh were relied upon at the trial. The third plea justified the trespasses, under a claim of a right of way over the locus in quo, under a grant from the Duke of Devonshire, when owner [440] in fee. The seventh pica claimed a right of way of necessity. The replications traversed these rights. It appeared upon the trial before Bollarid, B., at the last Summer Assizes for the county of York, that the Duke of Devonshire, being the owner in fee of the town of Wetherby, put it up to sale by auction, in lots, in October, 1824. At that sale, a Mrs. Dawsoti, under whom the defendants claimed, became the purchaser of the Blue Anchor public-house and back premises, being lot 24; and the plaintiff became the purchaser of lot 20, consisting of a dwelling-house fronting the street, with a yard, back premises, and garden behind, [n lithographed flans exhibited at the sale, the gateway between the two properties towards the street, and over which the right of 472 BARLOW V. RHODES l C. a M. 441. way in question was claimed, was excluded from both lots by strong black lines, as in the subjoined plan : W. Garden. Cd tr1 ej O ffi o so H ffi Ash Hole. 7 Yard, &c. H bo p Dn idling House. Street. Street. [441] The Duke conveyed the Blue Anchor to Mrs. Dawson in fee, by indentures of lease and release, dated the 12th and 13th April, 1825, together with "all ways, roads, rights of road, paths, passages, &c., to the said hereby conveyed premises, or any part thereof, belonging, or in anywise appertaining." This conveyance was registered the 28th June, 18'35. By indentures of lease and release of the 25th and 26th May; 1825, the Duke conveyed to the plaintiff in fee, the messuage, yard, garden, &tt, forming lot 20, and also the gateway in question, by the description of " the road and gateway, and the ground and soil thereof, at the south end of the messuage, excluding all other persons from every right whatsoever in, to, or over the same road, gateway, and ground, and every part thereof." This conveyance was registered the 16th January, 1826. It further appeared at the trial, that Mrs. Dawson, at the time of the sale and conveyance, was tenant to the Duke of the whole of lot 24 : that a part of that lot, at the north-east corner of the Blue Anchor, next to the gateway (which at that time was used by Mrs. Dawson as a kitchen to the Blue Anchor, Mrs. Dawson having made an internal communication between them when she became occupier of the whole), had been formerly occupied by an under-tenant as a cottage and distinct tenement; and that such separate occupation was put an end to in 1818 or 1819, under a general order from the Duke against urider-tenancies. The gable end of the Blue Anchor had no door or window into the gateway, hut the cottage or kitchen had a door into the gateway, and the tenants used the road from that clour down the gateway into the street, particularly while that part of the property was occupied as a separate tenement, the gateway being then the only way to it. There wi|s also an ash-hole behind the cottage or kitchen; and the tenants of the Blue Aijchor, and of the cottage, while it was a distinct tenement, used the gateway as a foad to [442] the ash-hole for the purpose of depositing their ashes, but nothing separated the ash-hole from the rest of the yard behind the...
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