3 B. L 8.781.

BEEN U, BURNESS 281

different view, I am desirous to have it known that while I submit to them X am far
from acqujescing in them,
Rule diacbarged.

[761J I N THE EXCHEQUER

CHAMBER. .
1 3L. I w*A.34 5-*

BEHN ~9~~~~~IWH.NES~. Tuesday, February 24th, 9

I 3s. I &.E 213-
~ 6 3 . - ~ a r r a n t y . Conditioii
preaedetit. Representation. Descriptive averment. Functions of Judge arid jury.
Gonatruetior~. Pleading. Charter party. Marine itisurance.-1. It1 policies of
insuranoe and charter parties, the word I‘ warranty ” is synonymous with ‘(COU-
d i t i m Z F Per Erle GJ., Pollock G.B., ~Villiamsarid Keating JJ., and C ~ i ~ ~ r iB. ell
-2, A “representation” is a statement, or assertion, made by oiie party to
the other, before or at the time of a contract, of some niatter or circumstance
relating Ca it. Per the same Jutfges.--3. Althotigh a represen~ationi s s o ~ e t i ~ e s
conta~uedin the ~ r i t t e nj~~strume€it, it is not an integral part of the contract ;
and, consequently thc contract is not broken though the r~presentationproves to
be untrue; nor (with the exception of the case of policies of i i ~ s ~ c ~ n at c e all
,
events marine poliaies, which stand on a peculiar anomalous footing) is such
u ~ t r u t harty causa of action, zior has i t any efficacy whatever, unless the repreaen-
tatian was made frautlulently, either by reason of its beiiig made with a kttow-
ledge of ita uIitruth, or by reason ol ita being made dishoties~~y, with a reckless
ignorance whether i t was true or untrue. Per the same Judges.--Q. Whether a
deacfiptive statemefit i n s written i?istrumeiit is a mere representation or a sub-
atsative part of the contract is a qiieation of construction which the Court, and not
the jury, must d e t e r ~ i n e , Per the same Judges.-5. her) that question i s
raised by pleading, the Court may, in aid of the oonstruction, take into conaidera-
tion the surroundi~igcircumstances ; such as the circumstartces under which, and
the pur O R ~ Sfor which, the charter party was entered into : aliter if the question
B
is raise by demurrer or 011 an a~pI~catior:
Per the same Judges.-&
for judgment non obst#anteveredicto.
If the former, the question arises whether that part of
the con~racCi s a cotiditiot~precedent or only an in(1ependetit agreemexit, a breach
of which will not justify a repudiation of the contract, brit will only be a cause of
action for a compensation in damages, Per the same Judges.-’I. With respect
to statements in a contract descriptive of the subject-matter of it, or of some
material iKicident thereof, the true ~ o c ~ r i nise that, generally speaking, if the
descriptive statement was intended to btJ a substantive part of t h e contract, i t is
t o be regarded as a warranty, that is to s q - , a condition 011 the failure or non
performance of which the other part! may, if he is so minded, repudiate the contract
in toto, and so be relieved from performitig his part of it, provided i t has riot
been partially executed in his favour. IF, indeed, he has received the whole or
any rubstantial part of the cormideration far the promise on his part, the warranty
ioees tbe character of a coridition, or, to speak perhaps more properly, G&%S0S to
be a ~ ~ i ~asa a~condition,
l e and becornea a warranty in the narrower senm of the
word-vis. a stipulation by way of agreement, for the breach of which s compensa-
tion must be sought in damages, Per the same Judges.-& The position that a
st&ment of this kind in a chmter party which may be regarded as s mere
repre~entatioiiif the object of the charter party be still practicable, may be con-
etrued as a warranty, if that object, turtts out to be frustrated, denied to be law.
- Pm the same Judges.-% By ~ e ~ o r a ~ ofi dcbarter u ~ party, dated London, it
waa agreed between A. B., therein described as ‘‘ owner of the good ahip or VeSSel
called The “M.,” of 420 tons or thereabouts, [tow i n the port of Amsterdam,”
and C.D., that the said ship, beixig tight, staunch, strong, and every [?82] way
titted ant1 ready for the voyage, should, *I with all possible despatch, proceed
direct to N. In an action by the ship owner agairtst the charterer for not
loading; the agreed cargo : held, by Erle O.J.,Pollock C.B., Williams arid Keat-
ing JJ,, and Channel1 B., reversing the judgment of the Court of ~ u e e u ’ sBench.
-i. That &hewords “now i n the port of Amsterdam amounted to a warranty
or condition precedent to the costract that the ship was there at the time of
making the ~ e m o r a r i ( ~of~ mcharter-party.-ii, That the question wa8 properly
raised by a plea that a t t h e time of making the charter-party, time and the then .
282 BEEN 2‘. BURNESS 3 E. & S. 15%

situatioii of the ship were materiaf and essential parts of the contract : although
i t should seem the questioti might also be raised by plearfiirg the material circum-
stances on which the defendant relied a3 leading to the construction which the
plea sought to put on the instrumeut.
[S.C.33 L. J. Q. B. 204; 8 L. T. 207; 9 Jur. N. S. 6 2 0 ; 11 W. R. 496. Ohserva-
tions adopted, ~ ~ suI,.~ R./ ~~7 C.
~ v. ~ ~ ~ c ~~1872, , P.t 450; C ~ ~ ~ iv. n~g a ~ s e ~ ,
1873, L. R. 8 C. P. 400. F o h w e d , Oppenheirn v. F~user,1876, 34 2. T. 525;
SA@ead Nickel and Silver Plating C o n p n y v. Unwin, 1877, 2 Q. B. D. 223; Lodwwirkv.
Per&, 1884. 1 T. L. R. 76. Referred to. Irish h i i d C 0 7 t ~ V.~ ~~ ~ ~u 1891. s a~ ~~ ~ .
28 L: R. 1r: 351. See b’urmwcl v. E;dbu,’1893, 41 W. R, 193. Pririci&e&$ied;
~ ~ 3 Q.
~ ~ n v.t ~ s ~a E18931 ~ B, ~279. ~ See ~~~~~s
, v. P&t, [191O] 2 K. B. 1008 ;
[1911] A. C. 394.1

The defendant having hronght error on the judgment in this case (see the report
in the Court below, vol. 1, p. 8771, it was argued, on the 26th November, 1862, before
Erie C.J., Pollock C.B., W i ~ ~and ~ s JJ., arid Channel1 B.
i ~Keating
Honymari (Bovill with him), for the defendatit, cited Cuckhurn v. Alexander$, C. B.
791); G’ktholm v. Bays (2 M. 8 Gr. 257); Olliiie v. Rooker ( I Exctt. 416); wer v.
F&&&?L(4 Exch. 135); ~ ~ r r u h O r hv.~ aHicicie (1 H. & N. 183); Q~oockewif v. FleCher
(1 IX & N. 893) ; Eiurst v. ~ ~(18 6,~U. 144) ~f ~~ ~~ ~~ ~ (5~eExch.
~ ; C ~?u 7 ~ sv, ~ & u395) Z ;l
Bannerman v. White (10 C. E3. N. S. 844, 850) ; 17un Bicygen v. b’uincs (9 Exch. 523).
Matiiaty (Maclachlau with him), contrh, cited Freenuin v. litylor ( 8 Bing. 134);
Seeger v. Bzlthie ( 8 C. B. N. S. 48); 3 ~ i ? ~~ ~ ~r , ~ ev. ~ l a~~ e~s ~~o ~ 5 ?E.
7 ,~ ~(6 6 t& B. ~
~
675) j Glaholrn v. Bags (2 M. KS Gr. 357) ; Elliot v. Von Clehn (13 Q. B. 632) ; Dkmech Y.
c~~~~ (12 Moo. P. C. C, 199).
Honyman, in reply.
Cur. adv. vult.
[7S31 The judgment of the Court was now delivered tty
willisms J. The question in this case is, whether the statement in the charter-
party, that the ship i s “now in the port of Amster(jan1,’’ is a “re~rese~itation ” or a
“ warranty,” using the latter word as synonymous with “condition ;I’ irr which sense
it has been for many years understood with respect to policies of insurance arid
charterparties.
It may be expedient to commence the coIisideratiori of this question by some
examination iuto the nature of representations. Properly speaking, a representation
is a statement, or assertion, made by otte party to the other, before or at the time of
the contract, of some matter or circumstatice relating to it. Though i t is sometimes
contained ia the writteti instrument, it is not an integral part of the cantract ; and,
~ o r i s ~ u e n tthe t i o ~ i to be uritrue ;
l y contract is not brnkerr though the r e p ~ e s e I i ~ ~ proves
nor, (with the exception of the case of policies of insurance, a t a11 events marine
policies, which stand on a peculiar anomalous footing) is such untruth any cause of
action, nor has it any eEcacy whatever, unless the represe~itatiotiwas made fraudulently,
either by reason of its being made with a knowledge of its urttruth, or b y reason of
its beirrg made dishoriestly, with a reckless ~ ~ n o ~ a whether nce it was true or untrue.
(See xEI1liol v. Pm ‘ G l e h (13 Q. B. 633); Wheelton v. Hardisty (8 E. & B. 2 3 2 ; on
appeal, 8 Id. 285).)
If this be so, i t is di6cult to understand the distinction which is to be found in
some of the treatises, and is in some degree perhaps s~trctiotiedby judicial ~ u t h o r i t y
(see Barker, ~ p ~ e l l a n~t , ~ ~ ~i ~ l~ e , s(6 E.~& B.~675,~SSO),) ~ that~[754] e a representa-
~ ~ t
tion, if it differs from the truth to an unreasonable exterit, may affect the validity of
the corttraot. Where, indeed, the misrepreseritation is so gross as to amoutit to
suEcient evidence of fraud, it is obvious that the contract would on that ground be
voidable.
Though representatious are riot usually contained iri the written instrument of
t , they sometimes are. But it is plain that their insertion therein cannot
~ o n t r a ~yet
alter their nature. A q ~ ~ e showever t i ~ ~ ~may arise, whether a d e a ~ r i ~ t i vs et a ~ % ~ $ t i t
in the writteti instrument is a mere representation, or whether it is a substantive part
of the G o I ~ t r a ~This o i ~ the Gourt, arid not the jury,
~ . i s a quest~oriof c o ~ ~ s t r u c t iwhich
must determine. If the Court should coma to the conclusion that such a statemeritr
by one party was intended to be a substantive part of his contract, and not a mere
3 B. a. 7% BEEN 21. BUBNESS 283
represeutatioii, the often discussed question may, of course, be raised, whether thia
pact of the corrtract is a conititiorr precedent, or only an independent agreement, a
breach of which will not justify a repudiation of the contract, bat will only be a cause
of action for a oompensatioir in damages. In the coiistruction of charter parties, this
question has often been raised, with reference to stipulations that some future thirig
shall be done or &all happen, and has given rise to many nice distinctions. Thus
a stateme~itthat a vessel is to sail, or be ready to receive a cargo, on or before a given
day, haa been held to be a cordition (see ~ ~ h v.o Rays l ~(2 ~M. & (2, 257) ; Oliver v.
FiSlden (4 Exch. 135) ; Croockewit v. Retcher (1 €3. & N. 893) ; Seqer v. Duthie ( 8 C. B.
N. S. 45)), while a stipu~atio~i that she shall sail with all convenient speed, or within
a ressoiiable time, has beeu held to be orily an agreement [765] (see ~ a ~ ~ a v.~ u c h ~
Bi&e (I €3.& N. 183) ; D ~ ? ~ e cv.h C o ~ l (12 e ~ ~Moo. P, C. C. 199) ; C l ~ . s ~v. ~~~~~~e
a~
(5 Q. E. 26fi).) But with respect to statemeiits ia a coritract descriptive of the
subject-matter of it, or of some material incident thereof, the true doctrine, established
by principle as well as authority, appears to be, ~ e t i e r a l ~speaking, y that if such
descriptive statement was intended to be a SubstaIitive part of the contract, it is to
be regarded as a warranty, that is to say1a condition on the failure or noIiperfor~ance
of which the other party may, if he is so minded, r e p u ~ i a t ethe c o ~ ~ t r aio c t toto, arid
SO be relieved from performing his part of it, provided it has riot been partially
executed in his favour. If, indeed, he has received the whole or any sut)statitia~part
of the cons~deratioiifor the promise on his part, the warr~iityloses the character of
a condition, or, to speak perhaps more properly, ceases to be available as a condition,
and beoomes a warranty in the narrower sense of the word-viz., a stipulation by
way of agreement, for the breach of which a coniperrsatioti must be sought in damages
(see EQ9a v, Topp (6 Exch. 424-441), Graves I<. Legg (9 Excb. 709-716); adopting t h e
o b s e r ~ a t ~ o nofs Serjt. ~ ~ i i l i a mons the case of
~~~~ v. & y e (1 EL Ul. 273, note (a)),
in 1 Saund. 360 d., 6th ed. ; Elliot v. YOBClehn (13 &, E), 632).) Accor~i~igly, if a
specific thing has been sold, with a warranty of its quality, under such circumstances
that the ~ r o p e r t ypasses by the sale, the ven(~eehaving beeri thus berie~tedby the
partial executiou of the contract, arid become titre proprietor of the thing sold, cannot
treat the failure of the warranty us a condition broken (unless there is a special [7&]
s~pulatiotito that effect in the contract ; see ~~~~e~~~~~ v. ~~~~e (10 C. B. N. S. 844)) ;
but must have recourse to an actiou for damages in respect of the breach of warranty.
But in casea where the thing sold is not specific, and the property has not passed by
the sale, the vendee may refuse to receive t h e thiug proffared to him in performatIce
of the contract, on the ground that it does not correspond with the descriptive state-
ment, or in other words, that the condition expressed in the contract has riot been
performed. Still if he receives the thing sold, and has the enjoyment of it, he carinot
afterwards treat the descriptive statement as a cotidition, but only as an agreemetit,
for a breach of which he may bring an action to recover damages.
In the preaent case, as the defendant has not received any benefit or advantage
under the contract, hut has wholly repudiated it, the question is simply whether, in
the true construct~onof the charter party, the Court ought to infer that the statement
as to the ship's being at that; date in the port of Amsterdam was meant to be a
substantive part of the oontrsct, or a represer~~~tioti collateral to it. And this question
appear8 to be proparly raised by the ave~mentit1 the plea that time and the situatior~
of the veasel were essential and material parts of the contract. On the trial of the
issue joined thereon, it was no part of the Judge~eduty to leave to the jury any
question as to the cotistructjoIi of the contract, or the materiality of stry of its skate-
ments. It was hie furiction to construe the coritract with the aid of the surrounding
oircumstances found by the jury, and to decide for himself whether the statement that
the ehip waa in the [767] port, supposing it to be uirtrue, was an essential part of the
contract, or a mere represen~ati~11, arid to direct the jury to Etid for the deferidarit
or ptaint~ffaccordingly, The question, i t should seem, ~ ~ galso h tbe raised by plead-
ing the material circumstances (as was done i n Craves v. Legg (9 Exoh. 70911, on which
the defendant relies as leading to the construction which the plea seeks to put on the
~ s t r u m e n t . Unless one or other of these modes of pleading were adopted, the Court,
in case there should be a demurrer to the plea, or on an application for judgment non
obstante vwedicto, would be precluded from taking the surrounditi~circumstatIces
into consideratiot~in aid of the cotistru~tion.
It is plain that the Court must be influenced in the construction, not only by the
284 BEHN U , BURNESS 8 B. & J. 758.

language of the iIistrument, but also by the circnmstances under which arid the
purposes for which, the charter party was entered into. E’or instance, if i t was made
in the time of war, the national character of the vessel is of such importance, that a
statement of it in the charter party might properly be regarded as part of the ship-
owaerla contract, and ao amoiirtting to a warr~Iity;whereas, the very same statement
in the time of peace, being wholly unimportant, might well be colistrued to be a
mere r6pres6n~tion. So if i t were shewn that the charter party was made for a
purpose such that, unless the vessel began her voyage from the port of loading with
her cargo on board by a certaiii time, i t was manifest that the object of the charter
party would in all proba~ilitybe frustrated, the Court might properly be led by this
ciroumstance to conclude that a statemerit as to t h e locality of the ship, coupled with
a atipu~atiori[768] that she should sail with all cotive~IieIItspeed, was a warrar~tyof
her theu locality. But we feel a difEculty io accediiig to the suggestiori which appears
to have been, to some extent, sarictioned by high authority (see Dimech v. Corlet6
(12 Moo. P. C. C. 199)), that a statemeiit of this kitid in U charter party, which may
be regarded as a mere representatiox~ if the object of the charter party be still
p r ~ t j c a b l e ,may be coustruecl as a warranty if that object turns out to be frustrated ;
because the instrument, it should seem, ought to he construed with refererice to the
intantimi of the parties a t the time i t was made, irrespecti~eof the events which may
afterwards occur. It is true that in sonie of the cases, where the question has been
whether a stipulation iti a cbarter party amouttted to a conditioti, the Coutt decided
that qU6StiOri in the negative, and in so doing took occasion to suggest that neglect or
delay on the part of the shipowner to execute his part of the contract might be a
breach of euch an essential Sti~JuIati~ri on his part as to justify the charterer izi treating
the contrmt as brought to an end thereby, arid in refusirig on that account to perform
his part of it, and further suggested that, in decidirig whether the breach on the ship-
owner% part was of such an esseritial stipulation as that deucribed, the Court might
advert to the fact whether such breach had frustrated the whole objeat which the
charterer had in view (see f;i.eemna v, ~~y~~ ( 8 Sing. 124); ~ u r r u b ~ c hv.~ uHick&
(1 H. & N. 183); Dimech v. C‘orlett (12 Moo. P. C. C. 199, 234, 227)) But the Court
did not, we apprehend, mean to intimate that the frustratiori of the voyage would
convert a stipulation into a conditiori, if it were not originally iiiteiided to he orie.
[769] The question on the present charterparty is confi~iedto the statemerit of a
defiriite fact-the place of the ship at the date of the contract. Now the place of the
ship at the date of the contract, where the ship is i n foreign parts and is char~eredt o
come to England, may be the only datum on which the charterer can found his calcu-
lationtt of the time of the ship’s arriving at the port of load. A statement is more or
less important in proportioxi as the object of the contract more or less depends uport it,
For most charters, considering wirids, markets arid dependent contracts, the time of a
ship’s arrival to load is sti esse~itialfact, for the interest of the charterer. ltr the
ordinary course of charters iti general it would be so : the evidence for the defendant
shews i t to be actually so in this case. Then, if the statement of the place of the ship
is a substaritive part of the contract, i t seems to us that we ought to hold it to be a
condition upon the principles above explained, unless we can find in the contract itself
or the aurroundirig circumstarices reason for thinking that the parties did not so inteiid,
If i t was a coridition aiid not performed, it follows that the obligatiori of the charterer
dependatit thereon, ceased at his option and coiisiderations either of the damage to him
or of proximity to performatice on the part of the shipowner are irrelevatit. So was
the decisioti of ~ ~ v. Eqs
~ (2 M.u & GF. l %57),~where the s t i ~ u l ~ t i otit ti a charter
of B ship to load a t Trieste was that she should sail from England on or hefora the
4th February, and the rionperformarioe of this conditioii released the charterer, not-
w i t b s t a ~ i n gthe reasons alleged in order to justify the noriperforma~ce. So, iu
OtEiw v. Booker (1 Exch. 416), [760] the stateinerit in the charter of a ship which
was to load at ~ a r s e i l l e awas that she was “now at sea, having sailed three weeks
ago,” arid i t was held to be a coriditioti for the reasons above stated. Atid we would
note that the marginal abstract of this case states the stipulatiori to have beet1 havirig
e a h d three weeks a o or thereabouts.” If the statement had really been sa iiidefinite,
8
i t may be that the ourt would have come to a ditfererit conclusiair.
We think these cases well decided, arid that they goverii the present case. We
think that the decision of Dimech v. Collet4 (12 Moo. P. C. C. 199) does not cotiflict
with them; because it i s immersed iri the specific facts there aet out, so as to be a
8 B. & 8. ?a. PEARSON U
‘ . SPENCER 28 5
precedent only for cases with very atialogous specific facts. The statement in that
charter, that the ship was now a t atichor in this port” (Malta), did not avail to
release the charterer, because the ship was irr the port in the dry dock ; and, a ~ t h o u ~ h
the statement of the fact that she was a t anchor in the port was definite, and indicated
that she was ready for sea, while iti truth she tvgs io a dry dock beirig built and was
~ a motith, yet, as the defendant was a t Malta, and was presumed t o
riot ~ o m p i e t efor
have known the state of the ship, and also to have known of the delay, atid did not
insist that the eharterparty was broken, but allowed the ship to sail from ~ & l t for a
Alexandria without objection, his defence on this point failed.
The Court below in a manner referred the present case to a Court of error to $ay
whether the decisioti should be g o v e r ~ ~ ebyd ~ ~ v. ~Bookerv (1e Exch. 416) or Dimech
v. Cwielr!(12 Moo. P. C. C. 199). We are of opinion, for the reasons assigned, that
the f761J decision of Ollive v. Booker was sound, and that it goveins our decision hare ;
and we are further of opinion that, in so holding, we do not at alI cotrflict with the
decision in Bimech v. Corlett, as above explained.
On these grounds we think that the judgment of the Queen’s Bench should be
reversed. /?/6~- 2 L’d I x 3 .
f

Judgment reversed. * I iJ . f i t ‘ .“
I

PEARSON agaimt SPENCER,Tuesday, February 3d, 2863,-Easement. Devise. Way

of necessity.-1. There is a class of implied grants by devise where there is uo
necessity for the right claimed, but where the tenement is so constructed as that
parts of it iiivolve a riecessarJr deperidance, i n order to its eiijogmetit in the state
i t is in when devised, upon the adjoining tetiemant.---2. Where the owner of a
farm divided it by his will into two portions, devisirtg them to A. and B. respec-
tivaly, arid the portion of B. was Iandlooked, so that in order to reach it it was
nec~ssat~y that he should have a right of way over the property of A., aitd the
devisor during his life had used a way iit a certaiii direction over that property :
held, affirmiog the decisioti of the Queert’s B B I I Cthat~ , a right to use that way
paseed to B. by the devise.

[S. C. 8 L. T. 166; 11 \V. R. 471 ; I N. R, 373. Dictum applied, Bolfon v. BuBm,

e ~ , 5 C. P. I). 383. Dictum
1879, 11 Ch. D. 972. Applied, Bretl v. C ~ ~ s 1880,
applied, Fwd v. ~ e ~ Uislrict
~ Railway,
o ~ 1886, ~ D. ~26. ~Considered
o 17~ Q. E. ~
arid applied, ~ ~ v. o~ ~ w~ b~a1887, , L). 503; Beacon v. South Bustem
s ~ ~37r Ch.
Builway, 1889, 61 L. T. 379. Referred to, Phifliys v. Low, [l892] 1 Ch. 52;
Nachbolls v. Nichalls, 19001 W. N. 4. A p lied, Jlilner’s S q f ~Conpuny
~ v. Great
N # ~ a ~d CGpr ~Hai E19071 1 Ch, 219.1)
This wa8 an appeal from the deciaion of the Court of Queeti’s Bench making
absolute a rule to enter a verdict for the def~Iidantoil the ninth plea in the cause :
(See the report itt the Court below, vol. 1, p. 571) : which was argued before Erle C.J.,
Pollock C.B., Williams and Keating JJ,, and Martin, Charinell and Wilde BB.
~ e l l i s h for
, the pl~~ntiff.-The decision of the Court below, that this p a r ~ i c u l a ~
right of way passed t o Abraham Pearsoti by the will of Jibme8 Pearsott, is erroneous
and a t variance with ~ ~ v. 7ricarp
y s M.~QG W. ~4841, so that the only right of
(16
way to which Abraham Pearson was entitled [762] over this iand was a way of
necessity. Where property is divided by will between two persons, atid otie of the
parts into which i t is divided is land locked, so that the devisee must have a way of
riecessity over the other part, arid the will is silent as to the direction of the way, i t
is for the devisee of the aervieiit tenement to select it. A way of necessity should
end with the necessity, and it would be unjust to impose on him a greater burderi
than is indi~pensable: wherefore it is enough if he gives the devisee of the ~ o n ~ i n a i I t
tenement a coriveriieiit way, even though i t be not the most convenient way.
[Martin B. How do you distinguish this case from Pyer v, C ~ (1 H. ~ c%~N. 916),
@ ~in
which i t wag held, that where the owuer of two houses sells one of them, the house
thus sold i s entitled to the betiefit arid subject to the burden of all existing draius
cornmuniczt~ngwith the other house a] That dccisio1~proceede(~011 the grourid that
the easemerit was conti~iuous; attd ~ ~ ~ ~ ~v,~Gimsofb u Q.
~ T ~(29g L.t 3. n B. 116 ; 6 J u ~ ,
N. S. 1053) shews that the cloctiiiie there laid down does not extend to rights of way.