A way of necessity is limited by the necessity out of which it has arisen. If the party to whom such a way is im pliedly granted, or by whom it is im pliedly becomes entitled to some other access to his land, equally direct, the way of necessity is gone.
The particular rights of the grantee of a private way continue to exist not withstanding the owner of the land may have dedicated it to the public as a high way.
By the general enclosure act (41 Geo. III. c. 102) all roads, private as well as public, within the district, not set out by the commissioners, are declared to be ex tingidshed.
The grantee cannot throw the burthen of repairing the way upon the grantor unless by the terms of the grant, evi denced by the deed or by user, the gran tor has engaged to enable the grantee to use the way. In the ordinary case, where the right and the liability to repair the way are in the grantee, he is not entitled to go upon the adjoining land when the direct way is impassable (4 Maule and Selw., 387); whether he may do so where the state of non-repair is caused by the wrongful act of the occupier of the land, or where the liability to repair rests upon the latter, does not appear to have been decided.
If the occupier of the land over which a private way passes, or any other per son, obstruct the way, the party entitled to the way may remove the obstruction, and he may also bring an action on the case, or, in some cases, an action of cove nant against the obstructor. On the other
hand, if the occupier of the land resisting the claim of a right of a way, bring an action of trespass against the person ex ercising the alleged right, the defendant may plead in justification a title founded upon prescription, grant, reservation, or statute.
II. Between private ways and pub lic ways stand what may be called qua si public ways, which partake of the qualities of both, but differ in some re spects from each. By some writers these are classed among private, by others, among public ways ; they seem more properly to constitute a distinct interme diate class. Such are ways which the inhabitants of a town, &c., have imme morially used from their town, &c., to a church or market. A right of this de scription cannot, in modern times, be cre ated. It cannot be the subject of a grant, inasmuch as inhabitants, as such, are not at this day capable of taking any interest by grant ; nor can it, like a public way, be created by dedication, as the dedica tion of a way can only be to the public at large. Such a right therefore can exist only as the consequence of an antient custom.