Opinion
(1793.)
In case. The plaintiff declared that on the 11th of October, 22 Jac., he was possessed of a term depending of the Rectory of Markham in Barks, of which a curtilage was a parcel, in which curtilage there has been a watering place, time, etc., where all those who were seized of the rectory, their tenants and lessees used to water their cattle, etc., and that the water flows from such a stream and runs over the hop yard of the defendant to the watering place in the curtilage aforesaid, and that the defendant, knowing this, filled and stopped the aqueduct with dirt and stones, and erected a wall thereon, to the damage of the plaintiff. The defendant says that 38 H., 8, the King was seized of the manor of M. and of this rectory, as well as of this hop yard, and being so seized, granted it to one Box, viz., the hop yard, in fee; and that Box being so seized, one Seal entered and enfeoffed the said Piggot, the now defendant, who being so seized, erected the said wall in the hop yard, as well he might, etc. Whereupon the plaintiff demurred. The question was, whether, by this unity of possession, the water course was extinct.
Bucksdale held it was not, for it is a thing of necessity. He cited 4 Rep., 26. Benedicta est expositio quando res redimitur a destructione. Rent shall be extinct by unity, and so shall be a way. 14 H., 7. For they have no existence during the unity, and therefore they are gone. But it is otherwise of a thing which exists notwithstanding the unity. 12 H., 7, 4. Praecipe of a water course ought to be pro una acra aqua coopert. In 6 Jac., B. R., Chaloner and Moor. It was adjudged that an ejectione firmae does not lie for a water course, for it is not a thing stable, but always moving; *and is also a thing of necessity. Here it is a thing distinct from the land, as in 12 H., 7, in the case of a gutter. The other exception was that the action is brought against Piggot and two others, who justify by the command of Piggot; but there is no answer by Piggot. To which it was replied that the commander is a trespasser. Piggot has no title to the water course, for a grant from H. 8 to Box is pleaded, whereby Box was seized, and being so seized, one Seal entered and enfeoffed Piggot and two others, and he does not say that Seal ousted Box, so for anything that appears here, Box is yet seized and the feoffment does not imply an ouster. There was a case in the Common Bench, Cook v. Cook, in dower: the defendant pleaded entry since the last continuance, and because he did not plead ouster of the tenant, it was held to be no plea.
On another day WHITLOCK, J., concurred. But
It is not material whether the defendant has a title to the hop yard or not.
A way shall be extinct. But distinguendum est, whether it is a way of ease. If it is, it shall be extinct; but otherwise if it is of necessity. A fence shall be extinct, for it is not of necessity, because in the beginning there were no fences. 11 H., 7, 25; 4 Rep., Terringham's case; 22 E., 2; Br. Extinguishment; 11 Dyer, 295; Jones, 145; 3 Bulstr., 339; Noy, 84; Poph., 166; Bendl., 188; 1 Roll., 936; Palm., 444; Hut., 110; Vin., 90; Vin. Entr., 355.