to pass by implication. The rule is commonly stated to be, that the grantor conveys by his deed, as an appurtenance, whatever he has the power to grant, which is practically annexed to the granted premises at the time of the grant, and is necessary to their enjoyment in the condition of the estate at that time."

The cases of Suffield v. Brown and Carbrey v. Willis have been approved, and followed by the Supreme Court of Maine, in Warren v. Blake.1

It is apparent that no case supports the doctrine of the disposition of the owner of two tenements to its fullest extent. It has been rejected as to ways. The only case to be found, which would seem to favor its application to lights, is Mr. Justice Troysden's dictum in Palmer v. Fletcher. That was denied by Lord Holt soon afterward. As reported in Lord Raymond, in Tenant v. Goodwin, that great judge said of this case: "If he had sold the vacant piece of land and kept the house, without reserving the benefit of the lights, the vendee might build against his house. But in the other case, where he sells the house, the vacant piece of ground is by that grant charged with the lights." 2 It will be remembered that in Palmer v. Fletcher, the lights were essential to the house. The same distinction is stated more in the form of a doubt in the Modern Reports. Mr. Gale said of it, that this opinion of Lord Holt "was probably founded on the civil law, whereas the doctrine of the English law is of French origin." We are constrained to regard Lord Holt as the better authority, and his opinion, as reported by Lord Raymond, was adopted by Baron Channell, in White v. Bass, in the court which has looked with most favor on the French doctrine. It is certain that no such rule as regards lights will ever be adopted in this country.

We think the result of the cases is this: the doctrine of the disposition of the owner of the two tenements, imposing servitudes upon their severance, has not been applied by courts to other than permanent continuous easements, like drains, conduits, and aqueducts. In all these latter cases, previous to 1839, the easements were sustained, either upon the ground of actual necessity for the enjoyment of the principal grant, or of their being de facto annexed as an appurtenance or as parcel of the dominant estate. Since then, while many judges have seemingly approved the theory

1 54 Maine, 276.
8 6 Mod. 314.

2 2 Ld. Raym. 1093.

4 7 H. & N. 722.

of the French law, they have only applied it to those cases in which the easement was of such a character that it might be regarded under some circumstances as appurtenant to or parcel of the dominant estate, and have rejected it in others.1

Now we think this is rejecting the entire doctrine. If the destination du père de famille has any applicability at all in our law, we do not see why it should not apply to ways and lights, and to such easements as that claimed in Suffield v. Brown, as well as to drains. The truth is that the whole derivation of our law from this, is as Lord Westbury said, a mere fanciful analogy. Of course, the rights of an owner of property to stamp almost any character upon it, and to impose this as a burden upon it, in whosever hands the property may come, is unquestionable. But he must do this by means recognized by the common law. He may accomplish this, either by such an arrangement of the property that the easement is an actual and vital necessity, as in the case of mutual support, or by making the easement actually part and parcel of the premises, or by proper grant or reservation in the deeds of conveyance. But if we go beyond this, we shall find ourselves bewildered by difficulties, which the principles of our law do not remove. All rules of conveyance, and of evidence will be undermined, and infinite confusion follow attempts to remedy by principles borrowed from foreign codes, inconveniences arising from omissions and blunders of parties to conveyances.

The whole duty of the court in these cases is to give effect to the intention of the parties. In all questions arising under deeds .and written contracts, it has always been the policy of the law to look for this intention in the instrument itself. In the case of an easement like a drain, where the owner of the dominant and servient estate sells the latter, his omission to take notice of the drain, would seem to be the best evidence of his intention to abandon it. He can abandon it if he wishes to, and it is a new principle to make it necessary for his grantor to show actually that he did abandon it by express words, instead of throwing the burden upon the grantor to prove that he did not, and to show some reason why his deed shall not have its ordinary effect. If the drain is actually parcel of the premises retained, of course it is not conveyed away any more than the premises themselves are; if it is of actual necessity, the law will not presume that the owner 1 Lord Romilly's judgment in Suffield v. Brown is an exception.

intended to part with it, without something more than the ordinary conveyance of the servient estate, as evidence of such intention. But this latter principle, even in the case of landlocked estates, was adopted after much doubt and with some reluctance, and it is certainly difficult to reconcile it with the old principles of the common law. Farther than this, it is not necessary to go, and is not safe to go.

EXCHEQUER CHAMBER.

Nov. 26 AND 27, 1868, AND MAY 10, 1869.

(Before KELLY, C. B., KEATING, BYLES, and M. SMITH, JJ.; BRAMWELL and CHANNELL, BB.)

REDHEAD V. THE MIDLAND RAILWAY COMPANY.

There is no contract either of general or limited warranty and insurance undertaken by a carrier of passengers. He contracts and is obliged only to take due care, including in that term the use of skill and foresight, to carry the passenger safely, and negligence alone is a breach of this contract.

"Due care" means a high degree of care, and casts on carriers the duty of exercising all vigilance to see that whatever is required for the safe conveyance of their passengers is in fit and proper order. But this duty will not make carriers responsible for injuries to passengers arising from a latent defect in the machinery they are obliged to use, which no human skill or care could either have prevented or detected.

Semble, that even in the case of common carriers of goods, there is no warranty on the part of the carriers that their carriages are roadworthy.

In this case, the declaration alleged that the defendants were carriers of passengers by railway, from Nottingham to South Shields, for reward, and that the plaintiff became their passenger, to be safely carried by them as such carriers, in a certain train of carriages from Nottingham to South Shields aforesaid for reward; that the defendants managed and conducted the train so negligently, and took so little and such bad care in providing a proper and safe carriage, and were so careless and negligent in examining from time to time the wheels of the carriage in which the plaintiff was, &c., that by reason thereof the carriage was broken to pieces, and the plaintiff injured.

Plea, not guilty.

The case was tried before LUSH, J., at the Durham Spring Assizes 1866, when it appeared that the plaintiff took a second-class ticket as passenger from Nottingham to South Shields, on the 4th of May, 1865, and travelled by express train. During the journey the carriage in which the plaintiff was ran off the line, broke away from the first part of the train, and rolled over, thereby severely injuring the plaintiff. On the part of the railway company, it was proved that the accident was caused by the giving way of one of the wheels of the carriage in which the defendant was, NOTE. This case is reprinted from the "Law Times Reports," New Series, vol. 20, p. 628, where the arguments are given more at length than in the "Law Reports."

owing to a defect in the welding of the tire, caused by an air-bubble; that the defect was not discoverable by the eye or the ear; that the wheels were examined during the journey, in the usual way, by inspection and sounding them with a hammer; that the tire of the wheel in question was of the usual thickness, and that such defects might exist without any fault on the part of the manufacturer.

The learned judge left it to the jury to say whether there was any evidence of negligence on the part of the defendants in not detecting the fault in the wheel, or whether the accident was not one of those to which all are subject, in which, though injuries arise, no one is chargeable in law for the consequences; and he directed them that if the defect in the wheel could not be detected either by the eye or the ear, then there was no negligence on the part of the defendants. The jury found a verdict for the defendants. A rule nisi having been obtained for a new trial on the ground of misdirection, Aspinall, Q. C. and Kemplay, on the 20th June, 1866, showed cause against the rule, Manisty, Q. C. and T. Jones arguing in support of it. The majority of the Court of Queen's Bench (MELLOR and LUSH, JJ.) discharged the rule, BLACKBURN, J., dissenting and being of opinion that there is an obligation on a carrier of passengers to provide, at his peril, a vehicle in fact reasonably sufficient for the journey, and that he is responsible for the consequences of any insufficiency, though arising from a latent defect. (See the case reported in the court below, 16 L. T. Rep. N. s. 485.) This judgment was appealed against, but the appeal was subsequently abandoned, and a special case raising shortly the point for decision was stated as follows:

The action was brought by the plaintiff to recover damages from the defendants for injuries sustained by him whilst travelling as a passenger by railway from Nottingham to South Shields, in consequence of negligence alleged to have been committed by the defendants. The plaintiff took a second-class ticket, and the carriage in which he was travelling got off the line and was upset, and the plaintiff received injuries therefrom. The cause of the carriage getting off the line and upsetting was the breaking of the tire of one of the wheels, and such breaking arose from a latent defect in the tire, which was not attributable to any fault on the part of the manufacturer, and could not be detected previously to the breaking of the tire. The question for the opinion of the court is whether the plaintiff was entitled to recover in the action.

The Court of Queen's Bench, without hearing arguments on the special case, gave judgment for the defendants, and on this judgment, error was now brought.

Nov. 26 and 27, 1868. — Manisty, Q. C. (with whom was C. Crampton) for the plaintiff. The question is whether a carrier of passengers for