case BEAUDELY against brook by bargain and sale of land with a way to it no  way passes for the bargain and sale convey a use only and there can be a use  of what do not exist but if a way be appurtenant to land by a lease of the  land the way passes to the lessee without any express grant ante Mod Yelv  Brownl lev roll Abr sir W Jones pale yellow law use   light a hob action upon  the case for a disturbance in use a way and show that the defendant be seize  in fee of the land over which the way be and of other land and by indenture  enrol bargain and sell to I S land in fee with a way over his land and that I  S let to he the land for year and the defendant disturb he after verdict it be  move in arrest of judgement first because he do not show the deed of this  lease and without a deed the way passes not second because a lease croak throw  be plead of land without express word of the way and therefore not good  Yelverton justice be of that opinion and he upon view of the record take  another exception videlicet that there be not any grant of the way in the  indenture but only a bargain and sale of land and of a way out of his other  land which can be good for nothing but the use pass by the deed and there can  be a use of a thing which be not in be as a way common c which be new create  and until they be create no use can be raise by bargain and sale and by  consequence nothing pass by this indenture and all the court be of opinion  that for this cause the plaintiff have not show a sufficient title but for the  other point Fleming and all the other justice hold that the declaration be  good for when land be grant with a way thereto it be quasi appendant to it and  a thing of necessity wherefore by the lease of the land although the way be a  in the report of this case Noy it be say that judgement be give quod to  express grief nothing to take in hand per billam because he be not a guest at  the time of the steal and the host have not any benefit or profit of the good  be there see also more hargrave   light a notorious facts croak James er p not  mention it well passes without be express in the deed and therefore the  difference will be betwixt a grant of land with common or estovers to be burn  there if he let we the land the common or estovers will not pass without a  deed and express word therein because they be profit a prender in another soil  and be not of necessity but the land can be use without a way wherefore it  shall ensue it and pass of necessity and unity of possession do not extinguish  it