#### Surrey vs. Piggot.

Trin, 2 Car.

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, &c. where all those who were seized of the rectory, their tenants and lessees used to water their cattle, &c. and that the water flows from inch 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 flopped the aqueduct with dirt and stones, and erected a wall thereon, to the damage of the plaintiff. The defendant s lays 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, erecred the laid wall in the hop-yard, as well he might &c. 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. Pracipe of a water course ought to be pro una acra acqua coopert. In 6 Jac. B. R. Chaloner and Moor. It was adjudged that an ejectione firmæ 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. *156 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 any thing that appears here, Box. is yet seized and the feoffment does not imply an ouster. There was a case in the Common Bench, Cook vs. 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

Doderidge, J. It is not material whether the defendant has a title to the hop-yard or not.

Crew, C. J. assented. 21 E. 3. Way entinct. 36 El. rot. 1332. Two were seized of two acres, one joining the ota one made an inclosure towards the other, one person purchased both acres, and made several leases; and the question was, whether the inclosure was extinct, and he was received in the affirmative. There is a difference where something rises out of the land, as a custom of Gavelkind, by purchase, the custom remains. But presumption goes to the estate. I take also an exception to this declaration, in which a prescription to the tenants in fee is not alledged, as it ought to be. 33 H. 6. 26. As to the point in law, we all think that the water-course is not extinct.

Doderidge, J.

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. 1, Br. Extinguishment. 11 Dyer 295. Jones . 145. 3 Bulstr. 339. Noy 84. Peph. 166. Bendl. 188. I Roll. 936. Palm. 444. Hut. 110. Vin. 90. Vin. Entr. 355.