S'IMPSON, J.
This suit ivas brought by the appellee against the appellant for malicious prosecution and false [665]*665imprisonment. One Minsn was an ‘employe of the defendant, working in its mines, and occupied a house on the land of the defendant, so situated that it could not be reached except by passing over the lands of defendant. There, was a road over the premises, which had been used by employes and others, but which it was admitted was not a public road. There was a strike among defendant’s employes, and the defendant had placed a gate across said road, and put a lock thereon, and stationed guards at the gate to prevent persons from entering the premises, and this status had continued for three or four months. The plaintiff approached the gate on horseback having in his possession an account against said Minsu for collection in favor of a furniture house in whose employment he was. After stating his business to the guard, he was permitted to enter the premises, but was afterwards stopped. It may be well to state, in the outset, that if the plaintiff, on merely stating that he wished to go in to collect a debt, entered upon the land with the permission of the guards placed ai the gate, clothed by defendant with the discretion to admit persons, Ik could not be convicted for trespass i n the original entry on the premises, whatever might have been his liability for the unlawful refusal to leave the premises after being requested so to do.
The first assignment of error insisted on is that numbered 36, which claims error in the refusal of the court to give charge No. 18 requested by the defendant. There was no error in refusing this charge. If Minsu, in renting the house, “thereby acquired the right to have persons visit his house on business or pleasure, and go over defendant’s land in so doing,” then no one for whom said right had been thus acquired could be guilty of trespass in exercising such right; and, if it was a right acquired by the contract of renting, it could not be taken [666]*666away by a mere notice to such person, so long as the contract of renting remained in force. — Proudfoot v. Saffle, 62 W. Va. 51, 57 S. E. 256, 12 L. R. A. (N. S.) 482.
Charge No. 15, requested by the defendant and refused, brings up the important point specially contended for in this case, and that is, whether the plaintiff in this case, having in his hands a claim for collection against Minsu, had a right to go to his house over the private road through the defendant’s lands against the objection of the defendant. It is a well-recognized principle of law that if A., owning a large tract of land, conveys to B., a portion which is so surrounded by A.’s lands that B., cannot have ingress and egress to and from the land bought, save through the land of A., and there be no stipulations and circumstances showing a contrary intention, the law gives to B., a way of necessity, and, as this way of necessity attaches to the conveyance of the land, it is appurtenant to it. A., has the right to designate the way, and if he fails to do so then B., has the right. If neither designates it, but a way is used by common consent that will be considered the way. — 2 Washburn on Real Property (3d Ed.) pp. 282 (*33), 306 (*51) ; Tiedman on Real Property, § 609; 23 A. & E. Ency. Law, p. 13; Benedict v. Barling, 79 Wis. 551, 48 N. W. 670; Ellis v. Bassett, 128 Ind. 118, 27 N. E. 344, 24 Am. St. Rep. 421; 14 Cyc. p. 1204. A lease for a period, long .or short carries with it the incidents of a conveyance; so that a lessee, occupying lands surrounded by the lands of his landlord, would, in the absence of stipulations to the contrary, be entitled to the same ingress and egress that a purchaser would have. ■
While a way of necessity is a matter of presumption, and may be limited or restricted by special contract, yet, in the absence of any stipulation or statute, it is [667]*667presumed to be for the use of the owner, his family, and his employes; and he may license others to use it for the purpose of coming to or going from the dominant estate. — 28 A. & E. Ency. Law, p. 25; 14 Oyc. 1208. In a case where a right of way over a private alley was granted, with no specifications as to how it should be used, the grantor undertook to block up the way so as to leave the grantee only the right to pass over it on foot, while the grantee claimed that he was running a milk house and had a right to use it, by himself, his employes, and customers, either on foot or in vehicles; and the Chancery Court of New Jersey held that “a footway, a wagonway, a passage for horses or other animals, are all permissible uses of a way; * * nor is the owner of the way limited to its use by himself in propria. The way belongs to him as his property. All persons having occasion may, with his permission, transact business with him by passing to and fro over the way.”— Shrieve v. Mathis, 63 N. J. Eq. 170, 178, 52 Atl. 234. It is also stated that, “where a way is appurtenant to an estate, it may be used by those who own or lawfully occupy any part thereof and by all persons lawfully going to or from such premises, whether they be mentioned in the grant or not.”- — 14 Oyc. 1208.
The circumstances and conditions of the parties- and premises at the time of the leasing must be taken into consideration; and, while the tenant could not put the way to a use that would put an additional servitude on the servient estate, yet it may be used for such purposes as were reasonably within the contemplation of the parties at the time of leasing. In the instance suggested by the appellee, where a room in an office building is rented to a lawyer, the character of the building and the purpose for which the room is rented necessarily indicate that it was within the contemplation of the par[668]*668ties that clients and other persons having business with the lawyer should have free ingress and egress.
So the question arises whether, when a miner who is working the mines of a mine owner, leases a house on the premises to live in, it can-be claimed as a. right, by a third party who has a demand against the miner, to travel the road, against the protest of the owner, to collect his claim. There must be some line of distinction between a private way of necessity and a public way. The way of necessity is presumed only for the convenience of the tenant, and only so long as the necessity exists. As shown, he may invite persons to visit him, either socially or on business, and such persons, traveling the way, would not be trespassers; but, until he does extend the invitation, either actually or by implication, no third person can claim the benefit of using the private way.
While there was some proof in this case tending to show' that, previous to the time in question, the plaintiff had been visiting Minsu periodically, for the purpose of collecting the installments on the furniture as they became due, and this, in connection with the contract made, might-afford on inference that the plaintiff was authorized by Minsu to visit him for that purpose, yet charge 15, requested by the defendant, does not hypothesize these facts, but merely that the desire of plaintiff to go to the house of Minsu to collect, etc., would not be a legal excuse, etc. The mere ''desire of plaintiff to go to the house of Minsu to collect a bill would not be either legal cause or good excuse,” unless it was shown to have been connected with circumstances showing Minsu’s invitation or consent. Hence charge 15 should have been given.
Charge No.
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S'IMPSON, J.
This suit ivas brought by the appellee against the appellant for malicious prosecution and false [665]*665imprisonment. One Minsn was an ‘employe of the defendant, working in its mines, and occupied a house on the land of the defendant, so situated that it could not be reached except by passing over the lands of defendant. There, was a road over the premises, which had been used by employes and others, but which it was admitted was not a public road. There was a strike among defendant’s employes, and the defendant had placed a gate across said road, and put a lock thereon, and stationed guards at the gate to prevent persons from entering the premises, and this status had continued for three or four months. The plaintiff approached the gate on horseback having in his possession an account against said Minsu for collection in favor of a furniture house in whose employment he was. After stating his business to the guard, he was permitted to enter the premises, but was afterwards stopped. It may be well to state, in the outset, that if the plaintiff, on merely stating that he wished to go in to collect a debt, entered upon the land with the permission of the guards placed ai the gate, clothed by defendant with the discretion to admit persons, Ik could not be convicted for trespass i n the original entry on the premises, whatever might have been his liability for the unlawful refusal to leave the premises after being requested so to do.
The first assignment of error insisted on is that numbered 36, which claims error in the refusal of the court to give charge No. 18 requested by the defendant. There was no error in refusing this charge. If Minsu, in renting the house, “thereby acquired the right to have persons visit his house on business or pleasure, and go over defendant’s land in so doing,” then no one for whom said right had been thus acquired could be guilty of trespass in exercising such right; and, if it was a right acquired by the contract of renting, it could not be taken [666]*666away by a mere notice to such person, so long as the contract of renting remained in force. — Proudfoot v. Saffle, 62 W. Va. 51, 57 S. E. 256, 12 L. R. A. (N. S.) 482.
Charge No. 15, requested by the defendant and refused, brings up the important point specially contended for in this case, and that is, whether the plaintiff in this case, having in his hands a claim for collection against Minsu, had a right to go to his house over the private road through the defendant’s lands against the objection of the defendant. It is a well-recognized principle of law that if A., owning a large tract of land, conveys to B., a portion which is so surrounded by A.’s lands that B., cannot have ingress and egress to and from the land bought, save through the land of A., and there be no stipulations and circumstances showing a contrary intention, the law gives to B., a way of necessity, and, as this way of necessity attaches to the conveyance of the land, it is appurtenant to it. A., has the right to designate the way, and if he fails to do so then B., has the right. If neither designates it, but a way is used by common consent that will be considered the way. — 2 Washburn on Real Property (3d Ed.) pp. 282 (*33), 306 (*51) ; Tiedman on Real Property, § 609; 23 A. & E. Ency. Law, p. 13; Benedict v. Barling, 79 Wis. 551, 48 N. W. 670; Ellis v. Bassett, 128 Ind. 118, 27 N. E. 344, 24 Am. St. Rep. 421; 14 Cyc. p. 1204. A lease for a period, long .or short carries with it the incidents of a conveyance; so that a lessee, occupying lands surrounded by the lands of his landlord, would, in the absence of stipulations to the contrary, be entitled to the same ingress and egress that a purchaser would have. ■
While a way of necessity is a matter of presumption, and may be limited or restricted by special contract, yet, in the absence of any stipulation or statute, it is [667]*667presumed to be for the use of the owner, his family, and his employes; and he may license others to use it for the purpose of coming to or going from the dominant estate. — 28 A. & E. Ency. Law, p. 25; 14 Oyc. 1208. In a case where a right of way over a private alley was granted, with no specifications as to how it should be used, the grantor undertook to block up the way so as to leave the grantee only the right to pass over it on foot, while the grantee claimed that he was running a milk house and had a right to use it, by himself, his employes, and customers, either on foot or in vehicles; and the Chancery Court of New Jersey held that “a footway, a wagonway, a passage for horses or other animals, are all permissible uses of a way; * * nor is the owner of the way limited to its use by himself in propria. The way belongs to him as his property. All persons having occasion may, with his permission, transact business with him by passing to and fro over the way.”— Shrieve v. Mathis, 63 N. J. Eq. 170, 178, 52 Atl. 234. It is also stated that, “where a way is appurtenant to an estate, it may be used by those who own or lawfully occupy any part thereof and by all persons lawfully going to or from such premises, whether they be mentioned in the grant or not.”- — 14 Oyc. 1208.
The circumstances and conditions of the parties- and premises at the time of the leasing must be taken into consideration; and, while the tenant could not put the way to a use that would put an additional servitude on the servient estate, yet it may be used for such purposes as were reasonably within the contemplation of the parties at the time of leasing. In the instance suggested by the appellee, where a room in an office building is rented to a lawyer, the character of the building and the purpose for which the room is rented necessarily indicate that it was within the contemplation of the par[668]*668ties that clients and other persons having business with the lawyer should have free ingress and egress.
So the question arises whether, when a miner who is working the mines of a mine owner, leases a house on the premises to live in, it can-be claimed as a. right, by a third party who has a demand against the miner, to travel the road, against the protest of the owner, to collect his claim. There must be some line of distinction between a private way of necessity and a public way. The way of necessity is presumed only for the convenience of the tenant, and only so long as the necessity exists. As shown, he may invite persons to visit him, either socially or on business, and such persons, traveling the way, would not be trespassers; but, until he does extend the invitation, either actually or by implication, no third person can claim the benefit of using the private way.
While there was some proof in this case tending to show' that, previous to the time in question, the plaintiff had been visiting Minsu periodically, for the purpose of collecting the installments on the furniture as they became due, and this, in connection with the contract made, might-afford on inference that the plaintiff was authorized by Minsu to visit him for that purpose, yet charge 15, requested by the defendant, does not hypothesize these facts, but merely that the desire of plaintiff to go to the house of Minsu to collect, etc., would not be a legal excuse, etc. The mere ''desire of plaintiff to go to the house of Minsu to collect a bill would not be either legal cause or good excuse,” unless it was shown to have been connected with circumstances showing Minsu’s invitation or consent. Hence charge 15 should have been given.
Charge No. 3, given at the request of the plaintiff, does not hypothesize the invitation or consent of the [669]*669tenant- for the plaintiff to visit him at his house, and should have been refused. Charge No. 8 does hypothesize the defendant’s permission, and it was properly given.
Charge No. 18, requested by the defendant, whs properly refused. As shown above, there is evidence in this case which tends to show that the plaintiff may have been invited by Minsu to visit- the premises occupied by him, and, if that was the case, the “right” acquired by Minsu would inure to the benefit of plaintiff; and (referring to the latter part of the charge) if Minsu, by renting the house, “thereby .acquired the right to have persons visit his house on business' or pleasure, and to go over defendant’s lands in doing so,” that right, being appurtenant to the contract of renting, could not be taken away by the mere notice, while the contract of renting remained in force. — Proudfoot v. Saffle, 62 W. Va. 51, 57 S. E. 256, 12 L. R. A. (N. S.) 482. The invitation to. others to visit him is not an assignment of the easement, within the authorities referred to by appellant (which, it may be further said, refer to personal easements, and not to those appurtenant to an estate), but is merely the exercise of the right which the tetnant acquires.
There was no error in overruling the demurrer to the fourth count of the complaint. If not good as a count •for malicious prosecution, it was good as a. count for false imprisonment. — Davis v. Sanders, 133 Ala. 275, 32 South. 499, and cases cited.
There was no error in admitting the testimony as to whether the debt was due by Minsu, nor as to whether there was any other way to reach Minsu’s house, nor as to whether the road in question was the road usually traveled, as they all had a bearing upon the question of a way of necessity vel non, and as to whether that way had been established by consent.
[670]*670It was error to admit testimony as to the agreement for attorney’s fees. In the first place the attorney’s fees were not specially claimed in the complaint, and, second, if they had been specially claimed, the amount recoverable would not be that agreed upon, but the amount proved to be reasonable.
Assignments of error 5, 6, 7, and 8 are not sustained. The questions objected to were, first, preliminary, to call the witness’s attention to the time inquired about, and then to show that the duties of the guards were such as to place them under the direction of the defendant as to the matter of admitting persons on the premises, all of which was legitimate.
As the offense of trespass after warning would be complete when the premises were entered after having been warned according to law, it was improper to allow testimony as to whether the plaintiff was molesting the property.
The questions, on cross-examination, to the witness Tutwiler as to his presence and the presence of others at the trial, were admissible on cross-examination, as tending to show the part taken by said witness (who was the president of defendant) in the prosecution, and to test his recollection of the facts. — Motes v. Bates, 74 Ala. 374, 377.
The testimony regarding the establishment of a post-office on the premises, and the allowance of others to go there, should have been excluded. There was no pretense that the plaintiff was going to the postoffice,-and any permission given to others would not inure to him. —Cross v. State, 147 Ala. 125, 129, 41 South. 875.
There was no error in overruling the objections to the question to the witness Tutwiler as to the authority delegated by him to the guards, because, if the guards had authority to admit persons into the premises, then a per[671]*671son entering by their permission entered by the permission of the defendant, and conld not be gnilty of a trespass for entering.
Charge 17, requested by the defendant, asserts no principle of law, and was properly refused. — Morrison v. State, 155 Ala. 115, 46 South. 647, 648.
Appellant claims that inasmuch as one count is for false imprisonment, and the offense was committed in the presence of the officer, who, under sections 6269-6273 of the Code of 1907, had a right to arrest, therefore the general charge asked as to said count should have been given; the argument of appellant being that, as the plaintiff was arrested by the officer for an offense committed in his presence, the arrest was legal, and therefore no recovery could be had for false imprisonment. The evidence is in conflict as to whether said arrest was made on the charge of refusing to leave after having entered, or on that of having entered unlawfully previously. There was no error in the refusal to give said charge.
There was no error in the refusal to give the general charge, requested by the defendant, as to malicious prosecution, as the evidence is not without conflict.
The judgment of the court is reversed, and the cause remanded.
Tyson, C. J., and Anderson and Denson, JJ., concur.