Pheysey and Sarah, his Wife v Richard Vicary
| Jurisdiction | England & Wales |
| Judgment Date | 06 February 1847 |
| Date | 06 February 1847 |
| Court | Exchequer |
English Reports Citation: 153 E.R. 1280
IN THE COURTS OF EXCHEQUER AND EXCHEQUER CHAMBER
Referred to, Cuthbert v. Robinson, 1882, 51 L. J. Ch. 241; Phillips v. Low, [1892] 1 Ch. 47.
1280 PHEYSEY V. VICARY 16M.&W. 484- [484] vacation sittings after hilary term. pheysey and sarah, his Wife v. richard vicary. Feb. 6, 1847. - A., being a termor of land, built two houses on it. The whole was then released, to him in fee, " with all ways, easements, advantages, and appurtenances thereunto belonging, or therewith usually used, leased, held, occupied, or enjoyed." By his will, he devised one house, and the appurtenances thereunto belonging, to B., and the other to C., in similar terms. During A.'s ownership of both, the entrance from the high road to the principal door of the house afterwards devised to B., was by a set-out carriage drive or sweep, entering from a high road, passing immediately in front of the house afterwards devised to C., to B.'s door, and then returning round an oval garden in front of C.'s house, but at a greater distance from it, to the same point of entrance. B.'s house had a coach-: house opening only into the high road, and a back entrance into the same. After A.'s death, C. made a fence across so much of the carriage drive as passed immediately in front of his house, and across the oval garden, leaving the further way to B.'s front door by the same carriage drive open. B. brought trespass, claiming the way as appurtenant to his house and garden : - Held, first, that the way, as used in A.'s time, during the unity of ownership in him, immediately in front of C.'s house, did riot pass to B. with the house devised to him, under the word "appurtenances" in A.'s will; and secondly, comme semble, that it did not pass as a way of necessity, whether taken in the strict sense, or as a way without which the most convenient and reasonable mode of enjoying every part of B.'s premises could not be had. - Semble, nothing of absolute necessity to a building, e.g. a gutter in alieno solo, to carry off water, &c., is extinguished by unity of ownership. [Referred to, Cuthbertv. Robinson, 1882, 51 L. J. Ch. 241 ; Phillips v. Low, [1892] 1 Ch. 47.] Case for disturbance of a way. The declaration stated, that the plaintiffs were lawfully possessed of a certain messuage and garden thereunto belonging, with the appurtenances, in right of the said Sarah, and by reason thereof ought to have a certain way from and out of the said messuage and garden unto and into a certain close in the parish of D., in the county of D., and from and out of the same close unto and into a certain common highway leading from the Exeter-road to Queen street, in the county aforesaid, and so back again from the said common highway unto and into the said close, and from and out of the same unto and into the said messuage and, garden of the plaintiffs, for themselves and their servants, on foot, and with horses and carriages, to go, return, pass, and repass, every year, at all times of the year, at their free will and pleasure, "as to the said messuage and garden, together with the [4S5J appurtenances of the plaintiffs thereto belonging and appertaining ; " yetthe defendant placed boards and dug a ditch acrosa the said way, and by so doing obstructed and stopped up the same ; by means whereof the plaintiffs were hindered from using and enjoying the same. Pleas, 1. Not guilty ; 2. A denial of the right of way, as to the messuage and garden, with the appurtenances, of the plaintiffs belonging or appertaining. Issues thereon. At the trial, at the last Devonshire assizes, before Erie, J., it appeared, that, on 9th: April, 1812, A. Vicary the younger, being seised in fee, bargained, sold, and demised to A. Vicary the elder, part of Long Close, in the parish of Dawlish, for 500: years. By lease and release, respectively dated on 17th and 18th December, 1827, A. Vicary the younger, reciting that A. Vieary the elder had built two houses on the above piece of land, conveyed all the remainder and reversion of and in all the said premises demised by the said indenture of 9th April, 1812, to A. Vicary the elder, "together with the said messuages or dwelling-houses and offices which the said: A. Vicary the elder had so erected and built thereon as aforesaid ; all which said hereditaments and premises were then in the possession of the said A. Vicary the elder, his tenant or tenants ; and all houses, ways, easements, advantages, and appurtenances thereto belonging, or therewith usually used, leased, held, occupied, or enjoyed ; to hold the said remainder and reversion of and in the aaid premises, with 16 M. & W. 186. PHEYSEV V. VICARY 1281 the appurtenances, unto and to the use of the said A. Vicary the elder, his heirs and assigns for ever." By will of 23rd October, 1827, A. Vicary the elder gave, devised, and bequeathed all his freehold hereditaments in West Teignmouth, Dawlish, and elsewhere, in the county of Devon, with their respective rights, members, and appurtenances, unto W. Tapley and his heirs, to the use of A. Vicary the younger, for life ; remainder to the use of W. [486J Tapley and his heirs during the natural life of A. Vicary the younger, in trust to support the contingent remainders; and from and after the decease of A. Vicary the younger, as to, for, and concerning all that freehold messuage or dwelling-house, with the garden in front and on the west...
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