The diversion of watercourses or in jury to their banks so as to cause inunda tion are nuisances against which a court of equity will protect parties by injunc tion; and if there be a question as to the right to the flow of wat:r, an issue will be directed to try it. Although a court of equity will not in terms decree the banks of rivers, watercourses, or naviga ble canals to be repaired, the effect of such an order may he obtained by an order that parties shall not be at liberty to use them while out of repair, or against their impeding the use of them by the obstructions consequent upon a state of disrepair. An injunction may also be obtained against conducting the water from one man's tenement upon that of another to his injury by drains or other wise, in a manner in which it has not been accustomed to flow. And it may be laid down generally, that, with respect to water and watercourses, the aid of a court of equity may be obtained for the purpose either of restraining injury or of quieting possession. (Fonblanque, On Equity.) WAY, Chimin (from the French Che mil), is a term used to denote either right, in one person or more, of passing over the land of another, or the space over which such right is exercisable. In the former sense a way is an incorporeal right of the class called EASEMENTS.
There are five kinds of way :-1, A foot way, for persons passing on foot only; 2, a horse-way, for persons passing on horse back, but including a foot-way; 3, a drift-way, for driving cattle ; 4, a car riage-way, for leading or driving carts and other carriages, always including a foot and horse-way, and usually, but not necessarily, including a drift-way ; 5, a water-way for ships and boats. [Myra.] All these may be either private or public ways. Private ways are enjoyed by particular persons or classes ; public ways are open to all persons ; hence such a way is said to be communis strata, or aka via regia—in the language of plead ing, a common and public queen's high way.
I. The proper origin of a private right of way is, a grant from the owner of the soil.
Such a grant may be made to a party, or to him and his heirs in gross ; t. e. without respect to any land or house of which he may be the owner or occupier: or to the grantee, his heirs, and assigus, being owners of such a house or close; in which case the right granted will be appurtenant to the house or close to which the grant is annexed, and the right will pass with the house or close.
The grant of a way may be either ex press or implied; and in the case of an express grant, the grantor may impose such restrictions upon his grant as he thinks proper. If a man at the time when he conveys part of his laud to an other, has no access to the land conveyed, except over the land which he reserves, the grant of a right of way over the land reserved is implied. If a man conveys
part of his land, and has no access to the part reserved, except over the land con veyed, a right of way over the land con veyed is impliedly reserved. The way so impliedly granted or reserved is called a " way of necessity." Where no deed can be produced where by a way is expressly or impliedly ere ated, the party who claims the way may, in the case of a long-continued user of the right without evidence of commence ment or interruption within the period of legal memory, plead that it has been im memorially enjoyed by him and his an cestors in the case of a way in gross, or by him and all those whose estate he has, in the house or close to which the way is annexed, in the case of a way appendant (i. e. immemorially appurtenant).
Until lately also, a lost grant would be presumed in ordinary cases, after an un interrupted and unexplained user of 20 years. The rule of law as to prescrip tion for ways is settled by 2 and 3 Wm. IV. c. 71, § 2. [PRESCRIPTION.] A grant of a right of way made by a person who has only a limited estate in the land over which the way passes, is effectual only during the continuance of the estate of the grantor. If a claim to a right of way is set up in respect of the 20 years' or the 40 years' enjoyment mentioned in the statute, if it appear that the land over which the right is claimed has, during the whole or part of the 20 or 40 years, been in the occupation of a party who had a limited estate in such land, not only is no right of way acquired against the reversioner, but no right whatever is gained by the user. (4 Tyrwh. 552 ; 1 Cro. M. & R., 217.) As to the construction of this act, see 6 N. & M. 230 ; 4 Ad. & Ell. 369: 11 Ad. and Ell. 688. 788.
The party to whom a private road is allotted under the general enclosure act, has a statutory right of way.
If the party entitled to a way becomes the owner of the land over which it passes, the right of way is extinguished if the party has the same extent of interest in the land and in the way. But if the one be held for an estate different in extent of duration from the other, the right is only suspended during the union of the two interests. Even where a right of way is extinguished by unity of posses sion, it will, in some cases, revive upon a severance of that unity, as by partition among parceners, &c. A private right of way may also be extinguished by a deed of release executed by the party who is entitled to such way ; and such a release may be presumed from a non-user for 20 years or from a declaration made by the party that he has no such right.