HYNDMAN-JONES J

In this case, three points were raised for the defence; firstly, priority of the Assignments to the Plaintiffs' and Defendant's predecessors in title:- secondly, that it was not the Defendant who interfered with the right of way:- and thirdly, that the Plaintiffs' claim was barred by the Statute of Limitations.

Incidental to the second point, the question of course arose, as to whether there was any right of way at all.

Dealing with the point as to priority first.

The Defendant pointed to a certified copy of the transfer by GREENSHIELDS dated 31st December, 1866, to TAN HOCK ENG, the Defendant's predecessor in title, and argued that the conveyance by GREENSHIELDS to the Plaintiffs' predecessor in title, being under date the 21st January, 1867, the Defendant clearly had priority: moreover, said the Defendant, the correctness of the date (viz., the 31st December, 1866) is further evidenced by the fact that in the recitals and covenants to the deeds of 8th August, 1882, 30th November, 1882, 30th January, 1883, the Executor of TAN HOCK ENG, since dead, who executed them, referred to this transfer as of that date, and to GREENSHIELD'S lease as of the 31st December, 1866. On the other hand, the Plaintiffs produced the record book of these leases, and pointed to GREENSHIELD'S lease of 1639 as bearing date the 25th January, 1867, and (the Defendant not being able to produce the original lease,) they claimed that it was established that the date of his transfer was wrong. It is true that there are apparently errors and corrections in the Record book with respect to other leases, but I cannot hold that these absolved the Defendant from the obligation to produce the original lease, which was part of his title, when the transfer to him was so distinctly impugned. It is not as if the Record book referred to were merely a record of these Government leases; the lease of 1639 to GREENSHIELDS, in the book, purports to be signed by GREENSHIELDS himself and the only way to satisfactorily rebut the presumption that GREENSHIELD'S lease shows anything else than what the Record book shows, was to produce the document, and this the Defendant has, unfortunately, been unable to do. I am therefore of opinion that the Plaintiffs must be taken to have the priority.

The next question to consider is whether the Plaintiffs have shown that 1639 is subject to a right of way. The contention was, that that right of way was established, (I) by the deeds, (2) by user.

As to (I), the words in the assignment by GREENSHIELDS to WHAMPOA are as follows: - "with all other the rights, members, easements and appurtenances thereto:" and the question is, whether those words are sufficient to pass the right of way. It is important to remember, that a right of way of this kind is not what is known as a "continuous" easement: further, that the first evidence we have of the right of way being used at all, was during the ownership by GREENSHIELDS of the two portions of land. The cases which were more particularly cited on this branch of the case were, Thomson v. Waterlow [1868] 6 Eq. LR 36, Langley v. Hammond [1868] LR 3 Ex. 168, Watts v. Kelson [1870] LR 6 Ch. App. 166, Kay v. Oxley [1875] LR 10 QB 360, Bailey v. Great Western Railway Co. [1883] 23 Ch. Div. 434. For some time before 1868, the possibility of granting easements, by general words of any kind, was confined to easements existing before unity of possession, and the words used must have been "apt words," such as "therewith used and enjoyed," as opposed to such words as "appertaining or belonging" - per Baily, B., in Barlow v. Rhodes [1833] I C & M 448, Lord Lyndurst, C.B.: Bailey, Bolland, Gurney B.B., forming the Court. While on the other hand, those quasi easements, which only come into existence during the unity of possession, could not be granted by such words at all. And in the case of Kelly v. Hammond, Kelly CB said, "Since it does not appear here that at any antecedent "time there