The grantor of anything to another, grants that also without which the thing granted would be useless.
Where a lessor excepts trees from a demise, and afterwards during the continuance of the lease wishes to sell them, the law gives to him and to the intended purchaser power, as incident to the exception, to enter and show the trees with a view to their sale ; for without entry none could see them, and without sight none would buy them. So where a man seized of a house devised it to a woman in tail, upon condition that if the woman died without issue his executor might sell ; in that case it was held that the executor might by law enter into the house to see if it were well repaired, in order to know at what value to sell the reversion. So the law gives power to him who ought to repair a bridge, and to him who has a drain or sewer within the land of another, to enter upon the land when necessary to repair them. So, again, if the owner of trees in a wood sell them, the purchaser may go with carts over the land of the owner to carry them.
In the grant of land or buildings, or a portion of a building as an office, or apartments — a right of way to it or them is incident to the grant, as being directly necessary for the enjoyment of the thing granted. Also, if a man grant a piece of land in the middle of other land of his, he at the same time impliedly grants a way to it, and the grantee may cross the grantor's land for that purpose without being liable in trespass. So, also, the right to get and carry away mines and other minerals, water, &c, and to do all things necessary to their enjoyment, follow as incident to the grant or reservation of them.
Upon the same principle is the maxim relating to judicial authority : “ Quando aliquid mandatur, mandatur et onane per quod pervenitur ad illud” — When anything is commanded, everything by which the thing commanded can be accomplished is also commanded. For, a sentence of authority would be useless if there were not an executive power to carry the sentence into effect. The maxim is of universal application, and applies to all delegated authority ; and there is, of course, no power upon earth which is not delegated, and thus it is that, in pursuance of the supreme will of the people, laws are made by Parliament for the government of the commonwealth, and that Parliament, judges, sheriffs, and other inferior officers are in their several degrees and offices clothed with all necessary authority to enable them to carry' into effect that supreme will. The Queen by virtue of her authority calls together Parliament, who make laws and appoint officers to carry them into effect ; but without such power to appoint such officers, and without such officers to carry the laws into effect, they would, when made, be useless. A practical case which may be given in illustration of the maxim is, where a sheriff, being resisted by force in the execution of a writ, calls to his aid the posse comitatus, or power of the county, in order to assist him in carrying the law into effect, and which by virtue of his writ he is authorised to do. The maxim, “ Quando aliquid prohibetur, prohibetur omne per quod devenitur ad illud” — When anything is prohibited, everything relating to it is also prohibited, may also be referred to as illustrating conversely that cited in the text.
11 Co. 52 ; 5 Co. 115 ; 2 Inst. 48, 148 ; Hob. 234 ; P. N. B. 183 ; Shepp. Touch. 89 ; Cholmondy v. Clinton, 2 B. & Aid. 625 ; Dand v. Kingscote, 6 M. & “W. 174 ; Clarance Railway Company v. Great North of England Railway Company, 13 M. & W. 706; Finks v. Edwards, 11 Exch. 775; Robertson v. Ganntlett, 16 M. & W. 289 ; Evans u. Rees, 12 A. & E. 57 ; Hodgson u. Field, 7 East, 622; Hineheliffe u. Earl of Kinnoul, 5 Bing. N. C. 1 ; Hill v. Grainge, Dyer, 130 ; Bayley v. Wilkins, 7 C. B. 886.