Hewlins against Shippam

[221] hkwlins against shippam. 1826. Declaration stated, that one A. was seised in fee of a messuage or inn, and yard thereto adjoining, and by indenture demised the same to the plaintiff for a term of years, which was undetermined; that defendant was possessed of a certain other yard next to and adjoining the premises of the plaintiff, as tenant thereof to A. B.; and that the defendant and his landlord granted to A., his heirs and assigns, licence and authority to make and construct, at the costs of A., a certain gutter or drain from and out of the said messuage or inn, into and across, and out of a certain part of the yard of the defendant, unto and into the yard of the plaintiff; and that A., his heirs, and assigns, and his farmers and tenants, occupiers of the messuage and yard, should have the foul water collected in the scullery of the said messuage or inn, to run and flow from and out of the same, through and along the said gutter or drain, into, upon, over, across, and out of the said part.of the yard of the defendant, unto and iijto the yard of the plaintiff, for so long time as need and occasion should require for the convenient occupation of the messuage or its appurtenances. Breach, that defendant, without notice, obstructed the drain. 5B.&C.222, HEWLINS V. SHIPPAM 83 Another count stated the grant to be for so long time as the defendant should be and continue in possession or occupation of the said last-mentioned land, or so, long as the same should be requisite for the convenient occupation of the messuage. It appeared in evidence that the licence to construct and continue the drain was by parol: Held, that as the right claimed in the declaration was a freehold right, assuming that it was an easement only upon the land of another, and not an interest in the land, it could not be created without deed. [S. C. 7 D. & E. 783 ; 4 L. J. K. B. 0. S.'^41. Referred to, M'Manus v. Coole, 1887, 35 Ch. D. 688. Considered, Metropolitan Eailway v. Fowler, [1892] 1 Q. B. 180; [1893] A. C. 416. Applied, Aldin v. Latimer, [1894] 2 Ch. 448.] Declaration stated, that on the 1st January 1820, at, &c. one W. Humphrey and one E. Humphrey were seised in their demesne as of fee, of and in a certain messuage or inn, and yard thereto adjoining, with the appurtenances, situate at Chichester, and being so seised, they the said W. and E., by indenture, did demise the said messuage or inn, and yard, with the appurtenances, to the plaintiff, habendum for a term of years in the indenture mentioned, by virtue of which said demise the plaintiff entered and became possessed for the term, to wit, &c. It then stated, that defendant, to wit, &c. was possessed of a certain other yard, with the appurtenances, situate and being at Chiehester aforesaid, next to and adjoining the premises of the plaintiff, as tenant thereof, to one E. Wills, the reversion belonging to E. Wills; and the said William and Edward being so as aforesaid seised, and the said defendant being so possessed of the said other yard, with the appurtenances, the reversion of and in the [222] same belonging to said E. Wills, afterwards, &c. the said defendant did give and grant, and the said Wills did give, grant, and confirm unto said William and Edward, their heirs and assigns, licence and authority to make and construct, at the proper costs and charges of said W. and E., a certain gutter or drain from and out of the said messuage or inn, into and upon, over, across, and out of a certain part of the said yard of said defendant, unto and into the said yard of the plaintiff; and that said W. and E., their heirs and assigns, and their farmers and tenants, from time to time and at all times in future, occupiers of the said messuage or inn, and yard, with the said appurtenances, should have the foul water (from time to time collected and being in a certain part, to wit, the scullery of the said messuage or inn,) at all times to drain, run, and flow from and out of the same, through and along the said gutter or drain, into, upon, over, across, and out of the said part of the said yard of the said James Shippam, unto and into said yard of plaintiff, for so long time as need and occasion should require, for the convenient occupation of the messuage or inn, with the appurtenances. That said W. and E., confiding in the said licence and authority of said James Shippam and said Wills, did duly make and construct, at their own proper costs and charges, such gutter or drain as" aforesaid, from and out of the said messuage or inn, into" and upon, over, across, and out of the said part of the said yard of said defendant, unto and into the yard of the plaintiff, according to the true intent and meaning of the said licence and authority so given, granted, and confirmed; and said W. and E. necessarily expended, &e. a large sum of money in and about the making and constructing of the said gutter or drain, of which said [223] premises the defendant had notice. Breach, that the said defendant not having given any notice to the said W. and E., or the plaintiff, or either of them, or made or offered...